No. 14544 INTHE SUPREMECOUHT OF

### THE STATEOFMNWi 1979

INRETHEImRRmaOF NEAL G. JENSEN, Petitioner and Respondent,

-VS

### EMELIAB. JENSEN, RespondentandAppellant.

Appeal fm: DistrictCourt of theEighthJudicialDistrict, HonorableR. D. Wkillips, Judgepresiding. Counselof Record: ForAppellant: Alexander, Kuenning, Miller andUgrin, GreatFalls, mntana For Respondent: Dzivi, Conklin, Johnson &Nybo, Great Falls, mntana

Submittedon briefs: April 25, 1979 Decided: 

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## 111979 

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## 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 JudicialDistrict, 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 themarriage, 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 theminor child to Neal, with Millie to have custody at least onemonth 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 tohave the custody of the minor child. (2) 

### Thewitnesses 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) therewas a close and dependent relationshipbetween the child and Neal; (b)that the fatherwould be better able to -2-provide for the child; (c)that the mother resented the child, and her intrusion into her social and educational life; (d)that the fatherwas 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 theprevailing 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), 171Mont. 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), 165Mont. 172, 177, 526 P.2d 1375; Rule 52(a), M0nt.R.Civ.P. The presumption that themother is entitled to the custody of a child of tender years is no longer statutory,but still exists, though not a conclusivepresumption. In Re Marriage of Tweeten (19771, Mont. 

### , 563 P.2d 1141, 34 St.Rep. 337. Millie contends that because the trial court found thateach of the partieswere fitpersons 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 amatter of law, but rather that the presumption is a factor when both parties are fit parents, thatmust be overcome. She also contends that unless the presumption is overcome, the trier of fact must find in accordancewith the presumption under Rule 301,Mont.R.Evid. We held In Re Marriage of Isler (19771, Mont

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, 566 P.2d 55, 34 St.Rep. 545, that once the presumption has been overcome, the Courtmay then apply the best interest requirements of the statute, section 40-4-212MCA, as between the father and themother. Because the District Court made
no express finding that the presumption had been overcome in this case,Millie contends that an award in accordancewith the presumption should have been made. The true rule is that the Court is required to determine custody in accordancewith the best interests of the child, under the statutory directive of section 40-4-212MCA. 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 interestof the child. See Brown, 587 P.2d at 366,where we said: 

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# . Our review of the District Court's findings, bearing inmind the great deference we give to the District Courts in this area, convincesthis Court the District Court considered the presumption to have been overcome and found the [sic] Benjamin to be the better person for custody 

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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. Timrnermanv. Gabriel (1970),155Mont. 294, 470 P.2d 528; Ericksen v. Ericksen (1968),152Mont.

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,particularlyNeal, 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 determinationwill 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 factorsupon which it based its award of custody to Neal. The relevant factors to be considered by the Court, as set forth in section 40-4-212MCA, appear to be satisfied.

### The child was too young to expressher wish as to which parent should have custody; each of the parents were desirous of custody. Therewas no argument about the mental and physical health of either Millie or Neal. Therefore,the remaining factors under the section included the interactionand 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 fatherwas presently better able to provide for the child's emotional,physical and material needs than themother. The evidence supports this conclusionbecause the father could provide a stablehome 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 substantialbasis for this conclusion. There is no doubt that her plans include a medical education forherself and the District Court finding that thiswould removeher or materially affect her ability to provide a stablehome 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 allowher to become well-adjusted to her home and community. The totality of the evidence indicates the correctness of the District Court decision. -6-Therefore, Millie having failed to establish any basis upon which the District Court's award of custody of the child toNeal should be overturned, the decision of the District Court is affirmed.

Justice 

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We Concur:

~Kref Justice 

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Justices