No. 81-258 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981

INRE THE MARRIAGE OF ROBIN R. CAMERON, Petitionerand Appellant,

-vsGRANT L. CAMERON, Respondent and Respondent.

Appeal from: DistrictCourtof the ThirteenthJudicial District, In and for the Countyof Yellowstone, The Honorable RobertWilson, Judge presiding.

Counsel of Record: For Appellant: Holmstrom, Dunaway & West, Billings, Montana

For Respondent: Berger, Sinclair & Nelson; ChrisJ. Nelson, Billings, Montana

Submittedon Briefs: December 11, 1981 Decided: March 3, 1982

Filed: 

## MAR3

## -1982Mr. Justice Fred J. Weber delivered the Opinion of the Court. Appeal from a custody determination by the District Court of the Thirteenth Judicial District,Yellowstone County, in a proceeding for dissolution ofmarriage by Appellant Wife against RespondentHusband, in which custody of the three year old sonwas awarded to Husband. We remand for further findings and conclusions. The parties married onNovember 25, 1976. One child

was born to themarriage, a sonwho attained three years by the time of marriage dissolution. Following a determination that themarriagewas irretrievably broken, themarriage was dissolved by order of the District Court on January 9, 1981. The issues on this appeal relate only to the custody of the three year old son. No reference will be made to factsnot relevant to that issue. During the separation and after the entry of the order

on January 9, 1981, the threeyear old son livedwith Wife and with the sevenyear old daughter of Wife, the halfsister of the three year old son. The December 18, 1980, findings of fact on the matter of custody are particularly relevant. The court found: "V. "Thatboth parties desire the care, control and custody of theminor child Kristopher L. Cameron [three year old son]; that the parties hereto separated in June of 1980, and since separation the saidminor child has resided with the petitioner and her daughter from a previousmarriage; that the saidminor child and his older sister are extremely close,with the saidminor child being included inmany of his older sister's activities and the older sisterbeing included in the said minor child's activities such as when he has visited with his father during the period of separation,the said older child has accompanied him; that the home provided 

### by the petitioner is adequate

### for the minor child and the home thatwould be provided by the respondentwould be adequate for the minor child if he were to obtain custody and thatboth are fit and proper parents for the custody of said child; that although the respondent is a diabetic,his medical condition is not such thatwould endanger the health and welfare of said child." In the finding the District Court emphasized the significant close relationship between the three year old boy and his seven year old sister. The finding does indicate that both Wife and Husband were proper parents to have the custody of the threeyear old son. The court further stated: "XIII. "Bothparties have a very close relationship with the minor child of themarriage and respondent has a close relationship aswell with thepetitioner's child of a formermarriage. It is in thebest interests of Kristopher L. Cameron,minor child of themarriage, that the petitioner and the respondenthave joint custody so that as close a relationship as possible canbe enjoyed by said child with both parents." The DistrictCourt then concluded that itwas in the best interests of the threeyear old son that his care, custody and control be awarded jointly to the Wife and Husband. In addition, the District Court ordered that the partiesmeet with the Court Servicespersonnel to assist them in working out the details of the joint custody arrangements, with a proviso that in the event the partieswere unable to agree
on such arrangementswithin 30

### days, the courtwould render

a decision on those issues. Husband and Wife were unable to agree to the terms and conditions of 

### a joint custody agreement. 

### A hearing was held

on 

### February 20, 

### 1981,atwhich Husband and Wife and Sally Smith of the Child Crisis Center testified. By order dated March 4, 

### 1981, the court found that the parties on several occasionsmet with Sally Smith in an effort to work out the

### joint custodial arrangements and were unable to work out mutually satisfactory arrangements; and that since the decision the three year old son had continued to reside with theWife with the Husband enjoying visitation rights. The trial court made further additional findings: "Thatbecause of the inability of the parties to agreeupon the terms of the joint custody and because of the controversy existing between them is affecting the child, it is in the child's best interests that one or the other of the said parties be designated as the custodialparent with the otherparty enjoying visitation rights. "Thatit is in the best interests of the minor child of the parties that the respondent, Grant L. 

### Cameron, be given his care, control and custody subject to the right of reasonable visitation on the part of the petitioner,Robin R. Cameron, which shall include, but notbe limited to, the right to have the said childwith her on alternate weekends from 7:00 p.m., Friday until 7:00 p.m. Sunday, alternate holidays such as Easter, July 4, 

### Labor Day,Thanksgiving and Christmas and for two twoweek periods during the summer months when school is not in session,the exact time of the said two two week periods to be agreed upon by the parties." Based upon the foregoing finding,the court awarded the care, control and custody of the three year old son to the Husband subject to the rightof visitation as spelled out in the finding. The issues on appeal are:

(1) Were the findings and conclusionsof the District Court a sufficient basis for the award of custody to the Husband? (2) 

### Was it 

### error for the District Court to fail to follow the clear legislativepolicy of custodial continuity in awarding custody of the child to the Husband? (3) 

### Was the failure of the District Court to provide Wife's counselwith investigator's report,coupledwith 

### the court's relianceonwitness's ex parte report to the court,reversible error? I. The first issue questions the findings of fact and conclusions upon which the courtbased its award of custody to Husband. As previously set forth, the findingsof December 18, 1980, indicate thatboth Wife and Husband are fit and proper parents for custody,with an emphasis that the three year old son and his seven year old sister are extremely close. Next the court found thatboth Wife and Husband have

a very close relationshipwith the three year old son and that the Husband has a close relationshipwith the seven year old daughter of Wife. The court concluded that it was in the best interests of the three year old son that the Wife and Husband have "jointcustody so that as close a relationship as possible can be enjoyed by said child with both parents." We have reviewed the transcript of the testimony, and find that the evidence sustains the initial findings of the court, fromwhich the court concluded that joint custody of the child was appropriate. As previously noted, Wife and Husband were unable to agree upon the details of a joint custody arrangementand the additional hearing was held. In its order of March 4, 1981, the court found that itwas in the three year old son's best interests that one or the other of the parents be designated as a custodial parent with the other enjoying visitation rights. Under section 40-4-218, MCA, the custodian may determine the child's upbringing, including his education, health care and religious training, subject to control by the court, so the matter of custodial determination is quite significant in the present case.The factorswhich the court is required to consider in determining custody are set forth in section 40-4-212,MCA. TheMarch 4, 1981,order included the District Court's finding that itwas in the best interests of the three year old child that the Husband be given his care, control and custody with the Wife to have visitation rights. The findingwas in the form of a conclusory statement,unsupported by facts explainingwhy Husband rather than Wife should have custody. The evidence in the transcript would support an award of custody to either Husband orWife. The factsupon which the court made a determination that custody should be awarded to

oneparent rather than the other are required under the holding of this Court in Bartmess v. Bartmess (1981), 631 P.2d 299, 300, 38 St.Rep. 1097, 1098, inwhich the Court stated: 

# ".

. . the court's findings on the award of custody contained only the child's name and age and the conclusory statement that it would be in the child's best interest that she be placed in the permanent care, custody and control of her mother. The findings on 

### - custody 

### -- did not record the essential and 

### determining facts upon which the District Court rested its conclusion on 

### -- the custody issue. Therefore, the District Court's - judgmentas to custody lacked support. Marriage of Barron (1978), 177Mont. 161, 580 P.2d 936." (Underscoringadded.) When the findings of December 18, 1980,are consideredwith the findings of March 

### 4, 1981,not only is there an absence of a finding of the facts upon which the court determined that custody should be awarded to Husband,but the facts as determined by the court tend to support a conclusion to the contrary because of the emphasis on the closeness of the relationship between the boy and his sister. The findings are not sufficient to allow this Court to approve the awardof custody to the Husband.

The next issue questions the failure of the District Court to follow a legislativepolicy of custodial continuity. Wife's counsel contends that section 40-4-219,MCA, is a basis for the contention that the District Court should not have modified the prior decree under which Wife was the custodian. That section is not applicable aswe are not here faced with an attemptby the District Court tomodify a prior custody decree which would be the basis for the application of section 40-4-219,MCA. While that code section is not applicable, it is true that the continuity and stability of the family relationshipbetween the child and custodian is important. Gilmorev. Boehm (1975), 166Mont. 47, 530 P.2d 480. We, therefore, request the District Court in its further consideration of this matter to address its prior factualdetermination of the close relationship between the three year old son and his sevenyear old sister, as it relates to the question of custody.

Wife argues that the failure of the District Court to provide a written copy of the Sally Smith report is reversible

error. Counsel refers to section 40-4-215(3), MCA, which provides that the court shallmail the investigator's report to counsel at least ten days prior to the hearing. That section is not applicable to the presentproceedings. Section 40-4-215(1), MCA, provides: 

### "(1) In contested custody proceedings 

# . .

# . if a parent or the child's custodian so requests, the courtmay order an investigation and report concerning custodial arrangements for the child

# . . ."No request was made by either parent for such an investigation and the courtdid not order such an investigation. As previously stated, in its December 18, 1980, order, the court ordered the parties tomeet with Court Services personnel to assist them inworking out the details of the joint custody arrangements. That iswithin the power of the court and does not bring section 40-4-215,MCA, into play. The record shows that no written reportby Sally Smithwas prepared. The DistrictCourt also specifically stated that Sally Smith did notmake any recommendation to the court. Under these facts there is no requirement under section 40- 4-215, MCA, for the preparation and serviceof the written report. In addition, the transcript shows that Sally Smith talked at least four or five times to Wife as well as to Husband in addition to a number of telephone calls, and also met with counsel for both Wife and Husband. Nothing in the nature of concealment is shownby the record. Finally, Sally Smithwas present at the lasthearing on February 20, 1981,and counsel forWife had an adequate opportunity to examine or cross-examine Sally Smith. We find a total absence of any prejudice so far as Wife is concerned. IV. The order of March 

### 4, 1981, of the District Court determining the care, custody and control of the three year old son is vacated, and the cause is remanded for the preparation and entry of new findings,conclusions and order of custody, together with such additional hearing, if any, as the District Courtdetermines to be necessary.We Concur: