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 DorothyMcCarter 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, 1991Justice 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,whichmodifies 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 circumstancesof this appeal,an overview of the litigation involving this marriage dissolution is appropriate at thispoint. Marcus and JanUlland were married onMay 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 onMay 14, 1980. By stipulationof 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 fifteendays 2prior written notice. In the event Janwished tomove fromMontana 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 justifyingalteration of the original decree. Accordingly, the court set forth a specific visitation schedule includingunlimited reasonablevisitation 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 thispetition on Jan’s constantmoving 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 contactwith 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 shewould be enrolled in school under her legal name. The District Court gave this stipulation full force and effect. On February 17, 1989, Marcus filedhis fourthmotion tomodify 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 forvisitation. 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 representedby counsel. The courtverbally admonished Jan for her past interferencewith 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 stipulationswhile retainingprimary physical custody of Rian. The court ordered Jan to refrain from interferingand to encourageRian to develop a relationship with Marcus. As a result of this hearing, the court entered 

### an interim order setting forth specific dates thatRianwould visit Marcus, including fourweeks 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 sixweeks during the summers,beginning with the summerof 1990. The court stressed the importance 

### of Jan's compliancewith this order. The court warned her that if she failed to comply it 4would 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 theparties' November 6,1985, stipulationwhich provided that Rianwould be knownby her legal name. Following the May 1989 hearing, the parties entered into another stipulationattemptingto resolve theparties' 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 thirtydays 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 5by 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 losthis 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 springbreak of 1990. He sent advancepurchased 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. InMay of 1990, Marcus notified Jan of his intent to exercise his six week summer visitation. Jan notified Marcus that she was filing apetition tomodify 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 From the day the court entered the a long and unsettling history. 6final 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. Janwould not object tovisitation. 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 extendedperiods of timeduring certainholidays 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 visitationwith Rian therebyprecluding development of ameaningful father/dauqhter relationship. Marcus acknowledges that Rian was unwilling to spend time with him, attributingRian's reluctance to Jan's constant interference. Each time theparties were before the court,the court attempted to structurevisitation to facilitatea 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 andwere 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 reMarriage of Bergner (1986), 222 Mont. 305, 307, 722 P.2d 1141, 1143. Physical custody shouldbe arranged as equally as practical between theparents to complywith the expresspurpose 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 reMarriage 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 theparents 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 8physical custody is in the child's best interest. 

### In 

### re Marriage of Stephenson (1988),230Mont. 439, 445, 750 P.2d 1073, 1077. The court isunder no obligation to considerthemore 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 tohis 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)chemicaldependency,asdefined 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 tomake specific findings concerning each element of § 40

-4

-212, MCA, but must "express the 'essential and 9determining' facts upon which its conclusions rest." Marriaae of Mitchell, 809 P.2d at 584-85, 48 St.Rep. at 354; citing Cameronv. 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 ascertainedand entered findingspertaining toRian's unwillingness to spend timewithMarcus. Third, the courtmade 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 relationshipwith Rian,and theyget alongwell together. Fourth,the court consideredRian's adjustment toher newhomewith Marcus finding that Rian would show resistance to the change but concluded that Rian's best interestswould 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 custodymodification cases, it is particularly important for this 10Court todefer to thedistrict courtwhichpersonally evaluated the testimony. In reMarriage 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 DistrictCourt listened to the testimony, reviewed the exhibits, and was persuaded by the evidencepresented onbehalf of Marcus. Wewill not substituteour judgment for that of the district court unless the appellant shows an abuse of thedistrict court’s discretion. Marriase ofMitchell, 809 P.2d at 584, 48 St.Rep. at 354. The District Court’s findings reveal that the courtbased its decision onRian’sbest interest. The findingssupportthe court’s consideration of Rian’s best interest concluding that it was in Rian’s best interest to changephysical 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 considerRian’swisheswhen determiningherbest interest. Section 40

-4

-212,MCA. However,the court’sdecisionafter consideringthe 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 11trial 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 expressedwishes 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 interestsrequiredtheopportunitytohavemeaningful relationships with both Jan and Marcus. Rian has been given the opportunity to develop such a relationship with Jan. Shehasbeen deprived of the opportunityto develop such a relationship withMarcus due toJan's continued interference and Jan's fostering and nurturing of the father/daughter relationship between Rian and her step
-father, whichhas frustratedany chance fora relationshipbetween Rian and Marcus. Due toRian'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 contactwithMarcuswould onlydiminish and a healthy father/daughter relationship would never develop. A review 

### of the record reveals that the District Court consideredRian's wishes alongwith the otherbest 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 12despite 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 aminor dependent childwith 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

13Justice Terry N. Trieweiler dissenting. I dissent from the opinion of the majority. The majority opinion is based almost exclusively on the testimony ofMarcus Ulland (thefather) and representationsmade 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 herselfwhichprovide a different explanation for thedeterioration 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 

### inher churchyouth 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." Inher interviewwith 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 14she would not have to spend so much time with her father. She pointed out that she lovedher mother and stepfathervery much and enjoyed living and spending time with them, but did not feel that her fatherhad evermade much of an effort to get to knowher. She stated that her favorite activities, other than her athletic interests in softball,swimming,andbasketball,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 counselorwho specializes in working with children and evaluating dysfunctional families. He evaluatedRian prior to themost recenthearings held in the DistrictCourt. From that evaluation he concluded the she was pleasant, had an appropriatedemeanor,wasbrighter than average, and assertive. He reported that her living situationwith her mother was a positive one, and found no evidence that hermother had interferedwith her ability to form a positive relationshipwith 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 relationshipwithhermother,butthat shewasuncomfortable with and did not trust her father. She concluded that the responsibility for Rian's lack of a relationship with her father 15was 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 toher father,shehad nearly an "A" average in school. It was Ms. Wall's opinion that itwas inRian's best interestthat she be left 

### in the custody of her mother and stepfather. There was substantial evidence that Rian's estrangement from her fatherwasnotprimarily related to the recentdisputesbetween hermother and fatherregarding exercise of her father'svisitation 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'shearing,his effortswere sporadic and inconsistent. There was substantial evidence thather father'sunpredictableefforts 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 hermother toprotect her life from repeated disruption. 

### Iprovide this background information topoint 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 reportedby the father,as did the DistrictCourt and the majority, it appears 

### to me that the result of the District 16Court'sdecision is simply to punish Rian'smother for her lack of cooperation, rather than provide for Rian's best interest. InFossv.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 courtsmay 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 decreewas entered demonstrate that a changehas occurred in the circumstances of the child or those of his custodian; and 2) this change is sufficient to warrant amodification in ordertopromote theparticular child's best interests. This basic standardwas applied in this jurisdiction longbefore the enactment of thenew law,and adeterminationofwhich lawwould be applicable under the facts presented would have no bearing on the result. Jewettv.Jewett, 73 Mont. 591, 237 P. 702; Trudgenv. 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 thebest interestsand generalwelfare of the child will be promoted. Altmaierv.Altmaier, 135 Mont. 404, 340 P.2d 829;Haynesv. 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; InreAdoption 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, 17there 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 shehas lived and where she has prospered to send her to livewith
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) Thecourtshalldeterminecustody inaccordancewith thebest interestof the child. The court shall consider all relevant factors, including but not limited to: (a) thewishes of the child's parent orparents as to his custody; (b) thewishes 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) thechild's adjustment tohishome, 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 factorswere 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 thewishes of the child's parents were divided, 

### it was the child's specific request that she be allowed to remain in the only family

18unit 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 hermaternal grandparentsstrongly favoredallowingher 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 custodywith 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 familyrelationship. Rian is active in schooland extracurricular activities, including church, YMCA, theater, sunday school, and swimming. 32. Marcus and his wife, DawnUlland have a loving relationshipwithRian,and theyget alongwell 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 Inre theMam'age

### ofKeatirig (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 accordancewith thebest 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 childwith hisparent 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 notmake 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 Hardyv.

### Hans (Mont. 1984), [212 Mont. 25,] 685 P.2d 372, 374, 41 St.Rep. 1566, 1569.



# .... Hardy is distinguishable from this case in thathere there are no findings or other indicationsby 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. Iwould 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 statutorilymandated 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 fromJan toMarcus. Thisdecisiondid 20not 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 courtwas required to consider, 

### it was inRian's best interest to continue in the environment and the family in which she had prospered. The DistrictCourt's orderwas clearly topunish 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.

21December 

### 30, 1991 CERTIFICATEOFSERVICE Ihereby certify thatthefollowingorderwassentby United States mail, prepaid,tothe following named:
JOHNL.HOLLOW Attorney atLaw 44West6thAve. Helena,MT 59601 DAVIDN. HULL Attorney atLaw P.O. Box 534 Helena, MT59624
EDSMITH CLERKOFTHESUPREME COURT STATEOFMONTANA