NO. 96-091 INTHESUPREMECOURTOFTHESTATEOFMONTANA 1996

INREMARRIAGE OF JAMESALANABRAHAMSON,

Petitioner and Respondent, 011~tit3

## 19% and MICHELLE SHERRIE ABRAHAMSON,

Respondent andAppellant.

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis andClark, The Honorable Thomas C. Honzel, Judge presiding.

COUNSELOFRECORD:

For Appellant: James P. Reynolds, Reynolds, Mot1 and Sherwood, Helena, Montana For Respondent: John L. Hollow, Attorney at Law, Helena, Montana

Filed: Submitted onBriefs: June 27, 1996 Decided: October 8, 1996Justice 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. Weaffirm the order and judgment of the District Court. The issue onappeal 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, andProperty Settlement Agreement. Theagreement granted the parties joint legal custody of Jordin, the sole child of the marriage, designated Michelle as the primary residential custodian, andprovided 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 amotion with the District Court, in which hemovedfor amodification of custody and
arestraining 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, andher ownmotion

to amend custody andvisitation. In March 1995, Michelle provided James with formal notice of her intent to change Jordin's residence from Montana to Utah. In
anaffidavit dated February 3, 1995, shestated that the purpose of her move was to attend the University of Utah andpursue acareer in the Federal Bureau of Investigation. In asecond affidavit, dated April 28, 1995, shestated that her purpose wasto enroll in
acriminal justice course at Salt Lake City Community College. She also stated that, in order toqualify for the in-state tuition rate andcertain 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 anorder to the District Court which allowed Michelle to move to Utah, and provided that Donna Hale, alicensed clinical social worker, would conduct acustody evaluation andprepare acustody report. The District Court heard the motion to modify custody on September 21, 1995. At the hearing, James sought to establish that Michelle leads
anunstable life and therefore, that Jordin's best interest would be served by amodification of the custody arrangement. James

3testified about anumber of subjects: his work schedule andhowit

would allow him to spend time with Jordin; his relationship with Jordin; his strengths asaparent; his ability anddesire 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, aswell asher commitment to her role as aparent. Healso responded to several allegations made by Michelle, including his possession of pornographic materials, his relationships with several women, andthe fact that hehadtaken 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 bein Jordin's best interest. Paula Fenton, Jennifer Lamach, Roweena Meehan, Debbie Stanton, and Treanna Olson all testified that Michelle is agood parent, and that she has a strong relationship with Jordin. Karl Lieb, Michelle's boyfriend, also testified onher behalf. Hestated that

4hehasdeveloped astrong relationship with Jordin, andthat Jordin

was doing well in Utah. Michelle's testimony described her relationship with Jordin; her abilities as aparent; 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, andthat amodification 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 atanning 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 dayjob andwork at the salon during nights andweekends. 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 wasrelevant, andestablished that Michelle lacked stability. According to James, the evidence also contradicted Michelle's stated purpose for moving to Utah. Andfinally, it established that her work schedule would not allow her to beaneffective and available parent. Donna Hale, a licensed clinical social worker, testified regarding her custody evaluation. Her report concluded that both

5Michelle 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 Jamesasthe 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 amotion to strike materials and references not before the District Court, and arequest 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 anyevidence not contained in the record onappeal. Johnson

v.Killingsworth (19951, 271Mont. 1, 3, 894 P.2d 272, 273. Therefore, James' motion is granted, andthe 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?

6When 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), 271Mont. 265, 270, 895 P.2d 619, 622. Whenfindings upon which adecision is predicated are not clearly erroneous, wewill reverse aDistrict 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. Onappeal, Michelle asserts that the District Court erred when it: (1) failed to adopt the recommendations madeby Donna Hale in her custody report; (2) misapprehended the effect of certain proffered evidence; and (3) failed to apply the law asset 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, asthe primary residential custodian, should have custody of Jordin during the school year; andJames 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 adistrict court to order an investigation and report concerning custodial arrangements for a
7child. 1nMarriageofMosetnan,weinterpreted 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 areview of our prior cases, wedetermined that they "require that a specific finding of fact is required regarding acustody investigation ordered bythe court." Marriageof Mo.~eman,253Mont. at 31, 830P.2d at 1306. Anabuse of discretion will be found if "we are not able to determine if the District Court even considered the report." MarriageofMosemnn,253Mont 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, whenit rejected the custody report's recommendations and granted the motion to modify custody, the District Court specifically found that Michelle
wasnot "forthright with Donna Hale or the Court." The District Court wasnot required to adopt the custody report. It was only required to consider the report when making its custody determination, andto make the required specific finding of fact. Weconclude 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. 8At the outset of our analysis, wenote that 'I[tlhe trial court

is in abetter position than this Court to resolve child custody issues. Thedistrict court's decision is presumed correct andwill beupheld unless aclear abuse of discretion is shown." InreCmto& ~fLA4.D (1993), 259Mont. 468, 473, 857 P.Zd 708, 712. At the hearing, both of the parties andanumber of witnesses, including Donna Hale, testified at great length. Virtually all of the testimony wascontested. Michelle attempted to establish that she is a good parent. She also challenged James' ability to parent, anddefended both her decision to moveto Utah andher work schedule. James, onthe other hand, produced evidence establishing that Michelle's life-style is unstable and impulsive. His witnesses testified that Michelle is inattentive toJordin'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 byher dayjob. TheDistrict Court made
anindependent determination that Michelle hadnot been forthright with Donna Hale regarding the tanning salon andher 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 amyriad of factual
9disputes. Based onall of the evidence andtestimony presented at

the hearing, the District Court determined that James' situation is
more stable than Michelle's, andtherefore, 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." InYe AdoptionofJA4.G. (1987), 226 Mont. 525, 528, 736 P.2d 967, 969. We have recognized that whenthe 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 bysubstantial evidence and
were not clearly erroneous. Furthermore, weconclude 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 begranted tothe parent whohas provided most of the primary care during ,the child's life.

10Shecontends that the District Court committed afundamental error

in its conclusions of law when it failed to apply or mention 540-4-212(3) (a), MCA. Contrary to Michelle's assertions, we conclude that the District Court did, in essence, apply 540-4-212(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 onthe 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 oneparent is unfit to have custody. Rather, it establishes
apresumption in favor of the preexisting custodial parent, but & arebuttable presumption. Andaswerecognized 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 amodification of custody and the designation of James as the primary residential custodian. It necessarily andlogically follows that afailure 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. SeeRule 61, M.R.Civ.P.

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

meaningless. District courts should be cognizant of §40-4- 212(3) (a), MCA,andshould take appropriate steps to ensure that it is, in all applicable cases, adequately considered. Wehold 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. Thejudgment of the District Court is affirmed.

Weconcur:

Chief Justice

12

### October8,1996
CERTIFICATEOFSERVICE Ihereby certifytbat,thefollowingcertifiedorderwassentbyUnitedStates followingnamed: James P.Reynolds,

Esq. Reynolds, Mot1andSherwood 401No.LastChance

Gulch Helena, MT59601 JohnL.Hollow AttorneyatLaw mail,prepaid,tothe

318E.sixthAve. Helena, MT59601

COURT

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