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

ClerkChief Justice J. A. Turnage delivered the Opinion of the Court. Theparties' marriagewas 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 hasmoved to Canada. We affirm. The issues are: 1. Are the DistrictCourt'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 inMay 1988. They had two children, a girl and a boy, then ages eight and five. Pursuant to the parties' custody, support,andproperty 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'sprimary residencewould be with the mother. InJuly of 1988, themother discovered shewas pregnant. The father, Timothy Wangerin,was a seminary studentwho had served asa vicar at the parties1church. In what she described as "great emotional turmoil,11 themother signed a stipulationthat physical custody of the children would be given to the father. Two weeks later,themothermarried thevicar and filedher rescissionof the stipulation. InAugust, the father filed a motion to modify the physical custody of the children so thathe could keep them. Themother and her new husbandweremoving 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 childrenwasheld in June 1989. By this time, themother, 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 theirmother during the school year and with their father during the summer. From that order the father appeals.

I Are the court'sfindings, 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 filedher Recission [sic] of Agreement to Modify Custody, Support and Property Settlement Agreementand 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 theAgreement, 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 themothermayhavebeen 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 

### Ididn't sign it,which has come true. He told me 

## -- Monte told me to tell Tim that if he came to town hewould kill him. He told me that he would do everything in his power toprevent 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 findingwas not error. The father next challenges Finding VI, which stated that the mother had been theprimary caretaker of the children. Themother testified that she worked as a beautician three to four days per week during the last two years of themarriage, but that prior to that time shehad been athome. She testified that the first year sheworked outside thehome, shehad a babysitter forthe 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 FindingVI. FindingVII 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 custodialparent. At the June 1989 hearing, the father described themother 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 seekto terminate joint custody of the children. We conclude that substantial evidence supports Finding VII. The father also lists nineteen findings (inhis 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 "isnot obligated to outline all of the testimonypresented 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 Courtmade sufficient findingsto support its conclusions and decision. I1 Are the District Court's findings, conclusions, and order sufficiently comprehensiveand 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 asequal aspossible between theparents,but each

case is tobe 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'swishes as tohis 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;thechild'srelationship withbothparents;and the geographicproximity of theparents1residences. InreCustody and Support of B.T.S. (1986), 219 Mont. 391, 395-96, 712 P.2d 1298, 1301. We now discuss the findings in this caseasthey 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 thehearing that, in its opinion, the children were too young to express their wishes as to residence. It did not interview them as to theirpreferences. This Court has stated that theage of the childgoes to theweight tobe given thechild'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, includingtheirhalf-sister and themother'snewhusband. It found that themother's newhusband interacts well with the children and is interested in their welfare. ThisCourthas recognized that a custodial parent ispresumptively 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 thechildrenwill live in bothparents' 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. Therewasno evidenceofphysical abuseor chemicaldependency

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 thechildren'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, thepartieshad agreed that shewould provide the children's primary residence. The court found that themother doesnot intend to work outside the home, while the father is a farmer and has a part-time job as a salesman. This Courthas 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 "essentialand determining1'facts uponwhich 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 themother's proposed findings, conclusions, and order constitute reversible error? The father cites this Court's opinion in Tomaskiev. Tomaskie (1981), 191 Mont. 508, 625 P.2d 536, in which the Court disapproved the practice of adopting proposed findings and conclusionssubmittedby 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 theproposals of one party. R.L.S. 

### v. Barkhoff (1983), 207Mont. 199, 206, 674P.2d 1082,1086. We hold that the Barkhoff standard has been met. Affirmed.

We concur: