No. 90-500
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
IN RE THE MARRIAGE OF
GREGORY SCOTT MERRIMAN,
Petitioner and Appellant,
LORRI KAY MERRIMAN,
Respondent and Respondent.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Brett C. Asselstine, Great Falls, Montana
For Respondent:
Marcia Birkenbuel, Great Falls, Montana
Submitted on briefs: January 31, 1991
MAR 1 9 1991
Decided: March 19, 1991
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
Petitioner, Gregory Scott Merriman, initiated dissolution
proceedings against respondent, Lorri Kay Merriman, in District
Court for the Eighth Judicial District, Cascade County. The
District Court awarded the parties joint custody of the two minor
children of the marriage, with primary physical custody awarded to
Mrs. Merriman. Mr. Merriman appeals the custody determination.
We affirm.
The issue is did the District Court abuse its discretion in
making the child custody determination.
The parties were married in 1983. In 1987 Mr. Merriman was
injured on his job and began receiving Workers Compensation
benefits. At about the same time Mrs. Merriman joined the Army
Reserves. In 1989 Mrs. Merriman was ordered to Korea for a year
for a tour of duty that would not allow her to take her family with
her. Mrs. Merriman was served with the Summons and Petition for
Dissolution four days before she was to report overseas. The
District Court enjoined further proceedings until Mrs. Merriman
returned from Korea.
Mr. Merriman cites the following factors as proof that the
District Court abused its discretion in awarding primary physical
custody to Mrs. Merriman. (1) Mr. Merriman asserts that he should
have been awarded primary custody because he was a good primary
caretaker while Mrs. Merriman was away on duty overseas. (2) The
daughter, age 5, testified that she wanted to live with her father;
and the son, age 7, testified that he thinks he wants to live with
his mother. (3) Mrs. Merriman had been sexually abused by her
father as a child and yet she allows her father to see the
children. (4) The District Court did not appoint an attorney to
represent the children pursuant to 5 40-4-205, MCA, and did not
order a custody investigation pursuant to 40-4-215, MCA.
The standard of review in a custody determination is that this
Court will not disturb a district court's findings unless they a r e
clearly erroneous. The district court's decision will be upheld
unless a clear abuse of discretion is shown. Rule 52(a),
M.R.Civ.P.; Marriage of Susen (Mont. 1990), 788 P.2d 332, 334, 47
St.Rep. 528, 531. Mr. Merriman has not presented persuasive
evidence of a clear abuse of discretion.
Section 40-4-212, MCA, lists the relevant factors that a
district court must consider in making a child custody
determination. The court is not required to make a specific
finding on each of the factors but need only express the 'Iessential
and determining" facts upon which it rests its conclusions. Lorenz
v. Lorenz (Mont. 1990), 788 P.2d 328, 332, 47 St.Rep. 546, 550.
The District Court based its custody determination on the
following:
Findings of Fact 15 and 16 state:
15. The minor children have a close and loving
relationship with both of their parents. Both parents
have acted as primary caretakers for the children and
both have the ability to care for the children. However,
the children have had a much more difficult time
adjusting to separation from their mother than the
separation from their father. The Respondent has a
secure employment status and is financially able to
provide for her support and the support of the children.
The Petitioner's employment situation is unclear at best,
and although his income from worker's compensation is
barely sufficient to provide for his own needs, he does
not seem at all anxious to find employment.
16. It is in the best interests of the children if the
parents share joint legal custody, with the Respondent
to be designated as the primary custodial parent, and the
children to live with her during the school year. It is
in the best interests of the children if the Petitioner
be granted the right to have the physical custody of the
children each summer from one week after school gets out
until one week before school starts, and on alternating
holidays.
Conclusion of Law 2 states:
2. That it is in the best interest of the minor children
if their custody were awarded to the parties jointly,
with the Respondent as primary custodial parent, and the
children to reside with her, and the Petitioner to have
physical custody of the children at the times designated
in Finding number 16 above. The Court makes this
conclusion after consideration of all of the factors set
out in Sections 40-4-212, 222, and 223, MCA.
Mr. Merriman asserts that he should have been awarded primary
custody because he was a good primary caretaker while Mrs. Merriman
was away on duty overseas. The evidence presented showed that both
parents had loving relationships with the children and would be
good caretakers. When conflicting evidence has been presented,
this Court will not overturn the District Court's findings unless
they are clearly erroneous. Rule 52 (a), M.R. Civ.P. ; Susen, 788
P.2d at 334. The District Court did not err in failing to give Mr.
Merriman primary physical custody because he was a good primary
care provider while Mrs. Merriman was away on duty overseas.
II
Mr. Merriman claims that the failure of the Court to make a
specific finding as to the wishes of the children and why those
wishes were not followed necessitates a reversal of the custody
order. We disagree.
The Merriman children were interviewed by the trial judge and
their wishes were ascertained. The trial judge is singularly
equipped to assess the ability of a young child to formulate and
articulate his/her custody wishes and weigh that preference in
light of the other evidence and factors enumerated in 5 40-4-212,
MCA. Marriage of Murphy (1983), 205 Mont. 162, 165, 666 P.2d 755,
757. As an appellate court we cannot reassess the weight of a
particular witness's testimony. The District Court does not commit
error by assigning wlittlet'weight to the wishes of a young child.
Murphy, 205 at 165, 666 P.2d at 757.
The children in this case were 5 and 7 years of age. A review
of their testimony in light of other testimony supports the
District Court's conclusion that the children's expressed wishes
were not determinative of their best interests. A review of the
findings of fact and conclusions of law as a whole reveals that the
District Court considered the desires of the children along with
all of the other factors of 5 40-4-212, MCA. See Marriage of
Kuzara (1986), 224 Mont. 124, 128-29, 728 P.2d 786, 788-89. The
District Court did not err in failing to follow the wishes of the
children in its custody determination.
I11
Mr. Merriman asserts that the fact that Mrs. Merriman was
sexually abused by her father until she was 19 years of age
indicates sexual promiscuity and immoral life style that should
have been considered by the ~istrictCourt. The fact that Mrs.
Merriman was a child victim of sexual abuse has no relevance under
5 40-4-212, MCA, unless there has been evidence presented that the
abuse affected her mental or physical health to such an extent that
her ability to act as a primary caretaker is diminished. No such
evidence was presented. Mr. Merriman also cites evidence that Mrs.
Merriman allows her father to see the children. There was also
evidence presented that Mrs. Merriman had reported the abuse by her
father, her father has been prosecuted, and that she does not allow
visitation by her father unless she is present. The District Court
did not err in failing to give Mr. Merriman primary physical
custody because Mrs. Merriman was a child victim of sexual abuse.
IV
Mr. Merriman claims reversible error because the District
Court failed to appoint an attorney for the children pursuant to
5 40-4-205, MCA, and order a custodial investigation pursuant to
5 40-4-215, MCA.
Section 40-4-205, MCA, provides that the Court mav appoint an
attorney to represent the interests of minor children. Likewise,
a custody investigation pursuant to 5 40-4-215, MCA, is not
mandatory. Mr. Merriman did not request the District Court to
appoint an attorney for the children and did not request an
investigation. This Court will not consider for the first time on
appeal an issue which was not raised in the District Court. Easton
v. Easton (1978), 175 Mont. 416, 422, 574 P.2d 989, 993.
We Concur: --A