Marriage of Bolt, In re, 92-368

• Decision Date: 10 June 1993
• Docket Number: No. 92-368,92-368
• Citation: 259 Mont. 54,854 P.2d 322
• Parties: In re the MARRIAGE OF Jena W. BOLT, Petitioner and Respondent, and James W. BOLT, Respondent and Appellant.
• Court: Montana Supreme Court

Page 322

854 P.2d 322

259 Mont. 54

In re the MARRIAGE OF Jena W. BOLT, Petitioner and Respondent,

and

James W. BOLT, Respondent and Appellant.

No. 92-368.

Supreme Court of Montana.

Submitted on Briefs March 11, 1993.

Decided June 10, 1993.

Kenneth R. Olson, Great Falls, for respondent and appellant.

Floyd D. Corder, Corder and Allen, Great Falls, for petitioner and respondent.

HUNT, Justice.

This is an appeal from the District Court of the Eighth Judicial District, Cascade County. Appellant James Bolt appeals from the District Court's Findings of Fact, Conclusions of Law, and Order entered on April 3, 1992.

We affirm.

The following issues are presented for our review:

1. Did the District Court err in adopting findings of fact that are nearly verbatim to those proposed by respondent?

2. Did the District Court err in its application of § 40-4-212, MCA, in the determination of primary physical custody of the parties' three children?

3. Did the District Court err in its application of § 40-4-202, MCA, in the determination of the division of property?

4. Did the District Court err in denying appellant's request to retroactively modify his pretrial child support obligation?

5. Did the District Court err in its decision not to disqualify respondent's trial counsel based on the grounds of "conflict of interest"?

Jena and James were married on December 29, 1979, in Huntsville, Alabama. Jena has a daughter from a prior marriage who is now in the custody of Jena's former husband. James has never been married before. James and Jena have three children--Jeremy, ten, Josh, seven, and Jessica, five.

Both Jena and James are high school graduates. James attended college for about two years, and is currently pursuing a marketing degree. Jena has had informal training in the computer field, and is presently pursuing a degree in computer science education. Both parties are in good health and employable. James was formerly employed in the insurance industry as a sales agent and Jena has worked as a secretary in the same field.

Although the parties are employable, they have had their share of financial difficulties. In 1987, while residing in Chattanooga, Tennessee, they filed a Chapter 13 bankruptcy. Their vehicle was repossessed and their home was foreclosed upon. After resettling in Great Falls, they experienced similar financial difficulties. They were unable to make the payments under the bankruptcy plan and were, therefore, never discharged in bankruptcy.

On July 3, 1990, Jena filed a petition for legal separation requesting that the court divide the marital property and debts, and that she be awarded primary physical custody of the parties' three children. Jena also filed a motion for temporary restraining order, temporary maintenance for support of the minor children, and for temporary custody of the children.

James filed an answer to Jena's petition for legal separation on July 6, 1990, requesting dissolution of the marriage and legal custody of the children. On July 10, 1990, the court granted the temporary restraining order, and in addition, ordered James to pay temporary child support and granted temporary custody of the children to Jena. This order was entered ex parte. There were additional motions filed concerning the issue of child support. Both parties were arrested for domestic abuse, and a youth in need of care proceeding was initiated. On May 28, 1991, James filed a motion to retroactively modify child support, submitting that the award was inconsistent with the Child Support Guidelines. Jena filed an answer on June 13, 1991. She later filed an additional motion requesting termination of James' temporary visitation rights. James filed a motion requesting the disqualification of Jena's attorney due to an alleged conflict of interest. After a bench trial, each party submitted proposed findings of fact and conclusions of law. On April 3, 1992, the Court entered its findings of fact, conclusions of law, and order. Notice of entry of judgment was filed on April 14, 1992.

I.

Did the District Court err in adopting findings of fact that are nearly verbatim to those proposed by respondent?

James claims that the District Court's findings of fact were, in essence, a "verbatim" adoption of Jena's proposed findings. Even though the District Court set out findings of fact similar or verbatim to those proposed by Jena, there is no problem in doing so if substantial credible evidence exists to support such findings. In re Marriage of Hurley (1986), 222 Mont. 287, 296, 721 P.2d 1279, 1285. We hold that the District Court's findings of fact meet the test set out in Hurley.

II.

Did the District Court err in its application of § 40-4-212, MCA, in the determination of primary physical custody of the parties' three children?

Because the trier of fact is able to observe the witnesses and presentation of evidence firsthand, we will not overturn the District Court in custody matters unless we find a clear "abuse of discretion." In re Marriage of Maxwell (1991), 248 Mont. 189, 193, 810 P.2d 311, 313.

James claims that the District Court did not "address" the criteria set out in § 40-4-212, MCA, in determining primary physical custody. This Court has consistently held that the district court need not specifically address each of the criteria, but rather set forth "essential and determining" facts upon which it based its decision. In re Marriage of Cameron (1982), 197 Mont. 226, 231, 641 P.2d 1057, 1060.

The District Court, in the case at bar, as evidenced by the findings of fact, considered each of the criteria of § 40-4-212, MCA, before reaching its custody determination based on the "best interests of the child."

It was obvious from Jena's petition for legal separation, and James' answer to the petition, that both parties wished to participate in the upbringing of the' minor children. The District Court considered the requests of the parents before determining primary physical custody. Section 40-4-212(1)(a), MCA.

As to the wishes and feelings experienced by the children, the District Court found that James has a history of violence when using alcohol and the children are afraid of him when he is drinking. The wishes of the children were considered by the court through counselling by a family counselor from Golden Triangle Mental Health Center who spent time with the children in order to determine the cause of the problems they were experiencing and how the children could be helped.

The District Court addressed the issues of the interaction of the children with their parents and siblings and their adjustment to their home and school. Section 40-4-212(1)(c) and (d), MCA. The court also addressed the issues of the mental and physical health of the parties and the issue of chemical dependency, § 40-4-212(1)(e) and (g), MCA, and finally, the court addressed the issue of physical abuse by one parent against the other or against the child. Section 40-4-212(1)(f), MCA.

James also contends that the District Court should have interviewed the children in order to determine their wishes as to custodial care. While this is an accepted procedure for determining the desires of the children, it is not required. Section 40-4-214(1), MCA. An alternate route is to determine the wishes of the children from professional counselors. Section 40-4-214(2), MCA. This was accomplished, as discussed above, with the aid of the family counselor from the Golden Triangle Mental Health Center.

The District Court did not abuse its discretion in its determination of primary physical custody.

III.

Did the District Court err in its application of § 40-4-202, MCA, in the determination of the property division?

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