No. 14544 

IN THE SUPREME COUHT OF THE STATE OF MNWi 

1979 

INRETHEImRRmaOF 

NEAL G. JENSEN, 

Petitioner and Respondent, 

-VSEMELIA B. JENSEN, 

Respondent and Appellant. 

Appeal fm: District Court of the Eighth Judicial District, 

Honorable R. D. Wkillips, Judge presiding. 

Counsel of Record: 

For Appellant: 

Alexander, Kuenning, Miller and Ugrin, Great Falls, mntana 

For Respondent: 

Dzivi, Conklin, Johnson & Nybo, Great Falls, mntana 

Submitted on briefs: April 25, 1979 

Decided: JuL 11 1979 

JUL 1; 1972 

Filed : 
Mr. Justice John C. Sheehy delivered the Opinion of the Court. 

This is an appeal by Emelia B. Jensen from the District 

Court, Eighth Judicial District, Cascade County, Montana, 

from a judgment of marriage dissolution awarding custody of 

a minor child to the father. We affirm. 

Petitioner, Neal G. Jensen ("Neal") and Emelia B. 

Jensen ("Millie") were married on June 18, 1975, in Cascade 

County, Montana. At the time of the dissolution, Neal was 

26 years of age and Millie was 22 years of age. One child 

was born of the marriage, Camila Jo Jensen, approximately 3 

years of age at the time of the decree of dissolution. 

The decree of dissolution found the marriage to be 

irretrievably broken, divided the parties marital properties 

between them, provided that the husband pay one-half of the 

counsel fees incurred by Millie in the dissolution proceedings, 

and awarded custody of the minor child to Neal, with Millie 

to have custody at least one month during the summer, on 

some holidays, and other reasonable rights of visitation as 

the parties between themselves might work out. Millie 

appeals only from that portion of the decree awarding the 

custody to the father. 

Millie's appeal raises three principal issues: 

(1) The evidence does not overcome the presumption 

that Millie was entitled to have the custody of the minor 

child. 

(2) The witnesses testifying in favor of Neal were 

inherently incredible. 

(3) The trial court abused its discretion in finding, 

with respect to the custody of the minor child, that (a) 

there was a close and dependent relationship between the 

child and Neal; (b) that the father would be better able to 

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provide for the child; (c) that the mother resented the 

child, and her intrusion into her social and educational 

life; (d) that the father was more mature, and with the 

paternal grandparents, could supply a more stable environment 

and home for the child; (e) that Millie was about to enter 

medical school, and therefore could not give the child the 

kind of stable environment the child needed. 

The trial court determined, based upon the factors set 

out in issue three above, that the child's best interests would 

be served if her custody were awarded to the father where she 

had a better chance of living in a stable home environment. 

In essence, all of the issues raised by Millie attacked 

the sufficiency of the evidence to support the trial court's 

finding, relating to the best interests of the child. In that 

circumstance, Millie has the heavy oar on appeal. She must 

show there is a clear abuse of discretion by the trial court, 

overcome the presumption that the judgment of the District 

Court is correct, demonstrate that there is a clear preponderance 

against the findings, and we must view the evidence in the 

record in favor of the prevailing parties. In Re the ~arriage 

of Brown (1978), Mont . , 587 P.2d 361, 35 St.Rep. 

1733, 1738; Weber v. Weber (1978), Mont . , 576 

P.2d 1102, 35 St.Rep. 309; Brooks v. Brooks (1976), 171 Mont. 132, 

556 P.2d 901; Gilmore v. Gilmore (1975), 166 Mont. 47, 50, 530 

P.2d 480; In Re Adoption of Biery (1974), 164 Mont. 353, 522 

P.2d 1377; Merritt v. Merritt (1974), 165 Mont. 172, 177, 526 

P.2d 1375; Rule 52(a), M0nt.R.Civ.P. 

The presumption that the mother is entitled to the custody 

of a child of tender years is no longer statutory, but still 

exists, though not a conclusive presumption. In Re Marriage 

of Tweeten (19771, Mont. , 563 P.2d 1141, 34 St.Rep. 

337. Millie contends that because the trial court found that 
each of the parties were fit persons to have the custody of 

the child, therefore the presumption obtains, and she is 

entitled to custody of Camila. Millie does not contend that 

she is entitled to the custody of the child as a matter of 

law, but rather that the presumption is a factor when both 

parties are fit parents, that must be overcome. She also 

contends that unless the presumption is overcome, the trier 

of fact must find in accordance with the presumption under 

Rule 301, Mont.R.Evid. 

We held In Re Marriage of Isler (19771, Mont . 

, 566 P.2d 55, 34 St.Rep. 545, that once the presumption 

has been overcome, the Court may then apply the best interest 

requirements of the statute, section 40-4-212 MCA, as between 

the father and the mother. Because the District Court made 

no express finding that the presumption had been overcome in 

this case, Millie contends that an award in accordance with 

the presumption should have been made. 

The true rule is that the Court is required to determine 

custody in accordance with the best interests of the child, 

under the statutory directive of section 40-4-212 MCA. The 

presumption exists, but it is not controlling or conclusive 

(Tweeten, supra) and is overcome when the trial court makes 

a determination under the relevant factors set out in section 

40-4-212 MCA that the best interests of the child would be 

served by awarding the custody to the father. A specific finding 

that the presumption has been overcome is not necessary where 

it otherwise appears from the record and in the findings that 

the court makes its decision upon the relevant factors set forth 

in the statute, and that those factors are made in the best 

interest of the child. See Brown, 587 P.2d at 366, where we said: 

". . . Our review of the District Court's findings, 

bearing in mind the great deference we give 

to the District Courts in this area, convinces 
this Court the District Court considered the 

presumption to have been overcome and found the [sic] 

Benjamin to be the better person for custody . . ." 

We determine that the findings of the District Court 

under the test of the best interest of the child overcame 

the presumption attending the mother of a child of tender 

years. 

On the next issue, Millie attacks the credibility of 

six of Neal's witnesses, including the husband, on the 

grounds that their evidence is inherently improbable. 

Millie contends that because those witnesses were inherently 

incredible, the findings of the Court are not based on 

sufficient evidence. Timrnerman v. Gabriel (1970), 155 Mont. 

294, 470 P.2d 528; Ericksen v. Ericksen (1968), 152 Mont. 

The evidence attached is not so inherently improbable 

or contradictive as to require disbelief. Without prolonging 

this opinion by a recitation of the elements of the evidence, 

the witnesses generally testified that the mother did not 

play with her child, the mother was lax in doing the household 

laundry, and the child exhibited feelings of fear of the 

mother. Millie claims the witnesses, particularly Neal, 

exaggerated isolated events as though they were a usual 

course of behavior. Our review of these elements of the 

testimony does not reveal that they should be entirely cast 

aside, nor that because thereof, the remaining testimony of 

these witnesses should be disregarded. The credibility of 

witnesses received in a nonjury trial is for the trial judge 

to determine, and his determination will not be set aside, 

absent a clear abuse of discretion. Rule 52(a), M0nt.R.Civ.P. 

The third and final issue relates to the contention of 

Millie that the District Court abused its discretion in finding 

the factors upon which it based its award of custody to Neal. 

The relevant factors to be considered by the Court, as 

set forth in section 40-4-212 MCA, appear to be satisfied. 
The child was too young to express her wish as to which parent 

should have custody; each of the parents were desirous of 

custody. There was no argument about the mental and physical 

health of either Millie or Neal. Therefore, the remaining factors 

under the section included the interaction and interrelationshipof 

a child with his parent or parents, and other persons 

who might significantly affect the child's best interests, and 

the child's adjustment to his home and community. 

With respect to those factors, the District Court found 

that the child had a close and more dependent relationship 

with her father than with her mother. That conclusions are 

supported by the facts that the mother was frequently gone 

for long periods from the home and that the father, a practicing 

lawyer, had taken the time to devote a good deal of attention 

to his daughter. The court found that the father was presently 

better able to provide for the child's emotional, physical and 

material needs than the mother. The evidence supports this 

conclusion because the father could provide a stable home and 

the child appeared to be doing well in the father's environment. 

The court further found that the mother appeared to have some 

resentment toward the child because she had intruded upon her 

youth. Her actions, as testified to at the trial, provided 

substantial basis for this conclusion. There is no doubt that 

her plans include a medical education for herself and the District 

Court finding that this would remove her or materially 

affect her ability to provide a stable home environment for 

the child was a position well take. In all, the court found 

that the child, by being awarded to the father, would have 

superior mental and moral care or supervision, which should 

allow her to become well-adjusted to her home and community. 

The totality of the evidence indicates the correctness of 

the District Court decision. 

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Therefore, Millie having failed to establish any basis 

upon which the District Court's award of custody of the 

child to Neal should be overturned, the decision of the 

District Court is affirmed. 

Justice u 

We Concur: 

~Kref Justice 

/" A 

I 

Justices