No. 13637
I N T E SUPREME COURT O THE STATE O M N A A
H F F OTN
1977
R N L M.
O AD RONCHETTO,
P l a i n t i f f and Respondent,
-vs-
SUSAN KAY RONCHETTO e t a1 .,
Defendant and A p p e l l a n t .
Appeal from: D i s t r i c t C o u r t o f t h e Second J u d i c i a l D i s t r i c t ,
Honorable Arnold O l s e n , Judge p r e s i d i n g .
Counsel o f Record:
For A p p e l l a n t :
J a r d i n e & McCarthy, W h i t e h a l l , Montana
J a c k McCarthy a r g u e d , W h i t e h a l l , Montana
F o r Respondent :
C o r e t t e , Smith and Dean, B u t t e , Montana
Dolphy 0. Pohlman, Jr. a r g u e d , B u t t e , Montana
Submitted: J u n e 2 , 1977
Filed:
4U6 -5 im
*
--
-P
Clerk
Mr. Chief Justice Paul G. Hatfield delivered the Opinion of
the Court.
Defendant appeals from an order of the district court,
Silver Bow County, modifying her divorce decree with plaintiff
and awarding permanent legal custody of their daughter to
plaintiff.
Defendant, Susan Ronchetto, a/k/a Susan Tavares, and
plaintiff, Ronald Ronchetto, were divorced on May 5, 1970 in
the state of Nevada. The Nevada court placed Julie Ronchetto,
the couple's minor child, in the custody of her mother and gave
her father reasonable rights of visitation. Shortly after her
divorce from plaintiff, defendant married David Tavares. De-
fendant subsequently divorced David Tavares and later married
and divorced another man.
On October 18, 1974, plaintiff filed an action against
defendant in district court, Jefferson County, the county in
which defendant at that time resided. Plaintiff, in his com-
plaint, alleged that defendant had refused to allow him to visit
with their daughter, Julie, and requested the court to modify
the divorce decree to protect plaintiff's visitation rights.
Plaintiff and defendant settled the visitation dispute out of
court and, on December 30, 1974, stipulated that the court action
be dismissed with prejudice.
On July 12, 1976, plaintiff filed a petition in the dis-
trict court, Silver Bow County, asking for a temporary restrain-
ing order and a temporary custody order. Plaintiff requested the
court to order defendant to relinquish temporary custody of the
minor child, Julie Ronchetto, and to restrain defendant from
molesting the child. Plaintiff requested that the court order
that temporary custody of the child, pending a full hearing, be
placed in plaintiff and his wife. The court issued the temporary
custody and temporary restraining orders in reliance upon state-
ments in plaintiff's affidavit that defendant had on occasion
abandoned and abused the child. At the time plaintiff filed
this action, plaintiff, defendant and the child were residents
of Silver Bow County.
The district court held a nonjury hearing on July 19,
1977, to determine if the divorce decree should be modified so
as to transfer permanent custody of the parties' minor child,
Julie Ronchetto, from defendant to plaintiff and his wife.
Several witnesses were called for both plaintiff and defendant.
After the hearing, the judge ordered the Department of Social
and Rehabilitation Services (SRS) to conduct an investigation
into the welfare of Julie Ronchetto. On the basis of both the
testimony at the hearing and the statements in the SRS investi-
gative report, the court ordered that the divorce decree be
modified to give permanent legal custody of Julie Ronchetto to
plaintiff and his wife.
Defendant raises two issues in her appeal from the
district court's order:
1. Was proper jurisdiction and venue to hear this case
vested in the district court, Silver Bow County?
2. Did the district court err in granting plaintiff the
permanent custody of the parties' minor child, based on the
testimony at the hearing and the statements in the SRS investi-
gative report?
Defendant first asserts that the district court, Silver
Bow County, was without jurisdiction to order that Julie Ronchetto's
permanent legal custody be taken from defendant and given to
plaintiff. Defendant maintains that because plaintiff's petition
to modify the divorce decree was dismissed with prejudice on
December 30, 1974, the court was precluded, under section 48-
339, R.C.M. 1947, from modifying the custody decree until at
least two years after the dismissal with prejudice. Because
plaintiff instituted this custody proceeding on July 12, 1976,
less than two years after the previous court action, defen-
dant claims the court had no jurisdiction to change custody.
Section 48-339(1), R.C.M. 1947, provides:
"No motion to modify a custody decree may be
made earlier than two (2) years after its date,
unless the court permits it to be made on the
basis of affidavits that there is reason to
believe the child's present environment may
endanger seriously his physical, mental, moral,
or emotional health."
Section 48-339(1) therefore prohibits modification of a
custody decree which has been issued or modified within the two
previous years. The prior district court action cited by defen-
dant dealt only with clarification of plaintiff's visitation
rights and not with child custody. The last child custody order
for Julie Ronchetto, prior to this action, was contained in the
divorce decree of May 5, 1970. The petition to modify child
custody that is the subject of appeal in this case was filed
by plaintiff on July 12, 1976, more than six years after the prior
custody order. Section 48-339(1), therefore, did not prevent
the district court from modifying the child custody provision of
the parties' divorce decree. The district court, Silver Bow
County, had jurisdiction under section 48-331 (1)(a)(i), R.C.M.
1947, to modify Julie Ronchetto's custody, because Montana was
the home state of the child at the time the action was commenced.
Venue of the case was properly in Silver Bow County.
Section 93-2904, R.C.M. 1947, provides that actions such as the
one involved in this case "shall be tried in the county in which
the defendants * * * may reside at the commencement of the
action * * *." Defendant, at the time plaintiff filed his pe-
tition, was a resident of Silver Bow County.
While defendant's claim that the district court did not
exercise proper jurisdiction or venue is without merit, we must
sustain defendant's assertion that custody of Julie Ronchetto
was improperly taken from defendant on the basis of the evi-
dence presented.
After the July 12, 1976 custody hearing, the district
judge ordered SRS to investigate the welfare of Julie Ronchetto
and to prepare the court a report of the investigation, The
district judge did not issue his custody order until "after
reviewing the investigative report". The out of court state-
ments of the SRS workers, which were contained in their investi-
gative report constitute hearsay evidence. This Court recently
held that consideration of investigation reports in a child
custody case, without requiring the authors to testify at a hear-
ing, constitutes reversible error. In re Declaring Swan Children
Youths in Need of Care, Mont .
-1 -P.2d , 34 St.Rep.
390 (1977). To satisfy the due process rights of the custodial
parent and to accurately assess the best interests of the minor
child, the trial judge must require " * * * the authors of the
report to testify at a hearing and be subject to cross-examina-
tion" before he may consider the statements in the report. In
re Moyer Children, Mont .
-1 - 2d
P. , 34 St.Rep. 682
(1977).
This case is, therefore, remanded to the trial court
for the purpose of conducting another permanent custody hearing.
To modify the custody award, the judge must find that, since the
1970 divorce decree, a change has occurred in the circumstances
of the child or defendant and that modification is necessary to
serve the child's best interests. Section 48-339, R.C.M. 1947.
The trial court must determine the fitness of both parents,
plaintiff and defendant, and not just the fitness of defendant.
Love v. Love, 166 Mont. 303, 533 P.2d 280. The court must con-
sider the wishes of the child as to her custodian. Section 48-
332(2), R.C.M. 1947. The court may interview the child
in chambers to ascertain her wishes, because the child's
wishes as to who should be her custodian may be highly probative
of her best interests and may have a substantial effect on her
emotional development with her custodial parent. See Hurly v.
Hurly, 147 Mont. 118, 411 P.2d 359. If it grants such an in-
terview, the court must "cause a record of the interview to be
made and to be part of the record of the case." Section 48-
334 (1), R.C.M. 1947.
The court must determine the best interests of the child
in accordance with the facts as they exist at the time of the
new hearing. If defendant can now provide a more stable home
environment than she could have provided at the time of the initial
custody modification hearing, the trial court must consider this
factor on rehearing. Finally, if the trial judge considers an
investigative report in his custody decision, the court must mail
the report to defendant's counsel at least ten days prior to the
hearing, and afford defendant the privilege of cross-examining
the authors of the report at the hearing. Section 48-335(3),
R.C.M. 1947.
The judgment of the district court is reversed and re-
manded for rehearing in accordance with this opinion.
,7 /
Chief Justice
1)