In Re the Marriage of Zuelke

NO. 95286
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995

IN RE THE MARRIAGE OF
MARY ANN ZUELKE, now known as
MARY ANN BARBIE-RICE,
Petitioner and Appellant,
and
GORDON STEPHEN ZUELKE,
Respondent and Respondent.

APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Jeffrey Sherlock, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
John Bobinski, Attorney at Law, Helena, Montana

For Respondent:
Dennis G. Loveless, Attorney at Law, Helena, Montana

Submitted on Briefs: November 16, 1995
Decided: December 14, 1995
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.

Mary Ann Barbie-Rice appeals from the April 18, 1995, Order
Implementing Equal Custody of the First Judicial District Court,
Lewis and Clark County. We affirm.
We restate the issues raised on appeal as follows:
1. Did the District Court err in implementing an equal
custody arrangement of the parties' child?
2. Did the District Court abuse its discretion in allowing
a n expert witness to testify and to give his custody
recommendations and in not granting a continuance?
This case arises out of a protracted custody and visitation
dispute between Mary Ann [Zuelke] Barbie-Rice (Mary Ann) and Gordon
Stephen Zuelke (Gordon). One child, Ashley Annamarie Zuelke, was
born to the parties on August 22, 1987. Mary Ann and Gordon's
marriage was dissolved in 1990. In its May 30, 1990, Findings of

Fact, Conclusions of Law and Decree, the District Court placed
Ashley in the joint custody of both parties. The District Court
adopted its "Initial Residential Plan" and noted that additional
contact with Gordon would be phased in over time. Further, the
District Court ordered that a determination of whether equal time
with each party was in Ashley's best interest would be made when
she reached school age.
In May of 1992, a hearing was held and, upon the
recommendation of Dr. Black, a Licensed Clinical Psychologist who
had evaluated Ashley and had been involved since the 1990 Decree,
the District Court phased in additional contact with Gordon. The
District Court ordered that "[iIf either party has concerns with .
. . the implementation of a plan to permit Ashley to spend an equal
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amount of time with both parents, they are to discuss the same with
Dr. Black." Further, the District Court noted that serious tension
and hostility between Mary Ann and Gordon was having an adverse
impact on Ashley.
Thereafter, in November of 1993, Gordon asked Dr. Black to
start a phase-in program for equal time custody. In December of
1994, Dr. Black mailed a written report to the District Court
recommending equal custody with each parent having alternating six-
month periods. A hearing was held on February 28, 1995, and on
April 18, 1995, the District Court ordered that equal time custody
be implemented. Mary Ann appeals from this order.
1. Did the District Court err in implementing an equal
custody arrangement of the parties' child?
In reviewing a district court's child custody determination,
we determine whether the district court's findings are clearly
erroneous. In re 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
upheld unless a clear abuse of discretion is shown. Marriaqe of
Dreesbach, 875 P.2d at 1021; In re Marriage of Hunt (1994), 264
Mont. 159, 164, 870 P.2d 720, 723.
In its May 30, 1990, Findings of Fact, Conclusions of Law and
Decree, the District Court stated that, as time goes by, additional
contact with Gordon should be phased into the custody arrangement.
The court ordered that "the parties shall work with the counselor
to develop a plan to permit Ashley to spend more time with Gordon."
In its finding number 11, the court stated that:
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 It is in the best interest of Ashley that the above plan,
or some form of it, remain in effect until Ashley reaches
school age, and that the parties at that time renegotiate
a plan to permit Ashley to spend an equal amount of time
with her father. When Ashley reaches school age, the
parties shall consult with Dr. Black, or another
qualified professional. The consultation shall have as
its goal the determination of whether equal time with
both parents is in the child's best interests. Equal
time shall be ordered if Dr. Black, or another qualified
professional, feels that equal time is in the child's
best interests.
This 1990 provision contemplated the phase-in which later occurred
in this case. Dr. Black made a recommendation that equal custody
was in Ashley's best interest and the District Court implemented
that recommendation. In its April18, 1995 order, the court stated
that "[iIt is clear that since June 1 of 1990 this Court has
contemplated that the parties would be moving to an equal custody
plan with their minor child."
Mary Ann argues that the District Court order implementing
equal custody was a change in her primary residential custody and,
as such, the prerequisites of § 40-4-219, MCA, had to be satisfied.
Further, Mary Ann asserts that this Court's holding in In re
Marriage of Johnson (1994), 266 Mont. 158, 879 P.2d 689, is
controlling and requires that the jurisdictional requirements set
forth in $j 40-4-219, MCA, be satisfied when the effect of the order
is to substantially change the child's primary residence. The

District Court found that:
This is not a situation where a change in custody was not
contemplated by this Court from the entry of its original
Order in June of 1990. All the parties were put on
notice at that time that we were working toward as equal
custody arrangement. This is not a situation where one
parent is seeking to significantly alter a custody
arrangement. This Court has specifically adopted a
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 custody plan in its decision of June 1, 1990, and that
plan included an eventual move to equal custody.
The fact that equal custody had been contemplated since the
original Decree in 1990 supports the District Court's conclusion
that the Order Implementing Equal Custody was precisely that--
implementation of a previous order--not a modification of custody.
The record reflects that the District Court carefully
considered the best interests of the child, as set forth in § 40-4-
212, MCA, in implementing the equal custody arrangement. The court
noted that "Mary Ann exudes anxiety and that feeling is picked up
by the child" and that the equal custody implementation would
benefit Ashley's mental health development. We conclude that the
District Court's findings are not clearly erroneous and that the
District Court did not abuse its discretion in implementing equal
custody.
In addition, Mary Ann asserts that the District Court erred in
not requiring Gordon to file an affidavit supporting what she
termed his llmodification of custody," pursuant to § 40-4-220, MCA.
However, the District Court determined, and we agree, that § 40-4-
220, MCA, is inapplicable in the instant case. The District
Court's implementation of joint custody was not a modification,
rather, it was the implementation of the 1990 Decree. Thus,
compliance with § 40-4-220, MCA, was not necessary.
2. Did the District Court abuse its discretion in allowing
a n expert witness to testify and to give his custody
recommendations and in not granting a continuance?
Mary Ann argues that the District Court erred in allowing Dr.
Black to testify at the hearing. She alleges that Dr. Black had a
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"built in bias" in recommending equal custody and that this bias
compromised his impartiality in the evaluation. In reviewing a
district court's ruling on the qualifications and competency of an
expert witness to express an opinion we have held that:
[Tlhe determination of the qualification and competency
of expert witnesses rests largely within the trial judge,
and without a showing of abuse of discretion, such
determination will not be disturbed.
Cottrell v. Burlington Northern R. Co. (1993), 261 Mont. 296, 301,
863 P.2d 381, 384 (citing Foreman v. Minnie (1984), 211 Mont. 441,
445, 689 P.2d 1210, 1212). Mary Ann asserted her objection to Dr.
Black's testimony both to Dr. Black during his evaluation, and to
the District Court. However, the court found that Dr. Black's
recommendation of equal custody should be implemented and that
equal custody was in Ashley's best interest. We cannot say that
the discretionary decision to permit Dr. Black to testify was an
abuse of discretion, thus, the District Court's determination will
not be disturbed.
Finally, Mary Ann asserts that she should have been granted a
continuance in order for her to obtain an expert of her own
choosing. In reviewing discretionary trial court rulings we
determine whether the district court abused its discretion. May v.
First Nat'1 Pawn Brokers, Ltd. (Mont. 19951, 890 P.2d 386, 388, 52
St.Rep. 111, 112. The District Court noted that Dr. Black had an
ongoing involvement in the case, and had initially been involved at
Mary Ann's request. The court found that these parties had already
seen numerous counselors. Further, the court noted that it had
previously expressed its concern, in its June 1992 order, that too
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many counselors had been involved in the case. The court stated
that "[clonstantly involving this child with new counselors and in
custody fights is not helping any of these parties." Thus, based
on the District Court's findings, its 1992 order, its admonition of
the parties of the detrimental nature of additional custody

disputes, and Dr. Black's testimony, we cannot say that the
District Court abused its discretion in refusing to grant the
continuance in order to allow Mary Ann to secure the testimony of
an additional expert witness.
Affirmed.

We concur. /

Justices

Justice Terry N. Trieweiler did not participate in this case.
Justice Karla M. Gray, dissenting.

I respectfully dissent from the Court's opinion on the first,
and dispositive, issue in this case. I would reverse and remand
for such further proceedings as may be appropriate.
The threshold issue in this case is whether the District
Court's April 18, 1995, order for an equal time custody arrangement
is a modification of its earlier custody determination or a mere
implementation of an earlier order. If the order at issue is a
modification of a prior custody decree which effects a substantial
change in the child's primary residence, it is clear that the
jurisdictional prerequisites of § 40-4-219, MCA, must be met (In re
Marriage of Johnson (1994), 266 Mont. 158, 166, 879 P.2d 689, 694),
and is undisputed that those requirements were not considered by
the District Court here. If, on the other hand, the order merely
implements a prior custody decree, then the District Court need
consider only the "best interest" test contained in § 40-4-212,
MCA.
The Court concludes that the District Court's April 18, 1995,
order did not modify an earlier custody order, but merely
implemented such an order. It is my view that the Court fails to
read the earlier order carefully, and then to apply the law to that
order. Doing so mandates a reversal of the District Court.
Mary Ann and Gordon's marriage was dissolved by decree dated
May 30, 1990. The District Court made extensive findings of fact
and conclusions of law with regard to distribution of the marital

a
estate, child custody and child support. Only the findings and
conclusion relating to child custody are relevant here.
Mary Ann and Gordon's minor daughter Ashley was just over two
years old at the time of the dissolution. The parties agreed, and
the District Court found, that it was in Ashley's best interest to
be placed in the joint legal custody of her parents, with Mary Ann
designated as the primary residential custodian.
Ashley had been traumatized by the circumstances surrounding
the dissolution of her parents' marriage and counseling was
necessary to help her deal with the situation. Dr. Hugh Black had
been counseling Ashley and presented a two-phase residential plan
for the court's consideration. In Finding of Fact Number 9, the
District Court set out the "Initial Residential Plan." During the
period of the initial plan, Ashley would continue to receive mental
health counseling and Gordon's visitations with Ashley during that
time were severely limited.
The District Court also set out in Finding of Fact Number 9
the "Phase-in of Permanent Residential Plan." Under the permanent

plan, Gordon had visitation on alternating weekends and school
holidays and on two evenings each week; each party was entitled to
spend one-half of the summer vacation with Ashley.
In Finding of Fact Number 11, the District Court stated that,
at the time Ashley reached school age, the parties should consult
with Dr. Black (or another qualified professional); the
consultation "shall have as its goal a determination of whether
equal time with both parents is in the child's best interests."

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The finding went on to state that an equal time custody arrangement
would be ordered if, at that time, a qualified professional felt
that it was in Ashley's best interests.
The District Court's May 30, 1990, decree contained only one
conclusion of law relating to child custody. Conclusion of Law
Number 3 states: "It would be in the best interest of the minor
child if her custody and visitation were regulated as set forth in
Finding of Fact Number 9 above." As outlined above, that finding
ends with a residential plan which, by its terms, is denominated
"permanent." Nothing in the District Court's conclusions refers to
either the t'goall' relating to equal time which is contained in
Finding of Fact Number 11 or the potential referenced there for
redetermining Ashley's best interests at some future time.
Thus, it is clear that the District Court's May 30, 1990,
custody determination ends at the point where the "Permanent
Residential Plan" has been phased in. At that point, Mary Ann
remained Ashley's primary residential custodian, with liberal
visitation by Gordon.
Both statute and case law are clear with regard to modifying
a prior custody decree. By its terms, § 40-4-219, MCA, vests
discretion in a district court to modify a prior custody decree,
but only if statutory requirements are met. A "prior custody
decree" is "a custody determination contained in a judicial decree
or order . . . .'I Section 40-4-219(7), MCA (emphasis added). We
consistently have held that the § 40-4-219, MCA, requirements are
jurisdictional prerequisites to modification of a custody decree.

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See, e.s., Marriaoe of Johnson, 879 P.2d 689, and cases cited
therein.
Nor can it be disputed that a change from Ashley residing
primarily with Mary Ann to an "equal time" custody arrangement
where Ashley would reside with Gordon for six months of the year is
a significant change in a child's living arrangements. Indeed, Dr.
Black testified in this case that the change proposed by Gordon--
and recommended by Dr. Black--was a fairly radical change in the
existing custody arrangement.
As we stated so recently in Marriaae of Johnson, motions to
modify child custody provisions in a dissolution decree "which have
the effect of substantially changing the primary residence" of a
child must satisfy the jurisdictional requirements contained in
§ 40-4-219, MCA. Marriase of Johnson, 879 P.2d at 694. The
legislature's rationale for imposing such requirements was to
provide for the continuity and stability of a child's living
arrangements. Marriase of Johnson, 879 P.2d at 692.
The permanent residential plan adopted as the District Court's
conclusion of law in 1990 is the "custody determination" made by
the court. Whatever the effect of the court's finding relating to
a possible equal time custody arrangement in the future, it cannot
constitute a "custody determination." A custody "determination"
can be made only by a court and only after consideration by the
court of "all relevant factors." Section 40-4-212(l), MCA. Under
§ 40-4-219, MCA, and Marriage of Johnson, the jurisdictional
prerequisites to modifying the 1990 custody decree clearly must be

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met in this case before a modification effectuating equal time
custody can be made. Just as clearly, those prerequisites were not
even considered by the District Court.
The Court follows the District Court's lead in attempting to
distinguish this case from Marriacre of Johnson by relying on the
fact that the District Court "contemplated" a future equal time
custody arrangement back in 1990. It quotes at length from the
District Court's Finding of Fact Number 11 to that effect.
l'Contemplatingl' something which might occur a number of years in
the future cannot be said--even as a matter of logic--to "determine
custody" for that future time. Indeed, such a "contemplation"
cannot constitute a "custody determination" given the language in
§ 40-4-212, MCA. The same is true of any "goaltt or "plan"
contained in Finding of Fact Number 11.
Moreover, even if, at the time of the original decree, the
District Court envisioned being able to make substantial changes in
Ashley's primary residence in the future on the basis of a "best
interest" analysis, the law changed in that regard with our
decision in Marriage of Johnson on August 12, 1994. Like this
Court, the District Court was required to follow current law at the
time of its 1995 decision changing Ashley's physical custody to an
equal time custodial arrangement.
The Court's decision in this case gives district courts carte
blanche to make "custody determinations" in derogation of the
requirements of § 40-4-212, MCA. It also nullifies our effort in
Marriaae of Johnson to give meaning to the legislature's

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requirements for modifying a prior custody decree. District courts

are now authorized to include a variety of future-oriented

provisions in original decrees to preempt the necessity of making

an appropriate decision about modifying custody in the future under

legislatively required, and Marriase of Johnson mandated,

jurisdictional prerequisites. Stability and continuity in a

child's living arrangements will be precluded at the outset by

"findings" which cannot properly be made at that time. I cannot

agree.

I dissent.

Justice James C. Nelson joins in the foregoing dissent of Justice
Karla M. Gray.

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