Marriage of Johnson, In re, 93-384

• Decision Date: 12 August 1994
• Docket Number: No. 93-384,93-384
• Citation: 51 St.Rep. 703,879 P.2d 689,266 Mont. 158
• Parties: In re MARRIAGE OF Jerome Allen JOHNSON, Petitioner and Appellant, and Barbara A. Johnson, Respondent and Respondent.
• Court: Montana Supreme Court

Page 689

879 P.2d 689

266 Mont. 158

In re MARRIAGE OF Jerome Allen JOHNSON, Petitioner and Appellant and Barbara A. Johnson, Respondent and Respondent.

No. 93-384.

Supreme Court of Montana.

Submitted on Briefs March 10, 1994.

Decided Aug. 12, 1994.

Ann L. Smoyer, Smoyer Law Firm, Helena, for appellant.

Jon A. Oldenburg, Lewistown, for respondent.

TRIEWEILER, Justice.

Respondent Barbara A. Johnson moved the District Court for the Tenth Judicial District in Fergus County to amend her prior decree of dissolution by transferring physical custody of her two children from her former husband, Jerome A. Johnson, to her. After a hearing at which testimony was taken and other evidence received, the District Court adopted Barbara's proposed findings of fact and conclusions of law and entered judgment in her favor granting to her physical custody of her two children and providing Jerome with reasonable rights of visitation. Jerome appeals from the judgment of the District Court. We reverse.

We restate the issues on appeal as follows:

1. 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 § 40-4-219(1)(c), MCA?

2. Applying the proper standard for modification of residential custody, was there sufficient evidence to support the District Court's judgment modifying its original decree?

FACTUAL BACKGROUND

Jerome and Barbara were married on July 6, 1983. During their marriage, Barbara gave birth to two daughters. Jennifer was born on October 31, 1983, and Amanda was born on February 27, 1987. They were 9 1/2 and 6 years old respectively at the time of the hearing held pursuant to Barbara's motion to amend the court's decree.

On June 20, 1990, this couple filed a joint petition for dissolution of their marriage. In their petition, they stated that they had entered into a property settlement agreement and child custody agreement, and asked that it be adopted by the court. With regard to child custody, the parties indicated in their agreement that they were both fit and proper persons to be granted care and custody of their children, and therefore, petitioned for joint custody. However, they also agreed that Jerome was to be awarded physical custody, care, and control of the two children, and that Barbara was entitled to reasonable visitation. Under the terms of the agreement, Barbara incurred no obligation for child support, and in fact, made no child support payments during the time that the children resided with Jerome.

On June 20, 1990, the District Court entered its decree dissolving the couple's marriage. The decree incorporated the couple's property settlement and child custody agreements.

At the time of their dissolution, and during their entire marriage, Jerome and Barbara lived in Roy. Following the dissolution of their marriage, Barbara moved to Billings, where she enrolled in college. The children resided with Jerome for nine months during the school year, and with Barbara during the three months of summer. During the school year, Barbara exercised visitation with the children on alternate weekends.

Barbara did not complete her college education, but after two years, moved from Billings to Lewistown where, at the time of the hearing, she was employed as a manager-trainee at the local Kentucky Fried Chicken restaurant.

On August 6, 1992, Barbara moved the District Court to amend its original decree by providing her with physical custody, care, and control of her children, and providing Jerome with reasonable rights of visitation. In support of her motion, she filed an affidavit in which she stated that the parties' circumstances had changed because she was no longer attending school; that the children's best interests would be served by changing their living arrangements; and that due to their current living arrangements, their physical and emotional health was seriously endangered.

On April 7, 1993, the District Court heard evidence in support of and in opposition to Barbara's motion. Twelve witnesses testified, in addition to the parties. However, the District Court did not interview either of the children to consider their preferences for a parent with whom to reside. Barbara conceded that at least the older daughter was torn between her loyalties to both parents, and that the younger daughter was not yet mature enough to express a reasoned preference.

On April 26, 1993, the District Court adopted those findings of fact and conclusions of law which had been proposed by Barbara's attorney, and on June 23, 1993, the District Court granted Barbara's motion by entering judgment which continued joint legal custody, but designated Barbara as the residential custodian, and granted Jerome reasonable visitation rights. In its findings of fact, the District Court found that circumstances had changed since the entry of the original decree because Barbara was now employed and had a home where she could care for her children. The District Court also found that the environment in which the children resided with Jerome endangered their physical, mental, moral, and emotional health, and that modification was necessary to serve their best interests. The District Court held, in other words, that modification was justified under either the "best interest" test set forth in § 40-4-212, MCA, or the "serious endangerment" test set forth in § 40-4-219, MCA.

On appeal, Jerome argues that since the physical custody and visitation arrangements were completely reversed from the original decree to the amended decree, the District Court's decision, in substance, changed actual custody of the children, and therefore, should have done so only if the "serious endangerment" standard set forth in § 40-4-219, MCA, was satisfied. Furthermore, Jerome argues that whether the "best interests" of the children are considered, or the "serious endangerment" standard, there was insufficient evidence to support the District Court's decision transferring physical custody of the children from him to Barbara.

Barbara responds that since no change was made in the joint custody provided for in the original decree that the "best interest" test provided for in § 40-4-212, MCA, applies. Barbara also responds that whichever test for modification is applied, there was sufficient evidence to support the District Court's decision.

ISSUE 1

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 § 40-4-219(1)(c), MCA?

The District Court drew no conclusion about whether its decision was controlled by § § -212 or -219. It merely found sufficient evidence to satisfy either criteria for modification, and therefore, granted Barbara's motion. However, before we can review the sufficiency of the evidence in support of the District Court's judgment, it is necessary to clearly establish what Barbara's burden was in order to accomplish the modification she sought.

Since our prior decisions are not necessarily consistent with the statutory scheme for modification, nor with each other, it is appropriate to review those statutes, and our cases interpreting them, before arriving at our conclusion.

Section 40-4-212, MCA, provides that when a district court makes its original determination regarding child custody, it shall do so in accordance with the "best interest of the child." However, recognizing that children's "best interests" are served by continuity and stability in their living arrangements, the Legislature also provided that once custody was established by the district court, it could not be modified unless (1) a change has occurred in circumstances which make modification necessary in order to serve the child's best interest, and further, that one of several additional factors are found to exist. The additional factor relevant to this case is that (2) "the child's present environment endangers seriously his physical, mental, moral, or emotional health and the harm likely to be caused by a change in environment is outweighed by its advantages to him...." Section 40-4-219(1)(c), MCA.

Both §§ -212 and -219 were taken from the Uniform Marriage and Divorce Act and were adopted in Montana in 1975.

In 1981, the Legislature amended Montana's laws regarding child custody by adding §§ 40-4-222 through -224, MCA. These sections were not taken from the Uniform Marriage and Divorce Act, but are instead based on §§ 4600 and 4600.5 of the California Civil Code. Section 40-4-222, MCA, declared the Legislature's intent to "assure minor children frequent and continuing contact with both parents after the parents have separated or dissolved their marriage" and that where in the best interest of the child, joint custody should be awarded to accomplish that purpose. Section 40-4-224(1) and (2), MCA, provides that "[u]pon application of either parent ... the court shall presume joint custody is in the best interest of a minor child" and that "[t]he 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...."

Subparagraph (3) of § -224 provides that "[a]ny order for joint custody be modified pursuant to 40-4-219 to terminate the joint custody."

While § -224 provided that the allotment of time between parents must be based on the...