NO. 96-091
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
IN RE MARRIAGE OF
JAMES ALAN ABRAHAMSON,
Petitioner and Respondent,
011~ tit3 19%
and
MICHELLE SHERRIE ABRAHAMSON,
Respondent and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Thomas C. Honzel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James P. Reynolds, Reynolds, Mot1 and
Sherwood, Helena, Montana
For Respondent:
John L. Hollow, Attorney at Law,
Helena, Montana
Submitted on Briefs: June 27, 1996
Decided: October 8, 1996
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
The respondent, James Abrahamson, filed a motion in the
District Court of the First Judicial District in Lewis and Clark
County, pursuant to 5 40-4-219(l) (f), MCA, to modify primary
residential custody of the parties' child, Jordin. The District
Court granted James' motion. The appellant, Michelle Abrahamson,
appeals the District Court's judgment. We affirm the order and
judgment of the District Court.
The issue on appeal is whether the District Court erred when
it granted James Abrahamson's motion to modify custody of the
parties' child.
FACTUAL BACKGROUND
In December 1992, the parties' marriage was dissolved by
decree of the District Court. Incorporated into that decree is a
Custody, Support, and Property Settlement Agreement. The agreement
granted the parties joint legal custody of Jordin, the sole child
of the marriage, designated Michelle as the primary residential
custodian, and provided James with visitation rights.
After the dissolution, both parties remained in Helena.
However, in January 1995, Michelle told James that she might be
moving to Salt Lake City, Utah. James filed a motion with the
District Court, in which he moved for a modification of custody and
a restraining order to prevent Michelle from leaving Helena before
the matter could be heard by the District Court. Subsequently,
Michelle filed her objections to James' motions, and her own motion
to amend custody and visitation.
In March 1995, Michelle provided James with formal notice of
her intent to change Jordin's residence from Montana to Utah. In
an affidavit dated February 3, 1995, she stated that the purpose of
her move was to attend the University of Utah and pursue a career
in the Federal Bureau of Investigation. In a second affidavit,
dated April 28, 1995, she stated that her purpose was to enroll in
a criminal justice course at Salt Lake City Community College. She
also stated that, in order to qualify for the in-state tuition rate
and certain higher education grants, she was required to become a
resident of Utah no later than June 1, 1995. However, after
Michelle moved to Utah, she instead enrolled in the University of
Phoenix Business School in Salt Lake City. At the time of the
hearing, she was not attending school, and it is disputed as to
whether she ever did, in fact, attend classes.
The parties jointly submitted an order to the District Court
which allowed Michelle to move to Utah, and provided that Donna
Hale, a licensed clinical social worker, would conduct a custody
evaluation and prepare a custody report.
The District Court heard the motion to modify custody on
September 21, 1995.
At the hearing, James sought to establish that Michelle leads
an unstable life and therefore, that Jordin's best interest would
be served by a modification of the custody arrangement. James
3
testified about a number of subjects: his work schedule and how it
would allow him to spend time with Jordin; his relationship with
Jordin; his strengths as a parent; his ability and desire to serve
as the primary residential custodian; his relationship with
Michelle since the dissolution; and the family support network
Jordin has in Helena. He expressed concern about Michelle's
ability to effectively parent Jordin, as well as her commitment to
her role as a parent. He also responded to several allegations
made by Michelle, including his possession of pornographic
materials, his relationships with several women, and the fact that
he had taken Jordin into the mens' locker room at the athletic club
to shower.
Denise Blankenship and Kristi Rivenes, both of whom were
friends of Michelle while she lived in Helena, testified that
Michelle had been, on occasion, inadequate as a parent.
Blankenship described Michelle as being inattentive to Jordin's
needs, and impatient with Jordin on several occasions. Rivenes
testified that Michelle was an irresponsible parent because she
"never thought of Jordin first."
Michelle presented evidence to support her contention that a
custody modification would not be in Jordin's best interest. Paula
Fenton, Jennifer Lamach, Roweena Meehan, Debbie Stanton, and
Treanna Olson all testified that Michelle is a good parent, and
that she has a strong relationship with Jordin. Karl Lieb,
Michelle's boyfriend, also testified on her behalf. He stated that
4
he has developed a strong relationship with Jordin, and that Jordin
was doing well in Utah. Michelle's testimony described her
relationship with Jordin; her abilities as a parent; her reasons
for moving to Utah; her work schedule; her availability as a
parent; and her relationship with James since the divorce.
Michelle asserted that both she and Jordin were doing extremely
well since moving to Utah, and that a modification of custody would
not be in Jordin's best interest.
Throughout the hearing, there was a significant amount of
testimony relating to Michelle's purchase of a tanning salon in
Salt Lake City. Michelle had engaged in negotiations for the
purchase of one salon, but ultimately purchased another. Denise
Robbins testified that Michelle had sought to purchase her salon,
but that Michelle breached the contract. Furthermore, Robbins
testified that Michelle planned to keep her day job and work at the
salon during nights and weekends. Michelle disputed those claims,
and asserted that the evidence regarding the purchase of the
tanning salon was irrelevant to Jordin's best interest. James
asserted, however, that the evidence was relevant, and established
that Michelle lacked stability. According to James, the evidence
also contradicted Michelle's stated purpose for moving to Utah.
And finally, it established that her work schedule would not allow
her to be an effective and available parent.
Donna Hale, a licensed clinical social worker, testified
regarding her custody evaluation. Her report concluded that both
5
Michelle and James genuinely love Jordin, and that there was no
evidence of endangerment with either parent. Ultimately, her
report recommended that, while both parents should continue to
share joint legal custody, Michelle should be the primary
residential custodian.
The District Court granted James' motion to modify custody,
designated James as the primary residential custodian, ordered that
the parties should retain joint legal custody, and established a
visitation schedule.
Subsequent to Michelle's appeal from that judgment, James
filed with this Court a motion to strike materials and references
not before the District Court, and a request for sanctions. In
support of that motion, James alleges that "Michelle's actions in
placing before this Court materials that were not part of the
record of what occurred before the district court violate Rule 9,
M.R.App.P." It is well established that this Court will not
consider any evidence not contained in the record on appeal. Johnson
v. Killingsworth (19951, 271 Mont. 1, 3, 894 P.2d 272, 273. Therefore,
James' motion is granted, and the portion of Michelle's reply brief
that refers to James' operation of Jordin River Products is
stricken. James' request for sanctions is denied.
DISCUSSION
Did the District Court err when it granted James' motion to
modify custody?
6
When we review a District Court's findings related to a
modification of custody, the standard of review is whether those
findings are clearly erroneous. hreMarriageofElseu (1995), 271 Mont.
265, 270, 895 P.2d 619, 622. When findings upon which a decision
is predicated are not clearly erroneous, we will reverse a District
Court's decision to modify custody only where an abuse of
discretion is clearly demonstrated. Elser , 271 Mont. at 270, 895
P.2d at 622.
On appeal, Michelle asserts that the District Court erred when
it: (1) failed to adopt the recommendations made by Donna Hale in
her custody report; (2) misapprehended the effect of certain
proffered evidence; and (3) failed to apply the law as set forth in
§ 40-4-212(3) (a), MCA.
Donna Hale's custody report made the following
recommendations: the parties should share joint legal custody;
Michelle, as the primary residential custodian, should have custody
of Jordin during the school year; and James should have visitation
rights and custody of Jordin during the summer. The District
Court, however, did not adopt the custody report's recommendations.
Instead, it modified custody and designated James as the primary
residential custodian. Michelle asserts that the District Court
abused its discretion when it failed to adopt the custody report's
recommendations.
Section 40-4-215, MCA, authorizes a district court to order an
investigation and report concerning custodial arrangements for a
7
child. 1n Marriage of Mosetnan, we interpreted that statute and held
that a district court is not bound by a court-ordered custody
investigation. InreMnrri~geofMosurnan (1992), 253 Mont. 28, 31, 830
P.2d 1304, 1306. After a review of our prior cases, we determined
that they "require that a specific finding of fact is required
regarding a custody investigation ordered by the court." Marriage of
Mo.~eman, 253 Mont. at 31, 830 P.2d at 1306. An abuse of discretion
will be found if "we are not able to determine if the District
Court even considered the report." Marriage of Mosemnn , 2 5 3 Mont at
31, 830 P.2d at 1306.
In this case, the District Court's findings of fact and
conclusions of law refer to the custody report four times and
recite its recommendations verbatim. Furthermore, when it rejected
the custody report's recommendations and granted the motion to
modify custody, the District Court specifically found that Michelle
was not "forthright with Donna Hale or the Court." The District
Court was not required to adopt the custody report. It was only
required to consider the report when making its custody
determination, and to make the required specific finding of fact.
We conclude that the District Court fulfilled its obligations, and
hold that it did not abuse its discretion when it failed to adopt
Hale's custody report.
Michelle next asserts that the District Court abused its
discretion when it misapprehended the effect of certain proffered
evidence.
8
At the outset of our analysis, we note that 'I [tlhe trial court
is in a better position than this Court to resolve child custody
issues. The district court's decision is presumed correct and will
be upheld unless a clear abuse of discretion is shown." In re Cmto&
~fLA4.D (1993), 259 Mont. 468, 473, 857 P.Zd 708, 712.
At the hearing, both of the parties and a number of witnesses,
including Donna Hale, testified at great length. Virtually all of
the testimony was contested. Michelle attempted to establish that
she is a good parent. She also challenged James' ability to
parent, and defended both her decision to move to Utah and her work
schedule. James, on the other hand, produced evidence establishing
that Michelle's life-style is unstable and impulsive. His
witnesses testified that Michelle is inattentive to Jordin's needs,
is unwilling to place Jordin's interests ahead of her own, and is
often impatient with Jordin. The evidence related to Michelle's
purchase of the tanning salon suggested that her work schedule
would be unpredictable, and could include nights and weekends.
Furthermore, her work hours at the tanning salon could be in
addition to those required by her day job. The District Court made
an independent determination that Michelle had not been forthright
with Donna Hale regarding the tanning salon and her work schedule,
nor with the District Court regarding her reasons for moving to
Utah.
Thus, ultimately, the District Court was faced with
conflicting accounts, and forced to resolve a myriad of factual
9
disputes. Based on all of the evidence and testimony presented at
the hearing, the District Court determined that James' situation is
more stable than Michelle's, and therefore, that James should have
custody of Jordin during the school year. It is well established
that issues of evidentiary weight and witness credibility are
within the province of the trial court, and that "we will not
substitute our judgment for that of the District Court." In Ye
AdoptionofJA4.G. (1987), 226 Mont. 525, 528, 736 P.2d 967, 969. We
have recognized that when the record contains conflicting evidence,
I' [ilt is the function of the District Court to resolve such
conflicts." InreMa~ringeofPenning (19891, 238 Mont. 75, 78, 776 P.2d
1214, 1216.
Based on our review of the record, we conclude that the
District Court's findings are supported by substantial evidence and
were not clearly erroneous. Furthermore, we conclude that when it
made its determination that Jordin's best interest required a
modification of custody, the District Court did not abuse its
discretion.
Finally, Michelle alleges that the District Court failed to
apply § 40-4-212(3) (a), MCA, which states:
(3) The following are rebuttable presumptions and
apply unless contrary to the best interest of the child:
(a) Custody should be granted to the parent who has
provided most of the primary care during ,the child's
life.
10
She contends that the District Court committed a fundamental error
in its conclusions of law when it failed to apply or mention
5 40-4-212(3) (a), MCA.
Contrary to Michelle's assertions, we conclude that the
District Court did, in essence, apply 5 40-4-212(3) (a), MCA.
Despite its failure to specifically mention the statute, the
District Court found that the presumption had, in fact, been
rebutted. Michelle's reliance on the District Court's finding that
both parents are fit to have custody is misplaced. Section
40-4-212(3) (a), MCA, does not require the District Court to find
that one parent is unfit to have custody. Rather, it establishes
a presumption in favor of the preexisting custodial parent, but
& a rebuttable presumption. And as we recognized previously in
this opinion, there was substantial evidence upon which the
District Court based its decision to modify custody. The District
Court found that Jordin's best interest required a modification of
custody and the designation of James as the primary residential
custodian. It necessarily and logically follows that a failure to
modify custody and the retention of Michelle as the primary
residential custodian would not be in Jordin's best interest. We
conclude that the District Court, based on all of the evidence,
determined that the statutory presumption had been adequately
rebutted, and that the District Court's failure to explicitly
mention § 40-4-212(3) (a), MCA, constitutes, at most, harmless
error. See Rule 61, M.R.Civ.P.
11
Our decision today does not render § 40-4-212(3) (a), MCA,
meaningless. District courts should be cognizant of § 40-4-
212(3) (a), MCA, and should take appropriate steps to ensure that it
is, in all applicable cases, adequately considered. We hold only
that, based on substantial evidence in this case, the statutory
presumption was adequately rebutted, and the District Court's
failure to specifically mention § 40-4-21213) (al, MCA, does not
constitute reversible error.
The judgment of the District Court is affirmed.
We concur:
Chief Justice
12
October8, 1996
CERTIFICATE OF SERVICE
I herebycertify tbat,the following certified order was sentby United Statesmail, prepaid,to the
following named:
James Reynolds,Esq.
P.
Reynolds,Mot1 and Sherwood
401 No. Last ChanceGulch
Helena,MT 59601
JohnL. Hollow
Attorney at Law
318 E. sixth Ave.
Helena,MT 59601
COURT
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