Marriage of Allen ( 1994 )

No. 93-028
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
IN RE THE MARRIAGE OF
JULIANNE ALLEN,
Petitioner and Appellant,
and
PHILIP J. ALLEN,
Respondent and Respondent.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael H. Keedy, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Lane K. Bennett, Attorney at Law, Kalispell,
Montana
For Respondent:
Gregory E. Paskell, Attorney at Law, Kalispell,
Montana
E T r l j
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S Submitted on Briefs: October 28, 1993
JfiY 2 0 1994 Decided: January 20, 1994
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Clerk
Justice John Conway Harrison delivered the Opinion of the Court.
This is an appeal from an order of the Eleventh Judicial
District Court, Flathead County, which modified the parties' joint
custody arrangement by naming respondent, Phillip J. Allen
(Phillip), as the primary residential parent of Kyle Nathan Allen
(Kyle). Appellant Julianne Allen (Juli) appeals. We affirm.
While Juli presents several issues on appeal, two issues are
dispositive:
1. Did the District Court err by modifying the primary
physical custody of Kyle?
2. Did the District Court exhibit an unfair bias or prejudice
toward Juli: a) through the Judgers questions and comments during
the hearings about Julils lifestyle and behavior; or b) through
Finding of Fact No. 4 ?
The parties were divorced January 5, 1989, and Juli was
awarded sole custody of the partiesr minor child, Kyle. Phillip
was granted supervised visitation rights. In October 1991, the
parties stipulated to modify the custody arrangement. The court
approved the stipulation, which provided that the parties were to
have joint custody of Kyle with Juli as the primary residential
parent and Phillip with unrestricted visitation rights.
On August 11, 1992, Phillip petitioned the court to modify
the custody order by naming him the primary residential parent. He
alleged that Julir then-boyfriend, Mark Hindahl
s (Mark), was
physically abusive and threatening to both Juli and Kyle. He
further alleged that, Juli's tendency to move out of the house
whenever she fought with Mark created an unstable environment which
severely endangered Kyle's emotional development. Phillip argued
that he and his fiance, Donetta Moor (Donetta), could provide the
best environment to meet Kyle's emotional needs. Additionally,
since Juli was planning to leave Montana to live with Mark in
Arizona, Phillip requested that the court issue a temporary
restraining order (TRO) prohibiting either party from removing Kyle
from Flathead County.
Following a show cause hearing the court issued a TRO
prohibiting the parties from removing Kyle from Flathead County.
The modification hearing was held on September 25, 1992, and the
court issued its custody order on October 14, 1992. The District
Court granted Phillip's request and named him as the primary
residential custodian of Kyle, while Juli was to have reasonable
visitation rights. Juli appeals.
I
Did the District Court err by modifying the primary physical
custody of Kyle?
When a parent seeks to modify a child's primary physical
custody without terminating the joint custody arrangement, the
district court is compelled to make a "best interestu
determination. Section 40-4-224(2) ; and In re Marriage of Ferguson
(1990), 246 Mont. 344, 347, 805 P.2d 1334, 1336. When determining
a child's best interest:
[the court must] consider all relevant factors, including
but not limited to:
(a) the wishes of the child's parent or parents as to his
custody;
(b) the wishes of the child as to his custodian;
(c) 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;
(d) the child's adjustment to his home, school, and
community;
(e) the mental and physical health of all individuals
involved ;
(f) physical abuse or threat of physical abuse by one
parent against the other parent or the child; and
(g) chemical dependency, as defined in 53-24-103, or
chemical abuse on the part of either parent.
Section 40-4-212, MCA.
Juli argues that the District Court failed to make findings of
fact on the specific factors in 5 40-4-212, MCA, when it determined
Kyle's "best interest." She also argues that she presented
overwhelming evidence in support of her position and that evidence
should have prevailed. The record and the current status of the
law negate her arguments.
It is well established that the district court does not need
to make specific findings on each individual factor in 5 40-4-212,
MCA. In re Marriage of Merriman (1991), 247 Mont. 491, 493, 807
P.2d 1351, 1353. Moreover, when the parties present conflicting
evidence, we "will not overturn the District Court's findings
unless they are clearly erroneous." Merriman, 807 P.2d at 1353.
Here, the parties presented conflicting evidence about which
environment would better suit Kyle's best interest. The court
admitted its decision was difficult: "Kyle will likely thrive in
the custody of either parent .... 11
The court's detailed findings of fact support its decision to
Ir .
name Phillip as Kyle's primary residential custodian.
Specifically, the court found that Juli's relationship with Mark
provided an environment which was unpredictable and filled with
tension. Moreover, in an aborted interview with the court, Kyle
appeared totally undisciplined and unresponsive while in Juli's
care. On the other hand, the court determined that Phillip and
Donetta provided a sound and stable environment in which to raise
Kyle.
After a careful review of the record, we conclude that the
District Court's findings are not clearly erroneous. We hold that
the District Court correctly determined that it was in Kyle's best
interest to have Phillip as his primary residential parent.
I1
Did the District Court exhibit an unfair bias or prejudice
toward Juli: a) through the Judge's questions and comments during
the hearings about Juli' s lifestyle and behavior; or b) through
Finding of Fact No. 4?
Juli argues that the Judge's questions and comments during the
hearings about her lifestyle and behavior and Finding of Fact No.
4 imply that the court was unfairly biased or prejudiced against
her. She argues that this Court should reverse and remand, and
allow a different judge to hear the case.
The court's questioning of Juli at the hearings, was not, as
she suggests, an attempt to trap her. Rather, Juli confused the
court by suggesting that Kyle was attending kindergarten in
Arizona. The District Court questioned Juli about Kyle's
whereabouts. The court was attempting to determine whether Kyle
was attending kindergarten in Arizona in violation of the TRO or if
he remained in Flathead County. The court's questioning does not
imply prejudice against Juli.
Juli further maintains the court's comment, that she led a
llvagabondll
lifestyle, implies prejudice against her. Although
undiplomatic, the court's comment accurately depicts Julils
behavior: packing up and moving out of Mark's household after each
fight with Mark. The comment does not indicate that the court was
biased against her.
Finally, we determine that the court's statement in Finding of
Fact No. 4 that Juli Itbecamepregnant by another man, [but] she
chose not to carry her fetus to term[,ltl
had little or no impact on
the court's decision. The court determined that Juli had Kyle's
best interest at heart and would make his life productive,
challenging and rewarding. The court then concluded that:
[wlhile Kyle will likely thrive in the custody of either
parent, he does seem to be something of an emotional
infant in [Julils] care. [Juli] has only the most
fleeting and ineffectual control over Kyle's behavior,
and as she adjusts to a new life with her current
husband[, Mark,] and continues in counseling with him,
Kyle is likely to receive less guidance and stability
than would be ideal. On the other hand, [Phillip] and
[Donetta] offer Kyle an appropriate measure of discipline
and affection. Despite [Phillip's] past personal
problems, his relationship with [Donetta] appears to be
sound, stable and enduring. For Kyle, the atmosphere in
.. . [Phillip's] family home should offer more of the
same; all, of course, to his advantage as a young and
impressionable child.
Clearly, the court was not biased against Juli. The court
simply determined it was in Kyle's best interest that he live with
his father in a stable family environment. We hold that the
District Court's questions, comments and Finding of Fact No. 4 do
not imply that the court was biased or prejudiced against Juli.
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
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: