No. 14895
IN THE SUPREME COURT OF THE STATE OF MONTANA
1980
IN F 3 THE MARRIAGE OF
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LINDA K. FIRMAN,
Plaintiff and Respondent,
VS .
DALE M. FIRMAN,
Respondent and Appellant.
Appeal from: District Court of the Eighteenth Judicial District,
Honorable W. W. Lessley, Judge presiding.
Counsel of Record:
For Appellant:
James M. Kommers, Bozeman, Montana
For Respondent:
Linda K. Firman, Pro Se, Bozeman, Montana
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Submitted on briefs: February 8, 1980
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Filed: --
Mr. Justice John C. Sheehy delibered the opinion of the
Court.
Dale M. ~ i r m a nappeals from a judgment of the District
Court, ~ighteenthJudicial District, Gallatin County, modifying
a marriage dissolution decree. Dale seeks review of his
child visitation rights, his child support obligations and
the use by his children of a different surname than Firman.
Dale and Linda K. Firman were formerly husband and
wife. Their marriage was dissolved in February 1976. Under
the dissolution decree, Linda was granted custody of the
parties three minor children, Kelley, Marty and Kimberly,
now eight, nine and ten years old, respectively. Dale was
to pay $150 per month child support and to keep in effect a
health insurance policy for the children. The insurance
policy carries a $51 per month premium. In addition, Dale
was to receive reasonable visitation rights. In this regard,
Dale generally enjoyed a one weekend per month arrangement
at the time this cause was filed.
Problems arose regarding Dale's visitation rights. On
December 27, 1978, Dale petitioned the District Court for a
modification of the dissolution decree. Specifically, the
petition requested a fixed schedule of visitation consisting
of three summer months, alternate weekends, Thanksgiving and
Christmas days during alternate years. The petition also
requested the children be required to use their legal surname
of Firman. Subsequent to the marriage dissolution, Linda
was remarried to Edward Hauser. The children were enrolled
in school under the name of Hauser, but Edward had never
legally adopted the children. All the children's other
records have remained in the name of Firman. The children
wanted to use the Hauser name at school to avoid inquisitive
peers.
On January 22, 1979, Linda filed an answer and counter-
claim to Dale's petition. Trial without a jury was held on
March 14, 1979, and the District Court entered its judgment
on April 5, 1979. The judgment, in effect, granted Linda's
counterclaim. Under the judgment, Dale has a visitation
right of one month during the summer, provided he gives one
week's notice to Edward. Also, Dale must pay one-half of
all the children's uninsured medical expenses and $25 per
month per child to be held in trust for each child until
that child reaches eighteen years of age. This is in addition
to Dale's prior support obligations under the original
dissolution decree. Finally, the children may use any surname
they prefer.
The issue presented is whether the District Court
abused its discretion in restricting Dale's prior visitation
rights, increasing his child support obligations and allowing
the children to use any surname they prefer. We hold the
District Court abused its discretion with regard to all
three of the modified provisions.
Dale first contends the District Court arbitrarily
restricted his visitation rights to one summer month. We
agree.
Clearly, a District Court has the discretion to modify
the noncustodial parent's visitation rights whenever such
modification would be in the best interests of the child.
However, by the express terms of the controlling statute,
the District Court cannot restrict such rights unless it
first finds that the existing visitation arrangement seriously
endangers the child's physical, mental, moral or emotional
health. Section 40-4-217(3), MCA. No such finding was made
here.
In its findings of fact, the District Court found the
existing visitation arrangement to be reasonable. Yet, the
District Court restricted Dale's visitation rights to one summer
month. The District Court made no specific finding or conclusion
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that the existing arrangement seriously endangered the
children's health. Moreover, the District Court's findings
which might provide a basis for such a determination are not
supported by substantial credible evidence in the record.
In finding of fact no. 6, the District Court found that
overnight weekend visits interfere with the children's
school preparations. Yet, Linda herself testified the
children were not permitted to take schoolwork along during
the weekend. Similarly, in finding of fact no. 10, the
District Court found Dale left the children without supervision
on at least one occasion. The only evidence in the record
is that Dale left the children unsupervised for one-half to
one and one-half hours. Given the children's ages and the
fact this was a one-time occurrence, this hardly seems a
serious endangerment to the children's health.
At the trial of this cause, the children told the
District Court they enjoy seeing their father. Linda herself
testified Dale's prior visitation rights did no harm to the
children other than he occasionally took them along hunting.
Linda's prime concern with the prior visitation arrangement
was it deprived Edward of free time with the children since
Lcivrard works six days a week. This concern is an insufficient
basis for modifying Dale's visitation rights. The well-
rounded development of a normal child demands association
with both natural parents, and the noncustodial parent is
entitled to a fair opportunity to share in the child's love
and affection when this can be done without detriment to the
child. McGetrick v. McGetrick (Ore. 1955), 284 P.2d 352,
354.
Dale next contends the District Court abused its discretion
in requiring Dale to pay one-half of the children's uninsured
medical expenses and $75 per month into a trust fund for the
children. We agree here too.
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As with Dale's visitation rights, our function upon
reviewing this issue is to determine whether there is sub-
stantial credible evidence to support the District Court's
determination. Burris v. Burris (1976), 171 Mont. 227, 557
P.2d 287. There is none here.
Since Dale never consented in writing to a modification
of his child support obligation, the District Court could
modify that obligation only upon a showing of changed cir-
cumstances so substantial and continuing as to make the original
child support provision unconscionable. Section 40-4-208(2)(b),
MCA. No such showing was made at trial. Moreover, there is
a complete absence in the record of any evidence concerning
the need for increased child support or Dale's increased
ability to pay such support.
Dale's final contention is the District Court abused its
discretion in allowing the children to use the surname they
prefer. According to Dale, the only possible effect of this
determination is to further estrange him from his children.
We also agree here.
At common law, a person could adopt any surname he might
choose so long as the change was not made for fraudulent
purposes. Thus, absent a statute to the contrary, the widespread
custom in this country of giving a child the surname of his
father is a matter of choice rather than law. Secretary of
Com. v. City Clerk of Lowell (Mass. 1977), 366 N.E.2d 717,
725. Title 27, chapter 31, parts 1 and 2, MCA, provides a
procedure for changing one's name. These statutes are in
affirmance and aid of common law and do not abrogate it. Kay
v. Kay (Ohio 1953), 112 N.E.2d 562. Since there is no other
statute in point, this Court must fall back on general principles,
the most important of which in any proceeding concerning the
relationship of a father and his child is the best interest of
the child.
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Under the particular circumstances presented, it is in
the best interests of the children to use the surname of
Firman for all purposes. Dale and his children live in the
same community and have manifested an abiding interest in
each other. Dale has consistently fulfilled his child
support obligations. Thus, until the children reach an age
where they can fully understand the circumstances surrounding
their parents' marriage dissolution, the District Court
should not permit an unnatural barrier to come between Dale
and the children. Such a barrier can only further estrange
Dale and the children.
Having determined the District Court abused its discretion
concerning Dale's visitation rights, his child support obli-
gations and the children's use of the surname they prefer,
we reverse the District Court's judgment and remand the
cause for further proceedings in accordance with this opinion.
We Concur:
I/ Justice
Chief Justice
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