No. 8 6 - 2 1 0
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
IN RE THE MARRIAGE OF
MARILYN ;TOY COLE,
Petitioner and Respondent,
and
JAMES W. COLE,
Respondent and Appellant.
APPEAL FROM: District Court of the Twelfth Judicial District,
In and for the County of Hill,
The Honorable Leonard Langen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Law Offices of Frank Altman; Ivan C. Evilsizer,
Havre, Montana
For Respondent:
Bosch, Kuhr, Dugdale, Warner, Martin & Kaze;
Mary Van Ruskirk, Havre, Montana
Submitted on Briefs: Aug. 14, 1 9 8 6
Decided: December 9 , 1986
Filed: DEC 9 - 1986
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This is an appeal from a dissolution and custody
proceeding arising from the Twelfth Judicial District in and
for Hill County, Montana. Husband appeals both from the
custody and dissolution determinations, as well as collateral
issues. We affirm in full.
James and Marilyn Cole were married in March of 1974.
During their twelve year marriage, they bore two children,
Christen, age 7 at the time of this appeal, and Robby, age 5.
Both Christen and Robby are gifted children; Robby, however,
is diagnosed as a Down's Syndrome child and continues to
manifest a learning and physical disability.
Because of Robby's special circumstances, considerable
testimony was presented at trial concerning the custody
arrangement which would best suit Robby's needs. Robby's
teachers, therapist and trainer all testified as to the scope
of responsibilities that must be addressed by a custodial
parent of a Down's child. In addition, the court received
the recommendation of two court appointed investigators,
Susann Fowler and Dr. Robert Stehman.
In its decree of dissolution, the court awarded the
parents joint custody of their children; Wife is to be the
custodial parent for nine months, twenty days -- roughly
equivalent to the school year -- and Husband is to be the
custodial parent for two months, ten days during the summer.
As to the distribution of the marital estate, the court first
determined the value of all the property therein and
subtracted the liabilities. Among the liabilities listed by
the court were each party's attorney's fees and costs. The
court then awarded Husband the estate, but ordered him to pay
the equivalent of one-half the net to the Wife. Finally, the
court refused to place a travel restriction upon the Wife
during that time in which she is the custodial parent. Wife
has expressed a desire to move to Florida and Husband had
sought a court order restricting her from moving outside the
state of Montana with the children. Husband now appeals.
Husband first contests the District Court's custody
determination. He presents three arguments.
Husband's first argument is that the District Court
failed to give proper consideration to the statutorily
required factors listed in § 40-4-212, MCA, and those
additional factors recently articulated by this Court in In
Re the Custody and Support of B.T.S. (Mont. 1986), 712 ~ . 2 d
Section 40-4-212, MCA, requires that a court determine
custody in accordance with the child's best interests and
that, in so doing, it 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 interrelation-
ship 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 individuals involved.
In B.T.S., supra, this Court further suggested three
related criteria worthy of a court's consideration in a joint
custody determination. First, in conjunction with
S 40-4-212 (I), a court should consider the parents' ability
to cooperate in their parental roles. B .T.S. , 712 P. 2d at
1301. Second, in conjunction with S 40-4-212(3), a court
should consider the child's relationship with both parents.
B.T.S., 712 P.2d at 1301. And third, a court should consider
the physical proximity of the parents' residence. B.T.S.,
712 P.2d at 1301-02.
Contrary to the claims of the Husband, we find that the
District Court's findings amply demonstrate that the court
properly considered the required factors. First, the court
made a specific finding as to the wishes of the parents and
their conflicting custody requests. Second, as to the wishes
of the children, Dr. Stehman testified that Christen wanted
to live with her mother and the court followed his
recommendation; due to Robby's disability his wishes were not
determinable. Third, as to the children's relationship with
their family and significant others, the court found that
both children appeared to enjoy a particularly strong
relationship with their mother and that she has always been
uniquely involved with Robby's treatment. The court further
found that the two children enjoy a close relationship with
one another and noted that professional testimony recommended
they remain together.
As to the fourth factor, the child's adjustment to his
environment, the court's findings summarized evidence of the
mother's extensive role in fostering both children's
development. The court specifically noted the mother's
comprehensive involvement in Robby's special care. Fifth,
the court noted that the special needs of Robby required that
he have continuous and consistent treatment, that his school
year not be interrupted by change of residence and that the
children not be separated. And sixth, the court noted that
the mother was contemplating a move to Florida.
In short, we find that the District Court considered
the required factors and made specific findings regarding the
best interests of the children in its custody decision. We
do not require a court's findings to be in any particular
form so long as there is substantial, credible evidence to
support the court ' s judgment on the merits. In Re the
Marriage of Burleigh (1982), 200 Mont. 1, 6, 650 P.2d 753,
756. We uphold the District Court's findings.
B
Husband's second argument is that the District Court
erred by awarding him actual physical custody for only two
months, ten days. He essentially bases his argument on
language within S; 40-4-224 (2), MCA, which states that the
physical custody time allotment between parents shall be as
equal as possible. Husband accordingly argues that he is
therefore entitled to physical custody for at least six
months.
We disagree. Section 40-4-224 (2), MCA, states in
relevant part:
The allotment of [physical custody] time
between parties shall be as equal as
possible; however, each case shall be
determined according to its own practi-
calities with the best interests of the
child as the ~rimarvconsideration.
&
(~mphasis added.
Thus, depending upon the circumstances of the case,
equal physical custody will not be awarded if such is not in
the best interests of the children.
In this case, the District Court expressly found that
because of the special needs of Robby, it would clearly be in
his best interest that his physical custody for the school
year not be interrupted. The court further found that it
would clearly be in Robby's best interest that his physical
custody for the school year be with his mother and finally,
that it would be in the best interests of both Robby and
Christen that the two children not be separated. The court
accordingly awarded Wife physical custody of both children
for the school term.
The decision is amply supported by the evidence.
Testimony from the children's teachers, counselors, service
providers to Robby, the family doctor and the two court
appointed investigators on custody all recommended to the
court that the Wife continue as the primary custodial parent.
Further, the school counselor, Robby's Child and Family
Service counselor, Robby's Head Start teacher, and Robby's
speech therapist, all testified that it would be better for
Robby to maintain one residence during the school year.
Findings and conclusions of a district court as to the
best interests of a child are presumptively correct and will
not be overturned unless there is a clear preponderance of
the evidence against them. B.T.S., 7 1 2 P.2d at 1300. We
will consider only whether substantial credible evidence
supports the findings and conclusions. B.T.S., 7 1 2 P.2d at
1300. In this case, there exists substantial credible
evidence supporting the District Court's determination that
the best interests of both children would be served by
remaining with their mother for the school term. We uphold
this determination.
C
Third, Husband challenges the District Court's refusal
to issue a restriction on travel upon the Wife during that
time in which she has physical custody of the children. As
noted, Wife has expressed her desire to relocate in Tampa,
Florida. Husband argues that if she is allowed to take
Christen and Robby with her, he will be effectively removed
from his children for all but the two month, ten day physical
custody period to which he is entitled.
Initially, we again note that the findings and
conclusions of a district court as to the best interests of a
child are presumptively correct and will not be overturned
unless there is a clear preponderance of the evidence against
them. B.T.S., 712 P.2d at 1300.
In this action, the District Court evidently did not
believe that a travel restriction was in the children's best
interests. It received testimony from the Wife describing
the advanced employment opportunities available in the Tampa
area as well as testimony from one of Robby's counselors that
Tampa is likely to provide a more complete line of services
to handicapped children. We find that the District Court's
refusal was not an abuse of discretion.
Moreover, we note that requests for impositions of
travel restrictions upon custodial parents force courts to
conduct a delicate balancing. On the one side, courts must
consider the best interests of the child -- that statutorily
required benchmark of all custodial determinations. And it
is by now little argued that a child's interests are best
served by consistent and continuing contact with both natural
parents. This state has explicitly adopted this goal as
public policy. Section 40-4-222, MCA.
As a counterweight, courts must also consider the
custodial parent's fundamental right to travel--at least
interstate. See Shapiro v. Thompson (1969), 394 U.S. 618, 89
S.Ct. 1322, 22 L.Ed.2d 600. Some states have eased this
difficult burden of the courts by enacting "anti-removal"
legislation, which, to an extent, statutorily dictates when a
custodial parent may remove his or her children from the
state. See Mass.Gen.Laws Ann. ch. 208, S 30 (West 1981);
I11.Rev.Stat. ch. 40, § 609 (1977); New Jersey Stat.Ann.
9:2-2.
Other courts have dismissed the custodial parent's
right to travel, holding that a travel restriction places no
burden on the parent's right to travel; it is the children
who must remain in the state. See Clark v. Atkins (Ind.
1986), 489 N.E.2d 90. We find this conclusion unpersuasive.
The custodial parent who bears the burdens and
responsibilities of raising the child is entitled, to the
greatest possible extent, to the same freedom to seek a
better life for herself or himself and the children as
enjoyed by the noncustodial parent. See Cooper v. Cooper
(N.J. 1984), 491 A.2d 606, 613.
We agree, however, that the custodial parent's freedom
is qualified by the special obligations of custody, the
state's interest in protecting the best interests of the
1 For an excellent discussion of this point, see Cooper
v. Cooper (N.J. 1984), 491 A.2d 606, 616 (Schreiber,
J. , concurring) .
child and the competing interests of the noncustodial parent.
In short, it is the court's task to attempt to reconcile the
interests of both parents with the best interests of the
child. Cooper, 491 A.2d at 613.
As a fundamental right, the right to travel interstate
can only be restricted in support of a compelling state
interest. See, Shapiro, 394 U.S. at 634. We believe that
furtherance of the best interests of a child, by assuring the
maximum opportunities for the love, guidance and support of
both natural parents, may constitute a compelling state
interest worthy of reasonable interference with the right to
travel interstate. Ziegler v. Ziegler (Idaho 1984), 691 P.2d
773. We caution, however, that any interference with this
fundamental right must be made cautiously, and may only be
made in furtherance of the best interests of the child. To
that end, we require the parent requesting the travel
restriction to provide sufficient proof that a restriction
is, in fact, in the best interests of the child.
I1
Husband further argues that the District Court erred by
failing to disqualify himself after participating in an
unsuccessful settlement conference. On October 25, 1985, the
court held a pre-trial conference in which possible
settlement terms were evidently discussed. The parties
failed to reach a settlement and the court ultimately heard
the case at trial. Neither party moved the judge to
disqualify himself.
Husband now argues on appeal that from the pre-trial
conference the trial judge formed certain biases about the
case and acquired a personal dislike for the Husband which
the judge carried into trial. Under the circumstances,
Husband concludes, the judge should have automatically
disqualified himself when the conference ended without
settlement.
We disagree. This Court very recently expressed its
concern about the participation in pre-trial settlement
negotiations of trial judges who are to be triers of fact.
In Shields v. Thunem (Mont. 1986), 716 P.2d 217, 219, 43
St.Rep. 518, 521, we held:
[Wlhere a judge is to be the trier of
fact, and he participates in pre-trial
settlement negotiations which
subsequently fail, he should, upon
request, disqualify himself from sitting
as the trial judge. (Emphasis added.)
Shields is clear that before this Court will find a
district court in error for failure to remove itself in such
a situation, a request for disqualification must be made. We
see no reason to alter that rule in this case, especially in
the absence of a record of the pre-trial conference. If the
actions of the District Court judge were truly as egregious
as Husband now claims, his obvious remedy would have been to
move to have the judge disqualify himself. It is no defense
that Husband was excused from requesting disqualification
since the Shields decision came down after the trial in this
case. We find no error in this issue.
Husband next challenges the District Court's grant of
Wife ' s motions in limine, excluding certain evidence from
trial. These motions were in response to the Husband's
attempt to introduce as evidence Wife's inability to balance
her checkbook and an incident while Wife was employed by the
K-Mart Corporation in 1981 in which she was accused of theft.
The District Court granted Wife's motions on the grounds that
this evidence was not relevant to the custody determinat.ion.
See Rule 402, M.R.Evid.
In determining the relevancy of the evidence, a trial
court is not guided by any fixed rules. Rather, the nature
of the evidence and the circumstances of the particular case
must control. The trial court's determination of relevancy
is subject to review only in the case of manifest abuse.
Preston v. McDonnell (Mont. 1983), 659 P.2d 276, 277, 40
St.Rep. 297, 299.
Here, the District Court did not abuse its discretion.
Case law in this state has established a line of precedent
moving away from the policy of admitting evidence of
misconduct which did not effect the relationship of a
custodian with the child. Solie v. Solie (1977), 172 Mont.
132, 136-37, 561 P.2d 443, 446; Foss v. Leifer (1976), 170
Mont. 97, 102-03, 550 P.2d 1309, 1312. We hold the District
Court did not err by refusing admission of Wife's alleqec?
theft and accounting difficulties.
IV
Next, Husband contests the District Court's award of
attorney's fees to K-Mart. In an effort to investigate more
fully the circumstances surrounding Wife's alleged theft,
Husband had a subpoena duces tecum served upon K-Mart
commanding that its personnel manager appear for testimony
with all relevant records. Wife, in addition to filing her
motion in limine seeking to exclude this evidence, also sent
a letter to K-Mart stating that production of any documents
or testimony without a court order might well constitute a
violation of Wife's right to privacy or a breach of the
employer's implied duty of good faith and fair dealing.
K-Mart ultimately filed with the District Court,
pursuant to Rule 26 (c), M.R.Civ.P., a motion for protective
order, seeking guidance from the court as to Husband's
requested discovery. During a telephonic conference held on
January 14, 1986, the parties' attorneys stipulated that
K-Mart's attorney could orally summarize the information he
obtained in an interview with the proposed deponent. After
hearing the summary, the court concluded that the issue was
not relevant, granted Wife's motion in limine, and refused to
allow Husband to make further offer of proof on this issue.
Subsequently, on January 31, 1986, the District Court,
pursuant to Rule 37 (a)(4), M. R.Civ. P. , granted K-Mart ' s
motion for attorney's fees.
Rule 37(a) (4), M.R.Civ.P., provides that:
If the motion is granted, the court shall
... require the party
conduct necessitated the motion
...
whose
to ...
pay to the moving party the reasonable
expenses incurred in obtaining the order,
including attorney's fees ...
In this case, the District Court never actually granted
K-Mart's motion for protective order. As noted, the court
disposed of this line of discovery when it granted Wife's
motion in limine. Nonetheless, the court by granting the
Wife's motion in limine in effect granted K-Mart's motion for
a protective order. K-Mart is therefore entitled to its
attorney's fees under Rule 37 (a)(4), M. R.Civ. P.
Finally, Husband contests the District Court's award of
attorney's fees and costs to Wife. The District Court found
that Wife's reasonable attorney's fees amounted to $10,880
and Husband's, $4,200. The court further found that Wife was
without means to pal7 for her attorney's fees, so it listed
both Husband's and Wife's attorney's fees as liabilities to
be paid out of the marital estate. The court then subtracted
these and all other liabilities from the marital estate to
find a net marital estate. Finally, the court awarded
Husband the marital estate, but required him to pay all
liabilities and to pay the Wife one-half the net.
The effect of the court's apportionment of the marital
assets and liabilities was to have the Husband pay one-half
of Wife's attorney's fees and vice versa. Because each party
is to receive one-half the net marital estate, each liability
subtracted from the gross marital estate costs each party
one-half the amount of each liability.
The disposition of a marital estate--in which the
parties' attorney's fees were included--is largely within the
discretion of the District Court. See In re the Marriage of
Morse (Mont. 1985), 708 P.2d 559, 560, 42 St.Rep. 1235, 1237.
This Court will not disturb the decision of the District
Court absent a clear abuse of discretion. We do not find
that the District Court committed clear abuse of discretion
in its disposition of the marital estate.
This, however, does not end our discussion. Husband
argues that even if the parties' attorney's fees were
properly included within the marital estate, Wife's claim for
attorney's fees were not proven to be necessary or
reasonable. Reading Wife's testimony in whole, we are not
persuaded that the District Court erred in its finding that
Wife had inadequate means of paying her attorney's fees. And
as for the reasonableness of the amount, we note that Husband
chose neither to object nor to cross examine either Wife as
she testified on this matter at trial or Wife's counsel
during a post-trial conference during which this issue was
discussed and no record was made thereof. Where Husband was
a participant in the conference and did not object and the
record is not perfected, we will not hold a District Court in
error. In re the Marriage of Purkett (Mont. 1986) , 721 P. 2d
349, 351, 43 St.Rep. 1217, 1219.
Finally, the District Court ordered Husband to pay
Wife's court costs of $475.64 and the fee of Wife's
accountant totalling $75. We find no error in the award of
the accountant's fees; Mr. Koeoke testified as to his
statement for professional services. Again the record has
not been perfected as to the court costs. For the same
reasons that we uphold the court's grant of attorney's fees,
we uphold the award of costs.
Affirmed.
We concur:
,
,y
A
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