No. 13720
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977
ERNEST F. GIANOTTI,
Plaintiff and Appellant,
ALICE L. McCRACKEN, formerly
ALICE L. GIANOTTI,
Defendant and Respondent.
Appeal from: District Court of the Eighth Judicial District,
Honorable Nat Allen, Judge presiding.
Counsel of Record:
For Appellant:
John M. McCarvel argued, Great Falls, Montana
For Respondent :
Church, Harris, Johnson and Williams, Great Falls, Montana
Douglas Allen argued, Great Falls, Montana
Submitted: September 16, 1977
Decided :SeP 2.
Filed: -
Mr. Justice John Conway Harrison delivered the Opinion of the Court.
This is an appeal by the father of two minor children
from an order of the district court, Chouteau County, modifying
the decree of divorce between the father and mother as to custody
of the children and the amount of child support payments.
The marriage of Ernest F. Gianotti and Alice L. McCracken
(formerly Alice L. Gianotti), was terminated by a decree of
divorce dated May 30, 1974, and approved and incorporated a
"SEPARATION AGREEMENT" between them. The agreement provided
custody of the two minor children to be split equally between
the parties on a rotating six month per year basis. It further
provided Ernest F. Gianotti pay child support to Alice L. McCracken
in the amount of $100 per month per child.
The instant case arises essentially upon the petition of
Alice McCracken for modification of the divorce decree, as to
custody of the children and the amount of monthly support payments.
A full evidentiary hearing was held on October 19, 1976.
Following submission of proposed findings of fact and conclusions
of law by the parties, the district court, Hon. Nat Allen pre-
siding, on December 6, 1976, issued an order modifying the divorce
decree, awarding full custody of the children to Alice McCracken
and increasing the amount of the monthly child support payments
to $150 per month per child. From that order, Ernest F. Gianotti
appeals.
The instant action began as one for divorce. A decree
of divorce was entered on May 30, 1974, incorporating the terms
of a separation agreement between the parties, parents of two
minor daughters, ages 14 and 11 respectively at the time of the
modification hearing. Under the terms of the separation agree-
ment, each parent was entitled to six months physical custody per
year, during which time that parent was to use and occupy the
family residence in Great Falls. During the period of the
mother's custody, the father was to pay $100 per month per
child to the mother as support for the children. It further
provided :
" * * * In the event that either of the parties
shall remarry, the parties shall mutually agree
upon a new and separate custody arrangement for
the children, if so desired, and in the event the
parties are unable to agree upon a proper custody
arrangement at that time, then a court having
jurisdiction of the parties shall make such a
determination upon petition properly noticed and
hearing had."
The mother took custody of the children and occupied the
family residence beginning June 1, 1976. She remarried on
October 1, 1976, becoming Alice L. McCracken. She and her hus-
band immediately made arrangements to purchase a new home and
moved in on October 15, 1976, when possession became available.
Shortly thereafter, the hearing on her petition for modifica-
tion of the divorce decree was held.
Testimony revealed each party to be a fit and proper
parent. At the close of the hearing, the district judge inter-
viewed the children in chambers, away from the influence of
either parent or counsel (no record was taken of this interview
as required by statute).
In the court's findings of fact and conclusions of law,
dated December 6, 1976, the court specifically found:
"6. By reason of the foregoing and by reason of
the age, attitudes, physical and emotional needs,
and present situation of Christine M. Gianotti and
Lisa Gianotti, a substantial change of circumstances
has occurred which render the former child custody
visitation and support provisions of the Decree and
Separation Agreement impractical and contrary to
the welfare, needs and best interests of these minor
children. To transfer custody of the children from
their mother to their father or to require them to
move each six month period would be detrimental to
the welfare of the girls and contrary to their best
interests.
"7. * * * These girls are at an age where they
require the sort of training, guidance and
assistance that only a mother can effectively
provide; and the Court is satisfied that they
will be much happier in the custody of their
mother and that their general welfare and best
interests require that she be awarded their custody
* * *.I'
The district court then ordered custody be and remain
permanently in the mother, subject to full, free and unhampered
rights of visitation, and further ordered the amount of monthly
child support be increased from $100 to $150 per month per child.
This appeal involves two inquiries: (1) Did the district
court abuse its discretion by modifying the provisions of the
divorce decree pertaining to custody? (2) Did the district court
abuse its discretion by increasing the amount of child support
payments?
Appellant father argues the recent remarriage of re-
spondent mother is an insufficient change in circumstances of the
children or custodian to warrant modification of the custody
provisions of the divorce decree. It is maintained modification
upon such grounds, without a finding that the present custodial
arrangement "seriously endangers" the welfare of the children,
constitutes an abuse of discretion. Appellant further argues it
was an abuse of discretion to increase the amount of child sup-
port payments because there was a marked failure of proof of
circumstances so changed as to mandate such an increase.
Respondent, on the other hand, contends the district
court properly awarded custody to her on the basis of the best
interests of the children and, in so doing, correctly recognized
a significant change in circumstances. In addition, she submits
it was well within the discretion of the district court to in-
crease the support payments to reflect a reasonable amount under
the circumstances.
There is no question the court had jurisdiction to
hear and make a proper determination, as such power is grounded
in the terms of the separation agreement, as adopted by the
divorce decree. However, here there was a contract agreed upon
at the time of the separation which the court did not fully
consider. In any event, it is well settled, in Montana, the
court's jurisdiction in matters of custody is of a continuing
nature. Foss v. Leifer, Mont. , 550 P.2d 1309, 33 St.Rep.
528 (1976); Libra v. Libra, 154 Mont. 222, 462 P.2d 178 (1969);
Barbour v. Barbour, 134 Mont. 317, 330 P.2d 1093 (1958).
The relevant law regarding modification of custody decrees
is set forth in the Montana Uniform Marriage and Divorce Act,
section 48-339, R.C.M. 1947. This section provides in part:
"(2) The court shall not modify a prior custody
decree unless it finds, upon the basis of facts
that have arisen since the prior decree or that
were unknown to the court at the time of entry
of the prior decree, that a change has occurred
in the circumstances of the child or his custodian,
and that the modification is necessary to serve the
best interest of the child. In applying these
standards, the court shall retain the custodian
appointed pursuant to the prior decree unless:
"(a) the custodian agrees to the modification;
"(b) the child has been integrated into the family
of the petitioner with consent of the custodian;
or
"(c) the child's present environment endangers
seriously his physical, mental, moral or emotional
health, and the harm likely to be caused by a
change of environment is outweighed by its ad-
vantages to him."
Appellant urges reversal of the modification order by arguing
that none of the above three preconditions to modification were
satisfied, therefore, the present custodial arrangement should be
maintained.
It is clear no change in custody may ultimately be made
unless subsections (a), (b) or (c) of section 48-339 (2) are
satisfied. Here, we are concerned only with subsection Cc).
Recent decisions of this Court mandate strict compliance with
the requirements of subsection (c). In re Custody of Dallenger,
Mont .
I
- -P.2d , 34 St.Rep. 938 (1977); Holm v.
Holm, Mont . , 560 P.2d 905, 34 St.Rep. 118 (1977); Foss
v. Leifer, Mont. , 550 P.2d 1309, 33 St-Rep. 528 (1976).
The district court focused on the "welfare" and "best
interests" of the children, as the basis for change in custody.
Such findings do not satisfy the requirements of section 48-339(2)(c).
A change of custody order based thereon cannot be permitted to
stand. A finding the present custody arrangement "endangers
seriously" the welfare of the children is the threshold to any
court ordered change of custody and, as such, is jurisdictional. In
In re Custody of Dallenger, supra, this Court stated:
" * * * the subsections to section 48-339(2) are
jurisdictional prerequisites to modification which
were placed there to serve the basic policy behind
the entire section, the policy of custodial con-
tinuity. To allow these crucial issues to be
resolved merely by references to the best interests
of the children would seriously weaken the statute."
34 St.Rep. 941.
Section 48-339(2) makes plain the "best interests" and "change
of circumstances" tests are, in the last analysis, primary
considerations in proposed custody modifications. However, a dis-
trict court is powerless to entertain such considerations if it
has not found at the outset the child's welfare to be "endangered
seriously" by the present custody arrangement. We hold the district
court failed to adhere to the proper statutory standards as outlined
and, in so doing, abused itsdiscretion.
Further, the district court abused its discretion by in-
creasing child support payments under the circumstances of this case.
Montana's Uniform Marriage and Divorce Act, section 48-
330, R.C.M. 1947, requires:
"(1) * * * the provisions of any decree respecting
maintenance or support may be modified by a court
only as to installments accruing subsequent to the
motion for modification and either:
"(a) upon a showing of changed circumstances so
substantial and continuing as to make the terms
unconscionable; or
"(b) upon written consent of the parties. * * *"
In this case there was no written consent of the parties
to increased child support. Moreover in the record, there is a
complete absence of facts which pertain to an increased need for
child support. The sole evidence introduced on the point was a
statement elicited from appellant on cross-examination, that he
was presently making less money than at the time of divorce.
There was no showing the previously established child support of
$100 per child per month is in any manner unconscionable under
the present state of facts. The district court made no specific
finding of changed circumstances in this regard. There was no
finding of an increased need for support, nor an increased abil-
ity on the part of appellant to contribute to the support of his
children. We reverse that portion of the modification order re-
quiring appellant to pay an increase in child support.
The order modifying the custody and support provisions
of the divorce decree is reversed. The cause is remanded for an
immediate rehearing. Evidence is to be received and findings
made by the district court in accordance with the law.
hied JUStice /)
Justices C/