No. 52-261 INTHE SUPREME COURT OF THE STATE OF MONTANA 1982



### IN XE THE ?URRIAGEOF GOLDIE DAIliJ SPEER, Petitioner and Respondent,

-vsJOHN ELP'ER SFEER, Respondent andAppellant.

Appeal from: District Court of theEighthJudicial District, Inand fortheCounty of Cascade, The Honorable John M. McCarvel, Judgepresiding.

Counsel of Record: For Appellant: Swanberg, Koby, Swanberg & Matteucci; Daniel L. Falcon, Great Falls, Montana For Respondent: Thomas A. Baiz, Jr., Great Falls, Nontana

Submitted on Briefs: September 30, 1982 Decided: December 9, 1982

Filed: 

## DES:

## 9

# -1982Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. On April 21, 1982, the District Court of Cascade County entered an order awarding joint custody of the minor child of the marriage to the parties and primary physical custody to the mother. The father appeals the award of primary physical custody of the child to themother. Theparties were married onNovember 19,1973,and one child, a son, was born the issue of the marriage. In May 1979, the parties separated and the mother filed a petition for dissolution. The marriage was dissolveu early in 1980 and temporary custody was awarded themother, who remarried almost immediately. The minor son was seven years old at the time of theApril 1982custodyhearing,and he had never been separated from his mother for longer than twoweeks. Three issues are presented on appeal:



### (1) Whether the District Court abused its discretion in adopting the findings of fact and conclusions of law of theprevailing party virtually verbatim; (2)Whether it is in the best interest of the child to be in theprimary physical custody of themother; and (3)Whether the District Court erred 

### in considering tne father's financial contribution in awarding custody and in setting supportpayments. This Court has discouraged District Courts from the practice of adopting the prevailing party's proposed findings of fact and conclusions of law virtually verbatim. Tomaskie v. Tomaskie (1981), Mont. 

## , 625 P.2d 536, 538-539, 38 St.Rep. 416, 419. Such a practice may lead to

error. In Re Marriage of Beck (1981), 

### -Mont. 

## , 631 P.2d 282, 284, 38 St.Rep. 1054, 1058. Once findings andconclusions are adopted by the District Court, however, the "clearly erroneous" standard of Rule 52(a) supports them on appeal. In reMarriage of Jensen (1981), -Mont. - 

## , 631 P.2d 700, 763, 38 St.Rep. 1109,1113. In order to prevail in the instant case, the father, John,must demonstrate a clear abuse of discretion. In re Marriage of Tweeten (1977), 172 Mont. 404, 406, 563 P.2d 1141, 1143, overruled on other grounds, Markegard v. Markegard (1980), Mont

# . , 616 P.2d 323, 325, 37 St.Rep. 1539, 1541. The trial court's decision will not be disturbed absent 

### a clear preponderance 

### of the evidence against the decision. Tweeten, supra, 172Mont. at 407, 563 P.2d at1143. Gilmore 

### v. Gilmore (1975),166Mont. 47, 50, 530 P.2d 480, 482. Appellant has failed todemonstrate such

a clear abuse of discretion. The father specifically challenges three findings of fact that support the District Court's conclusion that it is in the best interest of the minor child to remain in the primary physical custody of his mother. Appellant father challenges the District Court's findings that: (I) the mother would be less likely than the father to interfere with visitations and that shewould be more likely to allow frequent and continuing contact with the noncustodial parent; (2)that the stepfather was a good provider and had rehabilitated himself in spite of a previous criminal record; and (3) that the father had serious emotional problems which trigger epileptic-type seizures which become more pronounced in times of stress. Substantial evidence supports the District Court's determination. In awarding custody, the District Court must considerthe guidelines set forth in section 40-4-212, MCA. This sectionstates: "Best interestof child. The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including: 

### "(1)thewishes of the child's parent or parents astohiscustody; "(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'sbest interest; "(4) the child's adjustment tohishome, school, and community; and "(5) the mental and physical health of allindividuals involved." In reMarriage of Tweeten, supra, 172Mont. at407, 563 P.2d

The Court need not make specific findings on each of the elements. Burleigh v. Burleigh (1982), Mont. 

## , 650 P.2d 753, 756, 39 St.Rep. 1538, 1541. The record shows that the District Court heard sufficient testimony on each of these factors to support the adopted findings of fact. Both parentsexpressed a desire forcustody of their son, so thisfactor isnotof controlling importance inthiscustody decision. Nor does the second factor control. The minor child, through his guardian ad litem, communicated that he

was unable toexpress an opinion eitherway on which parent snouldhave custody of him. The child'sprimary concernwas that once custody was determined, he wanted asmuch visitationaspossiblewith thenoncustodialparent. A factor which the District Court must also considerin awarding joint custody iswhich parent is likely to allow the child frequent and continuing contact with the noncustodial parent. Section 40-4-223(1), MCA. The District Court heard conflicting testimony on past problems with child visitation and on each of the parties' willingness to allow frequentand continuing contact with the other parent. This Court may not substitute its judgment for the judgment of the lower court where substantial evidence supports its determination. We must review the evidence here in the light most favorable to the mother. The credibility of witnesses and the weight accorded their testimony is for the District Court's determination. Farmers St. Bank v. Mobile Homes Unlimited (1979), 181 Mont. 342, 349, 593 P.2d 734, 738. Here, even though conflicting testimony was presented, substantial evidence supports the District Court's finding that the mother would more likely allow frequent and continuing contact. Father next challenges the lower court's determination that the stepfather was a good provider and had rehabilitated himself in spite of aprevious criminal record. With the exception of father's employment for two months as a janitor in Shelby, Montana,neither party worked outside of the home during the course of the marriage. The fdmily's income consisted of father's Social Security benefits and welfare payments. Father was not required to pdy temporary child support or to pay the minor child's medical bills during this action'spendency. He did pay $10 per month in child support for each of the six months preceding the custodyhearing. At the time of trial, father was estimating 

### a future income of $650per month consistingof hls Yocldl Security benefits dnd earnings from a cleaning business to be operated by father and father's mother. By contrast, mother married stepfather shortly after the decree of dissolution was entered. From thedate of the marriage until two weeks before the trial date, stepfather



### was employed at Liberty Manufacturing in Chester, Montana. He provided all of minor child's support and also paid all 

### of the child's medical expenses during that period. The DistrlctCourt's finding that stepfather was a good provider 1s supported by substantial evidence. Its finding that stepfather had rehabilitated himself In spite of 

### a previous criminal record is also supported by substantial evidence. Stepfather has apast criminal record consisting of a fewmisdemeanor theft charges and one felony bad check charge. Since the summer of 

### 1979, however, stepfather has no criminal record. TheDistrict Court considered stepfather's interaction with the minor child, pursuant to section 40-4-212(3), MCA, and found that there is a "close and loving relationship" between stepfather and that, in fact, the child refers to stepfather 

### as "Dad." Ninor child also has a close relationship with his sixteen-month-old half-brother. Evidence was introauced showing that the child has friends in Chester, the domicile of mother and stepfather,and that he is doing well in school. Father finally challenges theDistrict Court's finding that he had serious emotional problems which trigger epileptic-type seizures and that, in times of stress, the seizures become more pronounced. He argues that the epileptic-type seizures do not preclude adequate parentingof tne minor cnlld. He also contellus that with the new medication he is now taking, severe seizures are a past nealth condition. The record does support father's contention that the seizureswould not prevent adequate parenting. Mother, the horne attendant for the Pondera County Welfare Department, and a neighbor all testified that the seizures would not prevent father from raising the child. While father cannot drive because of the seizures, father's mother provides necessary transportation for father and picks up the minor child inChester forhisvisitstofather'shome inValier. Father testified under cross-examination that he had been admitted to the psychiatric ward of the Great Falls Deaconess Hospital several times by hisdoctorsbecause they thought his seizures were brought on by emotion. He then testified that he had "doctored" with psychologists atthe mental health clinic. On redirect, he explained that this

was prior to the use of new medications. No other evidence

was presented by father tosupporthisclaimthathe didnot suffer from emotional problems and that the seizures were

now under control. Again, this Court will not substitute its judgment for that of the trial court, which had the opportunity to view and observe the demeanor of the witnesses. Father has failed to demonstrate a clear abuse of discretion by the District Court's order awarding primary physical custody tomother. Corbett v. Corbett (1981), - Mont

# . ,635P.2d 1319, 1322, 38 St.Rep. 1852, 1856. The record shows the desireof both parents tohave custody and the desire of theminor child tomaintain contactwith bothhis father and mother. The minor child interactswellwith stepfather, his half-brother, and his friends in mother's community, and he has adjustedwelltoschool. Minor child has never been separated from mother for longer than two weeks. Substantial evidence supports the lower court's determination that primary physical custody should remain withthemother. Father last argues that the District Court erred in considering hispast financial contributions indetermining custody. Nothing in the District Court's findings, conclusionsand order indicatesthatthiswas the case. The court did examine the past support and income of father and of stepfather aswell as father'sprojected income. Itappears from the record that these findings bear on two determinations. One, that stepfather 

### has been a good provider for the minor child. Two, that father is now capable of paying the child support ordered by the District Court. Father has again failed to show an abuse of discretion. A£firmed. 

# %d2!L$~~~ Chief Justice

We concur: