In Re the Marriage of Ward

                                  No. 8 6 - 1 7 5
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                       1986




IN RE THE MARRIAGE OF
DAVID J. WARD,
                  Petitioner and Appellant,
       and
RUTH ANN WARD,
                  Respondent and Respondent.




APPEAL, FROM:     District Court of the Eighth Judicial District,
                  In and for the County of Cascade,
                  The Honorable Thomas McKittrick, Judge presiding.

COUNSEL OF RECORD:

       For Appellant:
                  Mark Bauer, Great Falls, Montana.

       For Respondent:
                  John I w e n , Great Falls, Montana




                                       Submitted on Briefs: June 24, 1 9 8 6
                                          Decided: October 9, 1986


Filed:GI-: 2   - 1985



                                      Clerk
Mr. Justi-ce John C.             Sheehy delivered the Opinion of the
Court.


        David J. Ward, the father, appeals from a November 8,
1985     order       issued by       the    District    Court of      the Eighth
Judicial        District,        Cascade      County,     granting        a     fixed
visitation schedule.           We affirm.
       The issue raised on appeal is whether the District Court
erred     in    granting       the    father    approximately        75   days     of
visitation a yea.r under the terms of                          40-4-224 (2), MCA
(1985).
       The mother and father were divorced on March 14, 1980.
In     September,        1982,       the    District     Court       amended      the
dissolution decree to provide that the only child, a son, be
placed     in        joint   custody,        giving     the    mother         primary
residential custody.           Throughout this time, until June, 1985,
both parents lived in Great Falls.                    In June, 1985, however,
the mother indicated that she was planning on moving to
Butte.
       Because the parties were unable to work out a mutually
acceptable visitation             schedule, appellant father filed a
motion for fixed visitation with the District Court.                           After
hearing        the    matter      and      reviewing    proposed       visitation
schedules       submitted      by     the    parties,    the    District       Court
entered its order on visitation, dated November 8, 1985.
This order gave the father visitation on every third weekend,
alternating          holidays,      four weeks     during      the    summer      and
freedom to visit the child whenever the father is in Butte,
provided he gives the mother at least 24 hours notice.
      The   appellant   father       filed    a motion   to   amend   this
visitation order, on which the District Court did not act.
This appeal resulted.
      Father contends on appeal that the District Court failed
to follow the language of        $   40-4-224(2), MCA, which states:
      For the purposes of this section, "joint custody"
      means an order awarding custody of the minor child
      to both parents and providing that the physical
      custody and residency of the child shall be
      allotted between the parents in such a way as to
      assure the child frequent and continuing contact
      with both parents. The allotment of time between
      parties shall be as equal as possible; however,
      each case shall be determined according to its own
      practicalities with the best interests of the child
      as the primary consideration.
      The District Court order gave the father about 75 days
of visitation out of a total of approximately 170 available
(non-school) visitation days.           Father's proposed plan would
have awarded him an average of 119 days visitation a year.
He requested alternating weekends and holidays as well as
almost the entirety of his son's summer vacation.              His plan,
the father contends, allots visitation time as equally as
possible.     Father argues that under the recently adopted
language of 5     40-4-224(2), MCA, the District Court must
automatically provide equal amounts of the child's time with
each of his parents.     He also contends that if the District
Court fails to do this, it should specifically set forth its
reasons for deviating from the equal time "mandate."
      The District Court has no duty to make the findings
which the father is demanding.               The statute states:      "The
allotment of time between parties shall be equal as possible;
however, each case shall be determined according to its own
praticalities with the best interests of the child as the
primary consideration."    Section 40-4-224(2), MCA.           To impose
the   father's   interpretation of this statute would be               an
unreasonable burden that would further hamper the already
beleaguered judges of the district courts in custody and
visitation cases.       Further, it must be noted that the statute
requires that the equal time recommendation be balanced by
the practicalities of providing for the best interests of the
child.      The best     interests of the child are a "primary
consideration."
       The standard of review in custody and visitation cases
is as follows:
       This Court will not substitute its judgment for
       that of the trier of fact. We will consider only
       whether substantial credible evidence supports the
       findings and conclusions.    Findings will not be
       overturned unless there is a clear preponderance of
       evidence against them, recognizing that evidence
       may be weak or conflicting, yet still support the
       findings .
Jensen v. Jensen (Mont. 19811, 629 P.2d 765, 768, 38 St.Rep.
927,     930.       Further,   the   appellant   must    overcome   the
presumption     that   the District Court's      order    is correct.
Jensen v. Jensen (Mont. 1979), 597 P.2d 733, 36 St.Rep. 1259.
Finally, a reviewing court is never justified in substituting
its discretion for that of the trial court.
       In determining whether the trial court abused its
       discretion, the question is not whether the
       reviewing court agrees with the trial court, but,
       rather, did the trial court in the exercise of
       discretion act arbitrarily without the employment
       of conscientious judgment or exceed the bounds of
       reason, in view of all the circumstances, ignoring
       recognized principles resulting in substantial
       injustice.
Porter v. Porter (1970), 155 Mont. 451, 457, 473 P.2d 538,


       The instant case is clearly a matter where the trial
court is in the best position to observe the witnesses and
acquire a feel for their credibility and character.                 The
trial court is also best able to appreciate their ability to
cooperate within the requirements set by the visitation order
and to determine a course of visitation that is in the
child's best interest.         The District Court order is neither
arbitrary nor beyond the bounds of reason.            Father charges
that the District Court did nothing more than look at the
parties1 written custody proposals and draw middle ground
between them.     However, the court's order is in keeping with
the court's perception of what is in the best interest of the
child and the statutory requirement that "each case shall be
determined     according   to        its   own   practicalities,"   S
40-4-224   (2), MCA.   A very real practicality was recognizing
that the allotment of time need only be as equal as it is
possible to make it.       Here, the District Court recognized
that it was neither practical, possible, nor in the best
interests of     the   child    to   follow the    father's proposed
visitation schedule.
     Affirmed.
                                                   8. % L
                                                    ,j
                                                  Justice


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