Marriage of Schaplow

 TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES . . . . . . : . . . . . . . . . . iii

STATEMENT OF ISSUES . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF CASE . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . 5

I. THE DISTRICT COURT ERRED BY MODIFYING
CUSTODY OF THE PARTIES' CHILDREN WHEN
THERE WAS NO MOTION FOR MODIFICATION
BEFORE THE COURT . . . . . . . . . . . . . . . . . . 5

II. THE DISTRICT COURT ERRED BY APPLYING
THE "BEST INTERESTS" TEST WITHOUT
MAKING THE REQUISITE JURISDICTIONAL
FINDINGS SET FORTH AT MONT. CODE
ANN. § 40-4-219 (1993) . . . . . . . . . . . . . . . 7

III. THE DISTRICT COURT ERRED BY MODIFYING
THE FINAL DECREE WHERE THE STATUTORY
CRITERIA SET FORTH AT MONT. CODE
ANN. $ 40-4-219 (1993) WERE NOT MET . . . . . . . . 13

A. There was no change in
circumstance subsequent to
the entry of the prior decree . . . . . . . . . 14

B. There was no danger to the
children's physical, mental or
emotional well-being . . . . . . . . . . . . . 15

C. The harm to the children
resulting from the change
in environment outweighs
the advantages . . . . . . . . . . . . . . . . 16

D. The modification is not in
the children's best interests . . . . . . . . . 16

IV. THE DISTRICT COURT ERRED BY MODIFYING
THE FINAL DECREE BECAUSE TERRY FILED
NO AFFIDAVIT IN SUPPORT OF MODIFICATION,
AS REQUIRED BY MONT. CODE ANN.
§ 40-4-220 (1993) . . . . . . . . . . . . . . . . . 20

i
 TABLE OF CONTENTS (Cont.)
Page

V. THE DISTRICT COURT ERRED BY ORDERING
THE CHILDREN TO ATTEND THE CHURCH OF
FATHER'S CHOICE WHILE THEY WERE IN
MOTHER'S CUSTODIAL CARE IN VIOLATION
OF HER FIRST AMENDMENT RELIGIOUS RIGHTS
AND MONT. CODE ANN. § 40-4-218 (1993) . . . . . . . 22

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 27

REQUEST FOR ORAL ARGUMENT . . . . . . . . . . . . . . . . 27

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . 28
APPENDIX . . . . . . . . . . . . . . . . . . . . . ...29

ii
 TABLE OF AUTHORITIES

CASES Page
Angel v. Angel, 140 N.E.2d 86 (Ohio C.P. 1956) . . . . . 25

In re the Custody of C.S.F., 232 Mont. 204,
755 P.2.d 578 (1988) . . . . . . . . . . . . . . . . . . 5,6

In re the Marriage of Allison, Mont.
887 P.2d 1217 (1994) . . . . .T. . . ..: . . . 10,11,21

In re the Marriage of Alnert, 258 Mont. 344,
852 P.2d 669 (1993) . . . . . . . . . . . . . . . . . . 8,9

In re the Matter of B.T., 223 Mont. 287,
725 P.2d 230 (1986) . . . . . . . . . . . . . . . . . . . 11
In re the Marriage of Gahm, 222 Mont. 300,
722 P.2d 1138 (1986) . . . . . . . . . . . . . . . . . . 10

In re the Marriaae of Gersovitz, 238 Mont. 506,
779 P.2d 883 (1989) . . . . . . . . . . . . . . . . . 22,23
In re the Marriage of Hoodennvle, 241 Mont. 345,
787 P.2d 326 (1990) . . . . . . . . . . . . . . . . . . . 8

In re the Marriage of Johnson, 266 Mont. 158,
879 P.2d 689 (1994) . . . . . . . . . . . . . 9,10,11,12,13
In re the Marriage of Paradis, 213 Mont. 177,
689 P.2d 1263 (1984) . . . . . . . . . . . . . . . . . . 10

Khalsa v. Khalsa, 751 P.2d 715,
(N.M. Ct. App. 1988) . . . . . . . . . . . . . . . . . . 26

Munoz v. Munoz, 79 Wash.2d 810,
489 P.2d 1133 (1971) . . . . . . . . . . . . . . . . . . 24

OTHER AUTHORITIES

Montana Code Annotated § 40-4-212 (1993) . . . . . . 2,8-11

Montana Code Annotated § 40-4-218 (1993) . . . . . . 22,27
Montana Code Annotated § 40-4-219 (1993) . . . 1,2,7-16,27
Montana Code Annotated 5 40-4-220 (1993) . . 1,20,21,22,27

iii
 STATEMENT OF THE ISSUES

The issues for consideration on appeal is whether the

district court erred by substantially changing the primary
residence of the parties' children, thereby modifying the

Final Decree, where there was no motion for modification

before the court, no finding of the statutory criteria set

forth at Mont. Code Ann. § 40-4-219 (1993) and no affidavit

establishing the statutory requirements set forth at Mont.

Code Ann. § 40-4-220 (1993). Also, Plaintiff/Appellant
appeals the district court order requiring her to assure the

children attend the religion of his choice.

STATEMENT OF THE CASE

The Eighteenth Judicial District Court, Gallatin County
("district court"), heard Petitioner/Appellant's ("Peggy")

motions for "Final Determination of Visitation Rights and

Contempt" on October 20 and 21, 1994. Peggy had been the

children's primary custodian since the dissolution of the

parties' marriage. At that time, the children were residing

Sunday morning through Thursday night with their mother and

Thursday night through Sunday morning with their father. No
motion for modification was before the district court at the

October hearing, nor had Respondent/Respondent ("Terry")

filed an affidavit alleging facts which would warrant

modification. The district court issued its Memorandum,
Opinion and Order [hereinafter "December Order"] on December

1
16, 1994. The December Order removed Peggy as the
children's primary custodian and provided that the school-
age children would spend equal time with each parent,
switching on a weekly basis. The December Order
substantially changed the custodial arrangements of the
parties'~ children and, therefore, the district court should
have made a finding that the jurisdictional prerequisites
set forth at Mont. Code Ann § 40-4-219 (1993) had been met.
Instead, the district court erroneously proceeded directly
to the "best interests I1 test set forth at Mont. Code Ann. §
40-4-212 (1993):
In a prior proceedins and in the December Order, the
district court ordered Peggy to assure the children attend
Terry's church over the objection fo Peggy.

STATEMENTOF FACTS
1. The parties were married on June 18, 1977, in
Bozenan, Montana (Findings of Fact, Conclusions of Law and
Final Decree of Dissolution of Marriage [hereinafter "Final
Decree"], page 1, paragraph 3).
2. Two children were born of the parties' marriage,
Jesse B. Schaplow, born July 15, 1981; and Michael J.
Schaplow, born May 29, 1984 (Final Decree at 2, para. 4).
3. The parties' marriage was dissolved by order of
the Montana Eighteenth Judicial District Court, Gallatin
County, dated May 6, 1991, the Honorable Thomas A. Olson,

2
District Judge (Final Decree at 4).
4. The parties entered into a Separation, Custody and
Property Settlement Agreement [hereinafter ltAgreement"] on
May 6 1991, which was incorporated by reference into the
Final Decree (Final Decree at 2, para. 10; Agreement, page
2, paragraph 3).
5. The Final Decree provided for joint custody of the
parties' two minor children and designated Peggy as the
primary residential parent (Final Decree at 3; Agreement at
7, para. 2).
6. The parties have utilized the services of numerous
mediators since the dissolution of their marriage, in
several unsuccessful attempts to reach a mutually acceptable
custody and visitation schedule, including Dr. Charles Kelly
(Agreement at 7); Dr. Marvin Backer (Agreement at 7);
Guardian ad Litem, Eleanor N. Truitt; Dr. Traynham; Retired
District Judge Joseph B. Gary; and Retired District Judge
Jack Levitt. (See Respondent's Motion for Determination of
Summer Custody Schedule and Request for Expedited Telephonic
Hearing, dated June 8, 1995).
7. The parties changed the visitation schedule set
forth in the Final Decree in December of 1992, to provide
that Terry would have the children from Thursday evening
through Sunday morning; however, Peggy remained as the
children's primary residential parent (Agreement at 7).
8. The visitation schedule was modified again, after

3
a telephone hearing on November 26, 1993, to provide for the
children's participation in two five-week ski programs and
for their attendance in Sunday School during the 1994 ski
season (Order, dated November 26, 1993 [hereinafter
"November Order," page 2, lines 22-28).
9. On April 4, 1994, after assignment by the district
court as a meditor, Judge Levitt recommended that the
parties implement a weekly visitation schedule and remove
the primary residential parent designation (Dec. Order at 3,
11. l-6).
10. Both parties objected to the visitation schedule
recommended by Judge Levitt and, pursuant to another
telephone hearing on August 9, 1994, the parties reverted to
the visitation schedule set forth in the court's November
Order wherein Peggy remained designated as the children's
primary residential parent.
11. In this November Order, the district court ordered
Peggy to assure the children attend Terry's church (Nov.
Order).
12. Peggy filed Motions for Final Determination of
Visitation Rights and Contempt and both were heard by the
district court on October 20 and 21, 1995. The district
court issued its Order on December 16, 1995, and it is from
that December Order that Peggy now appeals.

4
 ARGUMENT

I.

TRE DISTRICT COURT ERRED BY MODIFYING
CUSTODY OF THE PARTIES' CHILDREN EEEN THERE

SEAS NO MOTION FOR MODIFICATION BEFORE THE COURT.

The long-standing rule that a court does not have

jurisdiction to rule on issues outside the pleadings

properly before it applies to domestic cases. Because there

was no motion for modification before the district court, it
did not have jurisdiction to modify the decree. a, i.e,

In re the Custody of C.S.F., 232 Mont. 204, 755 P.2d 578

(1988). The only question properly before the district

court in this case was clarification of the visitation

arrangement for the parties' children. (See Dec. Order at 1,

para. 1.) In C.S.F., B, the child's father moved the

court for a determination of the number of days of

visitation he was allowed to deem accumulated as a result of
the mother's refusal of visitation on several occasions.

C.S.F., 232 Mont. at 205, 755 P.2d at 579. After a hearing

on the father's motion, the court issued its order

specifying the number of days he was entitled to deem

accumulated and further ordering the parties to provide one

another and the court with copies of their work schedules

and notice of, among other things, their intent to exercise

visitation. The Montana Supreme Court held that the notice

provision of the order was void, as it was outside the

5
issues set forth in the pleadings, stating:

A district court does not have jurisdiction to
grant relief outside of the issues presented by
the pleadings unless the parties stipulate that
the other questions be considered or the pleadings
are amended to conform to the proof. (Citing
authority.) In National Surety Corporation
[(I-948), 121 Mont. 202, 192 P.2d 3171, this Court
recognized that "the rule in Montana as well as in
other jurisdictions seems to be well settled that
a judgment must be based on a verdict or findings
of the court and must be within the issues
presented to the court. . . .

In re the Custodv of C.S.F., 232 Mont. at 209, 755 P.2d at
582 (Citations omitted).

Likewise, in this case, the district court ruled on

matters outside the pleadings. There was no motion for

modification before the court; in fact, the December Order

specifically defined the issues which were before it as

follows:
The central issue before the Court is Petitioner's
Motion for Final Determination of Visitation
Rights. Ancillary thereto are contempt motions
filed by each party against the other and
Petitioner's motion for sanctions alleging
Respondents [sic] violation of Rule 4(D)(l)(a),
Montana Rules of Civil Procedure.

(Dec. Order at 1, para. 1.)

Terry and Peggy did not stipulate to the consideration

of other issues or the amendment of the pleadings to conform

with the proof, in accordance with the exceptions to the

pleadings rule as stated by the Court in C.S.F. C.S.F., 232
Mont. at 209, 755 P.2d at 582. Therefore, the district

court erred by modifying the custody and visitation

provisions of the Final Decree since the only issue before
it with respect to custody and visitation was a request for
a determination of the existing order. Furthermore, even if
there had been a motion for modification before the district
court, the December Order would, nonetheless, fail on appeal
because the district court applied the wrong standard in
modifying the children's custodial arrangement.
II.
THE DISTRICT COURT ERRED BY APPLYING THE "BEST INTERESTS"
TEST WITEOUT MAKING THE REQUISITE JURISDICTIONAL FINDINGS
SET FORTH AT MONT. CODE ANN. 5 40-4-219 (1993).
The visitation schedule set forth in this case,
significantly changed the custodial arrangement for the
parties' children Andy eliminated Peggy's designation as the
children's primary custodian. The December Order,
~therefore, constitutes a modification of the Final Decree.
Accordingly, the standard of review that the district court
should have applied was the *'serious endangerment" standard
set forth at Mont. Code Ann. § 40-4-219 (1993). The
district court's failure to utilize this standard
constitutes reversible error and should, therefore, be
reversed.
One indication of the court's intent to change, rather
than merely clarify the existing visitation schedule was the
removal of Peggy as the children's primary residential
parent (Dec. Order at 11, para. 1). It is not necessary to
eliminate the designation of the primary residential parent
merely because the parents share approximately equal time
with the children in their primary care. In re the Marriaue
of HoodenDvle, 241 Mont. 345, 787 P.2d 326 (1990). In
HoodenDvle, supra, the Montana Supreme Court affirmed the
district court's ~finding that the petitioner had not met the
statutory criteria set forth at Mont. Code Ann. § 40-4-219

(19931, and denied her request for modification of the prior
decree stating:
Once a custody arrangement is established, a party
may move for modification under Section 40-4-219,
MCA. However, one moving for a modification under
the statute must prove that a change has occurred
in the circumstances of the children or custodian
that necessitates the change in accord with the
best interest considerations set forth in Section
40-4-212, MCA . . .
Hoodenpvle at 347, 787 P.2d at 328.
The Hoodenpvle Court, like the court in the instant
case, issued an order granting the parties visitation on
alternate weeks. Id. However, the children in Hoodenpvle
were both preschoolers and the Court expressly conditioned
this arrangement on renegotiation of visitation when the
children reached school age. Id. And, more importantly,
during the duration of alternate week visitation, the Court
in HoodenDvle continued Respondent's designation as the
children's primary custodian. Id.
Clarification and/or interpretation of unspecified
rights of visitation set forth in a prior decree amounts to
a modification where the clarification or interpretation
alters the visitation rights of the parties. In re the
8
Marriaqe of Alnert, 258 Mont. 344, 852 P.2d 669 (1993). In

Alwert this issue arose in the context of a UCCJA question,

but the reasoning set forth by the Court is applicable in

this case, since the context does not affect the analysis.
In Alnert, the Court concluded that the distinction between

V'modification'l and "clarification" was superficial:

[I]n this case, the court's order altered the
rights of the parties beyond that originally
contemplated when the visitation provisions were
left unspecified, and thus, modified those rights.

Alwert at 347, 852 P.2d at 671.

The Montana Supreme Court has recognized the
inconsistencies in its prior decisions regarding the

appropriate standard to be applied to cases where a party

seeks a substantive change to those portions of a prior

decree involving the custody and visitation of children.

In re the Marriaqe of Johnson, 266 Mont. 158, 879 P.2d 689

(1994). In Johnson, suwra, the Court phrased the issue
before it as follows:

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 l'best interest" standard
found at Section 40-4-212, MCA, or by the "serious
endangerment" standard found at Section 40-4-
219(l)(c), MCA?
Johnson at 159, 879 P.2d at 691.

The Montana Supreme Court explained the seemingly

contradictory rulings in the two leading cases on the issue

9
of the appropriate standard of review for custody
modification cases at that time, In re the Marriaqe of
Paradis, 213 Mont. 177, 689 P.2d 1263 (1984), and In re the
Marriaqe of Gahm, 222 Kant. 300, 722 P.2d 1138 (1986) and
their prodigy, stating:
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 Section
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 Section 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 joint custody.
Johnson at 165, 879 P.2d at 694.
The Court elaborated on its explanation of the
appropriate standard of review in custody modification cases
in In re the Marriaoe of Allison, suora, stating:
Motions or petitions to modify a sole custody
provision or terminate a joint custody provision
must satisfy the jurisdictional prerequisites set
forth in Section 40-4-219, MCA. Likewise, a
motion or oetition to modify child custody
provisions in a dissolution decree which harsl the
effect of substantiallv chanqinq the primarv
residence of the parties' children, even thouqh
the formal desiqnation of "ioint custodv" is
retained, are to be construed as motions or
petitions to terminate joint custody and must
satisfy the jurisdictional requirements set forth
Section 40-4-219, MCA. Any effort to modify the
physical custody, which does notseek a
substantial change in the children's primary

10
 residence, may be considered by the district court
according to the best interest standard set forth
in Section 40-4-212, MCA.

In re the Marriace of Allison, Mont. -, 887 P.2d 1217

(1994) (emphasis added) (quoting In re the Marriaoe of

Johnson, 266 Mont. 158, 879 P.2d 689 (1994)).
Because the December Order of the district court

substantially changed the children's primary residence and

terminated Peggy's designation as the children's primary

custodian, the district court should have construed the

action as one to terminate joint custody and applied the

"serious endangerment" test set forth at Mont. Code Ann. §
40-4-219 (1993). Instead, the district court committed

reversible error by proceeding directly to the best interest
standard set forth at Mont. Code Ann. § 40-4-212 (1993),

without reference to the jurisdictional prerequisites.

The findings of the district court will be overruled on

appeal where they are not supported by substantial credible

evidence. In re the Matter of B.T., 223 Mont. 287, 725 P.2d

230 (1986). In this case, the record is void with respect

to the jurisdictional requirements set forth in Mont. Code

Ann. § 40-4-219 (1993), and, in fact, the December Order

clearly states that the court applied the "best interests"

test set forth at Mont. Code Ann. tj 40-4-212 (1993), without
making the requisite jurisdictional finding as set forth at

Mont. Code Ann. § 40-4-219 (1993). (See, Dec. Order at 7, 1.

19; page 11, 11. 7-9.)

11
 The substance of the relief sought by the moving party
in an action for modification is more significant than the
relief as stated in the formal pleadings. Johnson at 159,

879 P.2d at 693. Where the resulting visitation schedule
constitutes a significant change in the children's schedule,
modification actually amounts to termination of an existing
joint custody situation. Id. In Johnson, which is
factually similar to the present case, the Court held that,
because the parties' relationship had deteriorated to the
point where they were unable to communicate about their
children's needs, contrary to the children's best interests,
it would be beneficial to establish more specific visitation
guidelines for the parties to follow. Johnson at 169, 879
P.2d at 696. The Court held that the district court, in
changing the mother's designation as the children's primary
custodian, actually modified the Final Decree, and
therefore, the proper standard to be applied was the serious
endangerment test, set forth at Mont. Code Ann. § 40-4-219
(1993). Johnson at 166, 879 P.2d at 694. In applying this
standard, the Court held that the evidence presented by the
father did not meet the "heavy burden" imposed upon a party
seeking to modify a final decree, citing the underlying
policy to "preserve stability and continuity of custody for
the children." Johnson at 166, 879 P.2d at 695. The Court
held that the district court had committed reversible error

by, "substantially altering the custodial arrangements

12
provided for in its original decree." Johnson at 169, 879
P.2d at 696.

Even if the district court in this case had correctly

applied the serious endangerment test, as opposed to the

best interest test, it would have been error for it to grant

the modification, as set forth in the December Order, since

a finding that the statutory criteria set forth at Mont.

Code Ann. 5 40-4-219 (1993), had been met is not supported

by the record.
III.

THE DISTRICT COURT ERRED BY MODIFYING THE FINAL

DECREE WHERE THE STATUTORY CRITERIA SET FORTH AT

MONT. CODE ANN. 5 40-4-219 (1993) WERE NOT MET.

Since this Court should accept the logic set forth

above, and find that the district court should have applied

the serious endangerment test, it is obvious that the

district court erred by failing to make the requisite

findings of the statutory criteria set forth at Mont. Code

Ann. 5 40-4-219 (1993), which states, in relevant part:

40-4-219. 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 that were unknown to the
court at the time of the entry of the prior
decree, that a change had 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:
. . . .

13
 (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; . . .
Mont. Code Ann. 5 40-4-219(1)(a) (1993).
Neither the record nor the findings of the district
court support the existence of the statutory criteria
necessary to support a modification of the custody and
visitation provisions of the prior decree, pursuant to Mont.
Code Ann. § 40-4-219 (1993). The district court was
required to find that there was a change in circumstance
subsequent to the entry of the Final Decree that indicated
modification was in the best interests of the children; that
the children's environment seriously endangered their
mental, moral or emotional health; and, that the benefit of
a change in environment would be outweighed by the
advantages to the children. Mont. Code Ann. § 40-4-219(c)
(1993).
A.

There was no change in circumstance

subsequent to the entry of the prior decree.

At the hearing on Peggy's Motions for Final
Determination of Visitation Rights and Contempt, neither
party alleged any change in circumstance subsequent to the
entry of the Final Decree sufficient to meet the threshold
test set forth at Mont. Code Ann. § 40-4-219 (1993).
Neither party has remarried, neither has had a significant

14
change in their respective lifestyle, neither is

contemplating relocation, and neither has had any additional

children. The December Order is silent with respect to any

change in circumstance, nor was any change alleged by either

of the parties. Therefore, this threshold element was not

met, and the district court erred by modifying custody of
the children.

B.

There was no danger to the children's

physical, mental or emotional well-being.

The December Order is also silent with respect to any

danger to the children's well-being. Because the district

court did not apply the serious endangerment test set forth

at Mont. Code Ann. 5 40-4-219 (1993), it made no findings as

to whether the children's environment, as it existed at the

October, 1994, hearing, endangered their physical, mental,

moral, or emotional well-being. More importantly, the

record does not indicate the existence of any serious

endangerment to the children.

Because the district court made no finding of a change
in circumstance arising subsequent to the entry of the Final

Decree, as required by Mont. Code Ann. 5 40-4-219 (1993), it

could make no finding that such a change endangered the

children's physical, mental, moral, or emotional well being.

The failure of the district court to make a preliminary

determination as to whether there had been a change in

15
circumstance subsequent to the entry of the Final Decree of
dissolution which endangered the children's health or well-
being as contemplated by Mont. Code Ann. (fj 40-4-219 (1993),
rendered the court without jurisdiction to modify custody.
However, even if the court had made the requisite initial
finding of a changed circumstance, in accordance with the
statute, the record does not establish any danger to the
children.
C.
The harm to the children resulting from the
change in environment outweighs the advantages.

The district court made no indication in its December
Order that it even considered whether the harm to the
children resulting from the modification of visitation
outweighed any advantage to the children. In fact, as the
testimony set forth in section (d), below, clearly
establishes, the record indicates that the children would
benefit from a more stable, consistent environment.
D.

The modification is not in the children's best interests.

Once the district court makes a finding that the
jurisdictional requirements of Mont. Code Ann. § 40-4-219

(1993)) have been met, it must then proceed to an analysis
of the children's best interests. The record in this case
does not support the court's finding that the visitation
schedule set forth in the December Order and the elimination

16
of Peggy's designation as the children's primary residential
parent is in the best interests of the children. In fact,
the record supports the contrary. For example, Eleanor
Truitt, a licensed clinical social worker who acted as a
court-appointed guardian ad-litem for the boys, testified
that parents must be able to negotiate and communicate to
facilitate a custody and visitation schedule where the
parents share equal time with the children. (See Transcript
of Proceedings, dated October 20-21, 1994 [hereinafter
"October Transcript"], Vol. I, page 276, lines ~8-11.)
Carmen Knudson-Martin, Ph.D., University professor and
marriage and family therapist testified that on-going
conflict between separated parents is the most damaging
thing for their children (Oct. Tr., Vol. I at 30, 11. 3-4).
Nona Faith, court administrator, family law mediator and
mother of the Schaplow children's best friend, testified
that she has not observed the type or degree of flexibility
and communication between Terry and Peggy that would
facilitate a successful 50/50 custody arrangement (Oct. Tr.
vol. I at 49, 11. 2-4). The procedural history of the
antagonistic proceedings between Terry and Peggy supports
Ms. Faith's observations. Dr. Marvin Backer, clinical
psychologist working primarily in the area of child and
family psychology, who counseled the parties in July of
1989, testified about the parties' inability to communicate
about issues regarding their children at a hearing on

17
Temporary Custody on September 14, and 24, 1990:
Q. Can you describe the communication
problems or the problems that the parties were
having that they presented to you?
A. I think there were a number of problems,
one had to do with decision making, of how they
would reach decisions. And part of my function
was essentially that of being mediator, trying to
resolve some conflicts, trying to reach decisions
with regard to the kids, particularly with
reference to visitation and schedules. The
parents seemingly had great difficulty doing this
together. And it was one of the reasons that I
offered my services.
Q. When you said "apparently", could you
describe the,problems the parties were having in
deciding issues concerning their children?
A. I could. I guess my preference, Mr.
Sinclair, is to speak in more general terms about
a process rather than giving specifics. If you
want specifics, I can do that.

Q. Can you describe the process?
A. Yes. One of the things that I was aware
of is that there is a lot of bitterness that
exists between those two people. There are
.ongoing conflicts that go back for years, there're
[sic] communication problems that go back for
years. We just have a different arena with which
to deal with some of the power struggles that
operate, some of the differences of opinion that
exist between them. And so, when it came to the
area of deadline with children, it wasn't terribly
surprising that they would have as much difficulty
reaching decisions there as maybe other areas of
their marriage. Their ideas with regard to child
rearing are somewhat different. There ideas with
regard to what is in the childrens' [sic] best
interests. Perhaps they're somewhat different.
And so, when they would typically sit down and try
to reach some decision about things, most often it
was a stalemate. Frequently, there was no

18
 resolution. So, there are ongoing areas of
conflict which is maintained.
(Transcript of Proceedings, dated September 14 and 24, 1990
[hereinafter "September Transcript"], page 7, lines 8-25; p.
8, 11. 1-21.)
The record shows thatthere has been little or no
improvement in the parties' ability to communicate and
cooperate since Dr. Backer testified in 1990. In fact, both
parties had to ~file Motions for clarification of the
December Order, requiring Judge Cox to issue yet another
order regarding visitation for the summer of 1995 (Order,
dated June 28, 1995). Further, the district court
specifically ruled, in its December Order, that the parties
had attempted a weekly visitation schedule like the schedule
set forth in the Order for a brief period of time during the
spring and summer of 1994, but they were unable to continue
and reverted to the pre-existing schedule (Dec. Order at 3,
11. 1-12). Even Terry, in suggesting a weekly visitation
schedule, anticipated disagreements between the parties and
suggested a strategy for the inevitable failure of the
parties to cooperate whereby Judge Levitt would act as a
mediator (Oct. Tr., Vol. II at 189, 1. 9; p. 190, 1. 5).
None of the parties' numerous attempts at mediation since
their divorce in 1989, have been successful. (a Statement
of Facts, page 2, paragraph 6.) Obviously, the parties'
communication skills will not enable them to sustain a
weekly visitation schedule without substantial conflict. As
witnesses for both parties and the parties themselves have
19
testified, this on-going conflict is contrary to the
children's best interests.
IV.

THE DISTRICT COURT ERRED BY MODIFYING THE FINAL DECREE

BECAUSE TERRY FILED NO AFFIDAVIT IN SUPPORT OF MODIFICATION,

AS REQUIRED BY MONT. CODE ANN. 5 40-4-220 (1993).

Even if the district court had had a motion for
modification before it, had applied the correct standard of
review, had made the requisite findings, and had found
modification to be in the children's best interests, the
modification would, nonetheless, be erroneous, since the
court did not have an affidavit before it setting forth the
necessary statutory criteria. The moving party to a motion
for modification of a custody decree must support his motion
with an affidavit, in accordance with Mont. Code Ann.
5 40-4-220 (1993), which states, in relevant part:
40-4-220. Affidavit practice. (1) A Party
seeking a temporary custody order or modification
of a custody decree shall submit, together with
his moving papers, an affidavit setting forth
facts supporting the requested order or
modification and shall give notice, together with
a copy of his affidavit, to other parties to the
proceeding, who may file opposing affidavits. The
court shall denv the motion unless it finds that
adeauate cause for hearina the motion is
established bv the affidavits, in which case it
shall set a date for hearing on an order to show
cause why the requested order or modification
should not be granted.
Mont. Code Ann. § 40-4-220 (1993) (emphasis added).
There was no motion for modification before the court
and, accordingly, neither party filed a supporting affidavit
20
in accordance with the Mont. Code Ann. § 40-4-220 (1993),
and the resulting December Order should, therefore, be
vacated. In In re the Marriaae of Allison, suora, the
Montana Supreme Court affirmed the ruling of the district
court vacating an order changing residential custody,
because it was not adequately supported by an affidavit as
required by Mont. Code Ann. § 40-4-220 (1993). Allison, at
-, 887 P.2d at 1227.
The Court held the moving party to a strict standard of
literal compliance with the statutory requirement set forth
at Mont. Code Ann. § 40-4-220 (1993), because the statute is
explicit and provides no exceptions. Id. at , 887 P.2d
at 1227. The Court rejected the respondent's argument that
the district court should have made an exception to the
affidavit requirement since he did not have adequate
information at the time he filed his motion for
modification, stating, "[t]he statute provides no exception
to the affidavit requirement, and we refuse to create one."
Id.
Nor should this Court carve out an exception in this
case. The fact that neither Terry nor Peggy actually filed
a motion for modification should not excuse the fact that
the district court modified the Final Decree without having
before it a sworn affidavit setting forth the statutory
criteria. It was improper for the district court to modify
the Final Decree without an initial finding that the

21
threshold statutory criteria had been met and set forth in

an affidavit. It was reversible error for the court to

modify the Final Decree when there was no affidavit setting
forth facts sufficient to establish grounds for modification

in accordance with Mont. Code Ann. § 40-4-220 (1993).

V.

THE DISTRICT COURT ERRED BY ORDERING THE CHILDREN TO ATTEND

THE CHURCH OF FATHER'S CHOICE WHILE THEY WERE IN MOTHER'S

CUSTODIAL CARE IN VIOLATION OF HER FIRST AMENDMENT RELIGIOUS
RIGHTS AND MONT. CODE ANN. 5 40-4-218 (1993).

Montana law states:

Except as otherwise agreed by the parties in
writing at the time of the custody decree, the
custodian may determine the child's upbringing,
including his education, health care, and
relisious training, unless the court after hearing
finds, upon motion by the noncustodial parent,
that in the absence of a specific limitation of
the custodian's authority, the child's physical
health would be endangered or his emotional
development significantly impaired.

Mont. Code Ann. § 40-4-218 (1993) .(emphasis added).

In this case, the District Court abused its discretion

when it ordered Peggy as the custodial parent to make sure

the children attend the First Presbyterian Church against

her wishes, solely because Terry desired the children to

attend his church (Oct. Tr., Vol II at 169, 11. 5-13).

This is an issue of first impression in Montana. This

Court in In re the Marriace of Gersovitz, 238 Mont. 506, 779

P.2d 883 (1989)held in a custody determination:

22
 [Clourts will not debate the merits of different
religions or show oreference to anv relicrious
faith.
Id. at 885 (emphasis added).
However, the case at bar is not an issue of the custody
based on religion. Rather, the district court held the
children must attend the church chosen solely by Terry (Nov.
Order; Dec. Order). It did so by ordering Peggy to assure
their children attend his church during her custodial
period. Id.
As this Court held in Gersovitz:
[T]he first Amendment guarantees religious liberty
and the right of parents to direct the religious
upbringing of their children.
Id. at 885.
Judge Cox's orders state as follows:
Terry shall return the boys to Peggy's house at
8:00 a.m. on Sunday on or after January 9, 1993
for the two five-week ski lessons, provided that
Peggy takes the boys to each evening service at
First Presbyterian Church for those Sundays.
Peggy shall give Terry reasonable advance written
notice of when said two five-week programs are to
be held;
Other than the said two five-week ski programs,
the boys shall attend Sunday School uninterrupted
from 9:00 a.m. to 10:00 a.m. at First Presbyterian
Church.
(Nov. Order at 2.)
Both parties shall ensure that the boys attend
Sunday School and/or Church Services at First
Presbyterian Church each Sunday that the custodial
parent is not out of town.
(Dec. Order at 12).
It is impossible to perceive how, knowing Peggy's
23
objection, the court ordered the children to attend the
First Presbyterian Church without violation of her custodial
rights. Rather, the court mandated Terry's desire to the
exclusion of Peggy's desire and her First Amendment legal
rights.
In this case, Terry requested the court to order Peggy
to make sure the children attend his church during her
custodial period (Oct. Tr., Vol. II, at 201, 11. l-2; p.
202, 11. 12-14; p. 222, 11. 6-19). Peggy objected to this
requirement because the time of church services or Sunday
school conflicted with her custodial plans (Oct. Tr., Vol.
I, at 77, 11. 11; p. 81, 1. 9). More importantly, Peggy did
not prefer the First Presbyterian Church as Terry and his
lawyer were both members of the church (Oct. Tr., Vol. II at
222, 11. 7-19). This made Peggy uncomfortable in attending
the church and affected her attitude about the values of the
church attendance for her children (Oct. Tr., Vol. I at 80,
1. 41; p. 81, 1. 9). Peggy requested each parent decide and
pursue the religious programming for their children when
they were in their care (Oct. Tr., Vol. I at 79, 11. 7-12).
Regional' courts have addressed this issue. In Munoz v.
Munoz, 79 Wash.2d 810, 489 P.2d 1133 (1971) the divorcing
parties could not agree regarding the religious training for
their two children. The matter went to trial. In the lower
court, the judge awarded sole control over the children's
religious training to the mother who was the physical

24
custodian. &at-, 489 P.2d at 1134.

The Supreme Court of Washington reversed and modified

the decree stating:

[Clourts are reluctant . . . to interfere with the
religious faith and training of children where the
conflicting religious preferences of the parents
are in no way detrimental to the welfare of the
child . . . constitutionally, American courts are
forbidden from interfering with religious freedoms
or to take steps preferring one religion over
another.

Id. at 1135.

In the case at bar, there was no testimony nor

allegation of jeopardy to the children's welfare requiring
mandatory attendance for the children at First Presbyterian

Church (Oct. Tr., Vol II at 169, 11. 5-13; p. 222, 11. 6-
10). Rather, the entire testimony focused on Terry's belief

such religious training met his desire to educate the

children on his religious beliefs (Oct. Tr., Vol. II at 169,

11. 5-13).

In this case, the district court's order for Peggy to

assure the attendance of her children in Terry's religious

training creates a preference for Terry's religion and
excludes Peggy's desires. Moreover, in the event Peggy

desires to provide no religious training to the children,

the district court's December Order precludes her religious
desire altogether.

In Ohio, the Court of Common Pleas, in the case of

Anael v. Angel, 140 N.E.2d 86 (Ohio C.P. 1956), held:

Generally speaking and apart from teachings that

25
 are subversive of morality and decency and some
others equally obnoxious, the courts have no
authority over that part of the child's training
which consists in religious discipline.
Id. at 87.
Terry has not alleged nor presented facts that Peggy's
desire to choose her own religion for the children
subversives their morality or decency (Oct. Tr., Vol II at
169, 11. 5-13). Rather, he merely desires to control Peggy
and her religious choices for their children (Oct. Tr., Vol.
II at 169, 11. 5-14; p. zoo, 1. 20; p. 201, 1. 7).
This Court must honor the Constitution.
Courts should adhere to a policy of impartiality
between religions and should intervene in this
sensitive and constitutionally protected area only
where there is a clear and affirmative showing of
harm to the children. Restrictions in this area
present the danger that court-imposed limitations
will unconstitutionally infringe upon a parent's
freedom of worship or be uerceived as having that
effect.
Khalsa v. Khalsa, 751 P.2d 715, 721 (N.M. Ct. App. 1988)
(emphasis added).
In this case, the district court may not have intended
to infringe on Peggy's freedom to worship or not, the
reality is that she perceives her rights have not been
upheld when she is ordered to educate her children in
Terry's faith.
For these reasons, Peggy asks this Court to hold that
the district court abused its discretion when it ordered her
to assure the children attend Terry's choice of religion.
Peggy asks this Court to order the district court to enforce
the law that grants a custodial parent the right to decide
religious training during their custodial period. Mont.
Code Ann. § 40-4-218(l) (1993).

CONCLUSION

The district court committed reversible error by: (1)
ruling on a motion that was not before the court; (2)
applying the wrong standard of review; (3) modifying the
decree without satisfying the statutory criteria set forth
at Mont. Code Ann. § 40-4-219 (1993); (4) modifying the
decree without satisfying the statutory mandate of Mont.
Code Ann. 5 40-4-220 (1993), requiring the filing of an
appropriate affidavit; and (5) ordering Peggy to assure her
children attend the church of only Terry's choice. For
these reasons, Peggy respectfully requests that the December
Order of the Eighteenth Judicial District Court be reversed
and remanded.

REQUEST FOR ORAL ARGUMENT

Petitioner/Appellant respectfully requests oral
argument before this Court.

RESPECTFULLY SUBMITTED this 4th day of November,,1995.

.qq&(? tQ+
le C. Quist j
K. Anderson i
eys for Petitioner/Appellant

27
 CERTIFICATE OF SERVICE

I hereby certify that on the 4th of November, 1995, a
true and correct copy of the above and foregoing document
was duly served upon counsel of record by depositing in the
United States mail, postage prepaid, addressed as follows:
Edmund I?. Sedivy, Jr.
SEDIVY, BENNETT & WHITE, P.C.
Attorneys at Law
P.O. BOX 1168
Bozeman, MT 59715

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