No. 91-503 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

IN RE THE MARRIAGE OF 

JAMES WARREN MOSEMAN, 

Petitioner and Appellant, 

-vsBERNICE LUCILLE MOSEMAN, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Russell K. Fillner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Robin A. Wolff, CALTON, HAMMAN and WOLFF; 

Billings, Montana 

For Respondent: 

Victoria L. Frances, HENDRICKSON, EVERSON and 

NOENNIG; Billings, Montana 

APR 17 1992 

Submitted on Briefs: January 23, 1992 Zd S?e id 

CLERK OF SUPWE5lE COURT FfI$TJ.OF MOIWANA Decided: April 17, 1992 
Justice R. C. McDonough delivered the Opinion of the Court. 

This is an appeal from an order of the Thirteenth Judicial 

District, Yellowstone County. The respondent, Bernice ~ucille 

Moseman (Bernice) petitioned the court for modification of custody 

after learning the appellant, James Warren Moseman (James), 

intended to move the parties1 children out of state. The District 

Court terminated joint custody and awarded sole custody to ern ice. 

We remand for further factfinding. 

The following issues are raised on appeal: 

I. Did the District Court err in not considering the report 

and recommendations of Court Services after ordering Court Services 

to conduct an investigation? 

11. Did the ~istrict Court err by terminating joint custody 

and awarding sole custody of the partiesq children to the 

respondent? 

This case involves a petition for modification of an order for 

joint custody, originally issued December 15, 1989. The December 

15, 1989 order found it to be in the best interest of the parties1 

minor children, Cody (age 8) and Shane (age 6), to be placed in the 

joint care and custody of the parties. James was awarded primary 

physical custody and Bernice was awarded liberal visitation. 

During the following year there were difficulties involving 

arrangements for visitations, especially surrounding holidays and 

vacations. The parties are in dispute regarding the nature and the 

cause of these difficulties. On January 17, 1991, James, in 

compliance with § 40-4-217, MCA, sent Bernice notice of his intent 

2 
to change the children's residence to Richmond, Virginia. Bernice 

filed a petition to modify the original decree and to grant primary 

physical custody to her. Later, in a post-hearing brief to the 

District Court, Bernice asked the court to modify her petition to 

include a request for termination of joint custody and that she be 

awarded sole custody. 

Following a hearing, held February 8, 1991, the court ordered 

Court Services to conduct a custody investigation and to submit a 

report containing recommendations. Court Services recommended that 

the children stay with Bernice for the summer and join James in 

Virginia for the school year. The trial court found that James had 

continually and willfully attempted to deny or frustrate visitation 

and despite James' objection, terminated joint custody pursuant to 

5 40-4-219 (1) (e) (ii) , MCA, and awarded sole custody to Bernice. 

The court made no findings in regard to the Court Services 

investigation and recommendations. 

Section 40-4-215, MCA, provides in part: 

(1) In contested custody proceedings and in other 

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. . . . 

(3) The Court shall mail the investigator's report 

to counsel . . . at least 10 days prior to the hearing. ... 

James contends that the court abused its discretion by failing to 

provide a hearing where testimony regarding the investigation could 

be heard and by failing to note consideration of the report in its 
findings of fact and conclusions of law. 

We have reviewed the requirements of 5 40-4-215, MCA, on 

several occasions. In re Marriage of Maxwell (1991), 248 Mont. 

189, 810 P.2d 311; In re Marriage of Bloom-Higham (l987), 227 Mont. 

217, 738 P.2d 114; In re Marriage of Ziegler (1985) , 215 Mont. 208, 

696 P.2d 983. In Zieqler, after a custody investigation was 

ordered, the district court failed to distribute the report to 

counsel as mandated by the statute. In addition, the court entered 

its final order before it even received the report. We held that: 

If the trial court found it appropriate to order the 

custody investigation, it abused its discretion by not 

considering the report in the process of reaching its 

final custody decision. 

Zieqler, 215 Mont. at 212. 

In Bloom-Hiqham, the trial court ordered an investigation and 

again there was no record of the court having received the report, 

the report was not mailed to counsel, and no testimony relative to 

the investigation was received at any hearing. Following Zieqler, 

we held, despite a stated reluctance to overturn custody decisions, 

this was an abuse of discretion. 

We recently cited Bloom-Hiqham, with support, to find an abuse 

of discretion where a court again failed to consider a social 

worker's report and recommendations. In re Marriage of Maxwell 

(lggl), 248 Mont. 189, 810 P.2d 311. In Maxwell, the court ordered 

a Home and Family Assessment and although the findings of fact and 

conclusions of law mentioned that the home study was ordered, it 

failed to specifically address it. 

In the instant case, the order for the investigation was made 

4 
after the hearing for modification of custody was held. The report 

was mailed to counsel and neither requested that an additional 

hearing be provided to take testimony relative to the 

investigation. The report was received prior to the District 

Court's issue of findings of fact and conclusions of law. However, 

the District Court, in its findings and conclusions, failed to 

mention the investigation. 

As a general rule, the district court is not required to make 

a specific finding as to each item of evidence, but only of the 

essential and determining factors upon which the court's 

conclusions rest. In re Marriage of Keating (1984), 212 Mont. 462, 

689 P.2d 249. However, Zieciler and its progeny require that a 

specific finding of fact is required regarding a custody 

investigation ordered by the court. The District Court is not 

bound by the investigation: however, we are not able to determine 

if the District Court even considered the report. Therefore, we 

conclude that the matter must be remanded to the District Court to 

make a finding that the Court Services investigation was 

considered. 

We do not rule here that James was entitled to an additional 

bearing. In the instant case, there were no requests for 

additional hearings. 

I I 

Section 40-4-219, MCA, governs the court's decision to modify 

a prior custody decree. It provides: 

40-4-219. Modification. (1) The court may in its 

discretion modify a prior custody decree if it finds, 

5 
upon the basis of facts that have arisen since the prior 

decree or that were unknown to the court at the time of 

entry of the prior decree, that a change has occurred in 

the circumstances of the child or his custodian and that 

the modification is necessary to serve the best interest 

of the child and if it further finds that: 

(a) the custodian agrees to the modification; 

(b) the child has been integrated into the family of 

the petitioner with consent of the custodian; 

(c) the child's present environment endangers 

seriously his physical, mental, moral or emotional health 

and the harm likely to be caused by a change of 

environment is outweighed by its advantages to him; 

(d) the child is 14 years of age or older and 

desires the modification; 

(e) the custodian willfully and consistently: 

(i) refuses to allow the child to have any contact 

with the non-custodial parent; or 

(ii) attempts to frustrate or deny the noncustodial 

parent's exercise of visitation rights; or 

(f) the custodial parent has changed or intends to 

change the child's residence to another state. . . . 

When reviewing a district court's findings regarding the 

modification of custody and whether a party has met the criteria of 

9 40-4-219, MCA, we will not reverse the findings unless they are 

clearly erroneous. In re Marriage of Johnson (1989) , 238 Mont. 

153, 777 P.2d 305. In Johnson, 238 Mont. at 156, 777 P.2d at 307, 

we held: 

As stated in Rule 52(a), M.R.Civ.P.: 

Findings of fact shall not be set aside unless 

clearly erroneous, and due regard shall be given to the 

opportunity of the trial court to judge of the 

credibility of the witnesses. 

The District Court's decision to modify custody was based on 

evidence received from which it concluded that James "willfully and 

continuously attempted to frustrate or deny Bernice's exercise of 

visitation right. 540-4-219 (1) (e) (ii) , MCA." (Conclusion of Law 

No. 4.) There is substantial evidence that James denied visitation 
on consecutive Christmases requiring Bernice to contact the court 

and her attorney to receive her rightful visitation. Evidence was 

presented that supports the fact that James obstructed Bernice's 

ability to have telephone contact with the children including an 

admission by James that he refused to give Bernice his telephone 

number. On another occasion, James failed to communicate to 

Bernice that Shane was being hospitalized for an operation 

requiring general anesthesia. 

The record also provides additional examples of disagreement 

on scheduling visitation. James contends that while he and Bernice 

clearly had disagreements about visitation, disagreements of this 

sort do not entitle a parent to a change in custody. Furthermore, 

he contends that the record reflects that Bernice has never been 

consistently denied or frustrated visitation. There is evidence to 

support James' contentions. This evidence and the custody report 

would provide substantial evidence to support a District Court 

finding to maintain joint custody and physical custody with James. 

However, regardless of the custody report, the record does provide 

substantial evidence for the court's conclusion that James 

willfully and continuously attempted to frustrate or deny Bernice's 

exercise of visitation rights within the meaning of 40-4- 

219 (1) (e) (ii) , MCA. 

In addition to meeting the jurisdictional requirements of 5 

40-4-219(a) - (f), MCA, the court must also find that a change in 

circumstances has occurred and that modification is necessary to 

serve the best interests of the child. Section 40-4-219(3), MCA, 
provides that: 

The court shall presume the custodian is not acting in 

the child's best interest if the custodian does any of 

the acts specified in subsection (l)(e). . . 

If, on remand, the District Court concludes that James willfully 

and continually frustrated Bernice's exercise of visitation rights, 

it must, pursuant to 5 40-4-219(3), MCA, presume that James is not 

acting in the children's best interest. Therefore the requirement 

of 5 40-4-219(1), MCA, that modification be allowed only when 

necessary to meet the best interest of the child, would be 

fulfilled. 

The decision of the District Court to terminate joint custody 

is not clearly erroneous as it is supported by substantial 

evidence, adheres to and does not misapprehend the evidence 

relative to the guidelines of 5 40-4-219, MCA, and does not leave 

us with a definite and firm conviction that a mistake has been 

committed. Interstate v. DeSaye (Mont. 1991), 820 P.2d 1285, 48 

St.Rep. 986. 

However, the District Court is required to consider the 

custody investigation report it ordered and failed to do so. We 

remand to the District Court with instructions to make findings 

relative to such report, and amend the conclusions of law and the 

judgment, if so warranted. 

We Concur: 

Chief Justice 

8 
Justices 
Justice Terry N. Trieweiler specially concurring in part and 

dissenting in part. 

I concur with the majority's conclusion that the District 

Court abused its discretion by failing to consider the social 

worker's report and recommendations. The impact of that failure is 

apparent from the District Court's Finding of Fact No. 4 to the 

effect that the children stated no preference for whom they would 

like to have as the primary custodian. Sarah Seiler, the social 

worker, apparently discussed this question at length with both 

children. As a result of her conversations, she was able to state 

in her report the following finding: 

Cody was interviewed twice and Shane once at Sandstone 

School. Both boys state that they want to continue to 

live with their father and are not concerned about 

changing schools. Cody and Shane love their mother and 

want to visit with her, but had criticism of her care for 

them. They both say that their mother sleeps a great 

deal while they visit and that she does not supervise 

them or set boundaries when they play outside. Cody even 

went so far as to say his mother was "acting weird 

lately1'. Despite repeated attempts to play "devil's 

advocate1' with the boys, they were steadfast in their 

desire to stay with their father. 

I dissent from that part of the majority opinion which 

concludes that the District Court's decision to terminate joint 

custody was supported by substantial evidence. 

Under 5 40-4-219, MCA, the District Court's prior custody 

decree could only be modified if it found that: (1) a change in the 

child's or his custodian's circumstances had occurred since the 

prior decree: (2) modification is necessary to serve the best 
interests of the child; and (3) the custodial parent willfully and 

consistently frustrated the noncustodial parent's visitation 

rights; or the custodial parent intended to change residence to 

another state. 

As pointed out by the majority, if the court finds that the 

custodial parent willfully and consistently attempted to frustrate 

the other parent's visitation right, then there is a presumption 

that that parent is not acting in the child's best interest under 

5 40-4-219 (3), MCA. 

I believe the District Court was clearly erroneous when it 

found that James Nconsistently" attempted to frustrate Bernice's 

visitation rights. 

James was awarded primary custody of the children on 

December 15, 1989. The District Court's hearing on Bernice's 

motion to modify custody was held on February 8, 1991, some 14 

months later. During that period, Bernice complained of three 

incidents where the parties had disagreements about visitation: 

1. During Christmas of 1989 a dispute arose over visitation 

which was resolved when Bernice was allowed to have the children on 

Christmas Eve. 

2. During Christmas of 1990, another dispute arose which was 

resolved when Bernice was allowed to have the children on 

December 24, 26, and 28. The evidence was that Bernice worked 

during the Christmas holiday that year and did not have time 

available for additional visitation. 

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3. A misunderstanding occurred regarding visitation during 

the Fourth of July holiday in 1989. Bernice was supposed to have 

the children. James misunderstood and scheduled a vacation with 

the children. After some discussion, Bernice exchanged visitation 

during that period for visitation later on in the summer. 

The above three incidents are the only examples offered by 

Bernice where the parties had disagreements over visitation. The 

other examples relied upon by the court were James' failure to 

notify Bernice of one of the children's tonsillectomy, failure to 

communicate regarding the children's progress in school, and the 

fact that James had an unlisted telephone number for a period of 

time. However, none of these additional examples constituted 

willful attempts to frustrate visitation, and the original three 

examples hardly amount to consistent frustration of Bernice's 

visitation rights. 

Without a finding that James willfully and consistently 

frustrated Bernice's visitation rights, there was no substantial 

evidence to support the District Court's finding that the 

children's best interests would be served by modifying the prior 

custody arrangement. 

This Court recently explained the application of the "clearly 

erroneousu test in the context of reviewing the findings of a trial 

court sitting without a jury: 

We adopt the following three-part test to determine 

if a finding is clearly erroneous. First, the Court will 

review the record to see if the findings are supported by 
substantial evidence. Second, if the findings are 

supported by substantial evidence, we will determine if 

the trial court has misapprehended the effect of 

evidence. Western Cottonoil Co. v. Hodges (C . A. 5th 1954 ) , 2 18 

F. 2d 158 ; Narragansett Improvement Company v. United States (C . A. 1st 

1961), 290 F.2d 577. Third, if substantial evidence 

exists and the effect of the evidence has not been 

misapprehended, the Court may still find that "[A] 

finding is 'clearly erroneous' when, although there is 

evidence to support it, a review of the record leaves the 

court with the definite and firm conviction that a 

mistake has been committed. U[nired] S[tates] v. US. Gypsum Co. 

(1948), 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746. 

Interstate Production Credit Ass 1 it. v. DeSaye (Mont . 199 1) , 8 2 0 P. 2d 12 85, 

According to the above standard, I conclude that the District 

Court's finding that the children's best interests were served by 

terminating joint custody and awarding sole custody of the parties1 - 

children was clearly erroneous. I would, therefore, reverse the 

judgment of the District Court, reinstate joint custody, and return 

primary custody of the children to James with liberal visitation 
April 17, 1992 

CERTIFICATE OF SERVICE 

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

named: 

Robin A. Wolif 

CALTON, HAMMAN & WOLFF 

2075 Central Avenue 

Billings, MT 59102 

Victoria L. Frances 

HENDRICKSON, EVERSON & NOENNIG 

324 Hart-Albin Building 

208 North 28th Street 

Billings, MT 59101 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA 

BY: 

Deputy