No. 85-595
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
IN RE THE MARRIAGE OF
JOHN C. BERGNER, 111,
Petitioner and Respondent,
and
Respondent and Appellant.
APPEAL FROM: District court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Harrison, Loendorf & Poston; John P. Poston, Helena,
Montana
For Respondent :
Baiz & Olson; Kenneth Olson, Great Falls, Montana
Submitted on Briefs: May 30, 1986
Decided: July 18, 1986
Filed: Ju1..1 fi 1986
Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Adela M. (Bergner) Owens appeals the order of the Eighth
Judicial District Court which modifies a provision of a
divorce decree awarding her and her ex-husband, John C.
Bergner , 111, joint custody of their two daughters. We
affirm the modification.
Adela and John Bergner were married on August 11, 1972.
Two daughters were born to the couple, Eva on July 26, 1973,
and Katheryne Darcy (K.D.) on March 27, 1976. The couple
separated in February of 1980. The decree of dissolution was
entered on March 12, 1981, in the Superior Court of
California, in and for the County of Los Angeles. The decree
awarded the parties joint legal custody of the children.
Adela was named as the physical custodian and John was
granted reasonable visitation.
The girls spent the summer of 1981 with their father.
Thereafter, John, a member of the United States Air Force,
was ordered to serve in Korea. One month prior to John's
return to California, he received a letter from Adela asking
if he would take temporary physical custody of the girls upon
his return.
They [the children] are really looking forward to
seeing you again. Chris [Adela' s present husband]
has two part-time jobs. Things are tight. If by
the end of this summer things are not any better we
are going to ask you to keep them for a year and a
half. That would be this summer, the school year
of '83 - '84 and next summer. We already let the
girls know and they are excited about it. We will
know more about the situation by the end of this
summer.
John returned to California in May of 1983. The girls
immediately came to live with him. John married his present
wife, Cindy, that same month. Cindy also has a daughter.
The two adults and three children currently live together as
a family at Malmstrom Air Force Base in Montana.
It is undisputed that Eva and K.D. are integrated into
their father's family. They attend church and church
functions together. They engage in numerous family-oriented
outdoor and recreational activities. John and Cindy are very
involved in school activities and take an active role in
ensuring that each girl's special educational needs are met.
Adela testified that the integration was something she had
anticipated and for which she had hoped when she suggested
that John take the girls for an extended period of time.
Near the end of her allotted time with her father, Eva
asked if she might continue to live with John the next school
year. Adela initially consented to the request. However,
one week later she changed her mind. John thereafter
petitioned for modification of the custody arrangement,
requesting that he be designated physical custodian. He
subsequently amended his petition to request that he be
awarded custody subject to the reasonable visitation rights
of Adela. A hearing was held July 31, 1984, and a temporary
order granting John custody was thereafter issued. Following
a second hearing on April 12, 1985, the trial judge issued
his final order granting John's petition for modification of
custody and awarding John custody of his two daughters
subject to Adela's right of reasonable visitation.
Adela appeals, raising the following issues:
1. Whether, pursuant to S 40-4-219, MCA, the District
Court had jurisdiction to modify the joint custody provision
of the divorce decree?
2. Whether, in light of the evidence and the statutory
prerequisites concerning the best interests of the children,
the District Court erred in modifying the original joint
custody provision?
3. Whether a parent entitled to joint custody of a
child has the right to change his residence subject to the
best interest of the child?
John and Adela were originally awarded joint custody of
their children. Joint custody assures minor children
frequent and continuing contact with their mother and their
father. It further encourages the parents to share in the
rewards, the privileges and the responsibilities of rearing
their children. In re the Marriage of Paradis (Mont. 1984),
689 P.2d 1263, 1264, 41 St.Rep. 2041, 2043. Section
40-4-222, MCA. Although joint custody is, at least
theoretically, the ideal situation, it does not always
satisfy the best interest of every child. Our Legislature
thus provided in S 40-4-224(3), MCA, for the termination of
joint custody provided the terms of 5 40-4-219, MCA, are met.
However, 5 40-4-219, MCA, may only be relied on to terminate
a joint-custody arrangement. It may not be used to modify
relationships within the joint-custody arrangement. See
Paradis, 689 P.2d at 1264-1265, 41 St.Rep. at 2043.
Section 40-4-219, MCA, states in pertinent part:
40-4-219. Modification. (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:
(a) the custodian agrees to the modification;
(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
(d) the child is 14 years of age or older and
desires the modification.
Subsections (1)(a) through (1) (d) are jurisdictional
prerequisites to modification. In re the Custody of
Dallenger (1977), 173 Mont. 530, 534, 568 P.2d 169, 172.
Once jurisdiction to modify is established using the
integration criterion, the trial judge must determine whether
a change has occurred in the children's and/or the
custodian's circumstances and, if it has, whether that change
has resulted in the children's best interests being served by
a modification of custody. In re the Marriage of Hardy and
Hans (Mont. 1984), 685 P.2d 372, 374, -41 St.Rep. 1566, 1568.
Where joint custody is at issue, the children's best
interests must be served by the termination of the joint
custody arrangement.
It is undisputed in this instance that Eva and K.D. have
been integrated into John's home with Adela's permission and
that this integration is the only jurisdictional prerequisite
for modification which has been met. Unlike in In re the
Marriage of Gahn and Henson, Slip Opinion #85-376, decided
this same day, there is no allegation of serious
endangerment to the children in this case.
Obviously, if a joint custody arrangement has been at
all successful, the children have been integrated into the
homes of both their parents. This is the primary goal of
joint custody. Thus, when integration is the sole
jurisdictional prerequisite for termination of joint custody,
the District Court must be exceedingly cautious in
determining whether the circumstances of the children or
their custodian have changed and in determining whether,
because of that change, the best interests of the children
would be served by the termination of joint custody.
Otherwise, the joint-custodian with physical custody of the
children will be reluctant to allow the integration of the
children into the other joint-custodian's home for fear of
having the joint custody arrangement terminated.
Here the trial judge found that Eva and K.D. 's
circumstances had changed and that their best interests would
be served by granting John custody of them. Where the
decision of the trial judge is supported by substantial
evidence, and not an abuse of discretion, it will not be
reversed by this Court. Weber v. Weber (1978), 176 Mont.
144, 147, 576 P.2d 1102, 1104.
The trial judge found that Adela gave John temporary
extended custody of the girls because of her unstable
financial situation. The letter Adela wrote to John supports
this finding. Although it is commendable for a parent to
temporarily forego her children's presence for the sake of a
better life for them in the future, the parent must remain
cognizant of the effect of the change of custody on the
children. After all, the stability of a child's homelife is
vital to his or her well-being. Gilbert v. Gilbert (1975),
166 Mont. 312, 316, 533 P. 2d 1079, 1081.
The change in physical custody caused a weighty change
in Eva's and K.D.'s circumstances. They have lived with John
and Cindy since May of 1983. They consider Cindy's daughter
to be their younger sister. The family participates in
innumerable activities together. The children appear to be
the center of John and Cindy's lives. The children have
become established in the Great Falls school system. They
have numerous friends on which to rely as a support network.
A large part of their life centers around the church attended
by the family.
In contrast, Adela did not see Eva and K.D. for the
entire 15 months they were to be with their father. Letters
and phone calls, while beneficial in their own right, do not
equal the love and attachment developed through day to day
contact. Thus we find substantial evidence to support the
finding of the trial judge that Eva's and K.D. 's
circumstances have changed. The focus of their lives is now
their father and his family, not their mother.
Section 40-4-212, MCA, lists the factors to be
considered in determining the best interest of a child.
40-4-212. Best interest of child. The court shall
determine custody in accordance with the best
interest of the child. The court shall consider
all relevant factors including:
(1) the wishes of the child's parent or parents as
to his custody;
(2) the wishes of the child as to his custodian;
(3) the interaction and interrelationship of the
child with his parent or parents, his siblings, and
any other person who may significantly affect the
child's best interest;
(4) the child's adjustment to his home, school,
and community; and
(5) the mental and physical health of all
individuals involved.
The trial judge considered each of these factors. He
twice interviewed each of the children in chambers. At her
first interview, Eva expressed a preference to live with her
father. K.D. stated only that she wanted to be with Eva.
Neither girl expressed a preference at her second interview.
Each parent wishes to have custody of the children.
Numerous findings of fact center on the interaction and
interrelationship of Eva and K.D. with their parents. Other
findings reflect the testimony of school and church officials
who believe the children to be happy, content and flourishing
in their present environment. Finally, there is no question
but that all concerned are in excellent physical and mental
health. Neither Adela nor John have any qualms about the
other's ability to raise the girls.
This is a difficult case. Adela and John are both
loving, competent parents. The children like and love both
parents. The children would most likely be happy with either
parent following a period of adjustment. However, the trial-
judge, after viewing the parties concerned, interviewing the
children and hearing testimony from numerous individuals,
decided that the children's best interests would be served by
granting John custody. There is substantial evidence to
support his determination.
This Court also recognizes the superior position of
the trial judge in such matters and will not
disturb the trial court's findings unless there is
a mistake of law or a finding of fact not supported
by credible evidence that would amount to a clear
abuse of discretion. (Citations omitted.)
Gilbert, 166 Mont. at 316, 533 P.2d at 1081.
Finally, Adela raises the issue of whether a parent has
the right to change residence subject to the best interest of
the child. The answer is of course an unqualified "yes".
Section 40-6-231, MCA. John was not awarded custody of the
girls because Adela moved to Texas but because the girls'
interests will best be served by allowing them to remain in
the family, school and community they have enjoyed for
several years.
Affirmed.
We Concur:
Chief Justice