IN THE SUPREME COURT OF THE STATE OF MONTANA
IN RE THE MARRIAGE OF
A.R.C.,
Petitioner and Respondent,
VS.
C.K.C.,
Respondent and Appellant.
Appeal from: District Court of the Nineteenth Judicial
District, In and for the County of Lincoln,
The Honorable Robert M. Holter, Judge
presiding.
Counsel of Record:
For Appellant:
Sverdrup & Spencer; Scott B. Spencer, Libby,
Montana
For Respondent:
Douglas and Bostock; Thomas Bostock, Libby,
Montana
Submitted on Briefs : January 7, 1983
Decided : April 7, 1983
Filed: APR 'd - 1983
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
C.K.C. (the mother) appeals from an order of the Lincoln
County District Court modifying the initial custody provision
of a divorce decree. The couple had three children. The
initia.1 custody provision gave the father custody of one of
the children and gave the mother custody of the other two.
The modification order gave custody of all three children to
the father. The mother contends that the trial court's
findings of fact were not supported by substantial credible
evidence and that the findings did not meet the requirements
of section 40-4-219(1), MCA, relating to the modification of
a custody decree. We affirm.
The couple were married and divorced twice. At the time
of the second divorce in 1981, they had three children, J.L.,
a nine year old girl; J.R., an eight year old boy; and M.S.,
a year old girl. The trial court awarded custody of the
oldest girl, J.L., to the father and gave custody of the
younger two children to the mother.
The modification depends on a finding by the trial court
that a change has occurred since the divorce in the
circumstances of the children or of their custodian and that
modification is necessary to serve the best interest of the
child. Section 40-4-219 (I), MCA. The trial court held a
hearing on the issue of the father's petition for custody
modification and then made the following findings relating to
the change in circumstances:
Since the divorce the mother had not been steadily
employed and had been living on welfare benefits. The mother
and the two children had been living with the maternal
grandfather and his wife. The mother had frequently been
away from home for periods of two or more days. During
these absences, the children were left in the care of the
maternal grandfather and his wife, who had a difficult time
caring for them. The mother's frequent absences had affected
the eight year old boy, who had continual disciplinary
problems, he had refused to bathe and attend to his personal
hygiene, and had been failing in school. During one of the
mother's absences, the grandfather asked the children's
father to take control of the boy. The boy's father did so.
While the boy stayed with his father in Troy, Montana, his
school work improved and his disciplinary problems began to
disappear. The boy also expressed a strong desire to remain
with his father. The mother then returned for the boy,
asserting her custody right. She moved the young boy from
Troy to Libby and kept him out of school during the last week
of that school year. The mother was a "filthy housekeeper
and did not attend to the needs of the children." The mother
seldom bathed the baby girl and did not keep her diapers
clean. The baby girl has suffered from severe diaper rash
which required a doctor's care. Since the divorce the mother
had failed to support and care for the two children.
Based on these findings, the trial court concluded that
it did have jurisdiction over the case; it would be in the
children's best interest to live with their father; the
children's present environment with their mother seriously
endangered their mental, moral, emotional and physical
health; any harm which might result by a change of custody
would be outweighed by the advantages; and that it is
desirable that all three children live together.
The mother first claims that the trial court's findings
of fact are not supported by substantial credible evidence,
or that there is evidence in the record which directly
conflicts with the court's findings.
The mother takes specific exception to five of the trial
court's findings of fact. In finding of fact no. 8, the
trial court found that since the divorce the mother has not
been steadily employed, has been on welfare, and has failed
to support and care for the two minor children. She contends
this finding is improper because there is evidence in the
record which contradicts this finding. We note that although
there is evidence that the mother was employed, it was not
steady employment. The mother herself testified that she had
cared for the children, yet there was also testimony that she
frequently left them in the care of others for days at a
time. There is evidence that the mother's primary source of
income is welfare benefits. Sufficient evidence supports
this finding. The mere existence of contradictory evidence
does not require us to overturn a finding.
In finding of fact no. 10, the trial court found that
the mother has absented herself from her county of residence
on numerous occasions, for periods from two days to over a
month. During the mother's absence the children were left in
the care of the maternal grandfather and his wife. The
mother admits that she has frequently been absent, but
contends that there was no testimony that she was away for a
month in any one consecutive period. We note that there was
testimony that the mother once was away for several weeks.
Keeping in mind that the paramount consideration in this
proceeding is the best interest of the children, we do not
find it necessary to measure the mother's absences with
mathematical precision. Whether she was away for over a
month or away for several weeks is less important than the
fact that she was away. We will not overturn this finding.
In finding of fact no. 11, the trial court found that
the maternal grandfather and his wife had a difficult time
caring for the children during the mother's absences. The
trial court also found that the mother's long absences and
lack of concern for the children have caused noticeable
problems. While in the mother's custody the eight year old
boy had been a disciplinary problem, had refused to bathe and
attend to his personal hygiene, and was failing in school.
The mother contends that no evidence was presented to show
that her absences caused the boy's disciplinary problems, nor
that she showed a lack of concern for her children. While no
testimony specifically tied the boy's disciplinary problems
or his school problems to his mother's absences or her lack
of concern for his welfare, the record holds ample evidence
that he had those problems. The record also indicates that
those problems improved or disappeared when the boy lived
with his father. Reviewing the evidence in the light most
favorable to the respondent (father), there is sufficient
evidence in the record to support the trial court's finding.
The trial court's finding no. 15 was that during the
time the parties were married, the mother was a "filthy
housekeeper and did not attend to the needs of the children"
and that by all indications her capabilities had not improved
since the divorce. The mother contends that this finding
concerns pre-divorce matters and is not relevant to this
proceeding. We agree that pre-divorce matters are not
relevant to this inquiry. Nonetheless, insofar as the
mother's housekeeping and attention to her childrens' needs
have not improved, it is relevant to this inquiry because it
concerns the care the children receive while they are with
their mother.
Finally, in finding of fact no. 16, the trial court
found that while in the mother's custody, the baby girl had
suffered from severe diaper rash, to the extent that she had
to be taken to a local doctor for treatment, and that the
ostensible cause for the severe diaper rash was the mother's
failure to bathe the baby and change her diapers. The mother
contends that there is no evidence in the record to support
this finding. The father testified that the baby suffered
from a severe diaper rash. A day care attendant testified
that when the mother left the baby at the day care center in
the mornings, the baby often did not appear to be well taken
care of and that she had an unpleasant smell. The day care
attendant also testified that the baby was usually given a
bath in the morning at the day care center. Therefore,
sufficient evidence supports this finding.
It is the trial court's duty to weigh the evidence and
make findings. The trial court did so in this case and we
see no indication of any abuse of discretion which would
require those findings to be overturned.
The second issue raised by the mother is whether the
trial court met the specific requirements of section
40-4-219(l), MCA, before modifying the custody arrangement.
The trial court must find that a change has occurred in the
circumstances of the child or his custodian and that
modification is necessary to serve the best interest of the
child. In addition, the statute directs the trial court to
retain the previously appointed custodian unless (a) the
custodian agrees to the modification, (b) the child has been
integrated into the petitioner's family with consent of the
custodian, or (c) the child's present environment seriously
endangers his physical, mental, moral, or emotional health
and the harm likely to be caused by a change of environment
is outweighed by its advantages. In this case the trial
court made findings regarding the circumstances arising when
the two children were placed in the mother's custody. Based
on those findings the trial court concluded that the
children's environment with their mother ". . . seriously
endangers their mental, moral, emotional and physical health,
and any harm which might result by a change of custody would
be outweighed by the advantages which would inure to the
benefit of such children by such a change."
The trial court did not make a specific finding in the
language of the statute "that a change has occurred in the
circumstances of the child or his custodian.. .. " It is
always good practice to do so. The welfare of the children
is the paramount consideration in awarding custody. We will
look behind the form to the substance of the trial court's
findings. The trial court made ample findings relating to
the circumstances of the mother and children since the
divorce. Th.ose findings indicate that the circumstances have
changed to the detriment of the children.
The District Court's modification order changing custody
to the father is affirmed.
We Concur:
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