No. 81-258 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

198 1 

IN RE THE MARRIAGE OF 

ROBIN R. CAMERON, 

Petitioner and Appellant, 

-vsGRANT L. CAMERON, 

Respondent and Respondent. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, The Honorable 

Robert Wilson, Judge presiding. 

Counsel of Record: 

For Appellant: 

Holmstrom, Dunaway & West, Billings, Montana 

For Respondent: 

Berger, Sinclair & Nelson; Chris J. Nelson, 

Billings, Montana 

Submitted on Briefs: December 11, 1981 

Decided: March 3, 1982 

Filed: MAR 3 - 1982 
Mr. 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 of marriage by 

Appellant Wife against Respondent Husband, in which custody 

of the three year old son was awarded to Husband. We remand 

for further findings and conclusions. 

The parties married on November 25, 1976. One child 

was born to the marriage, a son who attained three years by 

the time of marriage dissolution. Following a determination 

that the marriage was irretrievably broken, the marriage 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 facts not 

relevant to that issue. 

During the separation and after the entry of the order 

on January 9, 1981, the three year old son lived with Wife 

and with the seven year 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. 

"That both parties desire the care, control 

and custody of the minor child Kristopher 

L. Cameron [three year old son]; that the 

parties hereto separated in June of 1980, 

and since separation the said minor child 

has resided with the petitioner and her 

daughter from a previous marriage; that the 

said minor child and his older sister are 

extremely close, with the said minor child 

being included in many of his older sister's 

activities and the older sister being 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 that would 

be provided by the respondent would be adequate for the minor child if he were to obtain custody and that both are fit and proper 

parents for the custody of said child; that 

although the respondent is a diabetic, his 

medical condition is not such that would 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 three year old son. The court further stated: 

"XIII. 

"Both parties have a very close relationship 

with the minor child of the marriage and respondent has a close relationship as well with 

the petitioner's child of a former marriage. 

It is in the best interests of Kristopher L. 

Cameron, minor child of the marriage, that 

the petitioner and the respondent have joint 

custody so that as close a relationship as 

possible can be enjoyed by said child with 

both parents." 

The District Court then concluded that it was in the best 

interests of the three year old son that his care, custody 

and control be awarded jointly to the Wife and Husband. In 

addition, the District Court ordered that the parties meet 

with the Court Services personnel to assist them in working 

out the details of the joint custody arrangements, with a 

proviso that in the event the parties were unable to agree 

on such arrangements within 30 days, the court would 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, at which 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 

occasions met 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 

the Wife with the Husband enjoying visitation rights. The 

trial court made further additional findings: 

"That because of the inability of the parties 

to agree upon 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 custodial parent with the other party enjoying visitation rights. 

"That it 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 not be limited to, the right to have the 

said child with 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 two week 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 right of visitation as spelled out in 

the finding. 

The issues on appeal are: 

(1) Were the findings and conclusions of 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 legislative policy of custodial continuity 

in awarding custody of the child to the Husband? 

(3) Was the failure of the District Court to provide 

Wife's counsel with investigator's report, coupled with the 

court's reliance on witness's ex parte report to the court, 
reversible error? 

I. 

The first issue questions the findings of fact and 

conclusions upon which the court based its award of custody 

to Husband. As previously set forth, the findings of December 

18, 1980, indicate that both 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 that both Wife and Husband have 

a very close relationship with the three year old son and 

that the Husband has a close relationship with 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 "joint custody 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, from which 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 arrangement and 

the additional hearing was held. In its order of March 4, 

1981, the court found that it was 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 factors which the court is required to consider in 

determining custody are set forth in section 40-4-212, MCA. 

The March 4, 1981, order included the District Court's finding that it was 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 finding was 

in the form of a conclusory statement, unsupported by facts 

explaining why Husband rather than Wife should have custody. 

The evidence in the transcript would support an award of 

custody to either Husband or Wife. The facts upon which the 

court made a determination that custody should be awarded to 

one parent 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, in which 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 

judgment as to custody lacked support. 

Marriage of Barron (1978), 177 Mont. 161, 

580 P.2d 936." (Underscoring added.) 

When the findings of December 18, 1980, are considered with 

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 award 
of custody to the Husband. 

The next issue questions the failure of the District 

Court to follow a legislative policy 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 as we are not 

here faced with an attempt by the District Court to modify 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 relationship between the child and custodian is 

important. Gilmore v. Boehm (1975), 166 Mont. 47, 530 P.2d 

480. We, therefore, request the District Court in its 

further consideration of this matter to address its prior 

factual determination of the close relationship between the 

three year old son and his seven year 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 shall mail the investigator's report 

to counsel at least ten days prior to the hearing. That 

section is not applicable to the present proceedings. 

Section 40-4-215(1), MCA, provides: 

"(1) In contested custody proceedings . . . if a parent or the child's custodian so requests, the court may order an investigation 

and report concerning custodial arrangements 

for the child . . ." 
No request was made by either parent for such an investigation and the court did not order such an investigation. As 

previously stated, in its December 18, 1980, order, the 

court ordered the parties to meet with Court Services personnel 

to assist them in working out the details of the joint 

custody arrangements. That is within the power of the court 

and does not bring section 40-4-215, MCA, into play. The 

record shows that no written report by Sally Smith was 

prepared. The District Court also specifically stated that 

Sally Smith did not make any recommendation to the court. 

Under these facts there is no requirement under section 40- 

4-215, MCA, for the preparation and service of 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 shown by the record. Finally, 

Sally Smith was present at the last hearing on February 20, 

1981, and counsel for Wife 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 

Court determines to be necessary. 
We Concur: