No. 12160
IN THE SUPREME COURT OF THE STATE OF MONTANA
1972
BONNIE E McCULLOUGH,
.
Plaintiff and Respondent,
-vs -
RICKEY P. McCULLOUGH,
Defendant and Appellant.
Appeal from: District Court of the First Judicial District,
Honorable We We Lessley, Judge presiding.
Counsel of Record:
For Appellant :
Harris, Jackson and Utick, Helena, Montana.
Hollis A. Connors argued, Helena, Montana.
For Respondent:
C W Leaphart, Jr. argued, Helena, Montana.
. .
Submitted: April 19, 1972
Decided: JUN 3 o 1972
Filed : JarR 3 2 ;5/;;.
Mr. Chief Justice James T. Harrison delivered the Opinion of
the Court.
This is an appeal by defendant from an order of the
Lewis and Clark County district court modifying a decree of
divorce so as to grant plaintiff the care, custody and control
of a minor child. The appeal was taken after an order denied
his motion for a new trial.
From the record it appears that a divorce action was
commenced by plaintiff Bonnie E. McCullough in August, 1968, and
on September 27, 1968, she was granted a decree of divorce from
defendant Rickey P. McCullough. The divorce decree contained
custody provisions for the parties' three-year-old son, Burke
McCullough, in accordance with a contractual agreement and prop-
erty settlement entered into by the parties on August 9, 1968,
and modified by addendum of September 19, 1968. The decree
granted the physical care, custody and control of Burke to plain-
tiff's sister, a married woman residing in Helena. The district
court awarded legal custody to the father.
As part of its decree, however, the district court made
particular mention that the plaintiff retained her right to peti-
tion the court for modification of the custody provisions upon
change of circumstances.
Subsequently, plaintiff did petition the district court
in April, 1971, seeking a modification of the divorce decree so
as to place the care, custody, control and education of Burke
McCullough in plaintiff, the natural mother of the minor child.
Plaintiff's petition alleged change of circumstances in that she
had remarried and was able to take care of her minor son and
rear him in a stable home. Defendant father then filed a cross-
petition stating that it would be in the best interests of the
minor child to award physical custody as well as legal custody
to him.
Hearing on the petitions was had on May 19, 1971. The
district court took the matter under advisement and then rendered
its order on June 29, 1971, by which the divorce decree was
modified to grant the care, custody and control of Burke McCullough
to his mother.
Defendant took exception to the court's findings and moved
for a new trial on July 12, 1971. He substituted new attorneys
in his behalf and disqualified the trial judge prior to the hearing
on his motion. The motion for new trial was heard on August 16,
1971, and upon consideration of the pleadings, transcript of the
child custody hearing, and arguments of counsel, the motion was
denied. This appeal followed.
At the outset, it should be noted that the record reflects
a change in circumstances for each of the parties following the
divorce decree. Each of them naturally desires the full custody
and companionship of the minor child. The record nowhere indicates
any dissatisfaction with the manner of care given the child by
plaintiff's sister.
The record does show the remarriage of plaintiff to one
Dr. John G. Fisher on June 9, 1970. Dr. Fisher is a medical doctor
with a specialty in adolescent psychiatry. He was associated with
hospitals in Denver, Colorado at the time of plaintiff's petition.
Plaintiff and her husband had maintained a home in Denver for al-
most a year immediately preceding her petition.
Plaintiff petitioned for custody at this time because
Burke was now six years old and would enter school in fall, 1971.
She testified that she had quit her job in Denver just prior to
the hearing; thus, she would be able to take care of Burke in
her home if she were awarded custody.
It appeared on cross-examination of plaintiff that at
the time of her divorce she had been using drugs. Plaintiff
also testified, however, that the drugs were nonaddictive and
that she had not used any for more than two years immediately
preceding the hearing.
The testimony of plaintiff's mother indicates she had
observed plaintiff radically change following her divorce into
a mature, stable adult capable of rearing her son.
Following the hearing, the court talked privately with
plaintiff's sister about the minor child and the conditions of
custody. Furthermore, the district judge caused an investigation
of plaintiff's home to be made by the Welfare Department in
Denver.
On the other hand, defendant's testimony shows that he
has worked and resided in Helena and has spent time with his son
almost every weekend following the divorce. Defendant, too, has
remarried. His present wife testified that she was willing to
give up her employment if custody were awarded to defendant and
that she had much affection for the child already. On cross-
examination, though, she found no fault with plaintiff seeking
custody of plaintiff's own child.
On the basis of these facts contained in the record, to-
gether with information resulting from its own inquiry, the district
court found "that the present home atmosphere of the plaintiff is
one of stability" and concluded "that these surroundings will be
in the best interests of the child."
Defendant advances three issues on this appeal:
(1) That the evidence does not support the district court's
order;
(2) that the decision of the district court is contrary
to the case law and statutory provisions of Montana;
(3) that the district court abused its discretion and
committed reversible error in awarding custody to plaintiff.
Plaintiff contends there is only one issue on this appeal:
whether or not the district court abused its discretion in modify-
ing the custody.
In resolving the issues here presented, it is first neces-
sary to review the applicable statutory provisions. Section 21-
138, R.C.M. 1947 states in pertinent part:
"In an action for divorce the court or judge
may * * * give such direction for the custody,
care, and education of the children * * * as
may seem necessary or proper, and may at any
time vacate or modify the same." Emphasis
supplied.
Section 91-4515, R.C.M. 1947 states that in awarding the
custody of a minor, the court is to be guided by the following
considerations:
"1. By what appears to be for the best interests
of the child in respect to its temporal and its
mental and moral welfare * * *
"2. As between parents adversely claiming the
custody * * * other things being equal * * * it
should be given to the mother * * *."
We have repeatedly recognized that the welfare of the
child is to be given prime importance in custody proceedings.
This Court stated in Haynes v. Fillner, 106 Mont. 59, 75 P.2d 802:
"In awarding the custody of a child, the para-
mount consideration is the best interests of
the child in respect to its temporal and its
mental and moral welfare." See also Cleverly
v. Stone, 141 Mont. 204, 378 P.2d 653.
And again in Simon v. Simon, 154 Mont. 193, 197, 461 P.2d
851, the Court said:
"'What is, or is not, in the best interests
of the child depends upon the facts and cir-
cumstances of each case.'"
Of particular importance in considering a modification
of custody is the presence of a change in circumstances affecting
the parties. This Court noted in Simon:
"We have repeatedly held that custody of minor
children should not be changed unless it can
be shown that there was a substantial change
in circumstances since the previous order was
entered. "
Here the record is replete with evidence of substantial
change on the part of plaintiff mother. Not only had she re-
married and quit her job, thus allowing herself ample time to
give her child the attention he needs, but her very life-style
had also changed. Her emotional difficulties were part of her
past. The evidence shows that plaintiff succeeded in her efforts
to rehabilitate herself.
Certainly it is true that the record in this case shows
a change of circumstances on the part of defendant husband as
well. We must be mindful, however, that the district court both
heard and observed the witnesses; it discussed the custody of
the child in chambers with plaintiff's sister; it had access to
the reports of the welfare investigation. As we stated in Jewett
v. Jewett, 7 3 Mont. 591, 595, 2 3 7 P. 7 0 2 :
"When a controversy arises between parents over
the right to the custody of children, the duty
of deciding it is a delicate one, which is lodged
with the district court or the judge thereof.
The judge hearing oral testimony, in such a con-
troversy has a very superior advantage in deter-
mining the same, and his decision ought not to
be disturbed except upon a clear showing of abuse
of discretion."
Here, the evidence supports the ruling of the district
court. That ruling is soundly based upon the applicable statutes
and case law. There was no abuse of discretion.
Accordingly, the order of the district court is
a£ firmed .