Holm v. Holm, 13487

• Decision Date: 02 March 1977
• Docket Number: No. 13487,13487
• Citation: 560 P.2d 905,34 St.Rep. 118,172 Mont. 81
• Parties: Richard W. HOLM, Plaintiff and Appeallant, v. Allena N. HOLM, Defendant and Respondent.
• Court: Montana Supreme Court

Page 905

560 P.2d 905

172 Mont. 81

Richard W. HOLM, Plaintiff and Appeallant, v. Allena N. HOLM, Defendant and Respondent.

No. 13487.

Supreme Court of Montana.

Submitted Jan. 25, 1977.

Decided March 2, 1977.

Beiswanger & Wilson, Billings, Gary L. Beiswanger, argued, Billings, for plaintiff and appellant.

Berger, Anderson, Sinclair & Murphy, Billings, Richard W. Anderson, argued, Billings, for defendant and respondent.

HASWELL, Justice.

This is an appeal by the father of two minor girls from an order of the district court, Yellowstone County, changing their custody to their mother.

The children of the parties are twin girls who were six years old at the time of their parents' divorce. On June 2, 1975, their father was awarded a default divorce from their mother. The decree awarded custody of the girls to the father, with reasonable rights of visitation to the mother, pursuant to a written custody agreement so providing which was approved, confirmed and made a part of the decree.

In October, 1975, the father and the two girls moved to Rapid City, South Dakota and have resided there continuously since that date.

On October 20, 1975, the mother filed an affidavit seeking a change in custody to her based upon a change in circumstances of the parties since entry of the original decree four months previously. The affidavit alleged that at the time of the divorce the mother was in a physically and mentally debilitated condition as a result of surgery making her ability to care for the children doubtful; that she signed the custody agreement under these circumstances; and that she had since recovered and was physically capable of caring for the children. She also alleged the father's inability to care for the children. She sought an award of child support on change of custody to her.

Following a hearing, the district court made a finding that the mother's application for change of custody was premature and denied it. The court's order further provided that '* * * This matter is continued for further consideration at a later date upon application of either party.'

On June 28, 1976, the mother filed a second affidavit and application for change of custody. This affidavit, in addition to the matters alleged previously, alleged further changes in circumstances consisting of her remarriage, her maintenance of a suitable home for the children, the willingness of her present husband to have the children in the home, her return to steady employment, and her further physical recovery. She again sought an award of child support on change of custody.

Following denial of the husband's motion to dismiss for lack of jurisdiction, the district court held a hearing on the wife's application for change of custody.

On August 4, 1976, the district court entered findings of fact, conclusions of law and an order changing custody to the mother and awarding her child support of $65 per month per child.

In its findings the district court found that at the time the mother signed the custody agreement incorporated in the divorce decree she was in a physically and emotionally debilitated state; that at the time of the mother's first application for change of custody the court was of the opinion '* * * that (the mother) had in fact not fully recovered from her physical problems and was not yet restored to normal health and vitality' and that for these reasons, the court 'entered an interim order' continuing custody in the father but invited further consideration of the matter at a later date upon application of either party; that the remarriage of the mother, establishment of a new home, her recovery from her physical impairments, and her return to work, finding she is physically able to meet the demands of her occupation and homemaking are material changes in circumstances from those existing at the time of the divorce.

The court further found that it would be in the best interests of these female children approaching their eighth birthdays that their custody be placed with their mother. The findings state that '* * * This would not necessarily be the case if they were male children, where their interests and needs * * * would be more in keeping with (their father's) situation.' and 'Everything else being equal, however, and for well-known biological and emotional reasons, the Court determines that it would be in the best interests of these female children to have their primary guidance provided by their mother, who appears at this time to be a fit and proper mother.'

There are two issues assigned for review on appeal:

(1) Did the district court have jurisdiction to entertain the mother's petition for change of custody?

(2) Did the district court abuse its discretion in changing custody?

The jurisdictional issue determines the outcome of this appeal. The Uniform Marriage and Divorce Act was enacted by the Montana legislature in 1975. Its effective date was January 1, 1976. The provision of that Act pertinent to this appeal is codified as section 48-339, R.C.M.1947, and reads:

'Modification. (1) No motion to modify a custody decree may be made earlier than two (2) years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child's present environment may endanger seriously his physical, mental, moral, or emotional health.

'(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 the 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 the modification is necessary to serve the gest interest of the child. In applying these standards the court shall retain the custodian appointed pursuant to the prior decree unless:

'(a) the custodian...