MARRIAGE OF HICKEY
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No. 84-93 IN THE SUPREME COURT OF THE STATE OF MONTANA 1984 IN RE THE MARRIAGE OF SHARON A. HICKEY, Petitioner and Respondent, and ROBERT H. HICKEY, Respondent and Appellant. APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County of Flathead, The Honorable J. M. Salansky, Judge presiding. COUNSEL OF RECORD: For Appellant: Terry A. Wallace, Missoula, Montana For Respondent : Warden, Christiansen, Johnson Berg, Kalispell, Montana & Berg; Stephen C. Submitted on Briefs: July 19, 1984 Decided: October 18, 1984 Filed: O@T : * I984 Clerk Mr. .Justice John Conway Harrison delivered the Opinion of the Court. Robert Hickey, appeals from an order of the District Court of the Eleventh Judicial District, Flathead County, in favor of his former wife, Sharon A. Hickey, granting custody of the minor children to respondent with reasonable rights of visitation remaining with the appellant, under the supervision of the Director of Family Court Services. The parties were married on March 3, 1962. Five children were born of the marriage, two of whom were minors at the time of the trial, namely Kimberly Ann, born April 15, 1969 and Marie Ann, born July 7, 1976. 1982, the wife petitioned for divorce. On August 25, Sharon filed a motion for temporary custody of the three minor children, temporary child restraining support, separate maintenance and a order preventing Robert from contact with her except as necessary in exercise of child visitation rights. On September 17, 1982, the District Court heard the motion. The parties were awarded joint custody of Kimberly Ann and Tracy Lynn, who were granted their preferences as to their residences. Kimberly Ann resided with Robert from the date of the order September 21, 1983 until March, 1983. elected to change her residence to that of Sharon. was awarded temporary custody of She then Sharon the youngest child. Temporary child support and maintenance were ordered. restaining order was granted. The On September 29, 1983, the District Court issued its findings of fact and conclusions of law and final decree of dissolution. Robert was ordered to pay the sum of $110 per month for the support of each minor child. He was also ordered to pay respondent maintenance i n t h e sum of the and advice $100 p e r month. recommendation of the The c o u r t , Director the best i n t e r e s t of the p a r t i e s ' Family of Cour t S e r v i c e s of t h e E l e v e n t h J u d i c i a l D i s t r i c t , upon ruled t h a t two m i n o r c h i l d r e n would be s e r v e d by a n award of c u s t o d y t o S h a r o n w i t h r e a s o n a b l e r i g h t s of v i s i t a t i o n t o R o b e r t u n d e r t h e s u p e r v i s i o n o f t h e D i r e c t o r of Family C o u r t S e r v i c e s . S h a r o n was awarded t h e r i g h t t o o c c u p y t h e f a m i l y home. On to Court $160 May c i t e Robert in 1983, 5, filed for contempt child delinquent hearing, Sharon support. a motion for A t his in f a i l u r e t o pay the time R o b e r t was employed by Plum C r e e k Lumber e a r n i n g a p p r o x i m a t e l y $9.60 o f $15,000 p e r y e a r . per District of the Company, hour w i t h an a n n u a l s a l a r y S h a r o n a l s o moved f o r a n o r d e r b a r r i n g R o b e r t f r o m t h e f a m i l y borne and p r e v e n t i n g him f r o m b e a r i n g firearms. On t h e same d a y , Robert f i l e d a motion t o a l t e r o r amend t h e c o u r t ' s f i n a l d e c r e e b a s e d upon t h e amount o f child support, f a m i l y home. pay the child visitation and t h e p o s s e s s i o n of The c o u r t found t h a t R o b e r t had t h e a b i l i t y t o maintenance and child support amounts and R o b e r t ' s w i l l f u l d e l i n q u e n c y c o n s t i t u t e d a c o n t e m p t of H e was s e n t e n c e d court. County J a i l . s h a l l bear p r e s e n c e of the that the t o serve ten days i n t h e Flathead The c o u r t f u r t h e r o r d e r e d t h a t n e i t h e r p a r t y or use firearms, k n i v e s o r o t h e r weapons i n t h e t h e o t h e r p a r t y and n e i t h e r a s s i s t them u s e s u c h weapons. e n t e r i n g t h e home of have t h i r d p a r t i e s A p p e l l a n t was r e s t r a i n e d f r o m t h e p a r t i e s e x c e p t a t times and d a t e s mutually agreed t o . It is from t h e f i n a l judgment and c o n s o l i d a t e d o r d e r o f t h e D i s t r i c t C o u r t which t h e h u s b a n d a p p e a l s . The i s s u e s r a i s e d on a p p e a l a r e a s f o l l o w s : (1) Whether its d i s c r e t i o n t h e D i s t r i c t Court abused i n a w a r d i n g c u s t o d y of t h e minor c h i l d r e n t o r e s p o n d e n t w i t h reasonable rights under supervision the of visitation of the remaining with Director of Court erred appellant, Family Court Services. (2) Whether respondent the the District exclusive right to by occupy awarding the family residence. ( 3 ) Whether t h e D i s t r i c t C o u r t b a s e d t h e f i n a l d e c r e e upon m a r i t a l m i s c o n d u c t . I t h a s been t h e p o l i c y of t h e f i n d i n g s and c o n c l u s i o n s of t h i s Court to not disturb t h e D i s t r i c t Court i f a r e s u p p o r t e d by 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 . v. Sarsfield Sawyer-Adecor (Mont. 1 9 8 3 ) , 6 7 1 P.2d Intern., Appellant's 595, they Sarsfield 40 S t . R e p . 1736; I n c . v . A n g l i n (Mont. 1 9 8 2 ) , 646 P.2d first issue for review goes to the a d e q u a c y of t h e D i s t r i c t C o u r t ' s f i n d i n g s c o n c e r n i n g s e c t i o n 40-4-212, MCA which sets forth the relevant factors the c o u r t s h a l l use t o determine custody i n accordance w i t h t h e b e s t i n t e r e s t of t h e c h i l d . S e c t i o n 40-4-212, ". . . The c o u r t s h a l l c o n s i d e r relevant factors including: MCA p r o v i d e s : all " ( 1 ) t h e w i s h e s of t h e c h i l d ' s p a r e n t o r parents a s t o h i s custody; " ( 2 ) t h e wishes of custodian; the child as to his " ( 3 ) t h e i n t e r a c t i o n of t h e c h i l d with h i s p a r e n t o r p a r e n t s , h i s s i b l i n g s , and any o t h e r p e r s o n who may s i g n i f i c a n t l y affect the child's best interest; "(4) t h e c h i l d ' s a d j u s t m e n t t o h i s home, s c h o o l and community; and " ( 5 ) t h e m e n t a l and p h y s i c a l a l l i n d i v i d u a l s involved." health of A p p e l l a n t c o n t e n d s t h e r e w e r e no f i n d i n g s r e g a r d i n g any of these factors. Nor w e r e f i n d i n g s made r e g a r d i n g t h e w i s h e s of t h e c h i l d r e n a s t o c u s t o d y a s r e q u i r e d by I n Re M a r r i a g e of Kramer ( 1 9 7 8 ) , 177 Mont. situations where t h e D i s t r i c t Court t h e c h i l d r e n who a r e t h e s u b j e c t s of Neither of Nor t h e D i s t r i c t Court was t h e two c h i l d r e n were s e c t i o n 40-4-214, 439. The h o l d i n g i n Kramer i s l i m i t e d o n l y t o W disagree. e those 6 1 , 580 P.2d MCA, to provides interviewed t h e custody dispute. interviewed compelled which has in t h i s case. i n t e r v i e w them by in part, "the court may i n t e r v i e w t h e c h i l d i n c h a m b e r s t o a s c e r t a i n t h e c h i l d ' s w i s h e s a s t o h i s c u s t o d i a n and a s t o v i s i t a t i o n f i n d t h e p r e f e r e n c e s of .. . t h e c h i l d r e n were c o n s i d e r e d . I' We The y o u n g e s t c h i l d , M a r i e , r e f u s e d t o see h e r f a t h e r b e c a u s e s h e was aware of older his daughter, violence and e x p r e s s e d much terminated Kim, the fear. joint The custody a r r a n g e m e n t upon h e r own v o l i t i o n and c h o s e t o r e s i d e w i t h her mother. The t r i a l c o u r t a p p o i n t e d an a t t o r n e y f o r t h e minor c h i l d r e n . The hearings. believe W e adequatedly represented. justify the court made extensive towards interest the children's interests were The c o u r t went t o g r e a t l e n g t h s t o rights the Director bitterness of the visitation s u p e r v i s i o n of in the attorney actively participated of appellant under Family Court S e r v i c e s . findings respondent two minor of of and children appellant's held would that be the The current the best s e r v e d by a n award o f t h e i r c u s t o d y t o r e s p o n d e n t w i t h r e a s o n a b l e r i g h t s of s u p e r v i s e d v i s i t a t i o n r e m a i n i n g w i t h a p p e l l a n t . Appellant submits t h a t t h e D i s t r i c t Court improperly limited his visitation without s visitation would finding that reasonable seriously endanger the physical, mental, moral or emotional health of the children. his In support of contention, appellant cites this Court to Firman v. Firman (1980), 187 Mont. 465, 610 P.2d 178. In Firman, the District Court restricted the noncustodial father's right to visitation from three months to one month each summer. reversed the District Court, holding that "no We specific finding or conclusion was made that the existing arrangement seriously endangered the children's health." The statute in question as well as Firman, refer to the situation where the amount of visitation time is reduced. In the instant case, appellant's visitation time has not been reduced, it is merely to be exercised under the guidance and supervision of Family Court Services. A central factor in the District Court's decision to permit visitation only under supervision, was that appellant possessed hostility and bitterness toward the marriage. Substantial, credible evidence suggested a potentially serious situation existed association with respondent arrange visitation. with and respect to appellant's the parties1 ability to The District Court specifically found in its findings of fact and conclusions of law that: "During the period of separation, respondent [husband] has attended a series of counseling sessions as an aid in controlling aggressive tendencies which he has displayed during the period of separation. Various incidents involved respondent tearing out a telephone, throwing a beer keg, loading a revolver, and and brandishing assaulting a deputy sheriff. BY observing respondent's demeanor at various court hearings, the court feels .I1 that some of this hostility remains. . The record supports a modification of the custody decree. The husband's violent behavior interferes with an open-ended visitation arrangement and seriously endangers the physical, mental and emotional health of the children. We will not interpret section 40-4-217, MCA, so narrowly as to prevent the trial court from overseeing the visitation arrangements between the parties emotions of aggression, anger and violence. who exhibit The parties' welfare and the moral, physical and emotional well-being of the two minor children must remain the primary consideration We hold the District Court did not abuse its of the court. discretion by awarding custody to respondent with reasonable rights of visitation remaining with appellant under the supervision of the Director of Family Court Services. Appellant next challenges the District Court's determination of respondent's right to exclusively occupy the family residence. Appellant contends the District Court made no findings regarding the parties' financial needs, nor findings regarding respondent's contribution to the marital estate. We disagree. In entering the decree Court made detailed status. The expenditures income. reveal and in findings of this case, the District each parties' court carefully weighed past arrearages versus financial the parties' their projected The findings of fact and conclusions of law clearly the District Court's consideration of 40-4-202, MCA: "The parties had been married for 21 years During the marriage the wife's primary obligation concerned the care and development of the parties' five children. The wife was unemployed during this period and developed no marketable . . . section . . . employment s k i l l s The h u s b a n d i s e m p l o y e d b y Plum C r e e k Lumber Company f o r t h e p a s t 11 y e a r s , e a r n s a p p r o x i m a t e l y t h e husband h a s $9.70 p e r hour. m e d i c a l , d e n t a l and o p t i c a l i n s u r a n c e . The h u s b a n d ' s o p p o r t u n i t y f o r f u t u r e a c q u i s i t i o n o f c a p i t a l a s s e t s was g r e a t e r " than the wife's. . . . . .. Contrary t o appellant's contention, the D i s t r i c t Court did f o l l o w t h e p o l i c y e s t a b l i s h e d by t h i s C o u r t i n V e r t v. Vert 1980), (Mont. stated in Vert, 613 the P.2d trial 1020, 37 St.Rep. 1282. c o u r t may n o t s i m p l y r e c i t e t h e factors listed in the statute, but rather, the t r i a l court must a p p l y t h e s e f a c t o r s t o t h e evidence p r e s e n t e d . the trial court's As apportionment of the W find e property to be equitable. The f i n a l i s s u e a p p e l l a n t r a i s e s f o r r e v i e w i s w h e t h e r the Court District misconduct. believes based punish lists Appellant illustrates the the final decree several trial for perceived Appellant contends that the required him to pay which he judge's intent to marital misconduct. Court's District child marital instances court appellant upon support was order an which abuse of d i s c r e t i o n and t h a t r e s p o n d e n t h a d n o l e g a l r i g h t t o r e c e i v e child support because s h e was currently receiving F a m i l i e s w i t h Dependent C h i l d r e n (ADC) Funds. a p p e l l a n t f a i l s t o r e c o g n i z e is t h a t h e , lnis children, and not the o b l i g a t i o n t o s u p p o r t them. ". . . in part, to or for S t a t e of Aid to However, w h a t as the Montana, father has S e c t i o n 40-5-221, a of legal MCA, p r o v i d e s a n y p a y m e n t o f p u b l i c a s s i s t a n c e money made the benefit of any dependant child or children c r e a t e s a d e b t d u e and o w i n g t o t h e S t a t e o f Montana b y t h e responsible amount of parent public or parents assistance in an money amount so paid. equal . ." to the Also section 53-4-248, MCA. moral obligation This Court has long recognized the of parents, particularly support their children. 169 Mont. 490, 549 P.2d Woolverton v. Woolverton (1976), 458; State ex.re1. Lay v. District Court (1948), 122 Mont. 61, 198 P.2d (1936), 102 Mont. fathers, to 121, 56 P.2d 761; Refer v. Refer 750. In Fitzgerald v. Fitzgerald (Mont. 1980), 618 P.2d 867, 37 St.Rep. 1350, this Court noted: "Respondent (husband) fails to take into account the well-settled principle that the law imposes upon civilized men--the duty to provide food and shelter arrangements for his own. It is one of the conditions upon which Adam was bounced out of the garden, and it has Seen the law ever since. Courts have an inherent jurisdiction to protect infants. They are wards of the government, and the courts are to protect their bread and butter. When doing so, they do not take their clue from Elijah and the ravens, but draw it from the earnings of the father. " 618 P.2d at 868, 37 St. Rep. at 1352. . . We therefore hold, it is the legal as well as moral duty of appellant to support his minor children. Appellant is not absolved from this duty by public assistance provided to his children by a state agency. Appellant's failure to pay the court-ordered child support resulted in a citation for contempt of court. The District Court in its contempt order stated: "There has been an overabundance of hostility in this case and in spite of advice and recommendations from the Court the parties continue a course of conduct that is highly aggressive, somewhat defiant and conduct on appellant's Court's dignity. be uncooperative. tolerated. behalf an . ." abuse of We find such the District Such defiance in a court of law will not The remaining instances wherein appellant alleges the find Court sought to punish him for m a r t i a l m i s c o n d u c t m u s t l i k e w i s e be d i s p o s e d o f . perceived We District no abuse d e t e r m i n a t i o n of of judicial child discretion W e concur: P; - the court's s u p p o r t and m a i n t e n a n c e award. a f f i r m t h e District C o u r t ' s judgment. Chief J u s t i c in \. A b We
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