In Re the Marriage of Cook , 250 Mont. 210 ( 1991 )

No. 91-099
IN THE SUPREME COURT OF THE STATE OF MONTANA
IN RE THE MARRIAGE OF
DEBORAH LYNNE COOK,
petitioner and Appellant,
and
MARK STEVEN COOK,
Respondent and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Joan Meyer Nye; Nye & Meyer, Billings, Montana
For Respondent:
Christopher P. Thimsen, Billings, Montana
Submitted on Briefs: July 25, 1991
Decided: August 27, 1991
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
This is an appeal from the child custody determination in a
dissolution of marriage. The District Court for the Thirteenth
Judicial District, Yellowstone County, granted Mark Steven Cook
sole custody of the parties' son and ordered that Deborah Lynne
Cook's visitation be supervised. She appeals. We affirm.
Deborah lists nine issues, all of which relate to whether the
District Court erred in its custody determination.
Deborah Lynne Cook (Deborah) and Mark Steven Cook (Mark) were
married in 1986. Their marriage was marked by several lengthy
separations, but it survived to produce a son, Ryan, born in
January 1990. At the time of trial, Ryan was six months old.
Deborah had primary physical custody of the baby until an
April 20, 1990, incident in which she confronted Mark at the
Billings, Montana, airport. While the parties presented different
descriptions of this incident, the District Court found that
[Deborah] shoved Ryan into [Mark's] arms, became verbally
abusive, physically removed [Mark's] boarding pass and
had [Mark's] luggage pulled. In addition, [Deborah]
knocked [Mark's] glasses off and physically removed
[Mark's] camera, which [Mark] later retrieved with the
assistance of airport security.
Mark had physical custody of the baby from that time until the time
of trial. During Mark's pre-trial custody, Deborah was granted
supervised visitation.
At trial, Deborah testified that Mark had been abusive during
their marriage. Mark testified that Deborah had disappeared from
the marital home for months at a time, without explanation- Both
parties presented testimony by mental health professionals who had
treated Deborah. While their diagnoses differed, all agreed that
Deborah was in need of continued mental health treatment.
A court-appointed social worker conducted an investigation on
the issues of custody and visitation. In her report to the court,
she recommended that Mark be granted sole custody of Ryan and that
Deborah have supervised visitation until her treating mental health
professional determined it was no longer necessary. She stated
that Deborah l1hasmany unresolved problems in her history and she
consistently blames others for her experiences and her actions.''
She also stated that Deborah ''uses manipulation, intimidation and
threats in her attempt to control her envir~nrnent,?~
and Ithas
expressed her anger and hostility in a frightening, vicious and
vindictive manner." The District Court adopted the custody
arrangement recommended by t h e social worker in its findings and
conclusions entered August 7, 1990.
In an order entered October 16, 1990, the District Court named
the supervisor for Deborah's visitation with her son and set the
visitation schedule at 10:OO a.m. to 1:00 p.m. on Tuesday, Thursday
and Saturday. On December 18, 1990, the District Court denied
Deborah's motion for new trial and other relief.
Did the District Court err in its custody determination?
Initially, we note that this Courtf standard of review of the
s
findings of fact in a child custody determination is whether the
trial court has abused its discretion. In re Marriage of Obergfell
(1985) 218 Mont. 8 3 , 87, 708 P.2d 561, 563. This Court will not
substitute its judgment for that of the district court where the
evidence conflicts, but rather will limit itself to determining
whether there is substantial credible evidence in the record to
support the district court's findings. Oberqfell,
Deborah argues that the District Court erred in failing to set
forth the reasons it did not award joint custody. Section 40-4-
224 ,
(1) MCA, requires that
[ulpon application of either parent or both parents for
joint custody, the court shall presume joint custody is
in the best interest of a minor c h i l d unless the court
finds, under the factors set forth in 40-4-212, that
joint custody is not in the best interest of the minor
child.
Deborah points out that she requested joint custody.
The court found, at finding # 16, that "it is in Ryan's best
interest that [Mark] be awarded sole custody and [Deborah] receive
visitation.I t We conclude that, in combination with the court s
other findings, finding meets t h e requirements
224(1), MCA.
Deborah states that the District Court failed to make a
finding as to the mental health of the parties. This assertion is
incorrect. The District Court found that Deborah "has seen a
variety of mental health care professionals during the course of
the marriage,'* and that, although their diagnoses differ, some
concluding that she suffers a mixed personality disorder, others
that she suffers from a bipolar affective disorder, all agree that
she is in need of further treatment. The court also found that
Mark has previously been treated by mental health care profes-
sionals, has received in-patient treatment for alcohol abuse, and
was in counseling at the time of trial.
Deborah also asserts that the ~istrictCourt erred in failing
to have a full custodial investigation. The court-appointed social
worker testified that the report was Itthebest that I can do." In
her report, she stated that she was not able to do an actual
custody investigation because "Instead of interviewing the mother,
Deborah, I was only in contact with her at her direction." She
testified that, in making her report, she referred to written
records including court files, police records, written reports from
mental health records, and medical reports. She interviewed Mark,
Deborah, and Deborah's father. She further testified that the
previous fall she had prepared a report concerning custody of
Deborah's daughter. She noted the confusion as to Deborah's
diagnosis. As the incompleteness in the investigation seems to
result primarily from Deborahls uncertain diagnosis and her
unavailability to meet with the social worker, we conclude that no
reversible error has been shown as to this aspect.
Deborah argues that the court should have relied more on the
testimony of her psychologist and psychiatrist. Those witnesses
testified that they believed Ryan would be safe with Deborah.
However, as Mark points out, none of Deborahls witnesses went so
far as to say that it would be in Ryan's best interest to be placed
in Deborah's custody. We conclude that no error has been shown.
Deborah contends that the District Court should not have
relied so heavily on the opinions of the court-appointed social
worker and of counselor Swaggerty, both of whom recommended that
Mark be granted custody of Ryan and that Deborah be granted only
supervised visitation. Nothing in the record indicates that the
court failed to exercise its own independent judgment after
listening to all of the evidence. However, even heavy reliance on
expert testimony does not necessarily constitute abuse of a
district court's discretion. In re Marriage of Ereth (1988), 232
Mont. 492, 494, 757 P.2d 1312, 1313-14.
Deborah argues that she should have been awarded primary
physical custody of Ryan because of a presumption that primary
custody should be awarded to a nursing mother. We are unaware of
such a presumption, and, even if such a presumption were recognized
in Montana, it could be outweighed by other circumstances.
Deborah also cites § 40-4-217(1), MCA, which provides that
[a] parent not granted custody of the child is entitled
to reasonable visitation rights unless the court finds,
after a hearing, that visitation would endanger serious-
ly the child's physical, mental, moral, or emotional
health.
She argues that limiting her to supervised visitation is improper
because there was no finding that visitation would seriously
endanger Ryan's physical, mental, moral, or emotional health.
The statute does not state that "reasonable visitation," with
no further qualifiers, will be awarded if none of the listed
findings are made. Under the statute, some visitation will be
allowed unless one of the listed findings is made. Deborah has
been granted some visitation. We conclude than no violation of 9
40-4-217(1), MCA, has been shown.
Deborah points out that the record shows that when she had her
son, she provided him with good, loving care. While she is
correct, two expert witnesses recommended that she be granted only
supervised visitation until her mental problems are treated.
At finding # 10, the District Court stated that
Similarly, [Deborah] has only supervised visitation with
a child by a previous marriage, pursuant to an Order
issued by a State Court in Hawaii on April 2, 1990.
Furthermore, the father of that child has obtained sole
custody.
Deborah argues that this finding constitutes error because cus-
todial and visitation arrangements for a party's previous children
are not factors to be considered under 5 40-4-212, MCA, in deter-
mining best interest of the child.
Mark introduced into evidence a copy of the stipulation by
which Deborah agreed that her former husband would have custody of
her daughter. That stipulation provided that Deborah's visitation
would be limited to one hour of supervised visitation once a week,
to be preceded by two months of therapy for the daughter so that
her "fears and anxiety concerning [the] visitation" could be mini-
mized. The stipulation further required Deborah to supply her
daughter's therapist with "a complete copy of her present psychia-
tric/psychological records, files and reports for the purpose of
assisting said psychologist/therapist in reaching his or her
recommendation." We conclude that this matter relates to Deborah's
mental health, a factor listed under 5 40-4-212, MCA, in determin-
ing best interests of the child, and was thus properly considered.
Deborah argues that the District Court abused its discretion
in limiting Ryan's time with her to nine hours a week. We dis-
agree. The proposals for supervised visitation which were before
the District Court were Mark's, which was adopted, and Deborah's,
which was that she be granted visitation from 7 a.m. until 7 p.m.
each weekday and for six hours a day on weekends. Mark also
submitted an affidavit that Deborah's proposed schedule would be
a hardship requiring him to get Ryan up early simply to take him
to Deborah's, that Deborah was continuing to harass him by phone
and in person, and that Deborah had changed the supervising person
and the time of visitation on several occasions in the interim
since the trial. We conclude that the court did not abuse its
discretion in adopting Mark's proposed schedule.
Deborah asserts that counselor Swaggerty misrepresented his
educational background in court. He testified that his educational
"background is from U.C.L.A. and the Graduate School of Psychology
in the University of California, Los Angeles." In her motion for
new trial, Deborah submitted an affidavit of the Dean of Ad-
ministration of Rosemead School of Psychology at Biola University
in La Mirada, California. The dean stated that Swaggerty received
his Ph.D. from Rosemead in 1978. Swaggerty did receive a B.A. in
psychology from U.C.L.A.
No prejudice has been shown from the apparent error in
Swaggerty's statement at trial concerning his alma mater. It does
not appear critical to his testimony which university granted his
advanced degree. We conclude that the District Court did not err
in denying the motion for new trial on this basis.
Affirmed .
/ " Chief Justice
We concur:
August 27, 1991
CERTIFICATE O F SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Joan Meyer Nye
NYE & MEYER, P.C.
3317 Third Ave. North
Billings, MT 59101
Christopher P. Thimsen
Attorney at Law
2812 1st Avenue North, Suite 210
Billings, MT 59101
ED SMITH
CLERK O F THE SUPREME COURT
STATE OF MONTANA