No. 87-555 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

IN RE THE MARRIAGE OF 

ROSEMARY HOUTCHENS, 

Petitioner and &ppeil*rrt, 

and Re 5?cx1ckr-dROCKY J. HOUTCHENS, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable James B. Wheelis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Noel K. Larrivee; Larrivee Law Offices, Missoula, 

Montana 

For Respondent: 

Martha McClain; Geizler, Taylor, Newcomer & McClain, 

Missoula, Montana 

Submitted on Briefs: June 22, 1988 

Decided: August 18, 1988 

Filed: RUG 1 8 1988' 

Clerk 
Mr. Justice Fred J.Weber delivered the Opinion of the Court. 

In this action for dissolution of the parties' marriage, 

the District Court for the Fourth Judicial District, Missoula 

County, awarded custody of the minor child to the mother and 

ordered the father to pay 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 the mother? 

2. Did the District Court abuse its discretion in 

setting the amount of child support? 

The parties were married in January 1981 and 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. 

The parties stipulated that he would enroll in school in Deer 

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 the mother, with 

visitation to the father on alternate weekends and holidays 

and for six weeks 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 the mother? 

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 

custody with primary physical custody in the mother until the 

boy is 9 years of age and primary 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 joint custody because of the mother's 

claim that he battered her during their marriage. 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 joint custody. 

At the time of trial, the statute establishing the 

presumption in favor of joint custody, S 40-4-224, MCA 

(1985), read, in relevant part: 

(1) Upon application of either parent or both 

parents for joint custody, the court shall presume 

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 is not 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 of an award of joint custody. Objection 

to joint custody by a parent seeking sole custody 

is not a sufficient basis 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 

fear him. 

43. Petitioner testified that she and Respondent are unable to communicate about the minor 

child. She believes 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 

assaults was 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 relating to the minor child. 

46. Myra Deschame was qualified to testify as 

an expert in the field of social work and domestic 

violence. Ms. Deschame identified the Petitioner 

as a battered spouse and testified that batterers 

have certain personality traits in common, including low self-esteem and an inability to control 

their anger. 

47. Ms. Deschame testified that children are 

at risk living with men who batter, both because of 

the likelihood that the child will be battered and 

the likelihood that the child will rely on that 

person as a role model. 

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 is not in his 

best interest due to the violent behavior manifested 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 clearly related the history 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's parents as to his custody and the mental and physical 

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 contributions to his son's 

support. 

Our standard of review is whether the district court 

abused its discretion. In re Marriage 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.herls Exhibit 3, which was also admitted into evidence 
without objection, calculates the father's child support 

obligation at $228 per month, based on the formula set forth 

by this Court in In re Marriage 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 $145 per 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 of discretion. 

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 full visitation custody of 

the boy for six weeks during the summer, and on every 

alternate major holiday, belies the findings that the chi1.d 

would suffer battery himself, or have an improper role model. 

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 not with habysitters or in daycare. Therefore I 

dissent. 77 L 

Mr. Justice William E. Hunt, Sr.: 

I concur in the foregoing dissent.