No. 93-384
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
IN RE MARRIAGE OF
JEROME ALLEN JOHNSON,
Petitioner and Appellant,
and
BARBARA A. JOHNSON,
Respondent and Respondent.
APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Fergus,
The Honorable Peter L. Rapkoch, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Ann L. Smoyer, Smoyer Law Firm,
Helena, Montana
For Respondent:
Jon A. Oldenburg, Attorney at Law,
Lewistown, Montana
Submitted on Briefs: March 10, 1994
Decided: August 12, 1 9 9 4
Justice Terry N. Trieweiler delivered the opinion of the Court.
Respondent Barbara A. Johnson moved the District Court for the
Tenth Judicial District in Fergus County to amend her prior decree
of dissolution by transferring physical custody of her two children
from her former husband, Jerome A. Johnson, to her. After a
hearing at which testimony was taken and other evidence received,
the District Court adopted Barbara's proposed findings of fact and
conclusions of law and entered judgment in her favor granting to
her physical custody of her two children and providing Jerome with
reasonable rights of visitation. Jerome appeals from the judgment
of the District Court. We reverse.
We restate the issues on appeal as follows:
1. When a party to a former dissolution proceeding moves to
amend the decree in a way that substantially changes the
residential living arrangements of the former couple's children
without seeking a change in the legal designation of "joint
custody," is the District Court's decision governed by the "best
interest" standard found at 5 40-4-212, MCA, or by the "serious
endangerment" standard found at 5 40-4-219(1)(c), MCA?
2. Applying the proper standard for modification of
residential custody, was there sufficient evidence to support the
District Court's judgment modifying its original decree?
FACTUAL BACKGROUND
Jerome and Barbara were married on July 6, 1983. During their
marriage, Barbara gave birth to two daughters. Jennifer was born
on October 31, 1983, and Amanda was born on February 27, 1987.
They were 9% and 6 years old respectively at the time of the
hearing held pursuant to Barbara's motion to amend the court's
decree.
On June 20, 1990, this couple filed a joint petition for
dissolution oftheir marriage. In their petition, they stated that
they had entered into a property settlement agreement and child
custody agreement, and asked that it be adopted by the court. With
regard to child custody, the parties indicated in their agreement
that they were both fit and proper persons to be granted care and
custody of their children, and therefore, petitioned for joint
custody. However, they also agreed that Jerome was to be awarded
physical custody, care, and control of the two children, and that
Barbara was entitled to reasonable visitation. Under the terms of
the agreement, Barbara incurred no obligation for child support,
and in fact, made no child support payments during the time that
the children resided with Jerome.
On June 20, 1990, the District Court entered its decree
dissolving the couple's marriage. The decree incorporated the
couple's property settlement and child custody agreements.
At the time of their dissolution, and during their entire
marriage, Jerome and Barbara lived in Roy. Following the
dissolution of t h e i r marriage, Barbara moved to Billings, where she
enrolled in college. The children resided with Jerome for nine
months during the school year, and with Barbara during the three
months of summer. During the school year, Barbara exercised
visitation with the children on alternate weekends.
Barbara did not complete her college education, but after two
years, moved from Billings to Lewistown where, at the time of the
hearing, she was employed as a manager-trainee at the local
Kentucky Fried Chicken restaurant.
On August 6, 1992, Barbara moved the District Court to amend
its original decree by providing her with physical custody, care,
and control of her children, and providing Jerome with reasonable
rights of visitation. In support of her motion, she filed an
affidavit in which she stated that the parties' circumstances had
changed because she was no longer attending school; that the
children's best interests would be served by changing their living
arrangements; and that due to their current living arrangements,
their physical and emotional health was seriously endangered.
On April 7, 1993, the District Court heard evidence in support
of and in opposition to Barbara's motion. Twelve witnesses
testified, in addition to the parties. However, the District Court
did not interview either of the children to consider their
preferences for a parent with whom to reside. Barbara conceded
that at least the older daughter was torn between her loyalties to
both parents, and that the younger daughter was not yet mature
enough to express a reasoned preference.
On April 26, 1993, the District Court adopted those findings
of fact and conclusions of law which had been proposed by Barbara's
attorney, and on June 23, 1993, the District Court granted
Barbara's motion by entering judgment which continued joint legal
custody, but designated Barbara as the residential custodian, and
granted Jerome reasonable visitation rights. In its findings of
fact, the District Court found that circumstances had changed since
the entry of the original decree because Barbara was now employed
and had a home where she could care for her children. The District
Court also found that the environment in which the children resided
with Jerome endangeredtheir physical, mental, moral, and emotional
health, and that modification was necessary to serve their best
interests. The District Court held, in other words, that
modification was justified under either the "best interest" test
set forth in 5 40-4-212, MCA, or the Ivseriousendangerment1I test
set forth in S 40-4-219, MCA.
On appeal, Jerome argues that since the physical custody and
visitation arrangements were completely reversed from the original
decree to the amended decree, the District Court's decision, in
substance, changed actual custody of the children, and therefore,
should have done so only if the llserious
endangermentt1
standard set
forth in 5 40-4-219, MCA, was satisfied. Furthermore, Jerome
argues that whether the "best interestsw of the children are
considered, or the llseriousendangermentv1 standard, there was
insufficient evidence to support the District Courtvs decision
transferring physical custody of the children from him to Barbara.
Barbara responds that since no change was made in the joint
custody provided for in the original decree that the "best
test provided for in 5 40-4-212, MCA, applies.
interestv1 Barbara
also responds that whichever test for modification is applied,
there was sufficient evidence to support the District Court's
decision.
ISSUE 1
When a party to a former dissolution proceeding moves to amend
the decree in a way that substantially changes the residential
living arrangements of the former couple's children without seeking
a change in the legal designation of "joint custody," is the
District Court * s decision governed by the "best interestt1
standard
found at 5 40-4-212, MCA, or by the qtserious
endangermentw standard
found at 5 40-4-219 (1) , MCA?
(c)
The District Court drew no conclusion about whether its
decision was controlled by 5 5 -212 or -219. It merely found
sufficient evidence to satisfy either criteria for modification,
and therefore, granted Barbara's motion. However, before we can
review the sufficiency of the evidence in support of the District
Court's judgment, it is necessary to clearly establish what
Barbara's burden was in order to accomplish the modification she
sought.
Since our prior decisions are not necessarily consistent with
the statutory scheme for modification, nor with each other, it is
appropriate to review those statutes, and our cases interpreting
them, before arriving at our conclusion.
Section 40-4-212, MCA, provides that when a district court
makes its original determination regarding child custody, it shall
do so in accordance with the "best interest of the child."
However, recognizing that children1s"best interests1*
are served by
continuity and stability in their living arrangements, the
Legislature also provided that once custody was established by the
district court, it could not be modified unless (1) a change has
occurred in circumstances which make modification necessary in
order to serve the child's best interest, and further, that one of
several additional factors are found to exist. The additional
factor relevant to this case is that (2) "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 . . . . I,
Section 40-4-219 (1)(c), MCA.
Both §§ -212 and -219 were taken from the Uniform Marriage and
Divorce Act and were adopted in Montana in 1975.
In 1981, the Legislature amended Montana's laws regarding
child custody by adding 5 40-4-222 through -224, MCA. These
sections were not taken from the Uniform Marriage and Divorce Act,
but are instead based on 5 5 4600 and 4600.5 of the California Civil
Code. Section 40-4-222, MCB, declared the Legislature's intent to
"assure minor children frequent and continuing contact with both
parents after the parents have separated or dissolved their
marriage1' and that where in the best interest of the child, joint
custody should be awarded to accomplish that purpose. Section
40-4-224(1) and (2), MCA, provides that "[ulpon application of
either parent . . . the court shall presume joint custody is in the
best interest of a minor child" and that "[tlhe allotment of time
between the parents must be as equal as possible: however: (a) each
case shall be determined according to its own practicalities, with
the best interest of the child as the primary consideration
.... I1
Subparagraph (3) of 5 -224 provides that "[alny order for
joint custody be modified pursuant to 40-4-219 to terminate the
joint custody. It
While 5 -224 provided that the allotment of time between
parents must be based on the best interest of the child, it set
forth no separate standard for modifying the allotment of time
provided for in the original decree. Subparagraph (3) provides
that a joint custody order may be modified pursuant to 5 -219, but
is not a model of clarity and appears to refer to modifications
which are for the purpose of terminating joint custody. Therefore,
in a series of cases, this Court has reasoned that when a party
seeks to modify a joint custody arrangement by terminating joint
custody, he or she must satisfy the standards set forth in 5 -219,
but that where a party seeks to modify physical custody
arrangements without terminating the legal designation of joint
custody, the "best interest" test applies based on the provisions
of 5 -224(2). SeeInreMam'ageofParadis (1984), 213 Mont. 177, 689
P.2d 1263; InreMam'ageofBergner (1986), 222 Mont. 305, 722 P.2d 1141;
InreMam'ageofStephertson (1988), 230 Mont. 439, 750 P.2d 1073; In re
Mam'ageofJohnson (1989), 238 Mont. 153, 777 P.2d 305; InreMam'ageofKeil
andFerguson (1990), 246 Mont. 344, 805 P.2d 1334; InreMam'ageofMitcheZl
(1991), 248 Mont. 105, 809 p.2d 582; In reMam'age of Cogar (1992), 252
Mont. 272, 828 P.2d 1361.
The rationale in our earlier decisions seems to be that
5 40-4-219(l)(a)-(f), MCA, lists the jurisdictional prerequisites
only for modification of sole custody disputes, but that motions
for a different physical custody arrangement without terminating
"joint c u s t ~ d y ~ ~
must apply the "best interest test" because
5 40-4-224(2), MCA, requires that the allotment of time between
parties in a joint custody arrangement be based on the child's
"best interest." Our prior decisions fail to point out that sole
custody, pursuant to 5 -212, must also be based on a child's "best
interest." Furthermore, our prior decisions failed to explain why
the rationale for applying 5 -219 for modification of sole custody
is not equally applicable to a substantial change in physical
custody arrangements. We pointed out in B e p e r , 722 P.2d at 1144,
that "the stability of a child's home life is vital to his or her
well-being."
Certainly a child's sense of continuity and stability are
equally threatened when that child is uprooted from the only
community in which that child has ever resided and relocated in a
new household and new school, whether we refer to the change as one
of legal custody or merely physical custody.
Some of our decisions have recognized that the substance of
the change which is sought is more important than what it is called
in the parties' pleadings.
For that reason, in InreMammageofGahm (1986), 2 2 2 Mont. 300,
722 P.2d 1138, we construed the relief sought by the husband to be
a termination of joint custody, even though his formal pleadings
sought only modification of physical custody, stated:
Here, the appellant Is request is different than that made
in Paradis. This appellant requested I1pemanentc~stody'~
of the children with "limited rights of visitationIi to
respondent. This is mare than a request for different
physical. custody arrangements like the request in Paradk
and does not concern the integration standard. Asking
that respondent be allowed only limited visitation is
equivalent to asking for sole custody.
Gahm, 722 P.2d at 1140.
In discussing the importance of applying the "serious
endangermentw standard to modification of a custody decree, we
stated:
Subsection (c) is a jurisdictional prerequisite to
modification of a custody decree. In re Custody of Dallenger
(1977), 1 7 3 Mont. 530, 534, 568 P.2d 169, 172. The
rationale for placing this heavy burden on the moving
party is to preserve stability and continuity of custody
for children. Dallenger, 173 Mont. at 533, 568 P.2d at
171. This policy does not change merely because the
moving party uses a different label in his prayer for
relief. The express purpose of the joint custody
provisions are to assure a child frequent and continuing
contact with each parent and to allow each parent to
share the rights and responsibilities of raising the
child. When one parent seeks to become permanent
custodian and to relegate the other parent to limited
visitation, the proposed arrangement is no longer joint
custody. That parent should carry a heavy burden of
proof before the court imposes such a change on a child.
Gahm, 722 P.2d at 1140-41.
Likewise, in Stephenson, we held that in deciding which standard
to apply to a motion for modification of a child s physical custody
arrangements, we would look to the substance of the change sought,
rather than the form of the party's motion. In that case, although
the parties had been awarded joint custody of their children, the
husband sought a modification of the original decree which would
make him the domiciliary parent. Although we held that Itbest
interestn was all that had to be established to modify physical
custody, when termination of joint custody was not sought, w e also
held that:
[Wlhere modification equates to termination of the joint
custody, the lower court should proceed according to the
requirements of 5 40-4-219, MCA. See In re the Marriage of
Gahm and Henson (l986), [ 2 2 2 Mont. 300, 302, ] 722 P.2d
1138, 1140.
Stephenson, 750 P.2d at 1077. After analyzing the change sought by
the husband, we held that:
We agree with Sandra's assertion that the lower
courtts modification amounted to termination of the
partiest 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 forthe children. The original decree
granted Sandra physical custody and Andrew received
liberal visitation rights. . . . Under these circum-
stances, the lower court's modification terminates the
joint custody established by the first decree because the
change amounts to %ore 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 5 40-4-219, MCA, applies, and w e reverse for lack of
a proper endangerment finding.
Stephenson, 750 P.2d at 1077-78.
In summary, our prior decisions have held that where one party
to a dissolution moves or petitions to modify a sole custody
provision in the dissolution decree, then that party must satisfy
the jurisdictional requirements of 5 40-4-219, MCA. However, if
the original decree provided for joint custody and the motion to
modify does not attempt to terminate joint custody, but simply
alter the physical custody arrangements, the district court should
consider the motion in light of the best interest standard
established by 5 40-4-212, MCA. We have carved out an exception to
the previous two rules where the form of a party's pleading asks
for a modification of physical custody, but in essence terminates
j oint custody.
Considering our statutory scheme for modification of custody
arrangements, and the rationale for requiring a substantial showing
before altering the living arrangements to which a child has become
accustomed, and out of concern that the applicable standard for
granting a motion to modify custody arrangements is not clear from
our prior decisions, we adopt the following standard:
Motions or petitions to modify a sole custody provision or
terminate a joint custody provision must satisfy the jurisdictional
prerequisites set forth in 8 40-4-219, MCA. Likewise, a motion or
petition to modify child custody provisions in a dissolution decree
which have the effect of substantially changing the primary
residence of the partiest children, even though the formal
custody" is retained, are to be construed as
designation of ttjoint
motions or petitions to terminate joint custody and must satisfy
the jurisdictional requirements s e t forth in 8 40-4-213. MCA. Any
effort to modify the physical custody arrangements in a decree
which provided for joint custody, which does not seek a substantial
change in the children's primary residence, may be considered by
the district court according to the best interest standard set
forth in § 40-4-212, MCA.
We conclude that this approach is most consistent with the
plain terns of Montana's ~arriage and Divorce Act and is most
likely to provide for the continuity and stability of children's
living arrangements that the Legislature obviously determined to be
important when it adopted that A c t .
ISSUE 2
Applying the proper standard for modification of residential
custody, was there sufficient evidence to support the District
Court's judgment modifying its original decree?
[T]he 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-l1 Gahm, 7 2 2 P.2d at 1140.
Stephenson, 7 5 0 P.2d at 1078.
When reviewing findings regarding modification of
custody, this Court will not reverse the findings unless
they are clearly erroneous. In re Marriage ofArbuckle (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), 2 5 0 Mont. 3 2 0 , 323, 820 P.2d 1285, 1287.
InreMariageofMcClain (1993), 257 Mont. 371, 374, 849 P.2d 194, 196.
In support of her contention that her children's health was
seriously endangered by residing with their father, Barbara offered
the following evidence:
1. She testified that when the girls arrived at her home for
visitation they were inadequately clothed and that she had to
purchase clothes for them.
2. She testified that on at least one occasion Jerome had
left the children while he and his companion went out and that
while gone he had turned off the telephone so that they could not
make outgoing calls.
3. Barbara complained that the girls lacked supervision, as
evidenced by the fact that they were allowed to remain at school
until about 5:00 or 5:30 p.m.
4. She complained that the girls' medical care was
neglected; however, the only example given was Jerome's failure to
replace Jennifer's glasses for three months after they had been
lost. In a related complaint, she reported that when Amanda was
taken to Billings for a minor surgical procedure Barbara had not
been advised of the time and date ahead of time.
5. Barbara was also concerned that Jerome had not continued
the girls' religious education which she had begun prior to the
dissolution of their marriage.
While Barbara had other minor complaints about her
relationship with Jerome, as it affected the girls, the complaints
listed formed the basis of her contention that her daughters'
health was endangered by living with her former husband. On the
other hand, she acknowledged that the girls feel comfortable at and
get along well in school. She conceded that Jerome did not have a
drinking problem and she was willing to provide him with three
months of visitation during the summer. She also conceded that she
had paid no child support to Jerome for the care of their daughters
since the couple's marriage had been dissolved.
In response to Barbara's accusations, Jerome pointed out that
he stopped sending the girls' good clothes with them when they
visited their mother because she kept the good clothes and only
returned the ones of poorer quality. However, he denied that the
girls looked like "orphans," as their mother described them when
they arrived for visitation. He testified that his daughters are
required to be home for dinner at 5:00 every night and that they
often remain at school until then, but pointed out that the school
is, at most, one-half block away, and that he can see his daughters
from his window while they play on the playground. He denied that
his daughters had terminated their religious education, and pointed
out that they had gone to church school the day before the hearing.
He explained that he had attempted to call Barbara about Amanda's
operation two days beforehand, but was unable to reach her. He
acknowledged, however, that he did not bother to leave a message on
her answering machine. None of Jerome's testimony was rebutted.
Only two witnesses were called to testify regarding Jennifer's
and Amanda's progress at school. Peg Rogers works for the Head
Start Program in Roy and had Amanda in her course the previous
year. She described her as bright, cheerful, and happy, and said
that her hygiene and health habits were very good. She described
her as always well dressed, neat, and clean. She described Jerome
as a loving father who was involved in his children's school work
and an active participant in the school. She could think of no
reason why his children would be better off living somewhere else.
William Walker was the superintendent of schools at Roy during
the year prior to trial, and knew both Johnson girls. He was also
the principal of kindergarten through twelfth grade and saw
Jennifer daily during the previous school year. He described her
as well adjusted and happy to be at school. He said she did better
than average academically. He also said that she dressed normally,
was well groomed, and was aware of no problems in her home. He
testified that Jerome always attended parent-teacher conferences,
and had made an impression on him because generally he had a
difficult time getting parents to attend.
Tony LeRette is Barbara's 19-year-old brother, but had
continued to live with Jerome for nearly a year after the couple
separated. He lived there because his parents lived elsewhere and
he wanted to complete high school in Roy. He described Jerome as
a good parent who adequately cared for the girls and always knew
where they were. He considered Jerome watchful and protective, and
thought that the household and community in which the girls were
being raised was a good place for them and a friendly environment.
He could think of no reason why the children should be moved.
In summary, it appears from the record that Barbara's and
Jerome's poor relationship has led to several decisions which have
not been in the best interests of their children. For example, it
is clear that these children would be better off if their parents
were able to work out an agreement regarding the exchange of their
clothing, were able to better communicate regarding their medical
care, and were able to agree on the appropriate religious
instruction for their daughters. In the absence of better
communication between the parties, perhaps this is an appropriate
area for the District Court to establish more specific guidelines
for the benefit of the children. However, we conclude that the
evidence offered by Barbara does not establish that the children's
environment in Jerome's home seriously endangered their physical,
mental, moral, or emotional health. Therefore, we conclude that
there was not substantial evidence to satisfy the jurisdictional
prerequisite in § 40-4-219(1) (c), MCA, and that the District Court,
therefore, erred by substantially altering the custodial
arrangements provided for in its original decree.
The judgment of the District Court is reversed and this case
is remanded to the District Court for further proceedings
consistent with this opinion.
We concur: /-*/...