No. 13670
I N T E SUPREME COURT O THE STATE O MONTANA
H F F
1977
Re
INITHE
MARRIAGE OF
KANDIS TWEETEN,
P e t i t i o n e r and A p p e l l a n t ,
H N Y TWEETEN,
E R
Respondent and Respondent.
Appeal from: D i s t r i c t Court o f t h e Twelfth J u d i c i a l
District,
Honorable B. W. Thomas, J u d g e p r e s i d i n g .
Counsel o f Record:
For A p p e l l a n t :
S m i t h , Emmons, B a i l l i e and Walsh, G r e a t F a l l s , Montana
R o b e r t J. Emrnons a r g u e d , G r e a t F a l l s , Montana
For Respondent :
Hauge, Ober, S p a n g e l o and Thompson, Havre, Montana
Morton B. G o l d s t e i n a r g u e d , Havre, Montana
Submitted: M$&k 2 , 1977
Mr. Justice John Conway Harrison delivered the Opinion of
the Court.
Petitioner Kandis Tweeten brought an action in the district
court, Hill County, seeking (1) the dissolution of her marriage
to Henry Tweeten, ( ) a property settlement, and ( ) custody of
2 3
the parties' 3 year old child, Kevin. In its order of December
7, 1976, the district court dissolved the marriage, ordered a
property settlement and found that both parties were fit and
proper persons to have custody of Kevin. The court awarded
custody of the child to Henry:
"Because of the close and warm relationship of Kevin
with his father and the greater maturity and stability
which the father possesses and can offer as a parent,
the Court finds that it is in the best interest of Kevin
that he be placed in the general care, custody and control
of his father * * *.I1
Kandis appeals from the decree only insofar as it awards
custody of Kevin to Henry.
Kandis and Henry Tweeten were married in Havre, Montana,
August 19, 1972. Kevin was born October 25, 1973 and is the sole
issue of the marriage. Kandis and Henry separated the first week
of June 1976, and from that date until trial on November 18,
Kevin resided with his mother. During this period however,
Kevin spent at least two days per week in the company of his
father.
Eighteen witnesses were called at the two day nonjury trial.
Testimony was heard from a welfare worker employed by the Hill
County Welfare Department who conducted a child custody investi-
gation. The result of this investigation was a recommendation
that the father be awarded custody of Kevin. Testimony was also
heard from Dr. Betsy Rushworth,a clinical phychologist. Dr.
Rushworth conducted a mental health evaluation of Kevin and
his parents. The result of this evaluation was inconclusive
indicating that Henry and Kevin had a warm and loving relation-
ship, but Henry tended to be overpermissive with Kevin. On
the other hand, the evaluation indicated that Kandis exhibited
some deficiencies in her dealings with Kevin, but was making a
concerted effort to improve. The testimony of Kandis and Henry
along with members of their immediate families and close friends
was considered by the district court in its decision.
On December 8, the district court granted a stay of execu-
tion as to custody extending the temporary custody of Kevin in
his mother, with visitation rights to Henry pending this appeal.
The sole issue upon appeal is whether the district court
erred in awarding the custody of Kevin to Henry rather than his
mother, Kandis.
This Court has long followed the rule that unless there is
a clear abuse of discretion by the trial court, a decision on custody
will not be overruled on appeal. Love v. Love, 166 Mont. 303, 533
P.2d 280; Gilmore v. Gilmore, 166 Mont. 47, 530 P.2d 480; Ander-
son v. Anderson, 145 Mont. 244, 400 P.2d 632. This Court is
committed to the view that the welfare of the child is the para-
mount consideration in awarding custody and that it must of
necessity be left largely to the discretion of the trial judge.
He hears the testimony, sees the witnesses demeanor, and thus
has a superior advantage in determining the difficult problems.
Brooks v. Brooks, Mont . , 556 P.2d 901, 33 St.Rep.
1114. Unless there is a clear preponderance of the evidence
against the trial court's decision it will not be disturbed.
Gilmore v. Gilmore, supra.
The relevant statutory guidelines dealing with child
custody matters appear in section 48-332, R.C.M. 1947, of
the recently adopted Uniform Marriage and Divorce Act. This
section states:
"Best interest of child. The court shall determine
custody in accordance with the best interest of the
child. The court shall consider all relevant factors
including:
"1
() the wishes of the child's parent or parents
as to his custody;
"2
() the wishes of the child as to his custodian;
" (3)the interaction and interrelationship of the
child with his parent or parents, his siblings,and any
other person who may significantly affect the child's best
interest;
"4
( ) the child's adjustment to his home, school, and
community; and
"5
() the mental and physical health of all indivi-
duals involved.I1
Kandis asserts the district court erred in awarding the
custody of Kevin to Henry. After careful consideration of the
factors listed in section 48-332, the district court found and
we agree, that the evidence indicated the awarding of Kevin's
custody to his father was in the child's best interest.
This Court feels the first two of the stated factors are
not of controlling importance in this custody decision. Both
parents testified as to their desire to have custody of Kevin.
It is obvious where both parents desire custody of the child
this factor loses its relevance as the desires of the parents
are balanced against each other, In this regard it is important
to remember the best interest of the parent, or detriment to the
parent, is not the test. Veazey v. Veazey, Alaska 1977, 560 P.
2d 382. Too, Kevin was approximately 3 years, 1 month old at
the time of the trial. See: Hild v. Hild, 221Md. 349, 157 A.2d
442. We find no error in the district court's failure.to inter-
view Kevin as to his preference.
- 4 -
A s t o the t h i r d f a c t o r , i n t e r a c t i o n of the c h i l d t o h i s
p a r e n t s , t h e evidence i s c l e a r Kevin has a f a r b e t t e r r e l a t i o n -
ship with h i s f a t h e r than h i s mother. Henry and Kevin have an
e x c e l l e n t r e l a t i o n s h i p a s t e s t i f i e d t o by t h e welfare worker
who recommended t h a t custody be awarded t o Henry, and D r . Rushworth,
the examining c l i n i c a l psychologist. This Court and other
courts have previously held t h a t independent evaluations by
s o c i a l o r welfare departments a r e important f a c t o r s t o be con-
sidered i n c h i l d custody decisions. Simon v. Simon, 154 Mont.
193, 461 P.2d 851. Furthermore, there was considerable testimony
from t h e p a r t i e s ' families and f r i e n d s a s t o Henry's love and
a f f e c t i o n , and concern f o r h i s son Kevin.
A a n a l y s i s of the fourth f a c t o r , adjustment t o home,
n
school, and community, again reinforces t h e d i s t r i c t c o u r t ' s
decision. The record i s c l e a r t h a t Henry has been the dominant
force i n providing f o r the education and r e l i g i o u s t r a i n i n g of
Kevin. Henry spends a g r e a t deal of time out i n t h e community
with Kevin and the record r e f l e c t s t h a t these e f f o r t s have
r e s u l t e d i n Kevin making a good adjustment t o h i s community and
environment i n s p i t e of the unsettled s t a t e of h i s short l i f e .
W take t h i s opportunity t o c l a r i f y one point i n t h i s
e
Court's recent decision i n G i l b e r t v. G i l b e r t , 166 Mont. 312,
316, 533 P.2d 1079. I n G i l b e r t , the f a t h e r petitoned the d i s -
t r i c t court f o r a change of custody from t h e mother. The t r i a l
c a u r t denied the f a t h e r ' s p e t i t i o n because he found no material
change of circumstances warranting a modification of t h e decree.
The record before t h i s Court showed t h a t a f t e r one year under
the o r i g i n a l custody agreement the c h i l d became emotionally ill.
Both parties recognized that fact and because the father lived
in a university town where consultation with professional help
was available and where the child could attend a child develop-
ment center, he took custody of the child. Some months later
the mother tried to get her child back and the father refused.
In view of the facts, this Court found that there had been a
change of circumstances and it was in the child's best interest
to remain with the father, the Court noted:
"Physical custody of this child in its present
environment is a fact and has been for a long period
of time, when viewed in the light of the formative
years of a four year old child at the time she came into
the present environment after an unsuccessful one year
from age three to four years in the first agreed custody
arrangement.I I
While the time period a child spends with a parent pending an
appeal of a custody case is a factor to be considered by a
trial court, it should not be so controlling as to negate a
parent's right of appeal.
Here, the record reveals Kevin becomes withdrawn when in
the company of his mother, but on the other hand is happy and
outgoing with his father. While there is no indication of mental
or physical illness on Kevin's part, the court found the best
interests of Kevin dictate that Henry be awarded custody.
Kandis argues that, even though section 91-4515, R C M
...
1947, was superseded by the Uniform Marriage and Divorce Act
and the statutory "tender yearst1presumption found therein no
longer exists, the universal rule is that this presumption is
still conclusive in custody matters. Kandis would have us believe
the district court erred in not indulging the presumption that
a mother is better fit to have custody of a child of tender
years. We agree such a presumption exists, but do not find it to
be conclusive. In this jurisdiction each child custody case
will be decided on its own facts rather than by the use of
"controlling or conclusive" presumption. This rule is well
established in other jurisdictions which have adopted the
Uniform Marriage and Divorce Act. See: Johnson v. Johnson,
Mo.App. 1975, 526 S.W.2d 33; Re-G.-T. v. Y.-G.-T., Mo.App.1976,
543 S.W.2d 330; Eviston v. Eviston, Ky.App. 1974, 507 S.W.2d
153.
We affirm the district court decree in its entirety.
We Concur:
Chief Justice