Marriage of Cole, In re

Decision Date09 December 1986
Docket NumberNo. 86-210,86-210
Citation43 St.Rep. 2136,224 Mont. 207,729 P.2d 1276
PartiesIn re the MARRIAGE OF Marilyn Joy COLE, Petitioner and Respondent, and James W. Cole, Respondent and Appellant.
CourtMontana Supreme Court

Law Offices of Frank Altman, Ivan C. Evilsizer, Havre, for respondent and appellant.

Bosch, Kuhr, Dugdale, Warner, Martin & Kaze, Mary Van Buskirk, Havre, for petitioner and respondent.

HARRISON, Justice.

This is an appeal from a dissolution and custody proceeding arising from the Twelfth Judicial District in and for Hill County, Montana. Husband appeals both from the custody and dissolution determinations, as well as collateral issues. We affirm in full.

James and Marilyn Cole were married in March of 1974. During their twelve year marriage, they bore two children, Christen, age 7 at the time of this appeal, and Robby, age 5. Both Christen and Robby are gifted children; Robby, however, is diagnosed as a Down's Syndrome child and continues to manifest a learning and physical disability.

Because of Robby's special circumstances, considerable testimony was presented at trial concerning the custody arrangement which would best suit Robby's needs. Robby's teachers, therapist and trainer all testified as to the scope of responsibilities that must be addressed by a custodial parent of a Down's child. In addition, the court received the recommendation of two court appointed investigators, Susann Fowler and Dr. Robert Stehman.

In its decree of dissolution, the court awarded the parents joint custody of their children; Wife is to be the custodial parent for nine months, twenty days--roughly equivalent to the school year--and Husband is to be the custodial parent for two months, ten days during the summer. As to the distribution of the marital estate, the court first determined the value of all the property therein and subtracted the liabilities. Among the liabilities listed by the court were each party's attorney's fees and costs. The court then awarded Husband the estate, but ordered him to pay the equivalent of one-half the net to the Wife. Finally, the court refused to place a travel restriction upon the Wife during that time in which she is the custodial parent. Wife has expressed a desire to move to Florida and Husband had sought a court order restricting her from moving outside the state of Montana with the children. Husband now appeals.

I

Husband first contests the District Court's custody determination. He presents three arguments.

A

Husband's first argument is that the District Court failed to give proper consideration to the statutorily required factors listed in Sec. 40-4-212, MCA, and those additional factors recently articulated by this Court in In re the Custody and Support of B.T.S. (Mont.1986), 712 P.2d 1298, 43 St.Rep. 37.

Section 40-4-212, MCA, requires that a court determine custody in accordance with the child's best interests and that, in so doing, it consider all relevant factors, including:

(1) the wishes of the child's parent or parents as to his custody;

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

(3) 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;

(4) the child's adjustment to his home, school, and community; and

(5) the mental and physical health of all individuals involved.

In B.T.S., supra, this Court further suggested three related criteria worthy of a court's consideration in a joint custody determination. First, in conjunction with Sec. 40-4-212(1), a court should consider the parents' ability to cooperate in their parental roles. B.T.S., 712 P.2d at 1301. Second, in conjunction with Sec. 40-4-212(3), a court should consider the child's relationship with both parents. B.T.S., 712 P.2d at 1301. And third, a court should consider the physical proximity of the parents' residence. B.T.S., 712 P.2d at 1301-02.

Contrary to the claims of the Husband, we find that the District Court's findings amply demonstrate that the court properly considered the required factors. First, the court made a specific finding as to the wishes of the parents and their conflicting custody requests. Second, as to the wishes of the children, Dr. Stehman testified that Christen wanted to live with her mother and the court followed his recommendation; due to Robby's disability his wishes were not determinable. Third, as to the children's relationship with their family and significant others, the court found that both children appeared to enjoy a particularly strong relationship with their mother and that she has always been uniquely involved with Robby's treatment. The court further found that the two children enjoy a close relationship with one another and noted that professional testimony recommended they remain together.

As to the fourth factor, the child's adjustment to his environment, the court's findings summarized evidence of the mother's extensive role in fostering both children's development. The court specifically noted the mother's comprehensive involvement in Robby's special care. Fifth, the court noted that the special needs of Robby required that he have continuous and consistent treatment, that his school year not be interrupted by change of residence and that the children not be separated. And sixth, the court noted that the mother was contemplating a move to Florida.

In short, we find that the District Court considered the required factors and made specific findings regarding the best interests of the children in its custody decision. We do not require a court's findings to be in any particular form so long as there is substantial, credible evidence to support the court's judgment on the merits. In re the Marriage of Burleigh (1982), 200 Mont. 1, 6, 650 P.2d 753, 756. We uphold the District Court's findings.

B

Husband's second argument is that the District Court erred by awarding him actual physical custody for only two months, ten days. He essentially bases his argument on language within Sec. 40-4-224(2), MCA, which states that the physical custody time allotment between parents shall be as equal as possible. Husband accordingly argues that he is therefore entitled to physical custody for at least six months.

We disagree. Section 40-4-224(2), MCA, states in relevant part:

The allotment of [physical custody] 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. (Emphasis added.)

Thus, depending upon the circumstances of the case, equal physical custody will not be awarded if such is not in the best interests of the children.

In this case, the District Court expressly found that because of the special needs of Robby, it would clearly be in his best interest that his physical custody for the school year not be interrupted. The court further found that it would clearly be in Robby's best interest that his physical custody for the school year be with his mother and finally, that it would be in the best interests of both Robby and Christen that the two children not be separated. The court accordingly awarded Wife physical custody of both children for the school term.

The decision is amply supported by the evidence. Testimony from the children's teachers, counselors, service providers to Robby, the family doctor and the two court appointed investigators on custody all recommended to the court that the Wife continue as the primary custodial parent. Further, the school counselor, Robby's Child and Family Service counselor, Robby's Head Start teacher, and Robby's speech therapist, all testified that it would be better for Robby to maintain one residence during the school year.

Findings and conclusions of a district court as to the best interests of a child are presumptively correct and will not be overturned unless there is a clear preponderance of the evidence against them. B.T.S., 712 P.2d at 1300. We will consider only whether substantial credible evidence supports the findings and conclusions. B.T.S., 712 P.2d at 1300. In this case, there exists substantial credible evidence supporting the District Court's determination that the best interests of both children would be served by remaining with their mother for the school term. We uphold this determination.

C

Third, Husband challenges the District Court's refusal to issue a restriction on travel upon the Wife during that time in which she has physical custody of the children. As noted, Wife has expressed her desire to relocate in Tampa, Florida. Husband argues that if she is allowed to take Christen and Robby with her, he will be effectively removed from his children for all but the two month, ten day physical custody period to which he is entitled.

Initially, we again note that the findings and conclusions of a district court as to the best interests of a child are presumptively correct and will not be overturned unless there is a clear preponderance of the evidence against them. B.T.S., 712 P.2d at 1300.

In this action, the District Court evidently did not believe that a travel restriction was in the children's best interests. It received testimony from the Wife describing the advanced employment opportunities available in the Tampa area as well as testimony from one of Robby's counselors that Tampa is likely to provide a more complete line of services to handicapped children. We find that the District Court's refusal was not an abuse of discretion.

Moreover, we note that requests for impositions of travel restrictions upon custodial parents force courts to conduct a delicate balancing. On the one side, courts must consider the best interests of the child--that statutorily required benchmark of all custodial determinations. And it is by now little argued that a child's interests are best served by consistent and...

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