NO. 96-091 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

IN RE MARRIAGE OF 

JAMES ALAN ABRAHAMSON, 

Petitioner and Respondent, 

011~ tit3 19% 

and 

MICHELLE SHERRIE ABRAHAMSON, 

Respondent and Appellant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Thomas C. Honzel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James P. Reynolds, Reynolds, Mot1 and 

Sherwood, Helena, Montana 

For Respondent: 

John L. Hollow, Attorney at Law, 

Helena, Montana 

Filed: 

Submitted on Briefs: June 27, 1996 

Decided: October 8, 1996 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

The respondent, James Abrahamson, filed a motion in the 

District Court of the First Judicial District in Lewis and Clark 

County, pursuant to 5 40-4-219(l) (f), MCA, to modify primary 

residential custody of the parties' child, Jordin. The District 

Court granted James' motion. The appellant, Michelle Abrahamson, 

appeals the District Court's judgment. We affirm the order and 

judgment of the District Court. 

The issue on appeal is whether the District Court erred when 

it granted James Abrahamson's motion to modify custody of the 

parties' child. 

FACTUAL BACKGROUND 

In December 1992, the parties' marriage was dissolved by 

decree of the District Court. Incorporated into that decree is a 

Custody, Support, and Property Settlement Agreement. The agreement 

granted the parties joint legal custody of Jordin, the sole child 

of the marriage, designated Michelle as the primary residential 

custodian, and provided James with visitation rights. 

After the dissolution, both parties remained in Helena. 

However, in January 1995, Michelle told James that she might be 

moving to Salt Lake City, Utah. James filed a motion with the 

District Court, in which he moved for a modification of custody and 

a restraining order to prevent Michelle from leaving Helena before 

the matter could be heard by the District Court. Subsequently, 
Michelle filed her objections to James' motions, and her own motion 

to amend custody and visitation. 

In March 1995, Michelle provided James with formal notice of 

her intent to change Jordin's residence from Montana to Utah. In 

an affidavit dated February 3, 1995, she stated that the purpose of 

her move was to attend the University of Utah and pursue a career 

in the Federal Bureau of Investigation. In a second affidavit, 

dated April 28, 1995, she stated that her purpose was to enroll in 

a criminal justice course at Salt Lake City Community College. She 

also stated that, in order to qualify for the in-state tuition rate 

and certain higher education grants, she was required to become a 

resident of Utah no later than June 1, 1995. However, after 

Michelle moved to Utah, she instead enrolled in the University of 

Phoenix Business School in Salt Lake City. At the time of the 

hearing, she was not attending school, and it is disputed as to 

whether she ever did, in fact, attend classes. 

The parties jointly submitted an order to the District Court 

which allowed Michelle to move to Utah, and provided that Donna 

Hale, a licensed clinical social worker, would conduct a custody 

evaluation and prepare a custody report. 

The District Court heard the motion to modify custody on 

September 21, 1995. 

At the hearing, James sought to establish that Michelle leads 

an unstable life and therefore, that Jordin's best interest would 

be served by a modification of the custody arrangement. James 

3 
testified about a number of subjects: his work schedule and how it 

would allow him to spend time with Jordin; his relationship with 

Jordin; his strengths as a parent; his ability and desire to serve 

as the primary residential custodian; his relationship with 

Michelle since the dissolution; and the family support network 

Jordin has in Helena. He expressed concern about Michelle's 

ability to effectively parent Jordin, as well as her commitment to 

her role as a parent. He also responded to several allegations 

made by Michelle, including his possession of pornographic 

materials, his relationships with several women, and the fact that 

he had taken Jordin into the mens' locker room at the athletic club 

to shower. 

Denise Blankenship and Kristi Rivenes, both of whom were 

friends of Michelle while she lived in Helena, testified that 

Michelle had been, on occasion, inadequate as a parent. 

Blankenship described Michelle as being inattentive to Jordin's 

needs, and impatient with Jordin on several occasions. Rivenes 

testified that Michelle was an irresponsible parent because she 

"never thought of Jordin first." 

Michelle presented evidence to support her contention that a 

custody modification would not be in Jordin's best interest. Paula 

Fenton, Jennifer Lamach, Roweena Meehan, Debbie Stanton, and 

Treanna Olson all testified that Michelle is a good parent, and 

that she has a strong relationship with Jordin. Karl Lieb, 

Michelle's boyfriend, also testified on her behalf. He stated that 

4 
he has developed a strong relationship with Jordin, and that Jordin 

was doing well in Utah. Michelle's testimony described her 

relationship with Jordin; her abilities as a parent; her reasons 

for moving to Utah; her work schedule; her availability as a 

parent; and her relationship with James since the divorce. 

Michelle asserted that both she and Jordin were doing extremely 

well since moving to Utah, and that a modification of custody would 

not be in Jordin's best interest. 

Throughout the hearing, there was a significant amount of 

testimony relating to Michelle's purchase of a tanning salon in 

Salt Lake City. Michelle had engaged in negotiations for the 

purchase of one salon, but ultimately purchased another. Denise 

Robbins testified that Michelle had sought to purchase her salon, 

but that Michelle breached the contract. Furthermore, Robbins 

testified that Michelle planned to keep her day job and work at the 

salon during nights and weekends. Michelle disputed those claims, 

and asserted that the evidence regarding the purchase of the 

tanning salon was irrelevant to Jordin's best interest. James 

asserted, however, that the evidence was relevant, and established 

that Michelle lacked stability. According to James, the evidence 

also contradicted Michelle's stated purpose for moving to Utah. 

And finally, it established that her work schedule would not allow 

her to be an effective and available parent. 

Donna Hale, a licensed clinical social worker, testified 

regarding her custody evaluation. Her report concluded that both 

5 
Michelle and James genuinely love Jordin, and that there was no 

evidence of endangerment with either parent. Ultimately, her 

report recommended that, while both parents should continue to 

share joint legal custody, Michelle should be the primary 

residential custodian. 

The District Court granted James' motion to modify custody, 

designated James as the primary residential custodian, ordered that 

the parties should retain joint legal custody, and established a 

visitation schedule. 

Subsequent to Michelle's appeal from that judgment, James 

filed with this Court a motion to strike materials and references 

not before the District Court, and a request for sanctions. In 

support of that motion, James alleges that "Michelle's actions in 

placing before this Court materials that were not part of the 

record of what occurred before the district court violate Rule 9, 

M.R.App.P." It is well established that this Court will not 

consider any evidence not contained in the record on appeal. Johnson 

v. Killingsworth (19951, 271 Mont. 1, 3, 894 P.2d 272, 273. Therefore, 

James' motion is granted, and the portion of Michelle's reply brief 

that refers to James' operation of Jordin River Products is 

stricken. James' request for sanctions is denied. 

DISCUSSION 

Did the District Court err when it granted James' motion to 

modify custody? 

6 
When we review a District Court's findings related to a 

modification of custody, the standard of review is whether those 

findings are clearly erroneous. hreMarriageofElseu (1995), 271 Mont. 

265, 270, 895 P.2d 619, 622. When findings upon which a decision 

is predicated are not clearly erroneous, we will reverse a District 

Court's decision to modify custody only where an abuse of 

discretion is clearly demonstrated. Elser , 271 Mont. at 270, 895 

P.2d at 622. 

On appeal, Michelle asserts that the District Court erred when 

it: (1) failed to adopt the recommendations made by Donna Hale in 

her custody report; (2) misapprehended the effect of certain 

proffered evidence; and (3) failed to apply the law as set forth in 

§ 40-4-212(3) (a), MCA. 

Donna Hale's custody report made the following 

recommendations: the parties should share joint legal custody; 

Michelle, as the primary residential custodian, should have custody 

of Jordin during the school year; and James should have visitation 

rights and custody of Jordin during the summer. The District 

Court, however, did not adopt the custody report's recommendations. 

Instead, it modified custody and designated James as the primary 

residential custodian. Michelle asserts that the District Court 

abused its discretion when it failed to adopt the custody report's 

recommendations. 

Section 40-4-215, MCA, authorizes a district court to order an 

investigation and report concerning custodial arrangements for a 

7 
child. 1n Marriage of Mosetnan , we interpreted that statute and held 

that a district court is not bound by a court-ordered custody 

investigation. InreMnrri~geofMosurnan (1992), 253 Mont. 28, 31, 830 

P.2d 1304, 1306. After a review of our prior cases, we determined 

that they "require that a specific finding of fact is required 

regarding a custody investigation ordered by the court." Marriage of 

Mo.~eman, 253 Mont. at 31, 830 P.2d at 1306. An abuse of discretion 

will be found if "we are not able to determine if the District 

Court even considered the report." Marriage of Mosemnn , 2 5 3 Mont at 

31, 830 P.2d at 1306. 

In this case, the District Court's findings of fact and 

conclusions of law refer to the custody report four times and 

recite its recommendations verbatim. Furthermore, when it rejected 

the custody report's recommendations and granted the motion to 

modify custody, the District Court specifically found that Michelle 

was not "forthright with Donna Hale or the Court." The District 

Court was not required to adopt the custody report. It was only 

required to consider the report when making its custody 

determination, and to make the required specific finding of fact. 

We conclude that the District Court fulfilled its obligations, and 

hold that it did not abuse its discretion when it failed to adopt 

Hale's custody report. 

Michelle next asserts that the District Court abused its 

discretion when it misapprehended the effect of certain proffered 

evidence. 

8 
At the outset of our analysis, we note that 'I [tlhe trial court 

is in a better position than this Court to resolve child custody 

issues. The district court's decision is presumed correct and will 

be upheld unless a clear abuse of discretion is shown." In re Cmto& 

~fLA4.D (1993), 259 Mont. 468, 473, 857 P.Zd 708, 712. 

At the hearing, both of the parties and a number of witnesses, 

including Donna Hale, testified at great length. Virtually all of 

the testimony was contested. Michelle attempted to establish that 

she is a good parent. She also challenged James' ability to 

parent, and defended both her decision to move to Utah and her work 

schedule. James, on the other hand, produced evidence establishing 

that Michelle's life-style is unstable and impulsive. His 

witnesses testified that Michelle is inattentive to Jordin's needs, 

is unwilling to place Jordin's interests ahead of her own, and is 

often impatient with Jordin. The evidence related to Michelle's 

purchase of the tanning salon suggested that her work schedule 

would be unpredictable, and could include nights and weekends. 

Furthermore, her work hours at the tanning salon could be in 

addition to those required by her day job. The District Court made 

an independent determination that Michelle had not been forthright 

with Donna Hale regarding the tanning salon and her work schedule, 

nor with the District Court regarding her reasons for moving to 

Utah. 

Thus, ultimately, the District Court was faced with 

conflicting accounts, and forced to resolve a myriad of factual 

9 
disputes. Based on all of the evidence and testimony presented at 

the hearing, the District Court determined that James' situation is 

more stable than Michelle's, and therefore, that James should have 

custody of Jordin during the school year. It is well established 

that issues of evidentiary weight and witness credibility are 

within the province of the trial court, and that "we will not 

substitute our judgment for that of the District Court." In Ye 

AdoptionofJA4.G. (1987), 226 Mont. 525, 528, 736 P.2d 967, 969. We 

have recognized that when the record contains conflicting evidence, 

I' [ilt is the function of the District Court to resolve such 

conflicts." InreMa~ringeofPenning (19891, 238 Mont. 75, 78, 776 P.2d 

1214, 1216. 

Based on our review of the record, we conclude that the 

District Court's findings are supported by substantial evidence and 

were not clearly erroneous. Furthermore, we conclude that when it 

made its determination that Jordin's best interest required a 

modification of custody, the District Court did not abuse its 

discretion. 

Finally, Michelle alleges that the District Court failed to 

apply § 40-4-212(3) (a), MCA, which states: 

(3) The following are rebuttable presumptions and 

apply unless contrary to the best interest of the child: 

(a) Custody should be granted to the parent who has 

provided most of the primary care during ,the child's 

life. 

10 
She contends that the District Court committed a fundamental error 

in its conclusions of law when it failed to apply or mention 

5 40-4-212(3) (a), MCA. 

Contrary to Michelle's assertions, we conclude that the 

District Court did, in essence, apply 5 40-4-212(3) (a), MCA. 

Despite its failure to specifically mention the statute, the 

District Court found that the presumption had, in fact, been 

rebutted. Michelle's reliance on the District Court's finding that 

both parents are fit to have custody is misplaced. Section 

40-4-212(3) (a), MCA, does not require the District Court to find 

that one parent is unfit to have custody. Rather, it establishes 

a presumption in favor of the preexisting custodial parent, but 

& a rebuttable presumption. And as we recognized previously in 

this opinion, there was substantial evidence upon which the 

District Court based its decision to modify custody. The District 

Court found that Jordin's best interest required a modification of 

custody and the designation of James as the primary residential 

custodian. It necessarily and logically follows that a failure to 

modify custody and the retention of Michelle as the primary 

residential custodian would not be in Jordin's best interest. We 

conclude that the District Court, based on all of the evidence, 

determined that the statutory presumption had been adequately 

rebutted, and that the District Court's failure to explicitly 

mention § 40-4-212(3) (a), MCA, constitutes, at most, harmless 

error. See Rule 61, M.R.Civ.P. 

11 
Our decision today does not render § 40-4-212(3) (a), MCA, 

meaningless. District courts should be cognizant of § 40-4- 

212(3) (a), MCA, and should take appropriate steps to ensure that it 

is, in all applicable cases, adequately considered. We hold only 

that, based on substantial evidence in this case, the statutory 

presumption was adequately rebutted, and the District Court's 

failure to specifically mention § 40-4-21213) (al, MCA, does not 

constitute reversible error. 

The judgment of the District Court is affirmed. 

We concur: 

Chief Justice 

12 
October 8, 1996 

CERTIFICATE OF SERVICE 

I hereby certify tbat,the following certified order was sent by United States 

following named: 

James P. Reynolds, Esq. 

Reynolds, Mot1 and Sherwood 

401 No. Last Chance Gulch 

Helena, MT 59601 

John L. Hollow 

Attorney at Law 

mail, prepaid, to the 

318 E. sixth Ave. 

Helena, MT 59601 

COURT 

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