. , 

. ' 

" 

No. 94-019 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

IN RE THE MARRIAGE OF 

CAROL J. ALLISON, n/k/a CAROL L. AMICK, 

Petitioner and Respondent, 

and 

BRUCE E. ALLISON, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Ted O. Lympus, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Randall S. Ogle, Ogle & Worm, 

Kalispell, Montana 

For Respondent: 

Bruce McEvoy, Warden, Christiansen, 

Johnson & Berg, Kalispell, Montana 

FILEO Submitted on Briefs: September 22, 1994 

DEC 2:3 1994 Decided: December 23, 1994 

Filed: 
· \ 

Justice William E. Hunt, Sr., delivered the opinion of the Court. 

On July 29, 1991, Bruce Allison filed an ex parte motion to 

change residential custody of the parties' children from Carol 

Amick to himself, alleging that the Department of Family Services 

confirmed that the children had been abused and neglected by Carol. 

The Eleventh Judicial District Court, Flathead County, granted 

temporary residential custody to Bruce during the pendency of the 

instant proceedings. A number of hearings were conducted over the 

course of two years: October 16, 1991, June 4, 1992, July 13, 

1992, March 30, 1993, and July 29, 1993. At the close of the July 

29, 1993, proceedings, the District Court ordered the parties to 

submit proposed findings and conclusions by August 13, 1993. On 

December 9, 1993, the District Court issued findings, conclusion, 

and judgment returning residential custody of the parties' two 

children to Carol. Bruce appeals. We affirm. 

We frame the issues on appeal as follows: 

1. Was there sufficient evidence to support the District 

Court's findings of fact and conclusions of law maintaining Carol 

as primary residential custodian of the parties' children? 

2. Did the District Court err by adopting findings and 

conclusions substantially similar to Carol's proposed findings and 

conclusions? 

3. Did the District Court properly conclude that the 

July 29, 1991, ex parte order changing residential custody was 

improperly issued, and therefore, should be vacated? 

2 
" 

The parties' marriage was dissolved on November 9, 1990. The 

parties were awarded joint custody of their two children, J.A. and 

C.A., with Carol designated as residential custodian. At the time 

of the dissolution, Carol's two children from a previous marriage, 

R.E. and T.E., also resided with the parties. Following the 

dissolution, the parties resided together until late January or 

early February 1991, when Carol and the children moved out. 

On February 5, 1991, the Kalispell office of the Montana 

Department of Family Services (DFS) received an abuse and neglect 

referral from a school counselor at R.E. and T.E. 's school. DFS 

opened an investigation into the matter on February 13. The school 

counselor felt that Carol required counseling. A social worker 

attempted to contact Carol, and left several messages for her to 

call the DFS office. 

On March 19, Carol called and set up an appointment to meet 

with a social worker the following day. Later that day, DFS 

received a call from the school counselor reporting that R.E. had 

appeared in school with a bruise on his face. Brad Custer, a DFS 

social worker, interviewed T.E. and R.E. R.E. reported that he had 

been slapped on the head by his mother for no apparent reason. 

On March 20, Carol came to the DFS office for her appointment. 

According to Custer, Carol admitted slapping R.E. 's face because 

she was frustrated with his uncontrollable behavior. Carol 

testified at trial that R. E. was cussing at her, "calling [her] 

every name in the book," and she slapped him across the face. 

Carol also told Custer that she had been the victim of physical, 

3 
· , 

sexual, and emotional abuse both as a child and during her marriage 

to Bruce, and that she was co-dependent. Carol agreed to work with 

the school counselor and with a family counselor, and she agreed to 

participate in a co-dependency treatment program. 

On March 28, Carol and a friend returned to the DFS office. 

Custer reiterated that Carol must seek counseling. Custer advised 

Carol that her slapping of R.E. had been substantiated as physical 

abuse. Custer recommended that Carol refrain from physically 

disciplining her children, and that she contact a local program for 

parenting education and alternatives to physical discipline. Carol 

and Custer developed a treatment plan and agreed that Carol would 

undergo a mental health evaluation and would follow through with 

the recommendations made following the evaluation. 

In early April, Carol sent R. E. to live with his natural 

father in Canada. On April 9, Bruce telephoned the DFS and stated 

that he would go to court, if needed, to resolve what he felt was 

a worsening situation. 

In early May, Carol went to psychologist Herman Androes for a 

mental health evaluation. Androes reported to DFS that Carol was 

following through with the process, and that the results of the 

evaluation looked very good for her. 

A DFS intake referral form dated June la, 1991, completed and 

initialed by Eva Jo Burrington, states that Bruce's live-in 

girlfriend, Barbara Dietz, called the DFS office. Barbara stated 

that she thought that the school had reported Carol for abuse and 

neglect. She expressed concerned about J.A. 's increasingly 

4 
, . 

sexualized behavior--including open-mouthed kissing, unzipping 

other people's clothing, and attempting to touch other people's 

genital areas--during his visitation with Bruce, Barbara, and 

Barbara's two teenage sons. Burrington noted that Barbara was 

"very concerned that we understand this is not a custody dispute 

[but] are real concerns." 

On June 18, Custer transferred Carol's case to Ann Anderson, 

another DFS social worker. He noted that the investigation was 

closed, that the reported abuse--the slapping of R.E.--had been 

substantiated, and that he estimated the future risk of abuse at an 

intermediate level. 

On or about July 1, Bruce moved the District Court to order 

DFS to disclose its confidential reports regarding Carol. The 

motion was granted without notice to Carol and without a hearing. 

Anderson complied with the order, and on July 9, provided the 

District Court with copies of DFS records regarding Carol. In her 

cover letter, Anderson informed the court that the DFS 

investigation into the matter was ongoing and that she would 

provide copies of any updates. 

On July 17, Anderson visited J.A. and C.A. 's daycare center. 

The daycare workers stated that they had not noticed any aggressive 

or sexual behavior on J.A. 's part. Anderson returned on July 30 to 

interview J.A. She reported that: "He was a little nervous when 

asked about secrets and the secret seems to relate to his brother 

[R.E]. He did not show any changes in affect when questioned about 

private parts or secret touching." 

5 
On July 29, 1991, Bruce filed an ex parte motion to change 

residential custody from Carol to himself, alleging that DFS had 

confirmed that the children had been abused and neglected by Carol. 

The court granted temporary residential custody to Bruce. 

On September 4, 1991, Anderson wrote the District Court to 

update the record. Her letter stated that DFS had completed its 

investigation into the allegations of sexual abuse and that the 

allegations had not been substantiated. She told the court that 

Carol had been psychologically evaluated, and she recommended that 

Bruce also be evaluated "before decisions are made regarding 

custody of the children." The record reveals that, to date, Bruce 

has not undergone a full psychological evaluation. 

On September 24, Carol moved the District Court to refer the 

matter to Family Court Services (FCS) of the Eleventh Judicial 

District for further investigation. The court granted the motion 

and ordered FCS to investigate and submit a report by November 1. 

On October 10, Bruce filed a motion for the production of 

Carol's psychological evaluation. In response, Carol moved the 

court to order Bruce to submit to a psychological evaluation. A 

hearing on the motions was held on October 16, and the court issued 

an order on October 25 granting both motions. 

On November 1, Thomas Best, the current director of FCS, 

submitted a report to the court. He stated: 

It appears the single parenting stress of raising four 

children overwhelmed CAROL ALLISON. My conference with 

BRUCE ALLISON did not reveal a[n] angry father waiting on 

the sidelines to grab [the] children at the first 

6 
" 

opportuni ty. He appears to have genuine concerns for the 

welfare of [J.A.] and [C.A.] 

I would recommend the continuation of the joint custody 

. but the residential responsibility for the children 

. be with their father. 

On November 6, 1991, the parties stipulated that Bruce would 

maintain temporary residential custody for an additional six months 

while Carol and the children received counselling. In December, 

FCS made arrangements for the children's visitation exchange to 

take place at the FCS offices. FCS made the arrangements because 

Bruce's girlfriend had expressed fear at meeting with Carol to 

exchange the children. 

In early January 1992, Bruce and his girlfriend continued to 

phone DFS, insisting that they reopen the sexual abuse 

investigation. On January 23, Bruce refused to allow Carol 

visitation, and the Sheriff's Department intervened and assisted 

Carol in obtaining the children. Jolie Arnold, the new director of 

FCS, advised Bruce to contact Maxine Lamb at the Sheriff's 

Department and file a report if he had serious concerns regarding 

abuse. Arnold later contacted Lamb to discuss the situation, and 

Lamb said that Bruce stated he would not come in to see her because 

he could not get off work. 

On January 27, Anderson petitioned the court for temporary 

investigative authority of J.A. and C.A. Anderson thought that if 

the DFS personnel could observe J.A. and C.A. for one week in a 

neutral environment, they could determine if the children were 

exhibiting signs of abuse. Bruce protested. Rosemary McKinnon, 

7 
, . 

J.A. and C.A. 's counselor, phoned Anderson. McKinnon stated that 

she had been seeing the children every three to four weeks since 

August 1991 and that she felt they were doing better with Bruce. 

While she had not been able to substantiate any sexual abuse t 

McKinnon stated that Bruce and his girlfriend were reporting an 

increase in sexualized behavior. She felt that removing the 

children would be traumatic for them. Neva Yourman, the children's 

daycare supervisor t also contacted Anderson. Yourman reported that 

J.A. and C.A. were at the daycare center full-time and that t 

although Bruce's girlfriend reported that the children had been 

inappropriately touching others, they had not displayed any 

inappropriate behavior while at the daycare. 

The District Court denied DFS's petition for temporary 

investigative authority. Anderson requested that Bruce come into 

the office without his mother or girlfriend. Anderson outlined to 

Bruce three options for pursuing the investigation of the 

allegations of sexual abuse: (1) Have the children continue 

counselling with Rosemary McKinnon "with the idea that she would 

elicit some disclosure" of sexual abuse from the children; (2) have 

a law enforcement official interview the children and attempt to 

elicit a disclosure; or (3) allow the DFS to observe the children 

in a neutral setting. Anderson explained to Bruce that she did not 

believe t based on her ongoing investigation, that the children had 

been sexually abused in their mother's home. Anderson reported 

that "Bruce said Carol's on-going sexual abuse as a child is the 

reason for his concern about sexual abuse of his children." 

8 
On February 7, 1992, Anderson closed her investigation into 

the allegations of sexual abuse. She concluded that the 

allegations were not substantiated and that the risk of future 

abuse was low. 

On March 9, 1992, Bruce and his girlfriend took C.A. and J.A. 

to the Kalispell Police Department and filed a report of suspected 

child abuse with Sergeant Lanfear and Officer Bardwell. The 

officers observed faint bruising on both children I s necks, but 

reported that the bruising was faint enough that they did not 

attempt to take photographs. The children would not speak to the 

officers, but Bruce informed them that the children had stated that 

their mother had choked them. Bruce and his girlfriend both gave 

written statements implicating Carol. 

DFS received the police report on March 10 and a new 

investigation was opened. Anderson contacted Arnold at FCS. 

Arnold reported that, on the morning of March 9, when Carol brought 

the children to the FCS office to make the exchange following their 

weekend visitation, she had checked the children and had not 

noticed any bruising. Anderson also called Neva Yourman at the 

daycare center. Yourman reported that the children did not have 

any bruising when they were brought to the daycare by Bruce I s 

girlfriend. 

her 

Anderson called the police department. 

that Carol had given a statement 

Sergeant Lanfear told 

and had denied the 

allegations. Carol asked to be given a polygraph examination. The 

test subsequently was administered, and the results were in her 

9 
favor. DFS closed the investigation into the March 9 allegations 

of abuse, concluding that abuse had not been substantiated and 

rating the risk of future abuse as being low. 

On May 14, 1992, Carol moved the District Court to modify or 

clarify the custodial, residential, visitation, and financial 

arrangements related to the parties' children. 

About the same time, McKinnon sent a letter to Arnold. 

McKinnon stated that she was writing at Bruce's request. She 

explained that she had seen the children 13 times since August 

1991. She recommended that Carol be limited to supervised 

visitation. On May 20, McKinnon sent Arnold a follow-up letter 

which stated in pertinent part: 

Since my letter to you on May 12, [J.A.] 

spontaneously reported to his father and subsequently to 

me that when his mother is angry with him she squeezes 

his penis. This new finding is, of course, a very 

serious one, which will be reported to Social Services 

for further investigation. It underscores my concern for 

the welfare of both children when they are in the care of 

their mother and I hope that you will give serious 

consideration to my recommendations as outlined in my 

May 12 letter. 

On June 2, 1991, Anderson opened a new investigation into the 

penis squeezing allegations. According to the DFS records, Bruce 

had complained to Warren Wright, western regional director of DFS, 

about the local DFS office's handling of the case. Wright 

contacted the local office and informed them of the latest 

allegations. Although Bruce believed that Wright would remove 

Anderson from the case, Wright contacted Anderson by phone and 

10 
· . 

informed her that she would, in fact, continue to facilitate the 

investigation. 

On June 3, 1992, Bruce moved the District Court to require 

that Carol's visitations with the children be supervised. The 

District Court granted the motion for supervised visitation. That 

same day, Anderson requested that the Kalispell Police Department 

investigate the penis squeezing allegations. Carol volunteered to 

submit to a polygraph test, and the results were in her favor. 

Interviews with the children were arranged to take place at the 

daycare center, but when Bruce learned that Anderson was involved 

in the investigation, he refused to allow anyone to interview the 

children. Detective Steve Klingler, who investigated on behalf of 

the Kalispell Police Department, stated to Arnold that "if J.A. is 

being sexually abused, it is his belief that the perpetrator is 

someone other than Carol Allison." Arnold submitted the findings 

of the police department, as well as Detective Klingler's 

statement, to the District Court in a report dated July 9, 1992. 

Arnold wrote: 

Although I am sure BRUCE ALLISON feels he has acted 

in good faith on his children's behalf, I do not believe 

that BRUCE has acted in the best interests of [J.A.] and 

[C.A.]. I believe he has over-reacted, which has caused 

the children to be confused and scared. He has not 

followed the procedure suggested by Family Court Services 

or by the local Department of Family Services. BRUCE has 

made false accusations regarding my involvement in this 

mat ter. Al though it may have been unintentional, I 

believe BRUCE's allegations against CAROL ALLISON to be 

false. 

Hearing on all outstanding motions was held, but not 

concluded, on July 13, 1992. The District Court issued an order on 

11 
July 22, 1992, providing that the hearing be continued at a later 

date upon the motion of either party and that temporary residential 

custody continue with Bruce. The District Court further ordered 

that a social worker conduct an evaluation of the parties and their 

children and make recommendations to the court regarding the 

custody issues. On December 30, 1992, Carol requested that the 

court continue the hearing. 

The hearing continued on March 30, 1993. Seven witnesses 

testified and a total of fourteen exhibits were admitted into 

evidence. The District Court took the matter under advisement and 

ordered that the hearing continue at a later date. The final 

hearing was held on July 29, 1993. During the July 29 hearing, 

five additional exhibits and three depositions were admitted into 

evidence. Carol, Bruce, and Rosemary McKinnon testified. 

On December 9, 1993, the District Court issued findings, 

conclusions, and judgment returning residential custody of the 

parties' two children to Carol. Bruce appeals. 

STANDARD OF REVIEW 

This Court recently clarified the standard by which we review 

child custody modification cases: 

Motions or petitions to modify a sole custody 

provision or terminate a joint custody provision must 

satisfy the jurisdictional prerequisites set forth in 

§ 40-4-219, MCA. Likewise, a motion or petition to 

modify child custody provisions in a dissolution decree 

which ha [s] the effect of substantially changing the 

primary residence of the parties' children, even though 

the formal designation of "joint custody" is retained, 

are to be construed as motions or petitions to terminate 

joint custody and must satisfy the jurisdictional 

requirements set forth in § 40-4-219, MCA. Any effort to 

12 
modify the physical custody, which does not seek a 

substantial change in the children's primary residence, 

may be considered by the district court according to the 

best interest standard set forth in § 40-4-212, MCA. 

In re Marriage of Johnson (Mont. 1994), 879 P.2d 689, 694, 51 St. 

Rep. 703, 706. 

In this case, the parties' were awarded joint custody of their 

children, J.A. and C.A., by decree of dissolution, and Carol was 

awarded primary residential custody. Bruce's July 29, 1991, motion 

sought to change the primary residence of the children to himself 

and to restrict Carol to visitation "on alternate weekends from 

Friday at 5:00 p.m. until Sunday at 7:00 p.m." We conclude that 

Bruce's motion sought a substantial change in the primary residence 

of the parties' children while retaining the formal designation of 

"j oint custody." We, therefore, construe the motion as one to 

terminate joint custody and review the record to determine if the 

jurisdictional requirements set forth in § 40-4-219, MCA, are 

satisfied. 

ISSUE 1 

Was there sufficient evidence to support the District Court's 

findings of fact and conclusions of law maintaining Carol as 

primary residential custodian of the parties' children? 

" [T]he party requesting modification under § 40-4-219, MCA, 

bears a heavy burden because the statute's policy is to 'preserve 

stability and continuity of custody for the children. '" Johnson, 

(1994), 879 P.2d at 694 (citing In re Marriage of Stephenson 

(1988), 230 Mont. 439, 447, 750 P.2d 1073, 1075; In re Marriage of 

13 
Gahm (1986), 222 Mont. 300, 303, 722 P.2d 1138, 1140). In a child 

custody case, this Court will review the district court1s findings 

to determine whether those findings are clearly erroneous. 

Johnson, 879 P.2d at 694; In re Marriage of Dreesbach (Mont. 1994), 

875 P.2d 1018, 1021, 51 St. Rep. 374, 375. A finding is clearly 

erroneous only if: (1) the finding is not supported by 

substantial, credible evidence; (2 ) the district court 

misapprehended the effect of the evidence; or (3) after reviewing 

the record, this Court is left with a definite and firm conviction 

that a mistake has been committed. Johnson, 879 P. 2d at 694 

(citing In re Marriage of McClain (1993), 257 Mont. 371, 374, 849 

P.2d 194, 196). 

Section 40-4-212, MCA, requires the court to determine custody 

in accordance with the best interest of the child. To modify 

custody, § 40-4-219(1), MCA, requires the court to make each of the 

following determinations: (1) that a change has occurred in the 

circumstances of the child or custodian; (2) that modification is 

in the best interest of the child; and (3) that one of six 

enumerated circumstances exists. The best interest test of 

§ 40-4-212, MCA, is, therefore, one of the three prongs under 

§ 40-4-219(1), MCA. 

After hearing all of the testimony in this case, the District 

Court made the following conclusions of law: that there had been 

"no significant change in circumstances of either child or of the 

residential custodial parent"; that under § 40-4-212, MeA, it was 

in the best interest of the children to return them to the physical 

14 
custody of their mother pursuant to the original decree of 

dissolution; and that none of the six factors under § 40-4-219(1), 

MCA, merited a permanent change in residential custody. Each of 

the three determinations required by § 40-4-219, MCA, were made by 

the District Court. Moreover, the District Court concluded that 

Bruce "has and likely would continue in the future to deny and 

frustrate contact between the children and [their mother]," and 

cited § 40-4-219(3), MCA, which provides that" [t]he court shall 

presume the custodian is not acting in the child's best interest if 

the custodian does any of the acts specified in subsection (1) (e) 

" Section 40-4-219 (1) (e), MCA, provides for modification of 

custody if the court finds that the custodial parent willfully and 

consistently refuses to allow contact between the children and the 

noncustodial parent or attempts to frustrate or deny the 

noncustodial parent's visitation rights. 

Bruce mischaracterizes the DFS reports when he asserts that 

"[o]n March 19, 1991, DFS confirmed that Carol had beaten R.E. on 

the face with a belt." (Emphasis added.) The DFS report merely 

states that DFS received a telephone call from a school counselor 

who stated that R.E. was in school with bruises on his face and 

that R.E. claimed that his mother had beat him with a belt. The 

DFS records show that a social worker went to the school and talked 

to both R.E. and T.E. The social worker discovered "some light 

redness" to the left side of R.E. 's face. R.E. told the social 

worker that his mother had slapped his face. According to R. E., he 

was slapped for fighting with T.E. Carol came to the DFS office 

15 
the following day to keep a previously scheduled appointment with 

the social worker, and she freely admitted that she slapped R.E. 's 

face. According to Carol's sworn testimony at trial, R.E. was 

cussing at her, "calling [her] every name in the book," and she 

slapped him across the face. 

Similarly, Bruce mischaracterizes the DFS records by asserting 

that more than one incident of substantiated abuse occurred: 

"Carol continued to discipline R. E. by beating him and leaving 

bruises on his face. "(Emphasis added.) A careful review 

of the DFS records and the testimony of the DFS social workers who 

thoroughly investigated Carol shows that only a single incident of 

substantiated abuse occurred: The slapping of R.E. on March 19, 

1991. Bruce points to an entry in the DFS records dated April 23, 

1991, to support his assertion of continuing abuse. The record 

clearly shows, however, that the social worker's entry referred to 

the March 19 slapping, and that on April 23 a discussion about that 

slapping took place between Carol and the social worker. 

Bruce argues "that the record is overwhelming that it was in 

the best interests of the Allison children that Bruce continue as 

residential custodian." While there is some evidence in the record 

supporting Bruce's position, we conclude that the District Court's 

findings and conclusions are supported by substantial, credible 

evidence. 

The record is filled with the testimony of the DFS 

investigators who were unable to confirm any physical or sexual 

abuse of J.A. and C.A., despite Bruce and his girlfriend's repeated 

16 
allegations. Arnold, who observed the children on a number of 

occasions after their visitation with Carol, testified that she 

never saw any evidence of abuse. Anderson, who investigated the 

allegations of sexual abuse, determined that abuse was not 

substantiated. Anderson also testified that" [i]t is uncommon for 

there to be that many unsubstantiated referrals coming from the 

same source." 

Despite his recommendation that the children remain in the 

residential custody of Bruce, Wright conceded that no 

substantiation of abuse existed. Wright testified that his 

recommendation was not based on whether Bruce would make a better 

parent. Instead, his recommendation was 

based on the fact that the kids are in his custody now, 

and I believe it should be the Department's policy, and 

in fact it is our practice, to work with parents who have 

custody of the children and try to make sure they 

maintain that family relationship. 

Custer, who investigated the slapping incident, testified that 

he "did not see reason to remove the children at that point in 

time" even though he had confirmed that Carol had slapped R.E. 

Custer testified that the emotional abuse of T.E., J.A., and C.A. 

was not substantiated. Custer testified that he investigated the 

allegation that Carol had pinched J.A. 's penis and concluded that 

such abuse was unsubstantiated. Custer also testified that he 

worked with Detective Brown of the Kalispell Police Department on 

the penis pinching allegations, and that Brown, likewise, concluded 

that the alleged abuse was unsubstantiated. 

17 
• 

Burrington, who investigated the allegations of sexual abuse 

in conjunction with Custer, testified that DFS had no information 

which would have warranted the children's supervised visitations 

with Carol. She further testified that DFS had no evidence which 

substantiated the allegations of sexual abuse. 

In addition to Wright, only three other non-party witnesses 

testified favorably on behalf of Bruce. Police Chief Dale Stone of 

the Columbia Falls Police Department testified that in February 

1993 Bruce's mother called him and asked him to talk to J .A. 

According to Stone, Bruce's mother told him that J.A. had been 

acting out and inappropriately touching his sister. Bruce and his 

mother wanted Stone to tell J.A. that such behavior was 

inappropriate. Stone testified that J.A. told him that when Carol 

is mad at him, she would touch his private areas. Stone reported 

his findings to DFS, but did not conduct any investigation beyond 

the single interview with J.A. 

Carol Lee testified that she interviewed J.A. in September 

1992, and he spontaneously disclosed to her that his mother touched 

his private parts. She also interviewed Carol, Bruce, and the 

other children. Following her investigation, she recommended that 

Bruce continue as the residential custodian and that Carol have 

supervised visitations while she received counseling. She also 

testified that children may suffer stress and other difficulties 

following the divorce of their parents. In 1992, she determined 

that Bruce needed counseling for his need to be controlling. Lee 

further testified that, after her recommendation in the fall of 

18 
• 

1992, she was no longer involved in the matter and had virtually no 

other contact with the parties. At trial, she refused to make any 

further recommendations due to her lack of current involvement. 

McKinnon testified that her role in this matter was 

exclusively as J.A. and C.A. 's counselor. She began counseling the 

children in August 1991. She testified that, during one of their 

sessions, J.A. reported that his mother pinched his penis when she 

was mad at him. The disclosure came after Bruce contacted McKinnon 

and told her that J.A. had been caught touching other peoples' 

genitals. Bruce told McKinnon that he had asked J.A. where he 

learned to do that, and J.A. responded that his mother had done it 

to him. J.A. also reported to McKinnon that his aunt, his uncle, 

and a friend of his mother's also touched him in the same manner. 

However, in a letter dated May 12, 1992, following the disclosure, 

McKinnon stated that" [n]either of the children have given direct 

and unequivocal evidence of either physical or sexual abuse. This 

does not, of course, mean that it has not occurred. J.A. lS 

protective of his mother." Regarding J.A. 's disclosure, McKinnon 

also wrote: "He was able to tell me this same information [that 

Bruce had reported] but was clearly acutely uncomfortable and 

remained vague as to the nature of this touching and unable to give 

any further details." Based on her involvement, McKinnon 

recommended at trial that Bruce remain custodian, that C.A. be 

moved to unsupervised visitation with Carol, and that J.A. remain 

with supervised visitation. She testified that she was not an 

investigator, but strictly a counselor. 

19 
When Arnold spoke to J.A. about his statement that his mother 

pinches his penis when she is angry, all that J. A. would tell 

Arnold is "Daddy told me." Arnold reported her conversation with 

J.A. to the District Court in a written statement dated June 4, 

1992. She also reported that she had concerns about the emotional 

trauma the children suffered from repeated questioning and 

examination by FCS, DFS, and a variety of law enforcement 

officials. She stated that Bruce's anger toward Carol was apparent 

and that he had talked negatively about Carol in the presence of 

the children. 

Androes also testified at trial. He stated that Carol's 

psychological tests "came out very well in all areas" and were not 

outside the normal psychological bounds. He determined that Carol 

was under a great deal of stress at the time of his initial 

examination of her. Carol began regular counseling with him in the 

fall of 1991. Androes testified that he found it significant that 

the allegations of sexual abuse against Carol "began at the very 

time that DFS was preparing to close the case in the physical abuse 

charge and to leave residential care with the mother . " In 

his experience, he had found that" [w]hen somebody wants to change 

a custodial situation, that's when they make new charges 

The outside parent frequently will look for other reasons to make 

charges to try to see if they can't reverse the way things are." 

Androes testified that a pattern of complaints existed in this case 

and that the complaints emanated from Bruce, Bruce's girlfriend, 

and Bruce's mother. He stated that the repeated allegations did 

20 
not surprise him due to the established pattern. Because Carol's 

only contact with the children occurred during supervised 

visitation, he found the allegations of sexual abuse incredible. 

Androes further testified that, based on his evaluation and 

ongoing counselling, he had no reason to deny Carol full custody of 

her children, 

privileges. 

or alternatively, to have normal visitation 

Carol and Bruce also testified during the final hearing on 

July 29, 1993. Carol stated that her testimony that day was the 

first testimony or sworn statement that she had given during the 

entire matter. She confirmed that she had received no notice of 

Bruce's July 29, 1991, motion to modify custody and that she was 

not allowed to testify prior to the removal of her children from 

her home. She confirmed that she had been extensively investigated 

by DFS and the Kalispell Police Department and that she had 

submitted herself to two separate polygraph examinations. She 

stated that she had never been accused of abusing or neglecting her 

daughter T.E., who continued to reside with her during all of the 

instant proceedings. 

Carol's attorney called Bruce to testify. The attorney asked 

Bruce if his testimony that day was the first sworn statement he 

had made in the custody proceedings. Bruce stated, "Yes, it is." 

He explained that his primary concern was for the well-being of his 

children. He testified that when Anderson concluded that the 

alleged abuse was unsubstantiated, he was dissatisfied and went 

over her head to Wright. He also complained about the local DFS 

21 
r 

office to the Governor's office and to the Flathead County 

Attorney. Bruce conceded, however, that the claims that the County 

Attorney's office reviewed were rejected. Additionally, when Bruce 

was dissatisfied with Arnold's conclusion that there was no 

substantiated abuse, he went over her head to her boss at Family 

Court Services. Bruce acknowledged that Carol Lee had recommended 

that he needed counseling for his control and anger issues and that 

he needed to be evaluated for chemical dependency. He testified 

that he had at tended some sexual addiction group meetings, had 

attended some Adult Children of Alcoholics meetings, and had seen 

Carol Lee twice for counseling, but that "affordabili ty kind of 

comes into play" in his seeking any additional counseling. 

Because its findings and conclusions are supported by 

substantial, credible evidence, we conclude that the District Court 

did not err in returning residential custody of the parties' 

children to Carol. 

ISSUE 2 

Did the District Court err by issuing findings and conclusions 

substantially similar to Carol's proposed findings and conclusions? 

The District Court issued over 21 pages of findings of fact 

and conclusions of law. Bruce argues that the District Court 

"abused its discretion by its abrupt, 'wholesale adoption' of" 

Carol's proposed findings and conclusions, which were submitted on 

computer disk as the court had requested both parties do. Bruce 

asserts: 

22 
A careful review of Findings of Fact, Conclusions of Law 

and Judgment entered by the Court reveals very little 

change from the proposed Findings of Fact, Conclusions of 

Law, and Judgment submitted by Carol's counsel, other 

than to change the names from Carol and Bruce to 

Respondent and Petitioner, and other minor changes of 

style in the text. There were no substantive changes by 

the District Court. 

In support of his position, Bruce cites In re Marriage of Wolfe 

(1983), 202 Mont. 454, 457-58, 659 P.2d 259, 261, in which this 

Court stated: 

[W]e [have] voiced our disapproval of trial courts 

relying "too heavily on the proposed findings and 

conclusions submitted by the winning party." A trial 

judge relies "too heavily" upon proposed findings when 

they are used "to the exclusion of a consideration of the 

facts and the exercise of his own judgment." 

While we discourage the verbatim adoption of proposed findings 

and conclusions, "the practice does not constitute error per se." 

In re Marriage of Nikolaisen (1993), 257 Mont. 1, 5, 847 P.2d 287, 

289. In Nikolaisen, we set forth the following test: 

When reviewing the adequacy of the findings of fact and 

conclusions of law, we examine whether they are 

sufficiently comprehensive and pertinent to provide a 

basis for a decision, and whether they are supported by 

substantial evidence. 

Nikolaisen, 847 P.2d at 289i Wolfe, 659 P.2d at 261. We conclude 

that the District Court's findings and conclusions meet the above 

test. Although the findings and conclusions are substantially 

similar to those proposed by Carol, they are comprehensive, 

pertinent, and are supported by substantial evidence contained in 

the record. The District Court, therefore, did not err by issuing 

findings and conclusions substantially similar to those proposed by 

Carol. 

23 
• 

ISSUE 3 

Did the District Court properly conclude that the July 29, 

1991, ex parte order changing residential custody was improperly 

issued, and therefore, should be vacated? 

The District Court's finding of fact NO.8 states: 

No Affidavit was submitted or filed in support of 

Respondent's [July 29, 1991,] Motion [to Change Custodial 

Parent], contrary to the requirements of Section 

40-4-220, Montana Code Annotated, which provides in 

relevant part: 

"A. Party seeking a temporary custody order 

or modification of a custody decree shall 

submit, together with moving papers, an 

affidavit setting forth facts supporting the 

requested order or modification . " 

The District Court concluded as a matter of law that because the 

July 29, 1991, order was entered pursuant to a motion without a 

supporting affidavit, the order was issued contrary 

§§ 40-4-220 (1), -220 (2) (a), and -213 (1) and should be vacated. 

Bruce argues that 

it was impossible for him to file an Affidavit in support 

of his Motion to Change Residential Custodian because DFS 

would not allow him to review its records regarding 

Carol, and therefore Bruce did not know the content of 

the DFS records regarding Carol and her children when he 

filed his Motion. 

to 

However, on July I, 1991, pursuant to Bruce's motion, the District 

Court ordered DFS to produce its confidential files pertaining to 

Carol. The order, which was granted without a hearing and without 

notice to Carol, stated that 

[t]he information and materials in said files may only be 

disclosed as follows: 

a. To the court; 

24 
• 

b. To counsel of record for the respective parties 

in this action . 

The record reveals that the District Court received the 

confidential information on July 9. Twenty days later, Bruce filed 

his ex parte motion to change custodial parent, stating: 

This Motion is made on the grounds and for the reasons 

that the records of the Department of Family Services 

confirm that the children have been abused and neglected 

by Carol J. Allison. . and that therefore the best 

interests of the children necessitates modification of 

the residential custodian . 

(Emphasis added.) Bruce clearly knew the contents of the DFS 

records at the time he filed his motion for change of custodial 

parent on July 29. However, the record shows that Bruce did not 

file an affidavit in support of his motion. 

The statutory mandate of § 40-4-220(2), MCA, is clear: 

(a) A party seeking a temporary custody order may 

request that the court grant a temporary assignment of 

custody ex parte. He shall so request in his moving 

papers and shall submit an affidavit showing that: 

(ii) although a previous determination of custody 

has been made, the child's present environment endangers 

his physical or emotional health and an immediate change 

of custody would serve to protect the child's physical or 

emotional health. 

(b) If the court finds from the affidavits 

submitted by the moving party that a temporary assignment 

of custody would be in the child's best interest under 

the standards of 40-4-212 or that the child's physical or 

emotional health is endangered and would be protected by 

a temporary assignment of custody, the court shall make 

an order placing temporary custody with the person 

designated by the moving party. . and shall require 

all parties to appear and show cause within 20 days from 

the execution of the order why. . in the case of a 

temporary order issued under subsection (2) (a) (ii), the 

court should not restore the child to the custodian from 

whom the child was removed by the temporary order. 

25 
• • 

(Emphasis added.) The Code Commissioners' Note to § 40-4-220, MCA, 

further provides: 

This section establishes a procedure for seeking 

temporary custody or a modification of a custody decree 

by motion supported with affidavits. The procedure is 

designed to result in denial of the motion without a 

hearing unless the court finds that the affidavits 

establish adequate cause for holding a hearing. The 

procedure will thus tend to discourage contests over 

temporary custody and prevent repeated or insubstantial 

motions for modification. 

(Emphas i s added.) The statute provides no exception to the 

affidavit requirement, and we refuse to create one. 

We conclude that, because Bruce failed to file a supporting 

affidavit with his motion to change custodial parent, the District 

Court's order of July 29, 1991, improperly granted that motion. 

The District Court did not err by subsequently vacating that order. 

Affirmed. 

We concur: 

26 
• II 

Justice Karla M. Gray, specially concurring. 

I join in the Court's opinion on issues 1 and 3 and specially 

concur on issue 2, relating to whether the District Court erred in 

issuing findings and conclusions substantially similar to those 

proposed by Carol. As to that issue, I agree with the result 

reached by the Court, but not with all that is said therein. I 

write separately to clarify that, while I have serious concerns 

about the extent to which district courts are adopting verbatim, or 

nearly so, a party's proposed findings and conclusions, this case 

does not reflect such a wholesale adoption of findings. 

Over the past decade, we have discouraged, and disapproved of, 

trial courts relying too heavily on the proposed findings submitted 

by a "winning party;" in that regard, we began with a principle 

that adopted findings must reflect the judge's own consideration of 

the facts and the exercise of the judge's own judgment. See, ~, 

In re Marriage of Wolfe (1983), 202 Mont. 454, 659 P.2d 259. We 

continue to voice similar sentiments, while concurrently stating 

that "the practice does not constitute error per se." In re 

Marriage of Nikolaisen (1993), 257 Mont. 1, 5, 847 P.2d 287, 289. 

Indeed, our current approach seems to be that if the findings are 

comprehensive and are supported by substantial evidence, that is 

sufficient. Nikolaisen, 847 P.2d at 289. If we are no longer 

requiring that a judge's work reflect the judge's consideration of 

the record and exercise of his or her own conscientious judgment, 

the judicial system has been turned over to the lawyers to a degree 

I cannot support. 

I understand better than most what trial judges are up against 

27 
" ". 

with regard to juggling a back-breaking work load with inadequate 

time, staff and other resources. But we can go too far in 

permitting judges to rely on the advocates before them in trying to 

keep their dockets current. It is my view that we must require 

that a judge's findings and conclusions reflect independent 

judgment by the court (see In re Marriage of Kukes (1993), 258 

Mont. 324, 328, 852 P.2d 655, 657) and that combing the record for 

substantial evidence to support those findings is not sufficient. 

Here, the Court is correct that the District Court's findings 

and conclusions are comprehensive, pertinent and supported by the 

record. More importantly, they reflect the exercise of the court's 

independent judgment. They are not verbatim adoptions and, indeed, 

testimony of witnesses included at length in Carol's proposed 

findings was not included at all in the District Court's findings, 

presumably because the court did not give it the weight Carol 

thought was appropriate or any weight at all. Other findings were 

revised, added to, and deleted from in significant ways given the 

facts of the case. 

Based on the record and the District Court's findings and 

conclusions before us, I join the Court in affirming. 

28