R.L.S. v. Barkhoff

674 P.2d 1082, 207 Mont. 199, 1983 Mont. LEXIS 872
CourtMontana Supreme Court
DecidedDecember 16, 1983
Docket83-089
StatusPublished
Cited by13 cases

This text of 674 P.2d 1082 (R.L.S. v. Barkhoff) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
R.L.S. v. Barkhoff, 674 P.2d 1082, 207 Mont. 199, 1983 Mont. LEXIS 872 (Mo. 1983).

Opinions

MR. JUSTICE 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 and remanded it for further proceedings. On remand the Honorable Nat Allen assumed jurisdiction from the Honorable Le-Roy 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 second trial was a series of accusations and counter accusations as to the unfitness of the opposing party to raise the children. From the record the few uncontroverted facts appear as follows. Appellant, hereinafter Mother, and respondent, hereinafter Father, are the natural parents of R.L.S., born October 7, 1975, and T.L.A., born October 1, 1976. When the children were born, the couple resided together in Sheridan, Wyoming, without the aid of marriage. They separated in the summer of 1979, and initially Father 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 right of visitation to Father. Specifically Mother was to have the children the first six months of each year and Father the last six months until each child reached school age. When each child started attending school, Mother would [204]*204have custody during the school year and Father during the summer months.

Sometime thereafter, Mother and the children left Sheridan and moved to Lewistown, Montana. Father petitioned the District Court of the Thirteenth Judicial District, Yellowstone County, for a modification of the custody decree, seeking primary custody. Mother answered and cross petitioned seeking sole custody herself. Venue was subsequently changed to the Tenth Judicial District, Fergus County, where a non-jury trial was held.

On December 1, 1980, the District Court entered its findings of fact and conclusions of law, granting the Mother sole custody of the children, and limiting the Father to one month’s visitation during the summer. The evidence at this trial was limited to testimony about events occurring after the Wyoming decree was issued, and this Court held that was error. On August 20, 1981, the case was reversed and remanded to the District Court for further proceedings. Mother moved the District Court on September 23, 1981, to grant her attorney fees both the first trial and the appeal. After a hearing the motion was granted on January 28, 1982.

The second trial commenced on August 5, 1982. At this point the uncontroverted facts nearly disappear, and the parties tell almost diametrically opposed stories. At the second trial, Father attempted to show that Mother’s housekeeping skills were nil, that she neglected the children and beat them, that she abused alcohol and drugs, that her living arrangements were very unstable and posed an unhealthy environment and she could not hold a job. Mother attempted to show that Father abused alcohol, had a violent temper and was brainwashing the children into believing she had abandoned them. Both sides presented numerous witnesses in support of their respective stories. On October 25, 1982, the District Court entered its findings of fact, conclusions of law and order.

The Court found the environment in the Mother’s home [205]*205endangered their physical, mental, moral and emotional health, that any harm likely to be caused to the minor children by a change to Father’s custody, would be outweighed by the advantages and that it was in the best interest of the children to modify the decree. It was ordered that the custody of the children be changed to Father and that Mother have limited rights of reasonable visitation. This appeal followed.

Four issues are raised by the parties:

1. Did the District Court err by photocopying and adopting verbatim Father’s proposed findings of fact and conclusions of law?

2. Did Father show sufficient facts from which the District Court could order a modification of the custody decree pursuant to Section 40-4-219, MCA?

3. Did Father show sufficient facts from which the District Court could limit Mother’s visitation pursuant to Section 40-4-217, MCA?

4. Did the District Court err by awarding attorney 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 adopt verbatim one party’s proposed finding of fact and conclusions of law because it may lead to error. Tomaskie v. 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. However, once [206]*206the District Court adopts findings and conclusions they become the court’s own, and may not be overturned on appeal unless they are clearly erroneous under Rule 52(a), M.R.Civ.P. Speer v. Speer (Mont. 1982), [201 Mont. 418,] 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 “[H]ome, 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. Schiele v. Sager (1977), 174 Mont. 533, 571 P.2d 1142.

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R.L.S. v. Barkhoff
674 P.2d 1082 (Montana Supreme Court, 1983)

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Bluebook (online)
674 P.2d 1082, 207 Mont. 199, 1983 Mont. LEXIS 872, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rls-v-barkhoff-mont-1983.