140. 53-109
IN THE SUPREME COURT O THE STATE OF MO>ITANA
F
1983
IN RE THE MARRIAGE OF
C.C.W.,
P e t i t i o n e r and Appellant,
and
H.M.W.,
Respondent a n d Respondent.
APPEAL FROM: D i s t r i c t Court o f t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e County o f Y e l l o w s t o n e ,
The H o n o r a b l e W i l l i a m J . S p e a r e , J u d g e p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
K e e f e r , R o y b a l , Hanson, S t a c e y & J a r u s s i ; C a l v i n J .
S t a c e y , B i l l i n g s , Montana
For Xespondent:
C r a i g R. B u e h l e r , Lewistown, Montana
Zones, J o n e s & Work, B i l l i n g s , Montana
S u b m i t t e d on B r i e f s : J u n e 30, 1983
Decided: September 8 , 1983
Filed:
SEP 8 - 1983
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
C.C.W. (mother) appeals from the modification award of
the District Court of Yellowstone County granting custody of
three minor children to H.M.W. (father). Inititally
pursuant to agreement, custody of the children had been
awarded to the mother. We affirm the District Court.
The marriage between husband and wife was terminated by
decree of dissolution dated October 18, 1976, incorporating
the separation agreement of the husband and wife. Custody of
the three minor children, together with a fourth child not
involved in this proceeding, was awarded to the mother with
reasonable visitation rights to the father. In August 1980,
the father filed a motion with the District Court requesting
modification of the custody arrangement. Hearing was held on
March 12, 1981, a.nd the testimony of a number of witnesses
was presented in behalf of both parties. The District Court
entered its findings of fact and conclusions of law and
determined that custody of the three minor children should be
placed with the father. The determination of the District
Court was appealed to this Court, which remanded the case to
the District Court for the entry of findings of fact
sufficient to resolve the conflicts in the evidence. Amended
findings of fact and conclusions of law were entered by the
District Court on January 18, 1983, based upon the evidence
originally submitted in March 1981.
The issues are:
(1) Did the evidence establish the change in
circumstances required under section 40-4-219, MCA?
(2) Did the evidence establish that the environment
with the mother seriously endangered the physical, mental,
moral or emotional health of the children as required under
section 40-4-219, MCA?
Counsel for mother presents an extensive review of the
testimony submitted in behalf of both the mother and the
father. In doing so, counsel emphasizes that the witnesses
testifying for the mother contradicted the witnesses
testifying for the father on a great many essentials
necessary to prove the father's case. Because of the
conflict in the testimony, mother's counsel suggests that
there has been a failure to show the change in circumstances
required for jurisdiction. We agree there are many conflicts
in the testimony, but disagree with the conclusion on the
part of counsel.
The standard of review of the evidence by this Court is
stated in Jensen v. Jensen (19811, Mont., 629 P.2d 765, 768,
"This Court will not substitute its judgment for
that of the trier of fact. We will consider only
whether substantial credible evidence supports the
findings and conclusions. Findings will not be
overturned unless there is a clear preponderance of
evidence against them, recognizing that evidence
may be weak or conflicting, yet still support the
findings."
The same limited standard of review is set forth in Nicolai
v. Nicolai (1981), Mont., 631 P.2d 300, 303, 38 St.Rep. 1100,
1103, where we pointed out that findings of a district court
may not be set aside unless they are clearly erroneous under
Rule 52 (a), M.R.Civ.P. We consider only whether substantial
credible evidence supports the findings and will not overturn
the findings unless there is a clear preponderance of
evidence against them. "The trial court's decision
concerning child custody will not be disturbed unless there
is a clear abuse of discretion." In Re Marriage of McLean
(1980), Mont., 609 P.2d 282, 284, 37 St.Rep. 589, 591.
The challenged findings of fact are:
Since the entry of the prior decree, changes have
occurred in the circumstances of the mother in that
she does not properly care for the children.
The children have been inadequately provided with
clothing, endangering their physical health,
including not having proper shoes and coats in the
winter.
The children's emotional, moral and mental health
has been endangered by the mother's constant
association with several different violent,
alcoholic males.
VII.
The children's physical health is threatened by the
lack of cleanliness in the home as well as the
mother's failure to keep the children and their
clothing clean.
VIII.
The mother's failure to adequately supervise the
children in personal hygiene has resulted in severe
tooth decay and other health problems."
In addition, the District Court found that the father and his
present wife desire the custody of the children and have a
stable and comfortable environment.
The first issue is whether the evidence established the
change in circumstances required under section 40-4-219, MCA.
While the findings are not detailed, a significant change is
noted in that the mother does not properly care for the
children and has inadequately provided them with clothing,
endangering their physical health. In addition, change is
shown in that the emotional, moral and mental health of the
children has been endangered because of the mother's constant
association with several different violent, alcoholic males.
Last, the lack of cleanliness is an indication of a change
from the original agreed capacity of the mother. Considered
together, these findings, if supported by the evidence, are
sufficient to meet the statutory requirement of change in
circumstances.
The second issue is whether the present environment
endangers the physical, mental, moral or emotional health of
the children. Again, while the findings are not detailed,
they do contain sufficient facts upon which to base the
conclusion reached by the District Court if there is
sufficient evidence in the record to sustain the findings.
While the record does show contradictory testimony by a
number of the witnesses testifying for the mother as compared
to the father, it is important to consider the testimony and
report of the Yellowstone County social worker involved in
this case. She had approximately 15 years of experience.
She conducted five personal interviews with the mother, three
interviews with the father, interviews with approximately ten
of the persons in the schools attended by the minor children,
interviews with the family dentist and family doctor, an
interview with the counselor who knew both parties, and an
interview with personnel in the Sheriff's Department. She
was aware that modification of custody could be made only
after a showing that the physical, mental, moral or emotional
health of the children would be harmed and that the harm
caused by the change of environment should be outweighed by
the advantages of the change. She prepared a comprehensive
and well documented nine-page report and testified
extensively on both direct and cross-examination. Her report
and testimony clearly established that there had been a
change in the circumstances of the mother and that there was
a factual basis for findings VI, VII and VIII of the District
Court. Her conclusion was that a modification of custody was
proper. She recommended that the custody of the three
children be changed from the mother to the father. While
some parts of the testimony of other witnesses for the father
were contradicted in part, there is more than sufficient
evidence to establish a factual basis for findings IV and V,
that the children lacked proper care and had been
inadequately provided with clothing, endangering their
physical health.
We emphasize the evidence on the part of the social
worker because much of her testimony is uncontradicted and
forms a solid base for the conclusions reached by the
District Court. We need not review the balance of the
evidence most favorable to the father. We only point out
that there is substantial evidence to support the contentions
of the father and the social worker, as well as to support
the District Court's findings. Even though parts of that
testimony are contradicted by other testimony on the part of
the mother, we emphasize that the credibility and weight of
such conflicting evidence is within the province of the trier
of fact. Matter of Custody of R.L.S. (1981), Mont., 632 P.2d
703, 706, 38 St.Rep. 1328, 1332, citing Rankin v. Ferriter
(1969), 76 Wash.2d 533, 537, 458 P.2d 176, 179.
We conclude there is substantial evidence to establish a
change in circumstances of the children and their custodian,
and that the children's environment with the mother seriously
endangered their physical, mental, moral or emotional health.
We affirm the District Court.
We concur:
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Chief Justice