NO. 95286

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

IN RE THE MARRIAGE OF

MARY ANN ZUELKE, now known as

MARY ANN BARBIE-RICE,

Petitioner and Appellant,

and

GORDON STEPHEN ZUELKE,

Respondent and Respondent.

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis and Clark,

The Honorable Jeffrey Sherlock, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

John Bobinski, Attorney at Law, Helena, Montana

For Respondent:

Dennis G. Loveless, Attorney at Law, Helena, Montana

Filed:

Submitted on Briefs: November 16, 1995

Decided: December 14, 1995
Justice W. William Leaphart delivered the Opinion of the Court.

Mary Ann Barbie-Rice appeals from the April 18, 1995, Order

Implementing Equal Custody of the First Judicial District Court,

Lewis and Clark County. We affirm.

We restate the issues raised on appeal as follows:

1 . Did the District Court err in implementing an equal

custody arrangement of the parties' child?

2 . Did the District Court abuse its discretion in allowing

a n expert witness to testify and to give his custody

recommendations and in not granting a continuance?

This case arises out of a protracted custody and visitation

dispute between Mary Ann [Zuelke] Barbie-Rice (Mary Ann) and Gordon

Stephen Zuelke (Gordon). One child, Ashley Annamarie Zuelke, was

born to the parties on August 22, 1987. Mary Ann and Gordon's

marriage was dissolved in 1990. In its May 30, 1990, Findings of

Fact, Conclusions of Law and Decree, the District Court placed

Ashley in the joint custody of both parties. The District Court

adopted its "Initial Residential Plan" and noted that additional

contact with Gordon would be phased in over time. Further, the

District Court ordered that a determination of whether equal time

with each party was in Ashley's best interest would be made when

she reached school age.

In May of 1992, a hearing was held and, upon the

recommendation of Dr. Black, a Licensed Clinical Psychologist who

had evaluated Ashley and had been involved since the 1990 Decree,

the District Court phased in additional contact with Gordon. The

District Court ordered that "[iIf either party has concerns with .

. . the implementation of a plan to permit Ashley to spend an equal

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amount of time with both parents, they are to discuss the same with

Dr. Black." Further, the District Court noted that serious tension

and hostility between Mary Ann and Gordon was having an adverse

impact on Ashley.

Thereafter, in November of 1993, Gordon asked Dr. Black to

start a phase-in program for equal time custody. In December of

1994, Dr. Black mailed a written report to the District Court

recommending equal custody with each parent having alternating sixmonth periods. A hearing was held on February 28, 1995, and on

April 18, 1995, the District Court ordered that equal time custody

be implemented. Mary Ann appeals from this order.

1 . Did the District Court err in implementing an equal

custody arrangement of the parties' child?

In reviewing a district court's child custody determination,

we determine whether the district court's findings are clearly

erroneous. In re Marriage of Dreesbach (1994), 265 Mont. 216, 220-

21, 875 P.2d 1018, 1021. The findings of fact must be based on

substantial credible evidence, and the court's decision will be

upheld unless a clear abuse of discretion is shown. Marriaqe of

Dreesbach, 875 P.2d at 1021; In re Marriage of Hunt (1994), 264

Mont. 159, 164, 870 P.2d 720, 723.

In its May 30, 1990, Findings of Fact, Conclusions of Law and

Decree, the District Court stated that, as time goes by, additional

contact with Gordon should be phased into the custody arrangement.

The court ordered that "the parties shall work with the counselor

to develop a plan to permit Ashley to spend more time with Gordon."

In its finding number 11, the court stated that:

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It is in the best interest of Ashley that the above plan,

or some form of it, remain in effect until Ashley reaches

school age, and that the parties at that time renegotiate

a plan to permit Ashley to spend an equal amount of time

with her father. When Ashley reaches school age, the

parties shall consult with Dr. Black, or another

qualified professional. The consultation shall have as

its goal the determination of whether equal time with

both parents is in the child's best interests. Equal

time shall be ordered if Dr. Black, or another qualified

professional, feels that equal time is in the child's

best interests.

This 1990 provision contemplated the phase-in which later occurred

in this case. Dr. Black made a recommendation that equal custody

was in Ashley's best interest and the District Court implemented

that recommendation. In its April18, 1995 order, the court stated

that "[iIt is clear that since June 1 of 1990 this Court has

contemplated that the parties would be moving to an equal custody

plan with their minor child."

Mary Ann argues that the District Court order implementing

equal custody was a change in her primary residential custody and,

as such, the prerequisites of § 40-4-219, MCA, had to be satisfied.

Further, Mary Ann asserts that this Court's holding in In re

Marriage of Johnson (1994), 266 Mont. 158, 879 P.2d 689, is

controlling and requires that the jurisdictional requirements set

forth in $j 40-4-219, MCA, be satisfied when the effect of the order

is to substantially change the child's primary residence. The

District Court found that:

This is not a situation where a change in custody was not

contemplated by this Court from the entry of its original

Order in June of 1990. All the parties were put on

notice at that time that we were working toward as equal

custody arrangement. This is not a situation where one

parent is seeking to significantly alter a custody

arrangement. This Court has specifically adopted a

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custody plan in its decision of June 1, 1990, and that

plan included an eventual move to equal custody.

The fact that equal custody had been contemplated since the

original Decree in 1990 supports the District Court's conclusion

that the Order Implementing Equal Custody was precisely that--

implementation of a previous order--not a modification of custody.

The record reflects that the District Court carefully

considered the best interests of the child, as set forth in § 40-4-

212, MCA, in implementing the equal custody arrangement. The court

noted that "Mary Ann exudes anxiety and that feeling is picked up

by the child" and that the equal custody implementation would

benefit Ashley's mental health development. We conclude that the

District Court's findings are not clearly erroneous and that the

District Court did not abuse its discretion in implementing equal

custody.

In addition, Mary Ann asserts that the District Court erred in

not requiring Gordon to file an affidavit supporting what she

termed his llmodification of custody," pursuant to § 40-4-220, MCA.

However, the District Court determined, and we agree, that § 40-4-

220, MCA, is inapplicable in the instant case. The District

Court's implementation of joint custody was not a modification,

rather, it was the implementation of the 1990 Decree. Thus,

compliance with § 40-4-220, MCA, was not necessary.

2 . Did the District Court abuse its discretion in allowing

a n expert witness to testify and to give his custody

recommendations and in not granting a continuance?

Mary Ann argues that the District Court erred in allowing Dr.

Black to testify at the hearing. She alleges that Dr. Black had a

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"built in bias" in recommending equal custody and that this bias

compromised his impartiality in the evaluation. In reviewing a

district court's ruling on the qualifications and competency of an

expert witness to express an opinion we have held that:

[Tlhe determination of the qualification and competency

of expert witnesses rests largely within the trial judge,

and without a showing of abuse of discretion, such

determination will not be disturbed.

Cottrell v. Burlington Northern R. Co. (1993), 261 Mont. 296, 301,

863 P.2d 381, 384 (citing Foreman v. Minnie (1984), 211 Mont. 441,

445, 689 P.2d 1210, 1212). Mary Ann asserted her objection to Dr.

Black's testimony both to Dr. Black during his evaluation, and to

the District Court. However, the court found that Dr. Black's

recommendation of equal custody should be implemented and that

equal custody was in Ashley's best interest. We cannot say that

the discretionary decision to permit Dr. Black to testify was an

abuse of discretion, thus, the District Court's determination will

not be disturbed.

Finally, Mary Ann asserts that she should have been granted a

continuance in order for her to obtain an expert of her own

choosing. In reviewing discretionary trial court rulings we

determine whether the district court abused its discretion. May v.

First Nat'1 Pawn Brokers, Ltd. (Mont. 19951, 890 P.2d 386, 388, 52

St.Rep. 111, 112. The District Court noted that Dr. Black had an

ongoing involvement in the case, and had initially been involved at

Mary Ann's request. The court found that these parties had already

seen numerous counselors. Further, the court noted that it had

previously expressed its concern, in its June 1992 order, that too

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many counselors had been involved in the case. The court stated

that "[clonstantly involving this child with new counselors and in

custody fights is not helping any of these parties." Thus, based

on the District Court's findings, its 1992 order, its admonition of

the parties of the detrimental nature of additional custody

disputes, and Dr. Black's testimony, we cannot say that the

District Court abused its discretion in refusing to grant the

continuance in order to allow Mary Ann to secure the testimony of

an additional expert witness.

Affirmed.

We concur. /

Justices

Justice Terry N. Trieweiler did not participate in this case.
Justice Karla M. Gray, dissenting.

I respectfully dissent from the Court's opinion on the first,

and dispositive, issue in this case. I would reverse and remand

for such further proceedings as may be appropriate.

The threshold issue in this case is whether the District

Court's April 18, 1995, order for an equal time custody arrangement

is a modification of its earlier custody determination or a mere

implementation of an earlier order. If the order at issue is a

modification of a prior custody decree which effects a substantial

change in the child's primary residence, it is clear that the

jurisdictional prerequisites of § 40-4-219, MCA, must be met (In re

Marriage of Johnson (1994), 266 Mont. 158, 166, 879 P.2d 689, 694),

and is undisputed that those requirements were not considered by

the District Court here. If, on the other hand, the order merely

implements a prior custody decree, then the District Court need

consider only the "best interest" test contained in § 40-4-212,

MCA.

The Court concludes that the District Court's April 18, 1995,

order did not modify an earlier custody order, but merely

implemented such an order. It is my view that the Court fails to

read the earlier order carefully, and then to apply the law to that

order. Doing so mandates a reversal of the District Court.

Mary Ann and Gordon's marriage was dissolved by decree dated

May 30, 1990. The District Court made extensive findings of fact

and conclusions of law with regard to distribution of the marital

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estate, child custody and child support. Only the findings and

conclusion relating to child custody are relevant here.

Mary Ann and Gordon's minor daughter Ashley was just over two

years old at the time of the dissolution. The parties agreed, and

the District Court found, that it was in Ashley's best interest to

be placed in the joint legal custody of her parents, with Mary Ann

designated as the primary residential custodian.

Ashley had been traumatized by the circumstances surrounding

the dissolution of her parents' marriage and counseling was

necessary to help her deal with the situation. Dr. Hugh Black had

been counseling Ashley and presented a two-phase residential plan

for the court's consideration. In Finding of Fact Number 9, the

District Court set out the "Initial Residential Plan." During the

period of the initial plan, Ashley would continue to receive mental

health counseling and Gordon's visitations with Ashley during that

time were severely limited.

The District Court also set out in Finding of Fact Number 9

the "Phase-in of Permanent Residential Plan." Under the permanent

plan, Gordon had visitation on alternating weekends and school

holidays and on two evenings each week; each party was entitled to

spend one-half of the summer vacation with Ashley.

In Finding of Fact Number 11, the District Court stated that,

at the time Ashley reached school age, the parties should consult

with Dr. Black (or another qualified professional); the

consultation "shall have as its goal a determination of whether

equal time with both parents is in the child's best interests."

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The finding went on to state that an equal time custody arrangement

would be ordered if, at that time, a qualified professional felt

that it was in Ashley's best interests.

The District Court's May 30, 1990, decree contained only one

conclusion of law relating to child custody. Conclusion of Law

Number 3 states: "It would be in the best interest of the minor

child if her custody and visitation were regulated as set forth in

Finding of Fact Number 9 above." As outlined above, that finding

ends with a residential plan which, by its terms, is denominated

"permanent." Nothing in the District Court's conclusions refers to

either the t'goall' relating to equal time which is contained in

Finding of Fact Number 11 or the potential referenced there for

redetermining Ashley's best interests at some future time.

Thus, it is clear that the District Court's May 30, 1990,

custody determination ends at the point where the "Permanent

Residential Plan" has been phased in. At that point, Mary Ann

remained Ashley's primary residential custodian, with liberal

visitation by Gordon.

Both statute and case law are clear with regard to modifying

a prior custody decree. By its terms, § 40-4-219, MCA, vests

discretion in a district court to modify a prior custody decree,

but only if statutory requirements are met. A "prior custody

decree" is "a custody determination contained in a judicial decree

or order . . . .'I Section 40-4-219(7), MCA (emphasis added). We

consistently have held that the § 40-4-219, MCA, requirements are

jurisdictional prerequisites to modification of a custody decree.

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See, e.s., Marriaoe of Johnson, 879 P.2d 689, and cases cited

therein.

Nor can it be disputed that a change from Ashley residing

primarily with Mary Ann to an "equal time" custody arrangement

where Ashley would reside with Gordon for six months of the year is

a significant change in a child's living arrangements. Indeed, Dr.

Black testified in this case that the change proposed by Gordon--

and recommended by Dr. Black--was a fairly radical change in the

existing custody arrangement.

As we stated so recently in Marriaae of Johnson, motions to

modify child custody provisions in a dissolution decree "which have

the effect of substantially changing the primary residence" of a

child must satisfy the jurisdictional requirements contained in

§ 40-4-219, MCA. Marriase of Johnson, 879 P.2d at 694. The

legislature's rationale for imposing such requirements was to

provide for the continuity and stability of a child's living

arrangements. Marriase of Johnson, 879 P.2d at 692.

The permanent residential plan adopted as the District Court's

conclusion of law in 1990 is the "custody determination" made by

the court. Whatever the effect of the court's finding relating to

a possible equal time custody arrangement in the future, it cannot

constitute a "custody determination." A custody "determination"

can be made only by a court and only after consideration by the

court of "all relevant factors." Section 40-4-212(l), MCA. Under

§ 40-4-219, MCA, and Marriage of Johnson, the jurisdictional

prerequisites to modifying the 1990 custody decree clearly must be

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met in this case before a modification effectuating equal time

custody can be made. Just as clearly, those prerequisites were not

even considered by the District Court.

The Court follows the District Court's lead in attempting to

distinguish this case from Marriacre of Johnson by relying on the

fact that the District Court "contemplated" a future equal time

custody arrangement back in 1990. It quotes at length from the

District Court's Finding of Fact Number 11 to that effect.

l'Contemplatingl' something which might occur a number of years in

the future cannot be said--even as a matter of logic--to "determine

custody" for that future time. Indeed, such a "contemplation"

cannot constitute a "custody determination" given the language in

§ 40-4-212, MCA. The same is true of any "goaltt or "plan"

contained in Finding of Fact Number 11.

Moreover, even if, at the time of the original decree, the

District Court envisioned being able to make substantial changes in

Ashley's primary residence in the future on the basis of a "best

interest" analysis, the law changed in that regard with our

decision in Marriage of Johnson on August 12, 1994. Like this

Court, the District Court was required to follow current law at the

time of its 1995 decision changing Ashley's physical custody to an

equal time custodial arrangement.

The Court's decision in this case gives district courts carte

blanche to make "custody determinations" in derogation of the

requirements of § 40-4-212, MCA. It also nullifies our effort in

Marriaae of Johnson to give meaning to the legislature's

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requirements for modifying a prior custody decree. District courts

are now authorized to include a variety of future-oriented

provisions in original decrees to preempt the necessity of making

an appropriate decision about modifying custody in the future under

legislatively required, and Marriase of Johnson mandated,

jurisdictional prerequisites. Stability and continuity in a

child's living arrangements will be precluded at the outset by

"findings" which cannot properly be made at that time. I cannot

agree.

I dissent.

Justice James C. Nelson joins in the foregoing dissent of Justice

Karla M. Gray.

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