Gianotti v. McCracken, 13720
Decision Date | 30 September 1977 |
Docket Number | No. 13720,13720 |
Citation | 569 P.2d 929,34 St.Rep. 1087,174 Mont. 209 |
Parties | Ernest F. GIANOTTI, Plaintiff and Appellant, v. Alice L. McCRACKEN, formerly Alice L. Gianotti, Defendant and Respondent. |
Court | Montana Supreme Court |
John M. McCarvel argued, Great Falls, for plaintiff and appellant.
Church, Harris, Johnson & Williams, Douglas C. Allen argued, Great Falls, for defendant and respondent.
This is an appeal by the father of two minor children from an order of the district court, Chouteau County, modifying the decree of divorce between the father and mother as to custody of the children and the amount of child support payments.
The marriage of Ernest F. Gianotti and Alice L. McCracken (formerly Alice L. Gianotti), was terminated by a decree of divorce dated May 30, 1974, and approved and incorporated a "SEPARATION AGREEMENT" between them. The agreement provided custody of the two minor children to be split equally between the parties on a rotating six month per year basis. It further provided Ernest F. Gianotti pay child support to Alice L. McCracken in the amount of $100 per month per child.
The instant case arises essentially upon the petition of Alice McCracken for modification of the divorce decree, as to custody of the children and the amount of monthly support payments.
A full evidentiary hearing was held on October 19, 1976. Following submission of proposed findings of fact and conclusions of law by the parties, the district court, Hon. Nat Allen presiding, on December 6, 1976, issued an order modifying the divorce decree, awarding full custody of the children to Alice McCracken and increasing the amount of the monthly child support payments to $150 per month per child. From that order, Ernest F. Gianotti appeals.
The instant action began as one for divorce. A decree of divorce was entered on May 30, 1974, incorporating the terms of a separation agreement between the parties, parents of two minor daughters, ages 14 and 11 respectively at the time of the modification hearing. Under the terms of the separation agreement, each parent was entitled to six months physical custody per year, during which time that parent was to use and occupy the family residence in Great Falls. During the period of the mother's custody, the father was to pay $100 per month per child to the mother as support for the children. It further provided:
" * * * In the event that either of the parties shall remarry, the parties shall mutually agree upon a new and separate custody arrangement for the children, if so desired, and in the event the parties are unable to agree upon a proper custody arrangement at that time, then a court having jurisdiction of the parties shall make such a determination upon petition properly noticed and hearing had."
The mother took custody of the children and occupied the family residence beginning June 1, 1976. She remarried on October 1, 1976, becoming Alice L. McCracken. She and her husband immediately made arrangements to purchase a new home and moved in on October 15, 1976, when possession became available. Shortly thereafter, the hearing on her petition for modification of the divorce decree was held.
Testimony revealed each party to be a fit and proper parent. At the close of the hearing, the district judge interviewed the children in chambers, away from the influence of either parent or counsel (no record was taken of this interview as required by statute).
In the court's findings of fact and conclusions of law, dated December 6, 1976, the court specifically found:
The district court then ordered custody be and remain permanently in the mother, subject to full, free and unhampered rights of visitation, and further ordered the amount of monthly child support be increased from $100 to $150 per month per child.
This appeal involves two inquiries: (1) Did the district court abuse its discretion by modifying the provisions of the divorce decree pertaining to custody? (2) Did the district court abuse its discretion by increasing the amount of child support payments?
Appellant father argues the recent remarriage of respondent mother is an insufficient change in circumstances of the children or custodian to warrant modification of the custody provisions of the divorce decree. It is maintained modification upon such grounds, without a finding that the present custodial arrangement "seriously endangers" the welfare of the children, constitutes an abuse of discretion. Appellant further argues it was an abuse of discretion to increase the amount of child support payments because there was a marked failure of proof of circumstances so changed as to mandate such an increase.
Respondent, on the other hand, contends the district court properly awarded custody to her on the basis of the best interests of the children and, in so doing, correctly recognized a significant change in circumstances. In addition, she submits it was well within the discretion of the district court to increase the support payments to reflect a reasonable amount under the circumstances.
There is no question the court had jurisdiction to hear and make a proper determination, as such power is grounded in the terms of the separation agreement, as adopted by the divorce decree. However, here there was a contract agreed upon at the time of the separation which the court did not fully consider. In any event, it is well settled, in Montana, the court's jurisdiction in matters of custody is of a continuing nature. Foss v. Leifer, Mont., 550 P.2d 1309, 33 St.Rep. 528 (1976); Libra v. Libra, 154 Mont. 222, 462 P.2d 178 (1969); Barbour v. Barbour, 134 Mont. 317, 330 P.2d 1093 (...
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Marriage of Sarsfield, In re
...at the outset [that] the child's welfare [is] 'endangered seriously' by the present custody arrangement." Gianotti v. McCracken (1977), 174 Mont. 209, 214, 569 P.2d 929, 932. See also In re the Custody of Dallenger (1977), 173 Mont. 530, 534, 568 P.2d 169, 171-2. This prerequisite codifies ......
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LaMarca's Custody, In re, 79-8
...party seeking the custody modification has satisfied the jurisdictional prerequisites of section 610(b)(3). Also see Gianotti v. McCracken (Mont.1977), 569 P.2d 929, 931-932. The statement relied on in DeFranco, that a court may use initial discretion in deciding custody questions where the......
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Korol v. Korol, 79-15
...Olson v. Olson (1978), Mont., 574 P.2d 1004, 35 St.Rep. 175; Schiele v. Sager (1977), 174 Mont. 533, 571 P.2d 1142; Gianotti v. McCracken (1977), 174 Mont. 209, 569 P.2d 929. Olson also reveals that the exception to the two-year limitation is not to be liberally In our present case the moti......
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In re Marriage of Toavs
...court has continuing jurisdiction in matters of child custody. Billings, 189 Mont. at 522, 616 P.2d at 1105 (citing Gianotti v. McCracken (1977), 174 Mont. 209, 569 P.2d 929; Foss v. Leifer (1976), 170 Mont. 97, 550 P.2d 1309; Libra v. Libra (1969), 154 Mont. 222, 462 P.2d 178; Butler v. Br......