No. 92-391
IN THE SUPRENE COURT OF THE STATE OF MONTANA
IN RE THE MARRIAGE OF
MICHAEL LEONARD McCLAIN,
Petitioner and Appellant,
and
PAMELA LYNN McCLAIN,
Respondent and Respondent.
APPEAL FROM: ~istrictCourt; of the Fourth Judicial ~istrict,
In and for the County of Missoula,
The Honorable Jack L. Green, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John R. Velk; The Law office of John Rayburn Velk,
Missoula, Montana
For Respondent:
Douglas G, Skjelset, Attorney at Law, Missoula,
Montana
submitted an Briefs: January 21, 1993
Decided: March 26, 1993
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
The District Court for the Fourth Judicial District, Missoula
County, denied Michael Leonard McClainVsmotion to modify custody
of his children. We affirm.
The issue is whether the District Court erred in failing to
modify child custody so as to place sole custody of the older
daughter with Michael Leonard McClain, the father, and to place
primary physical custody of the younger daughter with him.
The marriage of the parties was dissolved in February 1990.
Under the terms of their custody and property settlement agreement,
they shared joint custody of their two daughters, then ages nine
and seven, with the mother as the primary residential custodian.
In July 1990, as a result of an investigation concerning
charges of abuse and neglect, the Department of Family Services
(DFS) removed the children from the mother's custody. They were
placed with their father. In March 1991, after the mother had
complied with certain conditions it had imposed, DFS ordered that
custody of the children be returned to the mother.
The father then filed a formal motion to terminate joint
custody of the parties' older daughter and award him sole custody.
Additionally, he proposed that he be granted primary physical
custody of the younger daughter. After a hearing lasting several
days and at which numerous witnesses testified for each party, the
District Court denied the father's motion for modification of
custody. It ordered that custody should remain with the mother,
but required that DFS be more actively involved in supervision and
care of the children and submit written reports to the court every
six months. The father appeals.
Did the District Court err in denying the father's motion to
modify child custody?
Section 40-4-219, MCA, provides:
(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:
(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;
(e) the custodian willfully and consistently:
(i) refuses to allow the child to have any contact
with the noncustodial parent; or
(ii) attempts to frustrate or deny the noncustodial
parent's exercise of visitation rights[.]
The father contends on appeal that, just prior to the time of
his motion, the girls had been integrated into his family with the
mother's consent as described under S 40-4-219(1) (b), MCA. This
contention refers to the time the girls were in his custody during
the DFS proceedings. He also contends that the evidence at trial
demonstrated serious endangerment of the older daughter, who is
physically disabled, justifying a change in her custody pursuant to
5 40-4-229 ,
(1)( c ) MCA. In addition, he argues that a change of
custody is justified because of the mother's attempts to frustrate
or deny his exercise of visitation rights as recognized in 40-4-
219 (1)(e)(ii), MCA. Finally, he contends that the evidence
demonstrated a change of circumstances that would justify
modification of the t a m s of physical custody, within the joint
custody arrangement, to serve the best interests of both children.
The mother does not dispute that the record contains serious
allegations about her past care of the girls, especially of the
older daughter. However, the record also contains extensive
evidence supporting the quality of the mother's care of both girls
at the time of trial.
The record documents the mother's compliance with conditions
required by DFS before that agency returned custody of the girls to
her in March of 1991. A woman who, at the time of trial, worked in
the mother's home helping to care for the older daughter, testified
that she had never seen any abuse in the mother's home and that she
would promptly report any inappropriate or abusive conduct. The
DFS social worker assigned to the case at the time of trial
testified that her agency would have continuing involvement with
the mothergshome. Based on her knowledge of the girls and of both
parents, she recommended that the mother remain as the primary
custodial parent. The family physician for the girls and their
mother testified that he believed, with "no question in my mind,"
that the girls would be better off to remain with their mother than
to have their custody transferred to their father. The District
Court found that "it would be in the best interest of the minor
children to have [the mother] be given primary residential custody
of [the children] with reasonable rights of visitation to [the
father] .
"
It is for the trier of fact, not this Court, to resolve
conflicts in the evidence. In re Custody of Holm (1985), 215 Mont.
413, 418, 698 P.2d 414, 417. When reviewing findings regarding
modification of custody, this Court will not reverse the findings
unless they are clearly erroneous. In re Marriage of Arbuckle
(1990), 243 Mont. 10, 13, 792 P.2d 1123, 1124. A finding is
clearly erroneous only if it is not supported by substantial
evidence, the trial court has misapprehended the effect of the
evidence, or a review of the record leaves this Court with the
definite and firm conviction that a mistake has been committed.
Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323,
820 P.2d 1285, 1287.
Substantial credible evidence supports the finding of the
District Court that it would be in the best interest of the minor
children for their mother to remain their primary residential
custodian. We conclude that the District Court did not
misapprehend the effect of the evidence and we are not left with
the conviction that a mistake has been committed. The father has
failed to establish that "the modification is necessary to serve
the best interest of the child[renlV* required by 5 40-4-219(1),
as
MCA. Because the "best interestH test must be met for any
modification of child custody under 9 40-4-219, MCA, and has not
been met here, we need not consider whether additional statutory
requirements for modification of custody were met in this case.
Af finned.
We concur: A