No. 13617
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977
BONNIE GEBHARDT LEE,
Plaintiff and Respondent,
-vs-
GARY B. GEBHARDT,
Defendant and Appellant.
Appeal from: District Court of the Eighteenth Judicial District,
Honorable W. W. Lessley, Judge presiding.
Counsel of Record:
For Appellant:
William E. Gilbert argued, Bozeman, Montana
For Respondent:
Berg, Angel, Andriolo & Morgan, Bozeman, Montana
Gregory 0 Morgan argued, Bozeman, Montana
.
Submitted: April 19, 1977
Decided: ,.
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Filed: --
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Mr. Justice Gene B. Daly delivered the Opinion of the Court.
his is an appeal from an order of the district court,
Gallatin County, awarding custody of minor children to Bonnie
Gebhardt Lee and restricting the visitation rights of Gary Gebhardt.
Gary and Bonnie Gebhardt were married July 2, 1965. Two
children were the issue of this marriage: Shawn, age 8 and Shannon,
age 10, at the time of the October 22, 1976, modification. Bonnie
filed an action for divorce on September 8, 1972. The decree was
entered January 8, 1973, providing that custody of the children be
awarded to her, subject to "reasonable rights of visitation" by
their father, Gary.
On August 1, 1973, Bonnie petitioned the court for an order
to modify the divorce decree to increase child support to $400 a
month, from $50 per child or $100 per month, as provided in the
divorce decree. Hearing was set for September 17, 1973. On Septem-
ber 13, 1973, the father responded to the petition for modification
and filed a petition to modify the decree to take custody in himself.
Pursuant to the petition for modification filed for the mother, an
agreement and stipulation was entered into between the parties on
November 20, 1973, increasing support as requested by Bonnie, and
specifying visitation to Gary, the father, to include every weekend,
alternate holidays, and a period of temporary custody of two months
during the summer months.
On May 16, 1974, Gary filed a petition for modification of
the divorce decree, seeking full and complete custody of the minor
children. This petition was not pursued due to the mother's remarriage.
On August 20, 1976, Gary filed a petition for modification
of the decree for full and complete custody. A hearing was held and
subsequently on October 15, 1976, the district court entered findings
of fact and conclusions of law that there was no material change of
circumstances, sufficient to warrant modification of the decree.
Further, it was in the best interest of the children that the decree
be modified to limit the father's visitation rights to one weekend
per month and one month in the summer.
Gary, the father, appeals the order of the court and pre-
sents two issues for this Court's review:
(1) Whether the trial judge abused his discretion in fail-
ing to modify the decree of divorce to award custody of the minor
children to the father?
(2) Whether the trial judge abused his discretion in modify-
ing the decree to limit the father's visitation to one weekend per
month and one month during the summer?
The applicable law in Montana governing modification of a
divorce decree is section 48-339, R.C.M. 1947. The father claimed
custody should be given to him under section 48-339 (2)(b)(c), which
states:
"(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 circumstances of the child or his custodian
and that 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:
"(b) the child has been integrated into
the family of the petitioner with consent
of the custodian; or
"(c) the child's present environment en-
dangers seriously his physical, mental,
moral, or emotional health, and the harm
likely to be caused by a change of environ-
ment is outweighed by its advantages to him.
The father contends the children have been integrated into
his family with the consent of the mother. This contention is unsup-
ported by the facts. The district court found as a result of the
visitation schedule, the children were required to be split between
two environments with separate homes, separate clothes and separate
fathers for each home. The mother has been required to perform all
the duties of seeing to the children's education, feeding, and care
during the weekdays when the entire family is occupied with the
daily task of making a living. As a result of the visitation sched-
ule the mother is deprived of the opportunity of enjoying the week-
end periods with her children, when the pace is relaxed. The record
shows the mother consented to the schedule to provide her children
with their needs, including visitation with their father. Therefore
it appears there has been no integration into the family of petitioner-
father and certainly not with the consent of their custodian-mother.
The father further alleges that section 48-339(2) (c), applies
in this case, but he does not allege the mother's home is an unwhole-
some environment for the children, but rather that the mother shows
little, if any, interest in the children. It is admitted the two
children are left alone after school for a period of two hours
during the day, however, there is no evidence this adversely affects
their welfare or severely endangers their physical, mental, moral,
or emotional health.
The record indicates and the trial judge in his findings of
fact found, that the mother and her present husband both express a
desire and need for an expanded opportunity to spend time with the
children. We find no evidence from which the court could determine,
as required by section 48-339(2), that a change has occurred in the
circumstances of the children or their custodian requiring modifica-
tion.
This Court is committed to the view that the welfare of the
child is the paramount consideration in awarding custody and it
must, of necessity, be left largely to the discretion of the trial
judge. He hears the testimony, sees the witnesses1 demeanor and
has an advantage in determining these difficult problems and we will
not disturb the custody decision unless a clear abuse of discretion
by the trial court is demonstrated. Brooks v. Brooks, Mon t .
, 556 P.2d 901, 33 St.Rep. 1114.
It is argued the district court abused its discretion in
modifying the divorce decree to limit the father's visitation to one
weekend per month and one month during the summer. Section 48-337(2),
R.C.M. 1947, states:
"The court may modify an order granting or
denying visitation rights whenever modification
would serve the best interest of the child; but
the court shall not restrict a parent's visitation
rights unless it finds that the visitation would
endanger seriously the child's physical, mental,
moral, or emotional health."
The district court in its findings of fact determined the
weekly visitation by the children to their father's home has prevented
the mother and her husband a full opportunity to see to the mental,
emotional and religiousgrowth of the children during a period when
they are not occupied with school activities.
From its findings the court concluded the best interest of
the children will be served by a single custodian whose duty it is
to consistently oversee and participate in the development of the
children. Therefore the court found it necessary to modify the
November 20, 1973 order.
Section 48-339(3), R.C.M. 1947, provides that attorney fees
and costs shall be assessed against a party seeking modification
if the court finds the modification action is vexatious and con-
stitutes harassment. Here, the father's modification petition
lacked sufficient merit to prevail, but could hardly be considered
vexatious or harassing. The request for attorney fees is denied.
Judgment of the district court is adirmed.
Justice
We Concur:
Chief Justice