No. 13487
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977
RICHARD W. HOLM,
Plaintiff and Appellant,
ALLENA N. HOLM,
Defendent and Respondent.
Appeal from: District Court of the Thirteenth Judicial
District,
Honorable C. B Sande, Judge presiding.
Counsel of Record:
For Appellant:
Beiswanger and Wilson, Billings, Montana
Gary L. Beiswanger argued, Billings, Montana
For Respondent :
Berger, Anderson, Sinclair and Murphy, Billings,
Montana
Richard W. Anderson argued, Billings, Montana
Submitted: January 25, 1977
Decided: MAR 2 3977
Filed: dlb,( 2 31
7
Mr. J u s t i c e Frank I . H a s w e l l d e l i v e r e d t h e Opinion o f t h e C o u r t .
T h i s i s a n a p p e a l by t h e f a t h e r o f two minor g i r l s
from a n o r d e r o f t h e d i s t r i c t c o u r t , Y e l l o w s t o n e County, chang-
i n g t h e i r custody t o t h e i r mother.
The c h i l d r e n o f t h e p a r t i e s a r e t w i n g i r l s who w e r e s i x
years old a t t h e t i m e of t h e i r parents' divorce. On J u n e 2 ,
1975, t h e i r f a t h e r was awarded a d e f a u l t d i v o r c e from t h e i r
mother. The d e c r e e awarded c u s t o d y of t h e g i r l s t o t h e f a t h e r ,
w i t h r e a s o n a b l e r i g h t s of v i s i t a t i o n t o t h e mother, p u r s u a n t
t o a w r i t t e n c u s t o d y agreement s o p r o v i d i n g which was a p p r o v e d ,
c o n f i r m e d and made a p a r t o f t h e d e c r e e .
I n O c t o b e r , 1975, t h e f a t h e r and t h e two g i r l s moved t o
Rapid C i t y , S o u t h Dakota and have r e s i d e d t h e r e c o n t i n u o u s l y
since t h a t date.
On O c t o b e r 2 0 , 1975, t h e mother f i l e d a n a f f i d a v i t s e e k -
i n g a change i n c u s t o d y t o h e r based upon a change i n circum-
stances of t h e p a r t i e s s i n c e entry of t h e o r i g i n a l decree four
months p r e v i o u s l y . The a f f i d a v i t a l l e g e d t h a t a t t h e t i m e o f
t h e d i v o r c e t h e mother w a s i n a p h y s i c a l l y and m e n t a l l y d e b i l i t a t e d
c o n d i t i o n a s a r e s u l t o f s u r g e r y making h e r a b i l i t y t o care f o r
t h e c h i l d r e n d o u b t f u l ; t h a t s h e signed t h e custody agreement
u n d e r t h e s e c i r c u m s t a n c e s ; and t h a t s h e had s i n c e r e c o v e r e d
and w a s p h y s i c a l l y c a p a b l e o f c a r i n g f o r t h e c h i l d r e n . She a l s o
a l l e g e d t h e f a t h e r ' s i n a b i l i t y t o care f o r t h e c h i l d r e n . She
s o u g h t a n award o f c h i l d s u p p o r t on change o f c u s t o d y t o h e r .
F o l l o w i n g a h e a r i n g , t h e d i s t r i c t c o u r t made a f i n d i n g
t h a t t h e m o t h e r ' s a p p l i c a t i o n f o r change o f c u s t o d y was p r e m a t u r e
and d e n i e d it. The c o u r t ' s o r d e r f u r t h e r p r o v i d e d t h a t " * * *
This m a t t e r i s continued f o r f u r t h e r consideration a t a l a t e r
d a t e upon a p p l i c a t i o n of e i t h e r p a r t y . "
On J u n e 2 8 , 1976, t h e mother f i l e d a second a f f i d a v i t
and application for change of custody. This affidavit, in
addition to the matters alleged previously, alleged further
changes in circumstances consisting of her remarriage, her
maintenance of a suitable home for the children, the willing-
ness of her present husband to have the children in the home,
her return to steady employment, and her further physical
recovery. She again sought an award of child support on change
of custody.
Following denial of the husband's motion to dismiss for
lack of jurisdiction, the district court held a hearing on the
wife's application for change of custody.
On August 4, 1976, the district court entered findings
of fact, conclusions of law and an order changing custody to
the mother and awarding her child support of $65 per month per
child.
In its findings the district court found that at the
time the mother signed the custody agreement incorporated in the
divorce decree she was in a physically and emotionally debili-
tated state; that at the time of the mother's first application
for change of custody the court was of the opinion " * * * that
[the mother] had in fact not fully recovered from her physical
problems and was not yet restored to normal health and vitality"
and that for these reasons, the court "entered an interim order"
continuing custody in the father but invited further consideration
of the matter at a later date upon application of either party;
that the remarriage of the mother, establishment of a new home,
her recovery from her physical impairments, and her return to
work,finding she is physically able to meet the demands of her
occupation and homemaking are material changes in circumstances
from those existing at the time of the divorce.
The court further found that it would be in the best
interests of these female children approaching their eighth
birthdays that their custody be placed with their mother. The
findings state that " * * * This would not necessarily be the
case if they were male children, where their interests and
needs * * * would be more in keeping with [their father's]
situation." and "Everything else being equal, however, and for
well-known biological and emotional reasons, the Court deter-
mines that it would be in the best interests of these female
children to have their primary guidance provided by their mother,
who appears at this time to be a fit and proper mother."
There are two issues assigned for review on appeal:
(1) Did the district court have jurisdiction to enter-
tain the mother's petition for change of custody?
(2) Did the district court abuse its discretion in
changing custody?
The jurisdictional issue determines the outcome of this
appeal. The Uniform Marriage and Divorce Act was enacted by the
Montana legislature in 1975. Its effective date was January 1,
1976. The provision of that Act pertinent to this appeal is
codified as section 48-339, R.C.M. 1947, and reads:
"Modification. (1) 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 en-
danger seriously his physical, mental, moral, or
emotional health.
"(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 emo-
tional health, and the harm likely to be caused
by a change of environment is outweighed by its
advantages to him.
"(3) Attorney fees and costs shall be assessed
against a party seeking modification if the court
finds that the modification action is vexatious
and constitutes harassment."
Subsection (1) above specifically bars an application
for change of custody within 2 years of an existing custody award,
subject to an exception not pertinent to this case. Here the
original custody award was made on June 2, 1975; the appli-
cation for change of custody was filed on June 28, 1976; and the
order granting the change of custody was entered on August 4, 1976.
The district court lacked jurisdiction to change custody less
than 14 months after the original custody award based on the best
interests of the children where, as here, it specifically found
that the custodian " * * * is and has been a fit and proper
father. "
The rationale behind this provision is expressed in this
language in the Comment of the Committee which acted for the
National Conference of Commissioners on Uniform State Laws in
promulgating the Uniform Marriage and Divorce Act:
"Most experts who have spoken to the problems of
post-divorce adjustment of children believe that
insuring the decree's finality is more important
than determining which parent should be the cus-
todian. See Watson, The Children of Armageddon:
Problems of Custody Following Divorce, 21 Syracuse
L.Rev. 55 (1969). This section is designed to
maximize finality (and thus assure continuity for
the child) without jeopardizing the child's inter-
est. Because any emergency which poses an immed-
iate threat to the child's physical safety usually
can be handled by the juvenile court, subsection
(a) [subsection 1 of section 48-339, R.C.M. 19471
prohibits modification petitions until at least
two years have passed following the initial decree,
with a 'safety valve' for emergency situations.
To discourage the noncustodial parent who tries to
punish a former spouse by frequent motions to
modify, the subsection includes a two-year wait-
ing period following each modification decree.
During that two-year period, a contestant can get
a hearing only if he can make an initial showing,
by affidavit only, that there is some greater
urgency for the change than that the child's
'best interest' requires it. During the two-
year period the judge should deny a motion to
modify, without a hearing, unless the moving party
carries the onerous burden of showing that the
child's present environment may endanger his
physical, mental, moral, or emotional health."
(Bracketed material supplied. )
This rationale is persuasive. It makes sense. It ex-
plains the purpose, intent, and operation of the statute. We
adopt it.
Subsection (2) of section 48-339, R.C.M. 1947, also
denied jurisdiction to the district court to change custody.
It requires the district court to retain the prior custodian
unless he agrees to the modification, or the child has been
integrated into the family of the petitioner with the consent
of the custodian, or the child's present environment seriously
endangers his physical, mental, moral, or emotional health to
an extent where the harm to the child from a change in custody
is outweighed by its advantages to the child. None of these
conditions is present in this case. For the rationale and appli-
cation of this subsection see Commission Comment, National
Conference of Commissioners on Uniform State Laws, Uniform Marriage
and Divorce Act, approved and recommended at its Annual Conference,
August 1-7, 1970, with amendments approved August 27, 1971 and
August 2, 1973.
The mother argues that the Uniform Marriage and Divorce
Act has no application to this case. She contends that her mod-
ification proceeding was initiated prior to its adoption, con-
tinued for further consideration at a later date, and the prior
law governs this proceeding.
We cannot agree with this contention. Although her
original application and the district court's order thereon
occurred prior to the effective date of the Act, the district
court held her application premature and denied it. While it is
true that the district court at that time provided that " * * *
this matter is continued for further consideration at a later
date upon application of either party", it amounted to no more
than an expression of the district court's continuing juris-
diction over child custody. The second custody hearing was
based on another application for change of custody after the Act
became effective and alleged a change in circumstances based in
part on events that had occurred following the effective date
of the Act. Under these circumstances we hold that the mother's
application for change of custody is governed by the Act.
The order of the district court of Yellowstone County
changing custody dated and filed on August 4, 1976, is vacated
for lack of jurisdiction. This cause is remanded to the district
court for determination of whether attorney's fees should be
awarded the husband pursuant to the provisions of section 48-
339 (3), R.C.M. 1947.
Justice
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Justices
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