In Re the Marriage of Sarsfield

No. 83-140
IN THE SUPREME COURT OF THE STATE OF MONTANA
1383

IN RE THE MARRIAGE OF
LINDA H. SARSFIELD,
Petitioner and Appellant,
and

MICHAEL J. SARSFIELD,
Respondent and Respondent.

APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable Arnold Olsen, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Daniel R. Sweeney, Butte, Montana

For Respondent:
Deirdre Caughlan, Butte, Montana

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Submitted on Briefs: August 4, 1983
Decided: October 27, 1983

Filed: 8CT 2 :? El83
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4 4
- Clerk
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Mr. Justice L.C. Gulbrandson delivered the Opinion of the
Court.

Linda Sarsfield appeals from an order of the District
Court of the Second Judicial District, Silver Bow County, in
favor of her former husband, Michael Sarsfield, modifying a
prior child custody decree by transferring custody of the
former couple's minor children from Linda to Michael. For
the reasons stated below, we reverse the order of the trial
court and remand for additional proceedings consistent with
this opinion.
Michael and Linda were married in November, 1970, and
remained together for approximately nine years. Two
children were born of this union: Michael John, now twelve,
and Sarah, now four. Husband Michael apparantly left the
family home in 1979 shortly before Sarah's birth. Linda
filed a petition for dissolution of the marriage in
November, 1980, and sought permanent custody of the children
and child support. Michael agreed to the custody proposal,
and after negotiations between the parties over child
support and property were completed, the court issued a
final decree of dissolution on February 6, 1981. Linda
received custody, and Michael was allowed liberal visitation
rights. Michael moved into a mobile home located next door
to the family home. He remarried sometime later, and he and
his new wife had a baby girl in 1982.
The immediate dispute began nearly a year after the
entry of the divorce decree and custody order. On April 16,
1982, Michael filed a petition to modify the custody decree.
The petition alleged that the children had been left alone
on several occasions in the care of M.M., whom Michael
believed to be a child molester. The petition further
alleged that Linda and M.M. were planning to marry, and that
the homelife of the children seriously endangered their
physical, mental, moral, and emotional health. Michael
sought temporary and permanent custody of the children,
maintaining that the benefits of a transfer would outweigh
any disadvantages. He also filed a motion requesting that
the court conduct an in camera inspection of all records and
documents in possession of the Department of Social &

Rehabilitation Services (S.R.S.) relating to abuse of M.M.'s
daughter.
In her answer, Linda admitted her impending marriage
to M.M., but denied that the children were in any danger and
that a change in custody would be in their best interests.
She also filed a counter-petition, contending that Michael's
petition was vexatious and constituted harrassment.
Four separate hearings were held concerning the
proposed modification. The first, conducted May 7th, 1982,
focused primarily on the allegations concerning M.M. and the
supposed threat to the Sarsf ield children. Michael
testified in support of his petition, as did his new wife,
Penny. M.M. was called as a hostile witness, but the bulk
of testimony concerning M.M.'s sexual proclivities came from
M.M.'s former wife, who appeared voluntarily at Michael's
request. Dr. Janet Allison, a psychologist, also testified
on matters concering sexual abuse of children. Linda took
the stand to challenge the allegations of Michael and his
witnesses. Her minister, Dwayne Miller, testified on her
behalf. At the conclusion of the hearing, the court ordered
that the children be placed in Michael's custody for two
weeks, and then be returned to Linda for two weeks. The
court further ordered that public welfare authorities
investigate the home environments of Michael and Linda while
the children were in their respective custody. Finally, the
court ordered that M.M. was not to be allowed in the
presence of the Sarsfield children, and granted Michael's
motion for a court inspection of the S.R.S. file on M.M.'s
daughter .
The second hearing, held May 28th, dealt with the
alleged presence of M.M. in Linda's home in violation of the
court's May 7th order. Testimony was taken from Michael,
Linda, and members of their respective families, as well as
M.M. Upon conclusion of the hearing, Michael was granted
temporary custody of the children. The third hearing, held
June 18th, consisted primarily of testimony from Dave Evans,
the social worker who investigated Michael's and Linda's
home environments. Evidence was also taken from Michael and
his mother, Olive, as well as Linda and Pastor Miller, and
Ronald Kautzman, Michael John Sarsfield's principal at the
school he attended while under his mother's custody. A
separate colloquy was held with Michael John on September
28th in the presence of counsel, wherein the court
interviewed the boy concerning his current family life and
that of his sister Sarah.
The court entered its findings and conclusions
November 29th, 1982. Specifically, the court found that the
children's physical, mental, moral and emotional health were
seriously endangered by the association of M.M. with Linda
Sarsfield, because of M.M.'s status as a child molester, and
t h a t t h e r e was a p o t e n t i a l f o r f u t u r e harm i f t h e c h i l d r e n
remained i n L i n d a ' s c u s t o d y . The c o u r t f u r t h e r f o u n d t h a t
Linda's c o n d u c t was, under the circumstances, "grossly
negligent and irresponsible." The c o u r t c o n c l u d e d t h a t a
t r a n s f e r o f c u s t o d y t o M i c h a e l was i n t h e b e s t i n t e r e s t s o f

the children, i n t h a t t h e a . d v a n t a g e s of t r a n s f e r o u t w e i g h e d
the disadvantages. L i n d a was g r a n t e d v i s i t a t i o n r i g h t s . A

motion t o amend the f i n d i n g s and c o n c l u s i o n s was p r o m p t l y
filed. A h e a r i n g was h a d , and the motion to amend was
denied. N o t i c e o f a p p e a l was t i m e l y f i l e d .
L i n d a r a i s e s t h r e e i s s u e s on a p p e a l :

(1) Whether the trial court erred by failing to
dismiss Michael's p e t i t i o n f o r modification f o r f a i l u r e t o
meet t h e j u r i s d i c t i o n a l p r e r e q u i s i t e s o f S e c t i o n 40-4-219,
MCA?

(2) Whether, in light of the evidence and the
statutory requirements concerning changes in the
circumstances of t h e c h i l d r e n , t h e c o u r t e r r e d i n modifying

the o r i g i n a l custody decree?
(3) Whether t h e t r i a l c o u r t e r r e d i n sustaining an
objection to hearing testimony concerning allegations of
Michael's fitness to be granted custody, where the

a l l e g a t i o n s i n v o l v e d m a t t e r s o c c u r i n g b e f o r e and a f t e r t h e
o r i g i n a l custody decree?
Once a g a i n , t h i s C o u r t i s c a l l e d upon t o assume t h e

u n e n v i a b l e r o l e o f King Solomon and r e n d e r judgment b e t w e e n

p a r e n t s warring over t h e f u t u r e of t h e i r c h i l d r e n . This sad
and d i f f i c u l t t a s k i s made e v e n more v e x i n g b e c a u s e o f t h e
unique f a c t s of t h i s c a s e . Many o f t h e e v i d e n t i a r y m a t t e r s
r a i s e d by t h e p a r t i e s have n o t y e t b e e n a d d r e s s e d by t h e
appellate courts of sister states, especially those that,
like Montana, have adopted Uniform Marriage and Divorce Act
provisions respecting modification of child custody decrees.
Thus, we set out, to an extent, upon unchartered waters,
although our prior experience with considering modified
custody decrees does offer at least one star upon which we
may rely when plotting our course.
The polestar that guides our discretion in this
modification case is mapped out carefully in certain
provisions of Section 40-4-219, MCA:
"40-4-219. Modification. (1) The court
shall not modify a prior custody decree
unless it finds, upon the basis of facts
that have arisen since the prior decree
or that were unknown to the court at the
time of entry of the prior decree, that a
change has occurred in the circumstances
of the child or his custodian and that
the modification is necessary to serve
the best interest of the child. In
applying these standards the court shall
retain the custodian appointed pursuant
to the prior decree unless:

"(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."
Subsection (c) is a jurisdictional prerequisite to

determining whether modification of the prior decree is
in the best interests of the child. In other words, the

district court "is powerless to entertain .
considerations [of best interests and changes in
circumstances] if it has not found at the outset [that] the
child's welfare [is] 'endangered seriously' by the present
custody arrangement." Gianotti v. McCracken (1977), 174
Mont. 209, 214, 569 P.2d 929, 932. See also In re the
Custody of Dallenger (1977), 173 Mont. 530, 534, 568 P.2d
169, 171-2. This prerequisite codifies the basic policy
behind the modification statute: a presumption in favor of
custodial continuity. Dallln er supra. Thus, the party
-7z-I
seeking modification bears a heavy burden to prove the
circumstances necessary for modification. Groves v. Groves
(1977), 173 Mont. 291, 298-99, 567 P.2d 459, 463.
The sine qua non of appellant's case is a satisfactory
showing that the trial court proceeded without regard to the
evidence relied upon to support the change in custody. We
emphasize, however, that the findings and conclusions of the
court will not be disturbed if they are supported by
substantial, credible evidence. Sawyer-Adecor Intern., Inc.
v. Anglin (Mont. 1982), 646 P.2d 1194, 39 St.Rep. 1118.
Appellant's first issue for review goes to the trial
court's decision not to dismiss Michael's petition following
presentation of his case-in-chief at the first hearing. Her
principal objections are that there was no evidence pointing
to actual serious danger to the minor children during her
association with M.M., and that the testimony of M.M.'s
former wife concerning M.M.'s history of child sexual abuse
should not have been admitted into evidence.
We first consider the admissibility of the former
wife's testimony. M.M. was subpoened by Michael to testify
as a hostile witness, but he invoked his constitutional
privilege against self-incrimination and did not answer
questions concerning allegations that he had sexually abused
his daughter a few years prior to the immediate case. The
trial court protected him from any incriminating questions
posed by Michael's attorney. After he was dismissed,
however, M . M . ' s f o r m e r w i f e was c a l l e d a s a w i t n e s s . She

t e s t i f i e d t h a t h e r d a u g h t e r had b e e n removed from t h e f a m i l y

home b e c a u s e s h e had b e e n s e x u a l l y a b u s e d by M . M . She had

n e v e r w i t n e s s e d a n y i n c i d e n t s o f a b u s e , b u t h e r h u s b a n d had
admitted the incidents t o her. M.M. indicated t o h i s wife

that, f o r a t l e a s t s i x y e a r s p r i o r t o h i s a d m i s s i o n , he had

" u s e d v a r i o u s items, h i s h a n d s , p o k e r s , v a r i o u s i n s t r u m e n t s

of t h a t s o r t t o induce her [ t h e d a u g h t e r ] i n v a r i o u s ways"

on several occasions. No criminal charges were filed
a g a i n s t M.M., but the d a u g h t e r was removed by a u t h o r i t i e s

and underwent treatment for emotional problems connected

with t h e abuse.

After her r e t u r n from t h e r a p y , M.M. admitted to his

wife that he had s e x u a l l y molested the g i r l again. The

daughter was removed to a childrens' home where she

c o n t i n u e s t o undergo therapy. According t o t h e former w i f e ,
M.M. is n o t allowed t o s e e t h e g i r l w i t h o u t o t h e r s p r e s e n t .

He admitted h i s problem t o c o u n s e l o r s , but has apparently
n o t committed any d e v i a n t a c t s s i n c e t h e l a s t i n c i d e n t w i t h

h i s daughter.

Linda's attorney objected to the entire line of
t e s t i m o n y on g r o u n d s t h a t i t was b a s e d s o l e l y on p r i v i l e g e d
communications between M.M. and h i s f o r m e r w i f e d u r i n g t h e

course of their marriage. In the alternative, counsel
objected to the testimony as inadmissible hearsay. The

t r i a l court overuled the objection. W f i n d no e r r o r i n t h e
e

c o u r t ' s r u l ing.
The privilege against examination concerning

inter-spousal communications is set forth in Section
26-1-802, MCA:
 "Spousal p r i v i l e g e . A husband c a n n o t b e
examined f o r o r a g a i n s t h i s w i f e w i t h o u t
her consent o r a wife f o r o r against her
husband w i t h o u t h i s c o n s e n t ; nor c a n
e i t h e r during t h e marriage o r af terward,
be, without t h e consent of t h e o t h e r ,
e x a m i n e d a s t o a n y c o m m u n i c a t i o n made by
one t o t h e o t h e r d u r i n g t h e marriage; b u t
t h i s exception does n o t apply t o a c i v i l
a c t i o n o r p r o c e e d i n g by o n e a g a i n s t t h e
other or t o a criminal action or
p r o c e e d i n g f o r a c r i m e c o m m i t t e d by o n e
against the other."

Michael argues that we have generally abrogated this

p r i v i l e g e , c i t i n g Matter of J . H . (Mont. 1 9 8 2 ) , 640 P.2d 445,

39 S t . R e p . 267. Appellant notes correctly, however, that

M a t t e r -f - .
o-J . H was concerned solely with the spousal

p r i v i l e g e as it p e r t a i n s to parties to an action, and is
t h e r e f o r e n o t a p p l i c a b l e t o r e v e a l i n g communications between

non-parties, a s is t h e s i t u a t i o n is i n t h e c a s e b e f o r e us.

Nevertheless, we think appellant is focusing on an

i r r e l e v a n t a s p e c t o f t h e p r i v i l e g e when a s k i n g t h i s C o u r t t o

throw o u t t h e evidence.

W e have p r e v i o u s l y recognized t h a t t h e purpose of t h e

s p o u s a l p r i v i l e g e i s t o p r o t e c t t h e s a n c t i t y of t h e m a r r i a g e

and home. Matter of J.H., supra, 640 P.2d at 447, 39

St.Rep. a t 269; S t a t e v. Taylor ( 1 9 7 3 ) , 1 6 3 Mont. 106, 119,

5 1 5 P.2d 6 9 5 , 703. This privilege, however, is s u b j e c t t o

t h e maxim t h a t , when t h e r e a s o n f o r a r u l e c e a s e s t o e x i s t ,

s o then should t h e r u l e . S e e S e c t i o n 1-3-201, MCA. Thus,

i n Matter of J.H., we held that once a f a m i l y member has

b e e n s e x u a l l y a b u s e d , t h e s a n c t i t y o f t h e home a n d t h e r e f o r e

the reason for the r u l e a r e simultaneously destroyed, 640

P.2d a t 447, 39 S t . R e p . at 269, and that a mother could

t e s t i f y about her husband's sexual abuse of t h e i r son i n a

c h i l d neglect proceeding, w h e r e t h e f a t h e r was a p a r t y t o
the action. In the immediate case, the sexual abuse of
M.M. 's daughter decidedly contributed to the destruction of
the family home and M.M.'s marriage. Under the
circumstances, we believe the privilege concerning
communications about this abuse died with the marriage, and
we are disinclined to invoke the privilege even though M.M.
and his former wife are not parties to this custody battle.
Additionally, Professor Wigmore has criticized the
spousal privilege in situations involving non-parties on
other grounds:
"[Tlhe exclusion of a wife on the ground
that her testimony may reveal his
misconduct, and thus 'tend' to charge [or
incriminate] him, rests on the
assumption, false in fact, that her
testimony on the stand would in any sense
be a revelation, an unsealing of that
which was secret. Nothing prevents her
from revealing her knowledge out of
court; in most instances she has in fact
done so. It would be mere hypocrisy to
sanction her silence on the stand on the
pretext that the husband was thus really
safeguarded from her disclosure."
8 J. Wigmore, Evidence Section 2234 (NcNaughton rev. 1961).
Clearly, the subject of the supposedly privileged
communications had been revealed to welfare authorities and,
as it turned out later, to M.M.'s "counselor," Pastor
Miller. We agree with the trial court that the testimony of
M.M.'s wife was not protected by the spousal privilege under
these facts.
Neither the trial court nor the parties have fully
explored appellant's suggestion that the testimony was
inadmissible as hearsay, whether or not the spousal
privilege applied. We find that the evidence would be
admissible as a statement against interest, an exception to
the hearsay rule. See Rule 804(b)(3), Mont.R.Evid. Hearsay
testimony admitted under the enumerated subsections of Rule
804 cannot be admitted unless the declarant is "unavailable"
for trial. Exemption from testifying on grounds of
privilege is one form of "unavailability." Rule 804 (a)(1),
Mont.R.Evid. A witness' claim of the privilege against
self-incrimination is generally regarded as a sufficient
ground of unavailability to warrant reception as a statement
against interest of a prior statement or communication made
by him. See generally Annot., 43 ALR3d 1413 (1972). In
this case, M.M.'s communications to his wife were "so far
tended to subject him to ... criminal liability . . . or
to make him an object of hatred, ridicule, or disgrace, that
a reasonable man in his position would not have made the
statement[s] unless he believed [them] to be true." See
Rule 804(b)(3), Mont.R.Evid. There being circumstantial
guarantees of trustworthiness, we conclude that the
communications were admissible.
We next examine appellant's argument that Michael and
his witnesses presented no evidence of an actual danger to
the children while in the wife's custody. Indeed, there was
nothing to suggest that either of the children, especially
the girl Sarah, who was probably the most susceptible to
harm, had ever been physically molested. Nevertheless, we
recognize that child abuse presents a special problem with
respect to proof of danger. Specifically, we must decide
whether or not the probability of danger is great enough to
give the trial court jurisdiction over the proposed
modification. See Section 40-4-219(1)(c). No other
appellate court has dealt with this particular problem, so
we must rely solely on a reasonable construction of the
existing statute and the available evidence.
During the initial hearing, the trial court heard
evidence concerning M.M.'s record as a sexual molester. In
addition, Dr. Allison, a psychologist qualified to discuss
child sexual abuse, testified concerning the causes of this
deviant behavior and treatment methods. She testified that
child molesters cannot be cured, but can only be controlled.
In short, the molester must be carefully monitored,
especially in the sensitive situation when children are
present. Although Dr. Allison had not examined M.M.
personally, she indicated that if a previous offender like
M.M. were placed in a family environment like Linda's, the
risk of reoccuring sexual abuse, especially of the young
girl, would be "rather high." She reiterated this concern
later in her testimony, believing that there would be a

substantial risk involved in placing an admitted child
molester in a family situation. She also noted that Montana
does not have a comprehensive treatment program for
offenders.
Given the testimony described above, we cannot say
that the trial court erred by not dismissing the petition
after presentation of Michael's case-in-chief. There was
substantial evidence before the court to suggest that a
potentially serious situation existed with respect to M.M.'s
association with Linda and her children. Appellant insists,
however, that without proof of "actual danger ," the
jurisdictional pre-requisites of Section 40-4-219(1)(c) have
not been met. We find it difficult to accept this line of
reasoning under these facts. Appellant is surely not
maintaining that until one of the Sarsfield children is
sexually assaulted, a trial court cannot consider altering
the terms of an initial custody decree. Other courts
interpreting statutory provisions similar to Section
40-4-219 (1) (c) have concluded that, even in less serious
situations than sexual abuse, the potential for or
probability of serious harim is sufficient to invoke the
trial court ' s jurisdiction to contemplate modification of a
custody decree. See e.g., ,
;n re Marriage of Padiak (1981),
at@
101 111.App. 3d, 427 NE,
.., 1372 (testimony by psychiatrist
that child's mental, moral and emotional health was
potentially endangered by custodial parent's social behavior
held sufficient to justify consideration of modification).
In summary, we will not interpret the provisions of
the modification statute so narrowly as to prevent trial
courts from assuming jurisdiction over modification
petitions where substantial, credible evidence of a
potential danger is presented by a petitioner during the
case-in-chief. Such is the case here, and the trial judge
did not abuse his discretion by failing to dismiss the
complaint.
With respect to the second issue for review, appellant
must again point to a lack of substantial, credible evidence
to warrant further consideration of the proposed
modification. We conclude that, in addition to testimony
presented by Michael and his witnesses at the first hearing,
subsequent testimony and information brought to the
attention of the court provided substantial, credible
evidence of a change in circumstances so as to warrant
consideration of modifying the prior decree. At the May 7th
hearing, Linda testified that she knew of the allegations
about M.M. nearly two months before Michael filed his
petition, and that she was aware that M.M. was being
c o u n s e l e d a b o u t h i s p r o b l e m by h i s m i n i s t e r , Dwayne M i l l e r .
A t t h e May 2 8 t h h e a r i n g , t h e c o u r t h e a r d t e s t i m o n y t h a t M.M.

had been i n t h e p r e s e n c e o f t h e S a r s f i e l d c h i l d r e n on a t
least one occasion immediately following the May 7th
hearing, contrary t o the court's order t h a t h e s t a y away

from t h e c h i l d r e n . F i n a l l y , a t t h e June 28th hearing, the
court indicated that it had conducted an in camera

i n s p e c t i o n of t h e S.R.S. f i l e on M . M . ' s daughter, and t h e n
entered portions of the file into evidence for further
consideration. In addition, t h e c o u r t heard testimony from
O l i v e S a r s f i e l d , M i c h a e l ' s m o t h e r , t h a t L i n d a had t h r e a t e n e d
not to allow her to see the grandchildren again if she
( L i n d a ) was s u c c e s s f u l i n t h e c u s t o d y b a t t l e , and t h a t O l i v e

was " i n l e a g u e w i t h t h e d e v i l ' ' b e c a u s e of h e r s u p p o r t f o r
Michael's petition.
To counter this evidence, appellant points to her

statements that the impending marriage t o M.M. had been
p o s t p o n e d , and e v e n t u a l l y t h a t t h e r e l a t i o n s h i p was s e v e r e d

because of her overriding interest i n the children. She
f u r t h e r t e s t i f i e d t h a t s h e had a s s u r a n c e s f r o m P a s t o r M i l l e r

t h a t M.M. was "O.K.," and t h a t t h e t e s t i m o n y o f M . M . ' s wife
was m o t i v a t e d by jealousy because she wanted M.M. back.
Linda also relies on the remarks of Pastor Miller, who
contended t h a t M . M . ' s r e l i g i o u s c o n v e r s i o n had b r o u g h t him
down t h e p a t h t o s o l v i n g h i s s e x u a l p r o b l e m s , and t h a t a s a
minister and a counselor to M.M., he would not have
s a n c t i o n e d t h e i m p e n d i n g m a r r i a g e had h e n o t b e e n c o n v i n c e d
t h a t M.M.'s p r o b l e m s had b e e n s o l v e d . Linda a l s o d i s p u t e s
t h e a l l e g a t i o n t h a t M.M. was i n t h e p r e s e n c e o f h e r c h i l d r e n

a f t e r t h e May 7 t h h e a r i n g , a s s e v e r a l members o f h e r f a m i l y

t e s t i f i e d t h a t t h e c h i l d r e n w e r e n o t i n t h e home when M.M.

was there. Linda also renews earlier arguments that the

children were never physically harmed by M.M., and that

Michael, who l i v e d next door f o r much of the t i m e of the

h e a r i n g , was i n a p o s i t i o n t o d e a l w i t h a n y p r o b l e m s i f t h e y

arose.

The f i n d i n g s o f a t r i a l j u d g e w i l l n o t b e d i s t u r b e d o n

appeal where they are based on substantial though

c o n f l i c t i n g evidence, unless t h e r e is a c l e a r preponderance

of evidence against such findings. In re Marriage of

Schwartz (Mont. 1979), 602 P.2d 175, 176-77, 36 St.Rep.

1980, 1981. I t is n o t t h e f u n c t i o n of t h i s C o u r t t o r e s o l v e

c o n f l i c t s i n the evidence. Weyler v. Kaufnan ( 1 9 8 1 ) , 196

Mont. 1 3 2 , 1 3 6 , 638 P.2d 3 9 3 , 396. The t r i a l j u d g e h a s t h e

s u p e r i o r a d v a n t a g e o f o b s e r v i n g t h e demeanor a n d c r e d i b i l i t y

of the witnesses, Brooks v. Brooks (1976), 1 7 1 Mont. 132,

1 3 4 , 556 P.2d 901, 902, a n d we w i l l n o t d i s p u t e h i s o r h e r

particular r e s o l u t i o n of conflicting statements unless the

evidence c l e a r l y preponderates a g a i n s t t h e findings. Here,

many o f a p p e l l a n t ' s a r g u m e n t s i n v o l v e c o n f l i c t i n g e v i d e n c e .

The trial court had substantial evidence before it to

c o n c l u d e t h a t M.M. w a s a p o t e n t i a l t h r e a t t o the s a f e t y of

the Sarsfield children, and had apparantly defied the

court's May 7th order to stay away from the children.

Obviously, the trial judge was not convinced by the

t e s t i m o n y o f L i n d a , members o f h e r f a m i l y , o r P a s t o r M i l l e r

(who was n o t q u a l i f i e d a s a n e x p e r t o n s e x u a l a b u s e ) , a n d we

refuse to assign a different weight to their collective
testimony .
I n summary, we find no error in the trial court's

findings with respect to the potential danger raised by
M.M.'s a s s o c i a t i o n w i t h L i n d a and L i n d a ' s c o n d u c t o n c e s h e
knew o r had r e a s o n t o know of M.M.'s past. W note
e that
during t h e June 18th proceedings, t h e r e was t e s t i m o n y t h a t
M.M. had left the community and therefore inferentially
p o s e d no t h r e a t t o t h e S a r s f i e l d children. Nevertheless,

d u r i n g t h e September 28th c o l l o q u y , Michael John S a r s f i e l d
indicated that he usually saw M.M. at the same church

a t t e n d e d by L i n d a , Michael John, and S a r a h when L i n d a h a d
visitation rights, and t h a t L i n d a would speak t o M.M. at
that time. The c o u r t c o u l d t h u s r e a s o n a b l y c o n c l u d e t h a t
L i n d a ' s a s s o c i a t i o n w i t h M.M. had n o t e n d e d , even i f their

former m a r r i a g e p l a n s were i n limbo.
Having concluded that the potential danger to the

c h i l d r e n was a s u f f i c i e n t c h a n g e i n c i r c u m s t a n c e s t o j u s t i f y
m o d i f y i n g t h e p r i o r d e c r e e , t h e t r i a l c o u r t was s t i l l bound
to consider the best interests of the children before
d e c i d i n g t h a t t r a n s f e r o f c u s t o d y t o M i c h a e l was m a n d a t e d .
Appellant's third i s s u e goes to the u n w i l l i n g n e s s of the
t r i a l court t o hear evidence concerning a l l e g a t i o n s about
M i c h a e l ' s b e h a v i o r b e f o r e t h e i n i t i a l d e c r e e was e n t e r e d i n
1 9 8 1 and s h o r t l y t h e r e a f t e r . W e conclude t h a t t h e f a i l u r e

t o a l l o w t h i s e v i d e n c e i n t o t h e r e c o r d was r e v e r s i b l e e r r o r .
A l t h o u g h t h e s o c i a l w o r k e r , Dave E v a n s , t e s t i f i e d t h a t

Michael's new home life was suitable for raising the
children, and although Michael John indicated during the
S e p t e m b e r 2 8 t h c o l l o q u y t h a t h e and S a r a h w e r e h a p p y l i v i n g
with t h e i r father, h i s new w i f e , a n d t h e i r newborn c h i l d ,
Linda attempted to put in evidence concerning Michael's
moral behavior prior to and shortly after the dissolution of
their marriage. Linda did testify at the early hearing that
Michael did not relate well to the children, and had
"deserted" the family in 1979, but the evidentiary problem

arose during the June 18th hearing when the court sustained
an objection to having Linda elaborate on the question of
Michael's moral conduct and fitness to raise children.
We disagree with respondent that Linda's argument is a
twelfth-hour attempt to convince the court that modification
of the decree was unnecessary. In her answer to Michael's
petition, Linda generally denied several averments made by
Michael, including the ones that he could provide "a safe

and stable home for the children," and that at the very
least, temporary custody was "in the best interests of the

children." By denying these averments, Linda put into issue
Michael's fitness as a custodial parent, and her testimony
on this issue should not have been summarily refused.
Section 40-4-219(1) specifically contemplates that:
"[tlhe court shall not modify a prior
custody decree unless it finds, upon the
basis of facts that have arisen since the
prior decree or that were unknown at the
time of entry of the prior decree, that a
change has occured in the circumstances
of the child or his custodian and that
the modification is necessary to serve
the best interest of the child."
(emphasis added)
Clearly, the statute requires the trial court to consider
post-decree facts, as well as pre-decree facts unknown to
the trial court at the time the decree was entered, in
determining both the "change in circumstances" and the "best
interests" requirements. Respondent Michael argues that,
because there was no issue as to Michael's fitness during
consideration of the first decree, the trial court is

automatically precluded from p r o b i n g t h a t i s s u e i n a l a t e r

modification hearing. This is inconsistent with a fair

r e a d i n g of t h e s t a t u t e and o u r d e c i s i o n i n M a t t e r o f C u s t o d y

of R.L.S. (Mont. 1981), 632 P.2d 703, 38 St.Rep. 1328,

wherein w e held that i t was reversible error for a trial

c o u r t t o l i m i t evidence i n a custody d i s p u t e t o post-decree

facts.

Whether t h e r e was no h e a r i n g prior to entry of the

initial decree, as in C u s t o d y o f R.L.S., or whether the

f i t n e s s of t h e p a r e n t s e e k i n g m o d i f i c a t i o n was n o t a t i s s u e

p r i o r t o e n t r y of t h e i n i t i a l d e c r e e b e c a u s e t h a t p a r e n t d i d

n o t c h a l l e n g e h i s s p o u s e ' s demand f o r c u s t o d y , t h e primary

concern of the trial court is still the welfare of the

child. The court cannot satisfy this concern if it

consciously or unconsciously avoids f a c t s about t h e parent

seeking m o d i f i c a t i o n t h a t took p l a c e p r i o r t o e n t r y of the

initial decree. Contrary to the thrust of Michael's

argument, Linda's testimony concerning his conduct or

behavior prior to entry of the first decree may involve

"facts . . . unknown to the court at the t i m e of entry"

within the scope of S e c t i o n 40-4-219, and this testimony

s h o u l d n o t have been p r o h i b i t e d . S e e a l s o Boggs v. Boggs

(1978), 65 Ill.App.3d 965, 383 N.E.2d 9; In re Rankin

( 1 9 6 9 ) , 76 Wash.2d 5 3 3 , 458 P.2d 176.

Accordingly, the judgment of the district court is

r e v e r s e d and t h e c a s e i s remanded f o r f u r t h e r p r o c e e d i n g s .

Upon remand, t h e t r i a l c o u r t s h a l l take testimony r e l a t i n g

t o facts or allegations t h a t have arisen since the prior

decree or that were unknown to the court a t the t i m e of
entry of that decree concerning Michael's fitness to obtain
custody. The trial court shall decide whether its findings
with respect to Michael's fitness, considered in conjunction
with its earlier findings concerning the changes in
circumstances, still warrant modification of the initial
decree by placing the Sarsfield children in Michael's
custody.

We concur:

- -.
Chief Justice