No. 84-277
IN THE SUPFEiME COURT OF THE STATE OF MONTANA
1985
IN RE THE MARRIAGE OF
LINDA H. SARSFIELD,
Petitioner and Respondent,
and
MICHAEL J. SARSFIELD ,
Respondent and Appellant.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable Robert J. Boyd, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Deirdre Caughlan, Butte, Montana
For Respondent :
Garnaas, Ball & Pinsoneault, Missoula, Montana
Submitted on Briefs: Oct. 18, 1984
Decided: February 20, 1985
Filed:
FER 1985
Clerk
Mr. Justice John C. Harrison delivered the Opinion of the
Court.
This is an appeal from an order of the Second Judicial
District, Silver Row County, Montana, returning custody of
Michael John and Sarah Sarsfield to their mother, Linda
Sarsfield. This is the second time this custody dispute has
reached this Court, In Re the Marriage of Sarsfield (Mcnt.
1983), 671 P . 2 d 595, 40 St.Rep. 1736.
Michael and Linda Sa.rsfield were married in 1970. Two
children were born of the marriage: Michael John and Sarah.
The marriage was ever precarious and jn 1980 Linda filed a
.
petition for dissolution. The final decree of dissolution
was issued in February of 1981. Linda received custody and
Michael received. liberal visitation rights.
Little more than a year later Michael filed a petition
to modify the custody decree. He alleged that Michael John
and Sarah had been left alone with M.M., whom Michael
believed to be a child molester. He further alleged that
Linda was planning to marry M.M. and that the home
environment of the children seriously endangered their
physical, moral and emotional well being. Michael sought
temporary and permanent custody of the children. Linda
admitted her pending marriage to M.M. but denied that the
children were in any danger or that a change of custody would
be in their best interest.
After several hearings on the proposed modification,
the court found that the children were seriously endangered
by the association of M.M. with Linda, because of M.M.'s
status as a child molester, and that there was a danger of
further harm if the children stayed in Linda's custody. The
court found that the transfer of custody to Michael was in
the best interest of the children and so ordered. Linda
received visitation rights.
On appeal it was found that there was substantial
evidence "to suggest that a potentially serious situation
existed with respect to M.M.'s association with Linda and her
children." Sarsfield, 671 P.2d at 6 0 2 , 40 St.Rep. at 1742.
Further, it was found that the potential danger to the
children constituted a change in circumstances sufficient to
justify modifying the prior decree. However, this Court
reversed on the grounds that the District Court did not allow
evidence on the issue of Michael's fitness as a custodial
parent. The case was then remanded with specific
instructions as to the nature and scope of further
proceedings.
At the conclusion of the remand hearing, the lower
court found Michael a fit custodial parent. However, it also
found that there was no longer a danger posed to the children
because Linda had effective1.y severed her relationship with
M.M. Therefore, the District Court ordered that the original
decree be reinstated in all respects. It is from that order
that Michael Sarsfield now appeals.
The issue presented by this case is whether the
District Court erred by not complying with the directives of
this Court on remand.
The notion that a lower court must abide by the
mandates of a higher court is both logical and clearly
expressed in the law of Mo~tana. Section 3-2-204 (1) , MCA
reads: "The supreme court may affirm, reverse, or modify any
judgment or order appealed from and may direct the proper
judgment or order to be entered or direct a new trial on
further proceedings to be had." It has been held that this
statute gives this Court the power to remand a case to a
lower court "accompanied by instructions that direct further
action be taken by it in accordance with those instructions."
State ex rel Olson v. District Court of Nineteenth Judicial
District (1979), 184 Mont. 346, 349, 602 P.2d 1002, 1003-4.
In Olson it is stated unequivocably that a lower court cannot
ignore an appellate court's mandate in disposing of a case on
remand. Failure to follow the directives of the appellate
court constitutes error. Further, a district court cannot
fail to carry out the directives of this Court when a case is
remanded for further proceedings. In Re Stoian's Estate
(1960), 138 Mont. 384, 390, 357 P.2d 41, 45.
The instructions to the District Court on remand in
this case are clear and are set out as follows:
"upon remand, the trial court shall take
testimony relating to facts or
allegations that have arisen since the
prior decree or that were unknown to the
court at the time of entry of that decree
concerning Michael's fitness to obtain
custody. The trial court shall decide
whether its findings with respect to
Michael ' s fitness, considered in
conjunction - - earlier findings
with its
concerning the changes in circumstances,
still warrant modificatirn of the initial
decree by placing the Sarsfield children
in Michael's custody." Sarsfield 671
P.2d at 604, 40 St.Rep. at 1745-6.
(Emphasis added. )
The District Court did not abide by these instructions.
At the opening of the remand hearing the court indicated its
awareness that testimony was to be presented regarding
Michael's fitness to be a custodial parent. Though some of
the subsequent testimony did concern that subject, the great
majority of the hearing was devoted to Linda Sarsfield's
relationship, or lack thereof, with M.M. Linda's attorney
obviously viewed the remand hearing as an opportunity to
reopen the question of L i n d a ' s relationship with M.M. and
whether or not that re]-ationship constituted a sufficient
change of circumstances to warrant a change of custody. But
the findings concerning change of circumstances had been
affirmed by this Court on the initial appeal and were not
properly a subject for the remand proceedings. See
Sarsfield, 671 P.2d at 603. The clear import of the
instructions on remand was that the District Court should
weigh whatever findings it made regarding Michael's fitness
as a parent against the already settled findings regarding
change of circumstances. It was then to decide if
modification of the initial decree was still warranted. By
failing to do this the District Court has committed error.
In finding from the remand hearing that Michael Sarsfield has
matured since his remarriage and offers a stable and loving
home for his children, but then concluding from the same
hearing that a lack of change of circumstances prevents the
modification of the initial decree, the District Court has
exceeded its mandate from this Court.
Accordingly, the May, 1984 order is reversed and
custody of Michael John and Sarah Sarsfield is awarded to
their father Michael Sarsfield pursuant to the District
Court's finding that he is a fit custodial parent.
We concur:
Mr. Justice L. C. Gulbrandson, dissenting.
The parties, through their respective counsel, by
stipulation and. participation in the hearing on remand,
treated that hearing as a continuation of the original
hearing on the petition to modify custody decree. Both
parties, along with thirteen other witnesses, testified
without objection. The trial judge also had the transcripts
available from the previous hearing and, although he found
that the father was now able to offer a stable, secure and
loving home for the children, concluded that there had been
no substantial change in the circumstances to permit
modification of the original decree.
There is substantial credible evidence to support the
findings of t.he trial judge and I would therefore, affirm.
Justice'
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