:do. 83-539 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

IN RE THE MARRIAGE OF 

ME MARIE KUZARA, 

Petitioner and Respondent, 

JOSEPH KIM KUZARA, 

Respondent and Appellant. 

__-___--____-_---__--------------------- 

No. 83-556 

JOSEPH K. KUZARA, 

Relator, 

DISTRICT COURT OF THE FOURTEENTH 

JUDICIAL DISTRICT, et al., 

Respondents. 

APPEAL FROM: District Court of the Fourteenth Judicial District, 

In and for the County of Musselshell, 

The Honorable R.C. McDonough, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant : 

Joseph K. Kuzara, pro se, Roundup, Montana 

For Respondent: 

Ralph L. Herriott, Billings, Montana 

For Amicus Curiae: 

Kathryn R. Baylis, On behalf of the Children, 

Roundup, Montana 

- - 

Submitted on Briefs: March 15, 1984 

Decided: Julie 21, 1984 

Filed: 't <<ib' 

- Clerk 
Mr. Justice Frank B. Morrison, Jr., delivered the 

Opinion of the Court. 

The District Court of the Fourteenth Judicial District 

entered a Decree of Dissolution of Marriage on August 8, 

1983. Respondent (Husband) filed a Notice of Appeal of the 

Decree on September 7, 1983. Thereafter husband was found in 

contempt, and on December 27, 1983 Husband filed an 

application for Writ of Review of the trial court's contempt 

order. The Appeal from the Decree of Dissolution and the 

Writ of Review are consolidated for purposes of this Appeal. 

Joseph Kim Kuzara and Rae Marie Kuzara were married on 

June 22, 1968. The parties' sons, Joseph Ray and David were 

born on November 10, 1970 and October 14, 1974, respectively. 

Wife petitioned for dissolution of marriage on February 

17, 1983. The only contested issue in the July 22, 1983 

trial was child custody. The pleadings reveal that both 

parties requested sole custody and that at no point in the 

proceedings did either party or counsel request joint 

custody. The children were interviewed in chambers by the 

district judge prior to the hearing, but were not a.sked any 

questions regarding their preference as to custodial parent 

or visitation arrangements. The minor children did not 

testify as witnesses at trial. 

At the conclusion of the dissolution hearing, the trial 

court indicated that joint custody was required by statute 

and instructed the parties to negotiate an appropriate 

agreement. A Decree of Dissolution was entered on August 8. 

September 7, Husband filed a Notice of Appeal from the Decree 

of Dissolution, alleging inter alia that joint custody of the 

children was an abuse of discretion since both parties found 

joint custody an unacceptable arrangement and had applied for 

sole custody. Husband moved the trial court on September 26 
for an order staying execution of the child custody order 

pending appeal. The motion was denied. 

After the decree was entered granting joint custody wife 

sought to take the children pursuant to terms of that decree. 

Husband refused to comply. Wife filed for contempt. 

Judge Alfred B. Coate, the presiding district judge, 

disqualified. himself from the cause pursuant to section 

3-1-802, MCA. The Hon. R.C. McDonough was appointed by this 

Court to hear and decide the matter of enforcement of the 

child custody agreement and any indirect contempt of court in 

connection therewith. Following a hearing on November 4, 

Judge McDonough signed a.n order on December 9, finding the 

Husband in ccntempt for his failure to comply with the Decree 

by refusing to relinquish custody of the boys to Wife on the 

weekends specifically designated in the Decree. The contempt 

order imposed a fine of two hundred and fifty dollars 

($250.00) on both counts of contempt but was stayed pending 

review. 

Although the Appeal from the Dissolution Decree - and the 

Application for Writ of Review are consolidated to facilitate 

review, clarity mandates each action be discussed 

individually. 

The first issue is: If the trial court elects to 

interview the minor children involved in a custody dispute, 

must the court ascertain their desires as to custody and give 

appropriate weight to those desires in making its 

determination when the children are nearly nine and thirteen 

years of age? 

Regarding the discretion of the district court in child 

custody cases this Court has said: 

"In reviewing orders which affect the custody of 

the child, this Court is mindful that the primary 

duty of deciding the proper custody of children is 
a task of the district court. Thus, all reasonable 

presumptions as to correctness of that 

determination will be made. No ruling will be 

disturbed absent a clear showing that the district 

court's discretion was abused." Foss v. Leifer 

(1976), 170 Mont. 97, 550 P.2d 1309, 1311. 

Section 40-4-212, MCA is the controlling statute here and 

states: 

"Best interest of child. The court shall determine 

custody in accordance with the best interest of the 

child. The court shall consider all relevant 

factors including: 

(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." 

The District Court's finding pertaining to child custody 

was : 

" (5) That both parties are fit and proper persons 

to be a.warded the cust0d.y of the minor children and 

that joint custody of the minor children of the 

parties is indicated." 

This conclusion makes no reference to the best interest of 

the children. We recently held that: 

"Prior decisions from this Court have established 

that the District Court must consider the wishes of 

the children regarding custody and make findings as 

to their wishes or why they were not followed." 

Murphy v. Murphy (Mont. 1983), 40 St.Rep. 1188, 

1190. 

In Re the Marriage of Kramer (1978), 177 Mont. 61, 580 

P.2d 439, 444, this court stated: 

"We believe the welfare of the children, 

particularly chiIdren -- of the ages involved here, is 

not being served if their wishes -- arenotered 

=the trial court. ~her- we hold the court 

should make a specific finding, stating the wishes 

of the children as to their custodian, and, if the 

court determines that the children's wishes are not 

to be followed, the court should state in its 
findings the reason it has chosen not to follow 

their wishes." (emphasis added) 

Where the district court elects to interview the 

children in chambers, the record and the court's findings 

should reflect the children's wishes. Absent this requisite 

judicial rationale, the interview is an empty exercise. 

The trial court's findings relating to joint custody 

serving the best interest of the Kuzara children are 

insufficient as a matter of law. For this reason, the 

dissolution decree is vacated and remanded. 

In light of this initial decision to vacate the Decree, 

the second issue introduces the following question: What 

effect does vacating a trial court's order by this Court have 

upon the validity of a Contempt Order which was issued by the 

trial court to enforce the vacated decree? 

A judgment remains in full force and effect unless 

otherwise modified, vacated or reversed by this Court, or 

until stayed by a proper court order. Kramer v. Rramer 

(1978), 176 Mont. 362, 578 P.2d 317, 318. Under these 

circumstances, the judgment is entitled to be enforced 

through proper authority of the district court. The judgment 

of the d.istrict court awarding joint custody of the Kuzara 

children was not stayed. 

This Court has held that a contempt proceeding is 

entirely independent of the civil action out of which it 

arose. Myhre v. Myhre (1976), 168 Nont. 521, 548 P.2d 1395. 

The district court therefore has the authority to enforce its 

judgment even though an appeal is pending thereon. Contempts 

are punishable because of the necessity of maintaining the 

dignity of and respect toward the courts and their decrees. 

17 Am.Jur. 2d, Contempt section 2. 
The application for Writ of Review is denied. The 

contempt order is a valid enforcement of the Dissolution 

Decree which was in full force and effect at the time of the 

contempt proceedings. The Decree is vacated and remanded 

with directions to hold a hearing which shall include 

determining the preferences of the children followed by 

findings which address the best interests of those children. 

We concur: 

Chief Justice 
Mr. Justice L. C. Gulbrandson, specially concurring. 

I concur with the holdings of the opinion of both 

issues. 

With respect to the first issue, regarding specific 

findings as to the children's preference of parent, I would 

limit the requirements to those set forth in sections 

40-4-212 and 40-4-214, MCA. 

As a practical matter, most children will not indicate 

a preference of parent unless they are assurred that the 

non-preferred parent will not be told of their choice. Even 

the presence of counsel and a court reporter has a definite 

chilling effect. In my view, Kramer, supra, extends the 

statutory requirements and I would modify that decision 

accordingly. ,/'.