Schiele v. Sager

No. 13784 I N THE SUPREME C U T OF THE STATE O M N A A O R F OTN 1977 LINDA SUE (SAGER) SCHIELE, P e t i t i o n e r and A p p e l l a n t , -vs- ROBERT L. SAGER, Respondent and Respondent. Appeal from: D i s t r i c t Court of t h e Fourth J u d i c i a l District, Honorable J a c k L. Green, Judge p r e s i d i n g . Counsel o f r e c o r d : For A p p e l l a n t : C h r i s t i a n , McCurdy, Ingraham and Wold, P o l s o n , Montana Donald K. P e t e r s o n a r g u e d , P o l s o n , Montana F o r Respondent: T i p p and Hoven, M i s s o u l a , Montana Douglas G. S k j e l s e t a r g u e d , M i s s o u l a , Montana Submitted: September 1 2 , 1977 Decided : mv F i l e d : -- 9 : . .. : - M r . J u s t i c e Gene B. Daly d e l i v e r e d t h e Opinion of t h e Court: P e t i t i o n e r appeals from t h e f i n a l judgment of t h e D i s t r i c t Court, Lake County, g r a n t i n g respondent's p e t i t i o n f o r modifica- t i o n of t h e p a r t i e s ' decree of divorce and awarding respondent t h e c a r e , custody and c o n t r o l of t h e p a r t i e s ' two minor c h i l d r e n . P e t i t i o n e r and respondent were married a t K a l i s p e l l , Montana, on June 27, 1968. T h e i r marriage was dissolved by decree of divorce dated March 28, 1973, i n t h e D i s t r i c t Court, Lake County. Pursuant t o s t i p u l a t i o n of t h e p a r t i e s t h e g e n e r a l c a r e , custody and c o n t r o l of t h e p a r t i e s ' minor c h i l d r e n , Richard Lee Sager, age 8 and S h e r r i e Sue Sager, age 5 , was awarded t o t h e i r mother, t h e p e t i t i o n e r . Respondent was granted v i s i t a - t i o n r i g h t s and was ordered t o provide support f o r t h e minor c h i l d r e n i n t h e sum of $50 per month per c h i l d . Respondent has remained c u r r e n t i n h i s payment of c h i l d support. Both p a r t i e s have remarried. P e t i t i o n e r r e s i d e s i n Pablo, Montana, while respondent r e s i d e s i n Republic, Washington. On J u l y 12, 1976, p e t i t i o n e r f i l e d a p e t i t i o n i n t h e D i s t r i c t Court, Lake County, seeking an o r d e r of t h e D i s t r i c t Court f i n d i n g respondent i n contempt of t h e divorce d e c r e e ' s v i s i t a t i o n pro- v i s i o n s and an award of $500 p u n i t i v e damages. Respondent sub- sequently f i l e d a p e t i t i o n on August 16, 1976, seeking modifica- t i o n of t h e divorce decree and an award of t h e permanent c a r e , custody and c o n t r o l of t h e minor c h i l d r e n . Petitioner similarly f i l e d a p e t i t i o n f o r modification of t h e divorce decree on August 18, 1976, seeking a change i n respondent's v i s i t a t i o n r i g h t s and an i n c r e a s e i n t h e amount of respondent's c o n t r i b u t i o n t o t h e support and maintenance of t h e minor c h i l d r e n . The causes were consolidated and heard by t h e D i s t r i c t Court on September 22 and 24, 1976. O December 8 , 1976, t h e c o u r t n issued i t s f i n d i n g s of f a c t , conclusions of law and judgment, holding t h a t due t o t h e domestic c o n f l i c t a s s o c i a t e d w i t h p e t i - t i o n e r ' s remarriage, t h e b e s t i n t e r e s t s of t h e minor c h i l d r e n d i c t a t e d t h a t t h e divorce decree of March 28, 1973, be modified t o award respondent t h e c a r e , custody and c o n t r o l of t h e minor children. P e t i t i o n e r was awarded v i s i t a t i o n r i g h t s , no c h i l d support was awarded t o e i t h e r p a r t y , and each p a r t y was t o assume h i s own a t t o r n e y f e e s and c o s t s i n t h e a c t i o n . P e t i t i o n e r f i l e d p o s t - t r i a l motions t o amend t h e f i n d i n g s of f a c t and conclusions of law; t o a l t e r o r amend t h e judgment; and an a l t e r n a t i v e motion f o r new t r i a l . I n i t s amended judgment of January 17, 1977, t h e D i s t r i c t Court denied p e t i t i o n e r ' s motions; affirmed i t s holding i n t h e previous judgment; pro- vided f o r t h e D i s t r i c t C o u r t ' s continuing j u r i s d i c t i o n i n t h e matter; and, e s t a b l i s h e d a d a t e and procedure f o r t h e t r a n s f e r of t h e custody of t h e minor c h i l d r e n . O February 15, 1977, p e t i t i o n e r f i l e d n o t i c e of appeal i n n t h e D i s t r i c t Court. The c o u r t stayed execution of i t s judgment pending p e t i t i o n e r ' s appeal t o t h i s Court. P e t i t i o n e r p r e s e n t s four i s s u e s f o r review: 1. Whether t h e D i s t r i c t Court abused i t s d i s c r e t i o n by f a i l i n g t o make f i n d i n g s of f a c t and conclusions of law i n com- p l i a n c e w i t h s e c t i o n s 48-332 and 48-339, R.C.M. 1947? 2. Whether t h e D i s t r i c t Court e r r e d when i t f a i l e d t o cause a record t o be made of t h e in-chambers interview of t h e minor c h i l d r e n pursuant t o s e c t i o n 48-334(1), R.C.M. 1947? 3. Whether the District Court abused its discretion when it denied petitioner's request for the appointment of professional personnel pursuant to section 48-335, R.C.M. 1947? 4. Whether the District Court abused its discretion.in accepting unfounded reputation testimony and making a finding of reputation on the basis of that testimony? Petitioner's first issue considers areas of the Uniform Marriage and Divorce Act, heretofore often before this Court. See: Gianotti v. McCracken, Mont. , 569 P.2d 929, 34 St. Rep. 1087; In re Custody of Dallenger, - . Mont , 568 P. 2d 169, 34 St.Rep. 938; Lee v. Gebhardt, Mont . , 567 P.2d 466, 34 St.Rep. 810; Ronchetto v. Ronchetto, Mont . 7 567 P.2d 456, 34 St.Rep. 797; Groves v. Groves, Mont. , 567 P.2d 459, 34 St.Rep. 790; Holm v. Holm, - t. Mon - 9 560 P.2d 905, 34 St.Rep. 118. These cases announce the law in Montana governing a petition for change of child custody and modification of a divorce decree. Section 48-339 establishes the "best interest of the child1' test, stated in section 48-332 as the primary consideration controlling any proposed modification of child custody. How- ever, the criteria of the best in-teresttest is not put into effect until the petitioning party seeking modification has satisfied the jurisdictional prerequisites announced in section "Modification. ( ) No motion to modify a custody 1 decree may be made earlier than two (2) years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child's present environment may endanger seriously his physical, mental, moral, or emotional health. "2 () 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 circum- stances 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 pur- suant to the prior decree unless: "a () the custodian agrees to the modification; "b () the child has been integrated into the family of the petitioner with consent of the custodian; or I (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. ( ) Attorney fees and costs shall be assessed "3 against a party seeking modification if the court finds that the modification action is vexatious and constitutes harassment." (Emphasis added.) Although the District Court's findings of fact and conclu- stions of law in the instant case recognize the domestic conflict between petitioner and her present husband, the District Court fails to make a specific finding there has been a change in circumstances in the children's environment since the prior divorce decree which seriously endangers the children's physical, that physical, mental, moral or emotional health and/the harm likely to be caused by a change of environment is outweighed by its advantages to the children. The District Court bases its judg- ment on the best interest of the children and fails to consider the provisions of section 48-339,enacted to preserve the basic policy of custodial continuity. Such modification of a divorce decree's provisions for the custody of children disregards the provisions of the Uniform Marriage and Divorce Act. The second issue raised by petitioner concerns the District Court's failure to cause a record to be made of its in-chambers interview with the minor children. Section 48-334(1), R.C.M. 1947, provides: "Interviews (1) The court may interview the child in chambers to ascertain the child's wishes as to his custodian and as to visitation. The court may permit counsel to be present at the interview. The court shall cause a record of the interview to be made and to be part of the record in the case." (Emphasis added.) The language of section 48-334(1) provides for'the District Court's exercise of discretion in determining whether an in- chambers interview ~ 5 t h children is necessary and whether counsel may be present. However, once the District Court determines the in-chambers interview is necessary, section 48-334(1) mandates that a record of the interview be made and that such record be part of the case record. The mandate of the statute was not complied with in the instant case and the court erred in failing to cause a record of the interview to be made. Ronchetto v, Ronchetto, supra. Petitioner's third issue challenges the District Court's failure to seek the advice of professional personnel in making its decision to modify the divorce decree and award custody of the children to respondent, Section 48-334(2) provides : " 2 The court may seek the advice of professional () personnel, whether or not employed by the court on a regular basis. The advice given shall be in writing and made available by the court to W1 - upon request . Counsel may examine as a witness any professional personnel consulted by the court. (Emphasis added.) Section 48-335, provides : "Investigations and reports. (1) In contested custody proceedings, and in other custody proceedings if a parent or the child's custodian so requests, the court may order an investigation and report concerning custodial arrangements for the child, The investigation and report may be made by the county welfare department." The language of the statutes dictates an exercise of the District Court's discretion in determining whether the findings and/or advice of professional personnel is necessary to a reso- lution of the pending action. This Court has long held the District Court's exercise of discretion ought not be disturbed except upon a clear showing of abuse of discretion. In the Matter of Fish, Mont . , 569 P.2d 924, 34 St.Rep. 1080; Lee v. Gebhardt, supra. Petitioner has failed to demonstrate such an abuse of discretion and we fail to find the District Court abused its discretion when it determined the aid of pro- fessional personnel was not necessary to the resolution of the instant case. Petitioner's final issue attacks the District Court's exercise of discretion in admitting into evidence reputation testimony concerning petitioner's present husband and its reliance upon such testimony in finding he possessed a bad reputation in the community for peacefulness. Petitioner con- tends the District Court erred in admitting such reputation evidence and as a result petitioner incurred substantial pre- judice. Section 48-332 sets forth the relevant factors to be con- gidered in determining child custody: "U custody in accordance with the best interest of the child. The court shall consider all relevant factors including: " 1 the wishes of the child's parent or parents () as to his custody; "2 () the wishes of the child as to his custodian; I ' (3) the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interest; "4 () the child's adjustment to his home, school, and community; and "5 () the mental and physical health of all indivi- duals involved." (Emphasis added. ) The counterpart to section 48-332 is section 402 &f the Uniform Marriage and Divorce Act as approved by the National Conference of Commissioners on Uniform State Laws. The language of the two sections is the same except for the last sentence of section 402 which was not adopted by Montana: "* * * The court shall not consider conduct of a proposed custodian that does not effect his rela- tionship to the child." Although Montana chose not to adopt this particular language, case authority has established a precedent moving away from the policy of admitting evidence of misconduct which did not effect the relationship of a custodian with the child. Solie v. Solie, Mont . -s 561 P.2d 443, 34 St.Rep. 142; Foss v. Leifer, - . Mont , 550 P.2d 1309, 33 St.Rep. 528; 37 Montana Law Review 119. In the instant case, the admission of reputation evidence concerned petitioner's present husband's violent con- duct in the home and would be relevant as affecting his relationship with the child. The ultimate concern of this Court is the welfare of the minor children. The record in the instant case reveals disabili- ties of both parents seeking permanent custody of the children. Petitioner resides in an atmosphere of domestic conflict while respondent labors under financial indebtedness. Therefore, to protect the interests of the minor children upon rehearing of this matter, we instruct the District Court to appoint independent counsel for the minor children pursuant to section 48-324, R.C.M. 1947. In the Matter of the Guardianship of Gullette, supra; In the Matter of Fish, supra. - 8- The judgment of the D i s t r i c t Court i s vacated. The cause i s remanded for a new hearing to determine permanent custody of the children, consistent with this opini W Concur: e - Chief Justice Mr. Justice Daniel J . Shea deeming himself disqualified took no part i n t h i s Opinion.