No. 89-310
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
IN RE THE MARRIAGE OF
SHERRY M. SUSEN,
Petitioner and Appellant,
and
THEODORE C. SUSEN,
Respondent and Respondent.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John Henson, Judge presiding.
COUNSEL OF RECORD:
For Appellant(s) :
Arthur D. Agnellino, Esq., Due Process Legal
Clinic, Missoula, MT
For Respondent (s):
Kristine Davenport, Esq., Missoula, MT
Submitted: Dec. 7, 1989
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Justice William E. Hunt, Sr., delivered the Opinion of the Court.
Sherry M. Susen, petitioner and appellant, appeals from a
custody order entered by the District Court of the Fourth Judicial
District, Missoula County. We affirm.
This Court summarizes the issues on appeal as follows:
1. Whether the District Court erred in its decision not to
interview the minor child and inquire as to her wishes.
2. Whether the District Court considered the child's special
needs and best interests in awarding joint legal and physical
custody of the minor child on an equal basis.
3. Whether the District Court's findings of fact and
conclusions of law were sufficient to support its custody order.
Appellant, Sherry Susen, and respondent, Ted Susen, were
married on September 21, 1981. Both parties were United States
Postal workers and earned $27,000 to $28,000 per year. One child
was born of the marriage, Kelly Anne Susen, who is now in
kindergarten. Because of chronic ear infections, Kelly has a
speech and language disorder, requiring therapy and treatment.
Sherry filed a petition for dissolution in the District Court
of the Fourth Judicial District, Missoula County, and the District
Court entered its findings of fact, conclusions of law and order
on January 16, 1987, in which the parties received joint legal and
physical custody of Kelly on an equal basis. Specifically, since
the parties both lived in Missoula at the time of the dissolution,
the court decreedthat the parties would alternate physical custody
of Kelly, rotating every two weeks.
On February 1, 1989, Sherry accepted employment with the
postmaster in Roseburg, Oregon, that would commence on February 25,
1989. On February 6, 1989, Sherry filed a motion with the District
Court for modification of custody, requesting primary physical
custody. On February 10, 1989, the parties signed a stipulation
in which they agreed not to move Kelly out of Missoula County until
further order of the court. On February 17, 1989, Ted filed a
response, opposing Sherry's motion and moved the court that, in the
event Sherry relocates out of Missoula County, he be granted
primary physical custody.
On February 21 and 28, 1989, a hearing was held on the
partiest motions. On March 30, 1989, the court issued its findings
of fact and conclusions of law and order. The court found both
parties to be fit parents.
In 1987, Ted remarried. His new wife, Patricia, assists in
caring for Kelly, and the court, in its March 30, 1989 findings,
found that Patricia interacts well with Kelly and that the two have
a good relationship. Patricia has two children from a prior
marriage whom the court also found interacted well and had a good
relationship with Kelly. Also, Ted's parents live in Missoula a
portion of the year and are active in Kelly's life.
The court modified the existing arrangement and ordered that
Ted would have physical custody through June 30, 1989; Sherry would
have physical custody from July 1, 1989 to one week before Kelly
began school in Missoula; Ted would have physical custody from then
until July 22, 1990; Sherry would have physical custody from then
until July 22, 1991; and from that point on Ted and Sherry would
alternate physical custody of Kelly each year until she reaches the
age of majority. From the order Sherry appeals.
The first issue raised on appeal is whether the District
Court erred in its decision not to interview Kelly and inquire as
to her wishes.
Sherry argues that the District Court's decision not to
interview Kelly and inquire as to her wishes violates 5 40-4-
212(b), MCA, which provides that the court shall determine custody
in accordance with the best interests of the child and in doing so
shall consider the wishes of the child. While the statute does
require the court to consider the wishes of the child, it does not
require that the court interview the child. See In re the Marriage
of ~ i c k e y(1984), 213 Mont. 38, 42, 689 P.2d 1222, 1224. Here, the
court specifically found in its January 16, 1987 findings that all
of the witnesses who testified at the hearing stated that Kelly
loves and enjoys being with both of her parents and that Kelly has
a good relationship with both. In making such a finding, which was
supported by testimony, the District Court has complied with 5 40-
4-212 (b), MCA.
The second issue raised on appeal is whether the District
Court considered Kelly's special needs and best interests in
modifying the original custody arrangement and awarding joint legal
and physical custody of Kelly on an equal basis.
Section 40-4-219, MCA, provides:
The court may in its discretion modify a prior custody
decree if it finds, upon the basis of facts that have
arisen since the prior decree or that were unknown to the
court at the time of entry of the prior decree, that a
change has occurred in the circumstances of the child or
his custodian and that the modification is necessary to
serve the best interest of the child and if it further
finds that:
(f) the custodial parent has changed or intends to
change the child's residence to another state. (Emphasis
ours. )
Here, parties were awarded joint legal and physical custody
on an equal basis to alternate each year. Montana favors joint
custody. Section 40-4-222, MCA. Equal physical custody between
parties is also favored when in the best interests of the child.
Section 40-4-224 (2), MCA. The court specifically found that the
joint and physical custody arrangement shared by the parties since
the time of the dissolution was satisfactory and no reason to
discontinue the arrangement had been set forth. However, because
the parties now live in separate states, the District Court, in its
March 30, 1989 order, implemented a summer and school year schedule
which alternated custody between parties annually.
Sherry appeals from the order and argues that Kelly has
special needs for which Sherry can provide if deemed primary
custodian. Kelly suffers from a speech and language disability
brought on by chronic ear infections. She is currently being
treated for her disability in Missoula.
Nonetheless, the best interest factors of 5 40-4-212, MCA, are
determinative of the issue. The court found that it was in Kelly1s
best interest for the parties to share joint legal and physical
custody of her on an equal basis.
The standard of review in a custody determination is that this
Court will not disturb a district court's findings unless they are
clearly erroneous. In Re the Marriage of Ereth (1988), 232 Mont.
492, 494, 757 P.2d 1312, 1313. The District Court's decision will
be upheld unless a clear abuse of discretion is shown. In Re the
Marriage of Rolfe (1985), 216 Mont. 39, 44, 699 P.2d 79, 82. Here,
Sherry has not presented persuasive evidence against the court's
findings. There was no abuse of discretion.
The third issue raised on appeal is whether the District
Court's findings of fact and conclusions of law were sufficient to
support its custody order.
Sherry argues that the District Court's findings and
conclusions did not address the best interest considerations set
forth in § 40-4-212, MCA, and, thus, were insufficient. We
disagree. The court8s order of March 30, 1989, was supported by
20 findings.
Finding no. 8 provided:
That the District Court Judge made lengthy and specific
Findinss of Fact on January 16, 1987 that it was in the
best interests of the parties8 minor child for the
parties to share joint legal and physical custody of said
child on an equal basis. (Emphasis ours.)
Finding no. 12 provided:
That the testimony at the hearing of this matter,
tosether with the Findinqs of Fact entered on January 16,
1987, show that .. . (Emphasis ours.)
The January 16, 1987 order contained 58 findings which
included the best interest factors set forth in 5 40-4-212(1)(a)-
(e), MCA. The March 30, 1989 order sufficiently incorporated the
best interest findings of the January 16, 1987 order by reference.
We hold the findings sufficient.
Affirmed .
We Concur:
chief Justice