No. 93-028 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

IN RE THE MARRIAGE OF 

JULIANNE ALLEN, 

Petitioner and Appellant, 

and 

PHILIP J. ALLEN, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Michael H. Keedy, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Lane K. Bennett, Attorney at Law, Kalispell, 

Montana 

For Respondent: 

Gregory E. Paskell, Attorney at Law, Kalispell, 

Montana 

ETrl j, "i 

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PS .St Submitted on Briefs: October 28, 1993 

JfiY 2 0 1994 

*, Decided: January 20, 1994 

Filed: e. $*... - : 

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

This is an appeal from an order of the Eleventh Judicial 

District Court, Flathead County, which modified the parties' joint 

custody arrangement by naming respondent, Phillip J. Allen 

(Phillip), as the primary residential parent of Kyle Nathan Allen 

(Kyle). Appellant Julianne Allen (Juli) appeals. We affirm. 

While Juli presents several issues on appeal, two issues are 

dispositive: 

1. Did the District Court err by modifying the primary 

physical custody of Kyle? 

2. Did the District Court exhibit an unfair bias or prejudice 

toward Juli: a) through the Judgers questions and comments during 

the hearings about Julils lifestyle and behavior; or b) through 

Finding of Fact No. 4? 

The parties were divorced January 5, 1989, and Juli was 

awarded sole custody of the partiesr minor child, Kyle. Phillip 

was granted supervised visitation rights. In October 1991, the 

parties stipulated to modify the custody arrangement. The court 

approved the stipulation, which provided that the parties were to 

have joint custody of Kyle with Juli as the primary residential 

parent and Phillip with unrestricted visitation rights. 

On August 11, 1992, Phillip petitioned the court to modify 

the custody order by naming him the primary residential parent. He 

alleged that Julir s then-boyfriend, Mark Hindahl (Mark) , was 

physically abusive and threatening to both Juli and Kyle. He 
further alleged that, Juli's tendency to move out of the house 

whenever she fought with Mark created an unstable environment which 

severely endangered Kyle's emotional development. Phillip argued 

that he and his fiance, Donetta Moor (Donetta), could provide the 

best environment to meet Kyle's emotional needs. Additionally, 

since Juli was planning to leave Montana to live with Mark in 

Arizona, Phillip requested that the court issue a temporary 

restraining order (TRO) prohibiting either party from removing Kyle 

from Flathead County. 

Following a show cause hearing the court issued a TRO 

prohibiting the parties from removing Kyle from Flathead County. 

The modification hearing was held on September 25, 1992, and the 

court issued its custody order on October 14, 1992. The District 

Court granted Phillip's request and named him as the primary 

residential custodian of Kyle, while Juli was to have reasonable 

visitation rights. Juli appeals. 

I 

Did the District Court err by modifying the primary physical 

custody of Kyle? 

When a parent seeks to modify a child's primary physical 

custody without terminating the joint custody arrangement, the 

district court is compelled to make a "best interestu 

determination. Section 40-4-224(2) ; and In re Marriage of Ferguson 

(1990), 246 Mont. 344, 347, 805 P.2d 1334, 1336. When determining 

a child's best interest: 

[the court must] consider all relevant factors, including 

but not limited to: 
(a) the wishes of the child's parent or parents as to his 

custody; 

(b) the wishes of the child as to his custodian; 

(c) 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 ; 

(d) the child's adjustment to his home, school, and 

community; 

(e) the mental and physical health of all individuals 

involved ; 

(f) physical abuse or threat of physical abuse by one 

parent against the other parent or the child; and 

(g) chemical dependency, as defined in 53-24-103, or 

chemical abuse on the part of either parent. 

Section 40-4-212, MCA. 

Juli argues that the District Court failed to make findings of 

fact on the specific factors in 5 40-4-212, MCA, when it determined 

Kyle's "best interest." She also argues that she presented 

overwhelming evidence in support of her position and that evidence 

should have prevailed. The record and the current status of the 

law negate her arguments. 

It is well established that the district court does not need 

to make specific findings on each individual factor in 5 40-4-212, 

MCA. In re Marriage of Merriman (1991), 247 Mont. 491, 493, 807 

P.2d 1351, 1353. Moreover, when the parties present conflicting 

evidence, we "will not overturn the District Court's findings 

unless they are clearly erroneous." Merriman, 807 P. 2d at 1353. 

Here, the parties presented conflicting evidence about which 

environment would better suit Kyle's best interest. The court 

admitted its decision was difficult: "Kyle will likely thrive in 

the custody of either parent . . . . 11 

The court's detailed findings of fact support its decision to 
Ir .. 

name Phillip as Kyle's primary residential custodian. 

Specifically, the court found that Juli's relationship with Mark 

provided an environment which was unpredictable and filled with 

tension. Moreover, in an aborted interview with the court, Kyle 

appeared totally undisciplined and unresponsive while in Juli's 

care. On the other hand, the court determined that Phillip and 

Donetta provided a sound and stable environment in which to raise 

Kyle. 

After a careful review of the record, we conclude that the 

District Court's findings are not clearly erroneous. We hold that 

the District Court correctly determined that it was in Kyle's best 

interest to have Phillip as his primary residential parent. 

I1 

Did the District Court exhibit an unfair bias or prejudice 

toward Juli: a) through the Judge's questions and comments during 

the hearings about Juli' s lifestyle and behavior; or b) through 

Finding of Fact No. 4? 

Juli argues that the Judge's questions and comments during the 

hearings about her lifestyle and behavior and Finding of Fact No. 

4 imply that the court was unfairly biased or prejudiced against 

her. She argues that this Court should reverse and remand, and 

allow a different judge to hear the case. 

The court's questioning of Juli at the hearings, was not, as 

she suggests, an attempt to trap her. Rather, Juli confused the 

court by suggesting that Kyle was attending kindergarten in 

Arizona. The District Court questioned Juli about Kyle's 
whereabouts. The court was attempting to determine whether Kyle 

was attending kindergarten in Arizona in violation of the TRO or if 

he remained in Flathead County. The court's questioning does not 

imply prejudice against Juli. 

Juli further maintains the court's comment, that she led a 

llvagabondll lifestyle, implies prejudice against her. Although 

undiplomatic, the court's comment accurately depicts Julils 

behavior: packing up and moving out of Mark's household after each 

fight with Mark. The comment does not indicate that the court was 

biased against her. 

Finally, we determine that the court's statement in Finding of 

Fact No. 4 that Juli Itbecame pregnant by another man, [but] she 

chose not to carry her fetus to term[,ltl had little or no impact on 

the court's decision. The court determined that Juli had Kyle's 

best interest at heart and would make his life productive, 

challenging and rewarding. The court then concluded that: 

[wlhile Kyle will likely thrive in the custody of either 

parent, he does seem to be something of an emotional 

infant in [Julils] care. [Juli] has only the most 

fleeting and ineffectual control over Kyle's behavior, 

and as she adjusts to a new life with her current 

husband[, Mark,] and continues in counseling with him, 

Kyle is likely to receive less guidance and stability 

than would be ideal. On the other hand, [Phillip] and 

[Donetta] offer Kyle an appropriate measure of discipline 

and affection. Despite [Phillip's] past personal 

problems, his relationship with [Donetta] appears to be 

sound, stable and enduring. For Kyle, the atmosphere in . . . [Phillip's] family home should offer more of the 

same; all, of course, to his advantage as a young and 

impressionable child. 

Clearly, the court was not biased against Juli. The court 

simply determined it was in Kyle's best interest that he live with 
his father in a stable family environment. We hold that the 

District Court's questions, comments and Finding of Fact No. 4 do 

not imply that the court was biased or prejudiced against Juli. 

Affirmed. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of the Supreme Court and by a report of its result 

to Montana Law Week, State Reporter and West Publishing Company. 

We concur: