Svennungsen v. Svennungsen

No. 12744

I N THE SUPREME COURT O TIIE STATE O M N A A
F F OTN

1974

MEMRY ANN SVENNUNGSEN,

P l a i n t i f f and Respondent,

-vs -

MARK WILLIAM SVENNUNGSEN,

Defendant and A p p e l l a n t .

Appeal from: D i s t r i c t Court o f t h e E l e v e n t h J u d i c i a l D i s t r i c t ,
IIonorable R o b e r t K e l l e r , Judge p r e s i d i n g .

Counsel o f Record:

For Appellant :

Daley and S h e r l o c k , K a l i s p e l l , Montana
Joseph F. Daley a r g u e d , K a l i s p e l l , Montana

F o r Respondent :

E . James Oleson a r g u e d , K a l i s p e l l , Montana
Fratik B . M o r r i s o n , Jr. W h i t e f i s h , Montana

Submitted: September 1 2 , 1974

F i l e d : ?CT n 7914
Mr. Justice Wesley Castles delivered the Opinion of the Court.
This is an appeal from an order of the district court
of the eleventh judicial district for the County of Flathead
modifying a divorce decree as to custody of a child.
Mark William Svennungsen (hereinafter referred to as
appellant) married Memry Ann Svennungsen (hereinafter referred
to as respondent) on August 19, 1967. Their one child, Derek,
was born January 6, 1971. Appellant is a doctor of optometry
and has practiced in Whitefish since September, 1967. Prior to
the parties' divorce, respondent had worked as a cocktail wait-
ress and as a calculator on the horse racing circuit. In July,
1972, respondent left Derek with appellant and she moved to
Missoula where she rented an apartment. She worked as a waitress
at a restaurant and worked at horse races in Missoula and Hamilton.
She testified that she left her husband and child because "I
had to see if I could do it on my own." She occasionally re-
turned to Whitefish in order to visit her son.
In the fall of 1972, appellant and respondent agreed to
get a divorce. They contacted a family friend and attorney, Frank
Morrison, to obtain a divorce. Morrison testified that he was
counsel for respondent in the divorce action. A separation,
custody and property settlement agreement, prepared in October,
was signed by the parties in December, 1972. The Agreement pro-
vided that appellant was to have custody of Derek with respondent
having a right of reasonable visitation.
On January 31, 1973, respondent was granted a divorce and
custody of Derek was given to appellant. Mr. Morrison, at the
hearing on the petition to modify, testified:
"Q. * * * When you got into court, did the Judge
or did Memry or yourself make specific mention
of custody of Derek, the minor child? A. Well,
Memry testified that she had read the Agreement
and approved it, and that is the only reference
to the subject.
 "Q. Did she speak specifically, either in re-
sponse to the questions put to her by counsel or
the judge with regard to custody of Derek? A.
It seems to me that the Judge asked her about it,
but I am not sure exactly what the conversation
was."
From July of 1972 until February 19, 1974, Derek was in
the custody of appellant except on several occasions when respond-
ent would take Derek out of town. After the divorce, respondent
took care of Derek during the day while appellant was working.
This arrangement was terminated several months after the divorce
and Derek was placed with a babysitter during the day. Appellant
remarried on December 7, 1973. His present wife has two children,
ages two and four.
On December 28, 1973, respondent petitioned the district
court to modify the custody portion of the divorce decree to have
custody of Derek changed from appellant to respondent. After a
hearing on January 9, 1974, the Court, sitting without a jury,
changed custody from appellant to respondent. In its findings of
fact the district court found:
"7. That the question of the custody of this
child, in terms of its best interests, was
never submitted to a Court for litigation, nor
litigated, until this hearing."
No finding was made as to whether there had been a substantial
change of circumstances since the divorce.
Appellant moved to amend the court's findings and order on
March 4, 1974. On April 3, 1974, his motion was denied. From the
order granting modification of the custody portion of the divorce
decree and the denial of his motion to amend, appellant appeals.
The primary issue raised in this appeal is whether the
respondent, in order to change custody from appellant to respond-
ent, must make a showing of a "substantial change of circumstances"
where the custody issue was not contested in an adversary hearing
in the initial divorce action. We answer in the affirmative.
S u b s i d i a r y i s s u e s and f u r t h e r f a c t s w i l l be developed a s needed

i n t h e course of t h i s opinion. W e s h a l l s e t up t h e r e s p o n d e n t ' s

p o s i t i o n f i r s t t o p r o p e r l y frame t h e i s s u e .

Respondent m a i n t a i n s t h a t u n l e s s t h e i s s u e o f c h i l d c u s -

t o d y h a s a c t u a l l y been " l i t i g a t e d " a Montana c o u r t i s n o t i n f a c t

p r e c l u d e d from l o o k i n g t o t h e f a c t s t h a t e x i s t e d a t t h e t i m e of

t h e o r i g i n a l d e c r e e , l i t i g a t i n g s a i d i s s u e and i s s u i n g a judg-

ment t h e r e o n . W e r e c o g n i z e t h a t a s i z a b l e m i n o r i t y of j u r i s d i c -

t i o n s would a c c e p t t h e p r o p o s i t i o n propounded by r e s p o n d e n t , b u t

as w i l l appear hereinafter, we r e j e c t it.
I n S t e w a r t v . S t e w a r t , 86 Idaho 1 0 8 , 383 P.2d 617, t h e

Supreme C o u r t of Idaho s t a t e d :

" * * * Where f a c t s , a f f e c t i n g t h e i r w e l f a r e ,
e x i s t i n g a t t h e t i m e o f t h e d i v o r c e o r award-
i n g custody, a r e not c a l l e d t o t h e a t t e n t i o n
o f t h e c o u r t , and p a r t i c u l a r l y i n d e f a u l t c a s e s
where t h e i s s u e s a f f e c t i n g c u s t o d y have n o t been
f u l l y t r i e d , t h e c o u r t upon a p r o p e r a p p l i c a t i o n
may c o n s i d e r a l l f a c t s and c i r c u m s t a n c e s , i n c l u d -
i n g t h o s e e x i s t i n g p r i o r t o and a t t h e t i m e of
t h e judgment of d e c r e e , i n making a s u b s e q u e n t
d e t e r m i n a t i o n of c u s t o d y . "

I n King v . King, 25 Wis.2d 550, 1 3 1 N.W.2d 357, 359, t h e
Supreme C o u r t of Wisconsin s t a t e d :

" S i n c e c u s t o d y o f t h e c h i l d r e n w a s g r a n t e d upon
t h e s t i p u l a t i o n of t h e p a r t i e s without testimony
b e i n g t a k e n on t h e i s s u e and no f i n d i n g of f i t -
n e s s was made, t h e c o u r t ' s d e t e r m i n a t i o n i s n o t
-
r e s j u d i c a t a n o r d o e s t h e r u l e o f changed circum-
s t a n c e s apply. I f t h e d o c t r i n e of - j u d i c a t a
res
applied i n f u l l f o r c e i n custody c a s e s , evidence
o f c o n d u c t o c c u r r i n g p r i o r t o t h e t i m e of t h e
d e t e r m i n a t i o n of c u s t o d y would be e x c l u d e d on a
l a t e r h e a r i n g . However, t h e d o c t r i n e d o e s n o t
a p p l y u n l e s s t h e r e h a s been a f i n d i n g o f f i t n e s s .
[ C i t i n g c a s e s . ] Even when s u c h a f i n d i n g h a s been
made, t h e d o c t r i n e of - j u d i c a t a i s n o t t o be
res
a p p l i e d t o c u s t o d y m a t t e r s w i t h s t r i c t n e s s be-
c a u s e t h e r i g h t s of t h e c h i l d and of t h e p u b l i c
i n t h e c h i l d ' s w e l f a r e s h o u l d n o t be concluded
by t h e n o n a c t i o n of o t h e r s . "
And see c a s e s c i t e d i n 9 A.L.R.2d 623. W e decline t o

f o l l o w t h i s l i n e of a u t h o r i t y . T h i s C o u r t s t a t e d i n Simon v .
Simon, 154 Mont. 193, 197, 461 P.2d 851:

" W e have r e p e a t e d l y h e l d t h a t c u s t o d y o f minor
c h i l d r e n s h o u l d n o t b e changed u n l e s s i t c a n
be shown t h a t t h e r e w a s a s u b s t a n t i a l change
i n c i r c u m s t a n c e s s i n c e t h e p r e v i o u s o r d e r was
e n t e r e d . A s we s e t it f o r t h i n Trudgen v .
Trudgen, 134 Mont. 174, 329 P.2d 225:

"'It is the rule i n t h i s jurisdiction that
w h i l e "a d e c r e e f i x i n g t h e c u s t o d y o f c h i l d r e n
i s f i n a l upon t h e c o n d i t i o n s t h e n e x i s t i n g ,
when i t i s shown t h a t t h e s e c o n d i t i o n s have
changed, t h e c o u r t o r judge t h e n h a s a u t h o r i t y
t o modify t h e o r i g i n a l d e c r e e i n r e s p e c t t o
them * * * I n p r o c e e d i n g s o f t h i s n a t u r e t h e
w e l f a r e o f t h e c h i l d r e n i s t h e paramount con-
s i d e r a t i o n . " J e w e t t v . J e w e t t , 73 Mont. 591,
595, 237 P. 702, 703.

" ' T h i s r u l e was s t a t e d f o r t h e f u l l c o u r t
more t h a n a q u a r t e r c e n t u r y ago and was r e i t e r -
a t e d i n Bayers v . B a y e r s , s u p r a , 129 Mont. [ l ]
a t page 6 , 281 P.2d [506] a t page 509, where
it i s pointed o u t t h a t "otherwise e i t h e r p a r e n t
of a c h i l d o r c h i l d r e n c o u l d c o n s t a n t l y h a r a s s
t h e o t h e r w i t h l i t i g a t i o n none o f which would
be c o n d u c i v e t o t h e b e s t i n t e r e s t s o f t h e
child." * * * I "

Whether t h e o r d e r r e s p e c t i n g c u s t o d y h a s been g r a n t e d

a f t e r a f u l l adversary proceeding o r a f t e r a d e f a u l t d i v o r c e , a s

i n t h i s c a s e , t h e c o n s i d e r a t i o n s a r e t h e same. The r e q u i r e m e n t
f o r a f i n d i n g of a change i n c i r c u m s t a n c e s i s d e s i g n e d t o p r o t e c t

t h e p e r s o n who h a s c u s t o d y from t h e h a r a s s m e n t of f u r t h e r liti-

gation. W e r e c o g n i z e t h a t t h i s l i n e of r e a s o n i n g would be i n -

a p p r o p r i a t e i f a p p e l l a n t was i n f a c t u n f i t have c u s t o d y . That

case i s n o t now b e f o r e u s . The d i s t r i c t c o u r t , i n b o t h t h e d e c r e e

of d i v o r c e and t h e o r d e r modifying c u s t o d y , found t h a t t h e a p p e l -

l a n t w a s a f i t and p r o p e r p e r s o n t o have t h e c a r e , c u s t o d y and
c o n t r o l o f Derek. W e h o l d merely t h a t , based upon t h e f a c t s of

t h i s c a s e , a showing o f a s u b s t a n t i a l change of c i r c u m s t a n c e s
s h o u l d have been r e q u i r e d b e f o r e t h e d i s t r i c t c o u r t i n q u i r e d i n t o
t h e c u s t o d y i s s u e on r e s p o n d e n t ' s p e t i t i o n and t h a t t h e d i s t r i c t

c o u r t e r r e d i n holding t h a t , s o l e l y because t h e i s s u e of custody

was n o t " l i t i g a t e d " i n t h e p r i o r d i v o r c e h e a r i n g , t h e c u s t o d y i s s u e
c o u l d be l i t i g a t e d a f r e s h b e f o r e him.

W e d o n o t want t o be u n d e r s t o o d as i m p l y i n g t h a t a sub-

s t a n t i a l change i n c i r c u m s t a n c e s would be r e q u i r e d a s a t h r e s h o l d

f i n d i n g i n e v e r y f a c t u a l s i t u a t i o n b e f o r e t h e i s s u e of c u s t o d y

c o u l d be l i t i g a t e d on a p e t i t i o n t o modify c u s t o d y . Although

t h e case i s n o t b e f o r e u s , w e would be r e c e p t i v e t o t h e p r o p o s i -

t i o n t h a t a showing o f u n f i t n e s s on t h e p a r t o f t h e p e r s o n h a v i n g

c u s t o d y , o r some o t h e r j u s t i f i a b l e g r o u n d s , m i g h t s u f f i c e a n d ,

d e s p i t e a f a i l u r e t o show a s u b s t a n t i a l c h a n g e o f c i r c u m s t a n c e s ,

e n a b l e t h e d i s t r i c t c o u r t t o c o n s i d e r t h e i s s u e o f c u s t o d y on a

p e t i t i o n t o modify c u s t o d y .

A p p e l l a n t a r g u e s t h a t r e s p o n d e n t s h o u l d n o t h a v e been

a l l o w e d t o have c u s t o d y of h e r c h i l d s u b s e q u e n t t o t h e d i v o r c e

w i t h o u t showing t h a t Mark Svennungsen had been a n u n f i t f a t h e r

-that
and t h e r e had been a s u b s t a n t i a l change o f c i r c u n s t a n c e s

which would i n d i c a t e t h a t i t would be 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 t o t r a n s f e r custody t o her. A p p e l l a n t c i t e s Barham v .

Barham, 127 Mont. 216, 2 5 9 P.2d 8 0 5 , f o r t h e p r o p o s i t i o n t h a t

"even though t h e mother had r e m a r r i e d t h e r e would be no change

i n c u s t o d y w i t h o u t a f i n d i n g t h a t t h e c h i l d was b e i n g a b u s e d . "

Even though t h e t r i a l judge i n Barham s t a t e d t o c o u n s e l :

" T h e r e i s n o t h i n g t o show t h e c h i l d i s n a t b e i n g
cared f o r " * *. "
t h i s C o u r t ' s r e a s o n f o r a f f i r m i ~ l gt h e Barham c a s e was b e c a u s e

t h i s C o u r t c o u l d n o t " s a y t h a t t h e t r i a l judge i n any w i s e o r

manner abused t h e d i s c r e t i o n r e p o s e d i n him i n making t h e o r d e r

d e n y i n g t h e motion t o modify t h e d e c r e e . " Sarham, a t p. 2 2 0 .

There i s no r e q u i r e m e n t i n t h e law of Xontana t h a t t 1
Le

p a r t y s e s k i n g a n o d i f i z a t i o n 3f t h e t e r s s of a s u s ~ o 3 yd 2 2 r z 2

must make a showing t h a t t h e p e r s o n who p r e s e n t l y h a s c u s t o d y

i s u n f i t o r h a s abused t h e c h i l d . I f t h i s Court w e r e t o r e q u i r e

a showing o f u n f i t n e s s on t h e p a r t o f t h e p e r s o n who p r e s e n t l y
h a s c u s t o d y b e f o r e a c u s t o d y d e c r e e c o u l d be m o d i f i e d , i t would

r e s u l t i n t h e s i t u a t i o n t h a t t h e r e c o u l d n e v e r be a change i n

c u s t o d y i f b o t h p a r t i e s were f i t and p r o p e r p e r s o n s t o have

custody. A s s t a t e d above, a snowing of u n f i t n e s s may, i n some

s i t u a t i o n s , s u b s t i t u t e f o r a change of c i r c u m s t a n c e s . It w i l l

n o t , however, be r e q u i r e d i n a d d i t i o n t o a showing o f change of
circumstances.

The d i s t r i c t c o u r t , i n i t s f i n d i n g s o f f a c t , found:

"5. * * * t h a t t h e p a r t i e s f i r s t s e p a r a t e d i n t h e
summer of 1972, and t h e agreement a t t h a t t i m e
was t h a t s h e was t o g e t s e t up w i t h a j o b , a
p l a c e t o l i v e , e t c . , and t h e n s h e c o u l d have
c u s t o d y o f t h e c h i l d , i f h e r a r r a n g e m e n t s were
s a t i s f a c t o r y ; t h a t t h e a r r a n g e m e n t s of t h e mother
were n o t s a t i s f a c t o r y t o t h e f a t h e r , s h e d i d
n o t g e t c u s t o d y , and s h e r e t u r n e d t o t h e f a m i l y
r e s i d e n c e t o be w i t h t h e c h i l d ; t h a t a l m o s t i m -
m e d i a t e l y t h e r e a f t e r t h e d i v o r c e a c t i o n was com-
menced; t h a t a g a i n , it was d e c i d e d t h a t it would
be 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 i f he s t a y e d
w i t h h i s f a t h e r w h i l e t h e mother g o t s i t u a t e d ;
t h a t t h e mother f i r m l y b e l i e v e d t h a t s h e was t o
have c u s t o d y of t h e c h i l d a f t e r s h e had a j o b ,
a p l a c e t o l i v e , e t c . ; t h a t t h e f a t h e r never
i n t e n d e d t h a t s h e have c u s t o d y of t h i s c h i l d ,
b u t h e l e d t h e mother t o b e l i e v e t h a t once s h e
could provide adequate arrangements, i n t h e
b e s t i n t e r e s t s o f t h e c h i l d , t h e n s h e would have
c u s t o d y * * *."

and i n i t s c o n c l u s i o n s of law found:

"1. That t h e p a r t i e s a g r e e d , a t t h e t i m e of t h e
d i v o r c e between them, t h a t t h e mother was n o t
then f i n a n c i a l l y a b l e t o t a k e t h e custody of t h e
minor c h i l d o f t h e p a r t i e s , and s u p p o r t him i n a
manner t h a t would be i n t h e b e s t i n t e r e s t s of
t h e c h i l d ; t h a t t h e f a t h e r l e d t h e mother t o be-
l i e v e t h a t once s h e s e c u r e d a d e q u a t e employment,
had a n a d e q u a t e p l a c e t o l i v e , and was o t h e r w i s e
i n a position t o f i n a n c i a l l y take care of t h e
minor c h i l d , t h a t s h e would r e c e i v e t h e c u s t o d y
of s a i d c h i l d ; t h a t on t h a t b a s i s , s h e a g r e e d
t h a t a t t h e t i m e of t h e d i v o r c e , t h e c u s t o d y
s h o u l d be g i v e n t o t h e f a t h e r . "
Respondent c o n t e n d s t h a t b e c a u s e of t h i s f i n d i n g of f r a u d
on t h e p a r t o f a p p e l l a n t , i f f o r no o t h e r r e a s o n , t h e d i s t r i c t
c o u r t w a s j u s t i f i e d i n h e a r i n g t e s t i m o n y on c h i l d c u s t o d y r e l a t i n g
back to and prior to January, 1973, and modifying the original
decree accordingly. The record does show that appellant indi-
cated to respondent prior to her leaving for Missoula in the
summer of 1972 that she could have Derek once she got a job, an
apartment and got settled. There is no evidence in the record
that a similar arrangement was made for purposes of the Separation,
Custody and Property Settlement Agreement. The strongest testi-
mony in this regard was appellant's response to the following
question on cross-examination:
"Q. Now, if that is so, is it possible that you
could have indicated this at other times? A.
Possibly, right."
The mere possibility that such indication could have occurred is
hardly sufficient proof that it did occur.
Neither does a reading of the record support a finding
of fraud on the part of appellant. As stated above, the most the
record will support is a finding that, in the summer of 1972,
appellant indicated to respondent that she could have Derek once
she got a job, an apartment and got settled. However, the mere
making of a promise which the promisor fails to keep is not
actionable fraud. Gallatin Tr. & Sav. Bk. v. Henke, 154 Mont. 170,
175, 461 P.2d 448. Rather, the record indicates that respondent
signed the Separation, Custody and Property Settlement Agreement
giving appellant custody of Derek, which was later incorporated
into the divorce decree, because (1) appellant had convinced her
that he was more "stable" than she was; (2) she wanted to avoid
a prior act of adultery from being brought into open court; ( 3 )
she wanted a divorce and wanted to avoid a custody fight; and
(4) she felt, in her own mind, that her act of adultery would
bar her from having custody. Not only is there no showing of fraud,
but the clear weight of the evidence is that respondent voluntarily
agreed that appellant should have custody of Derek.
 The district court made no finding as to whether there
had been a substantial change of circumstances since the divorce
decree of January 31, 1973. Respondent contends that, despite
this lack of a finding, this Court should find a substantial
change of circumstances in the following testimony of respondent"
"A. Derek, has always, when I was living there
in the house as the wife and the mother, my son
always had three meals a day at the right times.
He was always in bed. Now, when I left home
and came back and would come back, Derek would
be up until all hours of the night because Mark
had been working and he didn't want to put him
to bed. I mean, what I am trying to say is I
may not eat regularly myself, and I may not go
to bed at 10:OO every night, but I am positive
that when my son is with me, he does these things.
And I have always been very careful to do that."
Construing this testimony in the light most favorable
to respondent, it is merely a statement that appellant allowed
Derek to stay up late because he did not want to put him to bed.
This is not a substantial change of circumstances sufficient to
warrant a modification of a custody decree.
The only other change of circumstances testified to in
the entire transcript was that appellant had remarried and his
new wife had two children, ages two and four. In Simon v. Simon,
154 Mont. 193, 198, 461 P.2d 851, we stated: "I" * * * the
substantiality of the change of circumstances is tested with
respect to the child's welfare rather than the parents' welfare."'"
There is absolutely nothing in the transcript to indicate
that this change of circumstances was detrimental to the welfare
of Derek. Derek continued to be babysat during the day as before.
The undisputed testimony of appellant and his present wife was
that Derek was getting along well with his wife's children and
that being around the children helped Derek. Even if appellant's
remarriage be deemed a substantial change of circumstances, such
a change should not result in relitigation of the custody issue
if the change in fact enhances the welfare of the child.
 Appellant contends that the district court in its conclu-
sions of law erroneously found:
" 3 . That both parties hereto are fit and proper
persons to have the care, custody and control
of the minor child of the parties * * * . ' I

and in its findings of fact found:
" 4 . * * * that there was nothing in evidence of
this hearing to show that either party is not a
fit and proper person to have the care, custody
and control of the minor child."
The issue as to whether respondent was in fact a fit
and proper person to have custody at the time of the divorce is
moot in light of the district court's finding on the petition
to modify that both parties are fit and proper persons to have
custody.
In view of the foregoing, respondent's motion to dismiss
the appeal, based on the grounds that appellant "has failed to
attack the findings of fact of the district court, either by point,
legal argument or by legal citation or authority" is not well
taken. Other issues raised need not be discussed because our
holding on this issue determines the case.
The order of the district court is reversed and the cause
remanded to the district court for entry of an order denying the
modification of the decree.

4

We concur: i ,

I
Justices
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