NO. 95-142 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

IN RE THE CUSTODY OF: 

JESSICA EVANS, a minor child. 

DAVE EVANS, 

Respondent and Respondent. 

APPEAL FROM: District court of the Twenty-first Judicial 

District, In and for the County of Ravalli, 

The Honorable Jeffrey Langton, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Dave D. Evans, pro se, Miles City, Montana 

For Respondent: 

Philip J. O'Connell, Missoula, Montana 

Filed: 

Submitted on Briefs: January 11, 1996 

Decided: February 6, 1996 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1995 Internal Operating Rules, the following decision shall not be 

cited as precedent and shall be published by its filing as a public 

document with the Clerk of the Supreme Court and by a report of its 

result to State Reporter Publishing Company and West Publishing 

Company. 

Dave Evans appeals a child custody decision of the Twentyfirst Judicial District Court, Ravalli County. We affirm. 

Evans claims the District Court erred by failing to adopt the 

recommendations in the custody evaluation by David Stube; by 

ignoring the evidence of child abuse, substance abuse, and 

violation of previous visitation orders; and by relying upon Cindy 

Miller's custody recommendation. 

Jessica Evans was born on February 11, 1993. Her parents, 

Dave Evans and Kim Chavez, neither married nor lived together. 

Since her birth, Jessica has lived with her mother. Evans has 

visited Jessica for several days at a time. 

In this action, Evans sought to have physical custody of 

Jessica placed with himself and his wife, Linda. He claimed that 

Chavez has physically abused Jessica. 

The court ordered a home study and custody evaluation, and the 

parties stipulated that licensed clinical counselor David Stube 

would do the evaluation. Stube recommended in writing that Chavez 

be granted physical custody initially, with an eventual alternating 

custody arrangement. He recommended that both parents complete 

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parenting training with Cindy Miller, a clinical psychologist, and 

that Miller then monitor their progress. That recommendation was 

followed. 

Cindy Miller testified that she had met with both Chavez and 

Evans and had observed an exchange of custody. She reported that 

Jessica is well bonded to Chavez and less well bonded to Evans. 

In its findings, the court set forth the results of the 

custody evaluation and the recommendations of David Stube. It then 

stated that it found Miller's testimony "the most insightful and 

credible testimony presented." The court found that Chavez had 

demonstrated a willingness to abide by the visitation schedule, and 

that Evans had not fully utilized his visitation time. It found 

that Evans' allegations of abuse had been investigated by local law 

enforcement and the Department of Family Services but that there 

was no record that either agency found any substance to the allegations. The court found that Evans had failed to substantiate his 

allegations that Chavez physically abused Jessica. It took notice 

of both parents' recent criminal convictions for trafficking in 

dangerous drugs. The court found that Jessica's best interests 

would be served if she was placed in the joint care, custody and 

control of her parents, with Chavez as her primary custodian. 

Our standard of review is whether the findings of fact are 

clearly erroneous. In re Marriage of Dreesbach (1994), 265 Mont. 

216, 220-21, 875 P.2d 1018, 1021. The findings must be based upon 

substantial credible evidence in the record, and the court's 

decision will be upheld unless a clear abuse of discretion is 

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shown. In re Marriage of Zuelke (Mont. 1995), _ P.2d _I _I 

52 St.Rep. 1225, 1226. Where there is conflicting evidence, this 

Court will not reweigh the evidence; the finder of fact (in this 

case, the District Court) is in the best position to resolve 

conflicting factual testimony. In re Marriage of Boyer (Mont. 

1995), ____ P.2d _I _, 52 St.Rep. 1233, 1235. 

After reviewing the record, we conclude that the court did not 

err in relying heavily on Miller's opinion and in failing to adopt 

in their entirety the custody recommendations in Stube's written 

report. Further, the claims that the court ignored the evidence of 

physical and substance abuse and problems with visitation are 

refuted by the findings addressed to those issues. Those findings 

are supported by substantial credible evidence in the record. 

Evans has not shown the findings to be clearly erroneous. We 

affirm the decision of the District Court. 

We concur: 

y Chief Justice 

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