No. 87-336
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
IN RE THE MARRIAGE OF
ANDREW DEVON STEPHENSON,
Petitioner and Respondent,
and
SANDRA MOREY STEPHENSON,
Respondent and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Smith, Baillie & Walsh; Robert J. Vermillion, Great
Falls, Montana
For Respondent:
Michael Smartt, Great Falls, Montana
Submitted on Briefs: Nov. 24, 1987
Decided: February 29, 1988
Filed: EEB 2 9 1988
Clerk
Mr. Zustice R. C. McDonough delivered the Opinion of the
Court.
The parties' marriage was dissolved by decree of
dissolution pursuant to a stipulation in the Court of the
Eighth Judicial District, in and for the County of Cascade,
on June 19, 1986. At the time of these proceedings the
husband, Andrew, was represented by Michael S. Smartt, and
the wife, Sandra, acted pro se.
The dissolution decree incorporated by reference a
separation agreement entered into by the parties. The
agreement provided for joint custody of the parties two
children, Devon and Tyler, with Sandra as the domiciliary
parent. Andrew received liberal visitation rights.
Currently, Devon is four years old and Tyler is two. The
issue on appeal concerns the District Court's modification of
the original decree.
On January 8, 1987, Andrew petitioned to modify the
joint custody. He alleged that modification of the decree
would serve the children's best interest. After hearing the
matter February 2, 1987, the District Court found that the
children's present environment seriously endangered their
health, and that their best interest would be served by
modifying the decree to designate Andrew as the domiciliary
parent.
Sandra petitioned for rehearing, and the District Court
granted her petition but told the parties that the issues
would be confined to new evidence and to facts showing the
environment provided by Andrew's domicile. However, the
transcript shows that evidence of the behavior of both
parties prior to the order modifying the original decree was
admitted at the rehearing. After the rehearing the lower
court found that Sandra failed to show that the children's
present domicile at Andrew's home seriously endangered their
health. The lower court also found that their best interest
would be served by continuing Andrew as the domiciliary
parent.
The only issue presented by Sandra on appeal is whether
substantial evidence supports the lower court's orders. We
reverse the first order and reinstate the custody arrangement
from the first decree. Our reversal invalidates the second
order, and we remand for proceedings detailed at the end of
this opinion.
Andrew's petition for modification alleged that a
change making him the domiciliary parent would serve the
children's best interests because: (1) Sandra had failed to
maintain empl-oyment, (2) Sandra had assumed a harmful
lifestyle resulting in her inability to properly feed and
clothe the children, and (3) Sandra boasted of her own use of
cocaine.
The petition specified events occurring on the 7th,
14th, 15th, and 21st of November, 1986. On the 7th,
according to Andrew, Sandra left Devon even though he had a
fever. In the early morning hours of the 14th, and the 15th,
according to Andrew who stayed at Sandra's apartment on these
dates, drunken men awoke the household and used the residence
to consume illegal drugs. On the 21st, Andrew alleged that
Sandra travelled to Bozeman with a stripper and a bouncer for
the purpose of either participating in or viewing an exotic
dance show.
On the basis of Andrew's petition and affidavit the
District Court granted Andrew's motion for an order to show
cause hearing. The lower court scheduled the hearing for
February 2, 1986, and on January 9, 1986, Sandra received
notice of the petition and the court's order scheduling the
hearing.
Both parties appeared for the hearing. Andrew was once
again represented by Smartt, the attorney who arranged for
the original decree, and Sandra came to the hearing with
attorney Michael R. Tramelli. Tramelli informed the District
Court that Sandra had contacted him on Friday, January 30,
1987, to request his services for the hearing, but that he
had informed Sandra that he would not take the case because
there was not enough time for him to prepare. He also stated
that Sandra had made a diligent effort to obtain an attorney
prior to contacting him on January 30, but that no one would
take the case pro bono. Tramelli then explained that he was
appearing to request a continuance on behalf of Sandra, and
Smartt stated that Andrew had no objection to a continuance.
The District Court, however, denied the continuance because
three witnesses had been subpoenaed and were present to
testify for Andrew, and because, "If she can't get it
[representation] in a week's time, when is she going to get
it?" At that point Tramelli, admittedly unprepared, agreed
to represent Sandra.
Andrew, the first witness, testified that Sandra had.
poor housekeeping skills, used drugs, and partied with
dangerous characters who came to the house late at night.
Andrew also produced photographs of the interior of Sandra's
old apartment which showed piles of dirty laundry.
Two of Sandra's former roommates testified after
Andrew. Both had lived with Sandra for approximately two
months during the spring of 1986. The roommates corroborated
Andrew's testimony concerning Sandra's poor housekeeping
skills, partying lifestj~le, and undesirable friends. They
also believed that Sandra had a hard time holding a iob.
Cindy Testerman, the first of the roommates to testify,
stated that Sandra favored Tyler over Devon, and that she
believed Sandra used illegal drugs but she had not seen
Sandra use them. Ms. Testerman also stated that the few
times she had seen Andrew with the children they interacted
well together.
The other roommate, Jeanne Payseno, added that Sandra
kept a mirror for sniffing cocaine, and that she had seen
Sandra smoke marijuana on a few occasions. Ms. Payseno also
testified that Sandra did not show enough affection for
Devon; that sometimes Sandra would let Tyler cry rather than
picking him up; and that when Sandra worked a night job and a
day job, Ms. Payseno often had to get breakfast for Devon and
Tyler. In regard to Sandra's social life, Ms. Payseno
approved of some of Sandra's friends and disapproved of
others. Ms. Payseno also testified that Sandra's boyfriend
and other men had slept in Sandra's area of the apartment,
and that Sandra's boyfriend helped care for the children.
Andrew's last witness was Teresa Koyna. Ms. Koyna
testified that Sandra could be a good mother, but that Sandra
sometimes failed to properly care for the children's needs.
Ms. Koyna also testified that Sandra wrongly blamed Devon for
bruises on Tyler's back, and that the children came to her
house hungry on one occasion.
Following Ms. Koyna's testimony, the lower court told
the parties that Andrew had shown that Sandra failed to
properly care for the children. The lower court then asked
Andrew's attorney how Andrew would care for the children.
Andrew took the stand again and stated that children could
not reside at his current domicile, but that if he were the
domiciliary custodian he would obtain appropriate housing.
Following Andrew's concluding testimony, Sandra
testified that Andrew and the witnesses called by Andrew
spoke half truths in regard to her child rearing abilities;
her lifestyle; her housekeeping skills; and her employment
capabilities. As to her work skills she stated that she was
currently employable as a medical secretary, and that she
would be back at work when the hospital that had formerly
employed her finished a construction project. She also
stated that she had changed jobs because of illness and for
career advancement rather than because she could not hold a
job.
In regard to her housekeeping skills, she stated that
her roommates contributed to the problems in the apartments
where she had lived, and that she currently lived alone with
her children in a clean environment. She also testified that
her old roommates exaggerated the amount of time she spent
away from the children; that only one person stayed over
night with her during the period of time she lived with Ms.
Payseno and Ms. Testerman; and that she no longer used drugs.
Sandra also testified that she loved the children
equally but gave more affection to Tyler because Tyler needed
it and Devon needed other things; the children received
discipline equally; and that she had never physically abused
the children. Sandra also admitted that once or twice she
had been too drunk to drive the children from the
baby-sitter's so she left them there.
On February 19, 1987, approximately two weeks after the
hearing, the lower court ordered that Andrew assume the duty
of the domiciliary parent. Sandra's petition for rehearing
followed on February 25, 1987. The petition was amended at
the request of the lower court to a petition for
remodification, and the lower court heard the issue on May
28, 1987.
Testimony by Sandra and Andrew at the second hearing
focused on Andrew's past and present living situation, and
revealed that: Andrew had physically abused Sandra in Devon's
presence; Andrew had a drinking problem which once lead to
Andrew passing out and leaving one of the children outside
during the evening hours; Andrew took the children a few days
after the lower court modified custody even though he did not
have a home for the children; in addition to having no home
for the children, Andrew did not have beds for the children,
clothes for the children, or pots and pans to cook for the
children; Sandra would not give Andrew the children's beds
because she wanted them for her own visitation; while Andrew
saved money to buy the necessities for providing a proper
domicile for the children, the children and Andrew stayed
with Teresa Koyna, one of Andrew's witnesses from the
previous hearing, and the children slept in Andrew's bed;
Teresa Koyna asked Andrew and the children to leave, and
after leaving the Koyna residence the children spent most of
their nights with Sandra; Sandra believed that Andrew was
drunk recently when he came to get the children.
Andrew responded to Sandra's allegations with his own
testimony and the testimony of an employee in the day care
center where Andrew placed the children while working.
Andrew did not deny physically abusing Sandra, nor did he
deny leaving one of the children out in the cold when he was
intoxicated. However, Andrew stated that he did not have a
drinking problem. Andrew also stated and he was not drunk
when he picked up the children recently, although he admitted
to having a few beers at lunch that day. As to having a home
for the children, Andrew stated he was unprepared to care for
the children at the time of modification because Sandra
received all the necessary items for child rearing after the
divorce. He also stated that he had acquired a suitable
domicile and household items since the time of modification.
The day care worker testified that the children were
doing better in day care with Andrew as the domiciliary
parent than they had when Sandra was the domiciliary parent.
The day care worker believed the improvement was due to the
fact that the children had become more familiar with the
center's routine because Andrew brought them to day care on a
more regular basis than Sandra.
Testimony at the second hearing also concerned the
ability of the parents to take care of the children's health
and clothing needs. Each accused the other of being
neglectful in this area. Following the hearing the lower
court denied Sandra's petition on the grounds that Sandra had
failed to show a change of circumstances which would justify
modifying the already modified decree.
ISSUE
Did the District Court rely on substantial credible
evidence in modifying the decree in its first order, and by
refusing to modify the decree in its second order?
The lower court found that the present environment
provided by Sandra's domicile seriously endangered the
children's health, and that the harm likely to be caused by a
change in the environment was outweighed by its advantages to
the children. Sandra argues that this finding is not
supported by substantial evidence. Andrew responds that
substantial evidence supports the endangerment finding, and
that the lower court's best interest finding is sufficient to
support the modification made in the first order even if the
endangerment finding was not supported by substantial
evidence.
The language in the endangerment finding in the first
order mirrors the language in S 40-4-219 (1)(c), MCA. The
lower court apparently applied this statute to determine
whether or not modification was proper.
Section -
40-4-219 (1)(a) (f), MCA , lists the
jurisdictional prerequisites for modification of a sole
custody decree. Absent a proper finding of the presence of
one of the circumstances listed in S 40-4-219(1) (a)-(f), MCA,
a district court may not modify a prior award of sole
custody.
In regard to joint custody, S 40-4-224(3), MCA, states
that a joint custody decree may be terminated pursuant to §
40-4-219, MCA. However, a request for simply a different
physical custody arrangement calls for application of S
40-4-224(2), which states in part that
'joint custody' means an order awarding custody of
the minor child to both parents and providing that
the physical custody and residency of the child
shall be allotted between the parents in such a way
as to assure the child frequent and continuing
contact with both parents. The allotment of time
between parties shall be as equal as possible;
however. each case shall be determined according to
its own practicalities with the best interest of
the child as the primary consideration. (Emphasis
added. )
In determining whether or not modification serves the child's
best interest, district courts should proceed by making
findings on the factors in $ 40-4-212, MCA. See In re the
Marriage of Bergner and Owens (Mont. 1986), 722 P.2d 1141,
1144, 43 St.Rep. 1285, 1289. And a district court facing a
proposed change which may be properly characterized as a
modification rather than termination of joint custody may
proceed directly to a best interest determination without
finding the presence of one of the jurisdictional
prerequisites. See In re the Marriage of Paradis (Mont.
1984), 689 P.2d 1263, 1265, 41 St.Rep. 2041, 2043.
However, where modification equates to termination of
the joint custody, the lower court should proceed according
to the requirements of S 40-4-219, MCA. See In re the
Marriage of Gahm and Henson (Mont. 1986), 722 P.2d 1138,
1140, 43 St.Rep. 1281, 1283. In Gahm, the petitioner
requested an award of permanent custody with limited
visitation for the respondent. The District Court concluded
that the requested modification amounted to termination of
the joint custody and found that the petitioner had failed to
satisfy the serious endangerment jurisdictional prerequisite
for modifying a custody decree as required by the facts of
the case, and by S 40-4-219 (1)(c), MCA. We affirmed. Gahm,
722 P.2d at 1140.
Andrew argues that Paradis applies and that under
Paradis the District Court's endangerment finding is not
necessary to support the first modification. Sandra argues
that the Gahm rationale applies and thus the endangerment
finding was a jurisdictional prerequisite.
We agree with Sandra's assertion that the lower court's
modification amounted to termination of the parties' joint
custody arrangement. The modified decree awarded physical
custody to Andrew and granted Sandra reasonable visitation
conditioned on reasonable prior notice and abstention from
alcohol. This was a significant change for the children.
The original decree granted Sandra physical custody and
Andrew received liberal visitation rights. Under the old
custody arrangement Andrew had neither integrated the
children into his home, nor had he prepared to assume the
duties of the children's physical custodian once modification
occurred. Under these circumstances, the lower court's
modification terminates the joint custody established by the
first decree because the change amounts to "more than a
request for a different physical custody arrangement like the
request in Paradis and does not concern the integration
standard." Gahm, 722 P.2d at 1140. And where "one parent
seeks to become permanent custodian and to relegate the other
parent to limited visitation, the proposed arrangement is no
longer joint custody." Gahm, 722 P.2d at 1141. Thus we hold
that § 40-4-219, MCA, applies, and we reverse for lack of a
proper endangerment finding.
The part of § 40-4-219, MCA, relevant to resolution of
this appeal reads:
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:
(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.
The lower court's finding from the first hearing in
regard to endangerment of the children is based on the
testimony documenting Sandra's poor housekeeping skills.
These findings are supported by substantial evidence, but
they concern the environment Sandra provided long prior to
the hearing date. The lower court also found Sandra's
lifestyle led to neglect of the children, and their moral
decline. Several findings in this regard are not supported
by substantial evidence.
The lower court made no findings concerning the
adequacy of Sandra's domicile at the time of the hearing, or
the potential for harm to the children posed by Sandra's
current domicile and lifestyle. Andrew presented no evidence
showing that the domicile provided by Sandra at the time of
the first hearing endangered the children. The only evidence
in this regard is Sandra's testimony that her home was clean
and that the children were well cared for.
The lower court also failed to adequately weigh
Sandra's deficiencies against the harm likely to be caused by
granting physical custody to a parent who was unprepared to
assume domiciliary duties. Under the facts of this case, the
language in S 40-4-219, MCA, mandates findings relevant to
these issues.
We will not disturb trial court findings which are
based on substantial though conflicting evidence. In re the
Marriage of Sarsfield (1983), 206 Mont. 397, 411, 671 P.2d
595, 603. However, the party requesting modification under 5
40-4-219, MCA, bears a heavy burden because the statute's
policy is to "preserve stability and continuity of custody
for the children." Gahm, 722 P.2d at 1140.
In this case, the failure to address the children's
present environment, and failure to adequately consider the
harmful effects of a change in this environment, constitutes
error. We reverse, reinstate the original decree, and remand
for the lower court to consider the issue presented by
Andrew's petition for a second time.
However, in further proceedings the lower court should
not apply 40-4-219, MCA, if the children have been
integrated into Andrew's home since the first modification.
If such is the case, the lower court should proceed to a
determination of a joint custody arrangement reflecting the
children's best interest keeping in mind the policies set out
in § 40-4-224(2), MCA, and the factors in S 40-4-212, MCA.
In regard to the parties' stipulation concerning visitation,
we request that the lower court reconsider such stipulation
on remand when it once again has jurisdiction.
We Concur
,-
Chief Justice