Custody of Evans

• Court: Montana Supreme Court
• Decided: February 6, 1996
• Docket: 95-142
• Status: Published

Opinion

NO. 95-142 IN THE SUPREME COURT OF THE STATE OF MONTANA 1996

IN RE THE CUSTODY OF: JESSICA EVANS, a minor child. DAVE EVANS,

Respondent and Respondent.

APPEAL FROM: District court of the Twenty-first Judicial District, In and for the County of Ravalli, The Honorable Jeffrey Langton, Judge presiding.

COUNSEL OF RECORD: For Appellant: Dave D. Evans, pro se, Miles City, Montana For Respondent: Philip J. O'Connell, Missoula, Montana

Submitted on Briefs: January 11, 1996 Decided: February 6, 1996 Filed: Chief Justice J. A. Turnage delivered the Opinion of the Court. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1995 Internal Operating Rules, the following 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 State Reporter Publishing Company and West Publishing

Company.

Dave Evans appeals a child custody decision of the Twenty-

first Judicial District Court, Ravalli County. We affirm. Evans claims the District Court erred by failing to adopt the

recommendations in the custody evaluation by David Stube; by

ignoring the evidence of child abuse, substance abuse, and

violation of previous visitation orders; and by relying upon Cindy

Miller's custody recommendation.

Jessica Evans was born on February 11, 1993. Her parents,

Dave Evans and Kim Chavez, neither married nor lived together.

Since her birth, Jessica has lived with her mother. Evans has

visited Jessica for several days at a time.

In this action, Evans sought to have physical custody of

Jessica placed with himself and his wife, Linda. He claimed that

Chavez has physically abused Jessica.

The court ordered a home study and custody evaluation, and the

parties stipulated that licensed clinical counselor David Stube

would do the evaluation. Stube recommended in writing that Chavez

be granted physical custody initially, with an eventual alternating

custody arrangement. He recommended that both parents complete

2 parenting training with Cindy Miller, a clinical psychologist, and

that Miller then monitor their progress. That recommendation was followed.

Cindy Miller testified that she had met with both Chavez and

Evans and had observed an exchange of custody. She reported that

Jessica is well bonded to Chavez and less well bonded to Evans.

In its findings, the court set forth the results of the

custody evaluation and the recommendations of David Stube. It then stated that it found Miller's testimony "the most insightful and

credible testimony presented." The court found that Chavez had

demonstrated a willingness to abide by the visitation schedule, and

that Evans had not fully utilized his visitation time. It found

that Evans' allegations of abuse had been investigated by local law enforcement and the Department of Family Services but that there

was no record that either agency found any substance to the allega-

tions. The court found that Evans had failed to substantiate his

allegations that Chavez physically abused Jessica. It took notice of both parents' recent criminal convictions for trafficking in

dangerous drugs. The court found that Jessica's best interests

would be served if she was placed in the joint care, custody and

control of her parents, with Chavez as her primary custodian.

Our standard of review is whether the findings of fact are

clearly erroneous. In re Marriage of Dreesbach (1994), 265 Mont.

216, 220-21, 875 P.2d 1018, 1021. The findings must be based upon

substantial credible evidence in the record, and the court's

decision will be upheld unless a clear abuse of discretion is

3 shown. In re Marriage of Zuelke (Mont. 1995), _ P.2d _I _I

52 St.Rep. 1225, 1226. Where there is conflicting evidence, this Court will not reweigh the evidence; the finder of fact (in this

case, the District Court) is in the best position to resolve

conflicting factual testimony. In re Marriage of Boyer (Mont.

1995), ____ P.2d _I _, 52 St.Rep. 1233, 1235.

After reviewing the record, we conclude that the court did not

err in relying heavily on Miller's opinion and in failing to adopt

in their entirety the custody recommendations in Stube's written

report. Further, the claims that the court ignored the evidence of

physical and substance abuse and problems with visitation are

refuted by the findings addressed to those issues. Those findings

are supported by substantial credible evidence in the record. Evans has not shown the findings to be clearly erroneous. We

affirm the decision of the District Court.

y Chief Justice

We concur: