Lee v. Gebhardt, 13617

• Decision Date: 08 August 1977
• Docket Number: No. 13617,13617
• Parties: Bonnie Gebhardt LEE, Plaintiff and Respondent, v. Gary B. GEBHARDT, Defendant and Appellant.
• Court: Montana Supreme Court

Page 466

567 P.2d 466

173 Mont. 305

Bonnie Gebhardt LEE, Plaintiff and Respondent, v. Gary B. GEBHARDT, Defendant and Appellant.

No. 13617.

Supreme Court of Montana.

Submitted April 19, 1977.

Decided Aug. 8, 1977.

William E. Gilbert, argued, Bozeman, for defendant and appellant.

Berg, Angel, Andriolo & Morgan, Gregory O. Morgan, argued, Bozeman, for plaintiff and respondent.

DALY, Justice.

This is an appeal from an order of the district court, Gallatin County, awarding custody of minor children to Bonnie Gebhardt Lee and restricting the visitation rights of Gary Gebhardt.

Gary and Bonnie Gebhardt were married July 2, 1965. Two children were the issue of this marriage: Shawn, age 8 and Shannon, age 10, at the time of the October 22, 1976, modification. Bonnie filed an action for divorce on September 8, 1972. The decree was entered January 8, 1973, providing that custody of the children be awarded to her, subject to "reasonable rights of visitation" by their father, Gary.

On August 1, 1973, Bonnie petitioned the court for an order to modify the divorce decree to increase child support to $400 a month, from $50 per child or $100 per month, as provided in the divorce decree. Hearing was set for September 17, 1973. On September 13, 1973, the father responded to the petition for modification and filed a petition to modify the decree to take custody in himself. Pursuant to the petition for modification filed for the mother, an agreement and stipulation was entered into between the parties on November 20, 1973, increasing support as requested by Bonnie, and specifying visitation to Gary, the father, to include every weekend, alternate holidays, and a period of temporary custody of two months during the summer months.

On May 16, 1974, Gary filed a petition for modification of the divorce decree, seeking full and complete custody of the minor children. This petition was not pursued due to the mother's remarriage.

On August 20, 1976, Gary filed a petition for modification of the decree for full and complete custody. A hearing was held and subsequently on October 15, 1976, the district court entered findings of fact and conclusions of law that there was no material change of circumstances, sufficient to warrant modification of the decree. Further, it was in the best interest of the children that the decree be modified to limit the father's visitation rights to one weekend per month and one month in the summer.

Gary, the father, appeals the order of the court and presents two issues for this Court's review:

(1) Whether the trial judge abused his discretion in failing to modify the decree of divorce to award custody of the minor children to the father?

(2) Whether the trial judge abused his discretion in modifying the decree to limit the father's visitation to one weekend per month and one month during the summer?

The applicable law in Montana governing modification of a divorce decree is section 48-339, R.C.M.1947. The father claimed custody should be given to him under section 48-339(2)(b)(c), which states:

"(1) * * *

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

"(a) * * *

"(b) the child has been integrated into the family of the petitioner with consent of the custodian; or

"(c) the child's present environment endangers seriously his physical, mental, moral, or emotional health, and the harm likely to be caused by a change of environment is outweighed by its advantages to him.

"(3) * * *."

The father contends the children have been integrated into his family with the consent of the mother. This contention is unsupported by the facts. The district court found as a result of the visitation schedule, the children were required to be split between two environments with separate homes, separate clothes and separate fathers for each home. The mother has been required to perform all the duties of seeing to the children's education, feeding, and care during the weekdays when the entire family is occupied with the daily task of making a living. As a result of the...