No. 89-443 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

MONTE DEAN LORENZ, 

Petitioner and Appellant, 

-vsMELANIE JANE LORENZ, n/k/a MELANIE JANE 

WANGERIN, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Seventh Judicial District, 

In and for the County of Richland, 

The Honorable H. R. Obert, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant (s) : 

Phillip N. Carter; Koch & Carter, Sidney, Montana 

For Respondent (s) : 

Peter 0. Maltese, Sidney, Montana 

Submitted on Briefs: Jan. 25, 1990 

Filed: 

. n /. 

Decided: March 9, 1990 

Clerk 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

The parties' marriage was dissolved in the District Court for 

the Seventh Judicial District, Richland County, in May 1988. The 

parties were granted joint custody of their two minor children. 

Monte Dean Lorenz now appeals the court's June 1989 order that the 

children's primary residence be with their mother, Melanie Jane 

Lorenz, who has moved to Canada. We affirm. 

The issues are: 

1. Are the District Court's findings, conclusions, and order 

supported by the evidence? 

2. Are the court's findings, conclusions, and order sufficiently comprehensive and pertinent to the issues to provide a 

basis for the court's decision? 

3. Does the court's adoption of the mother's proposed 

findings, conclusions, and order constitute reversible error? 

The marriage of Monte Dean Lorenz (father) and Melanie Jane 

Lorenz (mother) was dissolved in May 1988. They had two children, 

a girl and a boy, then ages eight and five. Pursuant to the 

parties' custody, support, and property settlement agreement, which 

was merged in the decree of dissolution, the parties shared joint 

custody of their two children. The agreement provided that the 

children's primary residence would be with the mother. 

In July of 1988, the mother discovered she was pregnant. The 

father, Timothy Wangerin, was a seminary student who had served as 
a vicar at the parties1 church. In what she described as "great 

emotional turmoil,11 the mother signed a stipulation that physical 

custody of the children would be given to the father. Two weeks 

later, the mother married the vicar and filed her rescission of the 

stipulation. 

In August, the father filed a motion to modify the physical 

custody of the children so that he could keep them. The mother and 

her new husband were moving to Edmonton, Alberta, Canada, where he 

would continue his education. After a hearing lasting several 

days, the District Court granted temporary physical custody to the 

father for the 1988-1989 school year. 

A hearing on a permanent residency arrangement for the 

children was held in June 1989. By this time, the mother, her new 

husband, and their baby were living in Medicine Hat, Alberta, 

Canada. The father still lived in the same house in Sidney, 

Montana. After the hearing, the court concluded that it would be 

in the children's best interests if they resided with their mother 

during the school year and with their father during the summer. 

From that order the father appeals. 

I 

Are the court's findings, conclusions, and order supported by 

the evidence? 
The father challenges the following finding made by the 

District Court: 

IV . The parties executed an Agreement to Modify 

Custody, Support and Property Settlement 

Agreement and Decree of Dissolution of Marriage on July 12, 1988. Thereafter, the 

Respondent filed her Recission [sic] of Agreement to Modify Custody, Support and Property 

Settlement Agreement and Decree of Dissolution 

of Marriage on the basis that the Petitioner 

induced the Respondent to sign the Agreement 

with several promises, many of which were not 

kept; that prior to the time of signing the 

instrument, the Petitioner exerted great 

pressure on the Respondent to sign the Agreement, at a time when the Respondent was suffering great emotional turmoil. 

The father argues that the record does not support the reasons 

stated in Finding IV for the mother signing the stipulation. He 

also maintains that there was no evidence that he caused any 

emotional turmoil the mother may have been suffering at that time. 

The mother testified that, 

There were promises made to me when I signed 

it. There were threats made to me when I 

signed it and other general statements. 

Q. You say that there were threats made to 

you. 

A. Yes. 

Q. And what were those threats? 

A. One of them was a big, ugly legal battle 

if I didn't sign it, which has come true. He 

told me -- Monte told me to tell Tim that if 

he came to town he would kill him. He told me 

that he would do everything in his power to 
prevent his children from living with me and 

Tim, that he would do whatever he had to to 

prevent that. 

The above testimony supports Finding IV. We conclude that the 

finding was not error. 

The father next challenges Finding VI, which stated that the 

mother had been the primary caretaker of the children. The mother 

testified that she worked as a beautician three to four days per 

week during the last two years of the marriage, but that prior to 

that time she had been at home. She testified that the first year 

she worked outside the home, she had a babysitter for the children. 

The second year, the father cared for the boy after he got out of 

kindergarten at 11:30 and until the mother was done working, 

according to her testimony. The mother testified that it was 

always her job to get the kids ready to go to school. She stated 

that the father did not have much to do with the children's 

upbringing. We conclude that this was substantial evidence to 

support Finding VI. 

Finding VII is the last one to which the father objects. It 

stated that each party acknowledged that the other is a fit and 

proper person to be a custodial parent. At the June 1989 hearing, 

the father described the mother as "a good mother.I1 He testified 

that he had never considered her an unfit mother and that she had 

a good relationship with the children. Moreover, he did not seek 
to terminate joint custody of the children. We conclude that 

substantial evidence supports Finding VII. 

The father also lists nineteen findings (in his favor) which 

he submits that the court should have made but did not. These 

related to the children's adjustment to their home, school, 

community, extended family, and church in Sidney, Montana. This 

Court has held that a district court "is not obligated to outline 

all of the testimony presented at trial in its findings of fact." 

McConnell-Cherewick v. Cherewick (1983), 205 Mont. 75, 83-84, 666 

P.2d 742, 746. We will discuss, under Issue 11, whether the 

District Court made sufficient findings to support its conclusions 

and decision. 

I1 

Are the District Court's findings, conclusions, and order 

sufficiently comprehensive and pertinent to the issues to provide 

a basis for the court's decision? 

Section 40-4-224 (2) , MCA, states that in joint custody, 

allotment of time for physical custody and residence of the 

children must be as equal as possible between the parents, but each 

case is to be determined according to its own practicalities, with 

the best interest of the child as the primary consideration. The 

father contends that the provisions of 5 40-4-212, MCA, regarding 

the best interest of the child should all have been addressed in 

the findings in this case. 
Section 40-4-212, MCA, lists the following as factors to be 

considered in determining the best interest of the child: 1) the 

wishes of the child's parents as to the child's custody; 2) the 

child's wishes as to his custody; 3) the interaction of the child 

with his parents, siblings, and any other persons who may significantly affect the child's best interest; 4) the child's 

adjustment to his home, school, and community; 5) the mental and 

physical health of all individuals involved; 6) physical abuse, 

if it is present or threatened; 7) chemical dependency of either 

parent. This Court has further suggested three related criteria 

to be considered: the parents1 ability to cooperate in their 

parental roles; the child's relationship with both parents; and the 

geographic proximity of the parents1 residences. In re Custody and 

Support of B.T.S. (1986), 219 Mont. 391, 395-96, 712 P.2d 1298, 

1301. 

We now discuss the findings in this case as they relate to the 

statutory best interest factors. By definition, in joint custody 

each parent is a fit custodian of the child. The nature of this 

proceeding makes it clear that both parents desire joint custody 

and that each wants to be the primary residential parent. 

The court stated during the hearing that, in its opinion, the 

children were too young to express their wishes as to residence. 

It did not interview them as to their preferences. This Court has 

stated that the age of the child goes to the weight to be given the 
child's wishes as to custody. In re Custody of C.C. (1985), 215 

Mont. 72, 76-77, 695 P.2d 816, 819. 

The court made findings on the interaction of the children 

with all of the persons they would live with in either household, 

including their half-sister and the mother's new husband. It found 

that the mother's new husband interacts well with the children and 

is interested in their welfare. 

This Court has recognized that a custodial parent is presumptively entitled to change her own and the child's residence. In 

re Marriage of Paradis (1984), 213 Mont. 177, 181, 689 P.2d 1263, 

1265. In that context, the children's adjustment to their home, 

school, and community must be weighed carefully. By definition, 

in joint custody the children will live in both parents' households 

with time divided as equally as possible. The court made no 

findings on the issue of the children's adjustment to their home, 

school, and community. 

The only person on whom there was any adverse evidence as to 

physical or mental health was the mother's new husband, Tim 

Wangerin. But the mother presented rebuttal evidence on that 

issue. The court made no finding. 

There was no evidence of physical abuse or chemical dependency 

on the part of any of the parties, and there were no findings on 

these factors. Neither did the court make any findings on the 

parents' ability to cooperate in their parental roles or on the 
children's relationship with both parents. The geographic 

proximity of the parents1 residences was addressed in the nine 

month-three month plan of residential custody. 

In this case, the District Court was faced with two suitable 

custodial parents who desire joint custody and who live at such a 

distance apart that one will necessarily see less than the other 

of their school-age children. Prior to the mother's move out of 

town, the parties had agreed that she would provide the children's 

primary residence. The court found that the mother does not intend 

to work outside the home, while the father is a farmer and has a 

part-time job as a salesman. This Court has stated that a district 

court need not make specific findings on each statutory factor in 

determining best interests of children under 5 40-4-212, MCA, but 

need only express the "essential and determining1' facts upon which 

it rests its conclusions. Cameron v. Cameron (1982) , 197 Mont. 

226, 230-31, 641 P.2d 1057, 1060. While the District Court's 

findings are not a model of completeness, we hold that they are 

sufficient to provide a basis for the court's decision. 

I11 

Does the court's adoption of the mother's proposed findings, 

conclusions, and order constitute reversible error? 

The father cites this Court's opinion in Tomaskie v. Tomaskie 

(1981), 191 Mont. 508, 625 P.2d 536, in which the Court disapproved the practice of adopting proposed findings and conclusions 
submitted by a party. Since the Tomaskie opinion, this Court has 

restated its position on district courts' use of proposed findings 

and conclusions: 

When the findings and conclusions are not 

clearly erroneous and are supported by the 

record, the judge has not abused his discretion by ratifying the proposals of one party. 

R.L.S. v. Barkhoff (1983), 207 Mont. 199, 206, 674 P.2d 1082, 1086. 

We hold that the Barkhoff standard has been met. 

Affirmed. 

We concur: