IN THE SUPREME COURT OF THE STATE OF MONTANA
IN RE THE MARRIAGE OF
GWYN ANN ALLEN,
Petitioner and Appellant,
and
DONALD GARY ALLEN,
Respondent and Respondent.
APPEAL FROM: District Court of the Seventeenth Judicial District,
In and for the County of Valley,
The Honorable M. James Sorte, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
David Allen Dick, Wolf Point, Montana
Denise Peterson; Jackson, Murdo, Grant & Larsen, P.C.,
Helena, Montana
Por Respondent:
Robert Hurly, Glasgow, Montana
Submitted on Briefs: February 16, 1989
Decided: April 12, 1989
Filed:
I
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
Petitioner Gwen Allen (hereinafter referred to as the
Wife) appeals from an award of joint custody of the parties'
three minor children. In April, 1988, the District Court
granted physical custody of the two older children to
respondent Donald (hereinafter referred to as the Husband)
until August, 1988, at which time the court would re-examine
physical custody. At the later hearing, the District Court
made another temporary determination of physical custody
until August, 1989, at which time a hearing is set to
re-examine and determine physical custody for the following
year. We affirm the award of joint custody and find under
these circumstances it was not an abuse of discretion to
maintain jurisdiction to determine physical custody.
This appeal arises from a particularly acrimonious
custody battle. The parties were unfriendly and
uncooperative throughout the proceeding, especially regarding
custody and visitation. Much of the testimony involved the
Wife's allegations that the Husband had an indiscreet
relationship with his live-in girl friend. At the conclusion
of the original hearing on January 26, 1988, Judge Langen
concluded the parties would have joint custody.
I find that .. . the presumption
prevails and that I must award joint
custody. I base that on the fact that
when I consider the factors set forth in
40-4-212, I find that in my finding,
after listening to the testimony here for
these many hours, that there is no
testimony which would come within the
provisions of 1 through 6, which would
allow me to find other than that the
presumption prevails.
J,udge Langen found ample evidence the Wife had
obstructed the Husband's attempts to visit the children,
however, he requested the parties to work out a visitation
schedule whereby the Wife would be the primary custodian
during the ten school months and the Husband would have the
two older children for two months in the summer, plus other
liberal visitation on weekends and holidays. ,?udqe Lanqen
concluded:
However, if she [Wife] continues to
hamper visitation on the part of the
father, or tends to interfere with his
right to have prolonged visitation or
custody, I'll change the decree, and I'll
give him the custody, and you can be the
non custodial parent tryi-ng to get
visitation rights.
On February 1, 1988, the Husband moved the District
Court for a new trial, to amend findings of fact, or to
reopen the case for presentation of f.urther evidence. The
motion alleged that the Flife was continuing to hamper the
Husband's visitation with the children and was not making a
cooperative effort to set a visitation schedule. The motion
requested an immediate order granting physical custody of the
two older children to the Husband.
On February 5, 1988, Judge Langen heard testimony from
both parties regarding what transpired following the initial
hearing. He then ordered the parties to remove to a
conference room and attempt to reach an agreement. The
parties evidently reached some agreement but the Wife refused
at the last moment to commit to its terms. Judge Langen then
stated that he would settle the dispute since the parties
could not. Before the close of the hearing, the Wife's
attorney advised the Judge that under Montana law, joint
custody does not require equal physical custody.
On April 1, 1988, Judge Langen entered his findings of
fact, conclusions of law, and decree and judgment. The
marriage was ordered dissolved, the marital property was
divided, child support was determined, and the parties were
awarded joint custody of the children. The court determined
that the Husband should have the two older children for the
months of April, May, July and August, 1988. An August 19,
1988, hearing was scheduled in the findings, at which time
the Judge was to determine custody for the ensuing months.
The Judge strongly recommended the parties prepare a written
plan of physical custody and visitation which would obviate
the need for the August hearing.
Prior to the August hearing, the Wife moved for the
recusal of Judge Langen on the allegation that he
participated in the negotiations between the parties durinq
the February 5, 1988, hearing. Judge Langen complied with
the motion, but noted tnat his recollection of the facts
differed considerably from those alleged in the motion.
Judge Sorte then accepted jurisdiction of the case. The
August hearing was vacated and rescheduled for September 9,
1988.
During the September hearing, the Wife realleged facts
of the Husband's unfitness as a parent which were made during
the first hearing. The Wife also made numerous additional
allegations, not mentioned during the first hearing, which
ranged from marital rape to bad driving habits. Judge Sorte
was not sure how this testimony related to a determination of
future phvsical custody, but he allowed the Wife to so
testify. After hearing the testimony and consideri ns
post-hearing briefs from both parties, Judge Sorte entered
his findings of fact, conclusions of law and supplemental
judgment and decree regarding custody on September 26, 1988.
The corlrt concluded that cuctody of the two older children
should remain with the Husband through the 1988-89 school
year. The Judge scheduled an August 15, 1989, hearinq to
determine custody of the children for the ensuing school
year, but gave the parties an opportunity to make their own
custody arrangements. This appeal followed.
The Wife raises the fol.lowing issues for our review:
1. Was it an abuse of discretion to order a custodv
arrangement different from that which was established in the
temporary custody order without making a specific finding of
changed circumstances?
2. Did the District Court ignore all "best interest"
factors except visitation?
3. Did the District Court order equal physical custody
because it erroneously concluded the law required such an
award?
4. Is this appeal limited to the issues of the
supplemental order of September 23, 1988, or mav we consider
issues determined by the order of April 1, 1988?
5. Was it error for either District Court Judge to
make custody arrangements without establishing a final
physical custody plan?
Issue No. 1.
Was it an abuse of discretion to order a custody
arrangement different from that which was established in the
temporary custody order without making a specific finding of
changed circumstances?
The Wife filed her petition for dissolution in
September, 1985. She was granted temporary custody upon her
ex parte motion on the same day. At a subsequent hearing,
the parties stipulated that the Wife would have temporary
custody but the Husband would be allowed certain visitation
rights. Since this case was not heard until February, 1988,
the Wife had temporary custody for nearly two and one-half
years from the date she filed her petition for dissolution.
The Wife argues the grant of physical custody of the
two older children to the Husband was error because there was
no finding of changed circumstances to support the
"modification" from the temporary custody order. The Wife
reads the recent case of In re the Custody of Andre (Mont.
1988), 761 P.2d 809, 45 St.Rep. 1745, as requiring a court to
make a finding of changed circumstances before any final
custody order can be made which alters the temporary custody
order. We disagree with that interpretation.
The facts in Andre were substantially different from
those of this case. The parties there were not acting under
a temporary custody order, but had agreed to a custody
arrangement between themselves, without judicial supervision.
The de facto custody arrangement had continued for nine
years. Here, the children were initially awarded to the Wife
upon her ex parte motion. At a later hearinq, through
stipulation by both parties, the Wife was temporarily awarded
custody pending resolution of the action. While the
temporary order did not specifically state that the rights of
the non-custodial parent would not be prejudiced, as in In re
Marriage of Beitz (1984), 211 Mont. 111, 683 P.2d 485, we
conclude that, under these facts, the temporary order did not
require a showing of changed circumstances before the final
custody order could alter the terms of the temporarv custody
order.
As expressed in 5 40-4-213, MCA, the best interest test
is the standard used by the court to award temporary custodv.
However, the court, upon motion for temporary custody, is
only determining the best interest of the child with regard
to temporary custodv pending resolution o f the action.
Temporarv child custody is merely
an initial determination made to
ascertain which of [the! parents will
keep children until such time as ful.1.
hearing on custody can be made.
27C C.J.S. Divorce, S 642, footnote 30. While district
courts must consider the stability of the child's home when
it determines custody, it would nevertheless be inherently
unfair to require the temporary non-custodial. parent to make
a higher threshold showing of changed circumstances before a
custody order may deviate from the temporary order.
According to the Wife's reasoning, temporary custody
would require a non-custodial parent who seeks final custody
to bear a heavier burden to show changed circumstances under
5 40-4-219, MCA. This interpretation goes against the policy
of this temporary custody statute. The commissioner's note
to 5 40-4-213, MCA, states:
[This action] encourages trial
co.urts to issue temporary custody orders
without formal hearing whenever possible.
Since the hearing itself may be a
traumatic event for both parents (and
therefore for their children,
indirectly), the trial court is
authorized to make temporary orders on
the basis of affidavits alone unless one
of the parties files formal objection to
that procedure. In most cases, it is
expected that trial judges will award
temporary custody to the existing
custodian so as to minimize disruption
for the child.
If the Wife's interpretation were correct, parents
would be forced to vigorously litiqate temporary custody in
an attempt to avoid the changed circumstances burden. Such a
result would be contrary to the purpose of the temporary
custody statute. We conclude that under the facts of this
case, the District Coart was not required to make a finding
of changed circumstances before granting physicial custody of
the two older children to the Husband.
Issue No. 2.
Did the District Court ignore all "best interest"
factors except visitation?
The Wife argues that both J.udge Langen and Judge Sorte
abused their discretion by not looking to the best interest
of the children in awarding the parties joint custody. ll ie
disagree. There is no evidence that either Judge ignored the
best interest factors. In fact, the transcript illustrates
Judge Langen examined the facts under the statutory
standards, and he specifically examined S S 40-4-212, -222,
and -223, MCA. Judge J.,angen spoke directly to the alleqation
of physical ab.use of the Wife, the wishes of the parents, the
wishes of the children, and the interaction and
interrelationship of the parents with the children.
Judge Sorte also heard all of this evidence, and much
more. He too agreed that the statutorv presumption
prevailed. There is no evidence that the best interest
factors were ignored. The Wife has shown no clear ahuse of
discretion by either District Judge.
Issue No. 3.
Did the District Court order equal physical. custody
because it erroneously concluded the law required such an
award?
This issue has no merit. There is no evidence that
Judge Langen concluded that joint custody requires equal.
physical custody. In fact, Judge Langen's first choice was
to award an unequal division of physical custody. During the
February 26, 1988 hearing, Judge Langen originally requested
the parties to work out an arrangement whereby the Wife would
have the children for ten months during the school year and
the Husband would have the two 01-der children for two months
in the summer. Additionally, counsel for the Wife
specifically advised Judge Langen at the close of the
February 5, 1988 hearing, prior to the entry of the judgment
and decree, that joint custody does not require equal
physical custody. We find no abuse of discretion.
Issue No. 4.
Is this appeal limited to the issues of the
supplemental order of September 23, 1988, or may we consider
issues determined by the order of April 1, 1988?
The Wife argues that since the original order called
for an Aug.ust hearing to re-examine the custody arrangements,
she could not timely appeal the original judgment and decree
before Judge Sorte could hear the issues, and therefore, she
should be able to challenge the discretion of Judge Langen
with respect to the original order. Because we have decided
to address the Wife's issues with respect to the original
order above, we need not discuss this issue further.
Issue No. 5.
Was it error for either District Court Judge to make
custody arrangements without establishing a final physical
custody plan?
Section 40-4-104(1), MCA, provides in part:
(1) The district court shall enter a
decree of dissolution of marriage if:
(d) to the extent it has jurisdiction to
do so, the court has considered,
approved, or made provision for child
custody, the support of any child
entitled to support, the maintenance of
either spouse, and the disposition of
property.
Prior to amendment of this section in 1985, t.he word
"property" was followed by the phrase "or provide for a
separate, later hearing to complete these matters."
Recently, in In re Marriage of Ensign (Mont. 1987), 739 P.2d
47'9, 44 St.Rep. 1146, we held that the deletion of this
language was an attempt by the legislature to prevent
prolonged custody, support and maintenance battles. On this
reasoning, the Wife argues it was error for the District
Court to set later hearing dates to re-examine and determine
physical custody for the future periods of time. We
disagree.
Judge Langen determined in his April 1, 1988 iudgment
and decree that the parties would have -joint custody. He
also established support and divided the marital property.
It was his decision to determine future physical custody
after examining how the custody arrangement developed through
the summer months. Judge Langen also wanted the parties to
"take advantage of the experiences of the physical custody
arrangements imposed by the Court in this Decree" and reach
their own agreement regarding physical custody.
We find the court did not err when it retained
jurisdiction to re-examine the physical custody arrangements
when it was faced with such a bitter and hostile custody
battle. But even if the Wife's assertions on this issue were
correct, we do not understand how this position could further
her case. She now has an opportunity to reach a custody
agreement with her former husband which would better serve
the best interest of the children. As we stated in Andre,
761 P.2d at 812:
Although the end of a relationship
is a time of great trauma, parents
generally love their children and have
the greatest interest in determining
which of them can best care and provide
for the child ... In addition, parents
are in a much better position to
determine custody arrangements . .
. It
would be unrealistic to assume that the
welfare of a child can better be
determined by a court after a short
period of self-interested testimony.
Wife has shown no clear abuse of discretion by either
District Court Judge. The judgment and decree and the
supplemental judgment and decree are affirmed.
We concur:
-
Justices