NO. 94-338

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

IN RE THE MARRIAGE OF

DAN E. WIEDRICK,

Petitioner and Appellant,

and

SUSAN LEE WIEDRICK,

Respondent and Respondent.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Hon. Maurice R. Colberg, Jr., Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Virginia A. Bryan; Wright, Tolliver and Guthals

Billings, Montana

For Respondent:

Kevin T. Sweeney; Sweeney & Healow, Billings,

Montana

Filed:

Submitted on Briefs: December 15, 1994

Decided: January 18, 1995
Justice Karla M. Gray delivex.ed the Opinion of the Court.

Dan E. Wiedrick appeals from the denial of his motion to

modify custody of his minor son by the Thirteenth Judicial District

court, Yellowstone County. We affirm.

The District Court dissolved Dan and Susan Wiedrick's marriage

on September 14, 1990. The decree of dissolution incorporated Dan

and Susan's custody agreement concerning their minor child, Justin,

born October 31, 1987. The parties shared joint legal custody of

Justin and, indeed, joint physical custody, with Justin alternating

weeks with his father and mother. The agreement recognized that a

different custody and visitation arrangement might be necessary

when Justin enrolled in kindergarten.

Justin began kindergarten in the autumn of 1993 and Dan and

Susan were unable to agree on a new custody and visitation

arrangement. As a result, Dan moved to modify the custody portion

of the dissolution decree to have himself designated as Justin's

principal residential custodian.

The District Court held a hearing on Dan's motion. Testimony

was presented by both Dan and Susan and a court-ordered

investigatory report from the Yellowstone County Court Services

Office was admitted into evidence; that report recommended that

Susan be named Justin's residential custodian. Following the

hearing, the District Court maintained joint legal custody of

Justin in Dan and Susan and determined that Justin's best interests

required that Susan be designated his primary residential

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custodian. Dan appeals.

District courts are specifically authorized to modify joint

custody arrangements under the "best interests of the child"

standard, so long as joint custody is not being terminated.

Section 40-4-224, MCA; In re Marriage of Johnson (Mont. 1994), 879

P.2d 689, 693, 51 St.Rep. 703, 706. Section 40-4-212, MCA, sets

forth the factors to be considered in determining the best

interests of the child. In this case, the District Court

considered each of the statutory factors and made comprehensive

written findings thereon. We review a court's findings regarding

modification of custody under the clearly erroneous standard; a

finding is clearly erroneous if it is not supported by substantial

credible evidence, if the trial court has misapprehended the effect

of the evidence, or if a review of the record leaves this Court

with the definite and firm conviction that a mistake has been

committed. Marriaqe of Johnson, 879 P.2d at 694.

In reaching its decision that Susan should be named as the

residential custodian, the District Court relied on the courtordered investigatory report, expert testimony from Jim Paulsen, a

licensed clinical social worker, and Ned Tranel, a psychologist,

who had counseled Dan, Susan and Justin at various times over the

past four years, and testimony from Dan and Susan. It is clear

that the court's findings are supported by substantial credible

evidence and Dan does not argue otherwise.

Dan asserts that the District Court's findings are tainted by

gender-based expectations for male behavior. Dan relies on three

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quotes from the District Sourt ' s findings of fact and the

concurring opinion in In re Marriage of Davies (Mont. 1994), 880

P.2d 1368, 51 St.Rep. 929, as support for his position.

Dan's first allegation of gender bias concerns the court's

finding that he showed inappropriate emotion during custodial

exchanges with Susan. Dan points specifically to language in the

findings that he expressed "inappropriate . . feelings, crying,

etc. I' He alleges that this demonstrates the District Court's

gender bias against men who cry or express emotion. We do not

agree.

Dan's argument ignores both the context of the District

Court's finding and related expert testimony. The court found that

Dan expressed inappropriate emotions in relation to the parties'

weekly exchange of Justin. Testimony indicated that, during some

of these exchanges, Dan would cry openly in front of Justin while

Susan was picking the child up; Justin would then become upset and

resist leaving his father. Expert testimony indicated that

Justin's reaction was most likely an attempt to please Dan, and

that Dan's emotional outbursts could pose an emotional problem for

Justin. Thus, the District Court found Dan's expressions of

emotion inappropriate, not because of his male gender, but because

of the impact such expressions could have on the minor child.

Based on the record before us, the District Court's finding was

clearly a parental-role-related concern, not a gender-based one.

Dan's second assertion of gender-based error concerns the

court's finding that he was inappropriately dependent on his

4
family. Dan argues that the District Court's comments about his

dependency on his family reflect the gender-based axiom that "a

daughter is a daughter all of her life, but a son is a son until he

takes a wife."

At the hearing, psychotherapist Jim Paulsen, who had counseled

both Dan and Susan, opined that Dan's relationship with his family

evidenced enmeshment, defined as an unhealthy dependency upon

family members. Paulsen testified that Dan's enmeshment with his

family kept him from meeting Susan‘s emotional needs during their

marriage and could prevent him from acting in Justin's best

interests. The record is clear that enmeshment relates to Dan's

parenting skills. Thus, the District Court's finding that such

dependency would not serve Justin well is based not on gender bias,

but on substantial credible evidence.

Dan's final assertion of gender-based error relates to the

District Court's finding that Susan is the more independent and

self-sufficient parent, with a greater earning capacity and more

dependable working schedule. Dan postulates that the District

Court's reliance on these factors demonstrates the court's gender

bias that men are expected to be the "breadwinners."

Dan's argument, however, ignores the logic and common sense

these facts play in protecting Justin's best interests. Susan's

predictable 8:00 a.m. to 5:00 p.m. working arrangement would be

more conducive to a regular schedule for Justin than Dan's, which

fluctuates depending upon the season, the job, and the physical

location of his construction work. Such a determination by the

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District Court has nothing to do with gender, and everything to do

with Justin's well-being.

Finally, Dan relies on the specially concurring opinion in

Marriaqe of Davies, which stated that:

Article II, Section 4 of our Montana Constitution

recognizes and guarantees the individual dignity of each

human being with regard to gender. Every attorney and

every judge in Montana is sworn to uphold that

constitutional right. There is simply no justification

for interjecting gender bias and sexual stereotyping into

any legal proceeding in this state. It is morally wrong;

it violates the constitution; it will not be tolerated.

Marriaqe of Davies, 880 P.2d at 1377-78. The concurring opinion

was based on the district court's physical description of the

spouse in the context of a distribution of the marital estate; such

a description did not and could not relate to the issue before the

court and could only be seen as unacceptable gender bias and sexual

stereotyping.

Here, as discussed above, no gender bias is evident in the

court's findings. The language of which Dan complains relates

directly to important and appropriate considerations in determining

a child's best interests.

We conclude that the District Court's findings were supported

by substantial credible evidence and are not otherwise erroneous.

We hold, therefore, that the District Court did not err in denying

Dan's motion.

Affirmed.

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document

6
with the Clerk of the Supreme .Court and by a report of its result

to Montana Law Week, State Reporter and West Publishing Company

We concur:

\ Chief Justice

i I

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January 18, 1995

CERTIFICATE OF SERVICE

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

following named:

Virginia A. Bryan, Esq.

Wright, Tolliver and Guthals

P.O. Box 1977

Billings, MT 59103

Kevin T. Sweeney, Esq.

Sweeney & HeaIow

1250-15th St. W., Ste. 202

Billings, MT 59102

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF YONTANA