NO. 96-096 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

IN RE THE MARRIAGE OF 

KEVIN W. JAMES, 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

H. James Oleson, Oleson Law Firm, Kalispell, Montana 

For Respondent: 

George B. Best, Kalispell, Montana 

Filed: 

Submitted on Briefs: July 18, 1996 

Decided: October 8, 1996 
Justice William E. Hunt, Sr. delivered the Opinion of the Court. 

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

1988 Internal Operating Rules, this 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 Montana Law Week, State Reporter and West Publishing Company. 

Kevin James appeals the order issued pursuant to a divorce 

decree by the Eleventh Judicial District Court, Flathead County, 

awarding Rhonda James primary residential custody of the James' 

son, Joel. We affirm. 

The sole issue for our review is whether the District Court 

erred in awarding Rhonda primary residential custody of Joel. 

FACTS 

Kevin James (Kevin) and Rhonda James (Rhondal were married in 

Kalispell, Montana on January 25, 1992. Kevin, 25 years old, is 

employed as a logger in a family owned business. Rhonda is 24 

years old and attended but did not complete college. During the 

course of the marriage Rhonda was a homemaker and was not employed 

outside the home. At the time of the marriage Rhonda had a son, 

Bradley, from a previous relationship. Kevin and Rhonda conceived 

a child, Joel, born June 9, 1993. 

On August 16, 1994, Kevin filed a petition for dissolution of 

marriage in the Eleventh Judicial District Court, Flathead County. 

On the same date Kevin filed an affidavit which alleged that 

because of Rhonda's drinking habits and occasional neglect of Joel, 

it would be in Joel's best interests if the court placed him in 

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Kevin's custody. In her response to Kevin's petition, Rho&a 

denied that Kevin should be granted residential custody of Joel. 

In October of 1994, the court ordered that Jolie Fish, 

Director of Family Court Services, conduct an investigation and 

prepare a report and recommendation regarding custody, support and 

visitation rights of Joel, Kevin, and Rhonda. Ms. Fish's report, 

filed January 27, 1995, recommended that Kevin and Rhonda be 

granted joint custody of Joel, but that Kevin be awarded 

residential custody of Joel. Ms. Fish's report was based on 

conferences and home visits with both Kevin and Rhonda, during 

which MS. Fish studied their parenting abilities and their 

respective interactions with Joel. 

In her report, Ms. Fish initially stated Kevin's allegation of 

Rhonda's excessive drinking and Rhonda's allegation that Kevin was 

abusive towards her. Ms. Fish admitted later in the report that 

she questioned Rhonda's credibility with respect to her abuse 

allegations, and was not entirely satisfied with Rhonda's 

explanation of her drinking habits. 

Ms. Fish believed that both Kevin and Rhonda loved Joel very 

much, and that Joel exhibited a bond or attachment to each parent. 

Ms. Fish discovered during a visit to Kevin's home that he and Joel 

were affectionate toward one another, and that Kevin responded 

appropriately when it was necessary to discipline Joel. Ms. Fish 

noted that Kevin had lived'in the Kalispell area his whole life, 

worked in a local family business, and had just bought a house 

where he intended to stay indefinitely. 

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In contrast, when Ms. Fish visited Rhonda's apartment, she 

found her in the midst of entertaining a number of friends. Joel 

was involved in playing with his toys and Rhonda, her attention 

distracted by her visitors, did not interact much with Joel. 

Ms. Fish concluded her report by stating that because of 

Rhonda's "immaturity," Ms. Fish did not believe that Rhonda 

"possesses the ability to ,foster an environment that will meet 

Joel's physical, social, educational, emotional, or psychological 

needs." Ms. Fish recommended that Kevin be given residential 

custody of Joel, and that "every effort should be made to ensure 

Joel has significant contact with his brother, Bradley," for whom 

Joel had exhibited a great fondness. 

The matter came before the court for a hearing on May 3, 1995. 

Each side presented witness testimony, and Ms. Fish testified in 

accordance with the report she filed with the court. The court 

issued its Findings of Fact, Conclusions of Law and Decree of 

Dissolution on October 18, 1995, which dissolved the marriage, 

distributed the marital property, and awarded Rhonda primary 

residential custody of Joel. Kevin appeals the District Court's 

award of custody. 

STANDARD OF REVIEW 

1n reviewing a district court's award of custody, we must 

determine whether the court's findings are clearly erroneous. In 

re the Marriage of Dreesbach (1994), 265 Mont. 216, 220-21, 875 

P.2d 1018, 1021. The findings of fact must be based on 

substantial, credible evidence, and the court's decision will be 

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upheld unless a clear abuse of discretion is shown. Dreesbach, 875 

P.2d at 1021. 

DISCUSSION 

Did the District court err in awarding Rhonda primary 

residential custody of Joel? 

Kevin argues on appeal that there are two reasons why the 

District Court's custody award was erroneous: first, the court 

ignored the recommendations of Ms. Fish, an expert who was hired by 

the court and was unbiased; second, the court based its custody 

award in part on its desire to support the continued interaction 

between Joel and Bradley, when in fact the court had destroyed the 

likelihood of such interaction as a result of its ruling in a 

prior, companion case. 

While Kevin admits in his briefs submitted to us that there 

are no cases in which we have held that a district court must 

follow the recommendations of a court-appointed expert, he argues 

strenuously nonetheless that in this case the District Court 

erroneously ignored Ms. Fish's recommendations. Kevin points us to 

three cases in which we upheld a district court's award of custody 

in accordance with the recommendation of a court-appointed expert: 

Dreesbach, 875 P.2d 1018; In re the Marriage of Cook (19911, 250 

Mont. 210, 819 P.2d 180; and In re the Marriage of Ereth (1988), 

232 Mont. 492, 757 P.2d 1312. Our holdings in these cases do not 

imply, as Kevin seems to argue, that a district court's custody 

award must be in accordance with a court-appointed expert's 

recommendations in order to withstand review by this Court. The 

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only direction we have given district courts regarding a court 

appointed expert's recommendations is that they merely consider the 

recommendations in making a custody determination. In re the 

Marriage of Moseman (1992), 253 Mont. 28, 30-31, 830 P.2d 1304, 

1306. 

For purposes of our review of custody cases, a district 

court's willingness or unwillingness to adhere to a court-appointed 

expert's recommendations is-merely incidental to its primary duties 

of considering the "best interests of the child" factors and 

awarding custody based on substantial, credible evidence. In other 

words, as long as a custody award is in the best interest of the 

child and is supported by substantial, credible evidence, we will 

as readily affirm an awarding judge who relied on an expert's 

report as an awarding judge who did not rely on an expert's report. 

This is especially so in light of the principle which supports our 

unwavering deference to a district court's custody determination: 

The responsibility of deciding custody is a delicate one 

which is lodged with the district court. The judge 

hearing oral testimony in such a controversy has a 

superior advantage in determining the same, and his 

decision ought not to be disturbed except on a clear 

showing of abuse of discretion. 

In re the Marriage of Nalivka (1986), 222 Mont. 84, 89, 720 P.2d 

683, 686 (citations omitted). 

The District Court in this case properly considered the "best 

interest" factors before awarding custody. The "best interest" 

factors of course refer to § 40-4-212, MCA, which provides in 

pertinent part: 
(1) The court shall determine custody in accordance with 

the best interest of the child. The court shall consider 

all relevant factors, including but not limited to: 

(a) the wishes of the child's parent or parents as 

to custody; 

(b) the wishes of the child as to a custodian; 

(c) the interaction and interrelationship of the 

child with the child's parent or parents and siblings and 

with any other person who may significantly affect the 

child's best interest; 

(d) the child's adjustment to home, school, and 

community; 

(e) the mental and physical health of all 

individuals involved; 

(f) physical abuse or threat of physical abuse by 

one parent against the other parent or the child; and 

(g) chemical dependency, as definedin 53-24-103, or 

chemical abuse on the part of either parent. 

Section 40-4-212(l), MCA. The District Court made findings 

concerning Joel's best interests before awarding Rhonda custody. 

In its Findings of Fact, Conclusions of Law and Decree of 

Dissolution, the court states at Finding #15: 

15. The provisions set forth in Section 40-4-212, 

M.C.A., were considered by the Court. The child, Joel, 

is too young to express his wishes as to his custodian, 

and each of the parents believes he/she should be 

designated the primary residential parent for Joel. 

There was no evidence that Joel was not adjusted to his 

home with Rhonda, even though there was a concern about 

the number of moves Rhonda had made in the recent past. 

The Court also considers the interaction and 

interrelationship between Joel and his half-brother, 

Bradley, and finds that it is in Joel's best interest to 

fashion a custodial arrangement that will facilitate the 

continuation of that relationship. 

At Finding #7 the court states: 

7. Joel has continuously resided with Respondent 

[Rhondal since the parties' separation in August 1994. 

Joel is closely bonded with his mother. 

At Findings 9, 10, and 11, the court states: 

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9. Rhonda testified that she has been physically and 

emotionally abused by Kevin, which he denied. 

10. Janet Cahill, Director of the Violence Free Crisis 

Center in Kalispell, Montana, testified at the hearing 

concerning her contacts with Rhonda in July and August 

1994. She testified that she interviewed Rhonda, who 

exhibited many of the signs of a physically abused 

person. At the time of the hearing, Rhonda had been 

counseling with Mary Jane Fox through the Violence Free 

Crisis Center. 

11. The Court, having had the opportunity to observe the 

demeanor of the witnesses and consider all the testimony 

presented at the hearing, finds credible Rhonda's 

testimony on the issue of physical abuse. 

The court also adhered to the applicable rebuttable presumptions 

that 

custody should be granted to the parent who has provided 

most of the primary care during the child's life, which 

the evidence shows is Rhonda, and the presumption that 

the failure of Kevin to pay child support that he was 

able to pay was contrary to Joel's best interest. 

See § 40-4-212(3)-(4), MCA. Kevin argues that he, not Rhonda, 

provided most of Joel's primary care. A review of the record 

reveals conflicting testimony on this point, and a court may 

properly give more weight to one party's evidence than to the other 

party's evidence. In re the Marriage of Rolfe (1985), 216 Mont. 

39, 699 P.2d 79. It was not error for the court to find that 

Rhonda provided Joel's primary care, and to apply the above 

presumption to that finding. 

Kevin also contends that the court failed to address 5 40-4- 

212 (1) (e) , MCA, one of the "best interest" factors which requires 

a court to consider "the mental and physical health of all 

individuals involved," and § 40-4-212(l) (g), MCA, which requires a 

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court to consider "chemical dependency, as defined in 53-24-103, or 

chemical abuse on the part of either parent." Kevin's contention 

is based on the court's failure to make specific findings as to 

these "best interest" factors. 

In In re the Marriage of Clingingsmith (1992), 254 Mont. 399, 

838 P.2d 417, we explained the extent of a district court's duty to 

make findings concerning the "best interest" factors: 

While it is encouraged, the trial court need not make 

specific findings on each of the factors. However, 

failure to at least consider all of the statutorily 

mandated factors is error. The custody determination 

must be based on substantial evidence relating to the 

statutory factors and must be set forth explicitly in the 

findings. The findings should, at a minimum, set forth 

the 'essential and determining facts upon which the 

District Court rested its conclusion on the custody 

issue. ' 

Clinqinqsmith, 838 P.2d at 421 (citations omitted). As to Kevin's 

contention that the court did not address 5 40-4-212(l) (e), MCA, we 

conclude to the contrary. The court, in its Findings, noted that 

both Kevin and Rhonda were in good health, and that Ms. Fish was 

concerned about Rhonda's instability and immaturity. The court "at 

least considered" this factor. 

We have also stated that a district court need not make a 

finding concerning a "best interest" factor which is not at issue 

or for which there is no evidentiary support in the record. In re 

the Marriage of Otto (1990), 245 Mont. 271, 275, 800 P.2d 706, 709. 

While Kevin alleged in his affidavit submitted with his petition 

for dissolution that Rhonda has an alcohol abuse problem, the 

record reveals that he did not pursue this matter at trial. Rhonda 

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and one other witness were simply asked whether Rhonda ever drank 

alcohol while she was married to Kevin. The answers are not as 

important as the questions that were asked, which could only have 

elicited the fact that Rhonda may have drunk alcohol, not that she 

had an alcohol abuse problem. While we have stated our preference 

for district courts to make findings concerning all the "best 

interest" factors, it is understandable that the court here did not 

address § 40-4-212(l) (g), MCA, for there is nothing in the record 

of the proceedings which would prompt it to do so 

From our review of the record it is clear that the court 

carefully and conscientiously considered Joel's best interests 

before awarding custody. It is equally clear to us that the 

court's findings in this regard were based on substantial credible 

evidence. That the court's findings conflict with some of the 

recommendations in Ms. Fish's report or with some of the evidence 

Kevin presented at trial does not constitute error or abuse of 

discretion. A trial court is given wide latitude in these matters, 

and is not bound by any testimony, expert or otherwise. The 

District Court considered Ms. Fish's report and her testimony at 

trial, and ultimately decided not to rely on her recommendations: 

13. Extensive testimony was presented concerning the 

best interests of the minor child and the proper 

residential parent. Jolie Fish, Director of Family Court 

Services, testified pursuant to her report of January 

1995. She testified that at the time of her report she 

had not received information concerning Kevin's physical 

abuse of Rhonda, and that she had significant concerns in 

that regard. Ms. Fish testified that Rhonda exhibited 

symptoms of an abused person, but she also expressed 

concerns about Rhonda's instability and lack of maturity. 

She acknowledged that removing Joel from Rhonda's care 

would be traumatic to him, but did not change her 

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recommendation that Kevin be designated the primary 

residential parent for Joel. 

We disagree with Kevin's first argument. The court adequately 

considered the best interest factors and based its conclusions on 

substantial, credible evidence. The court's findings set forth the 

"essential and determining facts upon which [it] rested its 

conclusions on the custody issue." The court did not abuse its 

discretion. 

As to Kevin's second argument, he contends that the court 

erred in partly basing its custody award on the court's desire to 

foster the relationship between Joel and Bradley, a relationship 

already compromised by the court's ruling in a prior, companion 

case. The essence of Kevin's second argument is that the court 

based its custody award o,n a mistaken premise, that Joel and 

Bradley had a relationship that, could be maintained; Kevin does not 

argue that it was improper for the court to consider maintaining or 

fostering one of Joel's relationships. 

Kevin cites the District Court's Findings of Fact, Conclusions 

of Law and Temporary Order issued September 8, 1995 in the case of 

Ogle v. James, Cause No. DR-93-046(B) (Eleventh Judicial District 

Court, Flathead County), where the court ordered that Justin Ogle, 

Bradley's natural father, be awarded primary residential custody 

and that Rhonda be awarded visitation rights. Kevin argues that 

since Rhonda no longer has physical custody of Bradley, awarding 

her custody of Joel would not and could not foster any relationship 

between the two young boys. Kevin argues that the court's order in 

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Ogle v. James "destroyed" the relationship between Bradley and 

Joel. We disagree. 

The record reveals that the court, in awarding Rhonda custody 

of Joel, in part to foster Joel's relationship with Bradley, was 

well aware of the contents of its order in the Ogle v. James case. 

Kevin raised this same argument before us now in his Motion for a 

New Trial filed with the District Court, and in its Order on Motion 

for a New Trial and Rationale the court responded: 

With regard to paragraph (5) of the Motion, the Court was 

aware that Bradley no longer primarily resides with 

[Rhondal, but intended that Bradley and Joel could 

maintain their relationship during periods that Bradley 

was in [Rhonda’sl care. 

Bradley and Joel's relationship was not destroyed, and is in fact 

maintained by the grant to Rhonda of residential custody of Joel 

combined with her visitation rights to Bradley. We conclude that 

it was proper for the court to fashion the custody arrangement as 

it did, especially when we consider that Kevin does not have any 

visitation rights to Bradley. 

We hold that the District Court did not abuse its discretion 

in awarding Rhonda primary residential custody of Joel. 

Affirmed. 

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