Marriage of Hansen ( 1995 )

NO. 95-197
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
IN RE THE MARRIAGE OF
NOREEN HAAG, formerly NOREEN HANSEN,
Petitioner and Appellant,
and
KEVIN HANSEN,
Respondent and Respondent.
APPEAL FROM: District Court of the Fifteenth Judicial District,
In and for the County of Roosevelt,
The Honorable David J. Cybulski, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Arnie A. Hove, Attorney at Law, Circle, Montana
For Respondent:
Laura Christoffersen; Christoffersen & Knierim,
Wolf Point, Montana
Submitted on Briefs: October 19, 1995
Decided: November 7, 1995
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1995 Internal Operating Rules, the following 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 State Reporter and West Publishing Company.
Noreen Maag appeals from the March 21, 1995, Findings of Fact,
Conclusions of Law and Order of the Fifteenth Judicial District
Court, Roosevelt County, modifying the custody of the parties'
minor children. We affirm.
The following issues are raised on appeal:
1. Did the District Court abuse its discretion when it
modified the custody of the parties' children?
2. Did the District Court err in adopting, almost verbatim,
the Respondent's Proposed Findings of Fact and Conclusions of Law?
This case arises out of a protracted custody dispute between
Noreen [Hansen] Maag (Noreen) and Kevin Hansen (Kevin). Three
children were born to the parties, namely, Darryl Wayne Hansen,
Jennifer Rose Hansen, and Amanda Louise Hansen. Darryl was born in
1981 while the parties were married. After their dissolution in
1983, Kevin and Noreen lived together but did not remarry.
Jennifer and Amanda were born in 1986 and 1987 respectively,
several years after Kevin's and Noreen's marriage was dissolved.
In 1988, when the parties again separated, the court awarded Noreen
and Kevin joint custody of the children. Kevin was awarded primary
physical custody of Darryl, while Noreen was awarded primary
physical custody of Jennifer and Amanda. Amidst claims of sexual
abuse of the two girls while in Noreen's custody, Kevin petitioned
for, and was awarded, primary temporary physical custody of the
girls in 1991.
Since January of 1991, the children have resided exclusively
with Kevin and the parties have been embroiled in an ongoing
dispute over the custody of the children. Currently, Kevin, his
wife, Kevin's three step-children, Darryl, Jennifer, and Amanda all
reside together in the state of Arizona. After living in Illinois
for a time with her former husband, Noreen returned to Montana and
is now married to Mark Maag. Noreen appeals from the District
Court's custody determination.
1. Did the District Court abuse its discretion when it
modified the custody of the parties' children?
In reviewing a district court's findings relating to custody
or visitation modification, we determine whether those findings are
clearly erroneous. In re Marriage of Elser (Mont. 1995), 895 P.2d
619, 622, 52 St.Rep. 434, 436 (citing In re Marriage of Johnson
(1994), 266 Mont. 158, 166, 879 P.2d 689, 694). This Court will
overturn a district court's decision to modify custody or
visitation only where an abuse of discretion is clearly
demonstrated. Marriaqe of Elser, 895 P.2d at 622 (citing In re
Marriage of Hunt (1994), 2.64 Mont. 159, 164, 870 P.2d 720, 723).
In the March 21, 1995, Findings of Fact, Conclusions of Law
and Order, the District Court awarded Kevin primary physical
custody of Darryl, Jennifer, and Amanda during the school year,
while Noreen was granted visitation during the summer. The parties
remain joint custodians of the children. In making its custody
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determination, the District Court considered the factors set forth
in §§ 40-4-212 and 40-4-219, MCA. The District Court addressed the
"best interest" factors enumerated in 5 40-4-212, MCA, when it
noted that the children have lived with their father for most of
their lives, that the children are close to their step-siblings,
and that the children are well adjusted to their home, school, and
community. These factors, reflected in the findings, support the
District Court's custody determination.
Further, we note that the District Court's findings also
support modification of custody pursuant to § 40-4-219, MCA.
Section 40-4-219, MCA, provides in relevant part:
The court may in its discretion modify a prior custody
decree if it finds, upon the basis of facts that have
arisen since the prior decree or that were unknown to the
court at the time of entry of the prior decree, that a
change has occurred in the circumstances of the child or
the child's custodian and that the modification is
necessary to serve the best interest of the child and if
it further finds that:
(c) the child's present environment endangers
seriously the child's physical, mental, moral, or
emotional health and that the harm likely to be caused by
a change of environment is outweighed by its advantages
to the child;
.
[ei the custodian willfully, and consistently:
1 refuses to allow the chrld to have any contact
with the noncustodial parent; or
(ii) attempts to frustrate or deny the noncustodial
parent's exercise of visitation rights; or
(f) the custodial parent has changed or intends to
change the child's residence to another state.
.
(4) The court may modify the prior decree based on
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subsection (1) (f) to provide a new visitation schedule
and to apportion transportation costs between the
parents.
The findings reflect that Noreen has attempted to frustrate Kevin's
visitation on several occasions. For example, pursuant to § 40-4-
219(1) (e) (ii), MCA, the District Court found that Noreen failed to
send the children to meet Kevin at the Dells, Wisconsin, and on
another occasion, she refused to return Darryl to Kevin after a
weekend visit. Further, the District Court noted, pursuant to 5
40-4-219(l) (f), MCA, that Kevin had changed the children's
residence to another state. The District Court also found that
there had been a substantial change in circumstances which would
warrant a change in custody. The court noted that the children had
all reached school age, that Noreen had twice remarried and moved
to and from Illinois, and that Kevin and the children had moved to
Arizona
Further, in their April 11, 1990 custody and visitation
agreement, the parties themselves recognized that a change in
custody would be necessary when the girls began to attend school.
Accordingly, the District Court noted that even without the 1991
temporary custody order, custody would have again been an issue as
soon as the girls began attending school. We conclude that the
District Court's findings are not clearly erroneous and that the
District Court did not abuse its discretion in making its custody
determination.
2. Did the District Court err in adopting, almost verbatim,
the Respondent's Proposed Findings of Fact and Conclusions of Law?
Noreen alleges that the District Court erred in adopting
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Kevin's Proposed Findings of Fact and Conclusions of Law. Although
the District Court's findings are substantially similar to Kevin's
proposed findings, we note that the District Court made SOITE
additional findings relating to Kevin's knowledge of the children's
teachers and their home computer, which are not contained in the
proposed findings.
Rule 52(a), M.R.Civ.P., provides that:
The court may require any party to submit proposed
findings of fact and conclusions of law for the court's
consideration and the court may adopt any such proposed
findings or conclusions so long as they are supported by
the evidence and law of the case.
In reviewing the adequacy of findings of fact and conclusions of
law, we examine whether they are sufficiently comprehensive and
pertinent to provide a basis for a decision, and whether they are
supported by substantial evidence. In re Marriage of Allison
(1994), 269 Mont. 250, 265, 887 P.2d 1217, 1226.
We conclude that the District Court's findings and conclusions
satisfy Rule 52(a), M.R.Civ.P. The findings are in depth,
comprehensive, pertinent, and supported by substantial evidence
contained in the record. The findings provide an underlying
foundation and basis for the court's custody determination.
Accordingly, we hold that the District Court did not err by issuing
findings and conclusions substantially similar to Kevin's proposed
findings and conclusions.
Affirmed.
Justice
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We concur: