No. 92-365 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

IN RE THE CUSTODY OF J.M.D., 

A Minor Child 

KEVIN J. FITZGERALD, 

Petitioner and Respondent, 

v. 

EVA MARIE BROWN, 

Respondent and Appellant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Dorothy McCarter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Joan Meyer Nye, Nye & Meyer, 

Billings, Montana 

For Respondent: 

John Bobinski, Attorney at Law, 

Helena, Montana 

Submitted on Briefs: February 4, 1993 

JUL2 9 1993 Decided: July 29, 1993 

Filed: 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

Eva Marie Brown appeals from two orders of the District Court 

for the First Judicial District, Lewis and Clark County. In its 

first order, entered on May 19, 1992, the court determined that it 

was in the best interest of the parties' child to transfer custody 

to the father, Kevin Fitzgerald. In its second order, entered on 

July 13, 1992, the court denied Eva's motion to alter or amend the 

May 19, 1992, order, and her motion for a new trial. We affirm. 

There are five issues on appeal. 

1. Did the District Court abuse its discretion when it 

awarded custody in accordance with the partiesf written 

stipulation? 

2. Did the District Court err when it awarded sole custody 

to Kevin? 

3. Did the District Court err by not requiring sufficient 

input from the child's court-appointed attorney? 

4. Did the District Court err when it held the hearing on 

Kevin's motion to compel on April 2, 1992? 

5. Did the District Court err when it denied Eva's request 

for a new trial after the May 19, 1992, order? 

Eva Brown and Kevin Fitzgerald lived together in Helena, 

Montana, for approximately four years. They gave birth to one son, 

Joey, on December 22, 1989. Approximately four months after Joey's 

birth, the parties separated. In September 1990, Eva and Joey 
moved to Billings. In March 1991, ~evin married Danette 

Fitzgerald. They reside in Helena. 

In May 1990, Kevin filed a petition for custody and visitation 

and to determine child support. A trial was held before the 

District Court on November 1, 9, and 13, 1990, to determine the 

parties1 custody and visitation rights. On December 4, 1990, the 

District Court made detailed findings of fact and conclusions of 

law. The court determined that both Kevin and Eva were fit parents 

and awarded them joint custody of Joey. Each parent was awarded 

residential custody on an alternating six-month basis. The court 

ordered Eva to have residential custody of Joey for the initial 

six-month period from January 1, 1991, through June 30, 1991. 

Shortly before June 30, 1991, Eva filed a motion for a new 

trial or for an order modifying custody and visitation. 

Additionally, she filed a motion to stay the transfer of 

residential custody of Joey to Kevin. The District Court stayed 

the visitation schedule set forth in the December 4, 1990, 

decision, but ordered that Kevin be allowed visitation with Joey 

for a five-day period every other week pending further order of the 

court. At Eva's request, the court appointed an attorney, Randi 

Hood, to represent Joey's interests. 

On November 15, 1991, a scheduling conference was held, and 

the District Court set a nonjury trial for March 5, 1992, to decide 

Eva's petition to stay the visitation schedule. However, on 

February 21, 1992, approximately two weeks prior to the scheduled 

3 
trial, the parties entered into a written agreement regarding 

custody and visitation of Joey, which they filed with the court on 

February 24, 1992. 

In the written stipulation, the parties agreed to have Donna 

Hale, a licensed clinical social worker, prepare a custody 

evaluation to help determine what custody and visitation 

arrangements were in the best interest of the parties1 child, Joey. 

The parties agreed that they would be bound by Hale's evaluation 

and recommendation, that the stipulation would settle all issues 

regarding child custody and visitation, and that the trial set for 

March 5, 1992, should be vacated. 

The stipulation was drafted by Eva's attorney and signed by 

both parties. The attorney representing Joey also signed the 

stipulation. Pursuant to the parties' stipulation, the court 

vacated the trial. 

Hale conducted a comprehensive custody evaluation of Eva, 

Kevin, and Kevin's wife, Danette. This assessment involved 

clinical interviews and clinical observations of Eva, Kevin, 

Danette, Joey, and Eva's and Kevin's step-children. Additionally, 

Hale administered tests to the adults, including The Custody 

Quotient and the Minnesota Multiphasic Personality Inventory. On 

February 24, 1992, Hale recommended that custody be transferred to 

Kevin and that Eva have liberal visitation. Hale recommended 

against joint custody, based on her opinion that Eva would not 

cooperate with joint custody responsibilities. 

4 
On March 23, 1992, ~evin filed a motion to compel and for 

custody, in addition to a notice of hearing on the motion. In 

response to Kevin's motion to compel, Eva filed a motion for 

additional evaluation and trial date on April 1, 1992. She argued 

that the court should not accept Hale's recommendation and enforce 

the parties' stipulation without a trial-type evidentiary hearing. 

A hearing on Kevin's motion to compel was held on April 2, 

1992. The entire proceeding was transcribed by a court reporter. 

The court first addressed Eva's request for an evidentiary hearing, 

and after discussing the issue with the parties, the court ordered 

Eva and Kevin to brief the legal issue of whether or not a 

trial-type evidentiary hearing was required to determine whether 

the stipulation was in the best interest of the child. The court 

stated that it would decide Eva's motion at a future date. 

The court next addressed Kevin's motion. The court reviewed 

Hale's written evaluation and questioned Hale on the witness stand 

about her professional qualifications, her involvement with the 

case, her assessment of the parties, and her recommendation. The 

court also questioned Hood, the court-appointed attorney. Hood 

stated that she was aware that Hale had conducted an evaluation to 

make a custody recommendation and that it was acceptable to her. 

At the close of the hearing, the District Court entered a custody 

award in accordance with Hale's recommendation and transferred 

custody to Kevin. 
After consideration of the parties' briefs and arguments on 

Eva's motion, the District Court issued an order on May 19, 1992, 

denying Eva's request for an evidentiary hearing. In that same 

order, the court permanently adopted Hale's recommendation and 

ordered, in writing, that custody of Joey be transferred to Kevin. 

Eva subsequently filed a motion to alter or amend and a motion for 

a new trial. On July 13, 1992, the District Court denied both of 

these motions. Eva appeals. 

I 

Did the District Court abuse its discretion when it awarded 

custody in accordance with the parties' written stipulation? 

On appeal, Eva contends that it was error for the District 

Court to award custody pursuant to the parties' stipulation without 

conducting an evidentiary hearing to determine whether the written 

agreement was in the best interest of the child. Eva asserts that 

when the court adopted the custody recommendations of the 

evaluator, Hale, and denied her request for a more comprehensive 

evidentiary hearing, the court did not adequately consider the 

"best interestw of the child. 

Section 40-4-201(2), MCA, provides that in dissolution 

proceedings, at least, stipulated terms regarding the custody, 

support, and visitation of a child are not binding on the court. 

In re Mam'age of Mitchell (l987), 229 Mont. 242, 248, 746 P.2d 598, 603. 

While terms of a contract may be introduced as evidence in some 
instances, the custody and support of children are never left to contract between the 

parties. Mitchell, 746 P. 2d at 603 (quoting In re Mam'age of Carlson (1984 ) , 

693 P.2d 496, 500, 214 Mont. 209, 217). This is because in all 

matters relating to children, the best interests of the children 

control. Mitchell, 746 P.2d at 603. To provide for the best 

interests of the children, courts must %arefully examine" the 

terms of a written agreement concerning custody. Commissionerst 

Note to 40-4-201(2), Montana Code Annotated, Vol. 7, p. 90. 

Although in this case we are not concerned with a dissolution, the 

same considerations apply. 

The court must consider the factors set forth in § 40-4-212, 

MCA, to ensure that the best interest of the child is provided for. 

The court is free to consider the parties' stipulation, however, 

ultimately the court must make an independent judgment regarding 

custody. 

The standard of review in a child custody determination is 

well settled in Montana. The district court's findings will be 

sustained unless they are clearly erroneous. In re Mam'age of Susen 

(lggo), 242 Mont. 10, 13-14, 788 P.2d 332, 334. The trial court is 

in a better position than this Court to resolve child custody 

issues. The district court's decision is presumed correct and will 

be upheld unless a clear abuse of discretion is shown. In re Mam'age 

ofRoIfe (1985), 216 Mont. 39, 44, 699 P.2d 79, 82. 
Based on our review of the record, we conclude that the 

District Court considered the best interest of the child when it 

made its final determination regarding the custody of Joey. The 

court "carefully examinedn the parties' stipulation. The court 

determined that the parties knowingly and intelligently entered 

into an uncomplicated contract in which they agreed to be bound by 

Hale's recommendations. Furthermore, the court found that each 

party was fully represented by counsel when they signed the 

stipulation. 

Next, the court considered Hale's evaluation and 

recommendation. In its order, the court determined that Hale is 

thoroughly familiar with the family, and has worked with 

them since the commencement of this action. She is in 

the best position, based on her profession, expertise, 

and familiarity with the family, to recommend an 

appropriate custodial arrangement that would be in the 

child's best interest. 

Finally, the court made its own independent judgment. The 

District Court in this case had conducted a lengthy custody trial 

in November 1990 in which the court considered the factors set 

forth in 5 40-4-212, MCA, and made appropriate findings. It also 

questioned Hale regarding her findings during the April 2, 1992, 

hearing and satisfied itself, as set forth in its May 19, 1992, 

order, that Hale's recommendation provided for Joeyvs best interest 

according to those factors to be considered under 5 40-4-212, MCA. 

Eva asserts that it was error for the District Court to enter 

an order determining custody based on the stipulation alone, 
without an evidentiary hearing, without giving full consideration 

to the statutory criteria set forth in 5 40-4-212, MCA, and without 

explicitly stating the determinative facts upon which the court's 

findings were based. Eva relies on our decision in in re Mam'age of 

Conveme (l992), 252 Mont. 67, 826 P.2d 937, to support her 

contention that she was entitled to an evidentiary hearing. 

However, this case is distinguishable from Converse. In Converse, 

there was no trial and the court did not make findings which 

indicated the basis of the custody decision in relation to the 

statutory factors set forth in 5 40-4-212, MCA. The parties agreed 

to a stipulation immediately prior to trial; however, when the 

agreement was finally reduced to writing, there was disagreement 

regarding its terms. The district judge adopted the stipulation 

anyway. On appeal, this Court reversed and remanded the case and 

ordered the lower court to conduct an evidentiary hearing, to 

consider the statutory factors required by 5 40-4-212, MCA, and to 

make explicit findings which explained the basis of the court's 

custody decision. 

Unlike the situation in Converse, where no custody trial was 

ever held and no explicit findings ever made by the court prior to 

its acceptance of the stipulation, the court in this case conducted 

a custody trial in November 1990. Following that trial, the court 

issued detailed findings of fact and conclusions of law which 

indicated that the lower court had considered the factors set out 
in 5 40-4-212, MCA. Unlike the court in Converse, the court in this 

case was in a position, based on the prior trial, to put Hale's 

custody evaluation in context and to make an independent judgment 

that the transfer of custody to Kevin was in the best interest of 

the child. Furthermore, there was no dispute regarding the 

parties' stipulation in this case. And finally, Hale was carefully 

questioned so that the District Court could independently determine 

that her recommendation satisfied the statutory criteria. 

We hold that the District Court did not abuse its discretion 

when it entered a custody determination that was in accord with the 

stipulation and Hale's recommendation. 

I I 

Did the District Court err when it awarded sole custody to 

Kevin? 

Eva argues that the District Court did not make any finding 

pursuant to § 40-4-224(1), MCA, that joint custody was not in the 

best interest of Joey, and therefore, the court erred when it 

awarded sole custody to Kevin. We disagree with Eva that the court 

did not make the requisite finding. 

First, the court considered the evaluation and recommendations 

of the licensed clinical social worker, Hale. Hale determined that 

she could not recommend joint custody because: (1) the test she 

administered rated Eva's parenting skills as tvdefective'' in 

numerous areas; (2) Eva made statements during the evaluation that 
"she would not ever allow Joey to reside with Kevin;'' and (3) it 

was Hale's opinion that Eva would not cooperate in joint custody 

responsibilities. 

Then, after considering Hale's recommendation, the court made 

its own determination that it was in Joey's best interest to place 

him in his father's sole custody, giving Eva liberal visitation. 

We conclude that in its order entered on May 19, 1992, the District 

Court made the requisite finding, pursuant to 40-4-224 (1) , MCA, 

that joint custody was not in the best interest of Joey. 

Moreover, S 40-4-224(3), MCA, provides that "[alny order for 

joint custody may be modified pursuant to S 40-4-219 to terminate 

the joint c~stody.~~ Section 40-4-219(1), MCA, authorizes the 

district court to modify a prior custody decree if 

it finds, 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 modification . . . . Subsequent to the original custody decree, the parties engaged 

in a prolonged dispute regarding custody and were unable to settle 

their differences. They finally stipulated in a signed agreement 

that they would be bound by the recommendations of Hale. In doing 

so, each party consented to modify the original decree. 

Accordingly, the court did not err when it modified the prior joint 
custody decree to award sole custody to Kevin. The court acted in 

accordance with 5 40-4-219 (1) (a) , MCA. 

111 

Did the District Court err by not requiring sufficient input 

from the child's court-appointed attorney? 

Eva asserts that pursuant to 5 40-6-110, MCA, the court was 

required to appoint a guardian ad litem to represent Joey's 

interests. Moreover, Eva contends that 5 41-3-303(2), MCA, 

requires the guardian to conduct an investigation, to produce a 

report, and to provide a custody recommendation. Eva argues that 

Randi Hood, the attorney representing Joey in this case, did not 

conduct an investigation or produce the information required by 

5 41-3-303, MCA. She asserts that the court erred when it awarded 

custody without such information from the guardian ad litem. 

Section 40-6-110, MCA, applies when paternity is at issue. 

This case is not a paternity action; it is a custody dispute. 

Neither does 5 41-3-303 (2) , MCA, apply to this case. It applies to 

situations where a child has been alleged to be abused or 

neglected, and requires that a guardian be appointed to represent 

such a child. Section 40-4-205, MCA, governs this case. It is not 

a mandatory statute. It provides that the court may appoint an 

attorney to represent the interests of a minor child with respect 

to his support, custody, and visitation. 

The court appointed Randi Hood as the attorney to represent 

Joey in this custody dispute. The parties and the court throughout 

12 
the custody proceedings in this case have referred to Hood as the 

guardian ad litem; however, as we pointed out in Rolfe, 699 P.2d at 

86, in Montana, the attorney for the child in a custody dispute is 

not a guardian ad litem. As the child's attorney, Hood had a duty 

to represent Joey's best interest. Rolfe, 699 P.2d at 86. 

Hood was present at the April 2, 1992, hearing. After the 

custody evaluator, Hale, testified, the court asked Hood if she had 

anything to offer concerning Hale's recommendation that custody be 

transferred to Kevin. Hood explained to the court that she was 

aware that Hale was conducting a custody assessment and 

recommendation, and that because of her previous experience with 

the expert, Hale, that was "fine" with her. Hood acknowledged to 

the court that she signed the parties' stipulation. 

We conclude from the record that Hood fulfilled her legal duty 

to represent Joey's best interest. There was no statutory 

requirement that Hood, as Joey's attorney, conduct an 

investigation, produce a report, and provide a custody 

recommendation. Accordingly, we find that the court did not abuse 

its discretion when it made its award of custody without such 

specific information from Hood. 

IV 

Did the District Court err when it held the hearing on Kevin's 

motion to compel on April 2, 1992? 
Kevin served his motion to compel on March 20, 1992, and 

pursuant to Rule 6(d), M.R.Civ.P., he filed an affidavit in support 

of his motion on the same date. Additionally, Kevin served a 

notice of hearing on March 20, 1992. All three of Kevin's 

documents were filed with the court on March 23, 1992. 

Eva contends that she received Kevin's motion to compel on 

March 23, 1992, and therefore, according to Uniform District Court 

Rule 2(a), she had ten days to file a responsive brief. She 

contends that she had until April 6, 1992, to file her brief and 

that when Kevin set his motion for hearing on April 2, 1992, he set 

the hearing before Eva's time to respond expired. Eva asserts that 

she was provided with insufficient notice of the hearing on Kevin's 

motion, and therefore, it was error for the court to hold the 

hearing on April 2, 1992. 

Eva concedes that Kevin satisfied the time requirements of 

Rule 6(d), M.R.Civ.P., but asserts that Rule 6(d) conflicts with 

Uniform District Court Rule 2 (a), which allows the responding party 

ten days to submit a responsive brief. 

According to Uniform District Court Rule 2 (e) , in the event of 

a conflict regarding the filing of motions and briefs, the Montana 

Rules of Civil Procedure shall control. Therefore, Rule 6(d) 

controls. Rule 6 (d) , M.R. Civ. P., provides that "[a] written motion 

. . . and notice of the hearing thereof shall be served not later 

than 5 days before the time specified for the hearing . . . . " We 

conclude that when Kevin filed his motion and supporting affidavit 

14 
and notice on March 23, 1992, he complied with Rule 6(d), 

M.R.Civ.P. He provided Eva with at least five days notice of the 

hearing. Furthermore, both parties were given additional time for 

briefing following the hearing and no prejudice to Eva has been 

demonstrated from the shortness of notice. 

v 

Did the District Court err when it denied Eva's request for a 

new trial after the May 19, 1992, order? 

Eva claims that the District Court should have allowed a new 

trial because Eva was "surprised1' by Hale's recommendation. She 

asserts that Hale told her before the recommendation was written 

that she intended to recommend that Eva retain custody of Joey, and 

based on Hale's alleged comments, Eva claims that she signed the 

stipulation. Eva reasserts that Converse is applicable and that the 

District Court erred when it would not allow Eva the opportunity to 

present expert testimony and evidence to contradict Hale's 

evaluation and recommendation. 

We reiterate that Convene is not applicable to this case. We 

conclude that the District Court did not abuse its discretion when 

it determined that it was in Joey's best interest to transfer 

custody to Kevin. The record reveals that the court listened to 

the parties' arguments, considered the parties' briefs, examined 

the stipulation, and gave serious consideration to the evaluation 

and recommendation of Hale. The record reveals that the court 
exercised its independent judgement in its final custody 

determination, taking into consideration numerous factors, 

including evidence previously presented to the court over the 

course of three days in November 1990. Accordingly, we conclude 

that the District Court did not err when it denied Eva's request 

for a new trial after its May 19, 1992, order. 

The judgment of the District Court is affirmed. 

We concur: 

Chief Justice 

n 
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 

John Bobinski 

Attorney at Law 

P.O. Box 5117 

HeIena, MT 59604-51 17 

ED SMITH 

CIXK OF THE SUPREME COURT 

STAq OF MONTANA