No. 92-565 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

IN RE THE MARRIAGE OF 

D.F.D., 

Petitioner and Respondent, 

and 

D.G.D., 

Respondent and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas M. McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Antonia P. Marra, Bell & Marra, Great Falls, Montana 

For Respondent: 

Don A. LaBar, Church, Harris, Johnson & Williams, 

Great Falls, Montana 

Guardian Ad Litem: 

Darcy Crum, James, Gray & McCafferty, 

Great Falls, Montana 

D Submitted on Briefs: August 10, 1993 

Decided: October 21, 1993 

"Pf 1 n 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

The petitioner and wife, D.F.D., petitioned the District Court 

of the Eighth Judicial District in Cascade County for dissolution 

of her marriage to her husband, D.G.C., on May 23, 1931. On 

August 14, 1332, following numerous hearings and a trial on all 

issues, the District Court entered its decree dissolving the 

couple's marriage, awarding sole custody of their only child to the 

wife, restricting husband's visitation rights, and ordering that 

husband pay child support and maintenance. Husband appeals from 

che juagmenc of the District Court. We reverse and remand for 

further proceedings. 

The issues are: 

1. Did the District Court err when it awarded sole custody 

of the couple's son to the wife and restricted husband to 

supervised visitation? 

2. Did the District Court err when it ordered the husband to 

pay maintenance to the wife in the amount of $150 per month for two 

years? 

3. Did the District Court err in its calculation of child 

support and in its award of day care expenses? 

FACTUAL BACKGROUND 

D.F.D (wife) and D.G.D. (husband) were married on June 18, 

1988, and separated on May 23, 1991. They had one son, J.E.D., 

born during their marriage on April 30, 1930. 

In her petition, the wife requested dissolution of the 

couple's marriage, division of their property, sole custody of 
their minor son, reasonable support, maintenance, and attorney 

fees. In his responsive pleading, the husband joined in her 

request for dissolution of their marriage, but asked that the court 

award joint custody of their son, and that he receive primary 

physical custody. He also objected to the wife's request for 

maintenance. 

After the couple's separation, the husband filed a motion with 

the District Court on June 21, 1991, for temporary custody of the 

couple's child. He alleged that his wife had moved with their son 

to Lincoln, Montana, and would not allow reasonable visitation. 

The wife responded with her own motion for temporary custody. 

Although she offered no affidavit or other evidence in support of 

her motion, her attorney alleged in his written argument that the 

husband had, in the past, cross-dressed or worn women's 

undergarments. The wife's attorney alleged that this conduct was 

a form of sexual deviation which would be harmful to the couple's 

son if he was exposed to it. 

On August 1, 1991, the District Court held a hearing to 

resolve the conflicting claims to temporary custody of the couple's 

son. As a result of that hearing, the District Court issued an 

order on October 30, 1991, granting the wife's motion and denying 

the husband's motion, The court also ordered psychological 

evaluations of both parents and granted visitation rights to the 

husband, but limited them to Saturdays and Sundays, and then only 

during the daytime. By then, the wife had moved to Missoula and 

the husband was living in Great Falls. The District Court ordered 
that the husband could bring his son to Great Falls for visitation, 

so long as he was back in Missoula by that evening. Overnight 

visitation was denied. 

Pursuant to suggestions of the court, further evaluations of 

the husband were performed, additional consultations regarding the 

possible detriment to the couple's son from the father's former 

behavior were obtained, and an additional pretrial hearing 

reqardinq custody and visitation was held. However, the 

court-ordered arrangements for custody and visitation were 

maintained until the court's final decree was entered. 

This case was tried before the District Court on April 22, 

1992, and May 13, 1992. On August 14, 1992, the District Court 

entered the findings of fact, conclusions of law, and decree from 

which the husband now appeals. 

In findings which are not disputed on appeal, the District 

court found that at the time of trial the wife was 31 years old, 

and had a high school education with additional training from 

Kinman Business School. At the time of trial, she was employed as 

a word processor at the University of Montana with a yearly gross 

income of $14,500 from her employment, and net income (including 

$300 per month temporary child support) equal to $1212 per month. 

The District Court found that her monthly living expenses were 

$1531.80, leaving a net deficit of $369.80. 

The District Court found that the husband was 34 years old, 

had a degree in engineering from Montana State University, and was 

employed as an engineer. His annual gross income was $29,000. 
However, his net income was $1882.09 per month, and his monthly 

living expenses were found to be $988.50. The District Court's 

finding regarding the husband's living expenses did not include 

monthly payments for attorney fees, travel to and from Missoula to 

exercise visitation, payments for expert witness fees and 

counseling, nor any allowance for housing since at the time of 

trial he was living with his mother in order to meet his other 

expenses. 

Findings of Fact No. 14, 15, and 16 are vigorously contested 

by the husband on appeal. In Finding No. 14, the District Court 

found that he was an admitted transvestite and that if exposed to 

such conduct, his son would be irreparably harmed. The court found 

that transvestism was compulsive and secretive and that the 

couple's son could not be protected during unsupervised visitation 

with his father. The court found that a transvestite father cannot 

be entrusted with such a tender young child. 

In Finding No. 15, the District Court found that the mental 

health of the couple's son was potentially at risk if his father 

deliberately or inadvertently cross-dressed in front of the child, 

because the child would face irreparable sexual misidentification 

if he saw his father as both a man and a woman. The District Court 

found that there was a need to protect this two-year-old from 

irreparable damage. 

In Finding No. 16, the court found that while the wife was a 

fit and proper person to have custody, there was potential for harm 
to the son if her husband inadvertently, casually, or carelessly 

exhibited deviate sexual behavior in the presence of the son. 

As a result of these findings, the District Court awarded sole 

custody to the wife, and allowed visitation for the husband during 

two weekends per month. Visitation was allowed for one hour on 

Friday nights, and from 8 a.m. to 9 p.m. on Saturdays and Sundays. 

However, the District Court ordered that visitation had to be 

supervised, and in its original decree provided that supervision 

would be handled by the wife. The husband was to travel to 

Missoula on the first weekend of each month, and the wife was to 

travel to Great Falls on the third weekend of each month, to 

accommodate visitation. However, the husband was to reimburse her 

for gasoline expense for trips to Great Falls. 

The husband was ordered to pay $49.08 per month as his 

proportionate share for providing insurance coverage for the 

couple's son, 50 percent of any uninsured medical expenses, $300 a 

month for child support, and $250 a month for temporary 

maintenance. He was also ordered to pay 65 percent of the expense 

already incurred for child care, and was ordered to pay 65 percent 

of future child care costs. Each of the parties was ordered to pay 

his and her own attorney fees. 

Both parties moved to alter or amend the District Court's 

judgment. The wife wanted to change the hours of visitation, and 

the husband objected to maintenance, the amount ordered for child 

support and child care, and the District Court's findings regarding 

child custody and visitation. As a result of the parties' 
post-trial motions, maintenance was reduced to $150 per month, and 

the court allowed visitation to be supervised by either the wife or 

an adult "non-transvestite memberw of the husband's family. 

Otherwise, the court's original decree was unchanged. 

I 

Did the District Court err when it awarded sole custody of the 

couple's son to the wife and restricted husband to supervised 

visitation? 

When we review a district court's findings which pertain to 

issues of child custody and visitation, those findings wiii be 

sustained unless they are clearly erroneous. fit re iifalriage of Srrsnt 

(1990), 242 Mont. 10, 13-14, 788 P.2d 332, 334. Findings which are 

not supported by substantial credible evidence are clearly 

erroneous. Iittmtate Production Credit Associutiott v. DeSaye (1991) , 2 50 ~ont . 

320, 323, 820 P.2d 1285, 1287. If the district court's findings 

upon which it bases its award of custody and visitation are not 

clearly erroneous, the trial court's decision will be upheld unless 

there is a clear showing of an abuse of discretion. In reMammuge of 

Rebliq$cr~ts (1991), 250 Mont. 86, 817 P.2d 1159. However, the 

district court's discretion must be consistent with the statutory 

framework for child custody. In that regard, we must consider 

5 40-4-212(1), MCA, which provides that "[tlhe court shall 

determine custody in accordance with the best interest of the 

child,'' and § 40-4-224(1), MCA, which provides that: 

Upon application of either parent or both parents 

for joint custody, the court shall presume joint custody 
is in the best interest of a minor child unless the court 

finds, under the factors set forth in 40-4-212, that 

joint custody is not in the best interest of the minor 

child. If the court declines to enter an order awarding 

joint custody, the court shall state in its decision the 

reasons for denial of an award of joint custody. 

Objection to joint custody by a parent seeking sole 

custody is not a sufficient basis for a finding that 

joint custody is not in the best interest of a child, nor 

is a finding chat the parents are hostile to each other. 

It is clear, in this case, that the District Court based its 

denial of joint custody on its Findings of Fact No. 14, 15, and 16 

where it found, among other things, that the husband was a 

transvestite, his behavior was compulsive, he could not be trusted 

with his son, and that if exposed to cross-dressing it would be 

irreparably harmful to his son. If, as argued by the husband, 

these findings are unsupported by any evidence, then the District 

Court's denial of joint custody and severe restrictions on the 

husband's rights to visitation were an abuse of discretion. 

After a thorough review of the complete record in this case, 

we conclude that there was no credible evidence to support the 

District Court's findings which formed the basis for its denial of 

joint custody. However, because of the significant interests at 

stake for the husband, the wife, and the child in this case, we 

offer the following lengthy review of the evidence which leads us 

to that conclusion. 

At the hearing held on August 1, 1991, to determine temporary 

custody of this couple's son, both parents testified. Also called 

as witnesses were Rich Kuka, a professional counselor, and the 

husband's mother and brother-in-law. Kuka testified that he 
originally counseled the husband because of problems with his 

marital relationship, butthat during the course of the counseling 

they had also discussed the husband's prior history of crossdressing. As part of his evaluation of the husband, Kuka 

administered a battery of psychological tests, including a 

parenting evaluation. On the basis of those tests, his interviews, 

and the counseling he had done with the husband, Kuka testified 

that he had no concern about the husband's ability as a parent 

being affected by his interest in cross-dressing because it had, in 

the past, been a very private matter and he did not believe that 

the husband would ever purposely expose his son to that behavior. 

Duringthe course of his testimony, the following exchange occurred 

with the District Court: 

THE COURT: Before you start, just tell me more about the 

cross-dressing. What significance does that have, if 

any, to this whole situation? Does that cause any 

problems at all or is that -- what does that signify to 

you? 

THE WITNESS: I personally believe that it is not an issue 

in regard to [D.G.D.lls ability to parent at this time. 

THE COURT: It doesn't mean that he is a molester, or he 

is a homosexual, or he is a danger to the child? 

THE WITNESS: No. Absolutely not. To me it means that 

he has a sexual preference that involves wearing female's 

clothing and that's basically it. 

When further asked whether or not the couplets child would be 

harmed if he inadvertently observed his father cross-dressing, 

Kukats answer was that children could be harmed by inadvertently 

observing a whole range of sexual activities that normal adults 

engage in, but that he thought the risk was minimal. 
Other than Kuka's testimony, there was no other expert 

testimony provided at the August 1 hearing. The husband testified 

that he had sought counseling from a number of people in Montana, 

but had been unable to find a counselor with prior experience with 

his problem. He testified that he had every intention of getting 

counseling and getting his problem resolved. When asked if he 

thought he could discontinue the behavior, which he conceded was 

abnormal, he testified that he thought he could. He had never 

publicly cross-dressed, and felt very strongly that he did not want 

his son to do what he had done and experience the pain that had 

resulted from his problem. However, neither did he want his son to 

grow up feeling that he had been abandoned by his father since, 

when the husband was four years old, his own father had died and he 

felt a serious void in his life without a father-son relationship. 

The husband's mother testified that, even though he had grown 

up in her home, she had first learned that he engaged in 

cross-dressing in May 1991 when this dissolution proceeding was 

commenced. She only learned then because the husband told her. 

The husband's brother-in-law testified that he had known him 

for 21 years, and over that time had had a lot of contact with him 

and considered him a good role model for children. He first became 

aware of the husband's prior history of cross-dressing one week 

before the hearing. 

The wife testified that she had been married to her husband 

for three years and had never personally observed him in women's 

clothing. She only learned of it because he acknowledged the 

10 
problem to her after she discovered some of the clothing he had 

worn, which had been stored at various places in the family home. 

She also testified that, other than her concern with his 

cross-dressing, she had no concern with his parenting skills. 

At the conclusion of the August 1 hearing, the husband asked 

for extended visitation rights. The wife objected on the grounds 

that there had not been a sufficient psychological evaluation to 

know whether extended visitation would be harmful to the couple's 

child. She requested further psychological evaluation and agreed 

if that evaluation snowed that there was no risk of harm to the 

child, she would have no objection to extended visitation. 

After the August 1 hearing, the District Judge observed that 

he had no personal knowledge about the subject they had been 

discussing, and would have to rely on the experts. He issued a 

temporary order disallowing any overnight visitation, and further 

stated that as soon as he saw some expert opinion telling him he 

had no reason to be concerned, he would have no reason to 

disbelieve that expert. That kind of expert advice was soon 

presented. 

On November 6, 1991, the husband was evaluated by Julia R. 

Heiman, Ph.D., a psychologist and professor of psychiatry and 

behavioral sciences at the University of Washington Medical School. 

Her specialty is sexual disorders. She was asked to evaluate the 

husband for the purpose of determining whether his sexual pattern 

created any risk for his son. 
Dr. Heiman interviewed the husband, reviewed the battery of 

psychological tests administered in Great Falls, and did some 

testing of her own. She concluded that while he had cross-dressed 

in the past, he did not fit into the medical diagnosis of 

transvestite, based on the fact that he had not engaged in that 

activity for over six months prior to the time that she had seen 

him. She concluded that his past conduct would not be detrimental 

to his son if the husband acted as a co-parent, and that based on 

the objective testing that was done, she believed the husband to be 

truthful in the history that he reported to her. 

Based on what she had learned, Dr. Heiman expressed the 

opinion that the husband was not a compulsive cross-dresser and had 

a good chance of changing his behavior through treatment or therapy 

because he was highly motivated to do so. However, she also 

expressed the opinion that even if this couple's son were to 

observe a public exhibition of transvestism, it would be highly 

unusual for the child to imitate that conduct. She said that 

transvestism is usually learned through experimentation, rather 

than imitation of someone else. 

Based upon this evaluation, and counseling that the husband 

had undergone with Dr. Monty Kuka, the brother of Rich Kuka, on 

December 27, 1991, the husband moved to modify the District Court's 

temporary custody and visitation order based on what the District 

Court had told him about expert opinions, and for the further 

reason that the wife had moved to Missoula and it was very 

difficult for him to travel back and forth for visitation for only 
a few hours during the day. In response to that motion, a second 

hearing was held on February 19 and 20, 1992. 

At that hearing, Dr. Heiman's report and deposition were 

submitted and Dr. Monty Kuka was also called to testify. Dr. Kuka 

testified that he is a licensed clinical psychologist who did a 

psychological evaluation of the husband in July 1991, and had seen 

him in weekly sessions of psychotherapy since November 1991. He 

found nothing in the husband's psychological test results to 

concern him about the husband's effectiveness as a parent or the 

role model that he would provide to his son. To the contrary, he 

testified that he found the husband skilled in a lot of areas of 

parenting to a degree that is well above average. Dr. Kuka 

reviewed Dr. Heiman's deposition and report and found nothing that 

was contradictory with his own conclusion. 

Dr. Kuka testified that the psychotherapy the husband had 

undergone went very well, the husband was highly motivated and 

cooperative, and followed all of Dr. Kuka's instructions. He 

testified that in conducting his evaluation, his primary concern 

was for the well-being of the couple's child, but that he felt the 

husband would be a truly effective parent who has the qualities 

that are basic to establishing a good relationship with the child. 

He concluded that, as a result of the counseling the husband had 

undergone, the husband was no longer involved in cross-dressing. 

He did not consider the husband a compulsive cross-dresser, and 

when asked by the court about the risk to the child from observing 

his parent dressed in female undergarments, Dr. Kuka testified 
that, in the very unlikely event that the husband was observed by 

his son, any damages could be dealt with in a way that would 

minimize the impact on him. He further testified that, in his 

opinion, the positive experiences from a normal father-son 

relationship far outweighed the minimal negative impact about which 

he was asked to speculate. He testified: 

Q. So what you are telling us is that it's more 

valuable for him to grow up with a parent that 

appears to have the skills that [D.G.D.] has 

compared to the risk that this child may turn out 

to be a transvestite? 

A. Yea. Because I don't see that that is a real risk. 

And I do see the real value. 

Dr. Kuka testified that to deprive a child of a relationship 

with a parent is extremely destructive to their development, while 

the unlikely event of the same child inadvertently observing his 

father in inappropriate garments would be no worse than children 

seeing their parents engage in sex, or physical violence, or 

fighting within the home. He explained that, although he felt that 

eventuality was unlikely, any traumatic effect could be minimized 

with proper communication and explanation. 

The husband testified that at the time of the hearing he had 

not had any items of women's clothing in his possession since 

November 1990, and had no intention of ever possessing any again. 

In spite of this evidence, with which the wife said she would 

be satisfied, and in spite of her acknowledgement that she had 

never even seen her husband cross-dress, the wife objected to 

expanded visitation privileges until a further report could be 
obtained from a psychologist of her choice who specialized in child 

development. 

At the conclusion of the hearing, the District Court observed 

that both parents appeared to be good parents and that if it were 

not for the issue of transvestism (even though Dr. Heiman had 

testified that the husband was not a transvestite), he would not 

have any concerns. The judge acknowledged that he was having 

difficulty with the issue, largely out of ignorance, because he did 

not understand transvestism. 

The Dlstrict Court accepted Dr. Kuka's testimony, but 

expressed reservation that Dr. Kuka was an expert in child 

development with very limited experience in transvestism. The wife 

and her attorney, on the other hand, objected to Dr. Heiman's 

testimony because she was an expert in transvestism with very 

little experience in child development. 

For these seemingly contradictory reasons, the District Court 

decided to maintain the status quo pending further expert 

consultation. On February 24, 1992, the District Court entered an 

order denying the husband extended visitation. 

Because of the wife's concerns, her attorney requested an 

opinion from Richard Green, M.D., a psychiatrist from the staff of 

the UCLA Medical School. Dr. Green submitted a report to the 

wife's attorney on February 20, 1992. Although a portion of that 

report is referred to in the District Court's findings, when the 

entire text of the report is considered, it is totally consistent 

with the prior expert testimony. In fact, the report was offered 
at the parties' April 22, 1992, trial by the husband1 s attorney and 

admitted by the District Court over the objection of the wife. 

Some of the more significant points in Dr. Green's report are that, 

in his study of children with sexually atypical parents, he has 

found no evidence of a sexual identity conflict. He advised that 

no cross-dressing by the husband take place in the boy's presence 

for the next few formative years. However, there was not much 

chance of that since the husband had never cross-dressed in 

anyone's presence in the previous 20 years that he had engaged in 

the activity. 

Dr. Green also pointed out that to the extent the husband 

could provide assurance that cross-dressing would not occur, he 

should have the same visitation opportunity as any father where 

cross-dressing is not an issue. In terms of supervision of 

visitation, he said he would defer to the clinician who was seeing 

the father for therapy. That clinician was Dr. Monty Kuka. 

Importantly, Dr. Green also concluded that the more time a boy 

can spend with his father, the more available will be a male for 

appropriate sexual identification. He concluded that there was no 

evidence that transvestism by a father affects parenting qualities, 

nor was there any evidence that fathers who cross-dress are 

inclined to sexually abuse children, any more than any other adult 

male. 

With this fourth expert opinion in the husband's favor, the 

final trial in this matter was held on April 22, 1992. At that 

trial, Dr. Monty Kuka was again called as a witness. He testified 

16 
that by the time of trial he had discontinued his therapy sessions 

with the husband because he felt the husband had identified and 

dealt with his problem of cross-dressing. In his opinion, there 

was not a risk that the husband would cross-dress in the future. 

He testified that in all the custody evaluations he had done, the 

husband was one of the most qualified parents, whether being 

considered for shared custody or sole custody, thac Dr. Kuka had 

ever encountered. He testified that even if the husband 

cross-dressed again, which he felt was unlikely, and even if his 

son observed it, which he felt was even more unlikely, he did not 

think that observation presented a significant risk of a negative 

impact on the behavior of his child. He pointed out that based on 

Dr. Green's studies, even radical changes in the sex role of a 

parent had not had a major impact on children who had been studied. 

At the time of trial, the husband testified that he had not 

cross-dressed for a year and a half, and was able to assure the 

court that he would never do something like that in the presence of 

his son. 

Raymond Kelly testified that he had been a friend of the 

husband since the third grade, and they were roommates in college. 

They had stayed in touch ever since. Kelly stated that he was not 

aware that the husband had engaged in cross-dressing until the 

trial, and he only knew then because the husband had told him. 

On January 30, 1992, dt the husband's request, the court had 

appointed a guardian ad litem to represent the interests of the 

couple's son. On April 22, 1992, she filed her report to the 
court. In her report, she indicated that she had conducted her own 

independent investigation and found nothing from that investigation 

which would indicate that the husband's past dressing habits should 

disqualify him as a custodial parent. She pointed out that no one 

had ever seen him cross-dress, and that he appeared to be able to 

control the behavior. She recommended joint custody, with physical 

custody to the wife during the week, and custody for the husband on 

alternating weekends. She also recommended that the parties share 

physical custody of their son during summer months. 

Other than those experts whose testimony is sunmarized in this 

opinion, no other expert was called as a witness in this case, nor 

were reports from any other experts submitted to the District 

Court. In spite of the overwhelming evidence that the husband 

presented no risk to his son, and that the only real risk to this 

child's normal development was by limiting him from a normal 

relationship with his father, the District Court entered the 

findings and decree which are the subject of this appeal. 

The court found that the husband was an admitted transvestite. 

The husband was not an admitted transvestite and was not qualified 

to make that diagnosis. Dr. Heiman, who was qualified, testified 

that the husband was not a transvestite. 

The court found that if the parties' son was exposed to such 

role modeling (cross-dressing), he would be irreparably harmed. 

There was no such evidence. That was the contention of the wife 

and her attorney. However, every one of the four experts who 

expressed an opinion in this case opined to the contrary. 

18 
The District Court found that transvestism is obviously 

compulsive and secretive. All of the experts who were asked 

testified to the contrary. The husband did not feel that his 

conduct was compulsive, and in fact, had not engaged in it for two 

years at the time of the hearing on his motion to amend the 

District Court's findings. 

The District Court found that the child's mental health is 

potentially at risk and that the child faced irreparable sexual 

misidentification if he saw his father cross-dress. This finding 

was directly contrary to all of the competent evidence in tinis 

case. This was the concern repeatedly expressed by the District 

Court because this was the position repeatedly argued by the wife 

and her attorney. However, everyone qualified to draw such an 

opinion disagreed with that conclusion. 

At the September 18 hearing to consider the parties' motions 

to amend, Dr. Kuka was again called as a witness to address the 

kind of supervised visitation that the District Court had provided 

for in its decree. He testified that based on his familiarity with 

the husband, and his familiarity with the opinions of the other 

experts who had been involved in this case, there was no reason to 

have supervision of visitation and that that kind of limitation 

would have a negative affect on the child by limiting natural 

interactions with his parent. Dr. Kuka felt in this case that it 

would create tension, disharmony, and a discomfort which limited 

the spontaneity and enjoyment of the visitation. He reviewed the 

District Court's decree and expressed the opinion that Dr. Green's 

19 
statement had been taken out of context and specifically disagreed 

with the District Court's conclusion that any potential danger to 

the couple's son had been established. 

Dr. Kuka expressed the opinion that Dr. Green's letter was 

very clear in its conclusion that there was not a risk of gender 

confusion, even in the families of transsexuals and homosexuals. 

He said that the situation in this case was significantly less 

confusing. 

Dr. Kuka's testimony was interrupted by the District Court and 

he was dsked ::[w]hat if the boy walked in the room and saw his isold 

man" dressed up in panties and bra?" Dr. Kuka's response was that 

he did not think there was any risk that that would happen, but 

that, even if it did happen, it would be confusing to the son but 

not traumatic. He unequivocally stated that kids are able to 

understand the difference between cross-dressing and normal 

behavior. He testified that while he understood the court's 

concern about the welfare of this child, his concern was for the 

welfare of a child who is not allowed to see his father on a 

natural basis. 

The husband admittedly engaged in private behavior which most 

people would find offensive. He, himself, found his conduct so 

offensive that he put off seeking help for years out of fear that 

he would be publicly ridiculed and humiliated. However, out of 

commitment to a normal relationship with his son, he has now gotten 

the help that he needs. He no longer engages in the conduct which 

the District Court finds offensive, and everyone who is qualified 

2 0 
to express an opinion has advised the District Court that any 

remote risk to his son is far less that the risk caused by the 

unnatural restrictions that have been placed by the District Court 

on his relationship with his son. 

By statute in Montana, custody is to be based on a child's 

best interest, and joint custody is favored unless there is some 

compelling reason to order otherwise. In this case, we conclude 

that the custody and visitation arrangement ordered by the District 

Court was contrary to the child's best interest and there was no 

evidence, other tinan the District Court's unfounded fears, to deny 

joint custody. 

The uncontroverted evidence was that, although the husband had 

begun privately cross-dressing as a teenager, no one had ever seen 

him cross-dress. Not his mother, nor his sisters with whom he was 

raised; not his childhood friend who lived with him for four years 

as a college roommate; and not even his wife with whom he lived 

until this dissolution proceeding was commenced. 

There was further evidence that the husband despised the fact 

that he had cross-dressed in the past, but was afraid to 

acknowledge his problem until he had no choice. Once he did so, he 

entered intensive therapy, which, according to his counselor, had 

been successful to the point that he had not cross-dressed, even 

privately, for two years prior to the trial which led to the 

court's decree. 

The husband's counselor, whose testimony was undisputed, 

expressed the unequivocal opinion that this man would not 

2 1 
cross-dress in the future, that even if he did, it would be a very 

private matter as it had been in the past, and that there was no 

risk of observation by his son. However, even assuming that, 

contrary to the counselor's expectation, the husband did 

cross-dress, and further assuming, contrary to all prior behavior, 

his cross-dressing was observed by his son, every counselor who 

testified in this case testified that the negative impact on the 

son would be less than the impact from not having a normal 

relationship with his father. The uncontroverted evidence was that 

supervised visitation during the daytime on alternate weekends was 

not conducive to a normal relationship between this child and his 

father. 

We conclude, based on the above discussion, that the District 

Court erred by awarding sole custody of this couplets son to the 

wife and by requiring that the husband's visitation with his son be 

supervised. We reverse that part of the District Court judgment 

and remand to the District Court for a determination of custody and 

visitation consistent with the recommendation by the child's 

guardian ad litem, based on our conclusion that there is no 

substantial evidence which indicates that a custody or visitation 

arrangement, other than as suggested by the guardian ad litem, 

would be in the best interest of this couple's minor child. 

I I 

Did the District Court err when it ordered the husband to pay 

naintenance to the wife in the amount of $150 per month for two 

years? 
Awards of maintenance are authorized pursuant to B 40-4-203, 

MCA, under the following circumstances: 

(1) In a proceeding for dissolution of marriage . . . the 

court may grant a maintenance order for either spouse 

only if it finds that the spouse seeking maintenance: 

(a) lacks sufficient property to provide for his 

reasonable needs; and 

(b) is unable to support himself through 

appropriate employment or is the custodian of a child 

whose condition or circumstances make it appropriate that 

the custodian not be required to seek employment outside 

the home. 

(2) The maintenance order shall be in such amounts 

and for such periods of time as the court deems just, 

without regard to marital misconduct, and after 

considering all relevant facts including: 

(a) the financial resources of the party seeking 

maintenance, including marital property apportioned to 

him, and his ability to meet his needs independently, 

including the extent to which a provision for support of 

a child living with the party includes a sum for that 

party as custodian; 

(b) the time necessary to acquire sufficient 

education or training to enable the party seeking 

maintenance to find appropriate employment: 

(c) the standard of living established during the 

marriage ; 

(d) the duration of the marriage; 

(e) the age and the physical and emotional 

condition of the spouse seeking maintenance; and 

(E) the ability of the spouse from whom maintenance 

is sought to meet his needs while meeting those of the 

spouse seeking maintenance. 
The standard of review for a maintenance award is whether the 

District Court's findings are clearly erroneous. in re Mammage of 

Esclzenhacher (lW2), 253 Mont. 139, 142, 831 P.2d 1353, 1355. 

The District Court made three findings critical to its 

maintenance award. In Finding No. 12, the court found that the 

wife had greater expenses than income each month by an amount of 

$369.80. In Finding No. 13, the court found that the husband had 

$988.50 more income each month than he had expenses. And in 

Finding No. 24, the court found that while the wife did not have 

sufficient income or property to meet her needs, the husband did 

have sufficient income after expenses to pay the wife $250 per 

month for maintenance for two years. In its post-trial amendment 

to its decree, the District Court reduced that amount to $150 per 

month. 

On appeal, the husband does not dispute that the wife has 

insufficient income or property to meet her needs. He does, 

however, argue that the evidence did not support the District 

Court's finding that he had disposable income after paying his 

monthly expenses, and therefore, the District Court's award of 

maintenance was an abuse of discretion because it did not properly 

consider his ability to pay, as required by § 40-4-203(2) (f), MCA. 

The husband's specific argument is that the District Court's 

findings regarding his disposable income did not take into 

cohsideration the amount of money that he had to spend each month 

for travel expense to exercise his visitation rights: the amount of 
debt he had incurred for attorney fees and expert witness fees, the 

cost of counseling, and the cost of housing. He contends that 

after consideration of these expenses, he had no disposable income 

at the end of each month, and therefore, had no ability to pay 

maintenance. 

During trial on April 22, 1992, the husband testified that he 

had spent approximateiy $3000 on travel expenses to exercise his 

visitation rights since he and his wife had separated and she had 

moved to Missoula. He explained that in addition to the expense of 

driving to and from Missoula, he had to pay the cost of a motel 

room for three nights per weekend in order to have a place to stay 

and to take his child. 

He testified that at the time of trial the total amount he 

owed for attorney fees, expert witness fees, and counseling fees 

was $9916, and that he was attempting to pay off a $500 debt to his 

therapist at the rate of $100 to $150 per month. 

In addition, the husband testified that he was living with his 

mother because he was unable to afford housing and still pay for 

his travel expenses and legal expenses. However, he hoped to be 

able to move into his own apartment or home in the future, and 

estimated that a reasonable cost for rent or a house payment would 

be $450 a month. 

The husband testified that even while living with his mother 

and having no expense for housing, his monthly living expenses, 

without repayment of his debts, were $1700. 
None of the husband's testimony regarding the expense of his 

travel to exercise visitation, the amounts owed to his attorneys, 

expertwitnesses, and conselors, or the reasonable cost of housing, 

were contested by the wife. However, none of these expenses are 

mentioned in the District Court's Findings No. 12, 13, or 24. 

Therefore, we are unable to conclude whether the District Court 

considered these expenses or whether, after consideration of these 

expenses and a reasonable allowance for repayment of these debts, 

the husband has the financial ability to meet his needs and still 

pay maintenance. If, after consideration of all his expenses, he 

has no money left at the end of each month, it is an abuse of 

discretion to require that he pay maintenance. Therefore, we 

vacate the District Court's maintenance award and remand to the 

District Court for further findings regarding the husband's ability 

to make maintenance payments after consideration of all of his 

monthly expenses and needs. 

I11 

Did the District Court err in its calculation of child support 

and in its award of day care expenses? 

The standard of review for a child support award is whether 

the district court abused its discretion. Ziz reMammage of Naslz (1992) , 

254 Mont. 231, 235, 836 P.2d 598, 601. In resolving that issue, we 

need consider S 40-4-204, MCA (1991), which provides, in relevant 

part, that: 

(3)(a) Whenever a court issues or modifies an order 

concerning child support, the court shall determine the 

child support obligation by applying the standards in 
this section and the uniform child support guidelines 

adopted by the department of social and rehabilitation 

services pursuant to 40-5-209, unless the court finds by 

clear and convincing evidence that the application of the 

standards and guidelines is unjust to the child or to any 

of the parties or is inappropriate in that particular 

case. 

This case originally went to trial on April 22, 1992. Both 

parties submitted proposals for child support based upon the child 

support guidelines in effect at that time. Their proposals are 

summarized, as follows, in the District Court's Finding No. 19: 

That each party presented calculations with respect 

to child support based on the Montana Child Support 

Guidelines. Those child supp~rtcalculations varied from 

$291.00, as computed by petitioner, to $313.83, as 

computed by respondent. 

Based upon these calculations, the District Court ordered that 

the husband pay child support in the amount of $300 per month. 

On July 31, 1992, subsequent to trial but prior to the 

District Court's entry of its decree, new child support guidelines 

were enacted. These were not available to the parties, nor the 

court, when they submitted their proposed findings, conclusions, 

and judgment. Neither did the District Court have reason to know 

that they would apply to its decision. However, we have recently 

held that district courts are to determine child support 

obligations according to guidelines in effect at the time that the 

court makes its decision. Palernilyof%!,. (Mont. 1993), 855 P.2d 521, 

50 St. Rep. 751. 

Among the changes in the new child support guidelines is an 

amendment to Rule 46.30.1543, ARM, which provides that the amount 

of child support set forth in the guidelines may be varied, based 

2 7 
on a number of factors, including the cost of exercising long 

distance visitation. 

For these reasons, both parties submitted revised child 

support work sheets to the District Court in support of, and in 

opposition to, the husband's motion to alter or amend the District 

Court's decree. 

In her amended work sheet, the wife proposed a child support 

obligation of $271 with maintenance, and $331 without maintenance. 

The husband proposed support in the amount of $193.89 with 

maintenance, and $225.47 without maintenance. However, he argued 

that the amount should be further reduced due to his travel 

expenses which are necessarily incurred to exercise visitation. At 

that time, he alleged that that amount was $220 per month. 

The husband also objected to the District Court's finding that 

he was obligated to pay a proportionate share of the child care 

expenses incurred from the date on which the parties separated 

until the date of judgment. 

In its order entered in response to the partiesz post-trial 

motions, the District Court did not address the new child support 

guidelines, nor did it address what allowance, if any, should be 

made for the expenses incurred by the husband to exercise his 

visitation rights. Both parties agree that the husband's child 

support obligation will also be affected by the District Court's 

resolution of the maintenance issue which we have instructed it to 

revisit on remand. Therefore, we vacate the District Court's award 

of child support and remand to the District Court for further 
consideration of the husband's child support obligation under the 

new child support guidelines, and consideration of what effect, if 

any, should be given to the fact that the husband necessarily 

incurs expense each month in order to exercise his visitation 

rights. 

We conclude, however, that the District Court did not err by 

providing in its decree for payment by the husband of his 

proportionate share of child care expenses incurred subsequent to 

the parties' separation and prior to the date of the District 

Court's decree. Apportionment of expenses for child care is 

specifically authorized by the new child support guidelines. 

The judgment of the District Court is reversed and remanded 

for further proceedings consistent with this opinion. 

We concur: 

Chief Justice 
Chief Justice J. A. Turnage dissenting: 

For the following three reasons, I respectfully dissent: 1) 

the highly unusual nature of D.G.D.*s past behaviors and practices, 

not all of which are described in the majority opinion; 2) the 

impossibility of guaranteeing that such behaviors and practices 

will not occur again and will not affect the minor child; and 3) 

the District Court's responsibility to protect the best interests 

of the child. 

I would affirm the court's discretion in ordering supervised 

visitation while the child is at a particularly vulnerable stage of 

his development. 
October 21, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Anionia P. Marra, Esq. 

Bell & Marra 

9 Third St. No., Ste. 201 

Great Falls. MT 59401 

Don A. LaBar, Esq. 

Church, Harris, Johnson & Williams 

P.O. Box 1645 

Great Falls, MT 59403 

Darcy Crum, Esq. 

James, Gray & McCafferty 

P.O. Box 2885 

Great Falls, MT 59403 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATF OF MONTANA