NO. 96-096 INTHESUPREMECOURTOFTHESTATEOFMONTANA 1996

INRETHEMARRIAGEOF KEVIN W.JAMES,

APPEAL FROM: District Court of the Eleventh Judicial District,

In andfor the County of Flathead, The Honorable Judge presiding.

COUNSELOFRECORD:

For Appellant: H.JamesOleson, Oleson LawFirm, Kalispell, Montana For Respondent: George B. Best, Kalispell, Montana

Filed: Submitted onBriefs: July 18, 1996 Decided: October 8, 1996Justice 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 becited as precedent andshall bepublished byits filing asapublic document with the Clerk of the Supreme Court andby areport of its result to Montana LawWeek, State Reporter andWest Publishing Company. Kevin James appeals the order issued pursuant to adivorce decree by the Eleventh Judicial District Court, Flathead County, awarding Rhonda James primary residential custody of the James' son, Joel. Weaffirm. The sole issue for our review is whether the District Court erred in awarding Rhonda primary residential custody of Joel. FACTS Kevin James (Kevin) andRhonda James (Rhondal were married in Kalispell, Montana onJanuary 25, 1992. Kevin, 25years old, is employed as alogger in afamily owned business. Rhonda is 24 years old and attended but did not complete college. During the

course of the marriage Rhonda wasahomemaker andwasnot employed outside the home. At the time of the marriage Rhonda had ason, Bradley, from aprevious relationship. Kevin andRhonda conceived

achild, Joel, born June 9, 1993. OnAugust 16, 1994, Kevin filed apetition 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 andoccasional neglect of Joel, it would be in Joel's best interests if the court placed him in 2Kevin's custody. In her response to Kevin's petition, Rho&a

denied that Kevin should begranted residential custody of Joel. In October of 1994, the court ordered that Jolie Fish, Director of Family Court Services, conduct an investigation and prepare areport andrecommendation 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. Inher report, Ms. Fish initially stated Kevin's allegation of Rhonda's excessive drinking andRhonda'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, andthat Joel exhibited abond or attachment to each parent. Ms. Fish discovered during avisit to Kevin's homethat heandJoel

were affectionate toward one another, and that Kevin responded appropriately when it wasnecessary to discipline Joel. Ms. Fish noted that Kevin had lived'in the Kalispell area his whole life, worked in alocal family business, and had just bought ahouse where heintended to stay indefinitely.

3In contrast, when Ms. Fish visited Rhonda's apartment, she

found her in the midst of entertaining anumber of friends. Joel

was involved in playing with his toys and Rhonda, her attention distracted byher visitors, did not interact muchwith 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 bemadeto ensure Joel has significant contact with his brother, Bradley," for whom Joel had exhibited agreat fondness. Thematter camebefore the court for ahearing onMay3, 1995. Each side presented witness testimony, andMs. 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. STANDARDOFREVIEW 1n reviewing adistrict court's award of custody, wemust 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, andthe court's decision will be

4upheld unless aclear abuse ofdiscretion 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, anexpert whowashired by the court and was unbiased; second, the court based its custody award in part onits desire to support the continued interaction between Joel andBradley, whenin fact the court haddestroyed 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 adistrict court must follow the recommendations of acourt-appointed expert, heargues strenuously nonetheless that in this case the District Court erroneously ignored Ms.Fish's recommendations. Kevin points usto three cases inwhich weupheld adistrict court's award of custody in accordance with the recommendation of acourt-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), 232Mont. 492, 757P.2d 1312. Our holdings in these cases donot imply, as Kevin seems to argue, that adistrict court's custody award must be in accordance with a court-appointed expert's recommendations in order to withstand review bythis Court. The

5only 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 orunwillingness toadhere to acourt-appointed expert's recommendations is-merely incidental to its primary duties of considering the "best interests of the child" factors and awarding custody based onsubstantial, credible evidence. In other words, as long asacustody award is in the best interest of the child and is supported bysubstantial, credible evidence, wewill

as readily affirm an awarding judge who relied on an expert's report asanawarding judge whodid not rely onanexpert's report. This is especially soin light of the principle which supports our unwavering deference to adistrict court's custody determination: Theresponsibility of deciding custody is adelicate 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), 222Mont. 84, 89, 720 P.2d 683, 686 (citations omitted). TheDistrict 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)Thecourt shall determine custody in accordance with

the best interest ofthe child. Thecourt 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 asto acustodian; (c) the interaction and interrelationship of the child with the child's parent orparents andsiblings and with any other person whomay 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 oneparent against the other parent or the child; and (g)chemical dependency, asdefinedin 53-24-103, or chemical abuse onthe 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 bythe Court. The child, Joel, is too young to express his wishes asto his custodian, and each of the parents believes he/she should be designated the primary residential parent for Joel. There wasnoevidence that Joel wasnot adjusted to his homewith Rhonda, even though there wasaconcern about the number of moves Rhonda hadmade in the recent past. The Court also considers the interaction and interrelationship between Joel and his half-brother, Bradley, andfinds that it is in Joel's best interest to fashion acustodial arrangement that will facilitate the continuation of that relationship.

At Finding #7the 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:

79. Rhonda testified that she has been physically and

emotionally abused byKevin, which hedenied. 10. Janet Cahill, Director of the Violence Free Crisis Center in Kalispell, Montana, testified at the hearing concerning her contacts with Rhonda in July andAugust 1994. Shetestified 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. TheCourt, having hadthe opportunity to observe the demeanor of the witnesses andconsider all the testimony presented at the hearing, finds credible Rhonda's testimony onthe issue of physical abuse.

The court also adhered to the applicable rebuttable presumptions that custody should begranted tothe parent whohasprovided 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 hewas able to paywas 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 moreweight to oneparty's evidence than tothe 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 540-4-

212(1)(e),MCA, oneof 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 8court to consider "chemical dependency, asdefined in 53-24-103, or

chemical abuse onthe part of either parent." Kevin's contention is based onthe court's failure to make specific findings asto these "best interest" factors. In In rethe Marriage of Clingingsmith (1992), 254Mont. 399, 838P.2d 417, weexplained the extent of adistrict court's duty to makefindings 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 andmust beset forth explicitly in the findings. Thefindings should, at aminimum, set forth the 'essential and determining facts upon which the District Court rested its conclusion on the custody issue. ' Clinqinqsmith, 838P.2d at 421 (citations omitted). Asto Kevin's contention that the court did not address 540-4-212(l) (e), MCA,we conclude to the contrary. Thecourt, in its Findings, noted that both Kevin and Rhonda were in good health, andthat Ms. Fish was concerned about Rhonda's instability andimmaturity. Thecourt "at least considered" this factor. Wehave also stated that adistrict court need not make a finding concerning a"best interest" factor which is not at issue

or for which there is noevidentiary support in the record. In re the Marriage of Otto (1990), 245Mont. 271, 275, 800P.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 hedid not pursue this matter attrial. Rhonda

9andoneother witness were simply asked whether Rhonda ever drank

alcohol while she was married to Kevin. The answers are not as important asthe questions that were asked, which could only have elicited the fact that Rhonda mayhave drunk alcohol, not that she hadanalcohol abuse problem. While wehave 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 doso 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 onsubstantial credible evidence. That the court's findings conflict with some of the recommendations in Ms. Fish's report orwith some of the evidence Kevin presented at trial does not constitute error or abuse of discretion. Atrial 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 onher recommendations: 13. Extensive testimony was presented concerning the best interests of the minor child and the proper residential parent. Jolie Fish, Director ofFamily Court Services, testified pursuant to her report of January 1995. Shetestified that at the time of her report she hadnot received information concerning Kevin's physical abuse of Rhonda, andthat shehadsignificant concerns in that regard. Ms. Fish testified that Rhonda exhibited symptoms of an abused person, but she also expressed concerns about Rhonda's instability andlack ofmaturity. She acknowledged that removing Joel from Rhonda's care would be traumatic to him, but did not change her
10recommendation that Kevin be designated the primary

residential parent for Joel.

Wedisagree with Kevin's first argument. The court adequately considered the best interest factors andbased its conclusions on substantial, credible evidence. Thecourt's findings set forth the "essential and determining facts upon which [it] rested its conclusions onthe 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 onthe court's desire to foster the relationship between Joel and Bradley, arelationship already compromised by the court's ruling in aprior, companion

case. The essence of Kevin's second argument is that the court based its custody award o,na mistaken premise, that Joel and Bradley hadarelationship that, could bemaintained; Kevin does not argue that it wasimproper for the court to consider maintaining or fostering one of Joel's relationships. Kevin cites the District Court's Findings of Fact, Conclusions of LawandTemporary 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, beawarded primary residential custody and that Rhonda beawarded visitation rights. Kevin argues that since Rhonda no longer has physical custody of Bradley, awarding her custody of Joel would not andcould not foster anyrelationship between the twoyoung boys. Kevin argues that the court's order in

11Ogle v. James "destroyed" the relationship between Bradley and

Joel. Wedisagree. 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 sameargument before usnowin his Motion for a NewTrial filed with the District Court, andin its Order onMotion for aNewTrial and Rationale the court responded: With regard to paragraph (5)ofthe 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 andJoel's relationship wasnot destroyed, and is in fact maintained bythe grant to Rhonda of residential custody of Joel combined with her visitation rights to Bradley. Weconclude that it wasproper for the court to fashion the custody arrangement as it did, especially whenweconsider that Kevin does not have any visitation rights to Bradley. Wehold that the District Court did not abuse its discretion in awarding Rhonda primary residential custody of Joel. Affirmed.

12