No. 12429
I N THE SUPREME COURT O T E STATE O MONTANA
F H F
1974
DONNA J . TURK,
P l a i n t i f f and A p p e l l a n t ,
-VS -
HENRY V. TURK,
Defendant and Respondent.
Appeal from: D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t ,
Honorable R . J . Nelson, Judge p r e s i d i n g .
Counsel of Record :
For Appellant :
Dola N. Wilson argued, Great F a l l s , Montana
For Respondent:
J a r d i n e , Stephenson, Blewett & Weaver, Great F a l l s ,
Montana
James E. Aiken argued, Great F a l l s , Montana
Dzivi, Conklin, Johnson and Nybo, Great F a l l s ,
Montana
Amicus Curiae
N e i l E. Ugrin argued, Great F a l l s , Montana
Submitted: January 16, 1974
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This appeal results from a denial of a petition to modify
a custody award of children by the district court of the eighth
judicial district, county of Cascade.
Donna Turk (Fitzgerald) appellant and Henry Turk respondent
were divorced in October 1967. The two children of the marriage,
Vincent and Verna, were awarded to appellant. In August 1968,
respondent petitioned the court to modify the decree with res-
pect to the custody of the two children. In his petition he
alleged that appellant had given him the children on July 8, 1968.
He further alleged appellant had proven herself an unfit person
to have the care and custody of the children. Following hearing,
at which both parties appeared with counsel, the court awarded
respondent custody of the children.
Following his divorce from appellant, respondent married
a woman with two children and they later had one child. In addi-
tion, respondent had taken into his home to raise a boy, Andy
Hawkinson Turk, who had been abandoned by his mother seven years
before. Respondent classified himself as a farmer and a linesman.
He had a small farm in the vicinity of Fairfield, Montana, where the
family lived. He worked full time as a linesman for the Hartz
Construction Company. The farm consisted of 160 acres plus
60 leased acres, on which the family raised some 60 head of sows,
20 head of milk cows, 80 head of sheep and some horses.
Appellant, following her divorce from respondent, married one
Ronald Fitzgerald and at the time of her petition had two small
children by Mr. Fitzgerald. Problems developed between the
parties as to visitation rights of appellant, which caused appel-
lant to petition the district court for the custody of the children,
alleging she had reestablisheda home where they could now be
properly cared for. Hearing was had on June 29, 1972.
At the hearing considerable evidence was introduced con-
cerning appellant's allegations that respondent was a severe dis-
ciplinarian and abused the boys by making them do farm chores
when they should have been in school. The disciplinary matter
arose when the boys got involved in taking some ice cream from
a truck. This was talked about in the mmmunity resulting in
reports to law enforcement people and to the welfare department.
In addition, at the hearing, the school records of all the Turk
children were discussed and it was charged that the boys missed
or were late for school far too often for their scholastic welfare.
A thorough airing of the allegations raised by appellant was
had at the hearing. There was testimony of neighbors, local
law enforcement officers and school personnel.
A Mrs. Rita Bond, an employee of the school, who saw the
children each day of school, described the children as "adjusted
and happy and very capable children". Based on her observations
at school, she testified they were well behaved and she had never
seen any of them beaten or abused. Frank Allum, who had worked
for the Turks in 1971 and 1972, never saw the children abused or
overworked and, in his opinion, the children were loved by their
parents. ~espondent's supervisor testified Turk was a fine
employee with no reputation for cruelty or hot temper. Hugh
Maxwell, a neighbor, testified the family was a well adjusted
happy family and that all the children s~emedto be one big
family. He described the parents as "generous, kindhearted
people. I 1
At the hearing testimony was heard from respondent's witnesses
as to conditions in the Turk home, the work of the children around
the ranch, their school records and the disciplinary actions taken
by respondent when he learned of the ice cream incident. All of
this testimony was before the trial judge for consideration when
he issued an order providing that: (1) pending a further order
of the court Vincent and Verna were placed in the care, custody
and control of Donna Fitzgerald; (2) the matter was referred to
the Cascade County Court of Conciliation directing it to (a)
make a complete investigation of the background, family situation,
and all related matters as to the named minor children, (b) make
psychological testing of all the children and adults involved, and
(c) that all parties were to cooperate in the investigation and
testing; (3) a report to be made to the Court following the
investigation and testing.
Thereafter an informal hearing was held on September 8,
1972, before the Court of Conciliation with all parties present
with counsel, Dr. Edward Shubat, a clinical psychologist, gave
testimony on his findings obtained by interviews and tests. He
concluded that both homes were fit and proper homes to raise the
children but that for the best interests of the children they
should be kept together as a family unit in the Turk home, with
visitation rights to appellant. Thereafter, on September 11, 1972,
the trial court returned Verna and Vincent to respondent with
reasonable visitation rights in appellant. Appellant appeals and
raises three issues:
1 That the evidence does not support the district court's
.
order.
2. That the decision of the trial court is contrary to the
case law and statutory provisions of Montana, and
3. That the district court abused its discretion and
committed reversible error in awarding custody to respondent,
Henry Turk.
Issues one and two will be discussed together.
There was substantial and credible evidence presented to
the trial court for its holding. In addition, Judge Nelson
utilized para legal facilities available to him, through the Court
of Conciliation, to make independent investigations of the condi-
tions in both homes, and use psychological tests to ass& him in
arriving at a proper solution of the problem, a solution that
would be in the best interests of the children.
In a long series of cases this Court has adhered to the
principle in custody cases that the discretionary power of the
trial court will not be disturbed unless there is a clear showing
of an abuse of that discretion. Jewett v. Jewett, 73 Mont. 591,
237 P. 702.
Too, it has long been recognized as the law of this state
that the Court considers of prime import the welfare and best
interests of the children. McCullough v. McCullough, 159 I4ont.
419, 498 P.2d 1189; Simon v, Simon, 154 Mont. 193, 461 P.2d 851.
Appellant argues that in a recent case, Baertsch v, Baertsch,
155 Mont. 98, 467 P.2d 142, the decision hinged on a "single
incident" of a mother's violent temper as the controlling factor
in support of the district court's ruling that it was such a
11
change of conditions" that it justified the modification as to
custody of a child. Not so! To construe Baertsch as appellant
would have us do would be to limit the trial court's discretionary
power. Baertsch is factually not comparable to the instant case.
Here, the evidence was both homes offered an acceptable home situa-
tion, contrary to the findings in Baertsch,
We find no merit in issues one and two,
Appellant in issue three, attacks the use by the trial
court of the post hearing investigative procedure, including an
informal hearing before the Court of Conciliation. We do not find
merit in this contention. The record is bare as to any objections
on appellant's part to Judge el son's post hearing effort to obtain
as much information as possible by investigative and testing pro-
cedures before making his final order on custody.
Neither did appellant object to the court making the report
of the Court of Conciliation a part of the record. It would appear
from the record that appellant chose to go along with all the
post hearing efforts believing the decision would be in her favor,
and only when the final order was made did she object.
The time for objection was before the trial court's final
order. It cannot be considered for the first time on appeal. Close v.
Ruegsegger, 143 I.lont. 32, 386 P.2d 739; Teesdale v. Anschutz
Drilling Co., 138 Mont. 427, 357 P.2d 4; Carpenter v. Free, 138
Mont, 552, 357 P.2d 882.
The order of the district court is affirmed.
l We Concur:
2 ~ustice.
Chie
................................
Justices.