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                                                               No. 00-130

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             2001 MT 24N

                                                   IN RE THE MARRIAGE OF

                                                     TIMOTHY W. SANNER,

                                                     Petitioner and Respondent,

                                                                     and

                                                          SUE E. SANNER,

                                                    Respondent and Appellant.

                         APPEAL FROM: District Court of the Thirteenth Judicial District,

                                             In and for the County of Yellowstone,

                                The Honorable Maurice R. Colberg, Jr., Judge presiding.

                                                     COUNSEL OF RECORD:

                                                             For Appellant:

                                     Lee Rindal, Rindal Law Firm, Billings, Montana

                                                            For Respondent:

                               J. Greg Tomicich, Briese & Tomicich, Billings, Montana

                                               Submitted on Briefs: June 22, 2000
                                                  Decided: February 15, 2001

                                                                   Filed:

                                   __________________________________________

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                                                                     Clerk

Justice Jim Regnier delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent but shall be filed as a public
document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number, and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.

¶2 Sue E. Sanner appeals from the Court's Findings of Fact and Conclusions of Law
entered by the Thirteenth Judicial District Court, Yellowstone County, terminating her
marriage with Timothy W. Sanner. Sue contends that the District Court erred when it
designated Tim the primary residential parent for the couple's four minor children. We
affirm.

                                                          BACKGROUND

¶3 Tim and Sue Sanner were married on September 16, 1989. At the time of trial, the
couple had four minor children: Emily, age nine; Jordan and Sidney, both age seven; and
Tyler, age five. Tim and Sue separated in October 1998. From December 26, 1998, until
June 1, 1999, Tim was the sole provider of parental care for the children.

¶4 On January 22, 1999, Tim filed a Petition for Dissolution of Marriage. On June 7,
1999, the District Court ordered Court Services to investigate the home and circumstances
of Sue and Tim and make recommendations regarding care, custody, and control of the
minor children. A bench trial was held on December 23 and 27, 1999. The court issued its
findings of fact and conclusions of law on January 5, 2000, designating Tim the primary
residential parent for all four of the couple's minor children. Sue appeals.

                                                  STANDARD OF REVIEW

¶5 We review a district court's award of child custody to determine whether the district
court's findings are clearly erroneous. In re Marriage of Baer, 1998 MT 29, ¶ 18, 287
Mont. 322, ¶ 18, 954 P.2d 1125, ¶ 18. If the court's findings are supported by substantial
credible evidence, we will affirm its decision unless a clear abuse of discretion is shown.
Baer, ¶ 18.

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                                                              ISSUE ONE

¶6 Whether the District Court erred when it designated Tim the primary residential parent
for the couple's four minor children?

¶7 Sue contends that the District Court abused its discretion when it designated Tim the
primary residential parent. Sue argues that the court's finding that Tim's alcohol use will
not affect his parenting ability is erroneous. In this regard, Sue observes that Tim
acknowledged that he has two convictions for driving under the influence of alcohol and
he testified that he has consumed alcohol before driving his vehicle with his children as
passengers.

¶8 In a marriage dissolution, a district court shall determine child custody matters in
accordance with the best interests of the child. Section 40-4-212, MCA. One of the
relevant parenting factors the court must consider is "chemical dependency, as defined in
53-24-103, or chemical abuse on the part of either parent." Section 40-4-212(1)(g), MCA.

¶9 The District Court's findings with regard to the chemical dependency or abuse of Tim
and Sue are as follows:

        Immediately prior to the separation of the parties there were some concerns about
        whether Sue was abusing prescription drugs. She has made statements indicating
        that she liked the high that medication gave to her. She was taking a significant
        amount of medication but apparently by doctor's prescription. There were some
        concerns about whether she was inappropriately taking medication of her daughter.
        On the job there was concern about whether she was inappropriately taking the
        medication of a patient which led to a reprimand. However, the Court is unable to
        find that Sue has a chemical dependency problem.

        Sue expressed concern about Tim's use of alcohol. Tim's use of alcohol has been an
        issue between the parties for a number of years. He had a conviction for DUI in
        1986 and another in 1997. In 1997 as a part of his sentence he completed a chemical
        dependency evaluation which concluded that Tim misuses alcohol but that there
        were no indicators of chemical abuse or dependence. The Court notes that such
        evaluations to a large degree depend upon self reporting of information. Although
        there may be some concerns related to Tim's drinking the Court finds that Sue has
        exaggerated these issues at least related to recent times. There would be a concern if

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        the children were in a motor vehicle driven by Tim when he is impaired. Any
        claimed alcohol problem has not affected the ability of Tim to handle his job and,
        although it may be of some concern, the Court finds that it does not disable him as a
        parent.


¶10 The District Court's findings with regard to the chemical dependency or abuse of Tim
and Sue are neither clearly erroneous nor do they indicate that the interests of the children
would be best served by designating Sue the primary residential custodian. Rather, the
facts adduced at trial raise valid concerns that both parents have or have had, if not
chemical dependency or abuse problems, then serious chemical misuse problems.

¶11 With regard to Sue's chemical use, the testimony at trial supports the District Court's
findings. For instance, Janelle Oakland testified that Sue told her that she had
hallucinogenic drugs and that Sue approached Ms. Oakland's daughter about obtaining
hallucinogenic drugs. Ms. Oakland's daughter confirmed this testimony. Sharon
Kummerfeldt, one of the Sanners' neighbors, testified that Sue told her that she liked the
high that prescription drugs gave her. Amber Sanner, Sue's daughter and Tim's adopted
daughter, testified that Sue took prescription pain pills from her.

¶12 With regard to Tim's chemical use, the testimony at trial supports the District Court's
findings. Tim has two DUI convictions. Edna Sanner, Tim's mother, reported to Ms.
Tylene Merkel, a licensed counselor employed by Court Services of Yellowstone County
to investigate the Sanners' home life, that Tim's alcohol consumption was decreasing. Tim
admitted to drinking alcohol and driving with the children in the car, but he also testified
that he was not inebriated at the time. Tim also admitted to being "tipsy" after a Christmas
Party a week before trial and having driven while "tipsy" twice in the past six months. Sue
also testified about numerous instances during her marriage where Tim drank too much.

¶13 We conclude that the District Court's findings with regard to the chemical use of both
parents are supported by substantial credible evidence and do not favor, on their own,
awarding primary custody to one parent over the other. Chemical use is not the only factor
district courts are required to consider in developing a parenting plan that will be in the
best interests of the children. See § 40-4-212, MCA. Sue has not challenged the District
Court's other findings. Those findings support the court's parenting plan.

                                                              ISSUE TWO


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¶14 Whether the District Court erred when it refused to admit Sue's Exhibits B and C?

¶15 On June 7, 1999, the District Court ordered Court Services to investigate the home
and circumstances of Sue and Tim and make recommendations regarding the care,
custody, and control of the minor children. Ms. Merkel, a licensed counselor employed by
Court Services of Yellowstone County, was in charge of the investigation and personally
conducted an investigation of Tim. Sue was living in St. Louis, Missouri, during Ms.
Merkel's investigation. Ms. Merkel requested that Sue find a licensed counselor or contact
Court Services in Missouri to conduct the required investigation. Ms. Merkel found the
investigation performed by the Missouri agency to be inadequate because they only
conducted one home visit. The District Court admitted Ms. Merkel's report into evidence.

¶16 Sue offered letters and reports created by Peggy Hawkins, a licensed professional
counselor in St. Louis. One of the reports was considered by Ms. Merkel in completing her
investigative report, the other report was produced three days prior to trial and was not
considered by Ms. Merkel. The District Court allowed Sue's attorney to question Ms.
Merkel about the substance of the report she relied upon in completing her investigative
report but refused to admit into evidence either of Ms. Hawkins' reports.

¶17 Sue argues that the court erroneously failed to admit the reports produced by Ms.
Hawkins in conjunction with the family assessment requested by the court. Sue contends
that pursuant to In Re Marriage of Moseman (1992), 253 Mont. 28, 830 P.2d 1304, the
court was required to admit Ms. Hawkins' reports.

¶18 Section 40-4-215, MCA, authorizes a district court to order an investigation and report
concerning custodial arrangements for a child. In Moseman, we held that although a
district court is not bound by the recommendations contained in a court-ordered custody
investigation, the court is required to consider the report in the process of reaching its final
custody decision. Moseman, 253 Mont. at 31, 830 P.2d at 1306.

¶19 The District Court did not abuse its discretion pursuant to Moseman by refusing to
admit Ms. Hawkins' reports. The court considered the official report created by Ms.
Merkel with respect to the court-ordered custody investigation. Moseman requires nothing
further.

¶20 Affirmed.



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                                                        /S/ JIM REGNIER

                                                              We Concur:

                                                     /S/ KARLA M. GRAY

                                                   /S/ JAMES C. NELSON

                                               /S/ TERRY N. TRIEWEILER

                                              S/ W. WILLIAM LEAPHART




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