1\70. 88-530
IN THE SIJPREME COURT OF THE STATE OF MOKTANA
1989
IN RE THE MARRIAGE OF
FPAMCISCO IVAN MORAZAN,
Petitioner and Respondent,
and
VICKI LYNN KENDALTJ ,
Respondent and Appellant.
APPEAL FROM: District Court of the Eighth Judicial. District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.
COUNSEL CF RECORD:
For Appellant:
Cannon & Sheehy; Edmund F. Sheehy, Jr., Helena,
Montana
For Respondent:
Miller & Cook; Joan E. Cook, Great Falls, Montana
Submitted on Briefs: March 31, 1989
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Decided: 5 1 1989
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Filed: ,,
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Clerk
Mr. Justice 1. C. Gulbrandson deli~reredl the Opinion of the
Court.
Appellant Vicki Lynn Kendall (Kendall) appeals the July
13, 1988, order of the Eighth Judicial District Court,
Cascade County, modifying a divorce decree entered on January
28, 1984. The modification order removed Kendall's children,
M.M. and F.M., from her sole custody and granted joint
custody of the children to Kendall and the children's natural
father Francisco Ivan Morazan (Morazan), the respondent, with
primary physical custody in Morazan. We affirm the
modification order of the District Court.
Kendall and Morazan were married in October 1980. At
that time Kendall had three children, two sons and one
daughter, R. B. These children lived with Kendall and
Morazan. Two children were born during the marriage, M.M. in
1981 and F.M. in 1983. In 1983, Kendall made allegations of
sexual abuse of R.B. against R.B. 's natural father. These
allegations arose in the midst of a custody battle between
Kendall and E.B.'s natural father. Investigations by child
welfare workers disclosed that R.R. may have been sexually
abused by both her natural father and Morazan. The District
Court modified custody of R.B., shifting custody from Kendall
to R.B.'s natural father. Kendall was permitted reasonable
visitation privileges, provided R.B. had no contact with
Morazan.
Kendall filed for and was granted a dissolution of her
marriage to Morazan. Morazan did not contest the dissolution
proceedings, the award of sole custody of their two children
to Kendall, or the child support payments of $125 per month
per child. The order of dissolutjon granted Mora7an
reasonable vi si tation right^ .
Subsequent to the dissolution in January 1984, Kendall
began living with one Doug Owens. She later married Owens
and moved with him to Lolo, Montana. Morazan exercised his
visitation rights and paid the required child support.
In September of 1986, after Owens physically abused
Kendall, she contactefi Porazan requesting he move her and her
children back to Great Falls. Morazan did so, at his own
expense, relocating Rendall and the children across the
street from his residence. Approximately one month later,
Owens moved back in with Xendall-, staying approximately six
months. Kendall then divorced Owens. She had begun seeinq
another man, Dale Reeves. After divorcing Owens, Kendal?
moved with Reeves to Canyon Ferry, Pontana, and then to East
Helena, Montana.
In February 1988, Kendall had problems with the
principal at her daughter's school and with Dale Reeves and
called Morazan to help her and her children move back to
Great Falls. She felt she needed a "cooling-off period" in
her relationship with F-eeves. Morazan moved them back to
Great Falls to his house where they stayed for a month before
Fendall and the children moved to another locatjon in Great
Falls.
Morazan testified at the modi-fication hearing that
Kendall had confided in him that Reeves' thirteen-year-old
son had been physically abusing her. She also told Morazan
that her two older boys had been having inappropriate sexual
contact with M.M. and that Reeves' son told her sons that he
had this type of contact with his sister.
Morazan filed a combination affidavit and petition for
modification of custody on May 17, 1988. He also obtained a
temporary restraining order to prevent Kendall from removing
their chjl-dren from the jurisdiction of the court..
On May 23, 1988, Kendall removed M.M. from the
kindergarten she was attending in Great Falls and moved both
children to East Helena where they moved back in with Reeves.
At the time of the June 7, 1988, hearinq, which Kendall
attended without counsel, she was living with Reeves and five
children in a two bedroom apartment. The District Court
found cause to hold a hearing regarding Morazan's petition
for modification of custody and set a hearing date for June
16, 1988.
Between the date of the June 7, 1.988, hearing and the
June 16, 1988, hearing, M.M. reportedly confided to Kendall
that Morazan had sexually abused her. Kendall reported this
to Lewis and Clark County authoriti-es,who determined not to
file any charges before the modification hearing. At the
hearing, both parties testified and presented additional
witnesses. The judge also interviewed M.M. in his chambers
at the end of the hearing.
The court issued its findings of fact, conclusions of
law, and order on July 13, 1988. The court concluded that
the children's existing environment constituted serious
endangerment to their mental, moral, and emotional health;
that the harm likely to result from a change in their
environment was outweighed by the advantages of the change;
and that modification of the custody order contained in the
divorce decree was in the best interests of the children.
The court then modified the custody order, granting joint
custody, placing primary physical custody with Morazan, and
ordering no child support. It is from this order of the
court that Kendall presents the following issues on appeal:
1. Did the District Court err in issuing the temporary
restraining order and holding the show cause hearing on the
petition to modify custody?
2. Does substantial. credible evidence exist to support
the District Court's order modifying custody?
The first issue Kendall raises is that the District
Court erred in issuing a temporary restraining order
restricting her from removing the children from the
jurisdiction of the court. Kendall contends there was no
reason for the court to believe she intended to remove the
children from the state.
The court issued the temporary restraining ord.er based
upon the duly sworn affidavit of Morazan. This affidavit
stated that the temporary restraining order was necessary to
prevent Kendall from removing the children from the
jurisdiction of the court. The affidavit further alleged
that Kendall had threatened to remove the children from the
court's jurisdiction should Morazan ever seek modification of
the custody order. We find that such a sworn statement was
sufficient grounds for issuing a temporary restraining order,
in light of the circumstances surrounding such proceedinqs
and t.he minimal inconvenience such an order placed. upon
Kendall. See S 40-4-220(1), MCA.
Kendall also contends the petition for modification and
supporting affidavit failed to provide adequate cause for
hearing the motion under S 40-4-220 ! I ) , MCA. Kendall claims
the reasons presented in Morazan's affidavit were that
Kendall had changed her residence on numerous occasions and
was on welfare. While these grounds alone would. be
insufficient to establish adequate cause for a hearing, they
were not the only cause contained in the affidavit. The
affidavit also stated that Kendall had previously exposed. the
children to an abusive relationship while married to Owens, a
relationship to which she had returned. Further, the
affidavit stated that Kendall was currently involved in
another relationship which exposed the children to a sexually
abusive situation. We conclude these statements constituted
adequate cause to order a hearing on the custody status of
M.M. and F.M.
Kendall's second issue is whether the evidence
introduced at the hearing was sufficient to warrant a
modification of the custody arrangement. Initially, we note
that the primary responsibility for child custody decisions
lies with the District Court. We will presume the District
Court's decision is correct and not disturb it unless "there
is a mistake of law or a finding of fact not supported by
credible evidence." In re Marriage of Robbins (1985), 319
Mont. 130, 134-35, 711 P.3d 1347, 1350, citing Solie v. Solie
(1977), 172 Mont. 133, 137, 561 P.2d 443, 446; see also Rule
52(a), M.R.Civ.P. (which provides that a finding must be
clearly erroneous before it may be overturned).
A district court must make certain determinations
before modifying a prior child custody decision. Section
40-4-219, MCA. First, the court must find, based upon facts
arising since the prior decree or unknown to the court at the
entry of the prior decree, that a change has occurred in the
circumstances of the child or custodial parent which
necessitates a modification to serve the best interests of
the child. Section 40-4-219 (1), MCA. Further, the court
must find that the child's present environment seriously
endangers the child's physical, mental, moral, or emotional
health and that the harm likely to be caused by a change in
environment is outweighed by the advantages to the child from
such a change. Section 40-4-219 (1)(c), MCA.
The record shows that the court had adequate reason to
find that circumstances had changed since the dissolution
decree issued. Kendall's lifestyle indicated an inability to
maintain a stable environment for her children. At the time
of the modification hearinq, she was livincj with another
adult and five children in a two bedroom apartment. Further,
Kendall has shown little concern for M.M.'s education. Her
removal of M.M. from kindergarten in Great Falls two weeks
before the end of the term shows a lack of regard for the
necessity and value of her child's education. These facts,
as well as the allegations that M.M.'s stepbrothers sexually
abused her, indicate changed circumstances.
These changed circumstances are sufficient to show that
the physical, mental, moral, and emotional health of M.M. and
F.M. would be seriously endangerd if they remained with
Kendall. See $ 40-4-219(1)(c), MCA. We therefore agree with
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the District Court as to the dangers posed by the environment
in which Kendall has placed her children. The advantages to
the children under Morazan's custody, on the other hand,
clearly outweigh any harm which would accompany a change in
their environment. Morazan currently lives alone in a two
bedroom house with a backyard in which the children may play.
He has a stable job with the U.S. Post Office, and he is
attending the College of Great Falls in hopes of bettering
his life. He has exhibited concern For the children's
educational opportunities and the need for testing M.M. for
possible learning disabilities. His work and schooling will
require baby-sitters to care for his children, but he has
made arrangements to secure qualified people to do so.
This Court has some reservations regarding Morazan's
fitness as the custodial parent because of allegations that
he sexually abused M.M. Proof of the validity of these
allegations would clearly result in Morazan being unsuitable
to take unsupervised custody of the children. Morazan,
however, has denied these a1 legations. The ni strict Court,
questioned because of the timing of the charges as well as
Vorazan's denial, whether the charges were valid. The court
noted that Kendall has been involved in two cases concerning
the c u s t o d y of her children, and i n both she has alleged
sexual. abuse on the part of the natural father. The
District Court was in the best position to question and
observe Kendall and M . , and we therefore yield. to its
e v a l u a t i o n of t h e v a l i d i t y o f t h e s e x u a l a b u s e c h a r g e s .
The modification order of the District Court is
affirmed.
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W e concur: k , ~ v
r . Justice 7ohn C. Sheehy did not. participate in this
opinion.