NO. 94-574
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
IN RE THE MARRIAGE OF
JULIE RIES KESSLER,
Petitioner and Appellant,
and
ARLEN JOHN KESSLER,
Respondent and Respondent.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Charles E. Petaja, Attorney at Law,
Helena, Montana
For Respondent:
Mark P. Yeshe, Attorney at Law,
Helena, Montana
Submitted on Briefs: July 27, 1995
Decided: September 8, 1995
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
The respondent, Arlen John Kessler, filed a motion in the
District Court for the First Judicial District in Lewis and Clark
County in which he asked the court to reallocate physical custody
of his and petitioner Julie Ries Kessler's children, and for a
restraining order prohibiting Julie from removing the children from
Montana. The court granted Arlen's motion and Julie appeals. We
affirm the order of the District Court.
Although a number of issues are raised in Julie's brief, we
conclude that the dispositive issue on appeal is whether the
District Court erred when it found that it was in the children's
best interests that the prior custody arrangement should be
modified and residential custody awarded to Arlen during the school
year.
FACTUAL BACKGROUND
Julie Ries Kessler and Arlen John Kessler were married on
June 20, 1981. During the course of their marriage, Julie and
Arlen had two children, Jennifer Lynn, who was born on October 16,
1984, and Nicholas John, who was born on December 19, 1987. On
July 11, 1990, Julie and Arlen filed a petition for dissolution.
In that petition, Julie and Arlen agreed that it was in the best
interests of their children that they share joint custody of
Jennifer and Nicholas in accordance with the marital and property
settlement agreement drafted by Julie and Arlen.
The agreement provided that Jennifer and Nicholas would reside
with one parent for two weeks, and then reside with the other
parent for two weeks. The non-residential parent would be
permitted visitation on two nights per week. The agreement also
provided that Julie and Arlen would carefully monitor the custody
schedule in order to ensure that it remained in Jennifer's and
Nicholas's best interests. In the event of problems with the
residential arrangement, the agreement provided that Julie and
Arlen would seek professional consultation and renegotiate a new
arrangement. The final decree of dissolution incorporated the
terms of the agreement.
Sometime after the dissolution, Julie's job was terminated.
To qualify herself for new employment, Julie enrolled in the
University of Washington's masters degree program for social work.
Thereafter, Julie notified Arlen in writing that she, Jennifer, and
Nicholas were moving to Bothell, Washington, a Seattle suburb.
Arlen opposed the move and ultimately filed a motion for
reallocation of physical custody and for restraining order in which
he asked the District Court to award him primary residential
custody of Jennifer and Nicholas and restrain Julie from removing
the children from Montana until the court could make a custody
determination. In the motion, Arlen specified that since the
dissolution the shared custody arrangement had worked well for
Jennifer and Nicholas, and that he did not believe the move to
Bothell would serve the children's best interests because they had
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lived their entire lives in Helena, had attended Helena schools,
have relatives in Helena, and get along very well with Arlen's new
wife, Janet. Arlen also stated in the motion that he had a close
relationship with Jennifer and Nicholas and that their best
interests would be served if they lived with him in Helena and
maintained visitation with Julie "at all reasonable opportunities."
Julie filed an affidavit and memorandum in opposition to
Arlen's motion in which she stated that both Arlen and she loved
their children and were good parents, that they had shared physical
custody, but that she was the primary residential custodian because
she had the children more often than Arlen had them. Julie also
stated that the move to Bothell would serve Jennifer's and
Nicholas's best interests because they would not have to adjust to
living with their stepmother and her twelve-year-old daughter.
The District Court conducted a hearing at which evidence in
support of and in opposition to Arlen's motion was considered. Tom
Walstad, a psychotherapist who performed a custody evaluation,
testified that Julie and Arlen were equally adequate as parents and
that they both loved and provided for their children very well.
Mr. Walstad ultimately presented three options the court could
adopt: (1) have the children live with Julie; (2) have the children
live with Arlen; or (3) split custody by having Nicholas live with
Arlen and Jennifer live with Julie. Neither Julie nor Arlen
assented to split custody. Mr. Walstad did not recommend a custody
arrangement to the District Court.
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After considering the evidence, the District Court issued its
findings of fact, conclusions of law, and order in which it found
that both Julie and Arlen were equally qualified to serve as
parents, and that Jennifer and Nicholas were equally bonded to
Julie and Arlen. However, the court found that up to that point
Jennifer and Nicholas had grown up in Helena and were established
in the community and their school, that Julie's work and school
schedule placed a burden on her ability to spend time with them,
and that Julie was not sure where she would live after completing
her degree program.
The court concluded that Jennifer's and Nicholas's best
interests would be best served by granting Arlen primary
residential custody during the school year and Julie residential
custody during the summer, and therefore, that modification of the
residential custody arrangement was appropriate pursuant to
S 40-4-219(l) (f), MCA. The court noted that such an arrangement
would best "assure continuity and stability in [Jennifer's and
Nicholas's] lives with a minimum of disruption." However, the
court permitted Julie to request a review of the custody order
after receiving her degree. Julie appeals the District Court's
order.
DISCUSSION
Did the District Court err when it found that it was in the
children's best interests that the prior custody arrangement should
be modified and residential custody awarded to Arlen during the
school year?
We review a district court's findings of fact regarding
custody modification and visitation to determine whether the
district court's findings are clearly erroneous. In re Marriage of E&r
(Mont. 1995), 52 St. Rep. 434, 43 6 (citing In re Marriage of Johnson
(1994), 266 Mont. 158, 166, 879 P.2d 689, 694). Findings of fact
are clearly erroneous if: they are not supported by substantial
evidence; the district court misapprehends the effect of the
evidence; or, we are convinced upon reviewing the record that the
district court made a mistake. Marriage of Elser , 52 St. Rep. at 436
(citing Marriage ofJohnson, 879 P.2d at 694) We will review a
district court's decision to modify custody or visitation based on
its findings to determine whether the district court has abused its
discretion. MarriageofEker, 52 St. Rep. at 436 (citing In reMarriageof
Hunt (1994), 264 Mont. 159, 164, 870 P.2d 720, 723).
Julie first contends that the court incorrectly found that
both parties have "equally shared custody" because, in fact, she
has had the children for more days than Arlen. However, whether or
not Julie had the children for more days than Arlen was a disputed
question of fact. Julie's testimony in that regard was
controverted by Arlen's and the testimony of his wife, Janet.
After reviewing the testimony of each, we conclude that the
District Court's finding that custody was shared equally was
supported by substantial evidence and was not clearly erroneous.
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Furthermore, whether Julie had the children a greater number of
days during each year than Arlen is not relevant to the statute
which controlled the District Court's decision.
Modification of custody was appropriately considered in this
case pursuant to § 40-4-219(l) (f), MCA, which provides as follows:
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 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 and if it further
finds that:
;fj the custodial parent has changed or intends to
change the child's residence to another state.
This proceeding was initiated in response to written notice
from Julie that she intended to change the children's residence to
another state. That decision was made and notice was sent
subsequent to entry of the prior decree. The only issue for the
District Court was, then, whether it was in the children's best
interests that they remain in Helena or go with Julie to Bothell.
Although Julie offered evidence that she could provide a
satisfactory home and education for her children in Bothell, Arlen
also offered substantial evidence that it would be in their best
interests to remain in Helena. For example, there was testimony
that the children have a good relationship with their stepmother,
and due to her joint effort with their father, other care for the
children is rarely necessary when they are at his home. There was
evidence that the children are happy and well-adjusted while in the
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custody of both parents, but that in Helena they will be able to
continue attending the same elementary school where they have done
well in the past. Although they have relatives in Bothell, they
also have relatives in Helena with whom they have had regular and
close interaction. Although Tom Walstad made no recommendation
regarding the children's residential arrangement, he did note that
the least disruptive alternative for the children would be for them
to remain primarily in Helena.
Our role as a court of appellate review is not to try and
weigh conflicting evidence regarding the children's best interests
where two equally qualified parents claim, but cannot at the same
time, exercise residential custody. The district court is in a
better position to do that. Our role is simply to determine
whether the district court's findings are clearly erroneous and, if
not, whether in the application of those findings the district
court abused its discretion. We conclude that the District Court's
findings regarding the children's best interests were not clearly
erroneous. After a review of its decision in light of those
findings, we conclude that the court did not abuse its discretion
when it awarded residential custody to Arlen during the school
year.
Julie also contends that the District Court erred when it
prohibited her from removing her children to the state of
Washington without finding that doing so would seriously endanger
the children. However, other than the District Court's order
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modifying the couple's custody arrangement, we can find no specific
injunction or restraining order which restricted Julie's or the
children's movement. Even if it had, we have pointed out
previously in Marriage ofElser that a district court may restrain
removal of children from the state where it would prejudice the
children's rights or welfare. In the same case, we held that
"prejudice" within the meaning of 5 40-6-231, MCA, is simply the
opposite of the children's "best interest." Since we have
concluded that the District Court did not err when it determined
the children's best interests, we also conclude that the District
Court would not have abused its discretion had it restrained their
removal from the state by their mother.
For these reasons, we affirm the order of the District Court
which modified the residential arrangement of the children and
these parents' visitation schedules.
Pursuant to Section I, Paragraph 3 (cl, Montana Supreme Court
1995 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company.
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September 8, 995
CERTIFICATE OF ‘SERVICE
I hereby certify that the following certified order was: sent by United States mail, prepaid, to the
following named:
Charles E. Petaja, Esq.
1085 Helena Ave.
Helena, MT 59601
Mark P. Yeshe
Attorney at Law
P.O. Box 413
Helena, MT 59624-0413
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
Marriage of Kessler
Combined Opinion