No. 89-443
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
MONTE DEAN LORENZ,
Petitioner and Appellant,
-vs-
MELANIE JANE LORENZ, n/k/a MELANIE JANE
WANGERIN,
Respondent and Respondent.
APPEAL FROM: District Court of the Seventh Judicial District,
In and for the County of Richland,
The Honorable H. R. Obert, Judge presiding.
COUNSEL OF RECORD:
For Appellant (s):
Phillip N. Carter; Koch & Carter, Sidney, Montana
For Respondent (s):
Peter 0. Maltese, Sidney, Montana
Submitted on Briefs: Jan. 25, 1990
. /.
n
Decided: March 9 , 1990
Filed:
Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
The parties' marriage was dissolved in the District Court for
the Seventh Judicial District, Richland County, in May 1988. The
parties were granted joint custody of their two minor children.
Monte Dean Lorenz now appeals the court's June 1989 order that the
children's primary residence be with their mother, Melanie Jane
Lorenz, who has moved to Canada. We affirm.
The issues are:
1. Are the District Court's findings, conclusions, and order
supported by the evidence?
2. Are the court's findings, conclusions, and order suffi-
ciently comprehensive and pertinent to the issues to provide a
basis for the court's decision?
3. Does the court's adoption of the mother's proposed
findings, conclusions, and order constitute reversible error?
The marriage of Monte Dean Lorenz (father) and Melanie Jane
Lorenz (mother) was dissolved in May 1988. They had two children,
a girl and a boy, then ages eight and five. Pursuant to the
parties' custody, support, and property settlement agreement, which
was merged in the decree of dissolution, the parties shared joint
custody of their two children. The agreement provided that the
children's primary residence would be with the mother.
In July of 1988, the mother discovered she was pregnant. The
father, Timothy Wangerin, was a seminary student who had served as
a vicar at the parties1 church. In what she described as "great
emotional turmoil,11the mother signed a stipulation that physical
custody of the children would be given to the father. Two weeks
later, the mother married the vicar and filed her rescission of the
stipulation.
In August, the father filed a motion to modify the physical
custody of the children so that he could keep them. The mother and
her new husband were moving to Edmonton, Alberta, Canada, where he
would continue his education. After a hearing lasting several
days, the District Court granted temporary physical custody to the
father for the 1988-1989 school year.
A hearing on a permanent residency arrangement for the
children was held in June 1989. By this time, the mother, her new
husband, and their baby were living in Medicine Hat, Alberta,
Canada. The father still lived in the same house in Sidney,
Montana. After the hearing, the court concluded that it would be
in the children's best interests if they resided with their mother
during the school year and with their father during the summer.
From that order the father appeals.
I
Are the court's findings, conclusions, and order supported by
the evidence?
The father challenges the following finding made by the
District Court:
IV.
The parties executed an Agreement to Modify
Custody, Support and Property Settlement
Agreement and Decree of Dissolution of Mar-
riage on July 12, 1988. Thereafter, the
Respondent filed her Recission [sic] of Agree-
ment to Modify Custody, Support and Property
Settlement Agreement and Decree of Dissolution
of Marriage on the basis that the Petitioner
induced the Respondent to sign the Agreement
with several promises, many of which were not
kept; that prior to the time of signing the
instrument, the Petitioner exerted great
pressure on the Respondent to sign the Agree-
ment, at a time when the Respondent was suf-
fering great emotional turmoil.
The father argues that the record does not support the reasons
stated in Finding IV for the mother signing the stipulation. He
also maintains that there was no evidence that he caused any
emotional turmoil the mother may have been suffering at that time.
The mother testified that,
There were promises made to me when I signed
it. There were threats made to me when I
signed it and other general statements.
Q. You say that there were threats made to
you.
A. Yes.
Q. And what were those threats?
A. One of them was a big, ugly legal battle
if I didn't sign it, which has come true. He
told me -- Monte told me to tell Tim that if
he came to town he would kill him. He told me
that he would do everything in his power to
prevent his children from living with me and
Tim, that he would do whatever he had to to
prevent that.
The above testimony supports Finding IV. We conclude that the
finding was not error.
The father next challenges Finding VI, which stated that the
mother had been the primary caretaker of the children. The mother
testified that she worked as a beautician three to four days per
week during the last two years of the marriage, but that prior to
that time she had been at home. She testified that the first year
she worked outside the home, she had a babysitter for the children.
The second year, the father cared for the boy after he got out of
kindergarten at 11:30 and until the mother was done working,
according to her testimony. The mother testified that it was
always her job to get the kids ready to go to school. She stated
that the father did not have much to do with the children's
upbringing. We conclude that this was substantial evidence to
support Finding VI.
Finding VII is the last one to which the father objects. It
stated that each party acknowledged that the other is a fit and
proper person to be a custodial parent. At the June 1989 hearing,
the father described the mother as "a good mother.I1 He testified
that he had never considered her an unfit mother and that she had
a good relationship with the children. Moreover, he did not seek
to terminate joint custody of the children. We conclude that
substantial evidence supports Finding VII.
The father also lists nineteen findings (in his favor) which
he submits that the court should have made but did not. These
related to the children's adjustment to their home, school,
community, extended family, and church in Sidney, Montana. This
Court has held that a district court "is not obligated to outline
all of the testimony presented at trial in its findings of fact."
McConnell-Cherewick v. Cherewick (1983), 205 Mont. 75, 83-84, 666
P.2d 742, 746. We will discuss, under Issue 11, whether the
District Court made sufficient findings to support its conclusions
and decision.
I1
Are the District Court's findings, conclusions, and order
sufficiently comprehensive and pertinent to the issues to provide
a basis for the court's decision?
Section 40-4-224 (2), MCA, states that in joint custody,
allotment of time for physical custody and residence of the
children must be as equal as possible between the parents, but each
case is to be determined according to its own practicalities, with
the best interest of the child as the primary consideration. The
father contends that the provisions of 5 40-4-212, MCA, regarding
the best interest of the child should all have been addressed in
the findings in this case.
Section 40-4-212, MCA, lists the following as factors to be
considered in determining the best interest of the child: 1) the
wishes of the child's parents as to the child's custody; 2) the
child's wishes as to his custody; 3) the interaction of the child
with his parents, siblings, and any other persons who may sig-
nificantly affect the child's best interest; 4) the child's
adjustment to his home, school, and community; 5) the mental and
physical health of all individuals involved; 6) physical abuse,
if it is present or threatened; 7) chemical dependency of either
parent. This Court has further suggested three related criteria
to be considered: the parents1 ability to cooperate in their
parental roles; the child's relationship with both parents; and the
geographic proximity of the parents1 residences. In re Custody and
Support of B.T.S. (1986), 219 Mont. 391, 395-96, 712 P.2d 1298,
1301.
We now discuss the findings in this case as they relate to the
statutory best interest factors. By definition, in joint custody
each parent is a fit custodian of the child. The nature of this
proceeding makes it clear that both parents desire joint custody
and that each wants to be the primary residential parent.
The court stated during the hearing that, in its opinion, the
children were too young to express their wishes as to residence.
It did not interview them as to their preferences. This Court has
stated that the age of the child goes to the weight to be given the
child's wishes as to custody. In re Custody of C.C. (1985), 215
Mont. 72, 76-77, 695 P.2d 816, 819.
The court made findings on the interaction of the children
with all of the persons they would live with in either household,
including their half-sister and the mother's new husband. It found
that the mother's new husband interacts well with the children and
is interested in their welfare.
This Court has recognized that a custodial parent is presump-
tively entitled to change her own and the child's residence. In
re Marriage of Paradis (1984), 213 Mont. 177, 181, 689 P.2d 1263,
1265. In that context, the children's adjustment to their home,
school, and community must be weighed carefully. By definition,
in joint custody the children will live in both parents' households
with time divided as equally as possible. The court made no
findings on the issue of the children's adjustment to their home,
school, and community.
The only person on whom there was any adverse evidence as to
physical or mental health was the mother's new husband, Tim
Wangerin. But the mother presented rebuttal evidence on that
issue. The court made no finding.
There was no evidence of physical abuse or chemical dependency
on the part of any of the parties, and there were no findings on
these factors. Neither did the court make any findings on the
parents' ability to cooperate in their parental roles or on the
children's relationship with both parents. The geographic
proximity of the parents1 residences was addressed in the nine
month-three month plan of residential custody.
In this case, the District Court was faced with two suitable
custodial parents who desire joint custody and who live at such a
distance apart that one will necessarily see less than the other
of their school-age children. Prior to the mother's move out of
town, the parties had agreed that she would provide the children's
primary residence. The court found that the mother does not intend
to work outside the home, while the father is a farmer and has a
part-time job as a salesman. This Court has stated that a district
court need not make specific findings on each statutory factor in
determining best interests of children under 5 40-4-212, MCA, but
need only express the "essential and determining1'facts upon which
it rests its conclusions. Cameron v. Cameron (1982), 197 Mont.
226, 230-31, 641 P.2d 1057, 1060. While the District Court's
findings are not a model of completeness, we hold that they are
sufficient to provide a basis for the court's decision.
I11
Does the court's adoption of the mother's proposed findings,
conclusions, and order constitute reversible error?
The father cites this Court's opinion in Tomaskie v. Tomaskie
(1981), 191 Mont. 508, 625 P.2d 536, in which the Court disap-
proved the practice of adopting proposed findings and conclusions
submitted by a party. Since the Tomaskie opinion, this Court has
restated its position on district courts' use of proposed findings
and conclusions:
When the findings and conclusions are not
clearly erroneous and are supported by the
record, the judge has not abused his discre-
tion by ratifying the proposals of one party.
R.L.S. v. Barkhoff (1983), 207 Mont. 199, 206, 674 P.2d 1082, 1086.
We hold that the Barkhoff standard has been met.
Affirmed.
We concur: