TJo. 82e.488 INTHE SUPREME COURT OF TEE STATE OF nTO?JTANA 1-983

IPJ RE TEE PIAREIAGE OF IIICI'IAELT. MEYER, Petitioner and Respondent,

-vsDEBORAII .?I.?$EYER, Respondent and Appellant.

Appeal from: Dlstrict Court of 

### tneTenth JudiclalDistrict, Inand fortheCounty 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: ?,larch31, 1983 Decided: May 19, 1983

Filed: 

### MAY

## 19

## 1983

- -- Clerk

### Mr. JusticeL, C. Gulbrandson delivered theOpinion 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 specificprovisionsfor visitation. The parties were married on September 30, 1972, and atthat 

### time respondent, Deborah Meyer, had a son, Tracy. Petitioner Mike Meyer adopted Tracy approximately five or six years after hismarriage toDeborah. 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. Hehas held thispost for the past sevenyears. 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 atEastern 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. Itwas then decided she should go toEMC to obtain the other 

### creditsshe needed inorder to become a certified teacher. When she began attending EMC, the arrangement 

### was that she

was to go to BillingsMonday evenings and return toLewistown 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 exactlywhy the 

### time lengthened 

### is conflicting

# . While wife was attending EMC and Mike was working, a babysittercared for the younger childrenduring the day. Mike caredfor the children and the house inthe evening. The wife returned toLewistown spring quarter to do her student teaching. She moved back in with the family, but the situation

### was tensebetween 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 towhy the tripswere made. Three issues arepresented 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 theDistrict Court not to award the wife child support in lightof her request for such support? 3. Whether it was error for theDistrict Court to refuse to granta specificvisitation schedule, despite the recognized animosity between theparties? Astowife's firstcontention that it was error to splitthe children, we disagree. Inchild custodymatters, theprimary factor tobe considered 

### isthebest interestof the child. Section40-4-212, MCA, Malcom

v. Malcom (1982), Mont. 

## ,640 P.2d 450, 39 St.Rep. 262. As respondent argues,the plainmeaning 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, thisCourt need onlylook 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 forthby thatsectionareasfollows: "40-4-212. Best interestof child. The court shalldetermine custodyinaccordance with the best interest of the child. The court shall consider allrelevant factors including: "(1) the wishes of the child's parent or parentsastohiscustody; "(2) the wishes of the child as to his custodian; "(3) the interactionand interrelationshipof the child with his parent or parents, his siblings, and any other person who may significantlyaffectthe 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, 39St.Rep. 2204, 2206. In this case, it 

### is evident from the court's findings that such factorswere considered. The findingssetout 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 inthe record of this

### case to support the findings. Examples of suchevidence are: 1. the testimony of both parents thateach wanted custodyof all the children, although neither of them thought the children shouldbe separated; 2. the court's interview with Tracy, the oldest child, regardingwho he wished to livewith; 3. the testimony elicited on the relationship of the childrenwith each other and both parents; 4. the testimony concerning how the childrenhad adjusted to thehome 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 discretionby theDistrictCourt inregards to custody. Abuse of discretion as a standard of review also applies to thenext issue raised regarding the award of child support, aswe have previously noted inGrenfell 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 theDistrictCourt will not be disturbed on appeal unless there hasbeen a clear abuse of discretionresulting 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 sections48-322 and 48-323, R.C.M. 1947, now sections 40-4-203 and

40-4-204, MCA." 596 P.2d at207. Here, the record reveals thatthe

### 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 thatboth parties were employed, that they make almost equal incomes e 

## , husband $1,095 per month, wife $800 per month atthat 

### 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 appellantchild support. The Distr

### ictCourt 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 intheir custody. As to the last issue of whether the District Court should have 

### set up a specificvisitationschedule, we find no error. Both the husband and wife raise the issue of visitation in their request for custody. They both specifically requestcustody 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 theDistrict 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 allthat

### 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 inthe matter of visitation privileges, for the reason that, if the parties arereasonable 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 at679. Under this rationale, if this visitation arrangement turns out tobe unworkable for theparties, they can return toDistrict 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 affirmed. Justi& Weconcur:

Chief Justice \