No. 92-244 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

IN RE THE PATERNITY AND CUSTODY 

OF J.D., a minor child 

TRACY L. GRUBB, 

Petitioner and Respondent, 

-vsTARENA L. DAPP, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Beaverhead, 

The Honorable Frank M. Davis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Tarena L. Dapp, Great Falls, Montana, Pro Se 

For Respondent: 

Andrew P. Suenram; Jones, 

Dillon, 

Hoffman and Suenram, 

Montana 

Submitted on Briefs: June 17, 1993 

Decided: August 9, 1993 
Justice John Conway Harrison delivered the Opinion of the Court. 

Tarena L. Dapp (Tarena) appeals pro se from an order of the 

Fifth Judicial District Court, Beaverhead County, awarding sole 

custody of J.D., a minor child, to J.D.'s father, Tracy L. Grubb 

(Tracy). We affirm. 

J.D. was born to Tarena and Tracy on April 26, 1989. Tarena 

and Tracy were not then and never have been married, though they 

lived together for a few months in 1988. Both signed an 

acknowledgement of paternity naming Tracy as J.D.'s natural father. 

Tracy also signed J.D.'s birth certificate. For almost a year 

after J.D. was born, Tracy kept her during weekends and on week 

nights when Tarena was working. Both parties lived in Great Falls 

that year. Tarena was working part time as a poker dealer in a 

casino, while Tracy was a full time engineering technician for the 

Montana Department of Transportation. 

J.D. is Tarena's second child. Her oldest child, Christa, was 

approximately three years old when J.D. was born. Tracy took care 

of Christa while Tarena was working, before J.D. was born. After 

J.D.'s birth, Tracy always took Christa along when he kept J.D. He 

testified that he cared very much for Christa and that he and 

Tarena had tried to keep the two girls together. 

In March 1990, Tarena and Tracy entered a written agreement 

concerning J.D.' s custody and support. This agreement provided for 

joint custody, with Tarena as the residential parent, and 

visitation for Tracy on weekends and for two weeks in the summer. 

2 
Tracy was to pay Tarena $150 per month for child support and 

maintain medical and hospital insurance for Tarena. For several 

months thereafter, Tracy kept J.D. and Christa every weekend, 

Friday night until Monday morning. At the time of the trial in 

March 1992, Tracy was current on his child support obligation, 

except for a disputed half month's payment for February 1991. 

In July 1990, Tracy married Christine whom he had met in 

November 1989. Tracy and Christine moved to Fort Benton in August 

1990 with Christine's daughter, Alisha, then age six. At about the 

same time, Tarena moved to Dillon with J.D. and Christa. Tracy and 

Christine kept both girls for two weeks during the summer of 1990. 

Tarena became known to the Montana Department of Family 

Services (Family Services) in Dillon during Labor Day weekend, 

1990. Her babysitter's mother called Family Services because 

Tarena had not come back overnight and there was no food in the 

house. By the time Family Services responded to the call, however, 

Tarena had returned home. 

About six weeks later, on October 14, 1990, a friend or 

acquaintance of Tarena's called Family Services at 2:00 a.m. to 

report that the two children had been left alone in Tarena's house. 

A Family Services social worker and two police officers broke into 

the house, found the children sleeping in an upstairs bedroom, and 

removed them from the house. Tarena called Tracy the next day, and 

he and Christine went to Dillon to pick up J.D. Tracy testified 

that he took both girls, however, because Family Services 

"basically told us if we wanted our daughter we had to take 

3 
Christa." Concerned about the financial and legal consequences of 

keeping Christa, Tracy and Christine consulted a Fort Benton Family 

Services social worker, Diann Button, who later testified on 

Tracy's behalf. Button arranged for Christa to be sent back to 

Dillon and placed in foster care. 

After a Youth Court hearing before Judge Davis on November 5, 

1990, J.D. was placed in foster care in Dillon with Christa. The 

two children were returned to Tarena on December 14, 1990, on 

condition that she attend mental health counselling and parenting 

classes. 

Tracy filed a petition for determination of paternity and 

modification of custody on November 20, 1990, seeking primary 

physical custody of J.D. After Tracy requested a custody 

investigation, the parties stipulated to home studies conducted by 

Family Services. 

The parties also stipulated that Tarena would continue as 

primary physical custodian, pending a hearing on Tracy's petition, 

and that J-D. would visit Tracy for two weeks in September 1991 and 

two weeks in November 1991. Tarena and the two girls moved to 

Butte in October 1991. 

On December 11, 1991, Tarena gave birth to her third child, 

Jacob. Jacob's father, Jeff, was living in Dillon. At the hearing 

in March 1992, Tarena described her relationship with Jeff as 

"stable" and "happy" but stated that she did not intend to marry 

him. In her brief on appeal she reported that Jeff had formally 

acknowledged paternity on December 22, 1991, and in her affidavit 

4 
supporting her petition to file her appeal in forma oauperis, she 

stated that he was paying $175 a month as child support. 

Button visited Tracy, Christine, and Alisha three times in 

November 1991. She had seen J.D. with Tracy's family in October 

1990, during J.D.'s temporary placement with Tracy, and she 

testified that she saw Christine and J.D. together in November 

1991. In her home study report she described their home as a 

"modest, well kept two bedroom mobile home" in a Fort Benton 

trailer court owned by Christine's parents. 

Button testified that she was familiar with Christine's 

extended family and described them as "committed to [J.D.]" and 

looking forward to having her live with Tracy and Christine on a 

full time basis. She recommended that Tracy have custody of J.D. 

Dave Evans, a social worker with Family Services in Butte, 

visited Tarena's home three times in November and December 1991. 

He saw J.D. there only on the third visit. Evans reported that 

Tarena had moved to Butte to obtain Section 8 housing and that she 

was living in a "fairly older" two-bedroom house on the upper west 

side of Butte. When he visited, by appointment, the house was 

"very clean, well-maintained, had proper utilities, and was wellfurnished," and contained ample food and clothing for the children. 

According to Evans' home study report, Tarena was unemployed. 

She had not graduated from high school but was planning to complete 

a G.E.D. Her income as of December 1991 consisted of $300 a month 

child support from Christa's father, who lived in Seattle, and $150 

a month child support from Tracy. All but $16 of her monthly rent 

5 
was paid through Section 8, and she was receiving food stamps and 

Medicaid benefits. 

Evans included in his report a summary of records for 1989-90 

from Family Services in Great Falls. He characterized their 

contents as a "history of neglect," summarized as "[Tarena] would 

leave the children unsupervised, would not pick them up from the 

babysitter until the next day and also was involved with drinking. 

The older child was also physically cruel to the infant." 

Evans' third visit occurred on December 10, 1991, soon after 

J.D. had returned from a two-week visit with Tracy. He observed 

J.D. playing with Christa and commented that they "seem very close 

to one another, as stepsisters." Only one day earlier, however, 

Tarena had called his office to express concern about J.D.'s 

emotional state, and he had referred her to a licensed professional 

counsellor, Grainger Brown of Butte. 

Brown saw Tarena and J.D. for two one-hour visits in December 

1991. At Tarena's request, he wrote to her lawyer, saying that 

Tarena had described J.D. as "crying easily, being clingy and 

defiant/aggressive," and that these behaviors were "suggestive of 

anxiety created by separation" rather than by abuse or neglect. 

Brown recommended that J.D. visit her father more frequently and 

for shorter periods of time. Brown's letter was submitted in 

evidence at the trial, and he also testified on Tarena's behalf. 

Based on his observations of Tarena and her children in Butte, 

Evans recommended that custody of J.D. be awarded to Tarena, adding 

that Family Services "would provide temporary, ongoing services and 

6 
follow up intervention if necessary." 

On March 13, 1992, the District Court heard testimony by 

Tracy, Christine, Tarena, Button, Evans, Brown, Tarena's 

supervising social worker in Dillon, and a Dillon police officer. 

Tracy and Tarena both were represented by counsel. The court also 

took judicial notice of the Youth Court abuse and neglect 

proceeding before the same judge. On April 7, 1992, it filed its 

findings of fact, conclusions of law, and order, awarding exclusive 

custody of J.D. to Tracy. 

On appeal, Tarena raises no legal issues but alleges numerous 

errors in the District Court's findings of fact. Tracy presents 

several issues, of which only one is dispositive: whether 

substantial credible evidence supports the District Court's 

modification of a de facto custody arrangement. 

Tracy initiated this case by requesting a determination of 

paternity as well as a modification of custody, but the District 

Court properly addressed only the custody issue, as paternity is 

not in dispute. 

Our standard of review for a custody determination is that the 

district court's decision is presumed to be correct and will not be 

disturbed on appeal unless there is a mistake of law or a finding 

of fact not supported by substantial credible evidence that would 

amount to a clear abuse of discretion. Matter of S.P. (1990), 241 

Mont. 190, 194, 786 P.2d 642, 644; In re Marriage of Otto (1990), 

245 Mont. 271, 275, 800 P.2d 706, 708. 

Section 40-4-224(3), MCA, provides that an order for joint 

7 
custody may be modified pursuant to § 40-4-219, MCA, to terminate 

the joint custody. If the proposed modification merely changes 

living arrangements within a joint custody situation, it need not 

be justified by the relatively stringent criteria of § 40-4-219 but 

instead may be justified by a review of the best interest of the 

child under 5 40-4-212, MCA. In re Marriage of Ferguson (1990), 

246 Mont. 344, 347, 805 P.2d 1334, 1336. 

Here, no order for joint custody had ever been entered. The 

District Court appropriately treated the parties' agreement as a 

"de facto custody arrangement," which may be modified, pursuant to 

§ 40-4-219(2), MCA, "in accordance with the factors set forth in 

40-4-212." In effect, then, the District Court's order is the 

original custody decree in this case, and the applicable statute is 

§ 40-4-224 (1) , MCA, which provides that joint custody is presumed 

to be in the best interest of a minor child, "unless the court 

finds, under the factors set forth in 40-4-212, that joint custody 

is not in the best interest of the minor child." 

The District Court stated in its findings of fact and 

conclusions of law that it had considered the criteria set forth in 

§ 40-4-212, MCA, and "finds for Tracy and against Tarena on each of 

the relevant factors itemized." "Ordinarily, 'I Judge Davis wrote, 

he is "partial to the old presumption that a child of tender years 

belongs in the custody of the mother." He continued: 

Unfortunately in this case that presumption if it were 

still applicable (which it isn't) would be overcome by 

Tarena's past life style and indeed her present 

philosophy in regard to the family concept. She 

discounts . . . or at least downplays the importance of 

a father's role in the family relationship. This 

8 
philosophy is, in the court's opinion, wrong. 90% of the 

youths who appear in Youth Court are the product of this 

type of philosophy, i.e., single parents with 

insufficient financial resources and little or no 

fatherly involvement. 

Tarena interprets these comments, which unfortunately are 

consistent with the judge's frequent interjections from the bench 

during the trial, as evidence that Judge Davis discriminated 

against her based on her age, beliefs and lifestyle, and did not 

take into consideration the facts presented to the court. Her 

concern about the basis for the District Court's decision is 

understandable in view of a number of inappropriate remarks in 

Judge Davis' findings of fact. For example, he stated that Tarena 

has "an alarming and tragic history of family instability. At age 

three she became the victim of a broken home. In her early years 

she resided in various places with her natural mother, half sisters 

and brothers, and multiple stepfathers." 

In fact, the Family Services home study report prepared by 

Evans states that Tarena's mother and stepfather were divorced when 

Tarena was five, not three; that she had only the one stepfather; 

and that she is still in contact with her natural father even 

though he and her mother were never married. No evidence of 

"alarming" or "tragic" events or circumstances appears anywhere in 

the record. 

Judge Davis assigned considerable weight to the fact that 

Tarena's supervising social worker in Dillon declined, in response 

to his direct question, to give an opinion as to whether continued 

custody with Tarena was in J.D.'s best interest. She said "It's a 

9 
hard question to answer because I do think Tarena has tried." 

Earlier in her testimony, however, she told the court that Tarena 

had "very much improved" in her parenting abilities, and that she 

felt comfortable leaving the children in Tarena's care. In his 

findings of fact, Judge Davis rendered this statement as "She 

reportedly made some improvement in her parenting skills" and 

continued, "While her parenting skills may have improved, her 

morals did not. She again became pregnant. . . . The putative 

father is reportedly out of the state." 

These latter comments contradict Tarena's testimony, in which 

she stated that the new baby's father was still living in Dillon 

and that her relationship with him was stable and happy. 

Apart from these inappropriate observations, however, we 

conclude that the District Court's decision was based on 

substantial credible evidence, and that the court did not abuse its 

discretion in awarding sole custody to Tracy. We require only that 

the court express "the essential and determining facts upon which 

its conclusions rest." In re Marriage of Ulland (1991), 251 Mont. 

160, 167, 823 P.2d 864, 869. Judge Davis met this requirement when 

he wrote, in a concluding comment, that: 

The court is being asked to place the child with a 22 

year old single mother with a sad record of abuse and 

neglect, limited resources and job skills, two additional 

children to care for and support, and little or no 

prospects that the living and parenting situation will 

improve. . . . Comparing this bleak prospect with the 

stable environment of the father in Fort Benton leaves 

the court with no alternative. 

Even if Judge Davis did exaggerate the "sad record of abuse 

and neglect," the record demonstrates that Tarena does have very 

10 
limited resources and job skills: that she depends for most of her 

income on child support from two men other than Tracy, one of whom 

lives in Seattle: and that she did not complete high school or any 

other program that would qualify her for employment at a level 

adequate to support her without the public assistance she now 

receives in the form of food stamps and a housing subsidy. 

Tracy, on the other hand, has a long-term, full time job 

paying approximately $384 a week at the time of the hearing. His 

wife was earning additional income as a babysitter, which meant 

that she was available to serve as a full time caretaker for J.D. 

The record contains ample evidence that Tracy and Christine possess 

adequate, even superior parenting skills. Even Tarena testified 

that Tracy is an "excellent father," while conflicting testimony 

was offered concerning Tarena's parenting skills. 

It is the function of the district court to resolve conflicts 

in testimony and evidence, and to decide how much weight should be 

assigned to a given witness I testimony or to a particular piece of 

evidence. Ulland, 823 P.2d at 870. We will not substitute our 

judgment for that of the district court unless it has clearly 

abused its discretion. Otto, 800 P.2d at 708: Ulland, 823 P.2d at 

870. Erroneous findings of fact that are not necessary to support 

the trial court's judgment are not grounds for reversal. Ferouson, 

805 P.2d at 1337. 

Although the court displayed a deplorable insensitivity to 

issues of gender bias and alternative lifestyles, substantial 

credible evidence does support its award of exclusive custody of 

11 
J.D. to her father, based on J.D.'s best interest. 

AFFIRMED. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1988 

Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of the Supreme Court and by a report of its result 

to Montana Law Week, State Reporter and West Publishing Company. 

We concur: 

Chief Justice 

12 
Chief Justice J. A. Turnage specially concurring: 

I concur in the result reached by the Court in this Opinion. 

However, I do not agree with all of the statements made in the 

opinion attributed to comments of the District Judge. Such 

statements are not necessary to a resolution of this case. 

13