No. 91-145
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
IN RE THE MARRIAGE OF MELINDA K. MILLER,
Petitioner and Appellant,
and
APPEAL FROM: District Court of the Tenth Judicial District,
In and for the county of Fergus,
The Honorable Peter L. Rapkoch, Judge presiding
COUNSEL OF RECORD:
For Appellant:
Jerrold L. Nye, Nye E, Meyer, Billings, Montana.
For Respondent:
William E. Berger, Wilkins and Berger, Lewistown,
Montana.
Submitted on briefs: December 31, 1991
Decided: January 14, 1992
Filed:
1
Clerk
Justice Fred J. Weber delivered the Opinion of the Court.
Following a divorce decree, the District Court for the Tenth
Judicial District, Fergus County, awarded custody of Mr. and Mrs.
Miller's two daughters and Mrs. Miller's son, Christopher, to Mrs.
Miller. Subsequently, Mr. Miller petitioned for a change of
custody of all three children to his care. The District Court
granted the change of custody of all three children to Mr. Miller.
Mrs. Miller appeals. We affirm in part and reverse and remand in
part.
We restate the issues as follows:
1. Did the District Court err in granting custody of
Tiadonna and Brandi to Mr. Miller?
2. Did the District Court err in granting custody of
Christopher Harrington to Mr. Miller?
3. Is Mrs. Miller entitled to costs and attorney fees?
Mr. and Mrs. Miller were married in 1980. Mrs. Miller had a
son, Christopher Harrington, who was four years old at the time.
The couple had two children together, Tiadonna Miller and Brandi
Miller. Mr. Miller is Christopher's step-father. He never adopted
Christopher. However, Christopher lived with the couple since
their marriage and Mr. Miller is the only father Christopher has
known.
In July 1989, the couple were divorced. Pursuant to their
signed "Property Settlement and Custody Agreement", the parties
received joint custody of the children with physical custody
awarded to Mrs. Miller.
2
On March 26, 1990, pursuant to 3 41-3-301, MCA, the State of
Montana, through the Department of Family Services (DFS), removed
the children from Mrs. Miller's custody and transferred custody of
all three children to Mr. Miller. Section 41-3-301, MCA, vests the
DFS with the authority to remove a child from his or her home and
place him in protective custody if there is reason to believe the
child is in immediate or apparent danger of harm.
On June 25, 1990, Mr. Miller filed a motion with the District
Court for change of custody of all three children. The children
had been in his care since March 26, 1990. On June 27, 1990, the
District Court signed an ex parte temporary restraining order
giving custody of the three children to Mr. Miller and set a show
cause hearing for July 16, 1990. After the show cause hearing and
two additional hearings in which extensive testimony was presented
by both parties, the District Court granted custody of all three
children to Mr. Miller. Mrs. Miller appeals.
I
Did the District Court err in granting custody of Tiadonna and
Brandi to Mr. Miller?
Mrs. Miller maintains that the District Court erred in
transferring custody of all three children to Mr. Miller because it
erroneously placed the burden on her to prove she was fit rather
than on Mr. Miller to establish a basis for a change of custody
pursuant to § 40-4-220, MCA. Mrs. Miller further maintains that
the District Court failed to follow the appropriate statutory
authority in terminating her custody of Tiadonna and Brandi. She
3
contends that the District Court failed to make findings of serious
endangerment and the order to show cause violated 5 40- 4- 220, MCA.
Mr. Miller maintains that Montana law favors continuity of
custody and because of the concerns that the children would be
endangered if Mrs. Miller regained custody, it would be in the
children's best interest to remain with him. Mr. Miller maintains
that he filed a motion for change of custody and temporary order
alleging that the children would be endangered if made to return to
Mrs. Miller. In response, the District Court ordered a temporary
order retaining Mr. Miller as physical custodian of the children
and setting July 16 as the date for a show cause hearing. The July
16 hearing was not a final hearing.
Sections 40- 4- 219, and 40- 4- 220, MCA, provide for modification
of child custody if the court finds that there has been a change in
circumstances of the child or his custodian and that the
modification is necessary to serve the best interests of the child.
Section 40- 4- 220, MCA, requires that the party seeking a
modification in custody shall submit, together with his moving
papers, an affidavit setting forth facts supporting the requested
modification.
Those procedures were followed here. After the Department of
Family Services removed the children from Mrs. Miller's custody and
placed them with Mr. Miller, he filed a motion with the District
Court seeking modification of the custody of all three children to
his care. The District Court found that the parties presented
extensive testimony at the hearings. The court also interviewed
4
all three children pursuant to 5 40-4-214, MCA, and found that all
three children desired to live with Mr. Miller. Christopher was 14
years old at the time of the hearing. The other two children,
Tiadonna and Brandi, were under ten years old. The court made
extensive findings of fact, including:
--That an agent of the Fergus County DFS testified that
it is in the best interest of all three children that
Tony be granted their physical custody and that a return
to Melinda would endanger their physical, educational and
emotional well being.
--That Melinda has consistently been uncooperative and
antagonistic and intimidating towards the children's
teachers and school authorities, without cause and
against the interests of the children.
--That Melinda has arbitrarily refused when help was
urged, available and offered, school recommendations for
very basic specialized help for Tiadonna. That Melinda
has indulged in inappropriate and uncontrollable behavior
while on school grounds, and towards her children and
school teachers and school authorities.
--That Melinda abuses alcohol; shortly before the hearing
she was charged with Driving under the Influence and
plead guilty; that she has driven the children while
intoxicated; that she was a frequent customer of Bar 100
in Judith Gap often in a highly intoxicated state and was
ejected from the bar and not allowed to return for one
year because of her behavior.
--That Melinda has moved frequently and such moves were
not in the best interests of the children.
--That Melinda has refused to allow visitation.
--That Melinda does not exhibit a stable lifestyle and
living situation and there are no indications that her
lifestyle will change in the future.
--That school authorities and neighbors of Tony have
observed the children with Tony and find the children to
be happier, more open, and more relaxed than they were
while they were with Melinda.
--That since the children have been with Tony, they,
especially Tiadonna, have made remarkable educational
5
progress; that Tony is attentive to and cooperative with
the children's teachers and school authorities. That
Tony has worked with Tiadonna in her school work, alone
and in cooperation and with the assistance of her
teachers and speech therapists; that the results have
been most beneficial to her. Her school performance has
improved greatly. Such effects have been the direct and
proximate results of the help given her by and with and
through Tony, which was a sharp reversal of her
performance while in her mother's custody. The latter
was marked by strife and confrontation and lack of
stability.
--That Brandi has also profited by Tony's care, attention
and assistance.
Pursuant to 5 40-4-224(3), MCA, any modification of joint
custody under 5 40-4-219, MCA, is considered a termination of joint
custody, In re Marriage of Paradis (1984), 213 Mont. 177, 689 P.2d
1263, and the appropriate standard for the District Court to apply
is one of serious endangerment. In re Marriage of Gahm & Henson
(1986), 222 Mont. 300, 722 P.2d 1138. Pursuant to 5 40-4-219, MCA,
Mr. Miller has carried his burden of proving that if the children
were to remain in the custody of Mrs. Miller, their physical,
mental, moral, or emotional health would be seriously endangered
and the harm likely to be caused by a change of custody is
outweighed by its advantages to them. See 5 40-4-219(1)(~), MCA;
and Commissioners' Note to 5 40-4-219, MCA. When reviewing a
District Court's findings regarding modification of custody, this
Court will not reverse the findings unless they are clearly
erroneous. In re Marriage of Arbuckle (1990), 243 Mont. 10, 792
P.2d 1123. We conclude that the record supports a finding of
serious endangerment as to all three children.
We hold that the District Court's findings were not clearly
6
erroneous and therefore affirm the District Court’s modification of
the custody of Tiadonna and Brandi.
I1
Did the District Court err in granting custody of Christopher
Harrington to Mr. Miller?
Mrs. Miller maintains that the District Court was without
jurisdiction to award the custody of Christopher to Mr. Miller
because Christopher was neither Mr. Miller‘s natural son, nor
adopted by him.
Mr. Miller maintains that the District Court had the
jurisdiction to change the custody of Christopher under f, 40-4-
211(4) (b), MCA, which provides that a “person other than the
parent” may file a petition for custody of the child if the child
is not in the physical custody of one of his parents.
Even though the finding of serious endangerment applied to
Christopher, we conclude that the procedure followed in awarding
custody to Mr. Miller was not appropriate where Christopher was not
the natural or adopted child of Mr. Miller. We conclude a change
of custody with regard to Christopher properly requires the use of
the procedure contained in the child abuse, neglect and dependency
statutes, 5 41-3-101, et seq. In In the Matter of Doney (1977),
174 Mont. 282, 285-86, 570 P.2d 575, 577, this Court stated:
Where a child has allegedly been abused or neglected
by his natural parent, the state has a clear duty to
protect the child by means of a judicial hearing to
determine whether the youth is in fact abused or
neglected. There are, however, few invasions by the
state into the privacy of the individual that are more
extreme than that of depriving a natural parent of the
custody of his children. For this reason, the
7
legislature carefully enunciatedthe procedures the state
must follow and the findings which the court must make
before custody of a child may legally be taken from his
natural parent. A judicial hearing and finding of
dependency and neglect . . .
or judicial finding of
willful abandonment or willful nonsupport ...
are the
exclusive means by which a natural oarent may be
involuntarily deprived of custody of his children. In
the absence of such showing, the natural parent is
legally entitled to the custody of his minor children.
(Emphasis added).
Under Doney, and the procedure set forth in 5 41-3-402, MCA, in
cases where a youth is abused or neglected, the county attorney or
an attorney hired by the county welfare department may file a
petition for temporary investigative authority. Under 5 41-3-403,
MCA, upon the filing of that petition, the court may issue an order
granting such relief as may be required for the immediate
protection of the youth, and the order shall be served on the
persons named in the petition, requiring that the persons appear at
a show cause hearing. The court is given the power to place
temporary legal custody of the youth with the Department until
further order. Under 5 41-3-404, MCA, in the adjudicatory hearing,
the court shall determine whether the youth is a youth in need of
care and meets other requirements of the statute. If the court
determines that the youth is an abused, neglected or dependent
child, the court shall set a date for dispositional hearing to be
conducted within thirty days and order any necessary
investigations. Under 5 41-3-406, MCA, where a youth is found to
be a youth in need of care under 5 41-3-404, MCA, the court may
enter its judgment making a number of different dispositions
including the following: transfer legal custody to a relative or
8
other individual who, after study by a social service agency
designated by the court, is found by the court to be qualified to
receive and care for the youth. From the facts presented in the
present case, it appears that Mr. Miller may meet these
requirements. However, before such a dispositional hearing order
is granted, the procedures required by the child abuse, neglect and
dependency sections must be followed.
In In re Custody of C.C., K.C. and B.C. (1985), 215 Mont. 72,
695 P.2d 816, this Court considered the question of whether the
non-parent husband could be awarded custody of the child of his
wife. In that case, determination of custody was made in the
course of the request for dissolution of marriage. The court
pointed out that a parent may not be deprived of custody unless
there has been a finding of unfitness, abuse, or neglect. The
court did not consider whether or not those findings could be made
in the course of a dissolution proceeding. The Court also stated
that the respondent, even though he was a non-parent, could be
considered as a potential custodian. This Court then remanded the
case so that the district court could make findings regarding the
wishes of the children. A new trial was required in order to meet
the custody determination requirements of 5 40-4-212, MCA. We
overrule C.C., K.C. and B.C. to the extent that it may be
interpreted to hold that an award of custody may be made to a non-
parent in the course of a marriage dissolution proceeding. As
previously stated, under the facts in C.C., K.C. and B.C., the
procedure required was set forth in the child abuse, neglect and
9
dependency statutes. We recognize that the District Court in the
present case may have been misled by C.C., K.C. and B.C. into
following the procedure used in the present case. We recognize the
good faith effort on the part of the District Court but conclude
that it is necessary to require additional procedures.
Because the procedure as to Christopher is one in which Mr.
Miller as a non-parent is seeking custody, the Marriage and Divorce
Act does not contain the proper procedure to be followed. We
reaffirm the Doney holding that the procedure to be used where a
non-parent seeks custody is contained in the child abuse, neglect
and dependency sections, § 41-3-101, et seq. We conclude that
although the District Court properly made extensive findings as to
the best interests of Christopher and interviewed him as to his
wishes, the District Court did not follow the appropriate statutory
procedure in order to prepare the foundation for an award of
custody of Christopher to Mr. Miller, the non-parent. We hold that
the District Court erred in awarding custody of Christopher to Mr.
Miller. We reverse and remand with regard to the custody
determination of Christopher for further proceedings consistent
with this opinion. In view of the District Court's finding of
serious endangerment as to Christopher, custody of Christopher
shall remain with Mr. Miller for 3 0 days from the date of
remittitur for further proceedings consistent with this opinion.
111
Is Mrs. Miller entitled to costs and attorney fees?
10
Section 40-4-219(5), MCA, provides that attorney fees and
costs shall be assessed against a party seeking modification if the
court finds that the modification action is "vexatious and
constitutes harassment". Mrs. Miller maintains that Mr. Miller's
motion for modification of custody is vexatious and constitutes
harassment because "Mr. Miller did not follow the procedure for a
change of custody" as required by statute. Mr. Miller maintains
that there are no facts to support her argument. We agree. The
record is void of any facts to support that the modification sought-
is vexatious or constitutes harassment.
We hold that Mrs. Miller is not entitled to attorney fees and
costs.
Affirmed in part and reversed and remanded in part.
We Concur: /
Chief Justice
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January 14, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Jerrold L. Nye
NYE & MEYER, P.C.
3317 Third Ave. N.
Billings, MT 59101
William Berger
Wilkins & Berger
P.O. Box 506
Lewistown, MT 59457
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA