NO. 96-096
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
IN RE THE MARRIAGE OF
KEVIN W. JAMES,
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Judge presiding.
COUNSEL OF RECORD:
For Appellant:
H. James Oleson, Oleson Law Firm, Kalispell, Montana
For Respondent:
George B. Best, Kalispell, Montana
Submitted on Briefs: July 18, 1996
Decided: October 8, 1996
Filed:
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company.
Kevin James appeals the order issued pursuant to a divorce
decree by the Eleventh Judicial District Court, Flathead County,
awarding Rhonda James primary residential custody of the James'
son, Joel. We affirm.
The sole issue for our review is whether the District Court
erred in awarding Rhonda primary residential custody of Joel.
FACTS
Kevin James (Kevin) and Rhonda James (Rhondal were married in
Kalispell, Montana on January 25, 1992. Kevin, 25 years old, is
employed as a logger in a family owned business. Rhonda is 24
years old and attended but did not complete college. During the
course of the marriage Rhonda was a homemaker and was not employed
outside the home. At the time of the marriage Rhonda had a son,
Bradley, from a previous relationship. Kevin and Rhonda conceived
a child, Joel, born June 9, 1993.
On August 16, 1994, Kevin filed a petition for dissolution of
marriage in the Eleventh Judicial District Court, Flathead County.
On the same date Kevin filed an affidavit which alleged that
because of Rhonda's drinking habits and occasional neglect of Joel,
it would be in Joel's best interests if the court placed him in
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Kevin's custody. In her response to Kevin's petition, Rho&a
denied that Kevin should be granted residential custody of Joel.
In October of 1994, the court ordered that Jolie Fish,
Director of Family Court Services, conduct an investigation and
prepare a report and recommendation regarding custody, support and
visitation rights of Joel, Kevin, and Rhonda. Ms. Fish's report,
filed January 27, 1995, recommended that Kevin and Rhonda be
granted joint custody of Joel, but that Kevin be awarded
residential custody of Joel. Ms. Fish's report was based on
conferences and home visits with both Kevin and Rhonda, during
which MS. Fish studied their parenting abilities and their
respective interactions with Joel.
In her report, Ms. Fish initially stated Kevin's allegation of
Rhonda's excessive drinking and Rhonda's allegation that Kevin was
abusive towards her. Ms. Fish admitted later in the report that
she questioned Rhonda's credibility with respect to her abuse
allegations, and was not entirely satisfied with Rhonda's
explanation of her drinking habits.
Ms. Fish believed that both Kevin and Rhonda loved Joel very
much, and that Joel exhibited a bond or attachment to each parent.
Ms. Fish discovered during a visit to Kevin's home that he and Joel
were affectionate toward one another, and that Kevin responded
appropriately when it was necessary to discipline Joel. Ms. Fish
noted that Kevin had lived'in the Kalispell area his whole life,
worked in a local family business, and had just bought a house
where he intended to stay indefinitely.
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In contrast, when Ms. Fish visited Rhonda's apartment, she
found her in the midst of entertaining a number of friends. Joel
was involved in playing with his toys and Rhonda, her attention
distracted by her visitors, did not interact much with Joel.
Ms. Fish concluded her report by stating that because of
Rhonda's "immaturity," Ms. Fish did not believe that Rhonda
"possesses the ability to ,foster an environment that will meet
Joel's physical, social, educational, emotional, or psychological
needs." Ms. Fish recommended that Kevin be given residential
custody of Joel, and that "every effort should be made to ensure
Joel has significant contact with his brother, Bradley," for whom
Joel had exhibited a great fondness.
The matter came before the court for a hearing on May 3, 1995.
Each side presented witness testimony, and Ms. Fish testified in
accordance with the report she filed with the court. The court
issued its Findings of Fact, Conclusions of Law and Decree of
Dissolution on October 18, 1995, which dissolved the marriage,
distributed the marital property, and awarded Rhonda primary
residential custody of Joel. Kevin appeals the District Court's
award of custody.
STANDARD OF REVIEW
1n reviewing a district court's award of custody, we must
determine whether the court's findings are clearly erroneous. In
re the Marriage of Dreesbach (1994), 265 Mont. 216, 220-21, 875
P.2d 1018, 1021. The findings of fact must be based on
substantial, credible evidence, and the court's decision will be
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upheld unless a clear abuse of discretion is shown. Dreesbach, 875
P.2d at 1021.
DISCUSSION
Did the District court err in awarding Rhonda primary
residential custody of Joel?
Kevin argues on appeal that there are two reasons why the
District Court's custody award was erroneous: first, the court
ignored the recommendations of Ms. Fish, an expert who was hired by
the court and was unbiased; second, the court based its custody
award in part on its desire to support the continued interaction
between Joel and Bradley, when in fact the court had destroyed the
likelihood of such interaction as a result of its ruling in a
prior, companion case.
While Kevin admits in his briefs submitted to us that there
are no cases in which we have held that a district court must
follow the recommendations of a court-appointed expert, he argues
strenuously nonetheless that in this case the District Court
erroneously ignored Ms. Fish's recommendations. Kevin points us to
three cases in which we upheld a district court's award of custody
in accordance with the recommendation of a court-appointed expert:
Dreesbach, 875 P.2d 1018; In re the Marriage of Cook (19911, 250
Mont. 210, 819 P.2d 180; and In re the Marriage of Ereth (1988),
232 Mont. 492, 757 P.2d 1312. Our holdings in these cases do not
imply, as Kevin seems to argue, that a district court's custody
award must be in accordance with a court-appointed expert's
recommendations in order to withstand review by this Court. The
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only direction we have given district courts regarding a court
appointed expert's recommendations is that they merely consider the
recommendations in making a custody determination. In re the
Marriage of Moseman (1992), 253 Mont. 28, 30-31, 830 P.2d 1304,
1306.
For purposes of our review of custody cases, a district
court's willingness or unwillingness to adhere to a court-appointed
expert's recommendations is-merely incidental to its primary duties
of considering the "best interests of the child" factors and
awarding custody based on substantial, credible evidence. In other
words, as long as a custody award is in the best interest of the
child and is supported by substantial, credible evidence, we will
as readily affirm an awarding judge who relied on an expert's
report as an awarding judge who did not rely on an expert's report.
This is especially so in light of the principle which supports our
unwavering deference to a district court's custody determination:
The responsibility of deciding custody is a delicate one
which is lodged with the district court. The judge
hearing oral testimony in such a controversy has a
superior advantage in determining the same, and his
decision ought not to be disturbed except on a clear
showing of abuse of discretion.
In re the Marriage of Nalivka (1986), 222 Mont. 84, 89, 720 P.2d
683, 686 (citations omitted).
The District Court in this case properly considered the "best
interest" factors before awarding custody. The "best interest"
factors of course refer to § 40-4-212, MCA, which provides in
pertinent part:
(1) The court shall determine custody in accordance with
the best interest of the child. The court shall consider
all relevant factors, including but not limited to:
(a) the wishes of the child's parent or parents as
to custody;
(b) the wishes of the child as to a custodian;
(c) the interaction and interrelationship of the
child with the child's parent or parents and siblings and
with any other person who may significantly affect the
child's best interest;
(d) the child's adjustment to home, school, and
community;
(e) the mental and physical health of all
individuals involved;
(f) physical abuse or threat of physical abuse by
one parent against the other parent or the child; and
(g) chemical dependency, as definedin 53-24-103, or
chemical abuse on the part of either parent.
Section 40-4-212(l), MCA. The District Court made findings
concerning Joel's best interests before awarding Rhonda custody.
In its Findings of Fact, Conclusions of Law and Decree of
Dissolution, the court states at Finding #15:
15. The provisions set forth in Section 40-4-212,
M.C.A., were considered by the Court. The child, Joel,
is too young to express his wishes as to his custodian,
and each of the parents believes he/she should be
designated the primary residential parent for Joel.
There was no evidence that Joel was not adjusted to his
home with Rhonda, even though there was a concern about
the number of moves Rhonda had made in the recent past.
The Court also considers the interaction and
interrelationship between Joel and his half-brother,
Bradley, and finds that it is in Joel's best interest to
fashion a custodial arrangement that will facilitate the
continuation of that relationship.
At Finding #7 the court states:
7. Joel has continuously resided with Respondent
[Rhondal since the parties' separation in August 1994.
Joel is closely bonded with his mother.
At Findings 9, 10, and 11, the court states:
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9. Rhonda testified that she has been physically and
emotionally abused by Kevin, which he denied.
10. Janet Cahill, Director of the Violence Free Crisis
Center in Kalispell, Montana, testified at the hearing
concerning her contacts with Rhonda in July and August
1994. She testified that she interviewed Rhonda, who
exhibited many of the signs of a physically abused
person. At the time of the hearing, Rhonda had been
counseling with Mary Jane Fox through the Violence Free
Crisis Center.
11. The Court, having had the opportunity to observe the
demeanor of the witnesses and consider all the testimony
presented at the hearing, finds credible Rhonda's
testimony on the issue of physical abuse.
The court also adhered to the applicable rebuttable presumptions
that
custody should be granted to the parent who has provided
most of the primary care during the child's life, which
the evidence shows is Rhonda, and the presumption that
the failure of Kevin to pay child support that he was
able to pay was contrary to Joel's best interest.
See § 40-4-212(3)-(4), MCA. Kevin argues that he, not Rhonda,
provided most of Joel's primary care. A review of the record
reveals conflicting testimony on this point, and a court may
properly give more weight to one party's evidence than to the other
party's evidence. In re the Marriage of Rolfe (1985), 216 Mont.
39, 699 P.2d 79. It was not error for the court to find that
Rhonda provided Joel's primary care, and to apply the above
presumption to that finding.
Kevin also contends that the court failed to address 5 40-4-
212 (1) (e) , MCA, one of the "best interest" factors which requires
a court to consider "the mental and physical health of all
individuals involved," and § 40-4-212(l) (g), MCA, which requires a
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court to consider "chemical dependency, as defined in 53-24-103, or
chemical abuse on the part of either parent." Kevin's contention
is based on the court's failure to make specific findings as to
these "best interest" factors.
In In re the Marriage of Clingingsmith (1992), 254 Mont. 399,
838 P.2d 417, we explained the extent of a district court's duty to
make findings concerning the "best interest" factors:
While it is encouraged, the trial court need not make
specific findings on each of the factors. However,
failure to at least consider all of the statutorily
mandated factors is error. The custody determination
must be based on substantial evidence relating to the
statutory factors and must be set forth explicitly in the
findings. The findings should, at a minimum, set forth
the 'essential and determining facts upon which the
District Court rested its conclusion on the custody
issue. '
Clinqinqsmith, 838 P.2d at 421 (citations omitted). As to Kevin's
contention that the court did not address 5 40-4-212(l) (e), MCA, we
conclude to the contrary. The court, in its Findings, noted that
both Kevin and Rhonda were in good health, and that Ms. Fish was
concerned about Rhonda's instability and immaturity. The court "at
least considered" this factor.
We have also stated that a district court need not make a
finding concerning a "best interest" factor which is not at issue
or for which there is no evidentiary support in the record. In re
the Marriage of Otto (1990), 245 Mont. 271, 275, 800 P.2d 706, 709.
While Kevin alleged in his affidavit submitted with his petition
for dissolution that Rhonda has an alcohol abuse problem, the
record reveals that he did not pursue this matter at trial. Rhonda
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and one other witness were simply asked whether Rhonda ever drank
alcohol while she was married to Kevin. The answers are not as
important as the questions that were asked, which could only have
elicited the fact that Rhonda may have drunk alcohol, not that she
had an alcohol abuse problem. While we have stated our preference
for district courts to make findings concerning all the "best
interest" factors, it is understandable that the court here did not
address § 40-4-212(l) (g), MCA, for there is nothing in the record
of the proceedings which would prompt it to do so
From our review of the record it is clear that the court
carefully and conscientiously considered Joel's best interests
before awarding custody. It is equally clear to us that the
court's findings in this regard were based on substantial credible
evidence. That the court's findings conflict with some of the
recommendations in Ms. Fish's report or with some of the evidence
Kevin presented at trial does not constitute error or abuse of
discretion. A trial court is given wide latitude in these matters,
and is not bound by any testimony, expert or otherwise. The
District Court considered Ms. Fish's report and her testimony at
trial, and ultimately decided not to rely on her recommendations:
13. Extensive testimony was presented concerning the
best interests of the minor child and the proper
residential parent. Jolie Fish, Director of Family Court
Services, testified pursuant to her report of January
1995. She testified that at the time of her report she
had not received information concerning Kevin's physical
abuse of Rhonda, and that she had significant concerns in
that regard. Ms. Fish testified that Rhonda exhibited
symptoms of an abused person, but she also expressed
concerns about Rhonda's instability and lack of maturity.
She acknowledged that removing Joel from Rhonda's care
would be traumatic to him, but did not change her
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recommendation that Kevin be designated the primary
residential parent for Joel.
We disagree with Kevin's first argument. The court adequately
considered the best interest factors and based its conclusions on
substantial, credible evidence. The court's findings set forth the
"essential and determining facts upon which [it] rested its
conclusions on the custody issue." The court did not abuse its
discretion.
As to Kevin's second argument, he contends that the court
erred in partly basing its custody award on the court's desire to
foster the relationship between Joel and Bradley, a relationship
already compromised by the court's ruling in a prior, companion
case. The essence of Kevin's second argument is that the court
based its custody award o,n a mistaken premise, that Joel and
Bradley had a relationship that, could be maintained; Kevin does not
argue that it was improper for the court to consider maintaining or
fostering one of Joel's relationships.
Kevin cites the District Court's Findings of Fact, Conclusions
of Law and Temporary Order issued September 8, 1995 in the case of
Ogle v. James, Cause No. DR-93-046(B) (Eleventh Judicial District
Court, Flathead County), where the court ordered that Justin Ogle,
Bradley's natural father, be awarded primary residential custody
and that Rhonda be awarded visitation rights. Kevin argues that
since Rhonda no longer has physical custody of Bradley, awarding
her custody of Joel would not and could not foster any relationship
between the two young boys. Kevin argues that the court's order in
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Ogle v. James "destroyed" the relationship between Bradley and
Joel. We disagree.
The record reveals that the court, in awarding Rhonda custody
of Joel, in part to foster Joel's relationship with Bradley, was
well aware of the contents of its order in the Ogle v. James case.
Kevin raised this same argument before us now in his Motion for a
New Trial filed with the District Court, and in its Order on Motion
for a New Trial and Rationale the court responded:
With regard to paragraph (5) of the Motion, the Court was
aware that Bradley no longer primarily resides with
[Rhondal, but intended that Bradley and Joel could
maintain their relationship during periods that Bradley
was in [Rhonda’sl care.
Bradley and Joel's relationship was not destroyed, and is in fact
maintained by the grant to Rhonda of residential custody of Joel
combined with her visitation rights to Bradley. We conclude that
it was proper for the court to fashion the custody arrangement as
it did, especially when we consider that Kevin does not have any
visitation rights to Bradley.
We hold that the District Court did not abuse its discretion
in awarding Rhonda primary residential custody of Joel.
Affirmed.
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