In Re the Marriage of Syverson

No. 94-191

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

IN RE THE MARRIAGE OF:

KIMBERLY ANN SYVERSON,

Petitioner/Respondent,

and
MICHAEL SHERMAN SYVERSON,

Respondent/Appellant.

APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Fergus,
The Honorable Roy C. Rodeghiero, Judge presiding.

COUNSEL OF RECORD:

For Appellant:
Timothy J. O'Hare, O'Hare Law Firm, Lewistown,
Montana
For Respondent:

Joan Meyer Nye, Nye & Meyer, Billings, Montana; Ann
Hefenieder, Special Assistant Attorney General,
Child support Enforcement Division, Billings,
Montana

Submitted on Briefs: August IS, 1996
Decided: January 3, 1997
Filed: JAN 0 3 1997
Justice William E. Hunt, Sr., delivered the Opinion of the Court.

The marriage of Kimberly Ann Syverson (Kimberly) and Michael

Sherman Syverson (Michael) was dissolved pursuant to a decree

issued by the Tenth Judicial District Court, Fergus County.

Subsequently, Michael moved the court for a modification of child

support, and Kimberly moved the court for a modification of both

child support and the parties' child custody arrangement. Michael
appeals the District Court's disposition of the parties' respective

motions.

We affirm in part and reverse in part.

The following issues are presented for our review:

1. Did the District Court err in awarding Kimberly day care

expenses incurred as an incident to her status as a student?

2. Did the District Court err in its defacto denial of

Michael's motion for modification of child support?

3. Did the District Court err in granting Kimberly's motion

for modification of child support?

4. Did the District Court err in failing to award Michael the

exclusive right to claim the children as his dependents for federal

and state income tax purposes?

5. Did the District Court err in its excessive modification

of the custodial plan?

FACTS

Kimberly and Michael were married in Minnesota in 1983. The

couple have three children: Rebecca, born March 30, 1984; Kaydee,

2
born May 11, 1986; and Amy, born March 19, 1988. The Syverson

family made Lewistown, Montana its home.

In 1992, Kimberly and Michael sought a dissolution of their

marriage, and on July 24, 1992, the parties executed a "Property
Settlement and Custody Agreement" (Agreement). In relevant part,

the Agreement provided that the parties would have joint custody of

the children, and that they would divide as equally as possible the

actual physical custody of the children; the Agreement provided

that Michael would have physical custody of the children for a

total of 160 days out of the year.

The Agreement also provided that Michael would be responsible

for monthly child support payments of $475, but that, in light of

Michael's anticipated job change, the parties' child support

obligations could be reviewed upon the request of either party. In
addition, the Agreement provided that Michael would be responsible

for a share of the children's day care costs. The Agreement defined

"daycare" as "those child care costs incurred for the control and

supervision of the child during the parent's hours of employment."

Finally, the Agreement provided that each party would claim
one child as a dependent for tax purposes, and that the parties

would alternate annually claiming the third child as a dependent.

The court adopted and incorporated the Agreement in its decree of

dissolution dated July 28, 1992.

At the time the marriage was dissolved, Michael was employed

in the construction business, earning about $30,000 per year.

Kimberly was a secretary for the local school district and earned
almost $18,000 per year. A few months after the marriage was

3
dissolved, in February 1993, Michael, as was anticipated, changed

employment. His income from his new employment with the Montana

State Highway Department was $22,692 per year, which he

supplemented by undertaking various construction jobs. On May 3,

1993, Michael filed "Amended Motions" for modification of child

support, requesting that his child support payment obligation be

lowered in accordance with his decreased salary.

On August 10, 1993, Kimberly filed a counter-motion for

modification of visitation and child support, based on her
intention of moving to Billings, Montana to attend school.

Kimberly quit her secretarial position and on August 15, 1993,
moved with the three children to Billings where she enrolled at

Eastern Montana College as a full-time student. To manage her

daily living expenses, and to pay for her tuition, Kimberly

obtained student loans, federal tuition grants, subsidized housing,

and other public assistance.

On November 18, 1993, the court heard the parties' pending

motions. Counsel for Michael and Kimberly were present at the

hearing, as was Ann Hefenieder, on behalf of the Department of

Social and Rehabilitation Services, Child Support Enforcement

Division (Ms. Hefenieder became involved in the proceedings once

Kimberly began receiving public assistance monies). On November

29, 1993, Ms. Hefenieder filed a proposed child support

calculation, which recommended that Michael's child support

obligation be calculated at $183.41 per month, per child. Ms.

Hefenieder calculated her child support obligation figures in part

4
by imputing no income to Kimberly and by allowing Michael "four

exemptions:" himself and the three children as dependents.

On November 30, the court issued its partial findings of fact,

conclusions of law and order, by which it set out a visitation

schedule that provided Michael with 75 days of physical custody of

the children, required Michael to continue paying his present share

of child care costs while Kimberly was in school, and continued

Michael's child support obligation previously established by the

decree of dissolution. On December 15, 1993, the court issued its

supplemental findings of fact, conclusions and order, setting

Michael's child support obligation at $550.25 per month, based in

part on Ms. Hefenieder's recommendation.

On February 8, 1994, Michael filed a document entitled

"Motions," by which he requested the court to vacate and reconsider

its partial findings of fact, conclusions of law and order, and its

supplemental findings of fact, conclusions and order. In that

document, Michael requested that he be allowed to claim all three

children as dependents, and also offered essentially the same

arguments on the same issues as we have been asked to review here.

On March 25, 1994, the District Court denied Michael's "Motions."

On April 11, 1994, Michael filed with this Court his notice of

appeal of the District Court's partial findings of fact, conclusions

of law and order, the court's supplemental findings of fact,

conclusions and order, and the court's March 25, 1994 order. On

October 14, 1994, we ordered that the case be remanded to the

District Court for a hearing to determine if a case that this Court

decided after the District Court's disposition of the matter, In re

5
the Marriage of Johnson (1994), 266 Mont. 158, 879 P.2d 689, had

any bearing on the court's modification of custody. The District

Court held a hearing in accordance with our order, and on December

15, 1995, issued its "Order and Memorandum on Remand Regarding

Johnson Decision", concluding that Johnson did not apply to the

instant case.

Presently, the parties and Ms. Hefenieder have stipulated to

the five issues presented by Michael for our review. The parties

have further stipulated that Ms. Hefenieder, on behalf of the

Montana State Department of Social and Rehabilitation Services,

Child Support Enforcement Division, shall address and brief issues

one, two, and three, and that Kimberly shall address and brief

issues four and five. The question of the applicability of Johnson

is relevant to Issue Five and will be discussed in that portion of

this Opinion.

ISSUE ONE

Did the District Court err in awarding Kimberly daycare

expenses incurred as an incident to her status as a student?
In both its partial and supplemental findings and conclusions,

the court ordered that Michael pay 65% of the daycare costs

Kimberly incurs while she is in school. This is the same

percentage of daycare that Michael initially agreed to pay pursuant

to the Agreement. However, Michael argues that the court was in

error because the Agreement provided that he only pay "those child
care costs incurred for the control and supervision of the child

during the custodial parent's hours of employment." Michael

contends that because Kimberly, the custodial parent, is an

6
unemployed student, the care of the children while she maintains

that status is not "daycare" as defined in the Agreement.

Therefore, Michael argues, he is relieved of his daycare obligation

so long as Kimberly is unemployed. Michael asserts that the court

committed reversible error in requiring him to pay for daycare in

spite of this provision in the Agreement. We disagree.

The responsibility for child care costs is an important part

of a parent's child support obligation. See In re the Marriage of

Noel (1994), 265 Mont. 249, 875 P.2d 358. Our standard of review

of a ruling establishing or modifying a child support obligation is

whether the district court abused its discretion. Noel
-I 875 P.2d

at 359 (reviewing a ruling establishing a child support

obligation); In re the Marriage of Kovash (1995), 270 Mont. 517,

521, 893 P.2d 860, 862-63 (reviewing an "overall decision"

modifying a child support obligation). We must determine whether

the court abused its discretion in requiring Michael to continue to

pay a portion of the child care costs incurred while Kimberly is

unemployed and in school.
Michael first argues that the Agreement signed by the parties

only creates an obligation for child care costs incurred while the

custodial parent is employed. However, it is well established in

Montana that where the interests of minor children are concerned,

a district court is not bound by an agreement reached by the

parties pursuant to a dissolution proceeding. Section 40-4-201(2),

MCA; see also In re the Marriage of Carlson (1984), 214 Mont. 209,

217, 693 P.2d 496, 500. That in this context the District Court's
ruling was in any way inconsistent with the Agreement does not

alone require us to find the court in error.
However, Michael also argues that the definition of "daycare"

in the Agreement conforms to § 46.30.1525(l) (a), ARM (Child Support

Guidelines), which allows child care costs to be considered in

calculating a child support obligation when a custodial parent

"must incur child care expenses for [the] child as a prerequisite

to employment." Michael contends that the language of this rule

prohibits the court from ordering him to pay a portion of the child

care costs while Kimberly is an unemployed student. Michael's

contention, strictly interpreting the language of the rule and the

purpose of the Child Support Guidelines, misses the mark.
We have held that "a district court must apply its discretion

[in establishing a child support obligation] in a realistic manner,

taking into account the actual situation of the parties." -,
Noel
875 P.2d at 359 (citation omitted). Our review reveals that the

court's ruling here addressed the reality of Michael's and Kimberly's

respective situations. Michael is employed and earning income

while Kimberly is attending school, attempting to obtain a degree.

Kimberly claims that her school attendance is sparked by a desire
to eventually improve her financial position. We recognize a

parent's right to attempt to improve her financial position, even

if doing so results in a temporary decrease in present income. See

In re the Marriage of Rome (1981), 190 Mont. 495, 621 P.2d 1090.

We note that the Child Support Guidelines are in accord in this

respect, preventing, when calculating child support obligations,

the imputation of income to a parent "engaged in a plan of economic

8
self-improvement, including but not limited to education and

retraining, which will result, in a reasonable time, in an economic
benefit to the children for whom the support obligation is being

determined." Section 46.30.1513(2) (d) (iii), ARM.

Kimberly's studies require her to incur child care expenses.

The court heard testimony concerning the amount of these expenses.

The record clearly establishes the parties' respective financial
situations. The District Court specifically found that

though under the Uniform Child Support Guidelines,
[Michael] would be required to pay 100% of the daycare
costs in addition to his child support, such an order
would be inequitable. Based upon the evidence and the
facts and circumstances of this particular case, the
Court orders that daycare costs be apportioned 65% to
[Michael] and 35% to [Kimberly].

The District Court's apportionment of the parties' respective

responsibilities for child care costs demonstrates the "employment

of conscientious judgment." See In ce the Marriage of Goodman

(1986), 222 Mont. 446, 448, 723 P.2d 219, 220 (defining test of

abuse of discretion). The District Court did not abuse its
discretion in ordering Michael to continue paying a portion of the

child care costs incurred while Kimberly is unemployed and attends

school.

ISSUE TWO

Did the District Court err in its defacto denial of Michael's

motion for modification of child support?

Michael argues that the Agreement plainly provides that his

change in employment triggers a modification of his child support

obligation, upon his request. Michael contends that because the

9
court did not modify his child support obligation as he recommended

in his "Motions" document, and as mandated by the Agreement, the

court abused its discretion. We disagree.

The provision in the Agreement to which Michael refers states,

in pertinent part:

It is anticipated that [Michael] shall be changing
employment in the foreseeable future; and that, upon such
event and effective thereon, the child support
obligations of the parties hereto shall be reviewed upon
request of either party hereto.

The language here plainly requires only a review of the parties'
child support obligations, not a particular modification of those

obligations. In any event, we reiterate this Court's position that,

with respect to matters concerning minor children, district courts

are not bound by agreements reached by the parties. Carlson, 693

P.2d at 500.

At the hearing on Michael's and Kimberly's respective motions,

the court heard testimony concerning Michael's employment change and

decreased salary, as well as testimony concerning Kimberly's school

attendance and receipt of public assistance monies. Prior to

issuing its supplemental findings and conclusions, the court

received Ms. Hefenieder's recommendations regarding child support.

The court reviewed all of this information and then ruled that

Michael's monthly child support obligation be increased by about

$100. That Michael may have initially assumed, reasonably or not,

that the court would eventually modify his child support obligation

so that he would be responsible for a lesser monthly amount is not
a ground for reversal here; in ruling as it did, the court

10
considered all of the information before it, including Michael's
change of circumstances, as well as Kimberly's change of
circumstances and Ms. Hefenieder's recommendations. we conclude
that the District Court did not abuse its discretion.
ISSUE THREE

Did the District Court err in granting Kimberly's motion for
modification of child support?
As to this issue, Michael presents two basic arguments.
First, Michael argues that the court had no jurisdiction over
Kimberly's motion for modification of child support. This argument
is premised on Michael's contention that the District Court should
have granted his motion for modification of child support. We have
already affirmed the court's disposition of Michael's motion. We
need not further address this first argument raised by Michael.
Alternatively, Michael argues that even if the court properly
denied his motion and granted Kimberly's motion, it nevertheless
erred in its income calculations. Specifically, Michael contends
that the court erroneously imputed no income to Kimberly, and
erroneously attributed to him income from his construction "side
jobs." In addition, Michael contends that these errors constituted
variances from the Child Support Guidelines, and that the court
further erred in failing to state its reasons for the variances.
At the outset, we must state our disagreement with Michael's
argument that the courts allegedly erroneous income calculations
were variances from the Child Support Guidelines, and that the
court therefore had a duty to state its reasons for the variances.
Our review of the record establishes that the income calculations
11
here were made pursuant to the guidelines; the particular decisions

the court made in its calculations, to include some income but
exclude other income and to impute income to one party but not

another, were made within the confines of the guidelines.

Michael notes that Kimberly, as a student, receives various

types of financial aid. While Michael concedes that most of this

aid is in the form of loans, must be repaid, and thus cannot be

considered income, he does argue that one financial aid payment, a
Pell Grant, need not be repaid by Kimberly and thus must be

considered income. Each semester, $958 of the $975 Pell Grant

Kimberly received was used to pay tuition at Eastern Montana

College; $17 remained each semester for Kimberly's personal use.

Section 46.30.1513(2)(e), ARM, provides:

Although income is not imputed under subsection (2) cd),
actual income, including grants, scholarships, third
party contributions or other money intended to subsidize
the parent's living expenses and which are not required
to be repaid at some later date, should be included in
gross income. (Emphasis added.)

According to this rule, the $17 that remained each semester for

Kimberly's personal use should have been included as income. Ms.

Hefenieder did not include this amount as income in her child

support calculations, but this mistake, and the court's subsequent

adoption of it, does not amount to reversible error.

Michael also argues that Kimberly does not fall within the

"protection" of § 6.30.1513(2)(d)(iii), ARM, which states that:

Cd) Income should not be imputed if any of the following
conditions exist:

(iii) the parent is engaged in a plan of economic self-
improvement, including but not limited to education and

12
 retraining which will result, within a reasonable time,
in an economic benefit to the children for whom the
support obligation is being determined.

Michael contends that this rule cannot apply to Kimberly because
she has no "planned course of study," failed to "present evidence

as to the job opportunities that she would gain through this

education," and because she failed to "present evidence as to what
the entry level income would be for those job opportunities."

Michael claims that Kimberly has "completely failed to meet her

burden of proof." We disagree.

Kimberly sought to continue her education, education being one

of a number of possible examples of a "plan of self-improvement."

Section 46.30.1513(2) (d) (iii), ARM. We do not read this rule as

requiring a parent to present a blueprint of her intended career

and earnings in order to "meet her burden of proof." Moreover,

while the district courts must adhere to the applicable rules

within the Child Support Guidelines, 5 40-4-204(3) (a), MCA, the

degree of discretion afforded district courts in family law matters

is well established in Montana. See In re the Marriage of Dishon

(Mont. 1996), 922 P.2d 1186, 53 St.Rep. 816 (court's exercise of
discretion in light of its duty to adhere to the Child Support

Guidelines). The record shows that Kimberly, a freshman at the

time of the proceedings, was considering a career in either
education or social work. The District Court found that Kimberly

entered school "not to avoid payment of child support, but rather

to better herself economically which will benefit both her and the

children in the future." The court also found that "Lilt would not

13
be equitable to impute income for the benefit of the children when

the income does not exist." We conclude that the court did not

abuse its discretion when it determined that Rule

46.30.1513(2) (d) (iii), ARM, applied to Kimberly, and in accordance

with that rule did not impute income to her.
Michael also argues that the court erred in attributing to him

income from his periodic construction side jobs. In addition to

his salary from his employment with the Department of Highways,

Michael received income from various side jobs he undertook "out of

financial necessity." Michael contends, citing § 46.30.1515(3) (a),

ARM, that because these side jobs "were not accomplished over 'a

period sufficient to accurately reflect the parent's earning

ability,"' the income received from these jobs should not have been

considered in the child support calculations. Michael's contention

is based on a misinterpretation of the rule; rather than arguing

whether the court should or should not have averaged or projected

his side job income, Michael simply argues that his side job income

should not have been included as gross income. The cited rule

states:

(3) To the extent possible, gross income and expenses
should be annualized to avoid the possibility of skewed
application of the guidelines based on temporary or
seasonal conditions. Income and expenses may be
annualized using one of the two following methods:

(a) seasonal employment or fluctuating income should be
averaged over a period sufficient to accurately reflect
the parent's earning ability. However, income should not
be averaged if a reduction is due to circumstances beyond
a parent's control such as a plant closure; or

(b) current income or expenses may be projected when a
recent increase or decrease in income is expected to
continue for the foreseeable future. For example, when

14
 a student graduates and obtains permanent employment,
income should be projected at the new wage.

Section 46.30.1515(3), ARM. We briefly discussed this rule in In

re Pedersen (1993), 261 Mont 284, 862 P.2d 411, where we upheld a

district court's determination of gross income, a determination

reached by averaging the party's income over the prior two years.

We stated that "5 46.30.1515(3), ARM, expressly allows fluctuating

income to be annualized by averaging it over a period sufficient to

accurately reflect earning ability." Pedersen, 862 P.2d at 413.

The court here did not average Michael's income, because it was

not prompted to do so. The financial information provided here
established that Michael's Department of Highways salary was about

$23,000, and that he received approximately $2,500 more from his

side jobs. The calculations which the court adopted did not

average Michael's side job income; rather, the calculations merely

included as gross income the actual amounts that Michael stated

that he had received. See 5 46.30.1508, ARM. The court properly

calculated the child support obligations based on the information

before it. Platt v. Platt (1994), 267 Mont. 38, 41, 881 P.2d 634,

636. Michael's argument misses the mark. The court did not abuse

its discretion.

ISSUE FOUR

Did the District Court err in failing to award Michael the

exclusive right to claim the children as his dependents for federal
and state income tax purposes?

15
 The Agreement provides that Michael and Kimberly each claim
one child as a dependent for tax purposes, and that the parties

alternate on an annual basis claiming the third child as a

dependent. However, Ms. Hefenieder, in calculating her child

support recommendations in light of the parties' changed

circumstances, assumed that Michael would be allowed to claim all

three children as dependents, at least while Kimberly retained her

unemployed student status. The court fully adopted Ms. Hefenieder's

recommendations in ruling on the motions for modification before

it. Later, Michael filed a motion in which he specifically

requested that he be allowed to claim all three children as

dependents. This motion, and all other post-hearing motions

Michael filed, were denied.

Michael argues that the court abused its discretion because
although on the one hand it accepted Ms. Hefenieder's child support

calculations, which were based in part on imputing no income to
Kimberly and allowing Michael to claim the children as dependents,

the court on the other hand later refused Michael's request to claim

the children as dependents. In her brief submitted to us, Kimberly

stipulates that Michael be allowed to claim the children as

dependents while she attends school. As the District Court's denial

of Michael's request to claim the children as dependents was cursory

and without explanation, and as Kimberly and Ms. Hefenieder in fact

agree with Michael as to this issue, we must reverse and remand

this issue to the District Court so that the court may revise its

order to allow Michael to claim the children as dependents while
Kimberly attends school.

16
 ISSUE FIVE

Did the District Court err in its excessive modification of

the custodial plan?
Our resolution of this issue requires us to conduct two

inquiries. First, we must review the District court's

determination, pursuant to our order of October 14, 1994, that the

Johnson decision does not apply to or affect the instant case.

Second, based on our conclusion as to the first inquiry, we must

review the court's modification of the custodial plan, where the

court reduced from 160 to 15 the number of days per year that
Michael would have physical custody of the children.

The court's conclusion that Johnson is inapplicable to and does

not affect this case is a conclusion of law. The standard of

review of a district court's conclusion of law is whether the court's

interpretation of the law is correct. Carbon County v. Union
Reserve Coal Co. (1995), 271 Mont. 459, 898 P.Zd 680.

By order dated October 14, 1994, we remanded this case to the

District Court for a determination of whether the Johnson decision

applies to this case. In Johnson, the custodial arrangement as

established by the dissolution decree provided for joint custody,

but awarded Jerome physical custody of the children and provided

Barbara with the right of reasonable visitation. Following the

dissolution of the marriage, Barbara moved from the family's

hometown of Roy to Billings in order to attend college. During

this time, the children resided, on a yearly basis, with Jerome for

nine months and with Barbara for the remaining three summer months.

Barbara did not complete college, but moved to Lewistown where she

17
became a manager of a fast food restaurant. Barbara then moved the

court to modify the custody arrangement, awarding her physical

custody of the children and granting Jerome visitation rights. The

court granted Barbara's motion. The issue in Johnson pertinent to

our discussion here was as follows:
When a party to a former dissolution proceeding
moves to amend the decree in a way that substantially
changes the residential living arrangements of the former
couple's children without seeking a change in the legal
designation of "joint custody," is the District Court's
decision governed by the "best interest" standard found
at § 40-4-212, MCA, or by the "serious endangerment"
standard found at 5 40-4-219(l) cc), MCA?

Johnson, 879 P.2d at 691. After reviewing some of our prior

decisions concerning custody modification, decisions which we

characterized as "not necessarily consistent with the statutory

scheme for modification, nor with each other," Johnson, 879 P.2d at

692, we stated:
Considering our statutory scheme for modification of
custody arrangements, and the rationale for requiring a
substantial showing before altering the living
arrangements to which a child has become accustomed, and
out of concern that the applicable standard for granting
a motion to modify custody arrangements is not clear from
our prior decisions, we adopt the following standard:
Motions or petitions to modify a sole custody
provision or terminate a joint custody provision must
satisfy the jurisdictional prerequisites set forth in §
40-4-219, MCA. Likewise, a motion or petition to modify
child custody provisions in a dissolution decree which
have the effect of substantially changing the primary
residence of the parties' children, even though the
formal designation of "joint custody" is retained, are to
be construed as motions or petitions to terminate joint
custody and must satisfy the jurisdictional requirements
set forth in 5 40-4-219, MCA. Any effort to modify the
physical custody arrangements in a decree which provided
for joint custody, which does not seek a substantial
change in the children's primary residence, m a y b e
considered by the district court according to the best
interest standard set forth in § 40-4-212, MCA.

18
 We conclude that this approach is most consistent
with the plain terms of Montana's Marriage and Divorce
Act and is most likely to provide for the continuity and
stability of children's living arrangements that the
Legislature obviously determined to be important when it
adopted that Act.

Johnson, 879 P.2d at 694.

On remand, the District Court here concluded that Johnson did

not apply to or affect the instant case. The court reasoned that

Johnson could not apply where, as here, circumstances demanded that

the existing custodial arrangement be reviewed and ultimately

modified. The court noted that the existing custody arrangement

provided for the children to reside with Kimberly for three weeks

per month, and to reside with Michael for the remaining week in the

month. At the time of the divorce decree, both Kimberly and

Michael lived in Lewistown. Later, Kimberly moved to Billings to

go to school; maintaining the same custody arrangement during the

school year would require the children to attend a school in

Billings for three weeks out of a month, and to attend a school in

Lewistown for one week out of a month. The court impliedly

concluded that common sense, if nothing else, required that
modification under circumstances such as these be reviewed under

the "best interest of the child" criteria, 5 40-4-212, MCA;

introducing 5-219's jurisdictional hurdle could lead to some unjust,

if not absurd results. The court stated:

Johnson clearly was referring to the transfer of physical
custody from the primary custodian to the secondary
custodian. Johnson is not applicable to a case where,
due to change in circumstances of the joint custodians no
longer living in the same community, the physical custody
time allocation must, of necessity, be modified. In
Johnson there was no such legal necessity.

19
 We appreciate the District Court's concern that the application

of Johnson to this case, to the extent that Johnson would require

§ 40-4-219, MCA, to govern the modification question, could lead to
an unjust result; if none of the jurisdictional prerequisites of §-

219 can first be met, the court cannot reach the "best interest"

test and would be unable to modify a custody and visitation

arrangement that clearly needs to be modified. Moreover, this is

clearly a situation in which the best interests of the children

should govern the modification. Finally, it is not modification

that the parties dispute; in fact, both parties concede the need to

modify the existing arrangement. Rather, it is the particular

terms of the modification that the parties dispute.

However, Johnson does apply to this case, as Johnson would

apply to any custody modification case; the Johnson decision

clarifies this Court's variable approach to child custody cases,

where the proper approach depends on the circumstances of the
particular case. Johnson was intended to and does have blanket

applicability, as our Opinion in that case contains complete

coverage and analysis of the custody modification statutes.

Johnson dictates that under circumstances like those found in this

case, where modification would have the effect of substantially

changing the children's primary residence, the court must first meet

the jurisdictional requirements of S-219. However, Johnson is not

the cause of the District Court's quandary. Rather, it is an
inadequacy in §-219 which has created confusion and frustration.

20
 Under §-219, a court may proceed to modify a custody decree

according to the best interests of the child if it finds that "a

change has occurred in the circumstances of the child or the child's

custodian," and if it further finds that the custodial parent has

moved or intends to move with the child to another state. Section

40-4.-219(l) (f), MCA (emphasis added). Section 219 does not

expressly allow modification if the custodial parent and the child

move within the state of Montana, nor does the statute expressly

allow modification if the custodial parent and child move to

another country. According to s-219, if the custodial parent and

the child move from Wibaux, MT, to Beach, ND, a distance of less
than 50 miles, the court may modify the custody arrangement. If,

however, the custodial parent and the child move from Wibaux, MT,
to Libby, MT, a distance of nearly 500 miles, the court may not

modify the custody arrangement. In addition, if the custodial

parent and the child move from Wibaux, MT, to Lethbridge, Alberta,

Canada, the court may not modify the custody arrangement, as s-219

does not provide for such a contingency. Clearly, $219 is

inadequate. Under certain circumstances, a move within Montana's

borders may well be more disruptive to the effectiveness of a

custody decree than a move outside of Montana's borders. As well,

a move outside of Montana's borders to another country would likely

be more disruptive than a move outside of Montana's borders to

another state.

It is inconceivable to us that the application of §-219 was

ever intended to cause such absurd results as illustrated both in

our hypothetical and in the case before us. While courts should in

21
general interpret and apply statutes as they are written, they also

have a duty to look beyond the language of a statute if literal
application would lead to an absurd result. In Re Unit Portions of

Delaware, Inc. (E.D.N.Y. 1985), 53 B.R. 83, 84. "Courts will not

foolishly bind themselves to the plain language of a statute where
doing so would 'compel an odd result."' Hughey v. JMS Development

Corp. (11th Cir. 1996), 78 F.3d 1523, 1529 (citing Green v. Bock

Laundry Mach. Co. (1989), 490 U.S. 504, 509, 109 S.Ct. 1981, 1984,

104 L.Ed.Zd 557). This court has previously construed,

interpreted, and applied the law in order to avoid absurd results.

See State v. Schnittgen (Mont. 1996), 922 P.2d 500, 510, 53 St.Rep.

710, 717 (double jeopardy case wherein we stated that "applying the

Halper test to the instant case would work an obviously absurd

result not intended by the Court"); Stroop v. Day (1995), 271 Mont.

314, 318-19, 896 P.2d 439, 441-42 (we refusing to literally

interpret the word "provocation" as found in the "Dog Bite"

statute, § 27-l-715, MCA, because to do so would "yield unjust and

absurd results" (citing Robinson v. Meadows (Ill. Ct. App. lPPO),

203 Ill.App.3d 706, 148 Ill.Dec. 805, 561 N.E.Zd 111)); Hafner v.

Conoco, Inc. (1994), 268 Mont. 396, 403, 886 P.2d 947, 951

(employment discrimination case in which our determination that the

district court erred in finding Hafner qualified for his position

with Conoco was "guid[edl" by the court's reasoning in Chandler v.

City of Dallas (5th Cir. 1993), 2 F.3d 1385, 1393, cert. denied 511

U.S. 1011, 114 S.Ct. 1386, 128 L.Ed.2d 61 (1994), that a literal

reading of "otherwise qualified" was not favored "because of the

absurd results that would be produced"); Montana Dept. of Revenue

22
v. Kaiser Cement Corp. (1990), 245 Mont. 502, 506, 803 P.2d 1061,

1063 (tax case in which we agreed with the Department of Revenue's

interpretation of the applicable tax statutes, stating "that to

hold otherwise would lead to absurd results"); State v. Trimmer

(1985), 214 Mont. 427, 432-33, 694 P.2d 490, 493 ("It has long been

a rule of statutory construction that a literary application of a

statute which would lead to absurd results should be avoided
whenever any reasonable explanation can be given consistent with

the legislative purpose of the statute"). Therefore, to avoid an

absurd result in this case, and to prevent absurd results in other,

similar cases, we establish the following rule:

Our decision in Johnson remains fully applicable in custody

modification cases; if a request for modification of a joint

custody decree would have the effect of substantially changing the

primary residence of the parties' children, the court, before

engaging in modification, must first find that the requirements of

S-219 have been met. If the court finds that (1) "a change has

occurred in the circumstances of the child or the child's

custodian," § 40-4-219(l), MCA, and (2) further finds that the

custodial parent and the child or children have moved or are going
to move from one location to a different location (whether inside

or outside of Montana's boundaries), and that this move will hinder

the effectiveness of the existing custody arrangement, then (3) §-
219's jurisdictional requirements shall be deemed to have been met,

and the court may proceed to modify the custody arrangement
according to the "best interest" criteria set out in § 40-4-212,

MCA.

23
 Applying the foregoing analysis to this case, we conclude that

Johnson dictates that the requirements of §-219 must be met; a

modification that reflects both Kimberly's move with the children

from Lewistown to Billings and an 85day decrease in Michael's

custody and visitation of the children certainly amounts to a

"substantial change." We further conclude that 5-219's requirements

have been met because (1) there has been a change of circumstances

which affects the parties and their children, and (2) Kimberly's

move with the children to Billings from Lewistown will hinder the

effectiveness of the existing custody arrangement. We must now

determine whether the District Court erred in its modification of

the custodial arrangement, a modification which Michael

characterizes as excessive because his custody of the children was

reduced from 160 to 75 days annually. We consider Michael's

characterization within the context of 5 40-4-224(Z), MCA, which

provides, in pertinent part:

The allotment of time between the parents must be as
equal as possible; however
(a) each case shall be determined according to its
own practicalities, with the best interest of the child
as the primary consideration; and
(b) when allotting time between the parents, the
court shall consider the effect of the time allotment on
the stability and continuity of the child's education.

The court employed the "best interest" test, and made the following

findings with respect to the custody modification:

4. In August, 1993, [Kimberly] moved with the children
to Billings to further her education. [Kimberly] is now
a full time student at Eastern Montana College.

5. Since moving to Billings, [Michael] has had
visitation of the children on the second and fourth
weekends of each month. This has worked relatively well
except for problems exchanging the children between the
parents.
24
 6.
.il%chaell shall continue to have visitation on the
second and fourth weekends of each month.

8. In addition to weekend visitations, [Michael] and
[Kimberly] shall alternate the major holidays as set
forth in the Property Settlement Agreement, and [Michael]
shall have visitation of the children for the 1993
Thanksgiving break, and [Kimberly] shall have visitation
of the children for the first half of the Christmas
break, [Michael] to have visitation the second half.
Thereafter, holiday vacations shall be alternated between
the parties with the travel arrangements as set forth
above.

10. Summer visitation by [Michael] shall be during the
second week of each month beginning in June, as well as
the last full weekend of each month during the summer
months of June, July, and August. The Court finds the
parties'children are relatively young and all girls, and
it is in the best interests of the children that the
above visitation schedule be implemented. (Emphasis
added.)

Michael argues in his opening brief that the court's findings

with respect to the "best interest" factors were insufficient
Michael contends that the court's "drastic modification" was

premised on only one "best interest" finding, unsupported by

evidence, that "the parties' children are relatively young and all

girls, and it is in the best interests of the children that the

above visitation schedule be implemented."
We review a district court's findings relating to custody or

visitation modification to determine whether those findings are

clearly erroneous. In re the Marriage of Elser (1995), 271 Mont

265, 270, 895 P.2d 619, 622 (citation omitted), overruled on other

grounds by Porter v. Galarneau, 275 Mont. 174, 185, 911 P.2d 1143,

1150 n.2. "Findings are clearly erroneous if they are not

supported by substantial evidence, the court misapprehends the

25
effect of the evidence, or this Court's review of the record

convinces it that a mistake has been made." Elser 895 P.2d at 622
-I
(citation omitted). This Court will reverse a court's decision to

modify custody or visitation "only where an abuse of discretion is

clearly demonstrated". Elser
-, 895 P.2d at 622 (citation omitted).

As to Michael's argument that the court erroneously made only

one express finding that its modified visitation schedule was in

the children's best interests, we have stated that
[a]11 the ["best interest of the child"] statute requires
is that the court consider the factors listed. It is not
required to make specific findings concerning each
element, though it must express "the essential and
determining facts upon which its conclusions rest."

In re the Marriage of Fesolowitz (1993), 258 Mont. 380, 388, 852

P.2d 658, 663 (citation omitted). In Fesolowitz, we held that the

court's finding that the children "'have successfully adapted to

shared custody' and 'have prospered by being with each parent a

substantial amount of time each month"' was the "essential and

determining fact." Fesolowitz, 852 P.2d at 663. The court here

similarly expressed "the essential and determining facts upon which

its conclusions rest [edl," and therefore met this requirement of

the "best interest" test.

Contrary to Michael's contention, the court's finding that its
modification of the custody arrangement was in the children's best

interests was supported by evidence in the record. The court heard

testimony concerning, among other things: the parents' wishes

regarding custody and visitation; the interaction between the

parents and the girls; and the children's adjustment in each home.
In addition, the paramount concern for both parties at the outset

of these proceedings was that, after Kimberly's move to Billings,

26
Justice Karla M. Gray, dissenting

I respectfully dissent from the Court's opinion on issue five.
In Johnson, we focused on Montana's public policy, reflected
in various legislative enactments, to promote continuity and
stability in children's living arrangements. We determined that
the legislature intended § 40-4-219, MCA, to promote that public
policy by requiring a substantial showing before significantly
altering the living arrangements to which a child has been
accustomed. We concluded, on that basis, that 5 40-4-219, MCA, is
applicable to all situations which have the effect of substantially
changing such living arrangements and, consequently, that the
statutory jurisdictional requirements must be met before a district
court may make such a change. Johnson, 879 !?.2d at 694.
As a result of Johnson, this Court has two--and only two--
alternatives in resolving issue five in the present case. The
first is to apply both Johnson and 5 40-4-219, MCA, pursuant to
their terms. Choosing that alternative would require this Court to
reverse the District Court because the plainly stated
jurisdictional requirements of § 40-4-219, MCA, are not met here--a
fact which the Court concedes. The second available alternative is
to create an exception to Johnson's applicability for circumstances
such as those presented here; this alternative would enable us to
properly affirm the District Court.
Faced with this difficult choice, the Court staunchly refuses
to do either. Instead, it determines that § 40-4-219, MCA, is
"inadequate" and then proceeds to rewrite it. The Court does so by
deleting the language duly enacted by the Montana legislature

28
addressing the difficulty.
Finally, I submit that the interests of Montana's children in
the stability and continuity of their living arrangements cannot be
well served by this Court purporting to make up the statutory law
of Montana as it goes along. Indeed, the interests of all
Montanans in having the three branches of government take actions
appropriate to their constitutional spheres, and in the consistency
and stability of the laws of this state, are harmed by the Court's
action today.
As written, and as the Court agrees, Johnson applies here.
Absent a reinterpretation of Johnson to address circumstances such
as those presented in this case, we must reverse the District
Court.

Justice James C. Nelson joins in the foregoing dissent

30
Justice James C. Nelson, dissenting.

I agree that § 40-4-219, MCA, needs to be amended by the

legislature to account for circumstances where a custodial parent

moves within Montana or to another country. The examples set out

in the majority opinion demonstrate very well the inadequacies and

absurdities of § 40-4-219(l) (f), MCA, as presently written.

Hopefully, the 1997 Legislature will find time, in what already

appears to be a busy session, to address this problem.

However, I also agree with Justice Gray's dissent. Having

properly concluded that Johnson applies and that, therefore, the

jurisdictional requirements of § 40-4-219, MCA, must be met, we are
not at liberty to simply rewrite the clear and unambiguous

provisions of subparagraph (1) (f) by adding language that is not

there and by ignoring the language that is there. Interpreting or

applying a statute or a case to avoid an absurd result where the

language at issue is capable of more than one interpretation or

application is one thing; unashamedly rewriting the statute because

the application of its clear language produces what we perceive to

be an unacceptable result is a dog of a different breed, however.

In those cases, if the statute needs to be fixed--and this one does

--then, constitutionally, it falls to the legislative branch to
accomplish that.

That said, it strikes me that the problem in this case is our

preoccupation in trying to affirm the District Court's elemental
conclusion that the children are better off with their mother in

spite of Johnson and the requirements of 5 40-4-219(l) (f), MCA. I
31
suggest that, perhaps, we are forgetting what prompted our decision

in Johnson in the first place.
Our decision in Johnson was grounded in the proposition that:

[A] child's sense of continuity and stability are equally
threatened when that child is uprooted from the only
community in which that child has ever resided and
relocated in a new household and new school, whether we
refer to the change as one of legal custody or merely
physical custody.

Johnson, 879 P.2d at 693. Here, Kimberly's move to Billings was

what caused the children to be uprooted from the community in which

they lived and what caused them to be relocated to a new household

and to a new school. Prior to her move, both parents pretty much

had equal custody of and access to the children. It was Kimberly's

move that disrupted the existing custody arrangement that everyone
agreed was in the children's best interests, and it was that move

that necessitated a different custody arrangement.
If Johnson is applicable, and we all agree that it is, then it

seems to me that simply applying the letter and spirit of our

decision produces the correct result. Since Kimberly has failed
to meet the jurisdictional requirements of 5 40-4-219, MCA, the

children should not be required to move to Billings and to a new

community, home and school with their mother, but rather they

should be allowed to stay in Lewistown in their accustomed home,

community and school with their father. In resolving the case in

this fashion, the statute is upheld--as it is written; the rule in

Johnson is not diluted; and the parent that precipitated this

problem is forced to come to grips with the reality that she is

going to have to make some hard decisions on where her priorities

32
lie.

Obviously, this is not a perfect resolution for everyone;
there rarely is in these sorts of cases. Nonetheless, given the

statutory and case law that we are bound to enforce, I believe that
it is the legally correct one.

I dissent from our decision on Issue Five and would reverse on

that issue and remand for further proceedings on the other issues

consistent with our decision on the custody issue.

33