Foss v. Leifer

• Decision Date: 14 June 1976
• Docket Number: No. 13193,13193
• Citation: 33 St.Rep. 528,170 Mont. 97,550 P.2d 1309
• Parties: Cheryl Leifer FOSS, Appellant and Petitioner, v. James T. LEIFER, Respondent.
• Court: Montana Supreme Court

Page 1309

550 P.2d 1309

170 Mont. 97

Cheryl Leifer FOSS, Appellant and Petitioner, v. James T. LEIFER, Respondent.

No. 13193.

Supreme Court of Montana.

Submitted April 19, 1976.

Decided June 14, 1976.

Jardine, Stephenson, Blewett & Weaver, Great Falls, K. Dale Schwanke, argued, Great Falls, for appellant and petitioner.

Swanberg, Koby, Swanberg & Matteucci, Great Falls, Brett C. Asselstine, argued, Great Falls, for respondent.

JOHN C. HARRISON, Justice.

This appeal concerns a petition seeking to modify child custody provisions contained in a decree of divorce granted to appellant on August 10, 1972. The judgment appealed from is that of the district court, Jefferson County, entered December 17, 1975.

Appellant Cheryl Leifer Foss and respondent James T. Leifer were married in the city of Butte, Montana, in November 1968. Their son Christopher Lance Leifer was born the following year. The divorce decree provided, inter alia, that appellant should have the care, custody and control of the child, subject to the right of reasonable visitation by respondent. The court ordered respondent to pay child support in the amount of $100 per month. Respondent has never defaulted in paying the child support payments.

Respondent made no attempt to contest the provisions of the divorce decree at the time. Shortly after the divorce respondent moved to the state of Michigan and later to Pullman, Washington, where he spent approximately eighteen months completing requirements necessary to obtain a Master's degree. Following his graduation respondent became employed in Yakima, Washington. At the time of the hearing on the petition for modification, respondent was contemplating the prospect of a transfer on his employer's behalf to Harmiston, Oregon. his employer's behalf to Hermiston, Oregon made that move.

Following her divorce, appellant was employed at several local financial institutions in the city of Butte. She was transferred by her employer to Great Falls in May 1974. She gave birth to a second child in September 1973, and at the time this matter was heard, the child was living with appellant and her son Lance. In early January 1975, appellant began to date Richard Foss. He moved into appellant's home several weeks later. They were subsequently married. Several months after the marriage, appellant was able to terminate her employment to devote more time to the care of her two children.

Respondent commenced the action to petition for modification of the divorce decree shortly after receiving a letter from his ex-wife informing him that she and Foss had begun living together. In his petition respondent alleged that circumstances bearing a direct relationship to the best interests of his child had materially changed since the date of the divorce decree in that:

'a. * * * the spiritual and moral atmosphere in the home has deteriorated to a state wherein the issue of the parties hereto, Christopher Lance Leifer, will be materially affected and altered.

'b. * * * the plaintiff in the above captioned matter is residing with a male who is not the spouse of the above named plaintiff and the presence of this individual has aided and contributed to the moral decline and decay of the atmosphere in which the minor party of the parties hereto must reside.'

The parties agreed by stipulation that the matter be heard in the eighth judicial district, Cascade County, and a two-day hearing commenced on October 16, 1975. The district court found respondent was 'best suited and motivated morally and emotionally to meet the needs of Lance Leifer and is the parent most likely to see the needs of Lance Leifer are met.' and granted respondent's petition.

In Montana it has been firmly established that the court's jurisdiction in matters of custody is of a continuing nature. Barbour v. Barbour, 134 Mont. 317, 330 P.2d 1093; Libra v. Libra, 154 Mont. 222, 462 P.2d 178. This concept also controls under the recently enacted Uniform Marriage and Divorce Act, section 48-339, R.C.M.1947, which clearly provides district courts may not exercise discretionary power to modify a prior custody decree unless two basic elements are shown to exist: 1) new facts or facts unknown to the court at the time the initial decree was entered demonstrate that a change has occurred in the circumstances of the child or those of his custodian; and 2) this change is sufficient to warrant a modification in order to promote the particular child's best interests. This basic standard was applied in this jurisdiction long before the enactment of the new law, and a determination of which law would be applicable under the facts presented would have no bearing on the result. Jewett v. Jewett, 73 Mont. 591, 237 P. 702; Trudgen v. Trudgen, 134 Mont. 174, 329 P.2d 225; Simon v. Simon, 154 Mont. 193, 461 P.2d 851.

Here, the issue to be decided is whether the district court, in granting the petition for modification, abused its discretion. Although no specific finding to this effect appears in the order, such judicial action must inherently be predicated on the conclusion that a change in circumstances had occurred sufficient to endanger the welfare of the child to support the modification order. In reviewing orders which affect the custody of a child, this Court is mindful that the primary duty of deciding the proper custody of children is the task of the district court. Thus, all reasonable presumptions as to the correctness of that determination will be made. No ruling will be disturbed absent a clear showing the district court's discretion was abused. In re Corneliusen et al., 159 Mont. 6, 494 P.2d 908; State ex rel. Veach v. Veach, 122 Mont. 47, 195 P.2d 697; Ex parte Bourquin, 88 Mont. 118, 290 P.250; In re Thompson, 77 Mont. 466, 251 P. 163.

It is elemental that the phrase 'change in circumstances' is a term of art which must not be considered in a vacuum. No change in circumstances, regardless of its substantiality, is legally sufficient to support a modification order altering custody unless the best interests and general welfare of the child will be promoted. Altmaier v. Altmaier, 135 Mont. 404, 340 P.2d 829; Haynes v. Fillner, 106 Mont. 59, 75 P.2d 802. In all cases, the lodestar of the district court in exercise of its discretion is the welfare and best interests of the child, and not the parent. Grant v. Grant, 166 Mont. 229, 531 P.2d 1007, 32 St.Rep. 191; In re Adoption of Biery, 164 Mont. 353, 522 P.2d 1377; Turk v. Turk, 164 Mont. 35, 518 P.2d 804.

In the instant case the pleadings and testimony offered at hearing suggest the issue to be decided should be considerably narrowed. The record is replete with evidence that both parties to this action are well-qualified to be fit and proper parents to Christopher Lance Leifer. Respondent is a well-educated individual with promising and steady employment. The record amply demonstrates the affection respondent has for his son and his willingness to do all that is necessary to provide him with an environment conducive to a happy...