No. 86-477
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
IN RE THE MARRIAGE OF
LARRY D. JACOBSON I
Petitioner and Appellant,
and
ROBIN RAE JACOBSON,
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:
Judith A. Loring, Stevensville, Montana
Richard J. Andriolo; Scully, Lilly, Andriolo and
Schraudner, Bozeman, Montana
For Respondent:
K. Dale Schwanke; Jardine, Stephenson, Blewett and
Weaver, Great Falls, Montana
Submitted on Briefs: June 25, 1 9 8 7
Decided: October 6, 1987
pi- ;: -
Filed:
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Petitioner Larry D. Jacobson appeals a September 12,
1986, order of the Eighth Judicial District Court, Cascade
County. The court awarded sole custody and $ 3 0 0 per month
child support to Robin Rae Jacobson. We affirm.
Appellant Larry presents the following issues for our
review:
1. Did the District Court abuse its discretion in
granting sole custody to Robin?
2. Did the District Court abuse its discretion in
setting child support at $ 3 0 0 per month?
3. Did the District Court abuse its discretion in
establishing the visitation by Larry at one week every three
months?
4. Did the District Court abuse its discretion in
establishing the visitation by the paternal grandparents?
5. Did the District Court err in failing to hold Robin
in contempt of court for disturbing Larry's visitation?
6. Did the District Court err in denying discovery of
Robin's medical records?
7. Did the five-month period between trial and decree
cause substantial prejudice to Larry?
8. Does substantial evidence support the District
Court1s ord-er?
Respondent Robin cross-appeals with a single issue:
9. Did the District Court err in failing to award
attorney fees to Robin?
Larry and Robin Jacobson were married in Great Falls,
Montana, on January 2, 1982. One child, Lexi, was born of
the marriage on January 21, 1984. Two months later, Larry
petitioned for dissolution.
Following settlement attempts and continuances the
District Court awarded temporary custody and child support to
Robin on August 1, 1985. In February 1986, Larry petitioned
the Supreme Court for a writ of supervisory control on a
custody issue. We dismissed the petition without prejudice.
The hearing on the present issues was completed on April 4,
1986. The District Court filed its decree on September 12,
1986, and Larry appeals.
Issue 1. Custody.
The District Court awarded sole custody to Robin,
subject to reasonable visitation by Larry. Larry contends
that the court did not consider all of the child's "best
interests" factors of 5 40-4-212, MCA.
In reviewing custody issues, we first determine if the
factors of 5 40-4-212, MCA, were considered by the District
Court in its findings. If properly considered by the court,
the appellant must show both a clear preponderance of evi-
dence against the findings and an abuse of discretion in the
court's conclusions. In Re Marriage of Manus (Mont. 1987) ,
733 P.2d 1275, 1276, 44 St.Rep. 398, 400.
The court issued nine findings relating to the custody
issue. The court cited Robin's remarriage into a stable
family environment, Robin's continuous custody of Lexi,
Larry's sporadic visits, Larry's home environment, and Lexi's
attitude toward each parent. The court touched upon all five
factors of 5 40-4-212, MCA. The record supports the court's
findings and we see no abuse of discretion in its
conclusions.
Larry further contends that joint custody is presump-
tively in the best interests of the child. Larry argues that
joint custody is necessary because Robin has deprived Larry
of adequate visitation.
Under 5 40-4-223, MCA, joint custody is presumed to be
in the child's best interests, unless the court finds under
S 40-4-212, MCA, that joint custody is not in the child's
best interests. If joint custody is not awarded, the court
shall state the reasons in its decision.
The District Court specifically addressed the issue of
joint custody. The court found that the parents were unable
to communicate about Lexi, that Larry was inflexible, that
Lexi had adjusted to Robin's home environment and that Lexi's
interests were best served with sole custody to Robin. We
have repeatedly recognized the propriety of a District
Court's refusal to implement joint custody when such an award
would not be in the best interest of the child. Manus, 733
P.2d at 1277.
Larry has failed to overcome the presumption that the
District Court's judgment is correct. Parental cooperation
is a key factor in an award of joint custody. The District
Court saw no cooperation. Absent an abuse discretion, we
will not disturb its decision.
Issue 2. Child Support.
The District Court ordered Larry to pay $300 per month
child support and medical expenses. Larry contends that the
court did not follow the formula of In Re Marriage of Carlson
(Mont. 1984), 693 P.2d 496, 500, 41 St.Rep. 2419, 2423.
Larry argues that the support payments are excessive.
On appellate review, we will not overturn an award of
child support unless there has been a clear abuse of discre-
tion resulting in substantial injustice. In Re Marriage of
Tonne (Mont. 1987), 733 P.2d 1280, 1285, 44 St.Rep. 411, 416.
In determining child support, the District Court must
consider the needs of the child and the financial resources
of the parents. Section 40-4-204, MCA. In Carlson, we
adopted an algebraic formula to calculate the amount of child
support. However, we plainly stated that the Carlson formula
is a quideline and not mandatory. Carlson, 693 P.2d at 499.
Although the formula is recommended, the court can fashion
support orders to fit the exigencies of the case. In Re
Marriage of Goodman (Mont. 1986), 723 P.2d 219, 222, 43
St.Rep. 1410, 1415.
In eight findings, the District Court evaluated Lexi's
needs and the ability of her parents to pay support. The
court specifically stated why it did not apply the Carlson
formula. The court found that Robin's net pay is $738 per
month, that Robin has expenditures of $993 per month, that
Larry could earn $13.00 per hour as a construction worker and
that Larry can meet his expenses while paying the support.
The District Court noted: "Larry Jacobson has apparently
chosen a lifestyle which may have resulted in him earning
less money than he is capable of earning."
If a parent chooses a lifestyle that results in dimin-
ished ability to pay child support, the court may consider
that factor in establishing support payments. In Re Marriage
of Rome (Mont. 1981), 621 P.2d 1090, 1092, 38 St.Rep. 50, 52.
The record upholds the court's findings. We find neither
abuse of discretion nor substantial in-justice in the court's
conclusion.
Issue 3. Visitation by noncustodial father.
The court awarded visitation to Larry for one week
every three months plus holidays and Lexi's birthday. Larry
contends that the visitation is unreasonable and that Lexi's
interests are best served by seeing Larry more frequently.
Our review of this issue is guided by S 40-4-217!1),
MCA, which states that the noncustodial parent is entitled to
reasonable visitation rights unless the visitation would
seriously endanger the child's physical, mental, moral or
emotional health.
The District Court noted that Lexi appears to suffer
some emotional problems as a result of visitations with
Larry, and was concerned about Larry's potential for chemical
abuse. The court also found that Lexi suffered a physical
injury as a result of Larry's carelessness.
The District Court's visitation schedule was born of
concern for Lexi's health. Larry's visitations were not
precluded but merely limited. Visitation rights should be
arranged to suit the best interests of the child and not the
parents. The District Courts possess wide latitude in deter-
mining visitation, having heard the testimony and observed
the demeanor of the parties. In light of the evidence, we
find that the visitation provisions are reasonable and
proper.
Issue 4. Visitation by paternal grandparents.
The court allowed the paternal grandparents to visit
Lexi when she is visiting Larry, and also at such times as
are agreeable between them and Robin. Larry contends the
visitation is not reasonable and that Lexi has been denied
access to the other half of her extended family without
justification.
F e review this issue under the provisions of
7
S 40-4-217(2), MCA, which states that a District Court may
grant reasonable visitation rights to a grandparent if such
visitation is in the child's best interests.
The paternal grandparents requested four weeks of
visitation per year with Lexi. The District Court found that
their request was not consistent with their infrequent prior
contact with Lexi. However, the court granted them four
total weeks per year plus holidays. The grandparents also
have the opportunity for additional visitation, conditioned
on Robin ' s approval. Such a schedule is reasonable and
provides adequate access to Lexi. We find no merit in Lar-
ry's contention.
Issue 5. Contempt of Court.
Larry moved that Robin be held in contempt for denying
visitation to Larry on several occasions. The court rejected
the motion, finding that Robin's denials were based on a
concern for Lexi's health and not on a desire to restrict
Larry's access to Lexi.
Contempt of court is a discretionary tool of the court
to enforce compliance with its decisions. The power to
inflict punishment by contempt is necessary to preserve the
dignity and authority of the court. In Re Marriage of
O'Neill (1979), 184 Mont. 415, 417, 603 P.2d 257, 258. The
District Court obviously felt no such need in this case and
properly denied Larry's request.
Issue 6. Motion to Compel Discovery.
Larry moved to compel discovery of some of Robin's
medical records, as relevant to Robin's fitness as a parent.
The records concerned the hospitalization of Robin for a
single alcohol-related incident during college. The lower
court reviewed the material - camera and denied the motion,
in
stating that the records were too remote in time to be
relevant.
Larry has not shown that the ruling prejudiced his
case, or that the incident bore significantly on Robin's
fitness. On the contrary, the record repeatedly points to
Robin's fitness as a parent. The denial of the motion lies
squarely within the District Court's discretion, and we find
that its decision was proper.
Issue 7. Procedural Delay.
Larry contends that a recess of three months during the
hearing resulted in the absence of one of his medical experts
and thus prejudiced his case.
We note, however, the District Court specifically
acknowledged that it would allow other witnesses to testify
when the trial reconvened, but did not want any "surprise
witnesses.'' When the trial reconvened on March 31, 1986,
Larry never called his medical witness. Furthermore, Larry
never gave Robin notice of his intention to call the witness.
We find no error by the court in Larry's trial decisions.
Larry further contends that the five-month period from
the hearing until the decree prejudiced him because the court
lost its "hands on" feel for the case. Larry asserts that
the court adopted Robin's proposed findings virtually verba-
tim and thereby failed to exercise independent judgment.
The standard of review of findings made by a District
Court is the same whether the District Court prepared the
findings or adopted a party's proposed findings. In Re
Marriage of LeProwse (Mont. 1982), 646 P.2d 526, 529, 39
St.Rep. 1053, 1056. Error occurs only when the proposed
findings are relied upon to the exclusion of proper consider-
ation of the facts and the failure to exercise independent
judgment. In Re Marriage of Hunter (Mont. 1982), 639 P.2d
489, 495, 39 St.Rep. 59, 67.
Robin proposed thirty-one findings covering nineteen
pages, with each finding supported by the record. She pro-
posed nine conclusions covering two pages. Her proposals
were reasonable and thorough. The District Court can adopt a
party's proposed findings of fact and conclusions of law if
they are sufficiently comprehensive and pertinent to the
issues to provide a basis for a decision and are supported by
the evidence. Kowis v. Kowis (Mont. 1983), 658 P.2d 1084,
1088, 40 St.Rep. 149, 154.
The District Court substantially adopted Robin's pro-
posed findings and conclusions, but not verbatim. The court
properly considered the evidence and differed on four find-
ings. The court also differed significantly on four conclu-
sions of law; giving Larry the mobile home, giving Larry the
income tax deduction for Lexi, and refusing to grant attorney
fees to Robin. These changes favored Larry. As adopted, the
District Court's findings were comprehensive and its conclu-
sions were reasonable. We find that the District Court
exercised independent judgment and properly balanced the
interests of all parties.
Issue 8. Substantial Evidence.
Larry contends that the findings are not supported by
substantial evidence. In order to prevail on this issue,
Larry must show a clear preponderance of evidence against the
findings and must overcome the presumption that the judgment
of the trial court is correct. Bier v. Sherrard (Mont.
1981), 623 P.2d 550, 551, 38 St.Rep. 158, 159.
Larry's contention fails. The evidence long ago sur-
passed mere support. We stopped the flow of evidence in our
order of December 12, 1986, and stated: "this Court's file in
this matter is replete with documentation from both parties
that has done nothing to further the resolution of this
matter on appeal." We find no merit in this issue.
Issue 9. Attorney Fees.
The court ordered each party to pay its own attorney
fees. Robin contends t.hat she should have been awarded her
fees.
Our standard of review on the payment of attorney fees
is whether the court abused its discretion in refusing to
award such fees. In Re Marriage of Gallinger (Mont. 1986),
719 P.2d 777, 783, 43 St.Rep. 976, 984. Under S 40-4-110,
MCA, the trial court may order a party to pay the other
party's fees after considering their respective financial
resources.
The District Court was fully aware of the financial
resources and burdens of the parties, as evidenced in a dozen
findings. After assessing the information, the court proper-
ly concluded that neither party was entitled to attorney
fees. We find no abuse of discretion.
We affirm on all issues.
We concur: