No. 88-59 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

IN RE THE MARRIAGE OF 

JEFFREY J. SMITH, 

Petitioner and Respondent, 

and 

KATHLEEN FOLEY SMITH, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Douglas Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Sol & Wolfe; Michael Sol, Missoula, Montana 

For Respondent: 

Thomas W. Trigg, Missoula, Montana 

Submitted on Briefs: June 2, 1988 

Decided: July 14, 1988 

Filed ~JI~~-~-~~~ 
Mr. Justice William E. Hunt, Sr. delivered the Opinion of the 

Court. 

This appeal arises from a judgment of the District 

Court, Fourth Judicial District, County of Missoula, awarding 

joint custody of the two children with primary residential 

custody to the father. Mother appeals. We affirm. The 

issue on appeal is whether the District Court abused its 

discretion in awarding resident custody to the father by: 

1. Improperly making extensive findings of fact 

not based on substantial, credible evidence. 

2. Improperly weighing the evidence and testimony. 

3. Failing to make any findings regarding the best 

interests of the daughter of the parties. 

4. Awarding joint custody, but giving superior 

custody rights to the father's girlfriend over the 

children's natural mother. 

The marriage of the appellant (mother) and respondent 

(father) was dissolved by order dated October 7, 1987, which 

was amended November 5, 1987. There were two children born 

of the marriage, Nate, age 9 and Julie, age 5. The parties 

have resolved the property issues to their satisfaction and 

primarily differ on the issue of custody of Nate and Julie. 

Father is currently employed as a staff writer at a 

large hospital. He resides in Missoula with a companion. 

Mother is a full-time student at the University of 

Montana. She is not currently employed. Throughout the 

marriage she contributed financially to the family income 

through her pottery craft. 

An informal custody arrangement required that each 

parent get physical custody of the children every other week 

with some reasonable visitation by the other parent during 
the week. Mother has often taken care of the children during 

father's week while he was at work. 

The order of the District Court awarded joint custody of 

both children with father serving as primary residential 

parent. Mother was granted custody of the children two to 

three weekends per month, Thanksgiving, Easter and part of 

Christmas vacations, and summers. Each parent is allowed 

liberal visitation when custody resides with the other 

parent. From this order the mother appeals. 

Mother attacks several of the District Court's 89 

findings of fact. She essentially argues that too many of 

the findings are uncomfortably similar to father's proposed 

findings of fact and are not supported by substantial 

credible evidence on the record. Much of her complaint is 

that her contributions to the children's welfare and growth 

were ignored. 

To begin, this Court has recognized that even verbatim 

adoption of a party's proposed findings of fact is not 

grounds for reversal if they are supported by substantial 

credible evidence. In re Marriage of Sessions (Mont. 1988), 

753 P.2d 1306, 1307, 45 St.Rep. 744, 746; In re Marriage of 

Watson (Mont. 1987), 739 P.2d 951, 954, 44 St.Rep. 1167, 

1170. Our task, then, is to examine the record to see if it 

contains evidence that supports the findings. There are 26 

contested findings but we need not address each one 

individually. We will, however, take this opportunity to 

address a few of the contested findings. 

Finding no. 29 is contested because it mentions a 

playwright who was a frequent houseguest of the father's and 

who is reported to have read to the children. Mother claims 

there is no evidence that the guest reads to the children, 

and upon a thorough review of the record we find she is 

correct. This, however, is harmless error because the 
finding is not necessary to support the District Court's 

decision. See In re Marriage of Anderson (Mont. 1986) , 717 

P.2d 11, 14, 43 St.Rep. 541, 544. Mother also contests 

finding no. 14 which states that father took the children to 

church. The testimony of father plainly states, "I've taken 

them to church." This Court has thoroughly examined each 

contested finding of fact and the record and have found 

nearly all to be supported by substantial credible evidence. 

While there are some findings in error, they are harmless, 

not grounds for reversal, and need not be discussed. 

Next mother challenges the weight the court gave to the 

testimony of father's witnesses. As a result, she argues, 

the court's findings and conclusions paint an overly glowing 

portrait of father's parenting skills. This Court may not 

substitute its judgment for that of the trial court. We must 

review the evidence in the light most favorable to father. 

The court acknowledged that each parent had told tales of 

less than virtuous behavior committed by the other parent. 

It chose to place more credibility in father's witnesses and 

weighed their testimony accordingly. This is fully within 

its power. In re Marriage of Speer (1982), 201 Mont. 418, 

422, 654 P.2d 1001, 1003. The court did not abuse its 

discretion in this regard. 

Next, mother argues that the court failed to make any 

findings regarding the best interests of the daughter Julie 

and overemphasized the interests of Nate to Julie's 

detriment. She argues that the court erred in holding that 

the best interests of the children required them to stay 

together and in ignoring the special bond between mother and 

daughter. F7e do not agree. The record is replete with 

testimony about Julie and her place in her father's life and 

household. The findings of the court, while more concerned 

with Nate (who is a gifted child and has special educational 
needs), discuss Julie in a manner consistent with evidence on 

the record. Conclusion no. 13 recognizes the bond between 

Nate and Julie. 

13. Nate and Julie have a close bond. Given the 

hostility between Father and Mother, these two 

children need all of the stability and familiarity 

they can receive. It would not be in their best 

interest to split the children between the parents. 

(i.e. Nate with Father and Julie with Mother) 

because of the danger of the children identifying 

with the parent with whom they live at the expense 

of alienation from the other parent. The bond 

between the children, as they live in the separate 

homes of their Father and Mother, will remain of 

great value in the coming years. 

There was no error with regard to this issue. 

Mother lastly contends that the District Court's 

conclusion no. 19 confers superior custody rights to father's 

household companion over her. The conclusion states: 

19. Mother should be allowed liberal visitation 

when the children are in Father's custody. Father 

shall make an active effort to allow the children 

to visit their Mother, if she is available, rather 

than place the children in day care or [with] other 

non-family members. (Emphasis added.) 

After filing of the judgment, the District Court in court 

minutes dated January 7, 1988 ruled that the phrase 

"non-family members1' does not include the father's companion. 

We do not see how this provision hinges mother's visitation 

rights upon the companion's availability. It plainly states 

that if mother is available she must be allowed liberal 

visitation. The last clause explains that this is in 

preference to sending the children to day care or to friends. 

It does not limit the right of the mother to visit with her 

children. There is no mention of the companion's 

availability with regard to visitation and her availability 
does not affect the mother's visitation right. We hold that 

there was no error in the court's judgment. 

Affirmed.