Marriage of Anderson, In re

Decision Date28 September 1993
Docket NumberNo. 92-532,92-532
PartiesIn re the MARRIAGE OF James C. ANDERSON, Petitioner and Appellant, and Linda K. Anderson, Respondent and Respondent.
CourtMontana Supreme Court

James C. Anderson, pro se.

Klaus D. Sitte, Montana Legal Services Ass'n, Missoula, for respondent.


James C. Anderson appeals from a custody decision of the District Court for the Fourth Judicial District, Missoula County. The court awarded the parties joint custody of their minor child and designated Linda K. Anderson as the primary residential custodian for two years. The court also granted James limited visitation rights. Finally, the court ordered James to pay Linda child care costs, in addition to existing child support payments. We affirm in part and reverse in part.

There are three issues on appeal.

1. Did the District Court abuse its discretion when it designated Linda as the primary residential custodian for two years?

2. Did the District Court abuse its discretion when it awarded James limited visitation rights?

3. Did the District Court err when it ordered James to pay Linda child care costs in addition to existing child support payments?

James and Linda Anderson were married in Billings, Montana, on June 16, 1976. Their only child, Sari Nicole Anderson, was born on July 31, 1987. The parties lived in Montana for approximately one and one-half years after Sari was born. During their marriage, James was employed as an equipment serviceman for Northwest Airlines. Linda worked at home, but was not employed outside the home. In February 1989, the parties separated and Linda moved with Sari to Rigby, Idaho. The parties' employment situation remained unchanged after their separation.

On March 15, 1989, James filed a petition for dissolution of the parties' marriage. On February 12, 1990, the District Court entered a decree of dissolution and reserved all other issues for trial. Section 40-4-104(1)(d), MCA, provides that a district court shall enter a decree of dissolution if:

[T]o the extent it has jurisdiction to do so, the court has considered, approved, or made provision for child custody, the support of any child entitled to support, the maintenance of either spouse, and the disposition of property.

The District Court acted contrary to this statute when it did not make a determination about maintenance, property, child support, and child custody at the time that it dissolved the marriage. However, this is not an issue before the Court.

On June 6, 1991, following several days of hearings, the court issued detailed findings, conclusions, and a judgment regarding maintenance, property division, and the support, custody, and visitation of the parties' child, Sari.

In the June 1991 order, the court found that both James and Linda were fit parents and awarded them joint custody of Sari. The court implemented a temporary custody plan in which Sari was to alternate between living 60 days with her mother and 30 days with her father. The court ordered the alternating custody plan to commence on March 15, 1991, and continue until Sari entered school in the fall of 1992. The court instructed the parties to either submit a permanent plan for Sari's custody during her school-age years by January 1992, or submit to a professional custody evaluation which would be considered by the court during further proceedings in the summer of 1992.

Additionally, in the June 1991 decree, the court awarded James reasonable visitation with Sari: James was allowed to visit with his daughter during the 1992 Christmas holidays, and on every fourth weekend of the year during the 60-day periods that Sari was living with her mother. The weekend visits were to occur in Idaho. Finally, the court ordered James to pay Linda $236 a month for the support, care, maintenance, and education of Sari.

In October 1991, James filed an affidavit with the court, informing the court that he was being forced by his employer to relocate from Missoula, Montana, to another location. This was the beginning of a series of changes in residence by James. In December 1991, James was transferred temporarily by his employer to Phoenix, Arizona. That move was followed by a brief return to Missoula and a subsequent and final move to Seattle, Washington.

On October 28, 1991, James filed a motion for an advance custody determination. On November 25, 1991, the court granted James' motion and directed Drs. Philip and Marcy Tepper Bornstein, Ph.D., licensed clinical psychologists, to conduct a comprehensive custody evaluation of James and Linda.

The Bornsteins performed the evaluation in December 1991. The assessment involved diagnostic clinical interviews and the administration of approximately eight objective psychological tests to both parents and Sari. On February 18, 1992, the Bornsteins submitted their evaluation report to the District Court. They reported that James and Linda are both concerned and well-intentioned parents; and although they exhibit hostility toward one another, they both love Sari deeply. The Bornsteins determined that "a sense of stability [for Sari] with free access to both parents would clearly be in Sari's best interest."

The Bornsteins recommended that the parties have joint custody of Sari. They determined, however, that given Sari's age (four years old) and her educational needs, her adjustment would be best served by having a residential custodian. The Bornsteins recommended that Linda be Sari's residential custodian for the 1992-93 school year because she has generally played that role for Sari thus far. Further, they suggested that Sari have ample visitation with her father on all major holidays, two months of the summer, and extended weekends one time per month during the school year, to continue the development of the positive relationship that James shares with Sari.

The District Court held a hearing on June 2, 1992, to consider James' motion for an early custody determination and to address James' request for court direction regarding where he should live to best facilitate the eventual custody arrangement. Dr. Philip Bornstein testified at the hearing that James' lack of residential or employment stability was "one of the primary considerations" in making his recommendation that Linda have residential custody, but not the only consideration. Bornstein also testified that if James and Linda lived in the same community that the Bornsteins would "have recommended a more shared custodial arrangement," which would allow Sari to split her residency between households.

The court ordered the June 2, 1992, hearing to continue in August 1992, and directed the parties to agree to a custody plan. The court also ordered James to have summer visitation with Sari from mid-June 1992 to mid-August 1992.

In the interim, Linda filed a motion with the District Court on July 21, 1992, to amend the findings, conclusions, and judgment entered on June 6, 1991. Specifically, Linda requested the court to modify James' child support payment to include child care payments of $320 per month, to enable Linda to attend Career Beauty College to retrain for future employment.

On August 20, 1992, the District Court resumed the June 2, 1992, hearing and addressed the issue of Sari's custody and Linda's motion to amend the decree. The parties were unable to reach an agreement regarding custody prior to the resumption of this hearing. In an order entered on August 20, 1992, the court concluded that both James and Linda were fit parents and awarded them joint custody of Sari. The court designated Linda as the primary residential custodian for the 1992-93 and 1993-94 school years. The court awarded James visitation with Sari for 60 days each summer, the 1992-93 and 1993-94 Christmas school holidays, and unlimited, but reasonable, phone calls.

Additionally, the court ordered that a custody evaluation shall be performed by Drs. Philip and Marcy Bornstein after the 1993-94 school year to determine if, ultimately, an alternating-school-year custody arrangement would be in Sari's best interest.

Finally, the court determined that it is in all parties' best interests that Linda obtain marketable skills. Accordingly, the court ordered James to pay Linda up to $50 per week to cover child care costs to enable Linda to attend school. The court ordered the original child support payments of $236 per month to continue as previously ordered.

On September 21, 1992, the District Court denied a motion by James for a new trial. James appeals.


Did the District Court abuse its discretion when it designated Linda as the primary residential custodian for two years?

On appeal, James argues for several reasons that the District Court abused its discretion when it ordered Linda to have residential custody of Sari for two years. First, he contends that the court failed to adequately consider the best interest factors set forth in § 40-4-212, MCA. Second, James asserts that the court's decision to award Linda residential custody of Sari for two school years was not supported by the testimonial evidence of the psychologists in this case. The Bornsteins recommended that Linda have primary custody for one school year.

Finally, James claims that Linda's past conduct has not been in Sari's best interest and that her actions have prevented Sari from bonding with her father. James contends that this lack of bonding has been detrimental to Sari, and he urges this Court to remedy the situation by reversing the District Court's custody decision.

The standard of review in a child custody determination is well settled in Montana. When evaluating a district court's decision, this Court will consider whether substantial credible evidence supports the court's findings. In re Marriage of Jensen (1981), 192 Mont. 547, 552, 629 P.2d 765, 768. The findings will be...

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