No. 86-590 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

IN RE THE MARRIAGE OF 

ROSEANNE BLOOM-HIGHAM, 

Petitioner and Respondent, 

THOMAS MICHAEL HIGHAM, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Carbon, 

Honorable G. Todd Baugh, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Roseanne Bloom-Higham, Pro Se. 

For Respondent: 

Thomas Micheal Higham, Pro Se. 

Submitted on Briefs: April 3, 1987 

Decided: June 17, 1987 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Appellant brings this appeal pro se from a preliminary 

decree of dissolution of the District Court of the Thirteenth 

Judicial District in and for Carbon County, Montana, denying 

him custody of his son. We remand. 

Respondent Roseanne Bloom-Higham filed for dissolution 

of marriage in November 1984. She and appellant, Thomas 

Higham, are parents of a boy, then age six, and a girl, then 

age four. Thomas had custody of a son from a previous 

marriage. Roseanne petitioned for sole custody of both 

children of her marriage to Thomas. Thomas resisted her 

motion for custody of their son. The District Court ordered 

the court's domestic relations department to make a custody 

investigation. Subsequent to the order, Thomas filed an 

amended answer stating he did not oppose Roseanne's demand 

for custody of both children, although he did not believe 

"such custody of the children is the best solution for them 

per se . . . [and he] is willing and much desires to care for 

the children in part or in whole, at anytime." The children 

were at that time spending equal time with both parents. 

A hearing on the dissolution was held May 8, 1985, at 

which Roseanne was represented by counsel and Thomas appeared 

pro se. The hearing was bifurcated, the dissolution was 

granted awarding custody of both children to Roseanne, with 

reasonable visitation granted Thomas. The parties and 

Roseanne's attorney were instructed to attempt to work out a 

property settlement and the amount of child support payments. 

A preliminary decree of dissolution was filed June 10, but 

Thomas did not receive a copy. 

Roseanne's counsel apparently notified Thomas by 

telephone in July that the court desired an "in-chambers" 

meeting the following day. Thomas attended the meeting and 
claims it was at that meeting he first learned that the 

preliminary decree of dissolution granted custody of both 

children to Roseanne. On advice of the District Judge, he 

immediately obtained counsel who moved the court to set aside 

the custody portion of the preliminary decree of dissolution. 

A hearing was held in August to set aside the custody 

portion of the preliminary decree and to set temporary child 

support. The court ordered Thomas to pay temporary child 

support of $100 per month per child to Roseanne. In February 

1986, the court denied Thomas' motion to set aside the 

custody decree. His motion to reconsider, filed pro se, was 

denied. An appeal to this Court filed pro se April 22, 1986, 

was dismissed as being premature, because the property 

settlement had not yet been agreed to and no final order had 

been entered. All issues were settled in September 1986. 

This appeal was filed pro se on the issue of custody. 

"In child custody matters the primary factor to be 

considered is the best interest of the child. Section 

40-4-212, MCA, Malcomb v. Malcomb (1982), Mont. 640 P.2d 450, 

39 St.Rep. 262." Meyer v. Meyer (Mont. 1982), 663 P.2d 328, 

330, 40 St.Rep. 753, 755. 

The relevant factors to be considered as set forth in 

5 40-4-212, MCA, include: 

(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, 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. 

While the District Court is not required to make 

specific findings on each of the five elements in the 

statute, the "essential and determining facts upon which the 

District Court rested its conclusion" must be expressed. 

[Citing cases.] In Re Marriage of Keating (Mont. 1984), 689 

P.2d 249, 251-252, 41 St.Rep. 1865, 1868. In the preliminary 

decree of dissolution in the instant case, the District Court 

found " [tlhat it is in the best interests of the minor 

children of the parties to be placed in the care, custody and. 

control of the petitioner, with reasonable visitation granted 

to the respondent." The District Court then concluded 

" [t] hat the care, custody and control of the minor children 

of the parties should be with the petitioner, with reasonable 

visitation to the respondent." The preliminary decree of 

dissolution lacks the "essential and determining facts" on 

which custody was based. 

When custody is contested, at the request of a parent 

the court may order an investigation and report concerning 

custodial arrangements for the child. Section 40-4-215, MCA. 

The statute also mandates the District Court to mail the 

report to counsel and any party not represented by counsel at 

least ten days prior to the hearing. Roseanne made such a 

request and the court ordered an investigation. There is no 

evidence in the record, however, that a report was received 

by the court, or that it was mailed to counsel, or that the 

court considered the report before issuing its preliminary 

decree. No testimony relative to the investigation was 

received at any hearing. 

Not only did the trial court fail to send 

copies of the report, but no hearing was 

held to permit testimony on the 

issues . . . If the trial court found it 

appropriate to order the custody 

investigation, it abused its discretion 
by not considering the report in the 

process of reaching its final custody 

decision. 

In Re Marriage of Ziegler (Mont. 1985), 696 P.2d 983, 986, 42 

St.Rep. 298, 300-301. It is clear the court in the case at 

bar similarly abused its discretion. 

We are reluctant to overturn the District Court in 

custody matters and will do so only when we find a clear 

abuse of discretion. Rule 52 (a) M.R.Civ.P. In this case we 

find such abuse. Therefore we vacate the order as to 

custody, and remand the case to the District Court for 

appropriate action. 

fpi&dwh ! 

Justic,