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 16 1991 

WIIJIJIIU'I S. GRAVELY, 

Joint Petitioner and Respondent. ATE OF 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 

"I 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

Nancy J. Mitchell appeals from an order modifying child 

custody in this dissolution of marriage. The case was 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 in modifying 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 Itpretty drunk1' a number of times when 
he had spoken with her on the phone, and that he had 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 [without clothes] making some weird movement. 

He testified that one evening Mitchell had asked him to come to her 

home and that when he arrived she was passed out on the living room 

floor. He also presented testimony by a Department of Family 

Services social worker who had received abuse and neglect referrals 

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 "98 percent1' likelihood that J. 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 

Department of Family Services immediately initiate home studies of 

both Gravely's and Mitchell's homes; that Gravely's child support 

obligation for K.L.G. immediately cease; and thatMitchellls fiance 

and Gravely participate in blood testing to determine the paternity 

of J.P.E.M. 

In July 1990, the court entered findings and conclusions based 

on the June hearing. The court found that Mitchell had willfully 
and consistently attempted to frustrate or deny Gravely's exercise 

of visitation rights. Further, it found that Mitchell 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 to Gravely at which time she was clearly heavily 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 immediately be placed in Gravely, with visitation rights to 

Mitchell. It ordered Mitchell to pay Gravely's reasonable attorney 

fees and costs. 

On August 24, 1990, a second hearing was held. The report on 

the home studies had been filed with the court, but the blood test 

results had not yet been filed. The court entered an order 

amending its July findings and conclusions by 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 findings was 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 court believed 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 

applies to the testimony about Mitchell's use of profane or abusive 

language, her drinking, her actions with her fiance in the presence 

of the children, and all of her allegations against Gravely. 

Modification of physical custody within a joint custody 

situation is proper 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 there has been an abuse of discretion by 
the district judge and there is a clear preponderance of evidence 

against the 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 

determiningff facts 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 objects to admission of the social worker's testimony 

about the contents of tape-recorded phone conversations between 

Gravely and Mitchell. The tape recordings were 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 the basis for her opinions. Rule 703, M.R.Evid. In addition 

to testifying about the tape recordings, the social worker 

testifiedthat Mitchellwas uncooperative in arranging a home study 

and that she had received referrals for investigation of child 

abuse or neglect by Mitchell from three sources. 
Mitchell also objects to the District Court'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 the parties' marriage was 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 findings relate to J. P.E.M. as well 

as to K. L.G. These findings include that Mitchell engaged in inappropriate behavior in front of the children, that she has repeated- 
ly and consistently used abusive language with the minor 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 the District Court err in awarding costs and attorney fees 

to Gravely? 

Mitchell argues that Gravely's motion for an award of costs 

and attorney fees should have 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 it would hold a separate later hearing on 

the amount of attorney fees. We hold that there was no error in 

the award of costs and attorney fees. 

Af f inned. 
We concur: