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NO. 83-216 IN THE SUPREME COURT OF THE STATE OF MONTANA 1983

IN RE THE MARRIAGE OF CYNTHIA LOUISE OVERTON, Petitioner and Appellant, -vsRICHARD ORVILLE OVERTON, Respondent and Respondent.

APPEAL FROM:

District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable John M. McCarvel, Judge presiding.

COUNSEL OF RECORD: For Appellant: LaRue Smith, Great Falls, Montana For Respondent : Barry T. Olson, Great Falls, Montana

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Submitted on Brief: Decided:

September 15, 1983 December '22, 1983

Filed:

DEC 2 2 1983

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Mr. Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal by the wife, from an order of the District Court of the Eighth Judicial District, Cascade

County, providing for the daughter's surname be changed to the husband's surname, his name be placed on a birth

certificate and specifically settling visitation rights for husband. Cynthia Louise (Miller)(Overton) and Richard Orville Overton were married on June 13, 1979. The court entered a March
6, 1980.

decree of dissolution of their marriage, Wife

was pregnant at the time of the dissolution, as a She gave birth to a baby girl July At the time of the birth, She had two

result of that marriage.

2, 1980, in Great Falls, Montana.

she named the child Chantelle Winifred Miller.

other illegitimate children with surnames Miller and desired all of her children to have the same surname so as to

prevent confusion and embarrassment. In July of 1982, respondent tried to obtain a birth certificate of his daughter, Chantelle, so as to enroll her in the Indian tribal rolls. The Cascade County Clerk and

Recorder's Office informed him that the birth certificate did not name a father and further stated the child's name to be Chantelle Winifred Miller. Respondent then brought this

action to have his daughter's surname changed to be the same as his, and to clarify his visitation rights. Following the

submission of briefs and a hearing, the court ordered the child's surname changed to Overton; that respondent's name be placed as the father on the birth certificate; and that he be granted visitation rights with his daughter one

weekend a month, on alternate holidays and six weeks during the summer. Appellant raises four issues on appeal: (1) Did the court err in its findings of fact regarding the visitation rights of the husband;
(2) did

the

court

err

in

not

conducting a welfare investigation before granting husband visitation rights; (3) did the order to change the surname of the daughter violate Section 40-5-103, MCA, and Article
11, Section 4 of the Montana Constitution; and (4) was there

sufficient evidence to prove it was in the best interest and welfare of the child to have her surname changed? This Court will not overturn findings of fact unless they are clearly erroneous. Rule 52(a), M.R.Civ.P.

"We will not substitute our judgment for that of the trier of fact, but rather will only consider whether substantial credible evidence supports the findings and conclusions. These findings will not be overturned by this Court unless there is a clear preponderance of the evidence against them. We will view the evidence in a light most favorable to the prevailing party, recognizing that substantial evidence may be weak or conflicting with other evidence, yet still support the findings. Nicolai v. Nicolai (Mont. 1981), 631 P.2d 300, 303, 38 St.Rep. 1100, 1103. Cameron v. Cameron (1978), 179 Mont. 219, 587 P.2d 939. " Appellant contests the court's findings on the issue of visitation rights. A review of the evidence shows

sufficient evidence to support the findings.

We do not find

the District Court clearly erroneous in its findings on the issue of visitation. Appellant contends the trial court erred when it first stated it would request a welfare investigation on

respondent before granting visitation rights and

then

proceed

to

make

the

order

for

visitation Court this

without may

said

investigation. investigation,
it

The interviews

District

require
as

and

gather

information

deems

necessary.

Such

review

is w i t h i n

the District visitation

Court's rights.

discretion for Section

t h e determination of
MCA

40-4-217,

presumes

the noncustodial

p a r e n t is e n t i t l e d t o reasonable v i s i t a t i o n r i g h t s s o long as i t i s i n t h e b e s t i n t e r e s t o f t h e c h i l d . this trial s t a n d a r d is complied w i t h , court examine
all

"To a s s u r e t h a t that the

it

is e s s e n t i a l
and relevant

pertinent

factors

presented a t trial.'' 850, trial 37 S t . R e p . a n d made 1973.

J o n e s v. J o n e s ( M o n t . 1 9 8 0 ) , 620 P.2d The c o u r t c o n s i d e r e d t h e e v i d e n c e a t findings and conclusions to

sufficient

support its order.

T h e r e f o r e t h e t r i a l c o u r t d i d n o t e r r by

not conducting a f u r t h e r investigation. Appellant 40-6-103,
MCA,

next

contends

the

court 4

violated of the

Section Montana

and Article

11,

Section

C o n s t i t u t i o n , by changing t h e c h i l d ' s surname. I n Firman v. F i r m a n (Mont. 1 9 8 1 ) , 610 P.2d

W e disagree.

1 7 8 , 37 S t . R e p .

888, t h i s Court c o r r e c t l y found t h a t o t h e r t h a n t h e s t a t u t e s f o r name c h a n g e s , S e c t i o n 27-31-101 e t seq., " t h e r e is no involved a

other s t a t u t e i n point..

..

"

Firman, s u p r a ,

d i s p u t e between a husband and w i f e o v e r used by t h e c h i l d r e n . the name o f her the based

t h e surname t o be

The w i f e d e s i r e d t h e c h i l d r e n t o u s e This use Court the in
its

new h u s b a n d . children upon the should "best

ruling

determined surname, Firman,

natural of 181, the

father's child."

interest 178,

s u p r a (Mont.

1 9 8 1 ) , 610 P.2d

37 S t . R e p .

888, 891. The D i s t r i c t C o u r t ' s findings and conclusions state

nothing natural

t o t h e e f f e c t t h a t husband

has

any p r e f e r e n c e

or The

r i g h t t o have h i s d a u g h t e r b e a r h i s surname.

c h i l d ' s b e s t i n t e r e s t does not involve t h e e q u a l i t y of sexes i n t h i s case. interest of The f i n d i n g s and c o n c l u s i o n s s t r e s s t h e b e s t the child. Therefore

we

find

appellant's

argument w i t h o u t m e r i t . F i n a l l y we turn t o the issue of: does t h e evidence

s u p p o r t t h e f i n d i n g s and c o n c l u s i o n s o f t h e D i s t r i c t C o u r t r e g a r d i n g t h e c h a n g e o f name and w h e t h e r i t was i n t h e b e s t i n t e r e s t of t h e c h i l d ? A p p e l l a n t r a i s e s many o b j e c t i o n s t o

t h e f i n d i n g s and c o n c l u s i o n s r e g a r d i n g t h e c h a n g e o f name. I n r e v i e w i n g t h e t r a n s c r i p t , we f i n d n o t h i n g i n t h e f i n d i n g s and c o n c l u s i o n s c l e a r l y e r r o n e o u s and to support these findings. have made there
It

is s u f f i c i e n t

evidence that the

s h o u l d be n o t e d , clerical error in

trial

c o u r t may

a

f i n d i n g t h e c h i l d was o f But this can be

twenty-five by a

p e r c e n t Indian blood. 60(a) motion for

corrected

Rule

c o r r e c t i o n of c l e r i c a l m i s t a k e s . Having found the District Court was not clearly

e r r o n e o u s i n i t s f i n d i n g s and c o n c l u s i o n s , w e h e r e b y a f f i r m .

W e concur:

iL l I

Chief J u s t i c e



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