No. 52-261
I N T E SUPREME COURT O THE STATE O MONTANA
H F F
1982
IN XE THE ? U R R I A G E OF
GOLDIE DAIliJ SPEER,
P e t i t i o n e r and Respondent,
-vs-
J O H N ELP'ER SFEER,
Respondent a n d A p p e l l a n t .
Appeal from: District Court of t h e Eighth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f C a s c a d e , The H o n o r a b l e
John M. McCarvel, J u d g e p r e s i d i n g .
C o u n s e l o f Record:
For A p p e l l a n t :
Swanberg, Koby, Swanberg & M a t t e u c c i ; D a n i e l L.
F a l c o n , G r e a t F a l l s , Montana
F o r Respondent:
Thomas A. B a i z , J r . , G r e a t F a l l s , Nontana
Submitted on B r i e f s : S e p t e m b e r 3 0 , 1982
Decided: December 9 , 1982
Filed :
DES: 9 - 1982
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
On April 21, 1982, the District Court of Cascade
County entered an order awarding joint custody of the minor
child of the marriage to the parties and primary physical
custody to the mother. The father appeals the award of
primary physical custody of the child to the mother.
The parties were married on November 19, 1973, and one
child, a son, was born the issue of the marriage. In May
1979, the parties separated and the mother filed a petition
for dissolution. The marriage was dissolveu early in 1980
and temporary custody was awarded the mother, who remarried
almost immediately. The minor son was seven years old at
the time of the April 1982 custody hearing, and he had never
been separated from his mother for longer than two weeks.
Three issues are presented on appeal:
(1) Whether the District Court abused its discretion
in adopting the findings of fact and conclusions of law of
the prevailing party virtually verbatim;
(2) Whether it is in the best interest of the child to
be in the primary physical custody of the mother; and
(3) Whether the District Court erred in considering
tne father's financial contribution in awarding custody and
in setting support payments.
This Court has discouraged District Courts from the
practice of adopting the prevailing party's proposed
findings of fact and conclusions of law virtually verbatim.
Tomaskie v. Tomaskie (1981), Mont. , 625 P.2d 536,
538-539, 38 St.Rep. 416, 419. Such a practice may lead to
error. In Re Marriage of Beck (1981), - Mont. , 631
P.2d 282, 284, 38 St.Rep. 1054, 1058. Once findings and
conclusions are adopted by the District Court, however, the
"clearly erroneous" standard of Rule 52(a) supports them on
appeal. ,
In re Marriage of Jensen (1981), - Mont. - 631
P.2d 700, 763, 38 St.Rep. 1109, 1113.
In order to prevail in the instant case, the father,
John, must demonstrate a clear abuse of discretion. In re
Marriage of Tweeten (1977), 172 Mont. 404, 406, 563 P.2d
1141, 1143, overruled on other grounds, Markegard v.
Markegard (1980), Mon t . , 616 P.2d 323, 325, 37
St.Rep. 1539, 1541. The trial court's decision will not be
disturbed absent a clear preponderance of the evidence
against the decision. Tweeten, supra, 172 Mont. at 407, 563
P.2d at 1143. Gilmore v. Gilmore (1975), 166 Mont. 47, 50,
530 P.2d 480, 482. Appellant has failed to demonstrate such
a clear abuse of discretion.
The father specifically challenges three findings of
fact that support the District Court's conclusion that it is
in the best interest of the minor child to remain in the
primary physical custody of his mother. Appellant father
challenges the District Court's findings that: (I) the
mother would be less likely than the father to interfere
with visitations and that she would be more likely to allow
frequent and continuing contact with the noncustodial
parent; (2) that the stepfather was a good provider and had
rehabilitated himself in spite of a previous criminal
record; and (3) that the father had serious emotional
problems which trigger epileptic-type seizures which become
more pronounced in times of stress. Substantial evidence
supports the District Court's determination.
In awarding custody, the District Court must consider
the guidelines set forth i n s e c t i o n 40-4-212, MCA. This
section states:
"Best i n t e r e s t of child. The c o u r t s h a l l
determine custody i n accordance with t h e
b e s t i n t e r e s t of the child. The c o u r t
shall consider a l l relevant factors
including:
" (1) t h e wishes of t h e c h i l d ' s p a r e n t o r
parents a s t o h i s custody;
" ( 2 ) t h e wishes of the child as to his
custodian;
" ( 3 ) t h e i n t e r a c t i o n and i n t e r r e l a t i o n -
s h i p of t h e c h i l d w i t h h i s p a r e n t o r
p a r e n t s , h i s s i b l i n g s , and any o t h e r
p e r s o n who may s i g n i f i c a n t l y a f f e c t t h e
child's best interest;
" ( 4 ) t h e c h i l d ' s a d j u s t m e n t t o h i s home,
s c h o o l , a n d community; a n d
" ( 5 ) t h e m e n t a l and p h y s i c a l health of
a l l individuals involved."
I n r e M a r r i a g e o f T w e e t e n , s u p r a , 1 7 2 Mont. a t 4 0 7 , 563 P.2d
The C o u r t need n o t make s p e c i f i c f i n d i n g s o n e a c h o f
the elements. B u r l e i g h v. B u r l e i g h ( 1 9 8 2 ) , Mont. ,
650 P.2d 7 5 3 , 7 5 6 , 39 S t . R e p . 1538, 1541. The r e c o r d shows
t h a t t h e D i s t r i c t Court heard s u f f i c i e n t t e s t i m o n y on each
of t h e s e f a c t o r s t o s u p p o r t t h e adopted f i n d i n g s of fact.
Both p a r e n t s e x p r e s s e d a d e s i r e f o r c u s t o d y o f t h e i r s o n , s o
t h i s f a c t o r is n o t of c o n t r o l l i n g importance i n t h i s custody
decision. Nor d o e s t h e s e c o n d f a c t o r c o n t r o l . The m i n o r
child, t h r o u g h h i s g u a r d i a n ad l i t e m , communicated t h a t h e
was u n a b l e t o e x p r e s s a n o p i n i o n e i t h e r way on w h i c h p a r e n t
s n o u l d h a v e c u s t o d y o f him. The c h i l d ' s p r i m a r y c o n c e r n was
t h a t o n c e c u s t o d y was d e t e r m i n e d , h e w a n t e d a s much v i s i t a -
t i o n a s possible with t h e noncustodial parent.
A f a c t o r which t h e D i s t r i c t C o u r t m u s t a l s o c o n s i d e r
in awarding joint custody is which parent is likely to allow
the child frequent and continuing contact with the noncus-
todial parent. Section 40-4-223(1), MCA. The District
Court heard conflicting testimony on past problems with
child visitation and on each of the parties' willingness to
allow frequent and continuing contact with the other parent.
This Court may not substitute its judgment for the judgment
of the lower court where substantial evidence supports its
determination. We must review the evidence here in the
light most favorable to the mother. The credibility of
witnesses and the weight accorded their testimony is for the
District Court's determination. Farmers St. Bank v. Mobile
Homes Unlimited (1979), 181 Mont. 342, 349, 593 P.2d 734,
738. Here, even though conflicting testimony was presented,
substantial evidence supports the District Court's finding
that the mother would more likely allow frequent and
continuing contact.
Father next challenges the lower court's determination
that the stepfather was a good provider and had rehabili-
tated himself in spite of a previous criminal record.
With the exception of father's employment for two
months as a janitor in Shelby, Montana, neither party worked
outside of the home during the course of the marriage. The
fdmily's income consisted of father's Social Security
benefits and welfare payments. Father was not required to
pdy temporary child support or to pay the minor child's
medical bills during this action's pendency. He did pay $10
per month in child support for each of the six months
preceding the custody hearing. At the time of trial, father
was estimating a future income of $650 per month consisting
of hls Yocldl Security benefits dnd earnings from a cleaning
business to be operated by father and father's mother.
By contrast, mother married stepfather shortly after
the decree of dissolution was entered. From the date of the
marriage until two weeks before the trial date, stepfather
was employed at Liberty Manufacturing in Chester, Montana.
He provided all of minor child's support and also paid all
of the child's medical expenses during that period. The
Distrlct Court's finding that stepfather was a good provider
1s supported by substantial evidence.
Its finding that stepfather had rehabilitated himself
In spite of a previous criminal record is also supported by
substantial evidence. Stepfather has a past criminal record
consisting of a few misdemeanor theft charges and one felony
bad check charge. Since the summer of 1979, however, step-
father has no criminal record.
The District Court considered stepfather's interaction
with the minor child, pursuant to section 40-4-212(3), MCA,
and found that there is a "close and loving relationship"
between stepfather and that, in fact, the child refers to
stepfather as "Dad." Ninor child also has a close relation-
ship with his sixteen-month-old half-brother. Evidence was
introauced showing that the child has friends in Chester,
the domicile of mother and stepfather, and that he is doing
well in school.
Father finally challenges the District Court's finding
that he had serious emotional problems which trigger
epileptic-type seizures and that, in times of stress, the
seizures become more pronounced. He argues that the
epileptic-type seizures do not preclude adequate parenting
of t n e minor cnlld. He also contellus that with the new
medication he is now taking, severe seizures are a past
n e a l t h condition.
The r e c o r d d o e s s u p p o r t f a t h e r ' s contention t h a t the
s e i z u r e s would n o t p r e v e n t a d e q u a t e p a r e n t i n g . Mother, t h e
horne attendant for t h e Pondera County W e l f a r e Department,
and a neighbor all testified that the s e i z u r e s would not
p r e v e n t f a t h e r from r a i s i n g t h e c h i l d . While f a t h e r c a n n o t
drive because of the seizures, father's mother provides
n e c e s s a r y t r a n s p o r t a t i o n f o r f a t h e r and p i c k s u p t h e minor
c h i l d i n C h e s t e r f o r h i s v i s i t s t o f a t h e r ' s home i n V a l i e r .
Father testified under cross-examination t h a t h e had
been admitted to t h e p s y c h i a t r i c ward of the Great F a l l s
D e a c o n e s s H o s p i t a l s e v e r a l t i m e s by h i s d o c t o r s b e c a u s e t h e y
t h o u g h t h i s s e i z u r e s w e r e b r o u g h t on by e m o t i o n . He then
t e s t i f i e d t h a t h e had "doctored" with psychologists a t t h e
mental h e a l t h c l i n i c . On r e d i r e c t , he explained t h a t t h i s
was p r i o r t o t h e u s e of new m e d i c a t i o n s . No o t h e r e v i d e n c e
was p r e s e n t e d by f a t h e r t o s u p p o r t h i s c l a i m t h a t h e d i d n o t
suffer from e m o t i o n a l p r o b l e m s and t h a t t h e s e i z u r e s were
now u n d e r control. Again, t h i s Court w i l l not substitute
its judgment for that of the trial court, which had the
opportunity to view and observe the demeanor of the
witnesses.
Father has failed to demonstrate a clear abuse of
discretion by the D i s t r i c t Court's order awarding primary
p h y s i c a l custody t o mother. Corbett v. Corbett (1981), -
Mont . , 6 3 5 P.2d 1 3 1 9 , 1 3 2 2 , 38 S t . R e p . 1852, 1856. The
r e c o r d shows t h e d e s i r e o f b o t h p a r e n t s t o h a v e c u s t o d y a n d
t h e d e s i r e o f t h e minor c h i l d t o m a i n t a i n c o n t a c t w i t h b o t h
h i s f a t h e r and m o t h e r . The minor c h i l d i n t e r a c t s w e l l w i t h
stepfather, h i s half-brother, and h i s f r i e n d s i n m o t h e r ' s
community, and h e h a s a d j u s t e d w e l l t o s c h o o l . Minor c h i l d
has never been s e p a r a t e d from mother for longer t h a n two
weeks. Substantial evidence supports the lower court's
determination t h a t primary physical custody should remain
with t h e mother.
Father l a s t argues t h a t t h e D i s t r i c t Court e r r e d in
considering h i s p a s t financial contributions i n determining
custody. Nothing i n t h e D i s t r i c t C o u r t ' s f i n d i n g s , conclu-
s i o n s and o r d e r i n d i c a t e s t h a t t h i s was t h e c a s e . The c o u r t
d i d examine t h e p a s t s u p p o r t and income o f father and o f
s t e p f a t h e r a s w e l l a s f a t h e r ' s p r o j e c t e d income. It appears
from the record that these findings bear on two
determinations. One, that stepfather has been a good
provider for the minor child. Two, that father is now
c a p a b l e of p a y i n g t h e c h i l d s u p p o r t o r d e r e d by t h e D i s t r i c t
Court. Father has again failed to show an abuse of
discretion.
A£ f i r m e d .
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