NO. 93-170
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
IN RE THE MARRIAGE OF
TERRY LEE GALLAGHER,
Petitioner and Respondent,
and
REBECCA JUNE GALLAGHER,
Respondent and Appellant.
APPEAL FROM: District
Court of the Twelfth Judicial District,
In and for the County of Hill,
The Honorable John Warner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Roxanne Rogers, Montana Legal Services Association,
Havre, Montana
For Respondent:
Patricia Jensen; Rice Law Office, Havre, Montana
Submitted on Briefs: October 5, 1993
Decided: September 12, 1994
Filed:
Clerk
Justice John Conway Harrison delivered the Opinion of the Court.
Rebecca June Davis (formerly Gallagher) appeals from an order
of the Twelfth Judicial District Court, Hill County, modifying the
primary physical custody of her and her former husband's three
children. We affirm.
Terry Lee Gallagher (Terry) and Rebecca June Davis (Rebecca)
were married in January 1982, in Havre, Montana. Their marriage
was dissolved in 1988. The District Court incorporated the
parties' separation agreement into the dissolution decree which
provided for joint custody of the parties' three minor children.
Rebecca was designated as the primary physical custodian during the
school year and Terry was granted custody during the summer months.
Rebecca later married Richard Davis (Richard) and together
they had two children. Rebecca's and Richard's family, which now
consisted of five children and two adults, at times lived in
poverty and depended on public assistance.
In August 1992, Terry learned that Rebecca intended to move
her entire family from Montana to Virginia. Terry filed with the
District Court a petition to modify the primary physical custody of
his three children. He alleged that since his children were
integrated into the Havre school system, he should be awarded
primary physical custody thereby allowing them to continue their
schooling in Havre. Terry further alleged that Rebecca's resources
to provide for the children in Virginia were unknown.
Rebecca responded, asserting in part that it would not be in
the best interests of the children to change their primary physical
2
custodian as they had been integrated into her family unit for over
four years. In September 1992, Rebecca, Richard and the five
children moved to Virginia.
In a November 1992 hearing, the District Court heard
testimony, received evidence and met privately in chambers with
Terry's and Rebecca's three children. After reviewing the record,
the court determined that it would be in the best interests of the
children to modify the parties' joint custody arrangement by making
Terry the primary physical custodian during the school year and
Rebecca the custodian of the children during the summer. In making
its determination, the court found that Rebecca and Richard had
problems in their relationship in addition to financial
difficulties which adversely affected the best interests of the
children.
These difficulties included: Rebecca had sought two
restraining orders against Richard: the children were improperly
clothed: the family faced eviction from its residence in Virginia:
they did not own an automobile: the five children shared one common
bed in the same room as their parents; and Rebecca did not work
outside of the home nor was Richard employed at the time.
The court noted that Terry was a supportive father, and that
he had "adequate housing" for his three children. Further, no
evidence was presented at the hearing to suggest that Terry's home
was unsafe. The court found that the children's environment at
Rebecca's house seriously endangered their physical, mental, moral
and emotional health, and that the danger outweighed any detriment
3
a change of custody might cause. Rebecca appeals.
I
Did the District Court improperly base its decision on
evidence not found in the record?
Rebecca argues that the court improperly took judicial notice
of a disputable fact--that the Davis family's use of a kerosene
heater in their home was unsafe. She states that no evidence was
presented during trial which alluded to the safety of the heater,
and that, in essence, the court became an advocate for Terry by
permitting its personal views to become part of its decision.
Additionally, she asserts that the court improperly impugned her
testimony based on the court's personal views of kerosene heaters
in the home. Conversely, Terry contends that because the court
specifically stated that its decision was not based on the safety
of the kerosene heater, it committed harmless error by questioning
the dangers of operating the heater in the Davis household.
For the convenience of Rebecca, who had to travel from
Virginia to Montana to attend the hearing, the court made oral
findings of fact in court with the parties present. The court did
make statements concerning the safety of using a kerosene heater in
the home: however, the court also stated that it did not base its
decision on those statements. Rather, as discussed below, the
court gave appropriate reasons for modifying the parties' joint
custody arrangement. Therefore, we conclude that the court did not
improperly base its decision on evidence not found in the record.
4
II
Did the District Court use the proper legal standard to modify
the primary physical custody of the children?
The parties generally agree that the requirements relating to
modification of custody contained in 5 40-4-219, MCA, apply in this
case. Rebecca argues, however, that those "jurisdictional
requirements 'I were not met; Terry contends otherwise.
We recently clarified that § 40-4-219, MCA, applies to a
petition to modify child custody which has "the effect of
substantially changing the primary residence of the parties'
children, even though the formal designation of 'joint custody' is
retained . . . .I* In re Marriage of Johnson (Mont. 1994), _ P.3d
_, 51 St.Rep. 703, 706. We emphasized that such petitions
must satisfy the jurisdictional requirements contained in that
statute. Marriage of Johnson, 51 St.Rep. at 706. Only if and
after the court determines that the petitioner has met the combined
jurisdictional requirements by establishing both "changed
circumstances" and one of the other statutorily defined factors may
the court go on to consider the best interests of the children.
Here, the relevant additional statutory factor is "the child's
present environment endangers seriously his physical, mental,
moral, or emotional health and the harm likely to be caused by a
change in environment is outweighed by its advantages to him[.]"
Section 40-4-219(1)(c), MCA. In the case presently before us,
then, Terry was obligated to meet both the "changed circumstances"
and "serious endangerment" requirements as a threshold matter. The
District Court determined that those requirements were met and,
5
further, that the best interests of the children were served by
modifying primary physical custody.
As we stated in Marriase of Johnson, a party seeking
modification pursuant to 5 40-4-219, MCA, bears a heavy burden.
Marriaoe of Johnson, 51 St.Rep. at 706 (citation omitted). When
reviewing a district court's findings regarding modification, we
will not reverse unless those findings are clearly erroneous. In
re Marriage of McClain (1993), 257 Mont. 371, 374, 849 P.2d 194,
196.
Here, we find sufficient evidence in the record to support the
District Court's finding that a change of circumstances existed
requiring a modification in consideration of the children's best
interests. In its January 27, 1993, order denying Rebecca's
motion, the court detailed the living arrangements of the children
and stated in part:
Prior to their move to Virginia, the children lived
with their mother in unsanitary conditions, partially
from neglect, and partially from animal waste. The
children lived in abject poverty. Neither [Rebecca] nor
Mr. Davis worked. The children's clothing was
inadequate. Their rent was unpaid and they faced
eviction when they moved to Virginia. The utility bills
were unpaid.
Currently, they have no operative vehicle or
telephone. Additionally, evidence shows that at least
some of the money received for the children from public
assistance was used for Mr. Davis' pleasure, obviously
adversely affecting the children.
. . .
[Rebecca] obtained two restraining orders against
her current husband due to physical abuse. Mr. Davis has
been difficult to control, and the children were
intimidated by him. During the court's interview with
the children, they stated that they did not fear Mr.
6
Davis. However, their eyes and demeanor belied their
words when they described how he spanked them with a
bread board or his belt. It appears to the Court in
interviewing the boys that they have been instructed not
to say anything negative about their present
circumstances, perhaps out of fear.
. . .
The house in Virginia is older and is not in good
condition. At one time, twelve people shared the house,
now only ten reside there, along with about seven house
pets.
All five of [Rebecca's] children sleep on one
mattress in the upstairs of this house, partly because
they only have one mattress for the children to share,
and partly to keep warm.
[Rebecca] and Mr. Davis share another mattress in
this same room. The owner of the house has asked them to
vacate the home because of the unpaid rent, and there is
no evidence that they have any place to live.
. . .
The Court does not make the decision to modify the
parenting plan easily. [Rebecca] obviously loves her
children, and they love her, and their two younger half-
brothers. They also seem to do adequately in school, and
presently appear to be physically healthy. However, the
pattern of unpaid rent, unpaid bills, evictions in the
middle of winter, substandard living conditions, and
physical discipline are contrary to the best interests of
the children. These factors, and others in the evidence,
combine to show that modification of the parenting plan
is in the best interest of the children.
. . .
In the case at bar, the children's "present environment
endangers seriously [their] physical, mental, moral, or emotional
health and the harm likely to be caused by a change in environment
is outweighed by its advantages to [them.]" Section
40-4-219(1)(c), MCA. We find the District Court did not err in
modifying the primary physical custody of the children: the
jurisdictional prerequisite found in 5 40-4-219(1)(c), MCA, has
been met.
Affirmed.
Justices
Justice Karla M. Gray, dissenting.
I respectfully dissent from the Court's opinion. While I
agree that 5 40-4-219, MCA, applies to this petition to modify
custody, I disagree that the jurisdictional requisites of that
statute were met here. It is clear that, in resolving this case,
the District Court believed that 5 40-4-212, MCA, applied; it did
add several findings directed to the 5 40-4-219, MCA, standards,
but those findings are somewhat nebulous and, to some extent,
unsupported by the record. Because of the confusion over the
applicable standard and the nature and content of the court's
findings as they relate to § 40-4-219, MCA, I would remand this
case to the District Court for redetermination.
At the outset, it is important to note that Terry filed his
petition for modification & to Rebecca's move to Virginia. The
basis for the petition was the upcoming move. AnY "changed
circumstance" necessary as a foundation for a total change of the
children's physical custody was met, in Terry's view, by the move
itself. The District Court apparently agreed, finding that "this
travel does represent a substantial change in the circumstances of
the children." I disagree.
While changing the state of residence of the children may
provide a sufficient foundation to modify visitation rights and
associated costs, it is my view that such a change does not, in and
of itself, meet the substantial change in circumstances requirement
of 5 40-4-419, MCA. It is not for the courts of Montana to negate
a custodial parent's decision about where to live with her
9
children; only where those decisions produce an otherwise
substantial change in circumstances can such a factor impact on a
court's decision to modify physical custody of the children.
Nor does the record support the notion that the children's
living circumstances were significantly changed in an adverse
manner by the move. The fact is that Rebecca, her husband and the
children lived in near poverty during their time in Havre.
Rebecca's unemployment outside the home and motherhood of five
children certainly did not change after the move, and the same is
true of her husband's underemployment.
Moreover, the District Court's efforts to make findings
sufficient to establish the serious endangerment standard contained
in 5 40-4-219, MCA, are not supported by the record. It is true
that money was scarce, as it had been in Havre. It is also true
that housing in Virginia was unlikely to be stable, as was also the
case in Havre. It is also true that the children were sleeping on
a mattress on the floor awaiting the family's furniture. These
matters do not constitute serious endangerment.
Indeed, the court made findings which negate the serious
endangerment standard. It found that the children were physically
healthy. It also found that, after an initial period of adaptation
to their new school, the children had perfect attendance records
and good grades.
It is my view that the District Court's lengthy pronouncements
about the dangers of kerosene heaters, which even this Court
concedes were inappropriate as being totally unsupported by any
10
evidence, significantly and improperly influenced its approach to
the serious endangerment standard of 5 40-4-219, MCA. Without
those pronouncements and the court's clearly substantial concern in
that regard, there is little evidence to support the court's
serious endangerment conclusion.
I would remand to the District Court for a redetermination of
the petition to modify custody based on application of § 40-4-219,
MCA.
11
September 12, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
ROXANNE ROGERS
Montana Legal Services Association
P.O. Box 548
Havre, MT 59501
Patricia Jensen
RICE LAW OFFICE
P.O. Box 912
Havre, MT 59501-0912
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA