NO. 83-216 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

IN RE THE MARRIAGE OF 

CYNTHIA LOUISE OVERTON, 

Petitioner and Appellant, 

-vsRICHARD ORVILLE OVERTON, 

Respondent and Respondent. 

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: 

LaRue Smith, Great Falls, Montana 

For Respondent : 

Barry T. Olson, Great Falls, Montana 

-- 

Submitted on Brief: September 15, 1983 

Decided: December '22, 1983 

Filed: DEC 22 1983 

57~ &, du* f 

- 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This is an appeal by the wife, from an order of the 

District Court of the Eighth Judicial District, Cascade 

County, providing for the daughter's surname be changed to 

the husband's surname, his name be placed on a birth 

certificate and specifically settling visitation rights for 

husband. 

Cynthia Louise (Miller)(Overton) and Richard Orville 

Overton were married on June 13, 1979. The court entered a 

decree of dissolution of their marriage, March 6, 1980. 

Wife was pregnant at the time of the dissolution, as a 

result of that marriage. She gave birth to a baby girl July 

2, 1980, in Great Falls, Montana. At the time of the birth, 

she named the child Chantelle Winifred Miller. She had two 

other illegitimate children with surnames Miller and desired 

all of her children to have the same surname so as to 

prevent confusion and embarrassment. 

In July of 1982, respondent tried to obtain a birth 

certificate of his daughter, Chantelle, so as to enroll her 

in the Indian tribal rolls. The Cascade County Clerk and 

Recorder's Office informed him that the birth certificate 

did not name a father and further stated the child's name to 

be Chantelle Winifred Miller. Respondent then brought this 

action to have his daughter's surname changed to be the same 

as his, and to clarify his visitation rights. Following the 

submission of briefs and a hearing, the court ordered the 

child's surname changed to Overton; that respondent's name 

be placed as the father on the birth certificate; and that 

he be granted visitation rights with his daughter one 
weekend a month, on alternate holidays and six weeks during 

the summer. 

Appellant raises four issues on appeal: (1) Did the 

court err in its findings of fact regarding the visitation 

rights of the husband; (2) did the court err in not 

conducting a welfare investigation before granting husband 

visitation rights; (3) did the order to change the surname 

of the daughter violate Section 40-5-103, MCA, and Article 

11, Section 4 of the Montana Constitution; and (4) was there 

sufficient evidence to prove it was in the best interest and 

welfare of the child to have her surname changed? 

This Court will not overturn findings of fact unless 

they are clearly erroneous. Rule 52(a), M.R.Civ.P. 

"We will not substitute our judgment for 

that of the trier of fact, but rather 

will only consider whether substantial 

credible evidence supports the findings 

and conclusions. These findings will not 

be overturned by this Court unless there 

is a clear preponderance of the evidence 

against them. We will view the evidence 

in a light most favorable to the 

prevailing party, recognizing that 

substantial evidence may be weak or 

conflicting with other evidence, yet 

still support the findings. Nicolai v. 

Nicolai (Mont. 1981), 631 P.2d 300, 303, 

38 St.Rep. 1100, 1103. Cameron v. 

Cameron (1978), 179 Mont. 219, 587 P.2d 

939. " 

Appellant contests the court's findings on the issue 

of visitation rights. A review of the evidence shows 

sufficient evidence to support the findings. We do not find 

the District Court clearly erroneous in its findings on the 

issue of visitation. 

Appellant contends the trial court erred when it first 

stated it would request a welfare investigation on 

respondent before granting visitation rights and then 
proceed to make the order for visitation without said 

investigation. The District Court may require 

investigation, interviews and gather this information as 

it deems necessary. Such review is within the District 

Court's discretion for the determination of visitation 

rights. Section 40-4-217, MCA presumes the noncustodial 

parent is entitled to reasonable visitation rights so long 

as it is in the best interest of the child. "To assure that 

this standard is complied with, it is essential that the 

trial court examine all pertinent and relevant factors 

presented at trial.'' Jones v. Jones (Mont. 1980), 620 P.2d 

850, 37 St.Rep. 1973. The court considered the evidence at 

trial and made sufficient findings and conclusions to 

support its order. Therefore the trial court did not err by 

not conducting a further investigation. 

Appellant next contends the court violated Section 

40-6-103, MCA, and Article 11, Section 4 of the Montana 

Constitution, by changing the child's surname. We disagree. 

In Firman v. Firman (Mont. 1981), 610 P.2d 178, 37 St.Rep. 

888, this Court correctly found that other than the statutes 

for name changes, Section 27-31-101 et seq., "there is no 

other statute in point.. . . " Firman, supra, involved a 

dispute between a husband and wife over the surname to be 

used by the children. The wife desired the children to use 

the name of her new husband. This Court in its ruling 

determined the children should use the natural father's 

surname, based upon the "best interest of the child." 

Firman, supra (Mont. 1981), 610 P.2d 178, 181, 37 St.Rep. 

888, 891. 

The District Court's findings and conclusions state 
nothing to the effect that husband has any preference or 

natural right to have his daughter bear his surname. The 

child's best interest does not involve the equality of sexes 

in this case. The findings and conclusions stress the best 

interest of the child. Therefore we find appellant's 

argument without merit. 

Finally we turn to the issue of: does the evidence 

support the findings and conclusions of the District Court 

regarding the change of name and whether it was in the best 

interest of the child? Appellant raises many objections to 

the findings and conclusions regarding the change of name. 

In reviewing the transcript, we find nothing in the findings 

and conclusions clearly erroneous and there is sufficient 

evidence to support these findings. It should be noted, 

that the trial court may have made a clerical error in 

finding the child was of twenty-five percent Indian blood. 

But this can be corrected by a Rule 60(a) motion for 

correction of clerical mistakes. 

Having found the District Court was not clearly 

erroneous in its findings and conclusions, we hereby affirm. 

We concur: i I Ll 

Chief Justice