~Jo. 87-159 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

IN RE THE MARRIAGE OF 

BECKY LYNN ERETH, 

Petitioner and Appellant, 

and 

KENNETH ARTHUR ERETH, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Fifteenth Judicial District, 

In and for the County of Sheridan, 

The Honorable M. James Sorte, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Nye & Meyer; Joan Meyer Nye, Billings, Montana 

For Respondent: 

David L. Irving, Glasgow, Montana 

Submitted on Briefs: June 2, 1988 

Decided : July 12, 1988 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Becky Lynn Ereth appeals the custody award and the 

property distribution in this dissolution of marriage entered 

by the District Court for the Fifteenth Judicial District, 

Sheridan County. We affirm. 

Becky and Ken Ereth were married in 1973. They had four 

daughters. Becky petitioned for a dissolution of marriage in 

1985. In September 1986, the court heard two days of testimony concerning custody and property distribution. The 

court, in January 1987, entered its Findings of Fact, Conclusions of Law, and Decree of Dissolution. The court awarded 

custody of the four girls to the father as sole and permanent 

custodian and granted the mother reasonable visitation 

rights. 

After initial review of the decree, this Court concluded 

that the lower court's findings on the question of child 

custody were incomplete. We therefore returned the matter to 

the lower court for the entry of findings of fact to address 

the elements set forth in 5 40-4-212, MCA. After the lower 

court entered additional findings, the parties were given an 

opportunity to brief any new questions raised by the findings. We now consider the following issues: 

1. Are the court's findings regarding custody supported 

by the evidence? 

2. Did the court erroneously rely upon the father's 

proposed findings regarding property distribution? 

Are the court's findings regarding custody supported by 

the evidence? 

The mother contends that the District Court abused its 

discretion in awarding custody to the father because she 

believes there is a clear preponderance of evidence weighing 
against the court's findings. When reviewing the District 

Court's custody order, we first must determine whether the 

factors set forth in § 40-4-212, MCA, were considered. In re 

Marriage of Jacobson (Mont. k987), 743 P.2d 1025, 1026-27, 44 

St.Rep. 1678, 1680. Pursuant to this Court's order, the 

lower court expressly considered the necessary statutory 

factors in its additional findings. 

Once it is established that the court properly considered the statutory criteria, we must determine whether the 

court made appropriate findings with respect to these criteria. In re Marriage of Manus (Mont. 1987), 733 P.2d 1275, 

1276, 44 St.Rep. 398, 400. Section 40-4-212, MCA (1985), 

provided as follows: 

The court shall determine custody in accordance with the best interest of the child. The 

court shall consider all relevant factors 

including: 

(1) the wishes of the child's parent or 

parents as to his custody; 

(2) the wishes of the child as to his 

custodian; 

(3) the interaction and interrelationship of 

the child with his parent or parents, his siblings, 

and any other person who may significantly affect 

the child's best interest; 

(4) the child's adjustment to his home, 

school, and community; and 

(5) the mental and physical health of all 

individuals involved. 

Findings of fact will not be set aside unless clearly erroneous. Rule 52(a), M.R.Civ.P. The long-standing rule in 

Montana is that we will not disturb findings of fact if they 

are supported by substantial credible evidence. 

The lower court heard testimony from numerous witnesses, 

including experts, as to the issue of custody. The court 

relied heavily upon the testimony and observations of two of 

the experts concerning the children's wishes, 
interrelationship of the children with their parents, and the 

mental and physical health of all individuals. Those two 

expert witnesses had prepared the custody report ordered by 

the lower court. The parties agreed at trial that Mr. Jones, 

one of the experts, was a psychologist. Dr. Brown, the other 

expert, has a doctorate degree in educational psychology. 

After review of the record, we conclude that the court did 

not abuse its discretion in relying upon the testimony of 

these two experts. 

The court specifically found that all four children 

stated a preference that they wanted to live with their 

father, that the parents were openly hostile with each other, 

that each parent was assessed as possessing adequate 

parenting skills, that significant problems were noted in the 

relationship between the mother and the children, that the 

mother was evaluated as having poor control emotionally and 

being over-reactive with the children, that the mother had 

been described as abusive toward the children at times, that 

the father was described as responsible, and that he had a 

good relationship with each of the girls. The court also 

found that the girls appeared to be well adjusted to the 

father's home, that two of them preferred the school closest 

to the father, and that the testimony established that the 

girls appeared to be well adjusted in the community. Further, the court found that all four children were well adjusted and healthy, with the exception of the oldest who 

suffers from a stress-related infection, and that the father 

was well adjusted and found to be without significant emotional problems. The court found that the mother is a recovering alcoholic who still drinks, that she was described as 

one who deteriorates with stress and is prone to anger and 

overreacting, and that she uses poor judgment. 
A good deal of testimony was presented concerning these 

issues, and much of the testimony conflicted. However, the 

mother has failed to demonstrate that the court's findings 

and conclusions were clearly erroneous. After careful review 

of the record, we conclude that substantial credible evidence 

supports the court's findings. The mother has not shown an 

abuse of discretion. Therefore, we affirm the District 

Court's determination of custody. 

Did the court erroneously rely upon the father's proposed findings regarding property distribution? 

The mother argues that the District Court adopted the 

findings proposed by the father and, as a result, failed to 

make findings supported by the evidence. We answered a 

similar argument in Jacobson, 743 P.2d at 1029: 

The District Court can adopt a party's proposed 

findings of fact and conclusions of law if they are 

sufficiently comprehensive and pertinent to the 

issues to provide a basis for a decision and are 

supported by the evidence. 

The findings proposed by the father were sufficiently 

comprehensive and pertinent to the issues. The findings 

dealt specifically with each item or category of property for 

which there was evidence presented at the hearing. The 

mother's argument is that the findings are not supported by 

the evidence. Her position is that because the court required "compromise" findings, the court failed to give proper 

consideration to the facts and failed to exercise independent 

judgment in valuing the property. In Jacobson, 743 P.2d at 

1029, we stated the applicable rule: 

The standard of review of findings made by a 

District Court is the same whether the District 

Court prepared the findings or adopted a party's 
proposed findings. In Re Marriage of LeProwse 

(1982), 198 Mont. 357, 646 P.2d 526, 529, 39 

St.Rep. 1053, 1056. Error occurs only when the 

proposed findings are relied upon to the exclusion 

of proper consideration of the facts and the failure to exercise independent judgment . In Re Marriage of Hunter (1982), 196 Mont. 235, 639 

P.2d 489, 495, 39 St.Rep. 59, 67. 

The values placed on certain marital property by the 

parties and their experts were widely divergent. During the 

hearing the judge actively participated in the process. He 

asked the witnesses numerous questions, seeking quantities 

and values for the assets and liabilities. The initial 

proposed findings were so far apart that the judge ordered 

the parties to propose compromises. The findings eventually 

adopted by the court for the most part represented averaqe 

values between the parties' initial proposals. We have 

reviewed the evidence carefully and conclude that the evidence would not support the valuations, as a whole, proposed 

by the mother. The father's proposals represented averaqe 

values. This Court has held that it is proper for a district 

court to value marital property within the range of evidence 

submitted. In re Marriage of Johnston (Mont. 1986), 726 P.2d 

322, 325, 43 St.Rep. 1808, 1812. Further, a district court 

has broad discretion in determining net worth. Johnston, 726 

P.2d at 325. We conclude that the evidence supports the 

findings . We also note that the court's findings and conclusions 

differed from the father's proposals in several significant 

aspects beneficial to the mother. The court ordered the 

father to pay maintenance of $300 per month for two years. 

The court also ordered the father to pay the mother for her 

share in the balance of marital property in a payment scheme 

different than the father had proposed. The father also had 
proposed to pay interest on outstanding equity payments; 

however, the court rejected that proposal. 

We hold that the District Court properly considered the 

evidence and exercised independent judgment. We affirm the 

findings and conclusions regarding property distribution. 

Affirmed. 

we concur: / 

- Justices