Marriage of Wiedrick ( 1995 )

NO. 94-338
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
IN RE THE MARRIAGE OF
DAN E. WIEDRICK,
Petitioner and Appellant,
and
SUSAN LEE WIEDRICK,
Respondent and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Hon. Maurice R. Colberg, Jr., Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Virginia A. Bryan; Wright, Tolliver and Guthals
Billings, Montana
For Respondent:
Kevin T. Sweeney; Sweeney & Healow, Billings,
Montana
Submitted on Briefs: December 15, 1994
Decided: January 18, 1995
Filed:
Justice Karla M. Gray delivex.ed the Opinion of the Court.
Dan E. Wiedrick appeals from the denial of his motion to
modify custody of his minor son by the Thirteenth Judicial District
court, Yellowstone County. We affirm.
The District Court dissolved Dan and Susan Wiedrick's marriage
on September 14, 1990. The decree of dissolution incorporated Dan
and Susan's custody agreement concerning their minor child, Justin,
born October 31, 1987. The parties shared joint legal custody of
Justin and, indeed, joint physical custody, with Justin alternating
weeks with his father and mother. The agreement recognized that a
different custody and visitation arrangement might be necessary
when Justin enrolled in kindergarten.
Justin began kindergarten in the autumn of 1993 and Dan and
Susan were unable to agree on a new custody and visitation
arrangement. As a result, Dan moved to modify the custody portion
of the dissolution decree to have himself designated as Justin's
principal residential custodian.
The District Court held a hearing on Dan's motion. Testimony
was presented by both Dan and Susan and a court-ordered
investigatory report from the Yellowstone County Court Services
Office was admitted into evidence; that report recommended that
Susan be named Justin's residential custodian. Following the
hearing, the District Court maintained joint legal custody of
Justin in Dan and Susan and determined that Justin's best interests
required that Susan be designated his primary residential
2
custodian. Dan appeals.
District courts are specifically authorized to modify joint
custody arrangements under the "best interests of the child"
standard, so long as joint custody is not being terminated.
Section 40-4-224, MCA; In re Marriage of Johnson (Mont. 1994), 879
P.2d 689, 693, 51 St.Rep. 703, 706. Section 40-4-212, MCA, sets
forth the factors to be considered in determining the best
interests of the child. In this case, the District Court
considered each of the statutory factors and made comprehensive
written findings thereon. We review a court's findings regarding
modification of custody under the clearly erroneous standard; a
finding is clearly erroneous if it is not supported by substantial
credible evidence, if the trial court has misapprehended the effect
of the evidence, or if a review of the record leaves this Court
with the definite and firm conviction that a mistake has been
committed. Marriaqe of Johnson, 879 P.2d at 694.
In reaching its decision that Susan should be named as the
residential custodian, the District Court relied on the court-
ordered investigatory report, expert testimony from Jim Paulsen, a
licensed clinical social worker, and Ned Tranel, a psychologist,
who had counseled Dan, Susan and Justin at various times over the
past four years, and testimony from Dan and Susan. It is clear
that the court's findings are supported by substantial credible
evidence and Dan does not argue otherwise.
Dan asserts that the District Court's findings are tainted by
gender-based expectations for male behavior. Dan relies on three
3
quotes from the District Sourt ' s findings of fact and the
concurring opinion in In re Marriage of Davies (Mont. 1994), 880
P.2d 1368, 51 St.Rep. 929, as support for his position.
Dan's first allegation of gender bias concerns the court's
finding that he showed inappropriate emotion during custodial
exchanges with Susan. Dan points specifically to language in the
findings that he expressed "inappropriate . . feelings, crying,
etc. I' He alleges that this demonstrates the District Court's
gender bias against men who cry or express emotion. We do not
agree.
Dan's argument ignores both the context of the District
Court's finding and related expert testimony. The court found that
Dan expressed inappropriate emotions in relation to the parties'
weekly exchange of Justin. Testimony indicated that, during some
of these exchanges, Dan would cry openly in front of Justin while
Susan was picking the child up; Justin would then become upset and
resist leaving his father. Expert testimony indicated that
Justin's reaction was most likely an attempt to please Dan, and
that Dan's emotional outbursts could pose an emotional problem for
Justin. Thus, the District Court found Dan's expressions of
emotion inappropriate, not because of his male gender, but because
of the impact such expressions could have on the minor child.
Based on the record before us, the District Court's finding was
clearly a parental-role-related concern, not a gender-based one.
Dan's second assertion of gender-based error concerns the
court's finding that he was inappropriately dependent on his
4
family. Dan argues that the District Court's comments about his
dependency on his family reflect the gender-based axiom that "a
daughter is a daughter all of her life, but a son is a son until he
takes a wife."
At the hearing, psychotherapist Jim Paulsen, who had counseled
both Dan and Susan, opined that Dan's relationship with his family
evidenced enmeshment, defined as an unhealthy dependency upon
family members. Paulsen testified that Dan's enmeshment with his
family kept him from meeting Susan‘s emotional needs during their
marriage and could prevent him from acting in Justin's best
interests. The record is clear that enmeshment relates to Dan's
parenting skills. Thus, the District Court's finding that such
dependency would not serve Justin well is based not on gender bias,
but on substantial credible evidence.
Dan's final assertion of gender-based error relates to the
District Court's finding that Susan is the more independent and
self-sufficient parent, with a greater earning capacity and more
dependable working schedule. Dan postulates that the District
Court's reliance on these factors demonstrates the court's gender
bias that men are expected to be the "breadwinners."
Dan's argument, however, ignores the logic and common sense
these facts play in protecting Justin's best interests. Susan's
predictable 8:00 a.m. to 5:00 p.m. working arrangement would be
more conducive to a regular schedule for Justin than Dan's, which
fluctuates depending upon the season, the job, and the physical
location of his construction work. Such a determination by the
5
District Court has nothing to do with gender, and everything to do
with Justin's well-being.
Finally, Dan relies on the specially concurring opinion in
Marriaqe of Davies, which stated that:
Article II, Section 4 of our Montana Constitution
recognizes and guarantees the individual dignity of each
human being with regard to gender. Every attorney and
every judge in Montana is sworn to uphold that
constitutional right. There is simply no justification
for interjecting gender bias and sexual stereotyping into
any legal proceeding in this state. It is morally wrong;
it violates the constitution; it will not be tolerated.
Marriaqe of Davies, 880 P.2d at 1377-78. The concurring opinion
was based on the district court's physical description of the
spouse in the context of a distribution of the marital estate; such
a description did not and could not relate to the issue before the
court and could only be seen as unacceptable gender bias and sexual
stereotyping.
Here, as discussed above, no gender bias is evident in the
court's findings. The language of which Dan complains relates
directly to important and appropriate considerations in determining
a child's best interests.
We conclude that the District Court's findings were supported
by substantial credible evidence and are not otherwise erroneous.
We hold, therefore, that the District Court did not err in denying
Dan's motion.
Affirmed.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
6
with the Clerk of the Supreme .Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company
We concur:
\ Chief Justice
i I
7
January 18, 1995
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Virginia A. Bryan, Esq.
Wright, Tolliver and Guthals
P.O. Box 1977
Billings, MT 59103
Kevin T. Sweeney, Esq.
Sweeney & HeaIow
1250-15th St. W., Ste. 202
Billings, MT 59102
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF YONTANA