No. 84-241
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
IN RE THE CUSTODY OF
KORRIE HOLM.
APPEAL FROM: District Court of Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Howard F. Strause, Great Falls, Montana
For Respondent :
Asselstine & Tadewaldt; Art Tadewaldt, Great Falls,
Montana
Submitted on Briefs: Jan. 31, 1955
Decided: April 11, 1985
Filed: !i iY85
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of
the Court.
On September 29, 1983, Robert Holm (Father) petitioned
the District Court of the Eighth Judicial District, County of
Cascade to grant him custody of his daughter, Korrie Holm. A
hearing was held on the motion Janua.ry 24, 1984, and the
motion was denied on March 1, 1984. In addition, the trial
judge increased Robert's child support obligation from $150
to $300 a month. Robert appeals the denial of his motion for
custody and the change in his child support obligation. We
affirm the order of the District Court.
The marriage of Robert and Shirley Holm (Mother) was
dissolved on February 23, 1982. The custody of the couple's
two minor children, Korrie and Timothy (T.J. ) , was given to
Shirley. They reside in Great Falls. Robert was given
reasonable visitation rights and was ordered to pay $150 per
month per child as child support. On January 12, 1983,
R.obert petitioned for custody of his two children, alleging
that Shirley's custody "endangers seriously their physical,
mental, moral and emotional health." Following a hearing on
March 3, 1983, Robert's petition was denied. Robert did not
appeal that order.
Robert vacationed from April 1 until April 23 or 24,
1983. Pursua.nt to an agreement between the parents, the
children stayed in Red Rock, Montana, with their father, his
new wife, Beverly, and her three-year-old daughter during
that time. The children were then returned to Shirley until
May 20, 1983, when Shirley requested Robert to again take
custody. According to the testimony of both Beverly and.
Shirley, the children were to stay with their father for the
summer because the length and difficulty of the trip between
Great Falls and Red Rock often precluded visitation during
the winter. At Shirley's request, the children were returned
to her on September 4, 1983, in time for Korrj-e to attend
school in Great Falls.
On September 23, 1983, Shirley and. her friend, Dee
Coyle, went to the J Bar T bar in Great Falls, where Dee
apparently introduced Shirley to Thomas Johnston. Dee was to
have travelled with Johnston to Canada the following day to
pick up combine headers. When Dee decided not to go, Shirley
accompanied him instead.
Johnston, Shirley and Shirley's 3 1/2 year old son, T.J.
left for Lethbridge, Canada, at 9: 00 the next morning.
Twelve miles out of town, Thomas Johnston's truck broke down.
At Mr. Johnston's request, an individual unknown to Shirley,
James Steyee, agreed to drive them to Canada. They arrived
in Canada shortly after noon, loaded equipment onto the 20
foot flatbed trailer being pulled by Steyee's 1968 half ton
pickup and returned to Great Falls. All the adults drank
alcohol to some extent, both on the way to Canada and on the
return trip. T. J. sat on his mother's lap.
Approximately 15 miles north of Great Falls, Steyee lost
control of his pickup, overcorrected his steering and landed
in the median. The pickup came to rest on its side, while
the trailer flipped, landing on its wheels. T. J. was thrown
from the pickup, crushed and killed. The investigating
officer, William Coffman, testified at trial that the
accident occurred when the trailer, which was overweighted to
the rear, caused the rear of the pickup to rise off the
pavement as the unit passed over swales, or bumps in the
road. He further testified that he did not originally
believe Mr. Steyee to he intoxicated. However, after further
investigation and blood tests, Mr. Steyee was issued a ticket
for driving while intoxicated.
Shortly after T. J.'s death, Robert filed this action
requesting custody of the couple's remaining child, Korrie
Holm. Shirley's response contained the following:
"3. The Court should increase the child support.
Respondents need more than $150.00 per month for
the support of KORRIE and Petitioner is able to pay
more than $150.00 per month child support."
The trial judge heard evidence on the issue of child support
at the January 24, 1984, hearing, and ultimately increased
Robert's obligation to $300 per month. Relying on child
support records from the Cascade County Clerk of Court's
Office, he also ordered Robert to pay $1,000 in past due
support.
Robert appeals, raising the following issues:
1. Did the District Court err in denying Robert Holm's
petition for change of custody?
2. Did the District Court err in increasing child
support payments from $150 to $300 per month and. declaring
$1,000 owing in back child support payments?
Section 40-4-219(1), MCA, controls when a prior child
custody decree may be modified:
"40-4-219. Modification. (1) The court ma17 in
its discretion modify a prior custody decree if 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 i n the circumstances of
.
the child or his custodian and that the
modification is necessary to serve the best
interest of the child and if it further finds that:
I
' (a) the custodian agrees to the modifica.tion;
"(b) the child has been integrated into the family
of the petitioner with consent of the custodian;
"(c) the child's present environment endangers
seriously his physical, mental, moral, or emotional
health and the harm likely to be caused by a change
of environment is outweighed by its advantages to
him; or
"(dl the child is 14 years of age or older and
desires the modification."
This section requires the trial judge to only consider
facts which have arisen since the prior decree or that were
unknown to the court at the time of that decree. In re the
Marriage of Erhardt (1976), 171 Mont. 49, 51, 554 P.2d 758,
759. Likewise, the judge should only hear evidence which has
arisen since the last petition to modify or which was unknown
to the court at that time. To do otherwise would be contrary
to the purpose of this section - the prevention of repeated
attempts by the non-custodial parent to modify custody. See
Commissioner's Notes to Section 409, Uniform Marriage and
Divorce Act.
We admonish counsel for both parties for their repeated
references, both at the lower court level and on appeal, to
evidence presented at the hearing on Robert's initial
petition for modification of custody. That evidence is
raised solely in an attempt to unduly prejudice the court.
Like the trial judge before us, we ignore any evidence not
properly before this Court.
After considering the changes since March 3, 1983, in
the circumstances of Korrie and her mother, including
Shirley's remarriage in December 1983 and T. J.'s tragic
death, the trial judge found Shirley to he a fit and proper
person to have custody of her daughter, Korrie. As long 3s
there is substantial credible evidence to support the
decision of the trial judge, it will be affirmed. In re the
Marriage of Sarsfield (Mont. 1983) , 671 P. 2d 595, 599, 40
St.Rep. 1736, 1739.
The trial judge's refusal to find that Korrie's present
environment endangers her welfare is substantiated by the
testimony and reports of Pauline Slade, a social worker
assigned to assist Shirley Holm since August of 1982. Ms.
Slade testified that while under her supervision, Shirley's
mothering skills continually progressed, as did her ability
to handle stress. Ms. Slade and her supervisors decided to
close Shirley's case in December of 1983, stating in their
report that Shirley was no longer in need of their service
because "there is no evidence to indicate that Korrie is at
risk of being abused or neglected in her mother's care."
Further, Ms. Slade testified that she believed T.J.'s death
to be the result of a tragic accident and that she believed
that accident had no bearing on Korrie's safety.
Virtually uncontradicted testimony of a social worker
familiar with the family involved forms a solid base in
support of a trial judge's conclusions regarding custody of a
child. In re the Marriage of C.C.W. and H.M.W. (Mont. 1983),
668 P.2d 1065, 1067, 40 St.Rep. 1455, 1458. Ms. Slade's
testimony is supported by the testimony of several witnesses,
including Pat Nowacki, Shirley's friend and neighbor. Ms.
Nowacki is the mother of three children. She often exchanged
babysitting services with Shirley. She considers Shirley to
be a good mother, truly concerned about her child.
Though Ms. Slade's testimony is not totally
uncontradicted, it is not our function to resolve conflict in
the evidence. The trial jud-qe has observed the demeanor of
the witnesses and is in the better position to judge the
credibility of those witnesses. In re the Narriage of C.C.W.
and H.M.W., 668 P.2d at 1068, 40 St.Rep. at 1458. Brooks v.
Brooks (1976), 1-71 Mont. 132, 134, 556 P.3.d 901, 902. The
trial judge's failure to find Korrie's present environment to
be harmful is affirmed.
Next, we find Robert's assertion that Korrie has been
integrated into his family, pursuant to 5 40-4-219(1-)(b),
MCA, because she spent the majority of the time between March
and September 1983 with them, to he erroneous. See Weber v.
Weber (1978), 176 Mont. 144, 147, 576 I?. 2d 1102, 1103-1104,
where we held that vacations spent with the non-custodial
parent do not result in integration into that parent's
family .
Neither of the remaining two alternatives for changing
custody found in S 40-4-219 (1)(a) and (d), MCA, are relevant
to this case. Korrie is under fourteen years of age and her
mother adamantly opposes any modification in Korrie's custody
arrangement. The decision of the trial judge not to modify
the custody of Korrie Holm takes into account Korrie's best
interests and is affirmed.
Regarding the issue of child support, Robert contends he
had no notice that Shirley would be requesting the trial
judge to increase his child support payment. However, the
interrogatories posed by Robert to Shirley demonstra.te that
he in fact had notice of Shirley's request. The
interroqa.tories involve questions pertaining to Shirley and
her new husband.'^ income and expenses. Interrogatories of
this nature are irrelevant to the issue of child custody but
are rather pertinent to the issue of child support.
Shirley's failure to follow local District Court Rule 67
concerning financial affidavits for support cases was not
raised at the lower court level. We do not consid-er issues
raised for the first time on appeal. In re the Marriage of
Glass (Mont. 1985), P.2d ,
- 42 St.Rep. 328,
333. This rule is especially pertinent where the issue
involves adherence to the lower court's own rules of
procedure.
There is sufficient evidence to support the trial
court ' s increase in child. support payments. Section
40-4-208(2) (b)(i), MCA, controls when support provisions may
be modified by requiring "a showing of changed circumstances
so substantial and continuing as to make the terms
unconscionable." T.J.'s death reduced Robert's support
obligation by $150. In light of the discrepancy between
Robert's and Shi.rleylsincomes, the trial judge did not abuse
his discretion in changing Robert's child support obligation.
The purpose of a support obligation is to make reasonable
provisions for the parties' children. There is no evidence
that Robert is less capable of making $300 a month payments
than he was at the time of the original custody and support
decree. A balance between the needs of the children and the
ability of the parties' to pay, as required by In re the
Marriage of McNeff (Plont. 1983), 673 P.2d 473, 475, 40
St.Rep. 2050, 2052, has been met.
Finally, there is no error in the court's order to
Robert to make delinquent child support payments in the
amount of $1,000. Robert was required to make the payments
to the Clerk of the District Court, Cascade County, pursuant
to § 40-4-206, MCA. Thus, the Clerk's records regarding the
status of Robert's payments is the best evidence of any
delinquent payments. Those records show delinquent payments
totalling $1,000.
Af firmed.
We concur: - '
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