NO. 91-194 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

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):.*- h $4 -. ..-_' IN RE THE MARRIAGE OF SANDY JO CONVERSE, 1,. 

Petitioner and Appellant, FEB 2 1 @pj and 

APPEAL FROM: District Court of the Twelfth Judicial District, 

In and for the County of Hill, 

The Honorable John Warner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Susan Gecho Gobbs, Attorney at Law, Havre, Montana. 

For Respondent: 

Cregg W. Coughlin, Altman & Boucher, Havre, Montana. 

Filed: 

Submitted on Briefs: September 5, 1991 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

This is an appeal by the wife from a decree of dissolution 

entered in the Twelfth Judicial District Court, Hill County, 

Montana. Both parties stipulated to all of the contested issues 

associated with the dissolution and the decree was then entered. 

The wife then made a motion to alter or amend the judgment in 

regard to the custody provisions on the grounds that said 

provisions did not accurately reflect the stipulation of the 

parties. The District Court denied this motion and the wife 

appeals. We reverse. 

We phrase the issue before this Court as follows: 

Did the District Court err in determining custody without 

first considering the mandatory statutory guidelines for making 

custody determinations found at 5 40-4-212, MCA? 

Appellant Sandy Converse and respondent Edwin Converse were 

married in July 1977. The parties separated in October 1989, and 

the wife filed a petition for dissolution in April 1990. The 

parties are the parents of four minor children. A temporary 

custody order was issued with the wife as the custodial parent. A 

restraining order was also issued ordering the husband to not have 

any contact with either the wife or the four minor children. 

A trial date was set for August 1990. The wife's petition for 

dissolution included a prayer for joint custody of the four 

children. Prior to trial, the parties stipulated that the wife 

could amend the petition to request sole custody. The August 1990 

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trial date was continued until October 29, 1990. Prior to trial, 

the parties had mutually agreed on many of the issues relating to 

the dissolution. On the morning of the trial, the parties met with 

the District Court Judge in chambers, at the request of the Judge, 

to determine if the remaining contested issues could be settled to 

the satisfaction of the parties without a trial. While in chambers 

and off the record, the attorneys apparently reached a settlement 

agreement. After taking the agreement to their clients, the 

stipulated terms of the decree were reiterated for the record. 

The District Court instructed the wife's counsel to draft a 

decree of dissolution reflecting the stipulations of the parties. 

On November 27, 1990, the proposed decree was submitted to the 

court. Counsel for the husband objected to the terms relating to 

custody of the children, alleging these terms did not accurately 

reflect the agreement that had been reached by the parties. The 

court agreed with counsel for the husband that the proposed decree 

did not reflect the agreement of the parties and instructed counsel 

for the wife to draft another proposed decree with custody 

provisions in line with the stipulation. 

Eventually the court drafted the decree which was entered on 

January 4, 1991, along with the court's findings of fact and 

conclusions of law. The custody provision of the decree reflected 

the understanding of both the husband's counsel and the court as to 

the terms of the stipulation. The wife filed a motion pursuant to 

Rule 59, M.R.Civ.P., to delete the portion of the decree concerning 

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custody to which the wife alleges she did not agree. It is from 

the District Court’s denial of this motion that the wife appeals. 

Did the District Court err in determining custody without 

first considering the mandatory statutory guidelines for making 

custody determinations found at 5 40-4-212, MCA? 

Written agreements in which parties to a dissolution stipulate 

to the terms of the dissolution are encouraged in this state, both 

for purposes of judicial economy and to promote the “amicable 

settlement of disputes between parties to a marriage attendant upon 

their separation or the dissolution of their marriage . . . . II 

Section 40-4-201, MCA. In the present case, it was an in-court 

oral stipulation by the parties and not a formal written separation 

agreement, but the distinction is unimportant. In re Marriage of 

Mager (1990), 241 Mont. 78, 785 P.2d 198. However, while 

encouraged, these agreements are not binding upon the district 

court judge as to support, custody, or visitation. Section 

40-4-201, MCA. Even if both husband and wife stipulate to custody, 

the judge is not bound by that stipulation, but may instead order 

a different custody arrangement in accord with the best interests 

of the children. Maqer, 785 P.2d at 200. Section 40-4-212, MCA, 

mandates that custody determinations must be based on the best 

interests of the children. The rationale underlying this policy 

was set out by this Court in In re Marriage of Neiss (1987), 228 

Mont. 479, 743 P.2d 1022. In Neiss, we stated that “[i]t is the 

children, not the parents, who are beneficiaries of child support 

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decrees," and "the custody and support of children are never left 

to contract between the parties." Neiss, 743 P.2d at 1024. 

Section 40-4-212, MCA, requires custody determinations be made 

in accordance with the best interests of the children as determined 

by the district court after considering the following criteria: 

(a) [Tlhe 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. 

This list is not all inclusive. This Court has suggested that the 

parents' ability to cooperate in their parental roles and the 

geographical proximity of the parents' residences are at least two 

additional factors which should be considered. In re Custody and 

Support of B.T.S. (1986), 219 Mont. 391, 395-96, 712 P.2d 1298, 

1301. Section 40-4-223, MCA, also provides that in awarding joint 

custody consideration must be given to which parent is more likely 

to allow the child frequent and continuing contact with the 

noncustodial parent. 

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When reviewing custody issues this Court must first determine 

if the factors set out in 5 40-4-212, MCA, were considered by the 

district court. In re Marriage of Jacobson (1987), 228 Mont. 458, 

743 P.2d 1025. While it is encouraged, the trial court need not 

make specific findings on each of the factors. However, failure by 

the trial court to at least consider all of the statutorily 

mandated factors is error. In re Marriage of Speer (1982), 201 

Mont. 418, 654 P.2d 1001. The custody determination must be based 

on substantial evidence relating to the statutory factors and must 

be set forth explicitly in the findings. In re Marriage of J.J.C. 

and P.R.C. (1987), 227 Mont. 264, 739 P.2d 465. The findings 

should, at a minimum, set forth the “essential and determining 

facts upon which the District Court rested its conclusion on the 

custody issue.” In re Marriage of Cameron (1982), 197 Mont. 226, 

231, 641 P.2d 1057, 1060 (quoting In re Marriage of Barron (1978), 

171 Mont. 161, 580 P.2d 936). This Court has refused to uphold an 

award of custody when the district court’s findings indicated that 

not all of the statutory factors had been considered, even though 

the extensive record in the case indicated that the district court 

had received substantial evidence on each of the factors. In re 

Marriage of Keating (1984), 212 Mont. 462, 689 P.2d 249. 

In the present case, there is nothing in the record before 

this Court demonstrating that the statutory criteria for making 

custody determinations were considered by the trial court. If some 

or all of the factors were considered during the off the record 

6 
conference between the trial judge and counsel for the parties, 

this is not reflected in the record. Even if the relevant factors 

had been considered, there was nothing in the trial court's 

findings indicating the basis for the custody decision in relation 

to the factors. The findings of the District Court simply 

indicated that the custody decision was in the "best interest of 

the children" without elaborating further. 

It is clear that the District Court Judge attempted to bring 

the parties together in order to encourage an amicable settlement 

to their disputes without having to resort to a trial. While the 

District Court*s effort to bring the parties together is laudable, 

we hold that the District Court erred in not giving consideration 

to the statutory criteria found at § 40-4-212, MCA, and in failing 

to explicitly state the basis for the custody decision in the 

findings. 

We remand this case to the District Court to receive evidence 

relative to the statutory factors necessary for a determination of 

custody and for explicit findings setting forth at least the 

"essential and determining facts" upon which the District Court 

rests its conclusion on custody. 

Reversed and remanded. 

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We concur: 

8 
February 21, 1992 

CERTIFICATE OF SERVICE 

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

named: 

Susan Gecho Gobbs 

MONTANA LEGAL SERVICES 

208 Masonic Temple 

P.O. Box 548 

Havre, MT 59501 

Cregg W. Coughlin 

ALTMAN & BOUCHER 

P.O. Box 268 

Havre. Montana 59501 

ED SMITH 

CLERK OF THE SUPREME COURT