~Jo. 87-159
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
IN RE THE MARRIAGE OF
BECKY LYNN ERETH,
Petitioner and Appellant,
and
KENNETH ARTHUR ERETH,
Respondent and Respondent.
APPEAL FROM: District Court of the Fifteenth Judicial District,
In and for the County of Sheridan,
The Honorable M. James Sorte, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Nye & Meyer; Joan Meyer Nye, Billings, Montana
For Respondent:
David L. Irving, Glasgow, Montana
Submitted on Briefs: June 2, 1988
Decided : July 12, 1988
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Becky Lynn Ereth appeals the custody award and the
property distribution in this dissolution of marriage entered
by the District Court for the Fifteenth Judicial District,
Sheridan County. We affirm.
Becky and Ken Ereth were married in 1973. They had four
daughters. Becky petitioned for a dissolution of marriage in
1985. In September 1986, the court heard two days of testi-
mony concerning custody and property distribution. The
court, in January 1987, entered its Findings of Fact, Conclu-
sions of Law, and Decree of Dissolution. The court awarded
custody of the four girls to the father as sole and permanent
custodian and granted the mother reasonable visitation
rights.
After initial review of the decree, this Court concluded
that the lower court's findings on the question of child
custody were incomplete. We therefore returned the matter to
the lower court for the entry of findings of fact to address
the elements set forth in 5 40-4-212, MCA. After the lower
court entered additional findings, the parties were given an
opportunity to brief any new questions raised by the find-
ings. We now consider the following issues:
1. Are the court's findings regarding custody supported
by the evidence?
2. Did the court erroneously rely upon the father's
proposed findings regarding property distribution?
Are the court's findings regarding custody supported by
the evidence?
The mother contends that the District Court abused its
discretion in awarding custody to the father because she
believes there is a clear preponderance of evidence weighing
against the court's findings. When reviewing the District
Court's custody order, we first must determine whether the
factors set forth in § 40-4-212, MCA, were considered. In re
Marriage of Jacobson (Mont. k987), 743 P.2d 1025, 1026-27, 44
St.Rep. 1678, 1680. Pursuant to this Court's order, the
lower court expressly considered the necessary statutory
factors in its additional findings.
Once it is established that the court properly consid-
ered the statutory criteria, we must determine whether the
court made appropriate findings with respect to these crite-
ria. In re Marriage of Manus (Mont. 1987), 733 P.2d 1275,
1276, 44 St.Rep. 398, 400. Section 40-4-212, MCA (1985),
provided as follows:
The court shall determine custody in accor-
dance with the best interest of the child. The
court shall 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 interrelationship 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.
Findings of fact will not be set aside unless clearly errone-
ous. Rule 52(a), M.R.Civ.P. The long-standing rule in
Montana is that we will not disturb findings of fact if they
are supported by substantial credible evidence.
The lower court heard testimony from numerous witnesses,
including experts, as to the issue of custody. The court
relied heavily upon the testimony and observations of two of
the experts concerning the children's wishes,
interrelationship of the children with their parents, and the
mental and physical health of all individuals. Those two
expert witnesses had prepared the custody report ordered by
the lower court. The parties agreed at trial that Mr. Jones,
one of the experts, was a psychologist. Dr. Brown, the other
expert, has a doctorate degree in educational psychology.
After review of the record, we conclude that the court did
not abuse its discretion in relying upon the testimony of
these two experts.
The court specifically found that all four children
stated a preference that they wanted to live with their
father, that the parents were openly hostile with each other,
that each parent was assessed as possessing adequate
parenting skills, that significant problems were noted in the
relationship between the mother and the children, that the
mother was evaluated as having poor control emotionally and
being over-reactive with the children, that the mother had
been described as abusive toward the children at times, that
the father was described as responsible, and that he had a
good relationship with each of the girls. The court also
found that the girls appeared to be well adjusted to the
father's home, that two of them preferred the school closest
to the father, and that the testimony established that the
girls appeared to be well adjusted in the community. Fur-
ther, the court found that all four children were well ad-
justed and healthy, with the exception of the oldest who
suffers from a stress-related infection, and that the father
was well adjusted and found to be without significant emo-
tional problems. The court found that the mother is a recov-
ering alcoholic who still drinks, that she was described as
one who deteriorates with stress and is prone to anger and
overreacting, and that she uses poor judgment.
A good deal of testimony was presented concerning these
issues, and much of the testimony conflicted. However, the
mother has failed to demonstrate that the court's findings
and conclusions were clearly erroneous. After careful review
of the record, we conclude that substantial credible evidence
supports the court's findings. The mother has not shown an
abuse of discretion. Therefore, we affirm the District
Court's determination of custody.
Did the court erroneously rely upon the father's pro-
posed findings regarding property distribution?
The mother argues that the District Court adopted the
findings proposed by the father and, as a result, failed to
make findings supported by the evidence. We answered a
similar argument in Jacobson, 7 4 3 P.2d at 1029:
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.
The findings proposed by the father were sufficiently
comprehensive and pertinent to the issues. The findings
dealt specifically with each item or category of property for
which there was evidence presented at the hearing. The
mother's argument is that the findings are not supported by
the evidence. Her position is that because the court re-
quired "compromise" findings, the court failed to give proper
consideration to the facts and failed to exercise independent
judgment in valuing the property. In Jacobson, 7 4 3 P.2d at
1029, we stated the applicable rule:
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
(1982), 198 Mont. 357, 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 consideration of the facts and the fail-
ure to exercise independent judgment.
In Re Marriage of Hunter (1982), 196 Mont. 235, 639
P.2d 489, 495, 39 St.Rep. 59, 67.
The values placed on certain marital property by the
parties and their experts were widely divergent. During the
hearing the judge actively participated in the process. He
asked the witnesses numerous questions, seeking quantities
and values for the assets and liabilities. The initial
proposed findings were so far apart that the judge ordered
the parties to propose compromises. The findings eventually
adopted by the court for the most part represented averaqe
values between the parties' initial proposals. We have
reviewed the evidence carefully and conclude that the evi-
dence would not support the valuations, as a whole, proposed
by the mother. The father's proposals represented averaqe
values. This Court has held that it is proper for a district
court to value marital property within the range of evidence
submitted. In re Marriage of Johnston (Mont. 1986), 726 P.2d
322, 325, 43 St.Rep. 1808, 1812. Further, a district court
has broad discretion in determining net worth. Johnston, 726
P.2d at 325. We conclude that the evidence supports the
findings.
We also note that the court's findings and conclusions
differed from the father's proposals in several significant
aspects beneficial to the mother. The court ordered the
father to pay maintenance of $300 per month for two years.
The court also ordered the father to pay the mother for her
share in the balance of marital property in a payment scheme
different than the father had proposed. The father also had
proposed to pay interest on outstanding equity payments;
however, the court rejected that proposal.
We hold that the District Court properly considered the
evidence and exercised independent judgment. We affirm the
findings and conclusions regarding property distribution.
Affirmed.
we concur: /
- Justices