No. 86-210 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

IN RE THE MARRIAGE OF 

MARILYN ;TOY COLE, 

Petitioner and Respondent, 

and 

JAMES W. COLE, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Twelfth Judicial District, 

In and for the County of Hill, 

The Honorable Leonard Langen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Law Offices of Frank Altman; Ivan C. Evilsizer, 

Havre, Montana 

For Respondent: 

Bosch, Kuhr, Dugdale, Warner, Martin & Kaze; 

Mary Van Ruskirk, Havre, Montana 

Filed: 

Submitted on Briefs: Aug. 14, 1986 

Decided: December 9, 1986 

DEC 9 - 1986 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from a dissolution and custody 

proceeding arising from the Twelfth Judicial District in and 

for Hill County, Montana. Husband appeals both from the 

custody and dissolution determinations, as well as collateral 

issues. We affirm in full. 

James and Marilyn Cole were married in March of 1974. 

During their twelve year marriage, they bore two children, 

Christen, age 7 at the time of this appeal, and Robby, age 5. 

Both Christen and Robby are gifted children; Robby, however, 

is diagnosed as a Down's Syndrome child and continues to 

manifest a learning and physical disability. 

Because of Robby's special circumstances, considerable 

testimony was presented at trial concerning the custody 

arrangement which would best suit Robby's needs. Robby's 

teachers, therapist and trainer all testified as to the scope 

of responsibilities that must be addressed by a custodial 

parent of a Down's child. In addition, the court received 

the recommendation of two court appointed investigators, 

Susann Fowler and Dr. Robert Stehman. 

In its decree of dissolution, the court awarded the 

parents joint custody of their children; Wife is to be the 

custodial parent for nine months, twenty days -- roughly 

equivalent to the school year -- and Husband is to be the 

custodial parent for two months, ten days during the summer. 

As to the distribution of the marital estate, the court first 

determined the value of all the property therein and 

subtracted the liabilities. Among the liabilities listed by 

the court were each party's attorney's fees and costs. The 

court then awarded Husband the estate, but ordered him to pay 
the equivalent of one-half the net to the Wife. Finally, the 

court refused to place a travel restriction upon the Wife 

during that time in which she is the custodial parent. Wife 

has expressed a desire to move to Florida and Husband had 

sought a court order restricting her from moving outside the 

state of Montana with the children. Husband now appeals. 

Husband first contests the District Court's custody 

determination. He presents three arguments. 

Husband's first argument is that the District Court 

failed to give proper consideration to the statutorily 

required factors listed in § 40-4-212, MCA, and those 

additional factors recently articulated by this Court in In 

Re the Custody and Support of B.T.S. (Mont. 1986), 712 ~.2d 

Section 40-4-212, MCA, requires that a court determine 

custody in accordance with the child's best interests and 

that, in so doing, it 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. 
In B.T.S., supra, this Court further suggested three 

related criteria worthy of a court's consideration in a joint 

custody determination. First, in conjunction with 

S 40-4-212 (I), a court should consider the parents' ability 

to cooperate in their parental roles. B .T. S. , 712 P. 2d at 

1301. Second, in conjunction with S 40-4-212(3), a court 

should consider the child's relationship with both parents. 

B.T.S., 712 P.2d at 1301. And third, a court should consider 

the physical proximity of the parents' residence. B.T.S., 

712 P.2d at 1301-02. 

Contrary to the claims of the Husband, we find that the 

District Court's findings amply demonstrate that the court 

properly considered the required factors. First, the court 

made a specific finding as to the wishes of the parents and 

their conflicting custody requests. Second, as to the wishes 

of the children, Dr. Stehman testified that Christen wanted 

to live with her mother and the court followed his 

recommendation; due to Robby's disability his wishes were not 

determinable. Third, as to the children's relationship with 

their family and significant others, the court found that 

both children appeared to enjoy a particularly strong 

relationship with their mother and that she has always been 

uniquely involved with Robby's treatment. The court further 

found that the two children enjoy a close relationship with 

one another and noted that professional testimony recommended 

they remain together. 

As to the fourth factor, the child's adjustment to his 

environment, the court's findings summarized evidence of the 

mother's extensive role in fostering both children's 

development. The court specifically noted the mother's 

comprehensive involvement in Robby's special care. Fifth, 
the court noted that the special needs of Robby required that 

he have continuous and consistent treatment, that his school 

year not be interrupted by change of residence and that the 

children not be separated. And sixth, the court noted that 

the mother was contemplating a move to Florida. 

In short, we find that the District Court considered 

the required factors and made specific findings regarding the 

best interests of the children in its custody decision. We 

do not require a court's findings to be in any particular 

form so long as there is substantial, credible evidence to 

support the court ' s judgment on the merits. In Re the 

Marriage of Burleigh (1982), 200 Mont. 1, 6, 650 P.2d 753, 

756. We uphold the District Court's findings. 

B 

Husband's second argument is that the District Court 

erred by awarding him actual physical custody for only two 

months, ten days. He essentially bases his argument on 

language within S; 40-4-224 (2) , MCA, which states that the 

physical custody time allotment between parents shall be as 

equal as possible. Husband accordingly argues that he is 

therefore entitled to physical custody for at least six 

months. 

We disagree. Section 40-4-224 (2), MCA, states in 

relevant part: 

The allotment of [physical custody] time 

between parties shall be as equal as 

possible; however, each case shall be 

determined according to its own practicalities with the best interests of the 

child as the ~rimarv 

& consideration. 

(~mphasis added. 
Thus, depending upon the circumstances of the case, 

equal physical custody will not be awarded if such is not in 

the best interests of the children. 

In this case, the District Court expressly found that 

because of the special needs of Robby, it would clearly be in 

his best interest that his physical custody for the school 

year not be interrupted. The court further found that it 

would clearly be in Robby's best interest that his physical 

custody for the school year be with his mother and finally, 

that it would be in the best interests of both Robby and 

Christen that the two children not be separated. The court 

accordingly awarded Wife physical custody of both children 

for the school term. 

The decision is amply supported by the evidence. 

Testimony from the children's teachers, counselors, service 

providers to Robby, the family doctor and the two court 

appointed investigators on custody all recommended to the 

court that the Wife continue as the primary custodial parent. 

Further, the school counselor, Robby's Child and Family 

Service counselor, Robby's Head Start teacher, and Robby's 

speech therapist, all testified that it would be better for 

Robby to maintain one residence during the school year. 

Findings and conclusions of a district court as to the 

best interests of a child are presumptively correct and will 

not be overturned unless there is a clear preponderance of 

the evidence against them. B.T.S., 712 P.2d at 1300. We 

will consider only whether substantial credible evidence 

supports the findings and conclusions. B.T.S., 712 P.2d at 

1300. In this case, there exists substantial credible 

evidence supporting the District Court's determination that 

the best interests of both children would be served by 
remaining with their mother for the school term. We uphold 

this determination. 

C 

Third, Husband challenges the District Court's refusal 

to issue a restriction on travel upon the Wife during that 

time in which she has physical custody of the children. As 

noted, Wife has expressed her desire to relocate in Tampa, 

Florida. Husband argues that if she is allowed to take 

Christen and Robby with her, he will be effectively removed 

from his children for all but the two month, ten day physical 

custody period to which he is entitled. 

Initially, we again note that the findings and 

conclusions of a district court as to the best interests of a 

child are presumptively correct and will not be overturned 

unless there is a clear preponderance of the evidence against 

them. B.T.S., 712 P.2d at 1300. 

In this action, the District Court evidently did not 

believe that a travel restriction was in the children's best 

interests. It received testimony from the Wife describing 

the advanced employment opportunities available in the Tampa 

area as well as testimony from one of Robby's counselors that 

Tampa is likely to provide a more complete line of services 

to handicapped children. We find that the District Court's 

refusal was not an abuse of discretion. 

Moreover, we note that requests for impositions of 

travel restrictions upon custodial parents force courts to 

conduct a delicate balancing. On the one side, courts must 

consider the best interests of the child -- that statutorily 

required benchmark of all custodial determinations. And it 

is by now little argued that a child's interests are best 
served by consistent and continuing contact with both natural 

parents. This state has explicitly adopted this goal as 

public policy. Section 40-4-222, MCA. 

As a counterweight, courts must also consider the 

custodial parent's fundamental right to travel--at least 

interstate. See Shapiro v. Thompson (1969), 394 U.S. 618, 89 

S.Ct. 1322, 22 L.Ed.2d 600. Some states have eased this 

difficult burden of the courts by enacting "anti-removal" 

legislation, which, to an extent, statutorily dictates when a 

custodial parent may remove his or her children from the 

state. See Mass.Gen.Laws Ann. ch. 208, S 30 (West 1981); 

I11.Rev.Stat. ch. 40, § 609 (1977) ; New Jersey Stat.Ann. 

9:2-2. 

Other courts have dismissed the custodial parent's 

right to travel, holding that a travel restriction places no 

burden on the parent's right to travel; it is the children 

who must remain in the state. See Clark v. Atkins (Ind. 

1986), 489 N.E.2d 90. We find this conclusion unpersuasive. 

The custodial parent who bears the burdens and 

responsibilities of raising the child is entitled, to the 

greatest possible extent, to the same freedom to seek a 

better life for herself or himself and the children as 

enjoyed by the noncustodial parent. See Cooper v. Cooper 

(N.J. 1984), 491 A.2d 606, 613. 

We agree, however, that the custodial parent's freedom 

is qualified by the special obligations of custody, the 

state's interest in protecting the best interests of the 

1 For an excellent discussion of this point, see Cooper 

v. Cooper (N.J. 1984), 491 A.2d 606, 616 (Schreiber, 

J. , concurring) . 
child and the competing interests of the noncustodial parent. 

In short, it is the court's task to attempt to reconcile the 

interests of both parents with the best interests of the 

child. Cooper, 491 A.2d at 613. 

As a fundamental right, the right to travel interstate 

can only be restricted in support of a compelling state 

interest. See, Shapiro, 394 U.S. at 634. We believe that 

furtherance of the best interests of a child, by assuring the 

maximum opportunities for the love, guidance and support of 

both natural parents, may constitute a compelling state 

interest worthy of reasonable interference with the right to 

travel interstate. Ziegler v. Ziegler (Idaho 1984), 691 P.2d 

773. We caution, however, that any interference with this 

fundamental right must be made cautiously, and may only be 

made in furtherance of the best interests of the child. To 

that end, we require the parent requesting the travel 

restriction to provide sufficient proof that a restriction 

is, in fact, in the best interests of the child. 

I1 

Husband further argues that the District Court erred by 

failing to disqualify himself after participating in an 

unsuccessful settlement conference. On October 25, 1985, the 

court held a pre-trial conference in which possible 

settlement terms were evidently discussed. The parties 

failed to reach a settlement and the court ultimately heard 

the case at trial. Neither party moved the judge to 

disqualify himself. 

Husband now argues on appeal that from the pre-trial 

conference the trial judge formed certain biases about the 
case and acquired a personal dislike for the Husband which 

the judge carried into trial. Under the circumstances, 

Husband concludes, the judge should have automatically 

disqualified himself when the conference ended without 

settlement. 

We disagree. This Court very recently expressed its 

concern about the participation in pre-trial settlement 

negotiations of trial judges who are to be triers of fact. 

In Shields v. Thunem (Mont. 1986), 716 P.2d 217, 219, 43 

St.Rep. 518, 521, we held: 

[Wlhere a judge is to be the trier of 

fact, and he participates in pre-trial 

settlement negotiations which 

subsequently fail, he should, upon 

request, disqualify himself from sitting 

as the trial judge. (Emphasis added.) 

Shields is clear that before this Court will find a 

district court in error for failure to remove itself in such 

a situation, a request for disqualification must be made. We 

see no reason to alter that rule in this case, especially in 

the absence of a record of the pre-trial conference. If the 

actions of the District Court judge were truly as egregious 

as Husband now claims, his obvious remedy would have been to 

move to have the judge disqualify himself. It is no defense 

that Husband was excused from requesting disqualification 

since the Shields decision came down after the trial in this 

case. We find no error in this issue. 

Husband next challenges the District Court's grant of 

Wife ' s motions in limine, excluding certain evidence from 

trial. These motions were in response to the Husband's 

attempt to introduce as evidence Wife's inability to balance 
her checkbook and an incident while Wife was employed by the 

K-Mart Corporation in 1981 in which she was accused of theft. 

The District Court granted Wife's motions on the grounds that 

this evidence was not relevant to the custody determinat.ion. 

See Rule 402, M.R.Evid. 

In determining the relevancy of the evidence, a trial 

court is not guided by any fixed rules. Rather, the nature 

of the evidence and the circumstances of the particular case 

must control. The trial court's determination of relevancy 

is subject to review only in the case of manifest abuse. 

Preston v. McDonnell (Mont. 1983), 659 P.2d 276, 277, 40 

St.Rep. 297, 299. 

Here, the District Court did not abuse its discretion. 

Case law in this state has established a line of precedent 

moving away from the policy of admitting evidence of 

misconduct which did not effect the relationship of a 

custodian with the child. Solie v. Solie (1977), 172 Mont. 

132, 136-37, 561 P.2d 443, 446; Foss v. Leifer (1976), 170 

Mont. 97, 102-03, 550 P.2d 1309, 1312. We hold the District 

Court did not err by refusing admission of Wife's alleqec? 

theft and accounting difficulties. 

IV 

Next, Husband contests the District Court's award of 

attorney's fees to K-Mart. In an effort to investigate more 

fully the circumstances surrounding Wife's alleged theft, 

Husband had a subpoena duces tecum served upon K-Mart 

commanding that its personnel manager appear for testimony 

with all relevant records. Wife, in addition to filing her 

motion in limine seeking to exclude this evidence, also sent 

a letter to K-Mart stating that production of any documents 
or testimony without a court order might well constitute a 

violation of Wife's right to privacy or a breach of the 

employer's implied duty of good faith and fair dealing. 

K-Mart ultimately filed with the District Court, 

pursuant to Rule 26 (c) , M.R.Civ.P., a motion for protective 

order, seeking guidance from the court as to Husband's 

requested discovery. During a telephonic conference held on 

January 14, 1986, the parties' attorneys stipulated that 

K-Mart's attorney could orally summarize the information he 

obtained in an interview with the proposed deponent. After 

hearing the summary, the court concluded that the issue was 

not relevant, granted Wife's motion in limine, and refused to 

allow Husband to make further offer of proof on this issue. 

Subsequently, on January 31, 1986, the District Court, 

pursuant to Rule 37 (a) (4) , M. R.Civ. P. , granted K-Mart ' s 

motion for attorney' s fees. 

Rule 37(a) (4), M.R.Civ.P., provides that: 

If the motion is granted, the court shall . . . require the party . . . whose 

conduct necessitated the motion . . . to 

pay to the moving party the reasonable 

expenses incurred in obtaining the order, 

including attorney's fees . . . In this case, the District Court never actually granted 

K-Mart's motion for protective order. As noted, the court 

disposed of this line of discovery when it granted Wife's 

motion in limine. Nonetheless, the court by granting the 

Wife's motion in limine in effect granted K-Mart's motion for 

a protective order. K-Mart is therefore entitled to its 

attorney's fees under Rule 37 (a) (4) , M. R.Civ. P. 
Finally, Husband contests the District Court's award of 

attorney's fees and costs to Wife. The District Court found 

that Wife's reasonable attorney's fees amounted to $10,880 

and Husband's, $4,200. The court further found that Wife was 

without means to pal7 for her attorney's fees, so it listed 

both Husband's and Wife's attorney's fees as liabilities to 

be paid out of the marital estate. The court then subtracted 

these and all other liabilities from the marital estate to 

find a net marital estate. Finally, the court awarded 

Husband the marital estate, but required him to pay all 

liabilities and to pay the Wife one-half the net. 

The effect of the court's apportionment of the marital 

assets and liabilities was to have the Husband pay one-half 

of Wife's attorney's fees and vice versa. Because each party 

is to receive one-half the net marital estate, each liability 

subtracted from the gross marital estate costs each party 

one-half the amount of each liability. 

The disposition of a marital estate--in which the 

parties' attorney's fees were included--is largely within the 

discretion of the District Court. See In re the Marriage of 

Morse (Mont. 1985), 708 P.2d 559, 560, 42 St.Rep. 1235, 1237. 

This Court will not disturb the decision of the District 

Court absent a clear abuse of discretion. We do not find 

that the District Court committed clear abuse of discretion 

in its disposition of the marital estate. 

This, however, does not end our discussion. Husband 

argues that even if the parties' attorney's fees were 

properly included within the marital estate, Wife's claim for 

attorney's fees were not proven to be necessary or 

reasonable. Reading Wife's testimony in whole, we are not 

persuaded that the District Court erred in its finding that 
Wife had inadequate means of paying her attorney's fees. And 

as for the reasonableness of the amount, we note that Husband 

chose neither to object nor to cross examine either Wife as 

she testified on this matter at trial or Wife's counsel 

during a post-trial conference during which this issue was 

discussed and no record was made thereof. Where Husband was 

a participant in the conference and did not object and the 

record is not perfected, we will not hold a District Court in 

error. In re the Marriage of Purkett (Mont. 1986) , 721 P. 2d 

349, 351, 43 St.Rep. 1217, 1219. 

Finally, the District Court ordered Husband to pay 

Wife's court costs of $475.64 and the fee of Wife's 

accountant totalling $75. We find no error in the award of 

the accountant's fees; Mr. Koeoke testified as to his 

statement for professional services. Again the record has 

not been perfected as to the court costs. For the same 

reasons that we uphold the court's grant of attorney's fees, 

we uphold the award of costs. 

Affirmed. 

We concur: A 

,y 

, xJ