No. 85-376
I N THE SUPREME COURT OF THE STATE OF MONTANA
1986
I N RE THE MARRIAGE OF
NICK E . GAHM,
P e t i t i o n e r and A p p e l l a n t ,
and
MARLA J. HENSON,
APPEAL FROM: D i s t r i c t C o u r t ,of t h e F i r s t J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of L e w i s and C l a r k ,
T h e H o n o r a b l e H e n r y L o b l e , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
Jackson and R i c e ; G r e g o r y Jackson,
Helena, Montana,
For Respondent:
S m i t h Law F i r m , P.C.; R o b e r t J. S e w e l l , J R . ,
H e l e n a , Montana,
John L . H o l l o w , H e l e n a , M o n t a n a , f o r M i n o r C h i l d r e n .
S u b m i t t e d on B r i e f s : A p r i l 30, 1986
Decided: July 18, 1 9 8 6
Filed:
*IUL 1 8 1986
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Nick E. Gahm, petitioner below, appeals the decision of
the Lewis and Clark County District Court denying his
petition for modification of custody. The issues on appeal
are whether the standard to be applied on a petition to
terminate the custodial rights of a parent under a joint
custody decree is the best interest of the child or serious
endangerment of the child and whether the decision of the
District Court is supported by substantial credible evidence.
We affirm.
The appellant and Marla J. Henson, respondent, were
married in Wichita, Kansas, in 1971. They had two daughters,
the first born in 1976 and the second born in 1978. After
moving to Montana, they were divorced in 1980. The parties
were awarded joint custody of the children. The appellant
returned to Wichita, Kansas shortly after the divorce and the
children remained in Montana with respondent. In the summer
of 1981, the children spent two months in Wichita. The
parties made similar arrangements for the summer of 1982.
Just before that visitation period ended, appellant filed for
custody of the children in Kansas, enrolled them in school,
and advised respondent she did not need to pick up the
children. Respondent went to Kansas and appeared in court
objecting to its jurisdiction. Appellant then withdrew his
petition but refused to voluntarily return the children to
respondent. In October 1982 the respondent picked up the
children from school in Kansas and returned with them to her
new home in Ephrata, Washington. She refused to let
appellant communicate with the children for about eight
months following this episode. The respondent moved to Wolf
Creek, Montana, during this time and began using the surname
"Gershon" to prevent appellant from finding her and the
children.
In June 1983 appellant filed a petition for
modification of custody. In his petition he asked that
permanent custody be awarded to him with respondent to have
limited visitation rights. According to the pretrial order,
his allegations to support a change of custody were (1)
failure to provide needed medical care to the children, (2)
physical neglect and abuse of the children by respondent and
her fiance, (3) frequent refusal to allow appellant contact
with the children, and (4) inadequate religious training.
On March 7, 1985, after the submission of briefs and
argument, the District Court determined that appellant was
seeking termination of respondent's custodial rights. The
order stated that appellant must establish serious
endangerment to the children before the District Court would
have jurisdiction to modify custody.
The District Court held trial on the question of
whether serious endangerment to the children existed in May
1985. The resulting decision, issued on June 19, 1985,
denied appellant's petition for modification because he did
not establish that the children's present environment
seriously endangered their physical, mental, moral or
emotional health.
This Court addresses two issues on appeal:
(1) Whether the standard to be applied by the District
Court on a petition to terminate the custodial rights of a
parent under a joint custody decree is the:
a) best interest of the child test; or
b) serious endangerment of the child test.
(2) Whether substantial evidence supports the District
Court's findings of fact, conclusions of law, and judgment.
In holding that the serious endangerment standard
applied in this case, the District Court found. appellant's
request for permanent custody with limited visitation rights
for respondent to be a request to terminate joint custody and
make him sole custodian. Appellant argues that he is only
seeking a modification of physical custody and that In re
Marriage of Paradis (Mont. 1984), 689 P.2d 1263, 41 St.Rep.
2041, controls. In Paradis, this Court examined the
application of S 40-4-219 (1) (b), MCA, where modification of a
joint custody decree had been requested. The father asked
that he have physical custody during the school year rather
than the mother because she moved to Hawaii and the child was
integrated into his home. We held that the integration
standard set out in 40-4-219(1)(b), MCA, did not apply to a
dispute over the arrangement of physical custody and that it
applied in the modification of joint custody "only where one
joint custodian seeks to terminate the other's right to legal
as well as physical custody." (Emphasis in original. )
Paradis, 689 P.2d at 1265, 41 St.Rep. at 2043. Here, the
appellant's request is different than that made in Paradis.
This appellant requested "permanent custody" of the children
with "limited rights of visitation" to respondent. This is
more than a request for a different physical custody
arrangement like the request in Paradis and does not concern
the integration standard. Asking that respondent be allowed
only limited visitation is equivalent to asking for sole
custody. Therefore, contrary to appellant's assertion,
Paradis, 689 P.2d 1263, 41 St.Rep. 2041, is not controlling
authority for the case at bar.
In re the Marriage of Bergner and Owens, Opinion No.
85-595, decided this same day, is distinguishable from this
case, also. It concerns S 40-4-219 (1) (b), MCA, on the
integration of the child into the home as a basis for
termination of joint custody rather than subsection (c) on
serious endangerment.
After finding appellant's request to be one to
terminate joint custody, the District Court considered
S 40-4-224(3), MCA (1983), which provides that "any order for
joint custody may be modified pursuant to S 40-4-219 to
terminate joint custody. " Section 40-4-219, MCA (1983), sets
out the serious endangerment standard as follows:
(1) The court may 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 in 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:
(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 ...
Subsection (c) is a jurisdictional prerequisite to
modification of a custody decree. In re Custody of Dallenger
(1977), 173 Mont. 530, 534, 568 P.2d 169, 172. The rationale
for placing this heavy burden on the moving party is to
preserve stability and continuity of custody for children.
Dallenger, 173 Mont. at 533, 568 P.2d at 171. This policy
does not change merely because the moving party uses a
different label in his prayer for relief. The express
purpose of the joint custody provisions are to assure a child
frequent and continuing contact with each parent and to allow
each parent to share the rights and responsibilities of
raising the child. When one parent seeks to become permanent
custodian and to relegate the other parent to limited
visitation, the proposed arrangement is no longer joint
custody. That parent should carry a heavy burden of proof
before the court imposes such a change on a child. We hold
that the District Court correctly applied the serious
endangerment standard in the case at bar.
The second issue concerns whether substantial evidence
supported the District Court's decision to deny appellant's
request for a change in custody. This Court will not disturb
the District Court's findings in a custody dispute absent a
clear abuse of discretion. This Court considers only whether
substantial credible evidence supports the findings.
Marriage of Perry (Mont. 1 9 8 5 ) , 704 P.2d 41, 41 St.Rep. 2 2 6 9 .
Appellant disputes nearly all the findings pertinent to
the District Court's decision. Our review of the record and
findings shows the decision and all the findings below had
ample support in the record. Nonparty witnesses such as the
children's school teacher, the social worker who did a home
study on respondent and the school nurse uniformly held the
opinion that respondent provided a good environment for the
children and that the children were well adjusted, healthy,
outgoing and well cared for. Appellant offered no support
for his contentions that the children had been exposed to
violence, dishonest conduct or had not received adequate
medical care. We hold that substantial credible evidence
supported the District Court's decision to not modify
custody.
The judgment of the District Court is affirmed.
Justice /
We concur: - -7
.* . ./ ,
/ ; 8 ~ [ ~ ~
/' pief Justice
-v