No. 81-157 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

INRE THE MARRIAGE OF PATRICIA LOUISE MALCOLM, Petitioner and Respondent,


### -vsCORNEL HOWARD MALCOLM, Respondent and Appellant.

Appeal from: 

### District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable 

### Joel G. Roth, Judge presiding. Counsel of Record: For Appellant: Stephen E. Hagerman, 

### Great Falls, Montana For Respondent: Larsen & Neill, Great Falls, Montana t'

..

Submitted on Briefs: November 12, 1981 Decided : 

### EB 4 

### 1982 

# FEB4

# -1362 Filed:Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of the Court.

On July 2, 1980, Patricia Malcolm (mother) petitioned the Eighth ~udicial Districtfor dissolution of her marriage toCornel Malcolm (father). A temporary order was issuedby that court on September 4, 1980, granting, among other things, temporary custody of the couple's three children to theirmother. A decree dissolving the marriage was granted

on January 27, 1981. Following further investigation, an order was issued on February 

### 9, 1981, whereby themother was granted permanent custody of the children and the fatherwas ordered topay one hundred dollars per childper month as child support. The father appeals this custody order and claims that the DistrictCourt abused 

### its discretionby granting custody of the children totheirmother. He asserts thatpermanent custody of the children should not have been granted the mother for the following reasons: (1) She has livedwith another man while 

### stillmarried toher husband. (2) She has "abused and neglected" the children by locking them ina car with a loaded gun. (3) She has been in trouble with the police. (4) She has left the children unattended on several occasions. Therefore, asserts the father, it is not in the best interests of the children togrant permanent custody to theirmother. Herequests 

### we reverse the District Court's order and grant him custody of the children. This Court has long followed the rule thatunless there is a clear abuse of discretionby the 

### ~istrict Court, the~istrict Court's custody decision

### willnot be overturned on appeal. he trialjudge is in a better position todetermine child custody ashe has heard the testimony and observed the demeanor of the witnesses. Allen v. Allen (1978), 175Mont. 527, 575 P.2d 74; In 

### re Marriage of Tweeten (1977), 172 Mont. 404, 563 P.2d 1141; InretheMarriage of Isler (1977), 173Mont. 29, 566 P.2d 55. We find no clear abuse of discretionby the District Court in this instance. Therefore, we affirm the District Court's order. The mother testified that she and her children lived with another man before she obtained a dissolution of her marriage. She also testified that the children were locked inher car with a loaded gun incident toher attempt to regain custody of the children from their father. The gun
was initiallypointed by themother atthe father and another man, afterwhich 

### it was placed in the mother's purse and locked by her inthe car. The mother had also locked her children inthe car tokeep them from their father. Although the court condoned neither of these actions on the part of the mother, 

### it held that these instances did not necessarily prove that she was "totallyunfit and incapable of being awarded custody of the children." Weagree. Evidence was presented which established that the father had assaulted themother on several occasions. She

was afraid

### of him. This evidence, coupled with the unusually emotional circumstances surrounding the use of the gun, leads us tothe conclusion that therewas no clear abuse of discretion by the trialcourt regarding this determination. The contacts themother has had with the police 

### stem from the above described gun incident and a trespass. TheDistrict Court did not abuse its discretion by failing to deny custody of the children to their mother as a result of the police contact. Finally, evidence was presented attrial confirming that the one 

### timethe children were leftalone atnight, a neighbor periodically checked on them. Wedo not condone leaving young children alone atnight without a babysitter present inthe home. However, in light of the total evidence presented attrial, we do not find that the DistrictCourt abused its discretion on the basis of that single incident. The best interest of the child 

### is the primary factor to be considered when determining custody of the child. Section 40-4-212, MCA, states: "40-4-212. Best interest of child. The court shall determine custody inaccordance with the best interest of the child. The court shall consider allrelevant factors including: "(1) the wishes of the child's parent or parents as tohis custody; "(2) thewishes of the child as tohis custodian; 

### "(3) the interaction and interrelationship of the childwith his parent or parents, his siblings, and any other person who may significantly affect the child's best interest; 

### "(4) the child's adjustment tohis home, school, and community; and "(5) the mental and physical health of all individuals involved." Factor number one 

### is irrelevant inthis dispute as both parents wish tohave custody of their children. In addition, the trial court found both parents tobe ingood health and

none of the children tohave current relevant physical or mental health problems. Therefore, factor number fiveis also irrelevant to this dispute. Evidence received attrial supports the District Court'scustody determinationwhen 

### it 

### is applied to factors two, three and four. When interviewed by Family Court Services, both sixyear old Shawndel Malcolm and eight year old Ray Shawn Malcolm expressed the desire toreside with their mother. Although both children stated they loved their father and would like to see him often, they both expressed

a fear of him. Three year old Sheronda Malcolm 

### is too young toexpress a preference. Reports from school teachers indicated that the children

arewell adjusted totheir present school situations. Neighbors of the Malcolms testified that the Malcolm children

are

### wellbehaved and arevery suitable playmates for their

own children. The children seem tobe well adjusted to their current home, school and community. Other testimony of neighbors and friends of theMalcolms,

as

### well as Sheronda's day care teacher, attested to the fine interaction and interrelationshipbetween PatriciaMalcolm and her children. She was willing tochange jobs when the

new work hours ather former job interferedwith the 

### time she had to spend with her children. The children were reported tobe clean, neat and happy. Evidence was received indicating that themother participated with her children in

numerous activities such as skating, swimming and trips to the park. Evidence was alsoreceived concerning the relationship of Cornel Malcolm with his children. Although he apparently did not spend asmuch time interreacting with his children

asdid their mother, the 

### times together were enjoyable to allparties. Hewas found by the District Court tobe a fit and loving father. However, the finding that a parent 

### is both fitand capable does not necessarily mean 

### it would beinthe best interests of the child tobe put in that parent's custody. In reMarriage of 

### Isler, supra; In the Matter of -- 

### - theAdoption of Redcrow (1977), 172 Mont. 366, 563 P.2d 1121.Other factors supported by the evidence and considered by the District Court pursuant to section 40-4-212, MCA, support the court's determination that the best interests of the children would be served by granting permanent custody of them to their mother. They are: "1) The father failed topay support for the children as temporarily ordered by the court. "2) The father had to be ordered by the court todeliver the children's clothing, furniture and household cooking utensils tothe mother. "3) The father seldom visited the children following the separation of the husband and wife. "4) The father refused topermit the mother to have a military identification card so that she could shop atthe base commissary and base exchange for food and clothing for the children." Although these actswere apparently intended to irritate and inconvenience the mother, they also adversely affected the children. They were properly considered by the trial court and support the determination made. The DistrictCourt found that "thepreponderance of the evidence established that the petitioner is a good mother to the children, adequately cares for them, loves them, wants tobe the custodian of the children, and 

### is able toprovide for their needs and toprovide a home for them.'Ve find ample evidence to support this finding and therefore affirm the permanent custody order of t istrictCourt. F

### We Concur: