NO. 83-216
IN THE SUPREME COURT OF THE STATE OF MONTANA
1983
IN RE THE MARRIAGE OF
CYNTHIA LOUISE OVERTON,
Petitioner and Appellant,
-vs-
RICHARD ORVILLE OVERTON,
Respondent and Respondent.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
LaRue Smith, Great Falls, Montana
For Respondent :
Barry T. Olson, Great Falls, Montana
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Submitted on Brief: September 15, 1983
Decided: December '22, 1983
Filed:
DEC 2 2 1983
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Clerk
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Mr. Justice John Conway Harrison delivered the Opinion of
the Court.
This is an appeal by the wife, from an order of the
District Court of the Eighth Judicial District, Cascade
County, providing for the daughter's surname be changed to
the husband's surname, his name be placed on a birth
certificate and specifically settling visitation rights for
husband.
Cynthia Louise (Miller)(Overton) and Richard Orville
Overton were married on June 13, 1979. The court entered a
decree of dissolution of their marriage, March 6, 1980.
Wife was pregnant at the time of the dissolution, as a
result of that marriage. She gave birth to a baby girl July
2, 1980, in Great Falls, Montana. At the time of the birth,
she named the child Chantelle Winifred Miller. She had two
other illegitimate children with surnames Miller and desired
all of her children to have the same surname so as to
prevent confusion and embarrassment.
In July of 1982, respondent tried to obtain a birth
certificate of his daughter, Chantelle, so as to enroll her
in the Indian tribal rolls. The Cascade County Clerk and
Recorder's Office informed him that the birth certificate
did not name a father and further stated the child's name to
be Chantelle Winifred Miller. Respondent then brought this
action to have his daughter's surname changed to be the same
as his, and to clarify his visitation rights. Following the
submission of briefs and a hearing, the court ordered the
child's surname changed to Overton; that respondent's name
be placed as the father on the birth certificate; and that
he be granted visitation rights with his daughter one
weekend a month, on alternate holidays and six weeks during
the summer.
Appellant raises four issues on appeal: (1) Did the
court err in its findings of fact regarding the visitation
rights of the husband; (2) did the court err in not
conducting a welfare investigation before granting husband
visitation rights; (3) did the order to change the surname
of the daughter violate Section 40-5-103, MCA, and Article
11, Section 4 of the Montana Constitution; and (4) was there
sufficient evidence to prove it was in the best interest and
welfare of the child to have her surname changed?
This Court will not overturn findings of fact unless
they are clearly erroneous. Rule 52(a), M.R.Civ.P.
"We will not substitute our judgment for
that of the trier of fact, but rather
will only consider whether substantial
credible evidence supports the findings
and conclusions. These findings will not
be overturned by this Court unless there
is a clear preponderance of the evidence
against them. We will view the evidence
in a light most favorable to the
prevailing party, recognizing that
substantial evidence may be weak or
conflicting with other evidence, yet
still support the findings. Nicolai v.
Nicolai (Mont. 1981), 631 P.2d 300, 303,
38 St.Rep. 1100, 1103. Cameron v.
Cameron (1978), 179 Mont. 219, 587 P.2d
939. "
Appellant contests the court's findings on the issue
of visitation rights. A review of the evidence shows
sufficient evidence to support the findings. We do not find
the District Court clearly erroneous in its findings on the
issue of visitation.
Appellant contends the trial court erred when it first
stated it would request a welfare investigation on
respondent before granting visitation rights and then
proceed to make the order for visitation without said
investigation. The District Court may require
investigation, interviews and gather this information as
it deems necessary. Such review is w i t h i n the District
Court's discretion for t h e determination of visitation
rights. Section 40-4-217, MCA presumes the noncustodial
p a r e n t is e n t i t l e d t o reasonable v i s i t a t i o n r i g h t s s o long
as i t i s i n t h e b e s t i n t e r e s t o f t h e c h i l d . "To a s s u r e t h a t
this s t a n d a r d is complied w i t h , it is e s s e n t i a l that the
trial court examine all pertinent and relevant factors
presented a t trial.'' J o n e s v. J o n e s ( M o n t . 1 9 8 0 ) , 620 P.2d
850, 37 S t . R e p . 1973. The c o u r t c o n s i d e r e d t h e e v i d e n c e a t
trial a n d made sufficient findings and conclusions to
support its order. T h e r e f o r e t h e t r i a l c o u r t d i d n o t e r r by
not conducting a f u r t h e r investigation.
Appellant next contends the court violated Section
40-6-103, MCA, and Article 11, Section 4 of the Montana
C o n s t i t u t i o n , by changing t h e c h i l d ' s surname. W e disagree.
I n Firman v. F i r m a n (Mont. 1 9 8 1 ) , 610 P.2d 1 7 8 , 37 S t . R e p .
888, t h i s Court c o r r e c t l y found t h a t o t h e r t h a n t h e s t a t u t e s
f o r name c h a n g e s , S e c t i o n 27-31-101 e t seq., " t h e r e is no
other s t a t u t e i n point.. .. " Firman, s u p r a , involved a
d i s p u t e between a husband and w i f e o v e r t h e surname t o be
used by t h e c h i l d r e n . The w i f e d e s i r e d t h e c h i l d r e n t o u s e
the name o f her new h u s b a n d . This Court in its ruling
determined the children should use the natural father's
surname, based upon the "best interest of the child."
Firman, s u p r a (Mont. 1 9 8 1 ) , 610 P.2d 178, 181, 37 S t . R e p .
888, 891.
The D i s t r i c t C o u r t ' s findings and conclusions state
nothing t o t h e e f f e c t t h a t husband has any p r e f e r e n c e or
natural r i g h t t o have h i s d a u g h t e r b e a r h i s surname. The
c h i l d ' s b e s t i n t e r e s t does not involve t h e e q u a l i t y of sexes
i n t h i s case. The f i n d i n g s and c o n c l u s i o n s s t r e s s t h e b e s t
interest of the child. Therefore we find appellant's
argument w i t h o u t m e r i t .
F i n a l l y we turn t o the issue of: does t h e evidence
s u p p o r t t h e f i n d i n g s and c o n c l u s i o n s o f t h e D i s t r i c t C o u r t
r e g a r d i n g t h e c h a n g e o f name and w h e t h e r i t was i n t h e b e s t
i n t e r e s t of t h e c h i l d ? A p p e l l a n t r a i s e s many o b j e c t i o n s t o
t h e f i n d i n g s and c o n c l u s i o n s r e g a r d i n g t h e c h a n g e o f name.
I n r e v i e w i n g t h e t r a n s c r i p t , we f i n d n o t h i n g i n t h e f i n d i n g s
and c o n c l u s i o n s c l e a r l y e r r o n e o u s and there is s u f f i c i e n t
evidence to support these findings. It s h o u l d be n o t e d ,
that the trial c o u r t may have made a clerical error in
f i n d i n g t h e c h i l d was o f twenty-five p e r c e n t Indian blood.
But this can be corrected by a Rule 60(a) motion for
c o r r e c t i o n of c l e r i c a l m i s t a k e s .
Having found the District Court was not clearly
e r r o n e o u s i n i t s f i n d i n g s and c o n c l u s i o n s , w e h e r e b y a f f i r m .
W e concur:
I
iL l
Chief J u s t i c e