No. 52-261 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

IN XE THE ?URRIAGE OF 

GOLDIE DAIliJ SPEER, 

Petitioner and Respondent, 

-vsJOHN ELP'ER SFEER, 

Respondent and Appellant. 

Appeal from: District Court of the Eighth Judicial District, 

In and for the County of Cascade, The Honorable 

John M. McCarvel, Judge presiding. 

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 - 1982 
Mr. 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 the mother. 

The parties were married on November 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 the mother, who remarried 

almost immediately. The minor son was seven years old at 

the time of the April 1982 custody hearing, and he had never 

been separated from his mother for longer than two weeks. 

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 

the prevailing party virtually verbatim; 

(2) Whether it is in the best interest of the child to 

be in the primary physical custody of the mother; and 

(3) Whether the District Court erred in considering 

tne father's financial contribution in awarding custody and 

in setting support payments. 

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 and 
conclusions are adopted by the District Court, however, the 

"clearly erroneous" standard of Rule 52(a) supports them on 

appeal. In re Marriage 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), Mon t . , 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, 172 Mont. at 407, 563 

P.2d at 1143. Gilmore v. Gilmore (1975), 166 Mont. 47, 50, 

530 P.2d 480, 482. Appellant has failed to demonstrate 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 she would 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 consider 
the guidelines set forth in section 40-4-212, MCA. This 

section 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." 

In re Marriage of Tweeten, supra, 172 Mont. at 407, 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 parents expressed a desire for custody of their son, so 

this factor is not of controlling importance in this custody 

decision. Nor does the second factor control. The minor 

child, through his guardian ad litem, communicated that he 

was unable to express an opinion either way on which parent 

snould have custody of him. The child's primary concern was 

that once custody was determined, he wanted as much visitation as possible with the noncustodial parent. 

A factor which the District Court must also consider 
in awarding joint custody is which 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 frequent and 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 a previous 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's pendency. He did pay $10 

per month in child support for each of the six months 

preceding the custody hearing. At the time of trial, father 

was estimating a future income of $650 per month consisting 
of 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 the date 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 

Distrlct Court'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 a past criminal record 

consisting of a few misdemeanor theft charges and one felony 

bad check charge. Since the summer of 1979, however, stepfather has no criminal record. 

The District 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 the District 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 parenting 
of 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 

seizures would 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 in Chester for his visits to father's home in Valier. 

Father testified under cross-examination that he had 

been admitted to the psychiatric ward of the Great Falls 

Deaconess Hospital several times by his doctors because they 

thought his seizures were brought on by emotion. He then 

testified that he had "doctored" with psychologists at the 

mental health clinic. On redirect, he explained that this 

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

was presented by father to support his claim that he did not 

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 to mother. Corbett v. Corbett (1981), - 

Mont . , 635 P.2d 1319, 1322, 38 St.Rep. 1852, 1856. The 

record shows the desire of both parents to have custody and 

the desire of the minor child to maintain contact with both 
his father and mother. The minor child interacts well with 

stepfather, his half-brother, and his friends in mother's 

community, and he has adjusted well to school. 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 

with the mother. 

Father last argues that the District Court erred in 

considering his past financial contributions in determining 

custody. Nothing in the District Court's findings, conclusions and order indicates that this was the case. The court 

did examine the past support and income of father and of 

stepfather as well as father's projected income. It appears 

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£ f irmed. 

%d2!L$~Chief Justice 

We concur: