No. 91-099 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN RE THE MARRIAGE OF 

DEBORAH LYNNE COOK, 

petitioner and Appellant, 

and 

MARK STEVEN COOK, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable William J. Speare, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Joan Meyer Nye; Nye & Meyer, Billings, Montana 

For Respondent: 

Christopher P. Thimsen, Billings, Montana 

Filed: 

Submitted on Briefs: July 25, 1991 

Decided: August 27, 1991 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

This is an appeal from the child custody determination in a 

dissolution of marriage. The District Court for the Thirteenth 

Judicial District, Yellowstone County, granted Mark Steven Cook 

sole custody of the parties' son and ordered that Deborah Lynne 

Cook's visitation be supervised. She appeals. We affirm. 

Deborah lists nine issues, all of which relate to whether the 

District Court erred in its custody determination. 

Deborah Lynne Cook (Deborah) and Mark Steven Cook (Mark) were 

married in 1986. Their marriage was marked by several lengthy 

separations, but it survived to produce a son, Ryan, born in 

January 1990. At the time of trial, Ryan was six months old. 

Deborah had primary physical custody of the baby until an 

April 20, 1990, incident in which she confronted Mark at the 

Billings, Montana, airport. While the parties presented different 

descriptions of this incident, the District Court found that 

[Deborah] shoved Ryan into [Mark's] arms, became verbally 

abusive, physically removed [Mark's] boarding pass and 

had [Mark's] luggage pulled. In addition, [Deborah] 

knocked [Mark's] glasses off and physically removed 

[Mark's] camera, which [Mark] later retrieved with the 

assistance of airport security. 

Mark had physical custody of the baby from that time until the time 

of trial. During Mark's pre-trial custody, Deborah was granted 

supervised visitation. 

At trial, Deborah testified that Mark had been abusive during 

their marriage. Mark testified that Deborah had disappeared from 
the marital home for months at a time, without explanation- Both 

parties presented testimony by mental health professionals who had 

treated Deborah. While their diagnoses differed, all agreed that 

Deborah was in need of continued mental health treatment. 

A court-appointed social worker conducted an investigation on 

the issues of custody and visitation. In her report to the court, 

she recommended that Mark be granted sole custody of Ryan and that 

Deborah have supervised visitation until her treating mental health 

professional determined it was no longer necessary. She stated 

that Deborah l1has many unresolved problems in her history and she 

consistently blames others for her experiences and her actions.'' 

She also stated that Deborah ''uses manipulation, intimidation and 

threats in her attempt to control her envir~nrnent,?~ and Ithas 

expressed her anger and hostility in a frightening, vicious and 

vindictive manner." The District Court adopted the custody 

arrangement recommended by the social worker in its findings and 

conclusions entered August 7, 1990. 

In an order entered October 16, 1990, the District Court named 

the supervisor for Deborah's visitation with her son and set the 

visitation schedule at 10:OO a.m. to 1:00 p.m. on Tuesday, Thursday 

and Saturday. On December 18, 1990, the District Court denied 

Deborah's motion for new trial and other relief. 

Did the District Court err in its custody determination? 

Initially, we note that this Courtf s standard of review of the 
findings of fact in a child custody determination is whether the 

trial court has abused its discretion. In re Marriage of Obergfell 

(1985) 218 Mont. 83, 87, 708 P.2d 561, 563. This Court will not 

substitute its judgment for that of the district court where the 

evidence conflicts, but rather will limit itself to determining 

whether there is substantial credible evidence in the record to 

support the district court's findings. Oberqfell, 

Deborah argues that the District Court erred in failing to set 

forth the reasons it did not award joint custody. Section 40-4- 

224 (1) , MCA, requires that 

[ulpon application of either parent or both parents for 

joint custody, the court shall presume joint custody is 

in the best interest of a minor child unless the court 

finds, under the factors set forth in 40-4-212, that 

joint custody is not in the best interest of the minor 

child. 

Deborah points out that she requested joint custody. 

The court found, at finding # 16, that "it is in Ryan's best 

interest that [Mark] be awarded sole custody and [Deborah] receive 

visitation. It We conclude that, in combination with the court s 

other findings, finding meets the requirements 

224(1), MCA. 

Deborah states that the District Court failed to make a 

finding as to the mental health of the parties. This assertion is 

incorrect. The District Court found that Deborah "has seen a 

variety of mental health care professionals during the course of 

the marriage,'* and that, although their diagnoses differ, some 

concluding that she suffers a mixed personality disorder, others 
that she suffers from a bipolar affective disorder, all agree that 

she is in need of further treatment. The court also found that 

Mark has previously been treated by mental health care professionals, has received in-patient treatment for alcohol abuse, and 

was in counseling at the time of trial. 

Deborah also asserts that the ~istrict Court erred in failing 

to have a full custodial investigation. The court-appointed social 

worker testified that the report was Itthe best that I can do." In 

her report, she stated that she was not able to do an actual 

custody investigation because "Instead of interviewing the mother, 

Deborah, I was only in contact with her at her direction." She 

testified that, in making her report, she referred to written 

records including court files, police records, written reports from 

mental health records, and medical reports. She interviewed Mark, 

Deborah, and Deborah's father. She further testified that the 

previous fall she had prepared a report concerning custody of 

Deborah's daughter. She noted the confusion as to Deborah's 

diagnosis. As the incompleteness in the investigation seems to 

result primarily from Deborahls uncertain diagnosis and her 

unavailability to meet with the social worker, we conclude that no 

reversible error has been shown as to this aspect. 

Deborah argues that the court should have relied more on the 

testimony of her psychologist and psychiatrist. Those witnesses 

testified that they believed Ryan would be safe with Deborah. 

However, as Mark points out, none of Deborahls witnesses went so 
far as to say that it would be in Ryan's best interest to be placed 

in Deborah's custody. We conclude that no error has been shown. 

Deborah contends that the District Court should not have 

relied so heavily on the opinions of the court-appointed social 

worker and of counselor Swaggerty, both of whom recommended that 

Mark be granted custody of Ryan and that Deborah be granted only 

supervised visitation. Nothing in the record indicates that the 

court failed to exercise its own independent judgment after 

listening to all of the evidence. However, even heavy reliance on 

expert testimony does not necessarily constitute abuse of a 

district court's discretion. In re Marriage of Ereth (1988), 232 

Mont. 492, 494, 757 P.2d 1312, 1313-14. 

Deborah argues that she should have been awarded primary 

physical custody of Ryan because of a presumption that primary 

custody should be awarded to a nursing mother. We are unaware of 

such a presumption, and, even if such a presumption were recognized 

in Montana, it could be outweighed by other circumstances. 

Deborah also cites § 40-4-217(1), MCA, which provides that 

[a] parent not granted custody of the child is entitled 

to reasonable visitation rights unless the court finds, 

after a hearing, that visitation would endanger seriously the child's physical, mental, moral, or emotional 

health. 

She argues that limiting her to supervised visitation is improper 

because there was no finding that visitation would seriously 

endanger Ryan's physical, mental, moral, or emotional health. 

The statute does not state that "reasonable visitation," with 
no further qualifiers, will be awarded if none of the listed 

findings are made. Under the statute, some visitation will be 

allowed unless one of the listed findings is made. Deborah has 

been granted some visitation. We conclude than no violation of 9 

40-4-217(1), MCA, has been shown. 

Deborah points out that the record shows that when she had her 

son, she provided him with good, loving care. While she is 

correct, two expert witnesses recommended that she be granted only 

supervised visitation until her mental problems are treated. 

At finding # 10, the District Court stated that 

Similarly, [Deborah] has only supervised visitation with 

a child by a previous marriage, pursuant to an Order 

issued by a State Court in Hawaii on April 2, 1990. 

Furthermore, the father of that child has obtained sole 

custody. 

Deborah argues that this finding constitutes error because custodial and visitation arrangements for a party's previous children 

are not factors to be considered under 5 40-4-212, MCA, in determining best interest of the child. 

Mark introduced into evidence a copy of the stipulation by 

which Deborah agreed that her former husband would have custody of 

her daughter. That stipulation provided that Deborah's visitation 

would be limited to one hour of supervised visitation once a week, 

to be preceded by two months of therapy for the daughter so that 

her "fears and anxiety concerning [the] visitation" could be minimized. The stipulation further required Deborah to supply her 

daughter's therapist with "a complete copy of her present psychia- 
tric/psychological records, files and reports for the purpose of 

assisting said psychologist/therapist in reaching his or her 

recommendation." We conclude that this matter relates to Deborah's 

mental health, a factor listed under 5 40-4-212, MCA, in determining best interests of the child, and was thus properly considered. 

Deborah argues that the District Court abused its discretion 

in limiting Ryan's time with her to nine hours a week. We disagree. The proposals for supervised visitation which were before 

the District Court were Mark's, which was adopted, and Deborah's, 

which was that she be granted visitation from 7 a.m. until 7 p.m. 

each weekday and for six hours a day on weekends. Mark also 

submitted an affidavit that Deborah's proposed schedule would be 

a hardship requiring him to get Ryan up early simply to take him 

to Deborah's, that Deborah was continuing to harass him by phone 

and in person, and that Deborah had changed the supervising person 

and the time of visitation on several occasions in the interim 

since the trial. We conclude that the court did not abuse its 

discretion in adopting Mark's proposed schedule. 

Deborah asserts that counselor Swaggerty misrepresented his 

educational background in court. He testified that his educational 

"background is from U.C.L.A. and the Graduate School of Psychology 

in the University of California, Los Angeles." In her motion for 

new trial, Deborah submitted an affidavit of the Dean of Administration of Rosemead School of Psychology at Biola University 

in La Mirada, California. The dean stated that Swaggerty received 
his Ph.D. from Rosemead in 1978. Swaggerty did receive a B.A. in 

psychology from U.C.L.A. 

No prejudice has been shown from the apparent error in 

Swaggerty's statement at trial concerning his alma mater. It does 

not appear critical to his testimony which university granted his 

advanced degree. We conclude that the District Court did not err 

in denying the motion for new trial on this basis. 

Affirmed . 

We concur: 

/ " Chief Justice 
August 27, 1991 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Joan Meyer Nye 

NYE & MEYER, P.C. 

3317 Third Ave. North 

Billings, MT 59101 

Christopher P. Thimsen 

Attorney at Law 

2812 1st Avenue North, Suite 210 

Billings, MT 59101 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA