Schiele v. Sager, 13784

• Decision Date: 16 November 1977
• Docket Number: No. 13784,13784
• Citation: 34 St.Rep. 1358,174 Mont. 533,571 P.2d 1142
• Parties: Linda Sue (Sager) SCHIELE, Petitioner and Appellant, v. Robert L. SAGER, Respondent and Respondent.
• Court: Montana Supreme Court

Page 1142

571 P.2d 1142

174 Mont. 533

Linda Sue (Sager) SCHIELE, Petitioner and Appellant, v. Robert L. SAGER, Respondent and Respondent.

No. 13784.

Supreme Court of Montana.

Submitted Sept. 12, 1977.

Decided Nov. 16, 1977.

Christian, McCurdy, Ingraham & Wold, Polson, Donald K. Peterson, argued, Polson, for petitioner and appellant.

Tipp & Hoven, Missoula, Douglas G. Skjelset, argued, Missoula, for respondent and respondent.

DALY, Justice:

Petitioner appeals from the final judgment of the District Court, Lake County, granting respondent's petition for modification of the parties' decree of divorce and awarding respondent the care, custody and control of the parties' two minor children.

Petitioner and respondent were married at Kalispell, Montana, on June 27, 1968. Their marriage was dissolved by decree of divorce dated March 28, 1973, in the District Court, Lake County. Pursuant to stipulation of the parties the general care, custody and control of the parties' minor children, Richard Lee Sager, age 8 and Sherrie Sue Sager, age 5, was awarded to their mother, the petitioner. Respondent was granted visitation rights and was ordered to provide support for the minor children in the sum of $50 per month per child. Respondent has remained current in his payment of child support. Both parties have remarried. Petitioner resides in Pablo, Montana, while respondent resides in Republic, Washington.

On July 12, 1976, petitioner filed a petition in the District Court, Lake County, seeking an order of the District Court finding respondent in contempt of the divorce decree's visitation provisions and an award of $500 punitive damages. Respondent subsequently filed a petition on August 16, 1976, seeking modification of the divorce decree and an award of the permanent care, custody and control of the minor children. Petitioner similarly filed a petition for modification of the divorce decree on August 18, 1976, seeking a change in respondent's visitation rights and an increase in the amount of respondent's contribution to the support and maintenance of the minor children.

The causes were consolidated and heard by the District Court on September 22 and 24, 1976. On December 8, 1976, the court issued its findings of fact, conclusions of law and judgment, holding that due to the domestic conflict associated with petitioner's remarriage, the best interests of the minor children dictated that the divorce decree of March 28, 1973, be modified to award respondent the care, custody and control of the minor children. Petitioner was awarded visitation rights, no child support was awarded to either party, and each party was to assume his own attorney fees and costs in the action.

Petitioner filed post-trial motions to amend the findings of fact and conclusions of law; to alter or amend the judgment; and an alternative motion for new trial. In its amended judgment of January 17, 1977, the District Court denied petitioner's motions; affirmed its holding in the previous judgment; provided for the District Court's continuing jurisdiction in the matter; and, established a date and procedure for the transfer of the custody of the minor children.

On February 15, 1977, petitioner filed notice of appeal in the District Court. The court stayed execution of its judgment pending petitioner's appeal to this Court.

Petitioner presents four issues for review:

1. Whether the District Court abused its discretion by failing to make findings of fact and conclusions of law in compliance with sections 48-332 and 48-339, R.C.M.1947?

2. Whether the District Court erred when it failed to cause a record to be made of the in-chambers interview of the minor children pursuant to section 48-334(1), R.C.M.1947?

3. Whether the District Court abused its discretion when it denied petitioner's request for the appointment of professional personnel pursuant to section 48-335, R.C.M.1947?

4. Whether the District Court abused its discretion in accepting unfounded reputation testimony and making a finding of reputation on the basis of that testimony?

Petitioner's first issue considers areas of the Uniform Marriage and Divorce Act, heretofore often before this Court. See: Gianotti v. McCracken, Mont., 569 P.2d 929, 34 St.Rep. 1087; In re Custody of Dallenger, Mont.,568 P.2d 169, 34 St.Rep. 938; Lee v. Gebhardt, Mont., 567 P.2d 466, 34 St.Rep. 810; Ronchetto v. Ronchetto, Mont., 567 P.2d 456, 34 St.Rep. 797; Groves v. Groves, Mont., 567 P.2d 459, 34 St.Rep. 790; Holm v. Holm, Mont.,560 P.2d 905, 34 St.Rep. 118. These cases announce the law in Montana governing a petition for change of child custody and modification of a divorce decree.

Section 48-339 establishes the "best interest of the child" test, stated in section 48-332 as the primary consideration controlling any proposed modification of child custody. However, the criteria of the best interest test is not put into effect until the petitioning party seeking modification has satisfied the jurisdictional prerequisites announced in section 48-339:

"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 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 the 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) the custodian agrees to the modification;

"(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) Attorney fees and costs shall be assessed against a party seeking modification if the court finds that the modification action is vexatious and constitutes harassment." (Emphasis added.)

Although the District Court's findings of fact and conclusions of law in the instant case recognize the domestic conflict between petitioner and her present husband, the District Court fails to make a specific finding that there has been a change in circumstances in the children's environment since the prior divorce decree which seriously endangers the children's physical, mental, moral or emotional health and that the harm likely to be caused by a change of environment is outweighed by its advantages to the children. The District Court bases its judgment on the best interest of the children and fails to consider the provisions of section 48-339, enacted to preserve the basic policy of custodial continuity. Such modification of a divorce decree's provisions for the custody of children disregards the provisions of the Uniform Marriage and Divorce Act.

The second issue raised by petitioner concerns the District Court's failure to cause a record to be made of its in-chambers interview with the minor children. Section 48-334(1), R.C.M.1947, provides:

"Interviews. (1) The court may interview the child in chambers to ascertain the child's wishes as to his custodian and as to visitation. The court may permit counsel to be present at the interview. The court shall cause a record of the interview to be made and to be part of the record in the case." (Emphasis added.)

The language of section 48-334(1) provides for the District Court's exercise of discretion in determining whether an in-chambers interview with children is necessary and whether counsel may be present. However, once the District Court determines the in-chambers interview is necessary, section 48-334(1) mandates that a...