No. 87-555

IN THE SUPREME COURTOF THE STATE OF MONTANA 1988

INRE THEMARRIAGE OF ROSEMARYHOUTCHENS, Petitioner and &ppeil*rrt, and 

### Re

### 5?cx1ckr-dROCKY J. HOUTCHENS, Respondent andAppellant.

APPEAL FROM: District Court of the Fourth JudicialDistrict, Inand for theCounty of Missoula, TheHonorable James B. Wheelis, Judgepresiding.
COUNSEL OF RECORD:
ForAppellant:
Noel K. Larrivee; LarriveeLaw Offices, Missoula, Montana
ForRespondent:
Martha McClain;Geizler,Taylor,Newcomer & McClain, Missoula,Montana

Submittedon Briefs: June 22, 1988 Decided: August 18, 1988
Filed: 

## RUG181988'

ClerkMr. Justice Fred J.Weber delivered the Opinion of the Court.

Inthisaction fordissolutionof theparties' marriage, theDistrictCourt for the Fourth Judicial District, Missoula County, awarded custody of the minor child to the mother and ordered the father topay child support. The father appeals. We affirm. The father raises two issues: 1. Did the District Court abuse its discretion in denying the father's request for joint custody of the child and awarding sole custody to themother? 2. Did the District Court abuse its discretion in setting the amount of child support? The parties were married in January 1981and separated in 1983. Their one living child of the marriage has been in the mother's temporary custody since May 1984. Under the temporary custody order, the father had visitation for ten days each month. The child, a boy, is now of school age. Theparties stipulated thathewould enroll in school inDeer Lodge,where the mother lives,pending trial on the issue of permanent child custody. At trial, the father argued for joint custody of the boy. The mother requested sole custody. She presented testimony that the father had physically abused her during the marriage. The court awarded custody to themother,with visitation to the father on alternate weekends and holidays and for sixweeks each summer. It ordered the father to pay child support in the amount of $235 per month, except during his summer visitation, when he was ordered to pay $145 per month.

### Did the District Court abuse its discretion in denying the father's request for joint custody of the child and awarding sole custody to themother? The father argues that the most logical custodial plan would be to grant custody of the child to him during the winter months and to the mother during the summer months, because of their work schedules. He is a construction worker and she is a teacher. In the alternative,he proposes joint custodywith primary physical custody in themother until the boy is 9years of age andprimary physical custody in himself for the remainder of the boy's minority. The father also argues that the District Court abused its discretion in denying his request for jointcustody because of the mother's claim thathe battered her during theirmarriage. The father argues that until the 1987 legislature amended S 

### 40-4-224, MCA, physical abuse of one spouse by the other was not a factor for consideration in child custody determinations. He further maintains that prior to that 1987 amendment,allegations of spousal abuse were not sufficient to overcome the presumption in favor of jointcustody. At the time of trial, the statute establishing the presumption in favor of joint custody, S 

### 40-4-224, MCA

(1985),read,in relevantpart:
(1) Upon application of either parent or both parents for joint custody, the court shallpresume joint custody is in the best interests of a minor child unless the court finds, under the factors set forth in 40-4-212, that joint custody isnot in the best interests of the minor child. If the court declines to enter an order awarding joint custody, the court shall state in its decision the reasons for denial ofan award of jointcustody. Objection to joint custody by a parent seeking sole custody is not a sufficientbasis for a finding that joint custody is not in the best. interests of a child,

### nor is a finding that the parents are hostile to each other.
The lower court made detailed findings, several of which relate to the continuing effects of the physical abuse which occurred during the parties' marriage. These include the following:

42. 

### Petitioner has not been alone with Respondent since October, 1983. 

### She continues to fearhim. 43. 

### Petitioner testified that she and Respondent are unable to communicate about the minor child. Shebelieves that they are unable to communicate because Respondent insists on total control of their relationship and is unable to share decision-making authority. Further, her fear of him interferes with her ability to communicate with him. 44. 

### Respondent denies that he assaulted Petitioner. Petitioner's testimony concerning the assaultswas credible. 45. 

### Respondent testified that he was not aware of any problems relating to visitation or transportation of the child but related several occasions when he and Petitioner quarreled over issues relatingto theminor child. 46. 

### Myra Deschamewas qualified to testify as an expert in the field of socialwork and domestic violence. Ms. Deschame identified the Petitioner as a battered spouse and testified that batterers have certainpersonality traits in common, including low self-esteem and an inability to control their anger. 47. 

### Ms. Deschame testified that children are at risk livingwithmenwho batter,both because of the likelihood that the childwill be battered and the likelihood that the child will rely on that person as a rolemodel.
We have reviewed the transcript and conclude that the above findings are not clearly erroneous. See Rule 52

### (a)

In its conclusions,the court stated:Joint custody of the minor child isnot in his best interestdue to theviolent behaviormanifested by [Respondent] towards [Petitioner] during the marriage and the risk posed to the child as a result of such behavior. While spousal abuse was not listed as a factor to be considered in awarding custody under 

### 5 40-4-224, MCA (1985)

### , the evidence at trial clearlyrelated thehistory of abuse to the best interests of the child. Specifically,the evidence related to 40-4-212(l) and (5), MCA, the wishes of the child'sparents as to his custody and the mental andphysical health of all individuals involved. The father's arguments do not dispose of these legitimate concerns. Regardless of the plan of physical custody, joint legal custody would require a sharing of decision-making and responsibility between the parents. We hold that there was no abuse of discretion in the lower court's conclusion that joint custody is not in the child's best interest.

Did the District Court abuse its discretion in setting the amount of child support? The father argues that the record does not support the award of $235 in child support per month. He asserts that this amount does not take into account his expenses, his fluctuating income, or his in-kind contributionstohis son's support. Our standard of review is whether the district court abused itsdiscretion. In reMarriage of Tonne (Mont. 19871, 733 P.2d 1280,1284, 44 St.Rep. 411, 416. Exhibit 2, introduced into evidence by the mother without objection, used the formula suggested in the Uniform District Court Rule on Guidelines for Determinating Child Support to calculate the father's monthly child support obligation at $246. The mot.herlsExhibit 3, which was also admitted into evidencewithout objection, calculates the father's child support obligation at $228per month,based on the formula set forth by this Court in In reMarriage of Carlson (Mont. 1984), 693 P.2d 496, 41 St.Rep. 2419, rev'd on other grounds after remand, 714 P.2d 119. The District Court's child support award is in the range between those two calculations. The court reduced child support to $145per month during the two months which include the father's summer visitation. We conclude that the court's setting of child support is not an abuse ofdiscretion. Affirmed.

We concur:Justice John C. Sheehy,dissenting:

If we accept in full the findings of fact made by the District Court, particularly including those relating to battery, the conclusions and order derived therefrom do not make sense. Granting the father fullvisitation custody of the boy for six weeks during the summer, and on every alternate major holiday, belies the findings that the chi1.d would sufferbattery himself, or have an improper rolemodel. It would make more sense, and be cheaper for the parties, if the father were granted custody of the child during the winter months when he was not working and the mother is working, and conversely, that the mother be given complete custody during the summer months when she is not working and the father is working. The reversal of their times of custody to their employment can only complicate the lives of the boy and his parents. This arrangement could have been worked out while still maintaining custody in the mother. It is certainly far better for the interests of the child that he spend as much time as possible with his parents, and notwith habysittersor indaycare. Therefore I dissent. 

# 77

L

Mr. JusticeWilliam E. Hunt, Sr.:

I concur in the foregoing dissent.