Schuman v. Bestrom

No. 84-156
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984

JOHN CHARLES SCHU11AN,

Petitioner and Appellant,
-vs--

LORRIE DIAN BESTROM,

Respondent and Respondent,
and
J.L.B., Minor Child.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Diane G. Barz, Judge presiding.

COUNSEL OF RECORD:

For Appellant:
Harris, Morin & Collins; Robert P. Morin argued,
Billings, Montana
For Respondent :
James J. Sinclair argued, Billings, Montana
Guardian Ad Litem:
Ted Lechner, Billings, Montana

Submitted: October 31, 1984
~ ~ ~ i d ~ d : 3, 1985
January

Filed: JAM 3 - 1985

Clerk
M.r. Justice John C. Sheehy delivered the Opinion of the
Court.

John Charles Schuman appeals from that portion of a
paternity action judgment of the District Court, Thirteenth
Judicial District, Yellowstone County, granting sole custody
of his son, JLB, to the child's mother, Lorrie Dian Bestrom,
and from the visitation schedule of father to child,
established by the District Court.
John (father) filed his complaint in District Court,
seeking to establish his paternity of JLB, requesting joint
custody, liberal visitation, and provisions of child support.
T,orrie (mother) filed an answer and crossclaim seeking to
terminate the father's rights to JLR.
The District Court appointed Ted Lechner as quardian ad
litem of JLE.
The District Court determined that the sole custody of
the child should go to the mother, with scheduled visitation
rights awarded to the father; that the father should pay the
sum of $150 per month to the mother as support for the child;
the father should make a further payment of $461.98 to the
mother as reimbursement for costs attendant to the birth of
the child; and that the father should maintain an accident
and health policy extended to cover the child.
The father appeals from that portjon of the judgment
relating to the sol-e custody granted to the mother and the
visitation rights qiven to him. On consideration, we have
concluded to affirm the District Court.
Issues raised by the father are these:
1) The District Court erred in awarding sole custody of
the minor child to the mother;
 2) The District Court erred in denying the natural
father reasonable visitation privileges with the minor child;
and,
3) The District Court's determination of child custody
and visitation denied the father equal protection of the
laws.
John and Lorrie began dating i n June of 1980.
. A son,
JLR was born to them on August 18, 1982. Both parties agree
that John is the child's natural father. Althou-gh they never
married, John and Lorrie maintained a relationship until
March 1983. During that time, John and J L B developed a close
father-son relationship. John's family also developed a
close relationship with the baby. John paid no child
support, but did purchase both maternity and baby items for
Lorrie and the baby.
After the split of the couple, the father had the right
to visit the child on an agreed schedule. In approximately
three months, however, the a-greed schedule was not adhered to
because of the mother's dissatisfaction with the arrangement.
She remarried in October 1983, after the filing of the
paternity action by the father. From October until the time
of the action the mother has resided in Zortman, 165 miles
from Billings, where the father and mother had been together.
I
The father argues that the grant of sole custody to the
mother was incorrect because the District Court treated him
differently as an unwed father from how he would have been
treated had he been married to the mother; that the district
judge used only Ch. 6, Title 40, MCA, the Uniform Parentage
Act, in determining custody, rather than relying on the test
for joint custody set forth in Ch. 4, Title 4 0 , MCA. The
father f u r t h e r argues t h e d i s t r i c t iudge f a i l e d t o address

the factors relating to the best i n t e r e s t s of the child,

found i n 5 40-4-212, MCA. H e a l s o argues t h a t t h e d i s t r i c t

judge e r r e d i n f a i l i n g t o s e t f o r t h r e a s o n s f o r denying t h e

-joint custody a s r e q u i r e d i n SS 40-4-222 through 2 2 4 , MCA.

The m o t h e r r e s p o n d s t h a t t h e d i s t r i c t j u d g e d i d n o t e r r

i-n g r a n t i n g h e r sole custody, that the evidence does n o t

s u p p o r t a n award o f i o i n t c u s t o d y b e c a u s e t h e p a r e n t s d o n o t

cooperate w e l l with each o t h e r , and t h e d i s t a n c e t h e y l i v e

apart and their divergent religious views should be

considered.

I n Montana, t h e s t a t u t o r y p r o c e d u r e f o r d e t e r m i n i n g t h e

paternity of a. c h i l d b o r n out of wedlock i s found i n t h e
Uniform P a r e n t a g e A c t , 5 s 40-6-101 t h r o u g h 1 3 5 , MCA. Under S

40-6-107, MCA, a n y i n t e r e s t e d p a r t y may b r i n g a n a c t i o n f o r

t h e purpose of determining t h e e x i s t e n c e o r nonexistence of

t h e f a . t h e r and c h i l d r e l a t i o n s h i p . Such a n a c t i o n i s a c i v i l

a c t i o n , 5 40-6-115, MCA, and t h e power o f t h e D i s t r i c t C o u r t

to enter a judgment o r o r d e r i s found. i n 40-6-116, blCA.

That s e c t i o n i n c l u d e s t h e followi.ng p r o v i s i o n :

" ( 3 ) The judgment o r o r d e r may c o n t a i n any o t h e r
provision directed against the appropriate party t o
t h e p r o c e e d i n g c o n c e r n i n g t h e d u t y o f s u p p o r t , the
c u s t o d y and g u a r d i a n s h i p o f t h e c h i l d , ~ r i s i t a t i o n
w r i v i l e g e s w i t h t h e c h i l d , t h e f u r n i s h i n g o f bond
o r o t h e r s e c u r i t y f o r t h e payment o f t h e judqment,
- 9 o t h e r m a t t e r - - e - b e s t i n t e r e s t - -e
or i n tfi - of t h
child. The iudament o r o r d e r mav d i r e c t t h e f a t h e r
J .
,
t o pay t h e r e a s o n a b l e expenses of t h e m o t h e r ' s
p r e g n a n c y and c o n f i n e m e n t . " (Emphasis a d d e d . )

I n another portion of t h e code, it i s provided i n our

s t a t u t e s t h a t i n custody d i s p u t e s i n v o l v i n g both p a r e n t s of a

minor c h i l d . , c u s t o d y s h a l l b e awarded " a c c o r d i n g t o t h e b e s t

i n t e r e s t s of t h e c h i l d " t o both p a r e n t s j o i n t l y o r t o e i t h e r

parent. Section 40-4-223, MCA. If an award i s made t o
either parent, the statute requires the court to consider the
factors set out in S 40-4-212, MCA. Included in those
factors set out in the latter statute are the wishes of the
child's parents as to custody, the wishes of the child, the
interaction and the relationship of the child with the parent
and. other persons affecting his best interest, the child's
adjustment to his home, school and communit:7 and the mental
an2 physical health of a13 individuals involved. We have
held that when a court is considering the factors under S
40-4-212, MCA, it should set forth the bases upon which the
court determines custody. Cameron v. Cameron (Mont. 1983) ,
641. P.2d 1057, 1-060, 39 St. Rep. 485, 488; Milanovich v.
Milanovich (Mont. 1982), 655 P.2d 959, 39 St.Rep. 1554.
When several statutes may applies to a given situation,
such a construction, if possible, is to be adopted as will
give effect to all. Section 1-2-101, MCA.
The same rules that apply to harmonizing real or
apparent conflicts within the internal language of a statute
should also apply to real or apparent conflicts between
different portions of the code touching the same subject. It

is good statutory construction law that where one part of the
law deals with a subject in general and comprehensive terms,
while another part of it deals in a more minute and definite
way, the two parts should be read together and, if possible,
harmonized, with a view to giving effect to a consistent
legisl-ative pclicy. City of Butte v. Industrial Accident
Eoard (1916), 52 Mont. 75, 156 P. 130; Stadler v. City of
Helena (1912), 46 Mont. 128, 1-27P. 4 5 4 .
The specific power given to the District Court to
determine custody of a child in a paternity case is found in
5 40-6-116(3), supra. The specific power of a court to
consider joint custody of a minor child in disputed custody
cases is found in 40-4-224, MCA. Tn either case, the
statute determines that custody shall be decided in the "best
interests of" the child. We see no conflict in the bases for
such decisions, since both are bottomed on the best interest
of the child, and find no reason to fault the District Court
for determining custody in this case under the paternity
provisions, since this is a paternity case.
Moreover, the District Court gave sufficient reasons for
its determination to award sole custody to the mother. The
District Court adopted the testimony of Ted Lechner, zn
acknowledged expert in the field. The court found that his
testimony indicated that a "bonding of the mother and the
child was most important for the child at this time," more
important the court found than a bonding between the father.
Neither the statutes nor our case law have developed the
specific rights and responsibilities of parents who share a
joint custody arrangement over a minor child and this case
does not require us to make such determinations; nonetheless,
it seems clear that joint custody will not be satisfactory
unless it exists between parents willing to cooperate with
each other in custody matters. Lembach v. Cox (Utah 1981),
639 P.2d 197, 200. Where the parties do not agree on joint
custody, or the District Court determines that joint custody
is not suitable, then the best interests of the child
require, and the statutes provide, that the custodial parent
determines the child's upbringing, his edccation, health,
care and religious training, unless specifically limited by
the District Court. Section 40-4-218, MCA.
The father has failed to demonstrate to us that the
District Court, by applying the Uniform Parentage Act
provisions to its determination of custody, insteac! cjf the
provisions applicable to an ordinary marital dissolution case
has not acted in the best interests of the child. We

therefore find no merit in the issue regarding sole custody.
I1

For much the same reasons, the father contends that the
District Court's determination of his visitation rights with
the child are prejudiced against him because the court
applied its power under paternity cases, rather than under
provisions relating to visitation disputes in marital
dissolution or other child custody cases.
Under this issue, the father maintains that the District
Court should have utilized fj 40-4-21.7, MCA, instead of S
40-6-116, MCA; that the schedule of visitation permitted to
the father was not "reasonable" as required under § 40-4-217;
that the schedule prevents the father from having visits with
his child on important holidays throughout the year and on
weekends and that the District Court did not explain its
reasons for so "restricting" his visitation rights.
Although the court clearly determined visitation under §

40-6-116, relating to paternity actions, we see no detriment
to the father in the District Court determiring such
visitation under the test of the best interests of the child,
the same test for determining the best interests of the child
under S 40-4-212, MCA.
The father claims he was deprived of visitation with his
son on Christmas Eve, Christmas Day, Thanksgiving, the 4th of
July, Easter and on alternating weekends. The District Court
granted the father visitation through a four-day weekend over
Memorial Day, and a four-day weekend on Labor Day, and
further visitations from December 19 to Decemher 22 of each
year and for 2 weeks during the summer, such weeks not to be
consecutive.
The District Court gave reasons for so decreeing the
visitation rights. The court relied on the testimony of
Lechner that the quality of the time that the father spent
with the child was important. The court determined that
weekend visitation was not in the child's best interest
because it required a trip of 165 miles each way, which was
not quality time to be spent with the child. The court
determined that providing four-day weekend visits on the
holidays specified, the Christmas season visit, and the 2
separate weeks of visitation d-uring the summer would give the
father a chance to form a bonding relationship with the child
under the best of circumstances. These findings of the
Distrj-ct Court were well within its discretion, and may not
Se set aside by us unless clearly erroneous. Rule 52,
M.R.Civ.P.
Again the father has not convinced us that a different
result would occur with respect to visitation if the District
Court had applied the sections relating to visitation in
marital dissolution disputes instead of the best interest
test under the paternity case provisions. These statutes are
not in discord.
111

The father's final issue is that the application of the
paternity case statutes in determining custody and visitation
instead of the statutes under the marital dissolution section
of the code deprives him of equal protection of the law.
There is no merit to this contention. He has been granted a
full hearing as to the best interests of the child in
determining custody and his right of visitation and the
controlling test under each set of statutes is the best
interest of the child.

Accordingly, the judgment of the District Court is

affirmed.

p~
We Concur:

~4--&$ t

Chief Justice

Justices

Mr. Justice Daniel J. Shea dissents and will file a written
dissent later.
 DISSENT OF MR. JUSTICE DANIEL J. SHEA

SCHUMAN v. BESTROM

DATED : L., 148.5
Mr. Justice Daniel J. Shea, dissenting:

I dissent. The crucial concern in reviewing application
of the best interests of the child standard is to ensure that
the determination truly was in the child's best interest.
Section 40-4-212, MCA, provides the tests for determining the
best interest. The statute is not based on the prerequisite
of a valid marriage, and rightly so, because the marital
status of a child's parents is both irrelevant and often in a
state of change or turmoil when the need arises to make the
determination.
Section 40-6-116(3), MCA, provides no best interest
criteria to apply in establishing the existence of the
parent-child rel-ationship. Further, the statute - -
does not
even require a best interest determination to be made even
though judges perhaps customarily use this boilerplate
language without ever considering what it truly means. The
statute is total-ly insufficient to ensure the proper best
interest criteria wil.1 be applied--if they are considered at
all. Further, section 40-6-11613), though it does not refer
to section 40-4-212, has no need to duplicate the criteria
set forth in section 40-6-1-16(3).
We ruled in Markegard v. Markegard (Mont. 1 9 8 0 ) , 616
P.2d 323, 37 St-Rep. 3539 that in determining child custody,
trial courts must consider the statutory criteria set forth
in 40-4-212, MCA. In that case, the trial court's
statements were nothing more than conclusory statements, not
reflecting the evidentiary basis for the decision.
It is an axiomatic principle that the welfare of a
child, that is, the best interest of the child, is the prime
factor that must apply to illegitimate as well as legitimate
children. I..0 Am. Jur. 2d Custody Child, the
inquiry is the same, and if nc presumption exists against the
father, no reason exists for the failure to apply the
statutory criteria in section 40-4-212, for it is this
statute that sets out the applicable factors that must be
weighed in reaching a custody decision.
In Bazemore v. Davis (D.C. App. 19781, 394 A. 2d 1377,
the Court held that in custod-y disputes between natural
parents of illegitimate children (some authority says there
are never illegitimate children, just illegitimate parents)
the standard. to he applied is the best interest of the child
without regard to any presumption against the father. The
Court reversed a trial court decision that in effect
concluded that a fit mother could never be deprived of
custody. The Court held:
"[Tlhe trial courts shall decide the delicate
question of what is the child's best interests
solely by reference to the facts of the particular
case without resort to the crutch of a presumption
in favor of either party."
In Com. ex rel. Scott 77. Martin (Pa.. Super. 1977), 381
A.2d 173, the Court expressly stated that the best interest
of the child in these situations is the overriding factor
that must govern the outcome:
"It is therefore apparent that when parents dispute
about which one of them should have custody of
their illegitmate child, the hearing judge is
obliged to satisfy two distinct, although
overlapping, clzims. First, the judge r.ust satisfy
each parent's claim to be treated as equal to the
other. The judge must start his examination of the
case on this basis; he therefore must not
discriminate against the father--or the
mother--simply because the child is illegitimate.
Second, the judge must satisfy the child's claim to
have the decision made according to the child's
best interest. It is at this point that the claims
overlap. If the judge starts his examination of
the case by discriminating against t h e father, not
 only does he treat the ffither un.fairly but - -
he also
treats - child unfairly, for - - improperly
the he has
narrowed the definition - -
of what disposition might
- - - child's best interest" (Emphasis added. )
he in the
CThe Court in Martin vacated the order and remanded
for appropriate find.ings.I
Here, the trial court's limitation of custody
consideration to S 40-6-113(3), MCA, effectively worked a
presumption in favor of the mother, the custodial parent.
Here, as was the case in Martin, treating the father unfairly
also treats the child unfairly. That is not the child's best
interests. This matter should be remanded for a
determination of best interest of the child, based on the
criteria set forth in S 40-4-212, MCA.