No. 90-541 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

IN RE THE MARRIAGE OF NANCY J. MITCHELL (GRAVELY), Joint Petitioner and Appellant, and 

### APR 

### 161991 WIIJIJIIU'I S. GRAVELY, Joint Petitioner and Respondent. ATEOF MONTANA

APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable John M. McCarvel, Judge presiding.

COUNSEL OF RECORD: For Appellant: Michael S. Smartt, Esq., Great Falls, Montana For Respondent: Elizabeth A. Best, Esq., Great Falls, Montana

Filed: Submitted on Briefs: March 22, 1991 ~ecided: April 16, 1991

"IChief Justice J. A. Turnage delivered the Opinion of the Court. Nancy J. Mitchell appeals from an order modifying child custody in thisdissolution ofmarriage. The casewas tried in the District Court of the Eighth Judicial District, in and for the County of Cascade. We affirm. The issues are: 1. Did the District Court abuse its discretion or otherwise commit reversible error inmodifying the primary physical custody of the minor child K.L.G.? 2. Did the District Court abuse its discretion or otherwise commit reversible error in modifying the primary physical custody of the minor child J.P.E.M.? 3. Did the District Court err in awarding costs and attorney fees to Gravely? The marriage of Nancy J. Mitchell and William S. Gravely was dissolved in September of 1989. The decree of dissolution established joint custody of the minor children of the parties, K.L.G. and J.P.E.M., with primary physical custody in Mitchell. A February 1990 order based upon a stipulation of the parties clarified Gravely's visitation rights with the children. In June 1990, a hearing was held on Gravely's motion that he be granted primary physical custody of the children. Gravely testified that Mitchell refused to allow him visitation with the children, that she had been Itprettydrunk1'a number of times whenhe had spokenwith her on thephone, and thathehad heard Mitchell repeatedly use profane language toward K.L.G. He testified that K.L.G., then age four, told him she had seen Mitchell and her fiance Iton the couch [withoutclothes]making someweird movement. He testified that one evening Mitchell had asked him to come toher home and thatwhenhe arrived shewaspassed out on the living room floor. He also presented testimony by a Department of Family Services social workerwho had received abuse andneglectreferrals regarding Mitchell's care of the children from J.P.E.M.'s doctor, from the WIC federal nutrition program, and from J.P.E.M.'s daycare provider. Mitchell and her fiance testified in her behalf. Mitchell made a number of allegations against Gravely. She also testified that there is a "98percent1'likelihood thatJ.P. E.M.

## ,who was born in December 1989, is the son of her fiance. Based on the evidence at the hearing, the court ordered that Gravely immediately be given primary custody of K.L.G. ; that the Departmentof Family Services immediately initiatehome studies of both Gravely's and Mitchell's homes; that Gravely's child support obligation forK.L.G. immediatelycease;and thatMitchelllsfiance and Gravely participate inblood testing todetermine thepaternity of J.P.E.M. InJuly 1990, the court entered findingsand conclusionsbased

on the June hearing. The court found that Mitchell had willfullyand consistently attempted to frustrateor deny Gravely's exercise ofvisitation rights. Further, it found thatMitchell had engaged in inappropriate behavior with her fiance in front of the minor children, that she repeatedly and consistently had used abusive language with the children, that she had made repeated telephone calls toGravelyatwhich time shewas clearlyheavily intoxicated, and that she had been found lying on the living room floor unconscious at a time during which she was in full custody of the children. The court ordered that if it is established that J.P.E.M. is not Gravely's natural child, Gravely's child support obligation shall immediately cease, but that if it is established that J.P.E.M. is the natural child of Gravely, custody of J.P.E.M. shall immediatelybe placed in Gravely, with visitation rights to Mitchell. ItorderedMitchell topay Gravely's reasonable attorney fees and costs. On August 24, 1990,a second hearing was held. The report on the home studieshad been filedwith the court,but the blood test results had not yet been filed. The court entered an order amending its July findings and conclusionsby adding findings that Mitchell had made numerous unsubstantiated complaints of abuse and neglect of K.L.G. by Gravely. It ordered Mitchell to cease and desist from making such unsubstantiated claims.I Did the District Court abuse its discretion or otherwise commit reversible error in modifying the primary physical custody of the minor child K.L.G.? Mitchell argues that the evidence in support of Gravely's allegations and the District Court's findingswas neither substantial nor credible. She also asserts that the court failed to consider or otherwise adhere to statutory and regulatory requirements before changing the custody of K.L.G. There is no question that there was substantial conflict in the testimony presented in this case, on almost every point. Clearly,the courtbelieved the testimony presented by Gravely over that of 

### itche ell and her fiance. Resolution of conflicts in testimony is the function of a trier of fact. In re Marriage of Penning (1989), 238 Mont. 75, 78, 776 P.2d 1214, 1216. This appliesto thetestimony aboutMitchell's use of profane or abusive language,her drinking,her actions withher fiance in thepresence of the children, and all of her allegations against Gravely. Modification of physical custody within a joint custody situation isproper when the change is in the best interest of the child under § 40-4-224(2)

## , MCA. Marriage of Keil (Mont. 1990)

## , 805 P.2d 1334, 1336, 47 St.Rep. 2142, 2143. In matters of child custody, this Court will not substitute its judgment for that of the district court unless therehas been an abuse of discretionbythe district judge and there is a clear preponderance of evidence againstthe findings. Bier v. Sherrard (Mont. 1981), 623 P.2d 550, 551, 38 St.Rep. 158, 159. A district court need not make specific findings on each factor listed under the definition of "best interestw in 8 40-4-212,MCA, but must express the "essential and determiningfffacts upon which its conclusions rest. Cameron v. Cameron (1982), 197 Mont. 226, 230-31, 641 P.2d 1057, 1060. As Gravely points out, evidence as to each factor listed in 8 40-4-212, MCA, was presented to the District Court. The courtfs findings relate primarily to subsections (c) and (g) of 9 40-4- 212,MCA, concerning the interaction of Mitchell with the children and Mitchell's chemical abuse. Mitchell objectstoadmissionof the socialworker's testimony about the contents of tape-recorded phone conversations between Gravely and Mitchell. Thetape recordingswere given to the social worker by Gravely. The social worker testified that, based on listening to those tapes, it was her opinion that Mitchell had verbally abused K.L.G. An expert witness is entitled to testify about thebasis forher opinions. Rule 703,M.R.Evid. In addition to testifying about the tape recordings, the social worker testifiedthatMitchellwasuncooperative in arranginga home study and that she had received referrals for investigation of child abuse or neglect by Mitchell from three sources.Mitchell also objects totheDistrictCourt's refusal to admit evidence about a videotape she claims Gravely took of her during their marriage. Mitchell argues that the tape showed deviate sexual conduct not known to the court at the time of dissolution of the marriage, and is therefore relevant here. The court heard Mitchell's offer of proof but rejected the testimony. Mitchell did not offer the videotape as evidence. She did not report it at the time theparties'marriagewas dissolved. She stated that Gravely had possession of the tape. He denied that such a tape existed. We conclude that the court's refusal to consider Mitchell's testimony about the tape was justified on grounds that it was irrelevant, speculative, and remote. We hold that the District Court did not abuse its discretion

or otherwise commit reversible error in modifying the physical custody of K.L.G. I1 Did the District Court abuse its discretion or otherwise commit reversible error in modifying the primary physical custody of the minor child J.P.E.M.? Mitchell argues that there is an absence of evidence and of findings on the issue of the custody of J.P.E.M. But as Gravely points out,most of the court's findingsrelate to J.P.E.M. aswell

as toK.L.G. These findings include thatMitchell engaged in inappropriate behavior in front of the children,that shehas repeated-ly and consistently used abusive languagewith theminor children, that she has been clearly heavily intoxicated during repeated telephone calls to Gravely, and that she was found lying on the living room floor unconscious and incapable of being awakened during a time when she was in full custody of the children. All of these findings relate to behavior which would affect J.P.E.M.

as much as K.L.G. We conclude that there is sufficient evidence to support the modification of primary physical custody of J.P.E.M., should the blood tests indicate that he is Gravely's son.

Did theDistrict Court err in awarding costsand attorney fees to Gravely? Mitchell argues that Gravely's motion for an award of costs and attorney fees shouldhave been denied because the court failed to consider the parties' financial resources,pursuant to 5 40-4- 110, MCA. The court heard evidence on both Mitchell's and Gravely's employment and living arrangements at the June hearing. The court indicated that itwould hold a separate laterhearing on the amount of attorney fees. We hold that there was no error in the award of costs and attorney fees. Affinned.We concur: