NO. 94-433
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
IN RE THE MARRIAGE OF
CINDY ANN ANSELL, f/k/a
CINDY ANN ELSER,
Petitioner and Appellant,
and
DAN ROY ELSER,
Respondent and Respondent.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and for the County of Ravalli,
The Honorable Jeffrey H. Langton, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Howard C. Greenwood, Hamilton, Montana
For Respondent:
Philip J. O'Connell, O'Connell, Beers & Alterowitz,
Missoula, Montana
Submitted on Briefs: February 16, 1995
Decided.;~. May 23, 1995
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
Cindy Ann Ansell, formerly known as Cindy Ann Elser (Cindy),
appeals from the findings, conclusions, and order of the Twenty-
First Judicial District Court, Ravalli County, denying her motion
for an order permitting her to remove her minor children to a
permanent residence outside of Montana and granting Dan Roy Elser's
(Dan) motion to appoint him primary residential custodian if Cindy
proceeds with her relocation. We affirm.
The District Court dissolved Cindy's and Dan's marriage via a
final decree of dissolution dated November 17, 1993. Pursuant to
the terms of a separation agreement incorporated into the final
decree, Cindy and Dan were awarded joint custody of Amber and
Jaimie, their two minor daughters; Cindy was designated the
children's primary residential custodian. Dan was granted
visitation rights on alternating weekends and major holidays,
residential custody for two months in the winter, and any other
visitation agreed to by Cindy and Dan which would not interfere
with the children's education and social activities. The
separation agreement also provided that "[nleither party shall
remove any of the minor children to a permanent residence outside
the State of Montana without the other party's prior written
consent or prior approval of a court having proper jurisdiction
over the minor children . .'I
Cindy resided in Hamilton with the children after the
dissolution; Dan maintained a residence in Corvallis. Cindy, a
radiology assistant, desired to continue her education and applied
2
for admission to the radiology technician program at St. Patrick's
Hospital in Missoula. After St. Patrick's denied her application,
Cindy notified Dan of her intention to relocate with the children
to Kansas and enroll in the University of Kansas' radiology
technician program. Dan refused to consent to the relocation.
Cindy moved the District Court for an order permitting her to
remove the children to a permanent residence outside of Montana.
She included a proposed visitation modification whereby Dan would
be allowed to have his two-month custody of the girls during the
summer instead of the winter and visitation on alternating major
holidays. Dan objected to the children's relocation and moved the
court to designate him as their primary residential custodian in
the event Cindy relocated out of state. The District Court denied
Cindy's motion and ordered that Dan would become the children's
primary residential custodian in the event Cindy left Montana.
Cindy appeals.
Did the District Court abuse its discretion in granting
Dan's motion to modify custody?
At the outset, we note the parties' disagreement over which
statutory standards were applicable to their respective, and each
other's, motions in the District Court and clarify which statutes
apply to this case. Dan's motion sought modification of the
existing custody arrangement via his appointment as the children's
primary physical custodian in the event Cindy moved out of state.
Shortly after the District Court's grant of that motion, we adopted
a new standard for evaluating motions in the joint custody context
which seek a significant change in physical custody without regard
3
to whether a change in the formal joint custody designation is
sought:
[M]otion[s] or petition [sl to modify child custody
provisions in a dissolution decree which have the effect
of substantially changing the primary residence of the
parties' children, even though the formal designation of
"joint custody" is retained, are to be construed as
motions or petitions to terminate joint custody and must
satisfy the jurisdictional requirements set forth in §
40-4-219, MCA.
In re Marriage of Johnson (19941, 266 Mont. 158, 166, 879 P.2d 689,
694. It is a general rule that an appellate court must apply the
law in effect at the time it renders its decision. Haines Pipeline
v. MPC (1991), 251 Mont. 422, 433, 830 P.2d 1230, 1238.
Dan's motion, if successful, would reverse the children's
physical custody arrangements by appointing him primary physical
custodian of the children; it clearly would have the effect of
substantially changing the children's physical custody. Pursuant
to Marriaqe of Johnson, therefore, Dan's motion must be construed
as a motion to terminate joint custody to which 5 40-4-219, MCA,
applies. In order to modify custody under that statute, a court
must determine that the circumstances of the child or custodian
have changed since entry of the decree, one of the factors
contained in subsection (1) (a) through (f), exists, and the best
interests of the child require modification; only then may the
court exercise its discretion to modify custody. Section 40-4-
219(l), MCA; In re Marriage of Allison (Mont. 1994), 887 P.2d 1217,
1223, 51 St.Rep. 1502, 1506.
Cindy's motion, on the other hand, sought to change the
children's residence without significantly modifying custody
4
arrangements. Under § 40-6-231; MCA, "[al parent entitled to the
custody of a child has a right to change his residence, subject to
the power of the proper court to restrain a removal which would
prejudice the rights or welfare of the child." We previously have
determined that the "prejudice" standard in 5 40-6-231, MCA, is
essentially the best interest standard in reverse. See In re
Marriage of Bergner (1986), 222 Mont. 305, 310-11, 722 P.2d 1141,
1145. In other words, a "prejudice" determination under § 40-6-
231, MCA, is the legal equivalent of a "not in the child's best
interest" determination. As a result, and contrary to Cindy's
argument that it was necessary for the District Court to make a
specific determination of prejudice before denying her motion, the
best interest standard applies to Cindy's motion to change the
children's residence to Kansas.
As our discussion clarifies, the District Court's ruling on
both motions ultimately rested on application of the best interest
of the children standard. As a result, if the court did not err in
granting Dan's motion under 5 40-4-219, MCA, which includes the
best interest standard, it did not err in denying Cindy's motion
under the best interest standard.
In addressing Dan's motion to modify, the District Court
specifically found that Cindy's proposed move constituted a change
in the children's circumstances which had arisen after the
dissolution decree was entered. Cindy does not challenge this 5
40-4-219(l), MCA, finding.
The court also found that Cindy's intent to change the
5
children's residence to Kansas met the factor set forth in 5 40-4-
219(l) (f), MCA. Cindy contends that the existence of the
subsection (I) (f) factor is insufficient. Relying on In re
Marriage of Miller (1992), 251 Mont. 300, 825 P.2d 189, she argues
that the District Court could not grant Dan's motion to modify
without first determining under 5 40-4-219(l) (c), MCA, that the
children's environment in her physical custody seriously endangered
them. Neither the statute nor Marriaqe of Miller supports Cindy's
argument.
As set forth above, the statute is clear that the court need
find the existence of only one of the factors listed in § 40-4-
21911) (a)-(f), MCA. Moreover, the motion to modify custody in
Marriacre of Miller was brought pursuant to 5 40-4-219(l) (c), MCA,
which requires a determination that the present environment
seriously endangers the child's physical, mental, moral, or
emotional health. Marriase of Miller, 825 P.2d at 192. Indeed,
subsection (1) (c) forms the basis for many motions to modify
custody. See, e.q., In re Marriage of Gallagher 119941, 266 Mont.
358, 361, 880 P.2d 1303, 1306; In re Marriage of Morazan (19891,
237 Mont. 294, 298, 772 P.2d 872, 874. Here, however, the District
Court found the existence of the § 40-4-219(l) (f), MCA, factor.
Nothing in the statute or Marriage of Miller requires more.
The District Court having properly found two of the three
§ 40-4-219, MCA, criteria, we need only review its findings that
the move to Kansas is not in the children's best interests. Cindy
argues that the record supports findings that spending time with
6
the children was not a priority for Dan and that he could have
spent much more time with the children. However, her argument
ignores the applicable standards of review.
We review a district court's findings relating to custody
modification to determine whether those findings are clearly
erroneous. Marriaqe of Johnson, 879 P.2d at 694 (citation
omitted). Findings are clearly erroneous if they are not supported
by substantial evidence, the court misapprehends the effect of the
evidence, or this Court's review of the record convinces it that a
mistake has been made. Marriaae of Johnson, 879 P.2d at 694
(citation omitted). We will reverse a court‘s decision to modify
custody or visitation only where an abuse of discretion is clearly
demonstrated. In re Marriage of Hunt (1994), 264 Mont. 159, 164,
870 P.Zd 720, 723.
The District Court first found that the high cost of travel
and the impossibility of scheduling a time which coordinated with
the children's school schedule and Dan's work schedule would
deprive Dan of meaningful custody and visitation. It also found
that Dan was committed to being an active parent who was involved
with his children as much as possible and that Cindy agreed with
Dan that it was important for the children to visit with Dan.
Based on these findings, the District Court ultimately found that
moving to Kansas was not in the children's best interest.
Ample evidence supports the court's finding that the
children's school schedule and Dan's work schedule would make
scheduling Dan's two-month extended visitation during the summer
7
is committed to being an active'parent. The record reflects both
Dan's belief in the importance of spending as much time as possible
with his children and that he visited them nearly every other
weekend and as often as permitted by his work schedule.
Furthermore, Dan's concern about the children's welfare was
supported by the fact that, although he has experienced financial
difficulty, he continued to make child support payments and, at
Cindy's request, paid the entire amount owed to the children's day
care and school so they could continue attending.
We conclude that substantial evidence supports the District
Court's finding that the proposed relocation to Kansas was not in
the children's best interest. The court did not misapprehend the
effect of the evidence and we are not left with the firm conviction
that a mistake was made. We hold, therefore, that the District
Court did not abuse its discretion in granting Dan's motion to
modify custody and appoint him primary custodian if Cindy moved to
a permanent residence outside of Montana.
Because of our holding, we need not address Cindy's argument
relating to attorney fees.
Affirmed.
(cu-@?x
/ Chief Justice
10
May 23, 1995
rebv certifv that the folIowine: certified