                            NO.    96-450
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1997


IN RE THE MARRIAGE OF
CATHERINE QUINN,




SCOTT QUINN,
         Respondent and Appellant.



APPEAL FROM:   District Court of the Fourth Judicial District,
               In and for the County of Missoula,
               The Honorable Ed McLean, Judge Presiding.


COUNSEL OF RECORD:
          For Appellant:
               Christopher Daly, Missoula, Montana

          For Respondent:
               Lucy T. France, Garlington, Lohn    &   Robinson,
               Missoula, Montana




                              Submitted on Briefs: January 9, 1997
                                            Decided: February 18, 1997
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 and West Publishing Companies.
     Scott Quinn and Catherine Quinn were divorced on May 6, 1996.
Scott appeals from the opinion, order and decree of the Fourth
Judicial District Court, Missoula County, affirming the Special
Master's recommended findings of fact and conclusions of law.     We
af firm.
     The following three issues are raised on appeal:
     1.    Did the District Court abuse its discretion when it
awarded sole custody to Catherine?
     2.    Did the District Court abuse its discretion when it
required supervised visitation?
     3.    Were Scott's equal protection rights violated because he
was financially unable to hire an expert to testify on child
custody and visitation?
     Scott and Catherine were married in 1980. Four children were
born of the marriage:      Summer Quinn, Aurora Quinn, Darius Quinn,
and Elias Quinn.       Catherine has obtained her GED and hopes to
attend the University of Montana.     Two children have had emotional
problems, and Catherine takes them to therapy.        Catherine also
spends a significant amount of time reading to her children and
helping them with their school work. She is especially active with
Darius, who is developmentally disabled.
     Scott quit his job in Washington and moved to Missoula in June
1995, where he lived at a KOA campground.       Later, he obtained a
voucher to live in subsidized housing. At the time of the hearing,
he had not sought employment.        Scott obtained money by doing
"little spot jobs here and there," but had not contributed money to
Catherine since he realized that his marriage with her was over.
He applied for Social Security Disability, claiming a "head injury,
drugs and alcohol," but was denied benefits.
     On April 26, 1995, Catherine petitioned for dissolution of
marriage.    The court appointed a guardian ad litem to conduct an
evaluation of the parties and their children. She recommended that
sole custody be granted to Catherine and that Scott receive
supervised    visitation    until   he   completed   a   psychological
evaluation.
     A custody and visitation hearing was held before Special
Master Susan Leaphart.      She determined that Catherine should be
awarded sole custody and that Scott should continue exercising
supervised visitation.     The following relevant facts were included
in the Special Master's recommended findings and conclusions:
     Scott has been diagnosed with a borderline personality
     disorder.      Its characteristics include unstable
     interpersonal relationships, affective instability, and
     behavioral impulsivity. Scott admitted that he had told
     Elias that Catherine had AIDS and was going to die.
     Scott did not think this statement was harmful. Scott
     admitted that he had attempted to force Catherine to have
     sex with him without her consent.         He has smoked
     marijuana in front of the children and states that he
     "supposes it ' s harmful to the kids."      Scott admits
     tossing cold coffee at Catherine and threatening to stuff
     "clean panties in her mouth."
     Scott admits opening a car door while driving to Spokane
     and threatening to jump out. He also admits telling
     Summer that he was not a virgin anymore. He has punched
     walls, thrown a television, and tossed a chair off the
     porch of Catherine's home. He harbored Summer and Aurora
     when they ran away from home. Scott has had chemical
     dependency problems with alcohol and marijuana.
     On May 6, 1996, the District Court issued its opinion, order
and decree, adopting the Special Master's recommended findings and
conclusions.   Scott appeals.
                            Discussion
     1.   Did the District Court abuse its discretion when it
awarded sole custody to Catherine?
     The standard of review for a district court's award of child
custody is whether the court's findings are clearly erroneous.      In
re Marriage of Dreesbach (1994), 265 Mont. 216, 220, 875 P.2d 1018,
1021. The findings of fact must be based on substantial credible
evidence, and the court's decision will be upheld unless a clear
abuse of discretion is shown. Dreesbach, 875 P.2d at 1021.
     Scott argues that the court erred when it failed to grant him
joint custody.   He cites In re Marriage of Mitchell (1991), 248
Mont. 105, 809 P.2d 582, and Wilson v. Wilson (l979), 180 Mont.
377, 590 P.2d 1136. In Mitchell, we determined that a parent's use
of profanity and drunkenness in the presence of children are
factors for a court to consider under    §   40-4-212, MCA.   Mitchell,
809 P.2d at 585.    In Wilson, this Court concluded that a court
could not ignore a parent's activities that occur at home as
evidence of that parent's unfitness.     Wilson, 590 P.2d at 1139.
     Scott claims that the court failed to consider the "chaos" in
the year preceding       the hearing    and   did    not   properly   weigh
Catherine's abuse of alcohol.       He points out that Catherine lived
with a parole violator who assaulted her,.destroyedher home, and
exposed himself to her children. He notes that Summer and Aurora
ran away from home while in Catherine's custody.
     A district court shall award custody according to the factors
set forth in   §   40-4-212, MCA.   In re Marriage of Hogstad (19961,
275 Mont. 489, 495, 914 P.2d 584, 588. From the evidence presented
at the hearing, it is clear that both Catherine and Scott wanted
custody of their children. Catherine wanted sole custody and Scott
wanted joint custody.      However, Scott admitted that he would be
unable to work with Catherine to make joint parenting decisions.
     The children expressed varying preferences concerning custody
and visitation.       Aurora wants no visitation with her father.
Summer would like the opportunity to visit Scott, unsupervised,
when she wishes.     Darius and Elias expressed no preference.
     The   Special    Master   heard   evidence     that   the   children's
relationship with Catherine was healthier than their relationship
with Scott.    Catherine testified to several incidents of Scott's
inappropriate behavior in front of the children. Scott told Elias
that Catherine had AIDS and was going to die.         He informed Summer
that he was not a virgin anymore.         He attempted forced sexual
intercourse with Catherine in the presence of Darius and Elias. He
opened a car door while traveling on the highway and threatened to
jump .
     The Special Master heard evidence that Scott had exhibited
various incidents of violence. He destroyed Catherine's furniture,
television, and punched her wall.             He threw coffee on her and
attempted to stuff panties in her mouth. Scott smoked marijuana in
front of the children.            When asked if he had cooperated with law
enforcement when Summer and Aurora got into trouble, he stated,
"Authorities haven't cooperated with me. . . . "           The guardian ad
litem    expressed        concern   that   Scott's borderline   personality
disorder would negatively affect his ability to parent.
     The record reflects that the Special Master and the District
Court considered the allegations raised by Scott and weighed the
factors set forth in        §   40-4-212,MCA, when they determined custody.
We conclude that the District Court's findings relating to custody
are based on substantial credible evidence and are not clearly
erroneous.     We hold that the District Court did not abuse its
discretion when it awarded sole custody to Catherine
     2.   Did the District Court abuse its discretion when it
required supervised visitation?
     Our standard of review for visitation is whether substantial
credible evidence supports the district court's findings. Hogstad,
914 P.2d at 591.          We will overturn a court's visitation decision
only when the court's findings and conclusions clearly demonstrate
an abuse of discretion. Hosstad, 914 P.2d at 591.
        Scott cites   §    40-4-217, MCA, which requires that for a court
to restrict visitation, it must find that visitation would endanger
seriously the physical, mental, moral, or emotional health of the
children.     Scott argues that because the Special Master made no
such finding, the court abused its discretion.
        Scott also refers to the District Court's order, which states,
"Any parent who would make such a statement [Catherine having AIDS]
is clearly in need of supervised visitation." Scott suggests that
the court failed to notice that he had supervised visitation for
two months before the AIDS remark was made.      He further suggests
that his visitation is supervised because he is tall and speaks
with an unusual voice intonation due to an old head injury.
        The serious endangerment requirement of     §   40-4-217, MCA,
applies when a court "deprive[sl the noncustodial parent of all
visitation rights."     In re Marriage of Njos (1995), 270 Mont. 54,
58, 889 P.2d 1192, 1194. The District Court did not deprive Scott
of all his visitation rights.          It simply required that his
visitation with Darius and Elias be supervised. Section 40-4-217,
MCA, is inapplicable to this case.
        The court made no reference to Scott's height or speech
patterns when     it ordered supervised visitation.         The record
supports supervised visitation because of the inappropriate remarks
Scott has made--such as falsely informing Elias that Catherine has
AIDS.    The fact that Scott made this remark after having supervised
visitation further demonstrates that his visitation with Darius and
Elias should remain supervised.
        We conclude that there is substantial credible evidence to
support the District Court's decision to          require   supervised
visitation. The District Court did not abuse its discretion when
it required supervised visitation.
     3. Were Scott's equal protection rights violated because he
was financially unable to hire an expert to testify on child
custody and visitation?
     Scott claims that because he was unable to afford a forensic
psychological evaluation to present at the hearing, that his right
to equal protection, guaranteed by Article 11, Section 4 of the
Montana Constitution, was denied. An appellant carries the burden
of establishing error by the trial court.     Moreover, Rule 23,
M.R.App.P., requires the appellant to cite to authority which
supports his position being advanced on appeal.    Scott has failed
to support his equal protection argument with a single citation to
case law. We decline to address Scott's equal protection argument.
     The District Court's opinion, order and decree is affirmed.

                                             /-
                                               r
                                             Chief Justice
                                                               ,
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We concur:
