TJo. 82e.488 

IN THE SUPREME COURT OF TEE STATE OF nTO?JTANA 

1-98 3 

IPJ RE TEE PIAREIAGE OF 

IIICI'IAEL T. MEYER, 

Petitioner and Respondent, 

-vsDEBORAII .?I. ?$EYER, 

Respondent and Appellant. 

Appeal from: Dlstrict Court of tne Tenth Judiclal District, 

In and for the County of Fergus, The Ilonorable 

LeRoy McKinnon, Judge presiding. 

Counsel of Record: 

For Appellant: 

Torger S, Oaas, Lewistown, Pqontana 

For Respondent : 

Leonard H. IlcKinney , Lewistown, Flontana 

-- -- - ---- ---- 

Submltted on Briefs: ?,larch 31, 1983 

Decided: May 19, 1983 

Filed: MAY 19 1983 

- -- 

Clerk 
Mr. Justice L, C. Gulbrandson delivered the Opinion of the Court. 

This appeal stems from a supplemental decree entered by the 

District Court of the Tenth Judicial District, Fergus County, 

which decree provided for split custody of minor children, 

without provisions for child support, and without specific provisions for visitation. 

The parties were married on September 30, 1972, and at that 

time respondent, Deborah Meyer, had a son, Tracy. Petitioner 

Mike Meyer adopted Tracy approximately five or six years after 

his marriage to Deborah. 

After they were married, the parties moved to Bozeman, so 

that the husband could complete his education, during which time 

wife was employed and contributed to the support of the family. 

After he graduated, he obtained a job as a teacher and coach in 

Lewistown. He has held this post for the past seven years. 

While residing in Lewistown, the parties had two children, 

Shayne, now age five, and Jillean, now age two. After the birth 

of Shayne, the wife did not return to work on a permanent basis. 

She stayed in the home and cared for the children until she 

enrolled at Eastern Montana College in Billings (EMC) in 1982. 

In 1981, the wife began attending classes at the Lewistown 

College Center so that she could obtain a teaching certificate. 

She acquired all the credits that she could through the Center. 

It was then decided she should go to EMC to obtain the other credits she needed in order to become a certified teacher. 

When she began attending EMC, the arrangement was that she 

was to go to Billings Monday evenings and return to Lewistown on 

Thursday evenings, as her classes were only on Tuesday and 

Thursday. However, this arrangement only lasted for a couple of 

weeks. After that time, the wife began to spend more time in 

Billings. The evidence as to exactly why the time lengthened is 

conflicting . 

While wife was attending EMC and Mike was working, a babysitter cared for the younger children during the day. Mike cared 
for the children and the house in the evening. 

The wife returned to Lewistown spring quarter to do her student teaching. She moved back in with the family, but the 

situation was tense between her and husband. 

During spring quarter, wife made numerous trips to Billings, 

either leaving the children with the husband or a sitter. Only 

once, after she had had husband jailed for assault,did she take 

the two younger children with her. The evidence is conflicting 

as to why the trips were made. 

Three issues are presented by appellant for our review: 

1. Whether it was error for the District Court to separate 

the children by awarding custody of Tracy to the wife and the 

other two to the husband? 

2. Whether it was error for the District Court not to award 

the wife child support in light of her request for such support? 

3. Whether it was error for the District Court to refuse to 

grant a specific visitation schedule, despite the recognized animosity between the parties? 

As to wife's first contention that it was error to split the 

children, we disagree. 

In child custody matters, the primary factor to be considered 

is the best interest of the child. Section 40-4-212, MCA, Malcom 

v. Malcom (1982), Mont. , 640 P.2d 450, 39 St.Rep. 262. 

As respondent argues, the plain meaning of the word child used in 

section 40-4-212, MCA, mandates that the best interest of each 

child be considered, Hovey v. Department of Revenue (1983), 

Mont. , 659 P.2d 280, 40 St.Rep. 272, not the best interest 

of the children as a collective. 

"In reviewing the District Courts custody 

order, this Court need only look to the record 

to see if the factors set forth in section 

40-4-212, MCA, were considered, and must 

determine whether the trial court made 

appropriate findings with respect to these 

criteria. Markegard v. Markegard (1980), 

Mont . , 616 P.2d 323, 325, 37 St.Rep. 

1539, 1540"- Bier v. Sherrard (1981), -- A 

Mont . , 623 P.2d 550, 551, 38 St.Rep. 158; 

159. 
The factors set forth by that section are as follows: 

"40-4-212. Best interest of child. The court 

shall determine custody in accordance with the 

best interest of the child. The court shall 

consider all relevant factors including: 

"(1) the wishes of the child's parent or 

parents as to his custody; 

"(2) the wishes of the child as to his 

custodian; 

"(3) the interaction and interrelationship of 

the child with his parent or parents, his 

siblings, and any other person who may signif icantly af fect the child 's best interest; 

"(4) the child's adjustment to his home, 

school, and community; and 

" (5) the mental and physical health of all 

individuals involved." 

Specific findings on each of the elements need not be made, 

where there is substantial evidence to support the findings 

adopted. Speer v. Speer (1982), Mont . , 654 P.2d 1001, 

39 St.Rep. 2204, 2206. 

In this case, it is evident from the court's findings that 

such factors were considered. The findings set out the essential 

and determining facts upon which the District Court rested its 

conclusions as is required by Cameron v. Cameron (1982), 

Mont. , 641 P.2d 1057, 39 St.Rep. 485, 488. They speak to 

such facts as the children's care by the parents, and the older 

child's wishes regarding custody. There is also ample evidence 

in the record of this case to support the findings. Examples of 

such evidence are: 

1. the testimony of both parents that each wanted custody of 

all the children, although neither of them thought the children 

should be separated; 

2. the court's interview with Tracy, the oldest child, 

regarding who he wished to live with; 

3. the testimony elicited on the relationship of the 

children with each other and both parents; 

4. the testimony concerning how the children had adjusted to 

the home and various situations; 
5. some testimony on the general health of the children. 

Based on the findings and this evidence, we see no abuse of 

discretion by the District Court in regards to custody. 

Abuse of discretion as a standard of review also applies to 

the next issue raised regarding the award of child support, as we 

have previously noted in Grenfell v. Grenfell (1979), 182 Mont. 

229, 596 P.2d 205, where we stated: 

"The standard for reviewing maintenance and 

child support awards is well settled in 

Montana. The award made by the District Court 

will not be disturbed on appeal unless there 

has been a clear abuse of discretion resulting 

in substantial injustice. In Re Marriage of 

Brown (1978), Mont. 587 P.2d 361, 

367, 35 St.Rep. 1733, 1740. The District 

Court, in making its maintenance and child 

support awards, must consider the items and 

factors set out in sections 48-322 and 48-323, 

R.C.M. 1947, now sections 40-4-203 and 

40-4-204, MCA." 596 P.2d at 207. 

Here, the record reveals that the District Court heard testimony concerning the income of the parties, their standard of 

living and other relevant factors as is required by section 

40-4-204, MCA. This testimony indicated that both parties were 

employed, that they make almost equal incomes e , husband 

$1,095 per month, wife $800 per month at that time and presently 

$950 per month), and that each had a home that could adequately 

accommodate the children. 

Based on this evidence, it is apparent that there was no 

abuse of discretion on the part of the District Court in not 

awarding the appellant child support. The Distr ict Court entered 

findings concerning the fact that each party was presently 

employed with an income. These findings, coupled with the evidence in the record of approximately equal incomes and abilities 

to care for the children, support the court's conclusion that 

each party should support the child or children in their custody. 

As to the last issue of whether the District Court should 

have set up a specific visitation schedule, we find no error. 

Both the husband and wife raise the issue of visitation in 

their request for custody. They both specifically request 
custody of the children with reasonable visitation to the other 

parent. 

Wife contends that it was an abuse of discretion for the 

trial court not to set a specific visitation schedule, as such 

schedule is necessary because of the animosity the District Court 

found to exist between the parents. Although in some circumstances it would be an abuse of discretion where necessity is 

shown, this is not such a case. The record in this case indicates each party's willingness to allow the other visitation. 

There is no showing that a hard and fast visitation schedule is 

needed. The court's findings here support its conclusion that 

reasonable visitation is all that is required. 

The rationale for the type of visitation privileges granted 

the parents in this case is most ably stated by the Washington 

Supreme Court in Rivard v. Rivard (1969), 75 Wash.2d 415, 451 

P.2d 677, where they state: 

"'Many trial courts do what was done in this 

case, i.e., leave considerable latitude in the 

matter of visitation privileges, for the 

reason that, if the parties are reasonable in 

their approach to the problem, they can work 

it out on a mutually satisfactory basis and 

avoid the difficulties inherent to a hard and 

fast visitation schedule. If, however, the 

parties cannot agree, the court must then 

define the privilege so minutely that there 

can be no opportunity for misunderstanding. ' " 

451 P.2d at 679. 

Under this rationale, if this visitation arrangement turns 

out to be unworkable for the parties, they can return to District 

Court and have their visitation rights clarified. Sanderson v. 

Sanderson (1981), Mont. , 623 P.2d 1388, 38 St.Rep. 277. 

/ 

For the foregoing reasons, the ~istricthurt's decree is 

af firmed. 

Justi& 

We concur: 

Chief Justice \