                                         No. 96-637

              I THE SUPREME COURT OF THE STATE OF MONTANA
               N




IN RE MARRIAGE OF

JEANNI TRYAN,

             Petitioner and Appellant,

       and

WADE TRYAN,

             Respondent and Respondent.



APPEAL FROM:        District Court of the Fifteenth Judicial District,
                    In and for the County of Daniels,
                    The Honorable David Cybulski, Judge presiding.


COUNSEL OF RECORD:

             For Appellant:

                    Katherine M. Irigoin; Neff, Cresap, Rathert, Eiken & Irigoin;
                    Sidney, Montana

                    Thomas W. Trigg; Attorney at Law; Missoula, Montana

             For Respondent:

                    Loren J. O'Toole 11; O'Toole & O'Toole;
   *   .A           Plentywood, Montana


                                                          Submitted on Briefs: March 20, 1997
Justice Jim Regnier 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.

       Jeanni Tryan appeals from the Findings of Fact, Conclusions of Law, and Decree of

Dissolution of Mamage, entered by the Fifteenth Judicial District Court, Daniels County, on

September 12, 1996. Jeanni specifically appeals the conclusion of the District Court that it

is in the best interest of the parties' minor child, Kyle Tryan, to be placed primarily in the

residential custody of his father, Wade Tryan. We affirm.

       The issues on appeal are:

       1.     Did the District Court abuse its discretion in its application of the standard for

determining the best interest of a child under 5 40-4-212, MCA, by naming Wade Tryan as

the primary residential custodian of the parties' minor child?

       2.     Did the District Court err in failing to award attorney fees to Jeanni Tryan?

                               FACTUAL BACKGROUND

       Jeanni and Wade Tryan were married on March 2, 1995. Jeanni is employed as a

billing clerk and Wade is a farmer. The parties have one child, Kyle Tryan, born on

March 25, 1995. Jeanni has five other children by a previous marriage. Jeanni and Wade

separated on October 16, 1995, approximately seven months after their marriage.
       The dissolution was tried before the Fifteenth Judicial District Court on August 20,

1996. At trial, both parties indicated their desire to have permanent custody of their

seventeen-month-old child. The testimony given at trial demonstrated that during the months

of March, April, and May 1995, and during the school term of 1995-96 the paternal

grandparents provided daily care for Kyle while Jeanni was at work. Wade testified that he

also provided substantial care for Kyle during the winter months, as his occupation allowed

a more flexible schedule than Jeanni's schedule. Jeanni testified, and Wade agreed, that

when she was not working her regular hours, or overtime, she was generally with the

children.

       Jeanni testified extensively about Wade's drinking habits. She explained that Wade

spent a substantial amount of time at the Flaxville bar. She testified as to particular instances

when Wade consumed an excessive amount of alcohol and had to receive rides home because

he believed he was too intoxicated to drive. Jeanni stated that Wade had a drinking problem

and had difficulty controlling his temper, especially after consuming alcohol. Jeanni testified

as to certain times when Wade lost his temper and, for example, punched a hole in the wall.

       Wade testified that he did go to the Flaxville bar quite often and had called someone

to pick him up and drive him home when he felt he was too intoxicated to drive. He also

stated that he probably stopped in the bar every day in order to visit friends. Wade testified,

however, that he did not abuse chemicals. There was additional testimony by Randy
Wangerin, a long-time friend of Wade's, and by Wade's sister-in-law, that neither of them

believed Wade was an alcoholic or had a drinking problem.

       After hearing the testimony, the District Court issued its findings of fact and

conclusions of law. In its findings, the court stated that the parties demonstrated that neither

parent abused nor neglected the child, that Kyle had a good relationship with both parents,

and that joint custody was appropriate. The court specifically noted in its findings Jeanni's

testimony regarding Wade's drinking habits and stated that it was aware that small town bars

can "also double as coffee shops, restaurants, community centers and as the common place

where people meet to discuss business." The court found that Wade Tryan and Kyle's

paternal grandparents had provided the substantial care of Kyle during the marriage. The

District Court therefore concluded that it was in the child's best interest to award joint

custody with Wade being the primary residential custodian of Kyle during the school months.

Jeanni appeals this determination.

                                           ISSUE 1

       Did the District Court abuse its discretion in its application of the standard for

determining the best interest of a child under § 40-4-212, MCA, by naming Wade Tryan as

the primary residential custodian of the parties' minor child?

       The standard of review for a district court's award of child custody is whether the

district court's findings are clearly erroneous. In re Marriage of Dreesbaclz (1994), 265

Mont. 216,220-21, 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 the court clearly abuses its

discretion. Marriage ofDreesbach, 875 P.2d at 1021; In re Marriage ofNjos (1995), 270

Mont. 54,60, 889 P.2d 1192, 1195; In re Marriage ofHunt (1994), 264 Mont. 159, 164, 870

P.2d 720, 723. Furthermore, it is not the function of this Court to reweigh the evidence,

substitute our evaluation of the evidence, or pass on thc crcdibility of the witnesses. In re

Matter 0fJ.L. (1996), 277 Mont. 284,922 P.2d 459; Wunderlich v. Lumbermens Mut. Cas.

Co. (1995), 270 Mont. 404,407, 892 P.2d 563, 566.

       Jeanni asserts that the District Court's findings are clearly erroneous and that it abused

its discretion because it ignored Wade's allegedly serious drinking problem, overlooked

Jeanni's role as Kyle's alleged primary care giver, and wrongfully favored Wade's parents as

babysitters, rather than the professional child care service preferred by Jeanni.

       Wade argues that the District Court did consider the evidence and testimony presented

regarding his drinking habits, which parent served as the primary care giver, and Kyle's

relationship with his paternal grandparents. He asserts that the District Court was presented

with contradictory evidence and testimony, was in the best position to resolve these conflicts,

its findings were not clearly erroneous, and thus, the District Court did not abuse its

discretion in its determination that Wade should be the primary residential custodian of Kyle.

        In a determination of an award of child custody, the district court must consider the

best interest of the child. Section 40-4-212, MCA. The court must consider all relevant

factors, including whether a parent has a chemical dependency or chemical abuse problem.
Section 40-4-2 12(1)(g), MCA. Chemical dependency is defined in § 54-24-103(4), MCA,

as

      the use of any chemical substance, legal or illegal, that creates behavicxal or
      health problems, or both, resulting in operational impairment. This term
      includes alcoholism, drug dependency, or both, that endanger the health,
      interpersonal relationships, or economic functions of an individual or the
      public health, welfare, or safety.

An alcoholic is defined by   5 53-24-103(1), MCA, as
      a person who has a chronic illness or disorder of behavior characterized by
      repeated drinlung of alcoholic beverages to the extent that it endangers the
      health, interpersonal relationships, or economic function of the individual or
      public health, welfare, or safety.

       Jeanni asserts that the District Court not only ignored her testimony, but also Wade's

own testimony regarding his drinking habits. Wade testified that he drank around friends.

He testified that there were times when he was intoxicated and could not drive his vehicle

home. Jeanni also testified to these events and to her belief that Wade had a drinking

problem. Jeanni's mother testified that Jeanni was "the sober parent without a doubt." There

was also substantial testimony by Randy Wangerin, who had known Wade for eighteen

years, that Wade was not an alcoholic. Lisa Tryan, Wade's sister-in-law, testified that she

did not think that Wade had a drinking problem and that he has never exhibited any unusual

behavior regarding alcohol consumption. Wade himself testified that he did not abuse

chemicals.
was the primary care giver. The District Court found that the paternal grandparents cared for

Kyle during March, April, and May 1995, and during the school term of 1995-96, and that

Wade provided substantial care of Kyle during the winter months and spent all the time

Jeanni allowed him with Kyle. Although the District Court did not specifically state which

parcnt was thc primary care giver, it is clear to this Court that this factor was taken into

consideration when it determined that primary residential custody should be awarded to

Wade. The district court is not required to make specific findings on each individual factor

of 5 40-4-212, MCA. Dreesbach, 875 P.2d at 1020. As we have previously stated, we will

not substitute our judgement for that of the trial court and reweigh the evidence. The

findings of the District Court regarding the primary care of Kyle are supported by substantial

evidence in the record and are not clearly erroneous.

       Jeanni raises a third and final challenge to the District Court's application of the best

interest of the child standard. She asserts that the District Court abused its discretion when

it named Wade as the primary residential custodian because it allegedly favored Wade's

choice of grandparents as day care providers over her preference of a professional day care

service.

       The District Court concluded that it was in Kyle's best interest to be in the care of his

father. It then stated that it was also in Kyle's best interest to be also in the care of his

grandparents, rather than to be placed in a day care for the school term. This conclusion is

not an abuse of the court's discretion. Section 40-4-212(1)(c), MCA, states that a relevant
factor in determining custody is the interaction and interrelationship of the child with the

child's parent, or parents and siblings, and with any other person who may significantly affect

the child's best interest. The record clearly provides that the grandparents and Kyle have a

close, loving relationship and that Kyle spends a considerable amount of time with his

paternal grandparents. The District Court decision did not award custody to Kyle's paternal

grandparents. See In re Custody ofN..T.E. (1987), 227 Mont. 396,739 P.2d 485. Nor is there

any evidence that the court actually weighed the fact that Jeanni chose to use professional

day care against her. Furthermore, there is nothing in the decree or in the record that

suggests the District Court may have based its decision in this case on the parents' relative

financial abilities, relating in particular to child care, as Jeanni implies. The District Court

merely considered the interrelationship of Kyle with his grandparents as it would be affected

in an award of custody pursuant to the mandates of 5 40-4-212(1)(c), MCA.

       In sum, the District Court considered the relevant factors in determining which parent

acting as primary residential custodian was in the best interest of Kyle, including but not

limited to; the wishes of the parents, the interaction and interrelationship of Kyle with his

grandparents who significantly affect his best interest, Kyle's adjustment to his home, and

any possible chemical dependency or chemical abuse problem of either parent. We hold that

the District Court's finding that it was in the best interest of the parties' minor child to be

placed in the primary residential custody of Wade, was based on substantial evidence in the
record and was not clearly erroneous. The District Court did not clearly abuse its discretion

in making this determination.

                                          ISSUE 2

       Did the District Court err in failing to award attorney fees to Jeanni Tryan?

       The district court has discretion to grant attorney fees after considering the financial

resources of both parties. Section 40-4-1 10, MCA. We will not overturn a district court's

decision regarding an award of attorney fees absent an abuse of discretion. In re Marriage

of Wackler (1993), 258 Mont. 12,850 P.2d 963; In re Marriage ofManus (1987), 225 Mont.

457,733 P.2d 1275.

       After considering the financial resources of both parties, the District Court found that

neither should receive attorney fees and costs from the other. Included in the District Court's

decree were numerous findings regarding income and assets of the parties' earnings and

holdings. The court's findings were supported by substantial evidence in the record and the

District Court did not abuse its discretion in concluding that neither party should receive

attorney fees.

       We affirm.
We Concur:
