Marriage of Saylor, In re, 87-438

• Decision Date: 13 June 1988
• Docket Number: No. 87-438,87-438
• Citation: 232 Mont. 294,756 P.2d 1149,45 St.Rep. 1062
• Parties: In re the MARRIAGE OF Mary Ruth SAYLOR, Petitioner and Appellant, and William Phillip Saylor, Defendant and Respondent.
• Court: Montana Supreme Court

Page 1149

756 P.2d 1149

232 Mont. 294

In re the MARRIAGE OF Mary Ruth SAYLOR, Petitioner and Appellant and William Phillip Saylor, Defendant and Respondent.

No. 87-438.

Supreme Court of Montana.

Submitted on Briefs June 2, 1988.

Decided June 13, 1988.

Keller & German, Brenda Nordlund, Kalispell, for petitioner and appellant.

Moore & Doran, James D. Moore, Kalispell, for defendant and respondent.

HUNT, Justice.

This is an appeal from a decree of dissolution entered by the District Court, Eleventh Judicial District, Flathead County, awarding respondent (husband) physical custody of the three minor children and ordering appellant (wife) to pay respondent support of $100 per child per month.

We affirm on the custody issue and reverse on the issue of child support and remand for reconsideration.

The issues presented to us by appellant wife are:

1. Did the District Court err by failing to properly apply "the best interests of the child" standard pursuant to Sec. 40-4-212, MCA?

2. Did the District Court err in determining child support to be paid by the wife?

3. Did the District Court err in denying wife's motion for a new trial?

The parties were married according to common law in 1971. This marriage was dissolved by decree dated April 7, 1987. The couple had three children born of the marriage, Jessica, Nicole and Shayne. At the time of the dissolution, their ages were 14, 11 and 6, respectively. Currently, they reside with their father, a building contractor, and his companion, in Corona Del Mar, California. The wife is a teaching assistant at the University of Illinois in Champaign where she is pursuing a doctorate in education.

The residential history of this couple is confusing. Apparently, after their marriage, they moved to Whitefish and then to Kalispell. Between the years 1979 and 1982, they lived together and separately at various times and in various homes in both Missoula and Kalispell. The husband also spent several months in Arizona. When the couple lived apart, the children resided with the wife. The couple's separation became permanent in 1982 and both resided separately in Kalispell until sometime in 1986, when they moved to their current separate residences. The wife relinquished physical custody of the children to their father, in July, 1983, and they have resided with him ever since. There seems to have been reasonable visitation allowed by both parties during their respective times as physical custodian.

The petition for dissolution in this action was filed in May, 1983. There were several hearings between June, 1984, and September, 1985, primarily regarding custody of the couple's children. Proposed findings were due October 11, 1985. The District Court entered its decree of dissolution on April 7, 1987, nearly four years after the petition was filed, granting joint custody and giving physical custody to the husband. The wife was ordered to pay $300 per month in child support retroactive to January 1, 1986.

At the outset, this Court must comment that it is unsettled by the amount of time this case required before being brought to a resolution. Four years between petition and decree is an unreasonably long time for a relatively uncomplicated dissolution action. The victims of such a delay are the children. The blame for this delay, however, cannot be placed solely upon either parent. Some of the blame must also be placed upon the District Court. For whatever reason, the decree was not entered until 18 months after the case was submitted. This delay is inexcusable. If there is any civil matter that should be resolved as expediently as possible, it is a matter involving the custody of young children.

Issue 1

In a case involving custody issues, the standard used to review the District Court's decision is that of abuse of discretion. The wife must demonstrate that the findings are clearly erroneous and overcome the presumption that the District Court's judgment is correct. Rule 52(a), M.R.Civ.P.; In Re Marriage of Manus (Mont.1987), 733 P.2d 1275, 1276, 44 St.Rep. 398, 399-400, citing Bier v. Sherrard (Mont.1981), 623 P.2d 550, 551, 38 St.Rep. 158, 159. Only when there is clear error will the District Court's judgment be reversed. In Re Marriage of Rolfe (Mont.1985), 699 P.2d 79, 82, 42 St.Rep. 623, 626.

Appellant argues that the District Court failed to consider two of the factors requiring consideration under Sec. 40-4-212, MCA, which states:

40-4-212. Best interest of child. The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors, including but not limited to:

(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;

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

(6) physical abuse or threat of physical abuse by one parent against the other parent or the child; and

(7) chemical dependency, as defined in 53-24-103, or chemical abuse on the part of either parent.

From the facts of this case, it is clear that the factors necessary for decision are (1) through (4). There have been no issues raised as to: (5) the mental or physical health of any of the individuals involved; (6) physical abuse or threat of physical abuse against either parent or child; or (7) drug abuse by either parent.

The wife asserts that because no specific findings were made as to the interaction of the children with their parents and siblings and as to the children's adjustment to their home, school, and community, the District Court abused its discretion in awarding physical custody to their father. We disagree and affirm the custody award of the District Court. This Court has stated on many occasions that the making of specific findings is not necessary where the record shows substantial evidence that supports the District Court's judgment on the merits. In Re Marriage of Nalivka (Mont.1986), 720 P.2d 683, 686, 43 St.Rep. 1079, 1083; In Re Marriage of DiPasquale (Mont.1986), 716 P.2d 223, 225, 43 St.Rep. 557, 560; Custody of Ericka M. (Mont.1984), 676 P.2d 231, 233, 41 St.Rep. 267, 269; In Re Marriage of Speer (1982), 201 Mont. 418, 421, 654 P.2d 1001, 1003.

The District Court made several findings regarding the parent's wishes, the children's wishes, and the relationship between the husband and wife as it affected access to the children by the wife and as it may affect the husband's access to the children if he were to lose physical custody. Evidence abounds in the record regarding the relationships between both parents and the children and the childrens' adjustment to their home and community. The District Court does not make specific findings as to these factors but does note the recommendations and reports of a social worker and a psychologist both of which pertain to the above factors. We hold there was no abuse of discretion.

For efficiency's sake, we will not address specific findings which the wife argues are in error. We find it necessary, however, to discuss the interpretation of Sec. 40-4-223, MCA, which the wife argues was incorrectly used by the District Court. The wife disputes the following finding:

23. The Montana legislature has made it clear that, wherever feasible, both parties ought to have equal access to children in dissolution proceedings. Thus, joint custody is preferred. Further, both of these parties are capable of rearing the children. However, Petitioner's anger and bitterness toward Respondent interfered with Respondent's access to the children before the transfer of custody.

The wife contends that access to children only becomes an issue when legal custody is placed with one parent only and not when joint custody is granted. We do not agree. The relevant statute, Sec. 40-4-223, MCA, reads in pertinent part:

(1) In custody disputes involving both parents of a minor child, the court shall award custody according to the best interests of the child as set out in 40-4-212:

(a) to both parents jointly; the court shall inquire whether a joint custody agreement was made knowingly and voluntarily; or

(b) to either parent. In making an award to either parent, the court shall consider, along with the factors set out in 40-4-212, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent and may not prefer a parent as custodian because of the parent's sex.

This statute appends an additional factor to be considered by the District Court when awarding legal custody to only one parent. The issue of access is not, by the statute's terms, a necessary consideration when joint custody is being granted. Legal custody, which is the determination of legal rights and responsibilities of the parents toward the children, must not be confused with...