In Re Marriage of Abrahamson

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

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 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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