MATTER OF R L S v BARKHOFF

Annotate this Case

Download PDF

No. 83-89 IN THE SUPREME COURT OF THE STATE OF MONTANA 1983 IN THE MATTER OF THE CUSTODY OF R.L.S. and T.L.S., Petitioners and Respondents, VS . CARLA JEAN BARKHOFF, a/k/a ENGDAHL, Appellant and Respondent. Appeal from: District Court of the Tenth Judicial District, In and for the County of Fergus Honorable Nat Allen, Judge presiding. Counsel of Record: For Appellant: William E. Berger, Lewistown, Montana For Respondents: Berger Law Firm, Billings, Montana Torger Oaas, Lewistown, Montana Submitted on Briefs: Decided: Filed: DEC I 6 1983 &&, *lLl&-,,, C Clerk September 2, 1983 December 16, 1983 Mr. Justice John Conway Harrison delivered the Opinion of the Court. This appeal is the second time the custody dispute over these two children has reached this Court. The first decision, Sayer v. Barkhoff (Mont. 1981), 632 P.2d 703, 38 St.Rep. 1328, reversed the District Court ruling remanded it for futher proceedings. Nat Allen assumed jurisdiction and On remand the Honorable from the Honorable LeRoy McKinnon at the request of the parties, and a new trial was held. This appeal is taken from the District Court ruling granting attorney fees before the second trial, and from the ruling granting modification of a Wyoming custody decree. The counter party second trial was a series of accusations and accusations as to the unfitness of the opposing to raise the children. uncontroverted facts From appear as the record follows. the few Appellant, hereinafter Mother and respondent, hereinafter Father, are born October 7, 1975, and the natural parents of R.L.S., T.L.S., born October 1, 1976. When the children were born, the couple resided together in Sheridan, Wyoming, without the aid of marriage. and initially Father They separated in the summer of 1979, retained custody of the children. Following several extralegal attempts to gain custody, Mother petitioned a Wyoming District Court for, and was granted, a writ of habeas corpus giving her custody of the children. Finally the parties signed a custody agreement in settlement of a paternity suit brought by Father. The agreement established Father's paternity, but gave primary custody of the children to Mother and a reasonable r i g h t of v i s i t a t i o n t o F a t h e r . have the children the first S p e c i f i c a l l y Mother was t o s i x months of each year and F a t h e r t h e l a s t s i x months u n t i l each c h i l d reached s c h o o l age. When e a c h c h i l d s t a r t e d a t t e n d i n g s c h o o l , Mother would have c u s t o d y d u r i n g t h e s c h o o l y e a r and F a t h e r d u r i n g t h e summer m o n t h s . Sometime thereafter, Mother and the S h e r i d a n and moved t o L e w i s t o w n , Montana. the Court District of Yellowstone County, the for Thirteenth a petitioned seeking sole left Father petitioned Judicial modification decree, seeking primary custody. children of District, the custody Mother a n s w e r e d a n d c r o s s custody herself. Venue was s u b s e q u e n t l y changed t o t h e T e n t h J u d i c i a l D i s t r i c t , F e r g u s County, where a non-jury t r i a l was h e l d . On December 1, 1 9 8 0 , t h e District Court entered its f i n d i n g s o f f a c t and c o n c l u s i o n s o f l a w , g r a n t i n g t h e Mother s o l e c u s t o d y of t h e c h i l d r e n , and l i m i t i n g t h e F a t h e r t o o n e m o n t h ' s v i s i t a t i o n d u r i n g t h e summer. The e v i d e n c e a t t h i s t r i a l was l i m i t e d t o t e s t i m o n y a b o u t e v e n t s o c c u r r i n g a f t e r t h e Wyoming d e c r e e was i s s u e d , a n d t h i s C o u r t h e l d t h a t was error. On remanded to August the 20, 1981, District the Court case for was reversed further proceedings. Mother moved t h e D i s t r i c t C o u r t on S e p t e m b e r 2 3 , g r a n t her appeal. attorney fees for both the f i r s t and 1981, to t r i a l and t h e A f t e r a h e a r i n g t h e m o t i o n was g r a n t e d o n J a n u a r y 28, 1982. The s e c o n d t r i a l commenced on A u g u s t 5 , 1 9 8 2 . point disappear, and the p a r t i e s t e l l almost d i a m e t r i c a l l y opposed s t o r i e s . At the second the uncontroverted trial, Father facts nearly At this attempted to show that Mother's housekeeping s k i l l s were c h i l d r e n and b e a t them, nill, that she neglected the t h a t s h e a b u s e d a l c o h o l and d r u g s , t h a t h e r l i v i n g a r r a n g e m e n t s w e r e v e r y u n s t a b l e and p o s e d a n u n h e a l t h y e n v i r o n m e n t and s h e c o u l d n o t h o l d a j o b . Mother a t t e m p t e d t o show t h a t F a t h e r a b u s e d a l c o h o l , h a d a v i o l e n t t e m p e r and was b r a i n w a s h i n g t h e c h i l d r e n i n t o b e l i e v i n g s h e had a b a n d o n e d them. in support 1982, of the Both s i d e s p r e s e n t e d numerous w i t n e s s e s their District respective Court stories. entered On O c t o b e r findings its of 25, fact, c o n c l u s i o n s o f l a w and o r d e r . The c o u r t f o u n d t h e e n v i r o n m e n t i n t h e Mother endangered health, their physical, that children a n y harm by a mental, likely change to to ordered Father of the that and visitation. children the custody t h a t Mother be t o modify of the to the custody, that i t was minor would be in the best the decree. children be have l i m i t e d home s and e m o t i o n a l caused Father's o u t w e i g h e d by t h e a d v a n t a g e s a n d interest moral I It changed r i g h t s of was to reasonable This appeal followed. Four i s s u e s a r e r a i s e d by t h e p a r t i e s : 1. adopting Did t h e District Court e r r verbatim Father I s proposed by p h o t o c o p y i n g findings of and f a c t and c o n c l u s i o n s of l a w ? 2. Did F a t h e r D i s t r i c t Court could show s u f f i c i e n t f a c t s f r o m w h i c h t h e order a modification d e c r e e p u r s u a n t t o S e c t i o n 40-4-219, 3. of the custody MCA? Did F a t h e r show s u f f i c i e n t f a c t s from w h i c h t h e District Court could l i m i t Motherws v i s i t a t i o n pursuant S e c t i o n 40-4-217, 4. to MCA? Did t h e D i s t r i c t C o u r t e r r by a w a r d i n g a t t o r n e y fees and expenses to Mother for the first trial and appeal, and not the full amount of her attorney fees for the second trial? Mother also seeks an award of $1,000 for attorney fees of the present appeal. Mother asserts the trial court abused its discretion by photocopying Father's proposed findings of fact and conclusions of law, and argues that since the evidence was conflicting the trial court should have been more careful to exercise its own judgment. Finally she points out certain facts found by the District Court which she claims are not supported by the record. This Court has consistently held that it is not good practice for the District Court to party's proposed finding of fact and because it may lead to error. adopt one conclusions of law Tomaskiev. Tomaskie (Mont. 1981), 625 P.2d 536, 38 St.Rep.416; In Re Marriage of Beck (Mont. 1981), 631 P.2d 282, 38 St.Rep. 1054. the District Court adopts verbatim findings and However, once conclusions they become the court's own, and may not be overturned on appeal unless they M.R.Civ.P. are clearly erroneous under Rule 52(a), Speer v. Speer (Mont. 1982), 654 P.2d 1001, 39 St.Rep. 2204. There is no more than a technical difference between photocopying one party's proposed findings and conclusions and adopting them verbatim, the legal effect is the same. As the cases cited above show, even if the District Court adopts one party's proposed findings and conclusions verbatim, the "clearly erroneous" standard applies on appeal. When the findings and conclusions are not clearly erroneous and are supported by the record, the judge has not abused his discretion by ratifying the proposals of one party. The record in the case at bar contains two stories, and it is difficult to imagine how they could be farther apart. We note that although Father requested the District Court to order an investigation of the "[Hlome, life style, living conditions and stability," of Mother by the Department of Social and Rehabilitation Services, no order was issued. Section 40-4-215, MCA, gives the District Court the discretion to order such an investigation, and we have ruled that absent an abuse of this discretion, it is not error to fail to make such an order. (1977), 174 Mont. 533, 571 P.2d 1142. Schiele v. Sager However, where the respective tales are nearly irreconcilable as here, it is possible that the true facts may not be ascertained by oral testimony alone, and an independent investigation may aid the court immensely. In the future though, District Courts would be well advised to make use of this tool to avoid having to rule simply by choosing between two incredible stories. Approximately five percent of the pertinent facts are agreed on by the parties, the remainder being stubbornly contested by both sides. When the testimony is conflicting and the credibility of the witnesses is the determinative factor, it is the function of the trier of fact to set forth the correct facts. 219, 587 P.2d 939. Cameron v. Cameron (1978), 179 Mont. On appeal this Court views the evidence in the light most favorable to the prevailing party, and if there is substantial evidence to support the lower court's findings they will not be overturned, Cameron, supra. Though t h e e v i d e n c e c o n f l i c t s w i t h o t h e r still be s u b s t a n t i a l . evidence, i t may Campeau v. Lewis ( 1 9 6 5 ) , 144 Mont. Court this 5 4 3 , 3 9 8 P.2d 960. If the District Judge in case found F a t h e r ' s w i t n e s s e s more c r e d i b l e , t h e f i n d i n g s o f f a c t made were c l e a r l y n o t erroneous. Mother's sloven Several witnesses t e s t i f i e d t o housekeeping habits and lifestyle. She a d m i t s s h e h a s h e l d s e v e r a l d i f f e r e n t j o b s i n t h e p a s t few years and was fired f r o m one for being habitually late. T h e r e was ample t e s t i m o n y o f h e r a b u s e o f a l c o h o l and d r u g s i n t h e p r e s e n c e o f t h e c h i l d r e n s i n c e h e r move t o Lewistown. Mother times admitted in receiving evidence the no in having two years steady the changed residences before income. form o f trial, There photographs at and least presently also was is physical introduced s h o w i n g b r u i s e s on t h e body o f R.L.S., five at trial, along with testimony t h a t o n e o f t h e p e r s o n s w i t h Mother had b e a t t h e c h i l d . Mother p o i n t s o u t s p e c i f i c f a c t s w h i c h s h e c l a i m s a r e n o t s u p p o r t e d by t h e r e c o r d . and find her assertions W e h a v e examined t h e r e c o r d incorrect. best At there is c o n t r a d i c t o r y e v i d e n c e c o n c e r n i n g e a c h c l a i m e d e r r o r and a s stated above w e must d e f e r to the judgment of the trial c o u r t where t h e f i n d i n g s a r e based on c o n f l i c t i n g e v i d e n c e . The r e c o r d c o n t a i n s s u b s t a n t i a l c r e d i b l e e v i d e n c e t o support the c o n c l u s i o n s of District law. Court's findings Viewing t h e r e c o r d favorable t o the prevailing party, of fact and i n t h e l i g h t most the court clearly acted w i t h i n i t s d i s c r e t i o n a s t r i e r of f a c t . The s e c o n d i s s u e r a i s e d by Mother is w h e t h e r t h e r e i s a sufficient change in circumstances to warrant a modification 0) h 40-4-219(c), of the custody decree pursuant to Section which p r o v i d e s t h a t : MCA, "The c o u r t s h a l l n o t m o d i f y a p r i o r c u s t o d y d e c r e e u n l e s s i t f i n d s , upon t h e b a s i s of f a c t s t h a t have a r i s e n s i n c e t h e p r i o r d e c r e e o r t h a t w e r e unknown t o t h e c o u r t a t t h e t i m e of e n t r y of t h e p r i o r d e c r e e , t h a t a change h a s occurred i n t h e circumstances of the child or his c u s t o d i a n and t h a t t h e m o d i f i c a t i o n i s necessary t o serve t h e b e s t i n t e r e s t of the child. In applying these standards the court shall retain the custodian appointed pursuant t o t h e p r i o r decree unless: " ( c ) t h e c h i l d ' s present environment endangers s e r i o u s l y h i s p h y s i c a l , mental, m o r a l , o r e m o t i o n a l h e a l t h and t h e harm l i k e l y t o b e c a u s e d by a c h a n g e o f environment is outweighed by its a d v a n t a g e s t o him." The s t a t u t e s e t s o u t a two p a r t t e s t . of The f i r s t p a r t t h e t e s t c o n t a i n s two s u b p a r t s w h i c h b e a r a q u a l i f y i n g relation Mont. to 47, each 530 other. P.2d (1975), Gilmore v. Gilmore 480. There must be a change 166 of c i r c u m s t a n c e s , b u t t h a t c h a n g e i s n o t m e a s u r e d i n a vacuum. The best change must b e s i g n i f i c a n t enough i n t e r e s t s of the child that those l o n g e r s e r v e d by t h e d e c r e e i n f o r c e . c r i t e r i a of S e c t i o n 40-4-212, 1 7 4 Mont. 5 3 3 , 5 7 1 P.2d also involves than those two above, MCA. 1142. are are no are judged by the S c h i e l e v. Sager ( 1 9 7 7 ) , The s e c o n d p a r t o f t h e t e s t s u b p a r t s which but interests the The b e s t i n t e r e s t s o f i n a modification proceeding the child in relation to bear intertwined l e s s of a relation nonetheless. The p r i m a r y c u s t o d i a n may n o t b e c h a n g e d u n l e s s t h e c o u r t f i n d s t h e enumerated dangers e x i s t , outweigh t h e disadvantages. and t h e a d v a n t a g e s o f c h a n g e A s mentioned above, t h e f a c t s f o u n d by t h e t r i a l c o u r t a r e s u p p o r t e d by t h e r e c o r d and a r e thus applied to the test set out in the statute. The District Court did not enumerate the facts which met each part of the test. through the form to findings. However, this court will look the substance of the trial court's In Re the Marriage of A.R.C. 1983), 661 P.2d 459, 40 St.Rep. 499. v. C.K.C. (Mont. The facts, as found by the court, clearly show a change in circumstances of Mother and the children. Mother has removed the children from the Sheridan, Wyoming, area to Lewistown, Montana, several hundred miles from Father. When Mother was granted custody, she held a steady job in Sheridan, but since that time she has bounced from job to job and at the time of trial had no steady means of support. Mother has also developed a habit of changing residences every few months and maintained what could be termed "communal" living arrangements because of the large number of different persons residing temporary and permanent bases. with her on both The children have been left with a variety of young babysitters or with none at all. Mother was incarcerated and fined for conducting herself in a disorderly manner at a Lewistown bar during the time she had custody of the children. There was also evidence that both Mother and members of her household had physically abused the children. struck and This is by no means an exhaustive list of the changed circumstances; suffice it to say that the evidence clearly supports the District Court's conclusions of law numbers 2, 3 and 4. environment with Mother, "endangers The children's seriously physical, mental, moral and emotional health." their "[Tlhe harm likely to be caused to the minor children by a change of e n v i r o n m e n t t o t h a t o f t h e n a t u r a l f a t h e r is m o s t c e r t a i n l y o u t w e i g h t e d by its advantages t o t h e minor c h i l d r e n ; " " m o d i f i c a t i o n is n e c e s s a r y t o s e r v e t h e b e s t and i n t e r e s t s of t h e minor c h i l d r e n . " N e x t , Mother c o n t e n d s t h a t t h e D i s t r i c t C o u r t e r r e d by l i m i t i n g her v i s i t a t i o n because t h e r e was n o f i n d i n g t h a t v i s i t a t i o n would e n d a n g e r t h e c h i l d r e n , n o r would t h e r e c o r d s u p p o r t such a f i n d i n g . The Wyoming custody decree gave both parties r e a s o n a b l e v i s i t a t i o n r i g h t s w h i l e t h e c h i l d r e n were i n t h e care of the other parent. visitation the Court's District i s g o v e r n e d by S e c t i o n restriction of 40-4-217(3), MCA, w h i c h s e t s o u t t h e a p p l i c a b l e s t a n d a r d . parents' Mother's Thus, A v i s i t a t i o n r i g h t s may n o t b e r e s t r i c t e d u n l e s s t h e c o u r t f i n d s t h a t t h e v i s i t a t i o n would, " [ e l n d a n g e r s e r i o u s l y the child's W e note physical, mental, moral o r emotional health." t h a t t h i s i s t h e same s t a n d a r d used t o judge m o d i f i c a t i o n o f c u s t o d y d e c r e e s i n S e c t i o n 40-4-219, the MCA. A p p l y i n g t h e f a c t s f o u n d by t h e t r i a l c o u r t , t h e r e i s c l e a r l y no e r r o r h e r e . The f a c t s d i s c u s s e d i n d e c i d i n g t h e previous issue a l l support the D i s t r i c t Court's decision t o l i m i t Mother's l a w number 2 , environment visitation. S p e c i f i c a l l y i n conclusion of t h e c o u r t found, with the natural " T h a t t h e minor c h i l d r e n s ' mother endangers seriously t h e i r p h y s i c a l , m e n t a l , m o r a l and e m o t i o n a l h e a l t h . " Court w i l l look t h r o u g h t h e form t o t h e s u b s t a n c e o f D i s t r i c t Court's Court apparently ruling, felt A.R.C., that this supra, and unhealthy the This the District environment e x i s t e d when t h e c h i l d r e n v i s i t e d Mother a s w e l l a s when s h e had c u s t o d y o f them. The v i s i t a t i o n r i g h t s w e r e a d j u s t e d a c c o r d i n g l y , and w e f i n d no e r r o r i n t h a t r u l i n g . The fourth is issue raised by both Father, who c o n t e n d s t h a t t h e D i s t r i c t C o u r t e r r e d by g r a n t i n g Mother a t t o r n e y fees f o r t h e f i r s t t r i a l and a p p e a l , and M o t h e r , who c o n t e n d s t h e D i s t r i c t C o u r t e r r e d by n o t g r a n t i n g h e r t h e f u l l amount o f trial. attorney f e e s requested for t h e second The c h r o n o l o g y o f e v e n t s m u s t b e e l a b o r a t e d h e r e t o provide a context for discussion of this issue. The D i s t r i c t C o u r t e n t e r e d i t s f i n d i n g s o f f a c t and c o n c l u s i o n s of l a w a n d o r d e r f o r t h e f i r s t t r i a l on December 1, 1 9 8 0 . Mother had r e q u e s t e d a t t o r n e y f e e s i n h e r a n s w e r t o F a t h e r ' s petition for modification, but were none granted D i s t r i c t C o u r t i n i t s December 1, 1 9 8 0 , o r d e r . his notice of appeal on December 30, by the Father f i l e d 1980. This r e v e r s e d t h e D i s t r i c t C o u r t r u l i n g on A u g u s t 2 0 , Court 1 9 8 1 , and remanded f o r f u r t h e r p r o c e e d i n g s . On December 2 8 , 1 9 8 1 , Mother moved t h e D i s t r i c t C o u r t t o g r a n t h e r a t t o r n e y f e e s f o r t h e f i r s t t r i a l and a p p e a l , and for future costs of the second trial. Briefs were s u b m i t t e d and a r g u m e n t s made b e f o r e t h e D i s t r i c t C o u r t , a n d t h e m o t i o n was g r a n t e d on J a n u a r y ordered to to pay over the 28, 1982. clerk of Father court was $1,500 r e p r e s e n t i n g M o t h e r ' s a t t o r n e y f e e s f o r t h e f i r s t t r i a l and appeal, and $700 f o r f u t u r e a t t o r n e y f e e s . deposited with the clerk of court and The money was Mother's r e c e i v e d t h e e n t i r e amount by A u g u s t 2 3 , 1 9 8 2 . attorney The s e c o n d t r i a l c o n c l u d e d on A u g u s t 3 0 , 1 9 8 2 and t h i s a p p e a l f o l l o w e d . Father contends the District Court was without j u r i s d i c t i o n t o g r a n t a t t o r n e y f e e s f o r t h e f i r s t t r i a l and a p p e a l , and w e a g r e e . M o t h e r ' s m o t i o n was made p u r s u a n t t o S e c t i o n 40-4-110, MCA, w h i c h a l l o w s a t t o r n e y f e e s i n c e r t a i n domestic r e l a t i o n s cases. However, not provide f o r attorney fees, s i n c e t h e judgment did t h e judgment must h a v e been amended b e f o r e e i t h e r p a r t y c o u l d b e o r d e r e d t o p a y t h o s e A m o t i o n t o amend a j u d g m e n t m u s t b e made w i t h i n t e n fees. i t s e n t r y , R u l e 5 9 ( g ) M.R.Civ.P. d a y s of to requests Section Mont. more for 40-4-110, a year fees, is and not overridden by (1979), 183 McDonald v . McDonald MCA. 599 P.2d 312, than attorney This rule applies 356. after Since Mother's the was judgment motion was made it w a s entered, u n t i m e l y a n d t h e D i s t r i c t C o u r t was w i t h o u t j u r i s d i c t i o n to grant attorney fees for the f i r s t t r i a l . The D i s t r i c t C o u r t was a l s o w i t h o u t jurisdiction to g r a n t Mother a t t o r n e y f e e s o n a p p e a l when t h e m a t t e r f i r s t appeared before this address the request, is denial opinion, as Court. it is p a r t as On remand, set out if of Lloyd v. C i t y of G r e a t F a l l s 187. the of ( 1 9 3 9 ) , 1 0 7 Mont. did not That t a c i t in this 588, the Court. 87 P.2d t h e D i s t r i c t C o u r t h a s n o power t o m o d i f y S t a t e Ex R e l . Vaughn v . ( 1 9 4 1 ) , 111 Mont. 552, 111 P.2d t h i s Court e s s e n t i a l l y ordered each p a r t y attorney fees, opinion explicitly judgment t h e j u d g m e n t o f t h e Supreme C o u r t . District Court first t h u s i t i s deemed d e n i e d . effective and The 810. t o bear Since i t s own t h e D i s t r i c t C o u r t e r r e d by o r d e r i n g F a t h e r t o pay Mother's a t t o r n e y f e e s . Mother claims t h a t t h e j u d g m e n t should have contained a n award of the i n t h e second remaining her attorney fees incurred for t h a t t r i a l . trial amount o f Her r e a s o n i n g i s t h a t t h e J a n u a r y 28, 1982, o r d e r g r a n t e d h e r f u t u r e a t t o r n e y fees, which she interprets to mean all attorney fees. However, the order granted a specific amount and did not make a blanket award. Section 40-4-110, MCA, gives the District Court discretion in awarding attorney fees, and absent an abuse of discretion its ruling will stand. Harris v. Harris (Mont. 1980), 616 P.2d 1099, 37 St.Rep. 1696. Finally, Mother requests an award of attorney fees incurred for this appeal. The record contains affidavits of both parties with respect to their financial affairs, which disclose that neither party is receiving an amount of income over their necessary expenses. inordinate In light of the foregoing opinion affirming the District Court, it is ordered that both parties bear their own attorney fees. From the record of this case, it is apparent that neither parent has provided raising the children. an ideal environment for Given that the District Court has continued jurisdiction over child custody matters, see Erhardt v . Erhardt (1976), 171 Mont. 49, 554 P.2d 758, the District Court is hereby ordered to direct the Department of Social and Rehabilitation Services or other appropriate public body, to conduct periodic investigations and make reports of the living conditions and environment of both parents as it may relate to the welfare of the children. This order is made pursuant to Section 41-3-201, MCA, et seq., and is to remain in effect for one year from the date of its entry by the District Court, unless that court deems an extension necessary. Since the children will spend the majority of their time with their Father and thus may be in Wyoming, the District Court shall empower the Department to obtain whatever cooperation and assistance is necessary from the agencies of that state to carry out the order. Affirmed in part, reversing award of attorney fees. We concur: %Add.* z Chief Justice WQa? Justices Mr. Justice Daniel J. Shea, specially concurring: Although I would affirm the result, I emphasize again that the process of adopting verbatim the proposed findings and conclusions of the prevailing party is demeaning to the judicial process.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.