No. 81-345 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

IN RE THE MARRIAGE OF: 

CATHERINE COLLEEN WILP..IOT, 

Petitioner and Appellant, 

and 

HAROLD M. WILM.OT, 

Respondent and Respondent. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone 

Honorable William J. Speare, Judge presiding. 

Counsel of Record: 

For Appellant: 

Keefer, Roybal, Hanson, Stacey and Jarussi, Billinqs, 

Montana 

For Respondent: 

Harold M. Wilmot, Pro Se, Huntley, Montana 

Craig R. Buehler, Lewistown, Montana 

Submitted on briefs: March 4, 1982 

Decided: August 19, 1982 

.r 

Clerk 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

Catherine Colleen Wilmot (the mother) appeals from an 

order of the Yellowstone County District Court modifying 

custody. The parties' marriage was dissolved in Yellowstone 

County District Court. Pursuant to an agreement between the 

parties, custody of the four minor children was intitially 

awarded to the mother. The father, Harold M. Wilmot, later 

petitioned the trial court to modify custody. The trial 

court modified custody by awarding custody of three of the 

four minor children to the fatner. 

After an evidentiary hearing, the trial court made 

findings and conclusions and entered judgment in behalf of 

the father. The findings are conflicting and contradictory, 

leaving no basis for this Court to determine the merits of 

the issues presented for appeal. For that reason, we remand 

this case to the trial court and we direct the trial court 

to enter findings of fact that are determinative. In this 

opinion, we detail why the findings of fact are insufficient 

as presented. 

The trial court made conflicting findings based on 

evidence presented by the father and the mother. We cannot 

tell from the findings which evidence the trial court 

believed. Contradictory findings cannot form the basis for 

a reviewable order. 

For example, the trial court made a finding based on 

evidence presented by the father that "[tlhe children were 

inadequately provided with clothes and that the children's 

health was endangered by lack of cleanliness . . ." Another 

finding indicated that, " [t] he children's clothing was 

adequate and clean." Another finding stated, " [t] hat at 
times the children's dress has been inadequate for weather 

conditions . . ." We cannot determine the adequacy of findings of fact until we know what those findings are. Findings 

which restate conflicting evidence must also tell this Court 

how the trial court resolved that conflicting evidence. 

There were numerous and conflicting findings made 

regarding the mother's habits and activities. The trial 

court gave no clear indication of what it actually found 

with regard to these activities. Nor can we determine 

whether the trial court found those activities to be detrimental to the children. The essence of this custody modification is the best interests of the children and whether 

their environment with their mother seriously endangers 

their physical, mental, moral or emotional health. 

Three findings begin with the statement, "The father 

testified . . .", indicating that each of the three findings 

was no more that a restatement of evidence presented at 

trial. 

". . . evidence should not be included in 

your findings of fact and conclusions of law. 

There should be raw facts when the trial 

judge feels they will be helpful in showing 

the basis for his determination. There should 

be intermediate facts; there should be ultimate facts. There should be no evidence." 1 

San Diego Law Review 13, 33 (1964). 

Merely restating evidence as it was presented with no indication of the weight given that evidence does not make a 

finding of fact. 

Some of the evidence presented at the hearing came 

from a home evaluation report done by a court-appointed 

social worker. Findings referring to that report begin with 

the words, "The home evaluation report indicates . . ." or, 

"The report indicates . . ." We cannot tell what weight was 
given that report by the trial court. Again, findings must 

be stated as findings and not as a summary or restatement of 

the evidence. 

We have expressed disapproval of the wholesale adoption of proposed findings submitted by the parties. Tomaskie 

v. Tomaskie (1981), Mon t . , 625 P.2d 536, 38 St.Rep. 

416. Here, the findings were selected from both sets of 

proposed findings. Although the trial court's findings were 

not a wholesale adoption of the findings of the prevailing 

party, a careful analysis of the findings chosen would have 

indicated that they were inconsistent and provided no basis 

for review. 

In Jensen v. Jensen (1981), Plont . , 629 P.2d 

765, 38 St.Hep. 1109, we stated that: 

"Our ultimate test for the adequacy of 

findings of fact is whether they are sufficiently comprehensive and pertinent to the 

issues to provide a basis for decision, and 

whether they are supported by the evidence 

presented. " 

The findings presented by the trial court do not reveal the 

basic facts upon which the trial court relied. 

We remand this case and direct the trial court to 

enter findings of fact to resolve the conflicts in the 

evidence. 
We concur: 

Chief Justice