                                       NO.     96-096
              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                             1996


IN RE THE MARRIAGE OF
KEVIN    W. JAMES,




APPEAL FROM:          District  Court        of the      Eleventh    Judicial   District,
                      In and for the         County      of Flathead,
                      The Honorable                               Judge presiding.


COUNSEL OF RECORD:
             For     Appellant:
                      H. James Oleson,        Oleson       Law Firm,      Kalispell,         Montana
             For     Respondent:
                      George      B. Best,    Kalispell,        Montana


                                             Submitted       on Briefs:           July   18,     1996
                                                                Decided:           October      8,     1996
Filed:
Justice            William           E.     Hunt,            Sr.          delivered             the     Opinion              of        the      Court.

          Pursuant              to      Section              I,       Paragraph              3(c),           Montana           Supreme                Court
1988      Internal             Operating                 Rules,             this       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     Montana             Law Week,              State            Reporter             and West              Publishing                 Company.

          Kevin             James         appeals              the         order        issued              pursuant              to     a divorce

decree          by     the         Eleventh              Judicial                 District             Court,          Flathead                 County,
awarding              Rhonda            James          primary               residential                    custody           of        the         James'

son,      Joel.              We affirm.
          The         sole         issue         for      our         review           is      whether           the         District                 Court

erred         in      awarding             Rhonda            primary               residential                custody              of        Joel.

                                                                           FACTS
          Kevin            James          (Kevin)            and Rhonda                James           (Rhondal             were        married              in

Kalispell,                 Montana           on January                     25,      1992.             Kevin,          25 years                 old,         is
employed              as      a logger              in        a family                owned           business.                   Rhonda             is      24
years         old          and attended                  but         did      not      complete               college.                  During             the
course          of     the     marriage                Rhonda              was a homemaker                    and was not                     employed

outside              the      home.          At        the         time       of      the      marriage              Rhonda             had a son,
Bradley,              from      a previous                   relationship.                          Kevin      and Rhonda                    conceived

a child,              Joel,         born         June         9,      1993.

          On August                 16,     1994,            Kevin          filed        a petition                  for     dissolution                     of

marriage              in     the     Eleventh                Judicial               District            Court,             Flathead             County.

On      the          same      date          Kevin                filed        an      affidavit                which              alleged                that

because            of Rhonda's               drinking                 habits          and occasional                       neglect             of      Joel,

it     would          be      in     Joel's            best           interests                if      the      court         placed                 him     in

                                                                               2
Kevin's           custody.                       In        her         response                 to      Kevin's              petition,                    Rho&a
denied          that          Kevin         should               be granted                  residential                     custody               of     Joel.

           In         October              of         1994,              the         court            ordered               that             Jolie          Fish,

Director              of       Family             Court            Services,                 conduct                an investigation                           and
prepare          a report              and recommendation                                   regarding                custody,                 support          and

visitation                 rights           of        Joel,            Kevin,            and Rhonda.                       Ms.      Fish's               report,
filed           January              27,          1995,               recommended                     that          Kevin           and         Rhonda              be
granted               joint           custody                    of         Joel,            but            that           Kevin              be         awarded
residential                   custody                 of         Joel.               Ms.        Fish's              report              was          based          on

conferences                   and      home            visits                with         both          Kevin          and         Rhonda,                during

which           MS.           Fish          studied                   their             parenting                   abilities                   and         their

respective                 interactions                      with           Joel.

           In her report,                        Ms. Fish                initially                stated            Kevin's             allegation                  of

Rhonda's              excessive                 drinking                 and Rhonda's                   allegation                  that           Kevin       was

abusive           towards              her.                Ms.        Fish       admitted                   later       in       the          report         that

she      questioned                   Rhonda's                     credibility                       with          respect              to         her      abuse

allegations,                       and           was          not             entirely                 satisfied                    with             Rhonda's

explanation                   of     her        drinking                 habits.
          Ms.         Fish         believed                 that         both           Kevin         and Rhonda                 loved             Joel      very

much,        and that                Joel         exhibited                   a bond or                attachment                  to    each            parent.

Ms. Fish              discovered                 during               a visit            to Kevin's                 home that                 he and Joel

were       affectionate                         toward                one      another,                 and         that         Kevin             responded

appropriately                      when          it    was necessary                         to       discipline                 Joel.               Ms.      Fish

noted        that          Kevin           had        lived'in                  the        Kalispell                area         his          whole         life,

worked           in        a local               family               business,                 and         had      just          bought                a house

where        he intended                    to        stay            indefinitely.

                                                                                    3
          In       contrast,                    when         Ms.         Fish            visited               Rhonda's                apartment,                    she
found        her         in     the         midst           of     entertaining                          a number               of      friends.                   Joel
was      involved                   in     playing               with          his         toys          and        Rhonda,                 her      attention

distracted                 by her             visitors,                  did         not        interact                 much with                 Joel.

          Ms.           Fish             concluded                her         report               by        stating                 that         because             of

Rhonda's                 "immaturity,"                           Ms.      Fish               did         not          believe                 that          Rhonda

"possesses                    the         ability             to ,foster                   an         environment                      that         will           meet

Joel's         physical,                     social,              educational,                        emotional,                  or        psychological

needs."                  Ms.          Fish          recommended                      that          Kevin             be        given              residential

custody            of         Joel,          and       that            "every            effort              should             be made to                  ensure

Joel      has           significant                    contact            with            his         brother,                 Bradley,"              for          whom

Joel      had exhibited                          a great               fondness.
          The matter                      came before                   the     court              for       a hearing                 on May 3,                  1995.

Each      side           presented                    witness            testimony,                      and Ms.                Fish          testified               in

accordance                    with         the        report            she          filed            with          the        court.                The          court

issued            its          Findings                of        Fact,          Conclusions                         of        Law       and         Decree            of

Dissolution                    on         October                18,     1995,               which            dissolved                     the      marriage,

distributed                     the          marital               property,                       and         awarded                 Rhonda              primary

residential                    custody                of     Joel.              Kevin            appeals                 the     District                  Court's

award        of         custody.

                                                             STANDARD OF REVIEW
          1n reviewing                           a district                    court's                  award            of      custody,                  we must

determine                whether                the        court's             findings                  are        clearly             erroneous.                    In

re     the        Marriage                 of       Dreesbach                   (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


                                                                                     4
upheld          unless             a clear             abuse             of discretion                          is     shown.               Dreesbach,                 875
P.2d       at        1021.
                                                                         DISCUSSION

           Did            the          District                court                err             in          awarding                 Rhonda              primary
residential                      custody          of     Joel?

           Kevin             argues             on     appeal                 that            there             are      two         reasons                why        the

District                  Court's              custody              award                was         erroneous:                    first,              the      court

ignored              the     recommendations                             of Ms. Fish,                         an expert              who was hired                      by

the      court             and         was unbiased;                          second,                the         court            based          its         custody

award           in        part         on its          desire                 to     support                  the      continued                  interaction

between              Joel         and Bradley,                      when in                  fact         the        court         had destroyed                       the

likelihood                   of        such          interaction                         as         a result                 of     its          ruling           in      a

prior,           companion                 case.

           While             Kevin         admits              in        his        briefs                   submitted              to      us       that       there

are        no        cases          in     which            we have                      held            that         a district                   court           must

follow           the        recommendations                              of        a court-appointed                               expert,             he argues

strenuously                       nonetheless                   that                in        this              case         the          District                Court

erroneously                      ignored          Ms. Fish's                       recommendations.                               Kevin          points           us to

three           cases            in which            we upheld                     a district                    court's             award           of      custody
in     accordance                  with         the      recommendation                                  of a court-appointed                                expert:

Dreesbach,                   875 P.2d                1018;           In        re        the         Marriage                of     Cook           (19911,             250

Mont.           210,         819 P.2d                180;           and        In        re         the       Marriage              of       Ereth            (1988),

232 Mont.                  492,          757 P.2d            1312.                  Our holdings                        in        these        cases          do not

imply,               as     Kevin          seems          to         argue,                  that            a district                  court's             custody

award            must             be      in         accordance                      with                a      court-appointed                           expert's

recommendations                           in      order             to        withstand                      review          by this              Court.               The


                                                                                         5
only         direction                     we have             given        district                courts          regarding                a court

appointed                expert's                recommendations                    is       that        they      merely         consider              the
recommendations                            in     making               a custody              determination.                          In         re     the
Marriage                of        Moseman              (1992),           253 Mont.                 28,         30-31,       830       P.2d            1304,

1306.

             For         purposes                of         our        review        of        custody              cases,          a       district

court's            willingness                    or unwillingness                        to adhere              to a court-appointed

expert's                recommendations                        is-merely           incidental                   to its         primary           duties

of      considering                        the         "best           interests              of         the      child"          factors               and

awarding                custody            based         on substantial,                      credible              evidence.               In other
words,             as long              as a custody                    award       is        in     the        best       interest              of     the

child         and            is     supported               by substantial,                        credible             evidence,            we will

as      readily                   affirm          an        awarding             judge         who         relied          on      an       expert's

report            as an awarding                       judge           who did         not     rely            on an expert's                 report.

This         is     especially                   so in         light        of     the       principle              which         supports              our

unwavering                    deference                to     a district               court's             custody             determination:

             The responsibility        of deciding     custody                                               is a delicate    one
             which    is lodged      with    the district                                                 court.       The judge
             hearing     oral   testimony       in  such a                                                controversy      has a
             superior     advantage       in determining                                                 the     same,   and his
             decision     ought   not to be disturbed                                                     except     on a clear
             showing    of abuse of discretion.


In      re        the        Marriage             of        Nalivka          (1986),           222 Mont.                 84,      89,       720 P.2d

683,         686         (citations                omitted).

             The District                       Court        in    this         case      properly               considered                the        "best

interest"                     factors            before           awarding               custody.                 The      "best           interest"

factors                 of        course          refer           to      § 40-4-212,                     MCA,       which         provides               in

pertinent                    part:
           (1) The court          shall     determine      custody     in accordance         with
          the best interest             of the child.         The court      shall     consider
          all     relevant       factors,       including      but not limited          to:
                    (a) the wishes           of the child's        parent     or parents        as
          to custody;
                    (b) the wishes           of the child       as to a custodian;
                    (c) 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;
                    (d) the child's              adjustment      to home, school,             and
          community;
                    (e)     the      mental        and    physical        health        of    all
          individuals          involved;
                    (f) physical          abuse or threat          of physical         abuse by
          one parent         against       the other      parent     or the child;          and
                    (g) chemical        dependency,       as definedin         53-24-103,       or
          chemical        abuse on the part of either                 parent.


Section         40-4-212(l),               MCA.            The          District           Court    made      findings

concerning          Joel's         best      interests               before        awarding        Rhonda     custody.

In    its       Findings           of      Fact,        Conclusions                   of    Law    and      Decree       of

Dissolution,           the     court        states         at     Finding          #15:

          15.        The provisions             set    forth      in Section          40-4-212,
          M.C.A.,      were considered            by the Court.          The child,         Joel,
          is too young to express                 his wishes        as to his custodian,
          and each          of    the     parents       believes       he/she        should      be
          designated          the    primary        residential        parent        for    Joel.
          There was no evidence                that    Joel was not adjusted              to his
          home with       Rhonda, even though there was a concern                           about
          the number of moves Rhonda had made in the recent                                 past.
          The       Court        also       considers           the     interaction            and
          interrelationship              between       Joel      and his      half-brother,
          Bradley,       and finds       that it is in Joel's             best interest           to
          fashion      a custodial         arrangement        that will      facilitate        the
          continuation          of that      relationship.


At   Finding        #7 the         court      states:

          7.      Joel     has   continuously                           resided            with  Respondent
           [Rhondal    since   the parties'                           separation            in August  1994.
          Joel is closely       bonded with                          his mother.


At   Findings         9,     10,    and     11,      the        court       states:

                                                                 7
          9.    Rhonda               testified           that   she has been physically                                                and
          emotionally                 abused          by Kevin,   which he denied.

          10.     Janet Cahill,     Director       of the Violence     Free Crisis
          Center     in Kalispell,      Montana,      testified    at the hearing
          concerning      her contacts       with    Rhonda in July      and August
          1994.       She testified      that     she interviewed      Rhonda,   who
          exhibited      many of the          signs    of a physically       abused
          person.       At the time       of the hearing,         Rhonda had been
          counseling      with Mary Jane Fox through            the Violence    Free
          Crisis     Center.

          11. The Court,   having had the opportunity           to observe     the
          demeanor of the witnesses       and consider     all    the testimony
          presented   at   the   hearing,      finds     credible       Rhonda's
          testimony  on the issue    of physical       abuse.

The     court       also         adhered          to     the         applicable                rebuttable                   presumptions

that

          custody    should be granted    to the parent     who has provided
          most of the primary       care during    the child's    life,  which
          the evidence      shows is Rhonda,    and the presumption       that
          the failure      of Kevin   to pay child     support   that   he was
          able to pay was contrary       to Joel's    best interest.


See       § 40-4-212(3)-(4),                          MCA.        Kevin          argues              that         he,        not        Rhonda,

provided           most         of     Joel's           primary             care.             A review                 of        the       record

reveals           conflicting                  testimony              on      this           point,              and        a     court          may

properly          give        more weight               to one party's                     evidence              than        to the            other

party's         evidence.                In      re     the     Marriage               of     Rolfe          (1985),               216 Mont.

39,       699     P.2d         79.        It     was      not        error           for       the      court               to     find         that

Rhonda          provided              Joel's           primary              care,           and       to         apply            the          above

presumption              to     that       finding.

          Kevin         also         contends          that      the        court           failed          to     address                5 40-4-

212    (1) (e) , MCA, one of                      the        "best         interest"               factors             which           requires

a      court       to      consider               "the        mental            and          physical              health                 of      all

individuals              involved,"              and § 40-4-212(l)                          (g),      MCA, which                 requires               a
                                                                       8
court         to consider                 "chemical                dependency,                   as defined                in     53-24-103,              or
chemical             abuse        on the          part         of       either               parent."                Kevin's             contention
is     based         on the             court's              failure               to        make       specific                findings            as to

these         "best         interest"                 factors.

             In In        re the          Marriage             of       Clingingsmith                         (1992),            254 Mont.           399,

838 P.2d          417,           we explained                  the       extent              of a district                  court's           duty        to

make findings                    concerning                  the        "best           interest"               factors:
             While      it   is encouraged,        the trial        court     need not make
             specific        findings      on each of the            factors.         However,
             failure       to at least        consider       all     of the statutorily
             mandated        factors     is error.       The custody           determination
             must be based on substantial                 evidence        relating       to the
             statutory        factors    and must be set forth           explicitly       in the
             findings.           The findings    should,      at a minimum,          set forth
             the      'essential       and determining           facts     upon which         the
             District        Court     rested   its    conclusion          on the       custody
             issue. '


Clinqinqsmith,                     838 P.2d             at     421        (citations                   omitted).                  As to       Kevin's

contention                that      the     court            did        not     address              5 40-4-212(l)                   (e),     MCA, we

conclude             to     the     contrary.                      The court,                  in      its      Findings,                noted       that

both         Kevin        and Rhonda                  were         in     good           health,              and that             Ms.       Fish        was

concerned              about        Rhonda's             instability                         and immaturity.                      The court              "at

least         considered"                 this         factor.

             We have             also       stated             that           a district                     court      need          not         make         a

finding          concerning                 a "best                interest"                  factor          which         is     not       at     issue

or     for      which        there         is     no evidentiary                             support           in    the         record.            In    re

the     Marriage             of Otto             (1990),             245 Mont.                 271,          275,     800 P.2d              706,     709.

While          Kevin        alleged              in     his         affidavit                  submitted              with         his       petition

for       dissolution                   that          Rhonda             has            an     alcohol              abuse          problem,              the
record          reveals            that        he did          not       pursue               this      matter          at trial.                  Rhonda


                                                                               9
and one other                    witness             were          simply            asked             whether              Rhonda                ever         drank

alcohol            while         she         was          married            to      Kevin.                    The      answers                   are     not      as
important              as the           questions                  that        were        asked,                which            could            only         have

elicited              the      fact         that          Rhonda may have                        drunk            alcohol,                   not        that      she

had an alcohol                     abuse           problem.                 While         we have                stated                our        preference

for       district               courts             to        make          findings                   concerning                      all         the         "best

interest"              factors,              it      is understandable                                that       the       court             here        did     not

address            § 40-4-212(l)                    (g),         MCA, for             there               is     nothing                in        the      record

of       the     proceedings                  which             would        prompt              it      to      do so
               From      our       review                of     the         record          it           is      clear             that            the         court
carefully                and       conscientiously                            considered                        Joel's             best             interests

before            awarding              custody.                      It      is      equally                   clear             to         us     that          the

court's            findings             in        this        regard          were        based                on substantial                           credible

evidence.                   That         the        court's                findings                   conflict              with             some         of      the

recommendations                        in     Ms.         Fish's            report         or with                   some         of         the        evidence

Kevin           presented              at         trial          does         not         constitute                       error             or         abuse      of

discretion.                    A trial             court         is        given      wide             latitude              in        these            matters,

and        is      not       bound           by           any      testimony,                    expert               or      otherwise.                          The

District              Court           considered                 Ms.         Fish's          report                  and     her             testimony             at

trial,            and ultimately                         decided            not      to    rely                on her         recommendations:

               13.      Extensive        testimony          was presented             concerning      the
               best     interests          of     the      minor        child       and the       proper
               residential        parent.        Jolie      Fish,     Director        of Family     Court
               Services,       testified         pursuant          to her report            of January
               1995.       She testified           that     at the time of her report                  she
               had not received           information           concerning         Kevin's     physical
               abuse of Rhonda, and that she had significant                               concerns     in
               that    regard.         Ms. Fish testified                 that     Rhonda exhibited
               symptoms       of an abused person,                    but she also            expressed
               concerns      about Rhonda's            instability          and lack of maturity.
               She acknowledged             that     removing         Joel      from Rhonda's        care
               would       be traumatic            to him,          but      did     not   change      her

                                                                               10
         recommendation      that    Kevin                                       be     designated                     the           primary
         residential    parent    for Joel.


We disagree                      with        Kevin's             first           argument.                 The             court           adequately

considered                 the        best      interest                 factors         and based                   its          conclusions               on

substantial,                     credible            evidence.                 The court's                 findings                 set      forth         the

"essential                      and       determining                    facts          upon        which                  [it]           rested           its

conclusions                     on the          custody             issue."              The        court             did          not      abuse          its

discretion.
          As         to         Kevin's         second             argument,                he      contends                  that          the        court

erred       in       partly             basing          its       custody             award         on the             court's               desire         to
foster           the        relationship                   between               Joel       and      Bradley,                     a relationship

already              compromised                 by        the      court's             ruling          in           a prior,                companion

case.            The        essence             of      Kevin's             second            argument                is          that      the        court

based          its          custody             award            o,n a         mistaken             premise,                      that          Joel       and

Bradley           had a relationship                             that,      could        be maintained;                            Kevin          does     not

argue       that           it     was improper                   for      the       court        to consider                      maintaining                or

fostering                 one of           Joel's          relationships.
          Kevin            cites          the District                   Court's         Findings               of Fact,                  Conclusions

of    Law and Temporary                             Order         issued           September               8,        1995 in              the      case      of

Ogle      v.         James,             Cause        No.      DR-93-046(B)                    (Eleventh                Judicial                 District

Court,           Flathead               County),              where        the        court       ordered                  that          Justin        Ogle,

Bradley's                  natural            father,            be awarded                 primary              residential                       custody

and      that          Rhonda             be awarded                visitation                rights.                  Kevin              argues          that

since          Rhonda             no longer                has      physical             custody                of     Bradley,                   awarding

her      custody                of Joel         would         not        and could            not     foster                any relationship

between              the        two young            boys.             Kevin        argues          that         the         court's              order        in


                                                                               11
Ogle       v.      James             "destroyed"                 the             relationship                    between             Bradley                and
Joel.           We disagree.
           The record                reveals            that         the         court,            in    awarding             Rhonda             custody

of      Joel,      in        part       to        foster         Joel's                 relationship                with            Bradley,                was
well       aware        of     the      contents                of        its        order         in     the     Ogle        v.     James            case.

Kevin          raised         this          same argument                        before            us now in            his         Motion            for     a

New Trial           filed            with         the   District                  Court,            and in        its     Order                on Motion

for      a New Trial                  and Rationale                        the       court          responded:

           With regard to paragraph                                        (5) of the Motion,        the Court was
           aware    that       Bradley      no                            longer       primarily     resides     with
           [Rhondal,       but      intended                                that     Bradley      and Joel      could
           maintain      their     relationship                                  during    periods    that   Bradley
           was in [Rhonda’sl            care.

Bradley           and Joel's                 relationship                        was not            destroyed,                and         is     in    fact

maintained              by the              grant          to    Rhonda               of        residential              custody                 of    Joel

combined           with        her      visitation                    rights               to      Bradley.             We conclude                    that

it     was proper              for          the     court            to         fashion            the    custody             arrangement                    as

it      did,      especially                 when we consider                               that         Kevin      does            not         have        any

visitation              rights              to     Bradley.

           We hold            that          the     District                    Court        did        not     abuse         its         discretion

in      awarding          Rhonda             primary            residential                        custody         of    Joel.

           Affirmed.




                                                                                12
