MARRIAGE OF ABRAHAMSON
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NO. 96-091 IN THE SUPREME COURT OF THE STATE OF MONTANA 1996 IN RE MARRIAGE OF JAMES ALAN ABRAHAMSON, Petitioner and Respondent, 011~ tit3 and MICHELLE SHERRIE ABRAHAMSON, Respondent APPEAL 19% FROM: and Appellant. District Court of the First Judicial District, In and for the County of Lewis and Clark, The Honorable Thomas C. Honzel, Judge presiding. COUNSEL OF RECORD: For Appellant: James P. Reynolds, Sherwood, Helena, For Reynolds, Montana Mot1 Respondent: John L. Helena, Hollow, Montana Attorney Submitted at Law, on Briefs: Decided: Filed: and June October 27, 1996 8, 1996 Justice Terry The N. Trieweiler respondent, District Court County, Court the appeals Judicial 5 judgment of the District (f), parties' a the child, Lewis modify Jordin. the and Clark primary The Michelle judgment. in to MCA, Court. motion in The appellant, Court's District Abrahamson, We affirm the order and Court. on appeal James parties' the of filed District 40-4-219(l) motion. District The issue granted of James' the it First to of opinion Abrahamson, custody granted the James pursuant residential delivered is whether Abrahamson's the District motion to Court modify erred custody when of the child. FACTUAL BACKGROUND In decree December of Custody, the District the of marriage, the After to District a restraining the parties joint matter legal Salt could Jordin, the parties a sole child residential rights. both is The agreement primary visitation by decree the James with remained Michelle told City, Utah. James in which order as 1995, Lake Court, of dissolved that Agreement. custody Michelle was into Settlement dissolution, January marriage Incorporated designated the in However, moving Court. and provided custodian, parties' and Property Support, granted the 1992, he moved for to prevent be heard by the James that filed a motion a modification Michelle District in from leaving Court. she of Helena. might be with the custody and Helena before Subsequently, Michelle to filed her amend custody In her March intent to in the dated was to also of that, in order and certain higher resident of Michelle moved Phoenix Business whether she no to Utah, which allowed Hale, evaluation September At 21, the served in heard in She to rate become the At after University the of of time a the it is disputed as to to the District Court classes. Utah, worker, a custody enroll However, in an order to move affidavit, and would provided conduct that Donna a custody report. the motion to modify custody on 1995. life by attend a career tuition 1995. and of College. in-state City. school, social Court 1, Lake submitted to Community enrolled Salt fact, clinical hearing, an unstable be in Michelle District June In was to she was required grants, Utah. purpose the a second the of and pursue purpose for she instead and prepare The City than jointly a licensed her Lake attending did, Utah notice to that In to qualify School ever of that Salt later was not The parties at education Utah she own motion formal Montana she stated Investigation. course stated and her with from University she stated justice hearing, 3, 1995, the 1995, James residence February Bureau 28, a criminal motions, provided Jordin's attend Federal April Michelle change dated move to James' and visitation. 1995, an affidavit her objections James sought that Michelle leads interest would that and therefore, a modification to establish of Jordin's best the custody arrangement. 3 James testified about would his the as him allow Jordin; has ability to role his Helena. Jordin; his his He also the serve with support network family concern about as her Michelle's commitment to to several allegations possession of pornographic with several mens' the to relationship as well his relationships with and desire responded including and how it relationship his expressed Jordin, schedule ability and He into work custodian; parent Jordin women, locker and the room at the fact that athletic club of were shower. Denise friends Blankenship of Michelle had testified been, thought Michelle she lived Michelle with Rivenes, occasion, of in Helena, testified as that a inattentive on several whom to parent. Jordin's Rivenes occasions. first." Jordin presented Fenton, Jennifer Treanna Olson all has a an both inadequate as being Jordin was modification Michelle's Kristi Michelle custody she on impatient that "never while described and needs, and Michelle Blankenship that with time dissolution; a parent. he had taken to the Michelle, materials, his as a parent; effectively by subjects: residential in as of spend strengths since Jordin made to primary Michelle her a number irresponsible evidence would not to boyfriend, Roweena testified that testified with interest. Debbie is Stanton, a good Jordin. on her behalf. 4 because contention best Meehan, Michelle relationship also her be in Jordin's Lamach, strong support parent parent, Karl He stated she that a Paula and and Lieb, that he has developed was doing well relationship for a strong in with moving to Utah. and Michelle her her work asserted that well since moving to Utah, not be in Jordin's best Throughout testimony Salt purchase Robbins but the to City. of that one salon, Michelle testified that nights and asserted that tanning salon asserted, Michelle also contradicted her to Donna regarding in the custody a extremely custody would that her and available licensed Denise her salon, Robbins at those claims, best work the and work to purpose purchase the of the James interest. and established James, the evidence for moving to Utah. schedule would not allow parent. social Her 5 purchase was relevant, clinical evaluation. another. the According stated for disputed Jordin's evidence in day job regarding the salon Furthermore, Michelle to of negotiations contract. evidence amount a tanning to to keep her stability. a doing purchased had sought planned established Hale, her Michelle that be an effective divorce. of of engaged ultimately Michelle's it the were purchase irrelevant lacked reasons as a significant the was that was and weekends. however, And finally, but Michelle during there had breached salon her her availability a modification Michelle's that described since Jordin Jordin interest. Michelle testified her James and and that hearing, relating Lake schedule; she and that as a parent; with both Jordin, testimony abilities relationship her with Michelle's Jordin; Utah; parent; relationship report worker, concluded testified that both Michelle and James evidence of endangerment report recommended share joint genuinely parties Court should to there was Ultimately, parents should should James' no her continue be motion residential joint the to to primary modify custodian, legal Michelle's this Court before the District that motion, support of placing before of this what M.R.App.P." custody, James Court custody, ordered and (19951, motion that established a contained 271 Mont. 1, is granted, and the James' operation James' request for for sanctions. "Michelle's that were district of sanctions part Court 273. of Michelle's Jordin is River the Rule will on appeal. 272, in of violate this 894 P.2d portion not record In actions court that James and references that in the 3, judgment, materials established to refers stricken. alleges the that a request materials well not from strike and before is v. Killingsworth to Court, occurred It appeal a motion any evidence consider that parent. Michelle granted retain with James' that schedule. Subsequent record both James as the primary visitation not while custody, District designated filed either and custodian. The the Jordin, with that, legal residential love 9, not Johnson Therefore, reply brief Products is denied. DISCUSSION Did modify the District Court err when it custody? 6 granted James' motion to When we modification of findings 265, is are 270, a are is at the 619, not decision discretion of modify upon which where a decision a District an 271 Mont. Elser , a 271 Mont. reverse only demonstrated. those (1995), we will custody to whether is hreMarriageofElseu erroneous, related review When findings clearly clearly findings abuse of 270, 895 at 622. it: (1) her Michelle failed asserts to custody the adopt report; proffered (2) evidence; § 40-4-212(3) and (a), Donna Hale's the primary of during the and it Instead, of did apply custody discretion should erred effect of when Hale in certain the law as set forth made the following joint during and should the the custody in to have adopt District recommendations. James that visitation The report's asserts custody; have custody summer. designated failed legal should and James Michelle when it share custodian, year; adopt custodian. its to the report Jordin not modified residential failed residential school custody however, (3) Court made by Donna misapprehended parties as the rights the District recommendations custody Michelle, Jordin that MCA. recommendations: abused standard 622. to On appeal, Court, Court's erroneous. 895 P.2d Court's District custody, clearly predicated P.2d review the the as the District custody primary Court report's recommendations. Section investigation 40-4-215, and report MCA, authorizes concerning 7 a district custodial court to order arrangements for an a child. 1n Marriage of Mosetnan, we interpreted that a district court investigation. 1304, 1306. that they "require After at will "we 31, found even at this recite the Court refer to the Hale's with Michelle An abuse 830 required Marriage of of if discretion the District at the the not abuse Court the and found rejected motion that Court." making District It when its specific fulfilled discretion was only custody finding its when to Michelle The report. required its granted the and times four custody report District did or fact when it specifically Hale make the of report and adopt to findings Furthermore, Donna the that it is court." determine custody Court consider custody discretion the and to We conclude 31, we determined fact by the Court's verbatim. District required to of 28, Marriage of Mosemnn , 2 5 3 Mont recommendations "forthright that report." law was not cases, 1306. to District determination, hold the report's required able the custody, was not not recommendations custody prior held 1306. of its modify are at and custody 253 Mont. finding 830 P.2d statute a court-ordered ordered case, conclusions of our a specific 31, considered 830 P.2d In if by (1992), investigation Mo.~eman, 253 Mont. Court bound a review that a custody be not InreMnrri~geofMosurnan P.2d regarding is that of fact. obligations, it failed and to adopt report. next when it asserts that the the misapprehended evidence. 8 District effect Court of certain abused proffered its At the is in outset a better issues. ~fLA4.D (1993), including a clear hearing, schedule. James, witnesses would nor place with the to those the required regarding District could at that that the Court regarding work His of her own, to her needs, and is Michelle's work schedule and weekends. salon could be The District salon Court had not Michelle tanning and her impulsive. nights tanning to establishing related include the that to Jordin's evidence in forthright been and her her of ability evidence ahead suggested all to establish James' inattentive by her day job. determination Donna Hale with hours of witnesses, Virtually and interests salon work produced The and length. In re Cmto& to move to Utah is Jordin's 712. and a number unstable Michelle Jordin. 708, and will shown." challenged hand, is tanning her an independent with other custody correct attempted also court child is 857 P.Zd Michelle trial resolve discretion her decision on the 'I [tlhe is presumed at great She that to parties testified unpredictable, Furthermore, addition of the that to of be 473, life-style impatient purchase 468, both testified unwilling often of parent. Michelle's that abuse both and defended Court decision was contested. a good we note this court's 259 Mont. testimony parent, is than Donna Hale, is analysis, position unless At the she our The district be upheld the of work reasons for made schedule, moving to Utah. Thus, conflicting ultimately, accounts, the and District forced to 9 Court resolve was a myriad faced of with factual disputes. Based the hearing, more stable custody that the District the substitute during of the conflicts." 1214, the for year. It and witness trial is should have James is well established credibility District Court." 736 P.2d 967, the 528, contains District (19891, that are and 525, the InreMa~ringeofPenning situation of that of at court, when the record function presented James' that 226 Mont. that that weight judgment have recognized determined school the of (1987), AdoptionofJA4.G. and testimony and therefore, evidentiary province evidence Court Jordin our is the Michelle's, issues I' [ilt of than of within on all "we will We evidence, to resolve Mont. 75, we 238 In Ye 969. conflicting Court not 78, conclude such 776 P.2d 1216. Based District on our review Court's were not made findings clearly of erroneous. its modification determination of record, are supported the Jordin's we conclude best District Court that the evidence by substantial Furthermore, that custody, the and that interest did when it required not abuse Court failed a its discretion. Finally, apply Michelle § 40-4-212(3) alleges (a), that MCA, which the District states: The following are rebuttable presumptions and (3) unless contrary to the best interest of the child: Custody should be granted to the parent who has (a) provided most of the primary care during ,the child's life. apply 10 to She contends in its that conclusions 5 40-4-212(3) Despite to its District rebutted. both a presumption & District modify It custody determined that rebutted, mention and § and the best retention that 61, not Court, statutory the be in (a), M.R.Civ.P. 11 but previously in upon which the The District a modification primary Jordin's best on all of a failure the the been failure to most, to primary interest. had at of residential as constitutes, find parent, Michelle Court's to establishes that presumption MCA, Section custody. the based District that it follows of been custodial and logically the fact, Court Rather, as MCA. finding District required the the misplaced. to modify interest (a), in evidence James that Court's preexisting of District the the custody. decision would 40-4-212(3) See Rule mention statute, had, is substantial necessarily the And as we recognized was its mention require the designation custodian that error or 5 40-4-212(3) custody have of Jordin's the residential conclude based that custodian. have to favor apply on the District not unfit there and apply conclude presumption presumption. Court custody error. does in found the to MCA, opinion, Court that fit is we specifically reliance a rebuttable this to assertions, to are one parent a fundamental failed essence, found (a), committed it in Michelle's parents when Michelle's failure 40-4-212(3) law did, Court Court MCA. Court District District of (a), Contrary that the evidence, adequately explicitly harmless We Our decision District meaningless. 212(3) is, that, (a), in all based presumption failure today applicable on constitute substantial The judgment in steps the this and the Court Justice 12 is MCA, § 40-4that We hold case, § 40-4-21213) District of to ensure the District (al, error. of (a), cognizant considered. rebutted, We concur: Chief be adequately mention § 40-4-212(3) appropriate evidence adequately specifically render should take cases, reversible not courts MCA, and should was to does affirmed. MCA, it only statutory Court's does not October8, 1996 CERTIFICATE OF SERVICE I herebycertify tbat,the following certified order was sentby United Statesmail, prepaid,to the following named: James Reynolds,Esq. P. Reynolds,Mot1 and Sherwood 401 No. Last ChanceGulch Helena,MT 59601 JohnL. Hollow Attorney at Law 318 E. sixth Ave. Helena,MT 59601 COURT -
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