NO. 92-117 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

IN RE THE MARRIAGE OF 

RICHARD J. SEWELL, 

Petitioner and Appellant, 

and 

SUSAN R. SEWELL, 

nka SUSAN SAW, 

Respondent and Cross-Appellant. 

APPEAL FROM: District Court of the Third Judicial District, 

In and for the County of Powell, 

The Honorable James E. Purcell, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

R. J. "Jimw Sewell, Jr., Smith Law Firm, 

Helena, Montana 

For Respondent: 

Barbara E. Bell, Attorney at Law, 

Great Falls, Montana 

STATE OF P&0l;dmr"&PdA 

Submitted on Briefs: December 17, 1992 

Decided: January 12, 1993 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

Appellant Richard J. Sewell appeals from the decision of the 

District Court for the Third Judicial District, Powell County. 

Following a trial in this matter the District Court awarded the 

parties joint custody of their minor child, with primary physical 

residential custody to respondent, Susan R. Sewell, n/k/a Susan 

Salak. The District Court also determined child support and 

medical reimbursement issues which are contested on appeal. We 

affirm. 

Richard raises two issues on appeal: 

1. Was it an abuse of discretion for the District Court to 

receive into evidence certain testimonial and documentary evidence 

relating to child support and medical reimbursement issues? 

2. Were the District Court's findings of fact, conclusions 

of law, and order concerningthe custody determination sufficiently 

comprehensive and based upon substantial evidence? 

Susan and Richard were married on September 11, 1976, in Great 

Falls. During the course of their marriage, the parties had one 

child, Kristopher Shane Sewell, who was born in February 1984. On 

October 12, 1984, a decree of dissolution was entered in Lewis and 

Clark County. Prior to their dissolution, the parties had resided 

in Helena. The petition for dissolution requested that the 

District Court approve and incorporate into the decree of 

dissolution a property settlement, custody, and support agreement 

previously entered into by the parties. The District Court found 

2 
the partiesf agreement to be fair, reasonable, and not 

unconscionable, and incorporated the agreement in the decree of 

dissolution. 

Since the partiesf dissolution of marriage in October 1984, 

there have been numerous interim modifications of the custody and 

support agreement. The District Court found that throughout this 

time period the parties have had joint custody of their minor 

child, with the child's primary residence varying from time to 

time. The District Court also found that no permanent or final 

custody or support agreement had ever been executed by the parties. 

In March 1987, Richard filed a petition to have permanent 

custody determined by the District Court. Susan filed a 

counterpetition seeking similar relief. Subsequent to March 1987, 

several more interim agreements were entered into by the parties. 

This matter finally came to trial in Septenber 1991. 

Richard now resides in Deer Lodge where he is employed by 

Cottonwood Vending, a family-owned business which owns and leases 

gaming and vending machines. Richard and his new wife have a son 

who was two years old at the time of trial. Susan now lives 

outside of Chicago, Illinois. She has also remarried and has an 

infant daughter. Susan is employed as an area director/manager 

with Kindercare, a corporation which operates daycare centers. 

At trial both parties agreed that they should continue to have 

joint custody of their minor child, but disagreed as to which party 

should have primary physical residential custody during the school 

3 
year. Child support and reimbursement for medical expenses 

incurred were also issues at trial. The District Court entered its 

lengthy findings of fact, conclusions of law, and order in November 

1991. The District Court found both parties to be fit parents and 

that there was no indication that either parent lacked adequate 

caretaking skills. The District Court awarded the parties joint 

custody, with primary physical residential custody to Susan. The 

minor child was to reside with Susan during the school year and 

with Richard during the summer. The District Court ordered Richard 

to pay child support in the amount of $162 per month. The District 

Court also determined that Richard owed Susan $1725.20. This 

amount was based primarily on medical expenses paid by Susan for 

which Richard was obligated, under the interim agreements, to 

reimburse her. Finally, the District Court ordered that each party 

pay their own attorney fees and costs. This appeal followed. 

I 

Was it an abuse of discretion for the District Court to 

receive into evidence certain testimonial and documentary evidence 

relating to child support and medical reimbursement issues? 

Richard alleges that substantially all of Susan's evidence 

relating to child support and reimbursement for paid medical 

expenses should have been excluded by the District Court because of 

Susan's alleged failure to comply with discovery. The control of 

discovery activities and rulings on the admissibility of evidence 

are within the discretion of the district court. Bache v. Gilden 

4 
(1992), 252 Mont. 178, 827 P.2d 817. Absent an abuse of 

discretion, this Court will not reverse a district court's ruling 

on the admissibility of evidence. Cooper v. Rosston (1988), 232 

Mont. 186, 756 P.2d 1125. However, even an abuse of discretion by 

a district court in allowing into evidence that which properly 

should have been excluded is not always grounds for reversal. The 

abuse of discretion will not warrant a reversal, unless it is so 

significant as to materially affect the substantial rights of the 

complaining party. Rule 61, M.R.Civ.P.; Zeke's ~istributing Co. v. 

Brown-Forman Corp. (1989), 239 Mont. 272, 779 P.2d 908. 

Specifically, Richard alleges that Susan failed to produce her 

tax returns, bank statements, copies of medical records/statements 

and records of past child support payments. Richard filed a motion 

to compel discovery pursuant to Rule 37, M.R.C~V.P., and alleges 

that while a written order was not entered by the District Court, 

Susan was directed orally by the District Court during a telephone 

conference call to provide the requested discovery. Richard made 

a motion in limine prior to trial requesting that the District 

Court exclude all evidence Susan might attempt to offer which had 

not been furnished in response to discovery requests. Richard 

asserts that the District Court's award of $1725.20 to Susan was 

based upon inadmissible evidence and should be reversed. Richard 

does not appear to contest the accuracy of the District Court's 

determination of child support pursuant to the Child Support 
Guidelines, but argues that the District Court's determination was 

based upon inadmissable evidence. 

Susan contends she did comply with Richard's discovery 

requests. Susan points out that she submitted financial 

information on the form requested by the District Court. Susan 

also indicates that while she did not produce her tax returns, she 

did produce her W-2 forms. At trial, the District Court clearly 

indicated that production of the W-2 forms was sufficient. At the 

time Susan filed her motion for reimbursement of paid medical 

bills, Susan alleges that she listed the bills, to whom they were 

owed, and the amounts she was seeking. Susan contends that 

throughout the time period in question the insurance was in 

Richard's name and that he was receiving most of the statements 

from the insurer. Prior to trial, Susan alleges that she produced 

the bills and statements that were in her possession. Susan 

concedes that she did not produce copies of past bank statements, 

but argues that if she had been able to find these documents she 

would have been able to prove her entitlement to additional 

reimbursements. Finally, Susan notes that the District Court 

advised Richard, after he initially objected to the introduction of 

the evidence, that he would be allowed sufficient time to review 

the documents so that he could adequately prepare to conduct 

cross-examination. 

While the production of some of these documents by Susan did 

not occur until shortly before trial, it does not appear that Susan 

6 
failed to comply with discovery requests. Additionally, it appears 

that Richard was either in possession, or should have been in 

possession, of the many of the documents he requested. The 

District Court did not abuse its discretion in allowing in this 

evidence. 

I1 

Were the District Court's findings of fact, conclusions of 

law, and order concerning the custody determination sufficiently 

comprehensive and based upon substantial evidence? 

The District Court awarded the parties joint custody of their 

minor child, with the child to reside with Susan during the school 

year and with Richard during the summer. Richard contends the 

District Court erred in awarding the parties joint custody of the 

minor child with primary physical residential custody with Susan 

and liberal visitation rights to Richard. Richard had requested 

joint custody with primary residency with him. On appeal, Richard 

contends that the District Court's findings were insufficiently 

comprehensive and that the findings and conclusions were not based 

on substantial evidence. 

Section 40-4-212, MCA, requires custody determinations be made 

in accordance with the best interests of the child as determined by 

the District Court after considering the following criteria: 

(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. 

This list is not all inclusive. This Court has suggested that the 

parents' ability to cooperate in their parental roles and the 

geographical proximity of the parents' residences are at least two 

additional factors which the district court should consider. In re 

Custody and Support of B.T.S. (1986), 219 Mont. 391, 712 P.2d 1298. 

When reviewing custody issues, this Court must first determine 

if the factors set out in B 40-4-212, MCA, were considered by the 

district court. In re Marriage of Jacobson (1987), 228 Mont. 458, 

743 P.2d 1025. While it is encouraged, the trial court need not 

make specific findings on each of the factors. However, failure to 

at least consider all of the statutorily mandated factors is error. 

In re Marriage of Speer (1982), 201 Mont. 418, 654 P.2d 1001. The 

custody determination must be based on substantial evidence 

relating to the statutory factors and must be set forth explicitly 

in the findings. In re Marriage of J.J.C. and P.R.C. (1987), 227 

Mont. 264, 739 P.2d 465. The findings should, at a minimum, set 
forth the llessential and determining facts upon which the District 

Court rested its conclusion on the custody issue.1f In re Marriage 

of Cameron (1982), 197 Mont. 226, 231, 641 P.2d 1057, 1060. 

The District Court received considerable evidence regarding 

the child's health and situation in school. Richard argues that 

the child, who at time suffers from a severe asthmatic condition, 

generally suffered fewer problems while residing in Montana. 

Additionally, Richard criticized the medical treatment the child 

received while in ~llinois. Richard also attempted to prove that 

the child's performance in school improved while he was residing in 

Montana. Richard contends that the District Court ignored the 

evidence presented concerning the child's health and his adjustment 

to and performance in school, and that the custody determination 

should be reversed. 

Upon reading the District Court's lengthy findings of fact 

concerning these two issues, we disagree. The District Court, 

after listening to and observing the testimony of the witnesses, 

specifically found that the medical needs of the child were being 

met while he was residing in Illinois. The District Court also 

found that due to the circumstances it was not possible to make a 

valid comparison between schools. 

Upon reviewing the District Court's extensive findings of fact 

concerning the custody issue, it is clear the District Court 

considered all of the required statutory criteria and based the 

custody decision on the best interests of the child. The court's 

9 
findings of fact explicitly set forth the essential and determining 

facts upon which it based its conclusions. The findings and 

conclusions were based on substantial evidence. The custody 

determination made by the District Court is affirmed. 

Susan raises the issue of attorney fees and alleges the 

District Court abused its discretion in not awarding her attorney 

fees. The decision to award attorney fees in these situations is 

within the sound discretion of the district court. Section 

40-4-110, MCA; In re Marriage of Smith (1990), 242 Mont. 495, 791 

P.2d 1373. The District Court did not abuse its discretion in not 

awarding attorney fees in this case. 

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: