No. 86-175 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

IN RE THE MARRIAGE OF 

DAVID J. WARD, 

Petitioner and Appellant, 

and 

RUTH ANN WARD, 

Respondent and Respondent. 

APPEAL, FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Mark Bauer, Great Falls, Montana. 

For Respondent: 

John Iwen, Great Falls, Montana 

Submitted on Briefs: June 24, 1986 

Decided: October 9, 1986 

Filed: GI-: 2 - 1985 

Clerk 
Mr. Justi-ce John C. Sheehy delivered the Opinion of the 

Court. 

David J. Ward, the father, appeals from a November 8, 

1985 order issued by the District Court of the Eighth 

Judicial District, Cascade County, granting a fixed 

visitation schedule. We affirm. 

The issue raised on appeal is whether the District Court 

erred in granting the father approximately 75 days of 

visitation a yea.r under the terms of 40-4-224 (2), MCA 

(1985). 

The mother and father were divorced on March 14, 1980. 

In September, 1982, the District Court amended the 

dissolution decree to provide that the only child, a son, be 

placed in joint custody, giving the mother primary 

residential custody. Throughout this time, until June, 1985, 

both parents lived in Great Falls. In June, 1985, however, 

the mother indicated that she was planning on moving to 

Butte. 

Because the parties were unable to work out a mutually 

acceptable visitation schedule, appellant father filed a 

motion for fixed visitation with the District Court. After 

hearing the matter and reviewing proposed visitation 

schedules submitted by the parties, the District Court 

entered its order on visitation, dated November 8, 1985. 

This order gave the father visitation on every third weekend, 

alternating holidays, four weeks during the summer and 

freedom to visit the child whenever the father is in Butte, 

provided he gives the mother at least 24 hours notice. 
The appellant father filed a motion to amend this 

visitation order, on which the District Court did not act. 

This appeal resulted. 

Father contends on appeal that the District Court failed 

to follow the language of $ 40-4-224(2), MCA, which states: 

For the purposes of this section, "joint custody" 

means an order awarding custody of the minor child 

to both parents and providing that the physical 

custody and residency of the child shall be 

allotted between the parents in such a way as to 

assure the child frequent and continuing contact 

with both parents. The allotment of 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 primary consideration. 

The District Court order gave the father about 75 days 

of visitation out of a total of approximately 170 available 

(non-school) visitation days. Father's proposed plan would 

have awarded him an average of 119 days visitation a year. 

He requested alternating weekends and holidays as well as 

almost the entirety of his son's summer vacation. His plan, 

the father contends, allots visitation time as equally as 

possible. Father argues that under the recently adopted 

language of 5 40-4-224(2), MCA, the District Court must 

automatically provide equal amounts of the child's time with 

each of his parents. He also contends that if the District 

Court fails to do this, it should specifically set forth its 

reasons for deviating from the equal time "mandate." 

The District Court has no duty to make the findings 

which the father is demanding. The statute states: "The 

allotment of time between parties shall be equal as possible; 

however, each case shall be determined according to its own 

praticalities with the best interests of the child as the 

primary consideration." Section 40-4-224(2), MCA. To impose 

the father's interpretation of this statute would be an 
unreasonable burden that would further hamper the already 

beleaguered judges of the district courts in custody and 

visitation cases. Further, it must be noted that the statute 

requires that the equal time recommendation be balanced by 

the practicalities of providing for the best interests of the 

child. The best interests of the child are a "primary 

consideration." 

The standard of review in custody and visitation cases 

is as follows: 

This Court will not substitute its judgment for 

that of the trier of fact. We will consider only 

whether substantial credible evidence supports the 

findings and conclusions. Findings will not be 

overturned unless there is a clear preponderance of 

evidence against them, recognizing that evidence 

may be weak or conflicting, yet still support the 

findings . Jensen v. Jensen (Mont. 19811, 629 P.2d 765, 768, 38 St.Rep. 

927, 930. Further, the appellant must overcome the 

presumption that the District Court's order is correct. 

Jensen v. Jensen (Mont. 1979), 597 P.2d 733, 36 St.Rep. 1259. 

Finally, a reviewing court is never justified in substituting 

its discretion for that of the trial court. 

In determining whether the trial court abused its 

discretion, the question is not whether the 

reviewing court agrees with the trial court, but, 

rather, did the trial court in the exercise of 

discretion act arbitrarily without the employment 

of conscientious judgment or exceed the bounds of 

reason, in view of all the circumstances, ignoring 

recognized principles resulting in substantial 

injustice. 

Porter v. Porter (1970), 155 Mont. 451, 457, 473 P.2d 538, 

The instant case is clearly a matter where the trial 

court is in the best position to observe the witnesses and 

acquire a feel for their credibility and character. The 

trial court is also best able to appreciate their ability to 
cooperate within the requirements set by the visitation order 

and to determine a course of visitation that is in the 

child's best interest. The District Court order is neither 

arbitrary nor beyond the bounds of reason. Father charges 

that the District Court did nothing more than look at the 

parties1 written custody proposals and draw middle ground 

between them. However, the court's order is in keeping with 

the court's perception of what is in the best interest of the 

child and the statutory requirement that "each case shall be 

determined according to its own practicalities," S 

40-4-224 (2) , MCA. A very real practicality was recognizing 

that the allotment of time need only be as equal as it is 

possible to make it. Here, the District Court recognized 

that it was neither practical, possible, nor in the best 

interests of the child to follow the father's proposed 

visitation schedule. 

Affirmed. 

Justice 

8. ,%jL