No. 8 6 - 1 7 5
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
IN RE THE MARRIAGE OF
DAVID J. WARD,
Petitioner and Appellant,
and
RUTH ANN WARD,
Respondent and Respondent.
APPEAL, FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Mark Bauer, Great Falls, Montana.
For Respondent:
John I w e n , Great Falls, Montana
Submitted on Briefs: June 24, 1 9 8 6
Decided: October 9, 1986
Filed:GI-: 2 - 1985
Clerk
Mr. Justi-ce John C. Sheehy delivered the Opinion of the
Court.
David J. Ward, the father, appeals from a November 8,
1985 order issued by the District Court of the Eighth
Judicial District, Cascade County, granting a fixed
visitation schedule. We affirm.
The issue raised on appeal is whether the District Court
erred in granting the father approximately 75 days of
visitation a yea.r under the terms of 40-4-224 (2), MCA
(1985).
The mother and father were divorced on March 14, 1980.
In September, 1982, the District Court amended the
dissolution decree to provide that the only child, a son, be
placed in joint custody, giving the mother primary
residential custody. Throughout this time, until June, 1985,
both parents lived in Great Falls. In June, 1985, however,
the mother indicated that she was planning on moving to
Butte.
Because the parties were unable to work out a mutually
acceptable visitation schedule, appellant father filed a
motion for fixed visitation with the District Court. After
hearing the matter and reviewing proposed visitation
schedules submitted by the parties, the District Court
entered its order on visitation, dated November 8, 1985.
This order gave the father visitation on every third weekend,
alternating holidays, four weeks during the summer and
freedom to visit the child whenever the father is in Butte,
provided he gives the mother at least 24 hours notice.
The appellant father filed a motion to amend this
visitation order, on which the District Court did not act.
This appeal resulted.
Father contends on appeal that the District Court failed
to follow the language of $ 40-4-224(2), MCA, which states:
For the purposes of this section, "joint custody"
means an order awarding custody of the minor child
to both parents and providing that the physical
custody and residency of the child shall be
allotted between the parents in such a way as to
assure the child frequent and continuing contact
with both parents. The allotment of time between
parties shall be as equal as possible; however,
each case shall be determined according to its own
practicalities with the best interests of the child
as the primary consideration.
The District Court order gave the father about 75 days
of visitation out of a total of approximately 170 available
(non-school) visitation days. Father's proposed plan would
have awarded him an average of 119 days visitation a year.
He requested alternating weekends and holidays as well as
almost the entirety of his son's summer vacation. His plan,
the father contends, allots visitation time as equally as
possible. Father argues that under the recently adopted
language of 5 40-4-224(2), MCA, the District Court must
automatically provide equal amounts of the child's time with
each of his parents. He also contends that if the District
Court fails to do this, it should specifically set forth its
reasons for deviating from the equal time "mandate."
The District Court has no duty to make the findings
which the father is demanding. The statute states: "The
allotment of time between parties shall be equal as possible;
however, each case shall be determined according to its own
praticalities with the best interests of the child as the
primary consideration." Section 40-4-224(2), MCA. To impose
the father's interpretation of this statute would be an
unreasonable burden that would further hamper the already
beleaguered judges of the district courts in custody and
visitation cases. Further, it must be noted that the statute
requires that the equal time recommendation be balanced by
the practicalities of providing for the best interests of the
child. The best interests of the child are a "primary
consideration."
The standard of review in custody and visitation cases
is as follows:
This Court will not substitute its judgment for
that of the trier of fact. We will consider only
whether substantial credible evidence supports the
findings and conclusions. Findings will not be
overturned unless there is a clear preponderance of
evidence against them, recognizing that evidence
may be weak or conflicting, yet still support the
findings .
Jensen v. Jensen (Mont. 19811, 629 P.2d 765, 768, 38 St.Rep.
927, 930. Further, the appellant must overcome the
presumption that the District Court's order is correct.
Jensen v. Jensen (Mont. 1979), 597 P.2d 733, 36 St.Rep. 1259.
Finally, a reviewing court is never justified in substituting
its discretion for that of the trial court.
In determining whether the trial court abused its
discretion, the question is not whether the
reviewing court agrees with the trial court, but,
rather, did the trial court in the exercise of
discretion act arbitrarily without the employment
of conscientious judgment or exceed the bounds of
reason, in view of all the circumstances, ignoring
recognized principles resulting in substantial
injustice.
Porter v. Porter (1970), 155 Mont. 451, 457, 473 P.2d 538,
The instant case is clearly a matter where the trial
court is in the best position to observe the witnesses and
acquire a feel for their credibility and character. The
trial court is also best able to appreciate their ability to
cooperate within the requirements set by the visitation order
and to determine a course of visitation that is in the
child's best interest. The District Court order is neither
arbitrary nor beyond the bounds of reason. Father charges
that the District Court did nothing more than look at the
parties1 written custody proposals and draw middle ground
between them. However, the court's order is in keeping with
the court's perception of what is in the best interest of the
child and the statutory requirement that "each case shall be
determined according to its own practicalities," S
40-4-224 (2), MCA. A very real practicality was recognizing
that the allotment of time need only be as equal as it is
possible to make it. Here, the District Court recognized
that it was neither practical, possible, nor in the best
interests of the child to follow the father's proposed
visitation schedule.
Affirmed.
8. % L
,j
Justice