No. 91-292 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

IN RE THE MARRIAGE OF 

MARCUS ULLAND, 

Petitioner and Respondent, 

and 

JAN M. (ULLAND) GREGSON, 

Respondent and Appellant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Dorothy McCarter Judge, presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John L. Hollow, Helena, Montana 

For Respondent: 

David N. Hull, Helena, Montana 

Filed: 

Submitted on Briefs: September 24, 1991 

Decided: December 30, 1991 
Justice John Conway Harrison delivered the Opinion of the Court. 

Jan (Ulland) Gregson appeals the order of the First Judicial 

District Court, Lewis and Clark County, Montana, which modifies the 

custody provision of a dissolution decree awarding the parties 

joint custody of their daughter with physical custody retained by 

the mother. While retaining the designation of joint custody, the 

District Court’s modification transferred physical custody of the 

child from the mother, Jan, to the father, Marcus. We affirm. 

The parties present the following issues: 

1. Did the District Court err in modifying the primary 

physical custody of the minor child, Rian? 

2. Did the District Court err in failing to follow the 

child’s wishes concerning physical custody and primary residence? 

3. Did the District Court err in failing to appoint 

independent counsel to represent the child’s interests? 

To appreciate the circumstances of this appeal, an overview of 

the litigation involving this marriage dissolution is appropriate 

at this point. Marcus and Jan Ulland were married on May 21, 1977. 

They had one child, Rian Marie, born May 8, 1978. The couple 

separated in September of 1979; the First Judicial District Court 

entered a decree of dissolution on May 14, 1980. By stipulation of 

the parties adopted in full by the court, the decree awarded the 

parties joint custody of Rian naming Jan as the physical custodian 

and awarding Marcus reasonable visitation. Further, the parties 

stipulated that if either parent decided to permanently leave 

Montana, the leaving party would give the other party fifteen days 

2 
prior written notice. In the event Jan wished to move from Montana 

with Rian, the parties agreed to set up reasonable visitation to 

allow Marcus an opportunity to participate in Rian’s upbringing. 

On May 14, 1980, the day the District Court entered the 

decree, Jan gave Marcus the requisite fifteen days written notice 

that she and Rian were leaving Montana. Approximately three weeks 

later, Jan and Rian left Montana and Jan remarried. 

Upon receiving Jan’s notice, Marcus petitioned the court to 

modify the visitation provisions in the original decree. The 

District Court concluded that Jan’s intention to move from Montana 

was a change in circumstances justifying alteration of the original 

decree. Accordingly, the court set forth a specific visitation 

schedule including unlimited reasonable visitation whenever Marcus 

was in the geographic area of the child. 

On August 23, 1985, Marcus petitioned the court a second time 

to modify visitation claiming a change in circumstances. Marcus 

based this petition on Jan’s constant moving with Rian to different 

locations without keeping Marcus apprised of his daughter’s 

whereabouts and phone number, thus making it difficult for him to 

keep in contact with Rian. When Marcus received no response to his 

August 23, 1985, petition, he filed a third petition to modify his 

visitation. 

The parties entered into a stipulation, filed with the court 

November 6, 1985, resolving Marcus’ outstanding motions. They 

agreed that a change in circumstances supported a change in 

visitation. The stipulation provided a specific visitation 

schedule and that the minor child would be known by her legal name 

3 
(Ulland) and she would be enrolled in school under her legal name. 

The District Court gave this stipulation full force and effect. 

On February 17, 1989, Marcus filed his fourth motion to modify 

the custody provisions. Marcus asked the court to change primary 

physical custody from Jan to him. Alternatively, Marcus asked the 

court to order physical custody to alternate yearly between Marcus 

and Jan or to set specific dates for visitation. Marcus based this 

motion on his claim of Jan's continual interference with his 

visitation rights. 

The District Court held a hearing on May 18, 1989, concerning 

Marcus' February 17, 1989, motion to modify custody. Both parties 

were represented by counsel. The court verbally admonished Jan for 

her past interference with Marcus' visitation. The court rejected 

a change in primary physical custody at that time and awarded Jan 

another opportunity to comply with court orders and prior 

stipulations while retaining primary physical custody of Rian. The 

court ordered Jan to refrain from interfering and to encourage Rian 

to develop a relationship with Marcus. As a result of this 

hearing, the court entered an interim order setting forth specific 

dates that Rian would visit Marcus, including four weeks during the 

summer in 1989 and the 1989 Christmas holiday. The court awarded 

Marcus physical custody of Rian for Christmas break and spring 

break on an alternating yearly basis beginning with Christmas of 

1989. Additionally, the court awarded Marcus physical custody of 

Rian for six weeks during the summers, beginning with the summer of 

1990. The court stressed the importance of Jan's compliance with 

this order. The court warned her that if she failed to comply it 

4 
would hold her in contempt and punish her to emphasize the severity 

of her continual non-compliance. 

Pursuant to the court's interim order, Rian spent four weeks 

in the summer of 1989 with Marcus and his new wife. During this 

visitation, Jan frequently contacted Rian via telephone calls and 

letters. Jan and her husband refused to address letters to Rian by 

her legal name, violating the court order and the parties' November 

6, 1985, stipulation which provided that Rian would be known by her 

legal name. 

Following the May 1989 hearing, the parties entered into 

another stipulation attempting to resolve the parties' difficulties 

and vitiating the need for the court to issue a final order. This 

stipulation, adopting the court's requirements concerning 

visitation periods, was signed by the parties on December 5, 1989, 

and filed with the court on December 12, 1989. Additionally, the 

stipulation required that Marcus give Jan thirty days notice when 

he intended to exercise his visitation rights. 

Prior to filing this stipulation, Marcus notified Jan that he 

intended to exercise his visitation rights for Rian's Christmas 

break. Jan refused to allow Marcus to exercise his Christmas 

visitation rights, as provided by the court and the December 12, 

1989 stipulation, because he failed to give her thirty days notice. 

Since the court awarded Marcus visitation for Christmas of 1989, 

but not 1990, and Jan refused visitation in 1989, Marcus tried to 

arrange his visitation to allow Rian to remain with Jan for 

Christmas of 1989, but spend Christmas of 1990 with Marcus in 

Washington. This agreement was reduced to writing but unexecuted 

5 
by Jan. It was not until January 31, 1990, that Jan's attorney 

notified Marcus' attorney that Jan refused to trade Christmas of 

1989 for Christmas of 1990. Needless to say, Marcus lost his court 

ordered Christmas of 1989 visitation. 

Pursuant to the December 12, 1989, stipulation, Marcus 

notified Jan of his intent to exercise his visitation rights for 

spring break of 1990. He sent advance purchased airline tickets to 

fly Rian from Helena to Washington. Jan refused to allow Rian to 

fly alone. Consequently, Marcus and Jan each drove to Spokane to 

exchange Rian, thus reducing Rian's visit with Marcus by two of 

seven days. 

In May of 1990, Marcus notified Jan of his intent to exercise 

his six week summer visitation. Jan notified Marcus that she was 

filing a petition to modify visitation because Rian did not want to 

spend the summer with Marcus. A hearing was scheduled in May but 

was vacated until August. After the hearing was delayed, Jan 

withdrew Rian from school one week early and moved to California 

for the summer without notifying Marcus of the change of address, 

violating the parties' December 12, 1989, stipulation. 

Marcus responded to Jan's petition by requesting a change in 

physical custody. After hearings conducted on both motions on 

August 14, 1990, and September 20, 1990, the District Court granted 

Marcus' motion, immediately transferring physical custody of Rian 

from Jan to Marcus. The District Court denied Jan's motion to 

reconsider. Jan appeals. 

As noted from the record and as set forth above, this case has 

a long and unsettling history. From the day the court entered the 

6 
final decree of dissolution, Marcus has had to continually fight 

for contact with Rian. The record is replete with numerous 

instances when Marcus attempted to exercise his visitation rights 

only to be thwarted by Jan's actions. 

While Jan retained physical custody of Rian, Marcus traveled 

to and from Jan's home to visit Rian. On numerous occasions, 

Marcus notified Jan that he would be in the area to visit Rian. 

Jan would not object to visitation. When he arrived, he was either 

greeted with resistance or he was not greeted at all. Initially, 

either Jan and Rian would not be home or Jan would resist 

visitation. Ultimately, when Marcus located Rian, Jan interfered 

with visitation by not allowing it or restricting it. 

As noted above, in addition to having reasonable visitation 

when Marcus was in the geographic area, the court awarded Marcus 

visitation for extended periods of time during certain holidays and 

the summer. To obtain physical custody of Rian for these extended 

visits required extensive travel. Since Jan refused to allow Rian 

to fly alone, alternate transportation had to be arranged. 

The parties have been before the district court on at least 

five separate occasions regarding visitation and physical custody 

of Rian. Each time, Marcus maintained that Jan interfered in his 

visitation with Rian thereby precluding development of a meaningful 

father/dauqhter relationship. Marcus acknowledges that Rian was 

unwilling to spend time with him, attributing Rian's reluctance to 

Jan's constant interference. Each time the parties were before the 

court, the court attempted to structure visitation to facilitate a 

relationship between Marcus and Rian. 

7 
I. 

Did the District Court err in modifying the primary physical 

custody of the minor child, Rian? 

Marcus and Jan originally stipulated to and were awarded joint 

custody of Rian. Joint custody is presumed to be in the best 

interest of the child, 5 40-4-224 (1) , MCA, and is awarded to assure 

frequent and continual contact of the minor child with both 

parents. In re Marriage of Bergner (1986), 222 Mont. 305, 307, 722 

P.2d 1141, 1143. Physical custody should be arranged as equally as 

practical between the parents to comply with the express purpose of 

an award of joint custody, with the child's best interest as the 

primary consideration. Section 40-4-224(2), MCA. 

Modification of physical custody within a joint custody 

arrangement is proper when the change is in the best interest of 

the child. In re Marriage of Mitchell (Mont. 1991), 809 P.2d 582, 

584, 48 St.Rep. 353, 354; citing In re Marriage of Keil (1990), 246 

Mont. 344, 347, 805 P.2d 1334, 1336. A request to change the 

physical custodian of the child requires an application of 9 40-4- 

224(2), MCA, which states in part: 

"[Jloint custody" means an order awarding custody of the 

minor child to both parents and providing that the 

physical custody and residency of the child shall be 

allotted between the parents in such a way as to assure 

the child frequent and continuing contact with both 

parents. The allotment of time between the parents must 

be as equal as possible: however, 

(a) each case shall be determined according to its 

own practicalities, with the best interest of the child 

as the primary consideration: . . . . 

The District Court must consider the factors set forth in 

§ 40-4-212, MCA, when determining whether the modification of 

8 
physical custody is in the child's best interest. In re Marriage 

of Stephenson (1988), 230 Mont. 439, 445, 750 P.2d 1073, 1077. The 

court is under no obligation to consider the more stringent factors 

set forth in 5 40-4-219, MCA, when faced with an action for 

modification of physical custody rather than an action for 

termination of joint custody. Marriaqe of Keil, 246 Mont. at 347, 

805 P.2d at 1336. 

In determining the child's best interest, the district court 

must consider the following relevant factors: 

(a) the wishes of the child's parent or parents as 

(b) the wishes of the child as to his custodian: 

(c) the interaction and interrelationship of the 

child with his parent or parents, his siblings, and any 

other person who may significantly affect the child's 

best interest; 

to his custody: 

(d) the child's adjustment to his home, school, and 

community: 

(e) the mental and physical health of all 

(f) physical abuse or threat of physical abuse by 

individuals involved: 

one parent against the other parent or the child; and 

chemical abuse on the part of either parent. 

(9) chemical dependency, as defined in 53-24-103, or 

Section 40-4-212, MCA. 

Jan contends that the District Court erred because it failed 

to make specific findings concerning all of the best interest 

factors listed in § 40-4-212, MCA. We disagree. All that the 

statute requires is that the court consider the factors listed. 

The court is not required to make specific findings concerning each 

element of § 40-4-212, MCA, but must "express the 'essential and 

9 
determining' facts upon which its conclusions rest." Marriaae of 

Mitchell, 809 P.2d at 584-85, 48 St.Rep. at 354; citing Cameron v. 

Cameron (1982), 197 Mont. 226, 230-31, 641 P.2d 1057, 1060. 

Examination of the record before us reveals that the District 

Court considered the relevant factors. First, it is undisputed 

that the court was well aware that both parents desired physical 

custody of Rian. Second, after interviewing Rian in chambers to 

determine her wishes concerning physical custody, the court 

ascertained and entered findings pertaining to Rian's unwillingness 

to spend time with Marcus. Third, the court made specific findings 

concerning the interaction and interrelationship between Rian and 

the Gregsons and Rian and the Ullands. In its Findings of Fact, 

Conclusions of Law and Order, the court noted: 

31. Jan, Glenn Gregson, and Rian have a close, loving 

family relationship. . . . 32. Marcus and his wife, Dawn Ulland, have a loving 

relationship with Rian, and they get along well together. 

Fourth, the court considered Rian's adjustment to her new home with 

Marcus finding that Rian would show resistance to the change but 

concluded that Rian's best interests would be fostered if Rian and 

Marcus obtained professional counseling to help Rian adjust. 

Neither party presented evidence and the District Court did 

not make any findings concerning the last three factors listed in 

5 40-4-212, MCA. As such, these factors are not relevant and the 

District Court did not err in failing to consider them. 

This Court will not overturn the district court's findings 

unless they are clearly erroneous. Rule 52(a), M.R.Civ.P. In 

custody modification cases, it is particularly important for this 

10 
Court to defer to the district court which personally evaluated the 

testimony. In re Marriage of Anderson (1989), 240 Mont. 316, 320, 

783 P.2d 1372, 1374-1375. The testimony presented by the parties 

is diametrically opposed. However, resolving conflicts in 

testimony is the trier of fact’s function. Marriase of Mitchell, 

809 P.2d at 584, 48 St.Rep. at 354. The District Court listened to 

the testimony, reviewed the exhibits, and was persuaded by the 

evidence presented on behalf of Marcus. We will not substitute our 

judgment for that of the district court unless the appellant shows 

an abuse of the district court’s discretion. Marriase of Mitchell, 

809 P.2d at 584, 48 St.Rep. at 354. 

The District Court’s findings reveal that the court based its 

decision on Rian’s best interest. The findings support the court’s 

consideration of Rian’s best interest concluding that it was in 

Rian’s best interest to change physical custody to enable Rian and 

Marcus to form a meaningful relationship. Accordingly, we hold 

that the District Court did not err in modifying custody by 

transferring physical custody of Rian from Jan to Marcus. 

11. 

Did the District Court err in failing to follow the child’s 

wishes as to her physical custody and primary residence? 

As previously stated, the court was statutorily mandated to 

consider Rian’s wishes when determining her best interest. Section 

40-4-212, MCA. However, the court’s decision after considering the 

child‘s wishes is within the court’s discretion. 

Considering the court‘s conversation with Rian, it is clear 

that the court did not err in failing to follow her wishes. The 

11 
trial judge is singularly equipped to assess a young child's 

ability to formulate and articulate her custody wishes and weigh 

that preference in light of the other evidence and factors 

enumerated in 5 40-4-212, MCA. In re Marriage of Merriman (Mont. 

1991), 807 P.2d 1351, 1354, 48 St.Rep. 275, 276. A child's 

expressed wishes are not determinative of best interest. Marriaae 

of Merriman, 807 P.2d at 1354, 48 St.Rep. at 276. 

The District Court and all parties agree that Rian would 

rather live with Jan: Rian clearly expressed to the court her 

strong desire to live with Marcus. In spite of Rian's wishes 

to remain with Jan, the District Court concluded that Rian's best 

interests required the opportunity to have meaningful relationships 

with both Jan and Marcus. Rian has been given the opportunity to 

develop such a relationship with Jan. She has been deprived of the 

opportunity to develop such a relationship with Marcus due to Jan's 

continued interference and Jan's fostering and nurturing of the 

father/daughter relationship between Rian and her step-father, 

which has frustrated any chance for a relationship between Rian and 

Marcus. Due to Rian's age, the court found that this would be the 

last opportunity for Rian and Marcus to develop a strong and 

lasting father/daughter relationship. Further, if Rian remained 

with Jan, her contact with Marcus would only diminish and a healthy 

father/daughter relationship would never develop. 

A review of the record reveals that the District Court 

considered Rian's wishes along with the other best interest factors 

of 5 40-4-212, MCA, and weighed them accordingly. We hold that the 

District Court did not err in modifying physical custody of Rian 

12 
despite Rian's expressed preference to remain with Jan. 

111. 

Did the District Court err in failing to appoint independent 

counsel to represent Rian's interests? 

Section 40-4-205, MCA, states "[tlhe court may appoint an 

attorney to represent the interests of a minor dependent child with 

respect to his support, custody, and visitation. . . .'I (Emphasis 

added.) Neither party moved the District Court for independent 

counsel to represent Rian's interests at the August 14, 1990, or 

the September 20, 1990, hearings. This Court will not consider an 

issue for the first time on appeal which the parties failed to 

raise at the district court. Marriaqe of Merriman, 807 P.2d at 

1354, 48 St.Rep. at 276. 

Based on the foregoing 

the District Court. 

We concur: 

Chief Justice 

discussion, we affirm the decision of 

13 
Justice Terry N. Trieweiler dissenting. 

I dissent from the opinion of the majority. 

The majority opinion is based almost exclusively on the 

testimony of Marcus Ulland (the father) and representations made in 

affidavits filed by his attorney. 

There was other evidence in the record from the testimony of 

Jan Gregson (the mother), several counselors, and Rian Ulland 

herself which provide a different explanation for the deterioration 

of relations among these three people. 

Rian Ulland has lived with her mother for the first 12 years 

of her life. She was a part of the family unit formed by her 

mother and her stepfather for ten years immediately preceding the 

District Court's decision which transferred custody to her father. 

Rian had spent most of her formative years in Helena, and 

enrolled in the Helena school system in kindergarten. By all 

accounts, she had an active, successful, and happy life. She was 

involved in her church youth group, taught swimming lessons at the 

YMCA, had a role in the Middle School play immediately before the 

District Court's decision, and had planned to be in the play for 

the next semester. At the time of the District Court hearing, she 

was about to try out for the swim team; she was a member of the 

seventh grade basketball team, and she had successfully tried out 

for a singing group at the Middle School known as "Celebrations." 

In her interview with the District Judge, Rian explained that 

it was she who requested that her mother ask the court to modify 

the visitation provisions in her parents' divorce decree so that 

14 
she would not have to spend so much time with her father. She 

pointed out that she loved her mother and stepfather very much and 

enjoyed living and spending time with them, but did not feel that 

her father had ever made much of an effort to get to know her. She 

stated that her favorite activities, other than her athletic 

interests in softball, swimming, and basketball, were spending time 

with her friends, family, and maternal grandparents. 

By all accounts, the family unit formed by the mother, 

stepfather, and Rian was an extremely close, loving, and nurturing 

family. 

James Farrell is a counselor who specializes in working with 

children and evaluating dysfunctional families. He evaluated Rian 

prior to the most recent hearings held in the District Court. From 

that evaluation he concluded the she was pleasant, had an 

appropriate demeanor, was brighter than average, and assertive. He 

reported that her living situation with her mother was a positive 

one, and found no evidence that her mother had interfered with her 

ability to form a positive relationship with her father. 

The only counselors, in addition to James Farrell, who 

provided opinions in this case were Jane S. Fisher, Ph.D., who 

evaluated Rian subsequent to the court's decree, and Marcia K. 

Wall, Rian's counselor at Helena Middle School. 

Ms. Fisher concluded that Rian had an extremely close and 

bonded relationship with her mother, butthat she was uncomfortable 

with and did not trust her father. She concluded that the 

responsibility for Rian's lack of a relationship with her father 

15 
was his. Following the District Court's decision, Rian was unable 

to sleep, unable to eat, confused, frightened, and depressed. 

Ms. Wall described Rian as a wonderful girl who was mature 

beyond her years and academically very successful. During the 

semester prior to the District Court's decision transferring 

custody to her father, she had nearly an "A" average in school. It 

was Ms. Wall's opinion that it was in Rian's best interest that she 

be left in the custody of her mother and stepfather. 

There was substantial evidence that Rian's estrangement from 

her father was not primarily related to the recent disputes between 

her mother and father regarding exercise of her father's visitation 

rights. 

There was evidence that during the first seven years of her 

life, Rian's father made very little effort to communicate with 

her, and that even in the most recent years prior to the District 

Court's hearing, his efforts were sporadic and inconsistent. There 

was substantial evidence that her father's unpredictable efforts to 

spend time with her were a disruption to her very active life. 

Many of the conflicts which arose between her mother and father 

over visitation resulted from efforts by her mother to protect her 

life from repeated disruption. 

I provide this background information to point out that there 

was more than one version of the events which led to the District 

Court hearing to modify custody. However, even if one accepts the 

version of events reported by the father, as did the District Court 

and the majority, it appears to me that the result of the District 

16 
Court's decision is simply to punish Rian's mother for her lack of 

cooperation, rather than provide for Rian's best interest. 

In Fossv. Lever (1976), 170 Mont. 97, 550 P.2d 1309, we stated 

that: 

[Slection 48-339, R.C.M. 1947 [now 5 40-4-219, MCA], . . . clearly provides district courts may not exercise 

discretionary power to modify a prior custody decree 

unless two basic elements are shown to exist: 1) new 

facts or facts unknown to the court at the time the 

initial decree was entered demonstrate that a change has 

occurred in the circumstances of the child or those of 

his custodian; and 2) this change is sufficient to 

warrant a modification in order to promote the particular 

child's best interests. This basic standard was applied 

in this jurisdiction long before the enactment of the new 

law, and a determination of which law would be applicable 

under the facts presented would have no bearing on the 

result. Jewett v. Jewett, 73 Mont. 591, 237 P. 702; Trudgen v. 

Trudgen, 135 Mont. 174, 329 P.2d 225; Simon v. Simon, 154 

Mont. 193, 461 P.2d 851. 

.... 

It is elemental that the phrase "change in 

circumstances" is a term of art which must not be 

considered in a vacuum. No change in circumstances, 

regardless of its substantiality, is legally sufficient 

to support a modification order altering custody unless 

the best interests and general welfare of the child will 

be promoted. Altmaier v. Altmaier, 135 Mont. 404, 340 P.2d 

829; Haynes v. Fillizer, 106 Mont. 59, 75 P.2d 802. In all 

cases, the lodestar of the district court in exercise of 

its discretion is the welfare and best interests of the 

child, and not the parent. Grantv. Grant, 166 Mont. 229, 

531 P.2d 1007, 32 St.Rep. 191; In re Adoption of Biery, 164 

Mont. 353, 522 P.2d 1377; Turkv. Turk, 164 Mont. 35, 518 

P.2d 804. 

Foss, 550 P.2d at 1311. 

While the District Court's findings of fact make frequent 

reference to the father's lack of relationship with his daughter 

and the mother's role in adversely affecting that relationship, 

17 
there is absolutely no explanation of how the daughter's best 

interest will be served by uprooting her from the only family she 

has ever known and taking her from the primary community in which 

she has lived and where she has prospered to send her to live with 

a family that she dislikes in unfamiliar surroundings over 500 

miles away. 

Furthermore, the District Court made practically no findings 

regarding those statutory factors which must be considered in 

deciding what is in a child's best interest. Section 40-4-212, 

MCA, provides in relevant part that: 

(1) The court shall determine custody in accordance with 

the best interest of the child. The court shall consider 

all relevant factors, including but not limited to: 

(a) the wishes of the child's parent or parents as 

to his custody; 

(b) the wishes of the child as to his custodian; 

(c) the interaction and interrelationship of the 

child with his parent or parents, his siblings, and any 

other person who may significantly affect the child's 

best interest; 

(d) the child's adjustment to his home, school, and 

community; 

(e) the mental and physical health of all 

individuals involved ; 

(f) physical abuse or threat of physical abuse by 

one parent against the other parent or the child; and 

(9) chemical dependency, as defined in 53-24-103, 

or chemical abuse on the part of either parent. 

The last of these two factors were not relevant in this case. 

However, all of the first five factors, had they been considered, 

compel a conclusion that the District Court abused its discretion 

by transferring custody from the mother to the father. Although 

the wishes of the child's parents were divided, it was the child's 

specific request that she be allowed to remain in the only family 

18 
unit that she had ever known. At the age of 12, her preference 

should have been given significant consideration. 

The interaction of Rian with her family, her community, and 

her maternal grandparents strongly favored allowing her to continue 

living with her mother in Montana. The undisputed evidence was 

that she was extremely well adjusted to her home, school, and 

community, and that her mental and physical health were 

exceptional. 

Not only did the statutory factors strongly favor continued 

custody with her mother, butthe District Court failed to consider 

all but one of these factors in its findings of fact. In 

considering Rian's interaction and interrelationship with her 

parents, the District Court found: 

31. Jan, Glenn Gregson, and Rian have a close, 

loving family relationship. Rian is active in school and 

extracurricular activities, including church, YMCA, 

theater, sunday school, and swimming. 

32. Marcus and his wife, Dawn Ulland have a loving 

relationship with Rian, and they get along well together. 

The District Court made no findings regarding any specific 

element which would support a change of custody to Rian's father. 

In the past, we have refused to affirm findings that were 

deficient in this respect. In In re the Mam'age of Keatirig (1984) , 212 

Mont. 462, 689 P.2d 249, we held that: 

An award of custody shall be determined in 

accordance with the best interest of the child. In 

determining custody in accordance with the best interest 

of the child, the District Court is statutorily required 

to consider all relevant factors including: 

19 
"(1) the wishes of the child's parent or 

parents as to his custody; 

(2) the wishes of the child as to his 

custodian; 

(3) the interaction and interrelationship of 

the child with his parent or parents, his siblings, 

and any other person who may significantly affect 

the child's best interest; 

(4) the child's adjustment to his home, 

school, and community; and 

(5) the mental and physical health of all 

individuals involved." Section 40-4-212, MCA. 

.... 

"The District Court need not make specific findings 

on each of the elements. Speerv. Speer (Mont. 1982) , 

[201 Mont. 418,] 654 P.2d 1001, 1003, 39 St.Rep. 

2204, 2206. However, the 'essential and 

determining facts upon which the District Court 

rested its conclusion' must be expressed. Cameroll v. 

Cameron (1982), 197 Mont. 226, 231, 641 P.2d 1057, 

1060.11 Hardy v. Hans (Mont. 1984), [212 Mont. 25,] 

685 P.2d 372, 374, 41 St.Rep. 1566, 1569. 

.... 

Hardy is distinguishable from this case in that here 

there are no findings or other indications by the court 

that it considered each of the factors set forth in 

Section 40-4-212, MCA. Absent an indication that the 

trial court considered all of the statutorily mandated 

factors, the award of custody cannot be upheld. 

Keatiiig, 689 P.2d at 251-52. 

I would reverse the judgment of the District Court for several 

reasons. First of all, there is no indication that the District 

Court considered all of the statutorily mandated factors set forth 

in 5 40-4-212, MCA, in modifying the award of Rian's custody. 

Second, if the court had considered all of the statutorily 

mandated factors, it would have been a clear abuse of its 

discretion to change custody from Jan to Marcus. This decision did 

20 
not further Rian's best interest in any way. It uprooted her, 

against her own wishes and the advice of every counselor she had 

ever seen, from her community, her family, and all other reliable 

relationships she had grown to depend on. By every factor which 

the court was required to consider, it was in Rian's best interest 

to continue in the environment and the family in which she had 

prospered. The District Court's order was clearly to punish Rian's 

mother and reward her father. However, there is very little, if 

any, discussion about Rian's interests in this case. 

Under these circumstances, it is difficult to conclude that 

Rian's best interest was the District Court's primary 

consideration. For that reason, I would reverse the judgment of 

the District Court. 

21 
December 30, 1991 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

JOHN L. HOLLOW 

Attorney at Law 

44 West 6th Ave. 

Helena, MT 59601 

DAVID N. HULL 

Attorney at Law 

P.O. Box 534 

Helena, MT 59624 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA