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No. 99-134 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2000 MT 58

299 Mont. 13

996 P. 2d 386

IN RE THE MARRIAGE OF 

THOMAS ANTHONY McKENNA,

Petitioner and Appellant, 

and

SALLY JO McKENNA, 

Respondent and Respondent.

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone,

The Honorable Susan P. Watters, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

George T. Radovich, Billings, Montana

For Respondent:

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Damon L. Gannett, Gannett Law Firm, Billings, Montana

Submitted on Briefs: September 2, 1999 

Decided: March 9, 2000

Filed:

__________________________________________

Clerk

Justice William E. Hunt, Sr., delivered the Opinion of the Court.

¶1.Thomas Anthony McKenna (Thomas) appeals from the Findings of Fact and 

Conclusions of Law of the Thirteenth Judicial District Court, Yellowstone County, 

awarding primary residential custody of the parties' minor child to Sally Jo McKenna 

(Sally). We affirm.

¶2.We are asked to address the question of whether the District Court's decision awarding 

Sally primary custody of the child during the school year was an abuse of discretion.

Factual and Procedural History 

¶3.Thomas and Sally were married on September 1, 1990, in Tulare, California. They had 

one child, Kirsten Marie McKenna (Kirsten), during their marriage. Kirsten was born on 

December 28, 1993. The parties separated on May 5, 1997, and have lived apart since that 

time. This case was initiated when Thomas filed a Petition for Dissolution of his marriage 

to Sally on June 12, 1997. The parties then entered into a Partial Marital and Property 

Settlement Agreement governing the division of marital property and the allocation of 

marital liabilities on October 10, 1997. This agreement was filed with the court.

¶4.Since separating, Thomas and Sally have mutually agreed to a shared custody 

arrangement. Kirsten's time has been alternated between the parties so as to provide each 

parent with approximately one-half of the child's time. The parties' Partial Marital and 

Property Settlement Agreement contained temporary provisions for the continuation of 

joint custody of Kirsten pending a final decree of dissolution. The parties further informed 

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the District Court that they desired that the court incorporate all of the terms of their 

marital property agreement, except the provisions for the equal allocation of Kirsten's time 

between the parents, into the final decree of dissolution. 

¶5.Thus, the parties stipulated to a custody investigation by the Yellowstone County Court 

Services pertaining to the allocation of Kirsten's time. The custody investigation was 

performed by Sherri Kenck (Kenck), Court Services Family Relations Specialist. Kenck's 

completed custody investigation, dated January 28, 1998, was submitted to the District 

Court and received into evidence. In her investigation, Kenck recommended in pertinent 

part that Thomas and Sally share joint parenting time. It is recommended that the current 

schedule remain in place with some provisions made to provide Kirsten with continuity 

and stability of care. When Kirsten starts school, it is recommended that she return to her 

mother's home to sleep on the evenings she is with her father. A suggested return time 

would be 7:30. This will allow Kirsten to have a sense of continuity as she prepares for 

school each day, but will allow the current schedule to remain in place. During the 

summer months, it is recommended that the overnight weekday visits resume.

¶6.Although the parties initially represented to the District Court that they were willing to 

accept Kenck's recommendations, a disagreement subsequently developed concerning 

when the cessation of overnight times with Thomas during weekdays would occur. On 

October 30, 1998, a hearing was held on the matter of allocating Kirsten's time among the 

parents. In addition to Kenck, several other experts testified at the hearing, including: Kate 

Zednick, Licensed Clinical Social Worker (Zednick); Jim Paulson, Licensed Clinical 

Social Worker (Paulson); and Dr. F. Tom Peterson, Licensed Clinical Psychologist (Dr. 

Peterson).

¶7.At the hearing, Kenck testified that although both parents were very nurturing and close 

to Kirsten, there were some relationship difficulties between the parents which posed an 

impediment to Kirsten's long-term adjustment to her parents' divorce. In particular, Kenck 

observed that communications between Thomas and Sally were marked by frustration, 

anger, arguing, and the inability to reach agreement and make co-parenting decisions 

relative to Kirsten. Children of Kirsten's age are particularly susceptible to such a 

relationship between their parents, according to Kenck, and Kirsten had been exhibiting 

both physical and emotional reactions to this dynamic between Thomas and Sally, 

including some anger, aggressiveness, tearfulness, and sad feelings. 

¶8.Thus, Kenck recommended that the equal allocation of time between the parents 

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continue until Kirsten started attending kindergarten in the fall of 1999, when Kenck 

recommended that Kirsten live primarily with Sally. Kenck was of the opinion that it 

would be in Kirsten's best interest to have one primary home with stability and continuity 

of care during school, which would help to reduce parental conflict. The basis for Kenck's 

recommendation was that, given Kirsten's precocious personality, Sally was a better parent 

for Kirsten at that time. Specifically, there was a clearer parent-child separation and 

interaction between Sally and Kirsten; Sally was better able to provide discipline and 

structure for Kirsten and Kirsten more readily accepted Sally's role as parent. In contrast, 

Thomas and Kirsten shared what Kenck described as an "emotionally enmeshed" 

relationship in which there is not a clear role separation between parent and child and in 

which an intelligent child like Kirsten can effectively end up parenting the parent.

¶9.Zednick, who also works as a psycho-therapist in private practice, interviewed Thomas, 

Sally, and Kirsten several times prior to the hearing. Expressing concern about Kirsten's 

adjustment to the divorce, Zednick agreed with the recommendations in Kenck's custody 

investigation. Zednick felt that once Kirsten began to attend school, it would be important 

for her to have "structure, predictability, and consistency." A steady routine was more 

important with a child like Kirsten, according to Zednick, because Kirsten is such "an 

incredibly bright, incredibly strong-willed child" who can easily push parental limits. 

Zednick also noted that Thomas had delivered Kirsten late to her day-care provider on 

several occasions and had exhibited an extremely difficult time emotionally separating 

from Kirsten when he left her at the day-care center.

¶10.Paulson, who is also employed as a private practice clinician, was Thomas' therapist 

beginning in May of 1997. Although Paulson had expressed concern about Thomas' 

emotional enmeshment with Kirsten about six months prior to the hearing, he testified 

that, in his opinion, Thomas' enmeshment issues had been successfully addressed through 

therapy. Paulson felt that an equal balance of power between the two parents should work 

and, therefore, he recommended the continuation of equal sharing of Kirsten's time by the 

parties. He saw no reason for changing such an arrangement once Kirsten began school. 

However, Paulson had never met with Sally nor observed the interpersonal dynamics of 

Sally and Kirsten when together.

¶11.Dr. Peterson had met with Kirsten several times prior to the hearing in order to 

address issues dealing with the separation of the parties. Dr. Peterson stated that Kirsten 

handles a shared custody arrangement as well as any child could. He did not believe that 

having Kirsten spend two additional nights at her mother's house during the school week 

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would assist Kirsten in dealing with the divorce. Dr. Peterson had, however, observed 

evidence of enmeshment in the relationship between Thomas and Kirsten, including "miniparenting behavior." Dr. Peterson had only minimal contact with collateral sources of 

information pertaining to Kirsten and the parties, nor had he been asked to address the 

issue of an appropriate custody arrangement for Kirsten.

¶12.Thomas and Sally both testified at the hearing as well. Thomas expressed desire to 

continue the current shared custody arrangement, while Sally asked the court to adopt 

Kenck's recommended custody arrangement. Thomas was of the opinion that he and Sally 

could work out any co-parenting decisions relative to Kirsten with little conflict.

Discussion 

¶13.Was the District Court's custody decision an abuse of discretion?

¶14.We review a custody determination to determine whether the findings of fact upon 

which the district court relied in rendering its decision are clearly erroneous. In re 

Marriage of Baer, 1998 MT 29, ¶ 18, 287 Mont. 322, ¶ 18, 954 P.2d 1125, ¶ 18. Where the 

findings are supported by substantial credible evidence, this Court will affirm the custody 

decision unless it is shown that the trial court committed a clear abuse of discretion. 

Marriage of Baer, ¶ 18. 

¶15.In a marriage dissolution proceeding, the district court is required to determine child 

custody matters in accordance with the best interest of the child. See § 40-4-212, MCA. 

While the court must consider several statutory factors in determining the child's best 

interest pursuant to § 40-4-212, MCA, it need not make specific findings pertaining to 

each factor. Marriage of Baer, ¶ 19 (citing In re Marriage of DeWitt (1995), 273 Mont. 

513, 516, 905 P.2d 1084, 1086; In re Marriage of Saylor (1988), 232 Mont. 294, 297-98, 

756 P.2d 1149, 1151).

¶16.Thomas claims that the District Court endorsed the expert views of Kenck and 

Zednick while disregarding those of Paulson and Dr. Peterson in granting Sally primary 

residential custody of Kirsten. According to Thomas, since the court's findings are not 

supported by substantial credible evidence, the custody decision is therefore clearly 

erroneous. We disagree. Here, the District Court clearly addressed the statutory guidelines, 

and its factual findings show that it carefully considered the opinions of all four experts in 

rendering its custody decision.

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¶17.While we acknowledge that the record shows that both Thomas and Sally are good 

parents and that both Paulson and Dr. Peterson expressed the opinion that the shared 

custody arrangement could work, it is not this Court's role to second-guess the fact-finding 

function of the District Court. Where there are conflicts in the testimony, it is the function 

of the trier of fact to resolve those conflicts. In re Marriage of Mitchell (1991), 248 Mont. 

105, 108, 809 P.2d 582, 584. We will not substitute our judgment for that of the trier of 

fact as the trial court is in a better position than this Court to resolve child custody issues. 

In re Marriage of Anderson (1993), 260 Mont. 246, 252, 859 P.2d 451, 454.

¶18.We hold that there is substantial credible evidence supporting the District Court's 

determination that it is in Kirsten's best interest to adopt the recommendations made by 

Kenck in her written custody investigation. Particularly, there is a wealth of evidence 

supporting the court's finding of the parties' "inability to agree" on important co-parenting 

decisions regarding Kirsten and school, including whether or not to permit weekday 

overnight visits with Thomas during the school year, which school Kirsten will attend, and 

when Kirsten should begin school (kindergarten or first grade). There is also abundant 

evidence supporting the District Court's findings that Kirsten needs a stable home 

environment upon beginning school, and that Sally would be better able to provide that 

sort of structured environment than Thomas.

¶19.Nor are the District Court's findings otherwise clearly erroneous. There is no 

indication that the court misapprehended the effect of the evidence or committed a clear 

and definite mistake in awarding Sally primary residential custody of the child during the 

school year. See In re Marriage of Schmitz (1992), 255 Mont. 159, 165, 841 P.2d 496, 

500. A trial court's custody decision must be presumed correct and will be upheld unless a 

clear abuse of discretion is shown. In re Marriage of Ryan (1986), 222 Mont. 188, 191, 

720 P.2d 691, 693. We hold that Thomas has failed to show that the District Court clearly 

abused its discretion. Where, as here, the trial court has properly considered the factors set 

forth in § 40-4-212, MCA, has relied on professional assessments of the child's best 

interest, and has made an "independent analysis of the facts of the case to make its custody 

decision," there is no clear abuse of discretion. See Marriage of Anderson, 260 Mont. at 

253, 859 P.2d at 455-56. 

¶20.Affirmed.

/S/ WILLIAM E. HUNT, SR.

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We Concur:

/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

/S/ JIM REGNIER 

/S/ W. WILLIAM LEAPHART

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