No. 84-357 IN THE SUPAPEI'4.E COURT OF THE STATE OF MONTANA 1985

IN E THE CUSTODY OF C.C., K.C., and B.C.

APPEAL FROM: DistrictCourtof theNineteenthJudicial District, In and for the Countyof Lincoln, TheHonorable RobertHolter, Judge presiding.

COUNSEL OF RECORD:

ForAppellant:

Susan Loehn, Eureka, Montana

ForRespondent: DavidW. Harman, Libby, Montana

Filed: Submittedon Briefs: Nov. 2, 1984 Decided: February 4, 1985

ClerkMr. Justice L. C. Gulbrandson delivered the Opinion 01 the Court.

This is an appeal from an order of the District Court of the Nineteenth JudicialDistrict,LincolnCounty, Montana, the Honorable Robert M. Holter, presiding. Petitioner appeals both the denial of a motion to continue and the award of custody of the threeminor children to respondent. Appellant (petitioner below) was not present at the non-jury trial held on June 7, 1984. The court denied her attorney's motion for a continuance because of her absence and subsequently qranted custody to respondent on June 19, 1984. On July 13, 1984, appellant filed a notice of appeal and later filed severalmotions. Themotion to stay judgment

was denied,the motion for relief from judgmentwas dismissed for lack of jurisdiction, and the motion to proceed without pre-payment of costs was qranted. We affirm in part and reverse inpart. D.W.C. (respondent)

## , currently twenty-seven years old, and N.M.V.A. (appellant), currently twenty years old, were married on February 14, 1980, in Eureka, Montana and made Eureka their h0m.e during marriage. C.C. was born on April 16, 1979. According to an affidavitby appellant and testimony by both respondent and his mother, respondent was not the natural fatherofC.C. However, respondent was listed as the father on the birth certificate at appellant's request and appellantand respondent were living together at the time of C.C.'s birth. C.C. was never adopted by respondent. K.C. and B.C., twins, were born during the marriage of the parties. The parties separated early in 1984 when appellant moved the three children with her to a new residence inEureka. The petition for dissolution of the marriage, filed March 8, 1984 by appellant, alleged all three children were issue of the marriage and asked that custody be awarded to appellant. The response and counter-petition also alleged all three children were issue of themarriage and asked that custody be awarded to respondent. The trial date of June 7, 1984was setby the court on April 26, 1984. Both parties were informed of that date. Appellant left Montana, taking the children with her, about two and one-half weeks before the trial and did not return to appear at the trial.. Affidavits by appellant filed in July of 1984, stated that the reason for her failure to appezrwas her lack of funds to travel and that she wanted to appear to present her case. At trial, A.M.C., one of the grandparents, testified regarding the living conditions of the children during the marriage. They lived in poverty and filth. They had sores when they were in diapers and were not changed an a regular basis. Theywore dirty clothes and slept indirtybeds. The grandparentspurchased a lotand constructed a home to afford the grandchildren adequate shelterand purchased substantially all their clothing. The grandparents also took the children into their home for visits and would bathe and feed them. Respondent is unemployed and a slow learner. He has graduated from high school and is seeking employment. In Eureka, the children would live in the house constructed by the grandparents and be cared for by respondent, the grandparents or a babv-sitter, and their situationwould be monitoredby the appropriate county agency.Appel-lant's residence was somewhere in the state of Washington at the time of the court's order with her exact location and plans for the childrenunlcnown. G.A.C. and A.M.C. petitioned for visitation rights as grandparents and were allowed to intervene 

### by stipulation of the parties. They were awarded visitation rights of one weekend per month and two weeks during the summer. The visitation rights of the grandparents are not an issue in this appeal. The twomain issues presented for appeal are:

(1) Was it prejudicial error by the District Court to deny appellant'smotion for a continuance? (2)Was the District Court's award of custody proper? As to the first issue, section 25-4-501, MCA provides that a motion to postpone a trial because of absence of evidence shallbe made only upon an affidavit showingmateriality of the expected evidence and that due diligence has been used to procure it. Here, appellant's counsel did not submit an affidavit to the District Court. In view of the mandatory language of the statute the District Court did not

err indenying themotion. Statev. Harvey (1979), 184Mont. 423, 603 P.2d 661 and Statev. Pascgo (1977), 173 Mont. 121, 566 P.2d 802. Section 25-4-503, MCA, states that the court may use its discretion in granting a postponement if on groundsother than absence of evidence and upon a showing of good cause and in the furtherance of justice. There is no indication of other grounds for a postponement and no indication there would have been good cause if there had been other grounds. Appellant was aware of the trial date and the purpose of the trial and indicatedno good reason forher voluntary a-bsence.We thereforehold that the trial courtdidnot err in denying appellant's motion fora continuance. The second issue beginswith a determinationofwhether or not respondent is aparent ofC.C. under section 40-6-1.05, MCA, for the purpose ofdetermining custody. Section 40-6-105(1)

## ,MCA states there is a presumption of paternity under a number of circumstances, one of which

occurs when the man and the mother are married after the child's birth and theman,with his consent, is named as the child's father on the birth certificat-e. That is exactly what occurred in the present case. However, section 40-6-105(2), MCA states that this is a rebuttable presumption. Bothparties have acknowledged under oath that respondent is not C.C.'s natural father. His name appeared on the birth certificatebecause thepartiesmistakenly assumed this would constitute an adoption. This is sufficiently clear and convincing evidence to rebut the presumption of paternity. Therefore respondentmay be granted custodyof C.C. only as a non-parent. A parent may not be deprived of custody unless there has been a finding of unfitness, abuse or neglect. Korol v. Korol (Mont. 1980), 613 P.2d 1016 at 1019, 37 St.Rep. 1215 at 1218, citing Matter of Doney (1977), 174Mont. 282, 570 ~.2d 575. Here the trial court's findings indicate appellant's unfitnessand inability to care forminor children. In Inre the Marriage of Concepcion (Mont. 1984), 687P.2d 718 at 720, 41 St.Rep. 1675, at 1677,we stated: "Under Rule 52(a)

## , M.R.Civ.P., findings of fa.ct shall not be set aside unless clearly erroneous. This Court's standard of review was stated in Jensen 

### - v. Jensen (Mont. 1981), 629 P.2d 765, 768, 38 St.Rep. 927, 930 and recently cited with approval in In re the Marriage of Beitz 

### --- 

## -(Mont. 1984), 683 P.2d 485, 41 St. Rep. 1247, 1249: "'This Court will not substitute its judgment for that of the trier of fact. We will consideronlywhether substantial credible evidence supports the findings and. conclusions. Findings will not be overturned unless there is a clear preponderance of evidence against them, recognizing that evidencemay be weak or conflicting, yet still support the findings.

## '" Appellant did not indicate, nor could we locate any finding of fact not supported by the record. Thus the findingswill not be overturned and respondent, even though he is a non-parent, may be considered as a potential custodian for C.C. Custody is determined in accordance with the best interests of the child. As stated in section 40-4-212,MCA: "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 interrelatianship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interest; 

### "(4) the child's adjustment to his hone, school,and community;and 

### "(5) the mental and physical health of all individuals involved." (Emphasis added.) "Priordecisionsof this Court have established that district courts must consider the wishes of the children regarding custody andma.kefindingsas to theirwishes orwhy they were not followed." (Emphasis added.) In re the ~arriageof Murphy (Mont. 1983), 666 P.2d 755 at 757, 40 St.Rep. 1188 at 1190, citing Milanovich v. Milanovich (Mont. 1982), 655 P.2d961, 39 Sl~.~ep. 1554; Kaasa 

### v. Kaasa (1979), 181 Mont. 18, 591 P.2d 1110;and In reMarriage ofKramer (1978),177Mont. 61, 580 P.2d 439. While the award of custody is obviously within the District Court's discretion,it has no discretion to not consider the criteria in the statute. Markegard v. Markegard (1980),616 P.2d 323, 37 St.Rep. 1539 and Tomaskie

v. Tomaskie (Mont. 1981), 625 P.2d 536, 38 St.Rep. 416. The District Court here did not make any findings regarding the wishes of the childrenand the effect of those wishes because there was no evidence on thispoint. We have recognized that the wishes of four-year olds (the approximate age of the twins, C.C. was five at the time of trial) may have little weight. Murphy, 666 P.2d at 757. Even though a new trial may not change the result, 

### we remand in order to include evidence regarding the children's wishes and for a custody determination in accordance with section 40-4-212,MCA. Affirmed inpart and reversed and remanded for proceedings consistent with this opinion.

1