Marriage of Corbett

No. 81-198 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981

IN RE THE MARRIAGE OF DENNIS P. CORBETT, Petitioner and Respondent, VS . SUSAN M. CORBETT, Respondent and Appellant.

Appeal from: District Court of the Eleventh Judicial District, In and for the County of Flathead Honorable James M. Salansky, Judge presiding. Counsel of Record: For Appellant: Morales, Volinkaty & Harr, Missoula, Montana For Respondent: Robert B. Allison, Kalispell, Montana Daley, Sherlock & Nardi, Kalispell, Montana

Submitted on briefs: October 1, 1981

Decided: N OV 1 2 1981 Filed: BO\I ' ; I . -$

Mr. Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal by Susan M. Corbett Adler, the mother of two children, from an order granting her ex- husband Dennis P. Corbett's motion for a modification of the divorce decree which changed the custody of two minor children from the mother to the father and denied her counterpetition for a modification seeking additional child support . The issues before this Court are: 1. Whether the District Court applied the correct standards in making its decision to grant respondent's petition for a change of custody? 2. Whether, even if the District Court applied the correct standards in making its decision to grant the respondent's request for a change of custody, there was sufficient evidence to support that decision? The parties to this action were married on October 26, 1968, at Ronan, Montana. Two children were born of the marriage--namely, James Patrick Corbett, born March 25, 1969, and Christine Marie Corbett, born April 17, 1972. The marriage was dissolved February 14, 1977, by the Honorable James M. Salansky, who is also the presiding judge in this modification proceeding. A property settlement agreement executed by the parties was incorporated in the decree of dissolution. In that agreement, and in the decree of dissolution, the mother was granted the care, custody and control of the two minor children with the father to have certain visitation rights. It should be noted that at the time the original ruling was made, the court had a report submitted by Tom

Best, the director of family court services, on his i n v e s t i g a t i o n and recommendations. Best recommended S u s a n b e awarded c u s t o d y b a s e d upon the assumptions t h a t Dennis was n o t in a position at that time t o serve as a single p a r e n t a n d t h a t S u s a n would move t o N a s h u a , Montana, w h e r e s h e would r e s i d e w i t h a b r o t h e r on h i s r a n c h and would h a v e h i s assistance i n s u p e r v i s i o n of the children a s we11 a s c o n t i n u o u s employment on t h e ranch. Best, in his report, recommended t h a t t e m p o r a r y c u s t o d y be p l a c e d i n S u s a n s o t h e court i n F l a t h e a d C o u n t y c o u l d m a i n t a i n some c o n t r o l o v e r the custody. One of the reasons given in his testimony concerning t h e temporary custody a t t h e t i m e of t h e o r i g i n a l d i v o r c e was that Susan had been seriously injured in an a u t o m o b i l e a c c i d e n t i n 1969 and s i n c e t h a t t i m e had s u f f e r e d a p a r t i a l d i s a b i l i t y d u e t o t r a u m a t i c b r a i n damage and had been s u b j e c t t o p e r i o d i c e p i l e p t i c s e i z u r e s .

The r e c o r d i n d i c a t e s S u s a n r e s i d e d o n l y b r i e f l y w i t h her brother i n Nashua. She t h e n r e t u r n e d w i t h h e r c h i l d r e n to her home community of Charlo, Montana, where she was r e s i d i n g a t t h e time of t h e hearing.

The c o u r t n o t e d in its findings of f a c t that ordin a r i l y e v i d e n c e of e v e n t s and s i t u a t i o n s e x i s t i n g p r i o r to t h e d i s s o l u t i o n were inadmissible. I n view of the above factors, however, t h e c o u r t d e t e r m i n e d t h e b a c k g r o u n d would demonstrate t h e reasons f o r t h e o r i g i n a l custody arrangement and deemed i t r e l e v a n t t o t h e p r o c e e d i n g s on c u s t o d y m o d i f i -cation. The e v i d e n c e i n d i c a t e s S u s a n f r e q u e n t l y left the

c h i l d r e n a t home u n a t t e n d e d d u r i n g t h e y e a r s s h e had c u s t o d y o f them. I n a d d i t i o n , s e v e r a l t i m e s when t h e c h i l d r e n w e r e

with her S u s a n had some t y p e o f s e i z u r e and e i t h e r had a n a u t o m o b i l e a c c i d e n t o r was p r e v e n t e d f r o m h a v i n g o n e by t h e children in the car. There a l s o was testimony, although c o n t r o v e r t e d , t h a t S u s a n had a p r o b l e m o f a l c o h o l a b u s e t h a t r e q u i r e d t r e a t m e n t which s h e had e i t h e r r e f u s e d o r had n o t obtained. S h e a d m i t t e d t h a t on a number of occasions she l e f t t h e c h i l d r e n u n a t t e n d e d w h i l e s h e went t o t h e b a r s t o drink. S u s a n d i d s u b m i t t o a n e v a l u a t i o n by t h e Comprehens i v e A l c o h o l i c Program i n Ronan d u r i n g these proceedings. S h e a d m i t t e d h a v i n g d r i n k i n g e p i s o d e s b u t d e n i e d s h e had a n a l c o h o l problem o r was s u f f e r i n g a n y i l l n e s s f r o m a l c o h o l abuse.

During the summer of 1980, the c h i l d r e n were w i t h their father, Dennis, a n d h i s new w i f e . They r e t u r n e d t o their mother i n Charlo on a p p r o x i m a t e l y August 4 to get r e a d y t o go t o s c h o o l a c c o r d i n g t o t h e p a r t i e s ' predissolution agreement. After having the children and observing them during the summer vacation, Dennis and his wife d e t e r m i n e d i t was n e c e s s a r y t o r e q u e s t a m o d i f i c a t i o n o f t h e d i v o r c e d e c r e e and t o o b t a i n c u s t o d y o f t h e two c h i l d r e n .

The f i r s t h e a r i n g was h e l d on A u g u s t 29, 1 9 8 0 . Susan appeared pro s e . A l s o p r e s e n t was an a t t o r n e y who had b e e n a p p o i n t e d by t h e c o u r t t o a p p e a r f o r t h e c h i l d r e n . T e s t i m o n y was presented indicating the nature of Susan's problems i n c l u d i n g t h e e p i l e p t i c s e i z u r e s and t h e f a c t t h a t money had been sent to the children by various members of their father's family but which they never received. Susan admitted s h e had used t h e money for other purposes. One c h e c k s e n t by a r e l a t i v e had been cashed at a tavern in Charlo. S u s a n i n t r o d u c e d e v i d e n c e t h a t b e c a u s e t h e r e was no bank i n Charlo, t h e b a r was one o f t h e f e w p l a c e s where a c h e c k c o u l d be c a s h e d .

At the hearing , rebuttal testimony was presented c o n c e r n i n g s e v e r a l c a l l s made t o D e n n i s and h i s w i f e , L i n d a , by David Adler, a friend of Susan, late in June 1980. During these telephone c a l l s Adler told Dennis and Linda that Susan was an alcoholic, an unfit mother, left the c h i l d r e n u n a t t e n d e d , b e a t them w i t h a b e l t , and t h a t he a l s o was a n a l c o h o l i c . He o f f e r e d t o a s s i s t Dennis w i t h l e g a l f e e s t o g e t t h e c h i l d r e n away from S u s a n .

Based on t e s t i m o n y a t t h e h e a r i n g on A u g u s t 29, the c o u r t g r a n t e d temporary c u s t o d y of t h e c h i l d r e n t o Dennis, requested that Susan be evaluated, and scheduled a full h e a r i n g on O c t o b e r 2 , 1980. C o u n s e l f o r S u s a n a p p e a r e d on h e r b e h a l f o n S e p t e m b e r 11, 1 9 8 0 , and f i l e d a m o t i o n f o r a m o d i f i c a t i o n and a c o u n t e r p e t i t i o n .

At the October 2 hearing a number of additional witnesses were called by both p a r t i e s . Thomas B e s t , the d i r e c t o r of family court services, explained t o the court why he had made his recommendations at the time of dissolution. He i n d i c a t e d t h a t , i n h i s opinion, "school is t h e b e s t window o f how t h e c h i l d r e n a r e p e r f o r m i n g " i n any given family situation. There was testimony by the p r i n c i p a l of t h e C h a r l o s c h o o l i n d i c a t i n g t h a t w h i l e b o t h of the Corbett children were bright and had good school records, their grades had deteriorated during the last school year.

David A d l e r , who had m a r r i e d S u s a n on J u l y 1 5 , 1 9 8 0 , testified that he had been drunk when he made the June t e l e p h o n e c a l l s t o D e n n i s a c c u s i n g S u s a n of b e i n g u n f i t and an a l c o h o l i c . H e s t a t e d t h a t h e had made t h e c a l l s b e c a u s e he had q u a r r e l e d w i t h S u s a n and he was u s i n g t h e c h i l d r e n a s a pawn a g a i n s t t h e mother. At the October 2 hearing he t e s t i f i e d t h a t he d i d n o t f e e l S u s a n was a poor m o t h e r o r a n alcoholic, and h e d i s a v o w e d the things he said about her during the telephone c a l l s .

Both i s s u e s p r e s e n t e d f o r review w i l l be c o n s i d e r e d as one in our discussion upholding the action of the District Court. Section 40-4-219, MCA, sets forth the s t a n d a r d s and g u i d e l i n e s i n c o n s i d e r i n g a m o t i o n t o m o d i f y custody. T h r e e s u b s e c t i o n s d e f i n e when a c h a n g e o f c u s t o d y can be granted: (a) the custodian agrees to the modification; (b) the child has been integrated into the f a m i l y of t h e p e t i t i o n e r w i t h t h e c o n s e n t of t h e c u s t o d i a n ; or ( c ) the child's present environment endangers s e r i o u s l y h i s physical, mental, moral, or emotional h e a l t h , and harm l i k e l y t o b e c a u s e d by a c h a n g e o f e n v i r o n m e n t i s o u t w e i g h e d by t h e a d v a n t a g e s t o him.

Subsection ( a ) is n o t a t i s s u e h e r e because t h e r e is

no a g r e e m e n t f o r a m o d i f i c a t i o n . Nor is s u b s e c t i o n ( b ) a t issue here. A p p e l l a n t a r g u e s t h e judge m i s t a k e n l y took t h e

f a c t t h a t t h e c h i l d r e n were w i t h t h e i r f a t h e r f o r t h e summer visitation and later for approximately a month under the c o u r t ' s temporary c u s t o d y t o c o n s t i t u t e an i n t e r g r a t i o n i n t o t h e f a t h e r ' s home w i t h t h e c o n s e n t o f the custodian. That is not what the district judge found. Nothing in his f i n d i n g s o f f a c t and c o n c l u s i o n s o f law a p p l y s u b s e c t i o n ( b ) in t h i s matter. T h i s C o u r t h a s p r e v i o u s l y r u l e d i n Weber v . Weber ( 1 9 7 8 ) , 176 Mont. 144, 576 P.2d 1102, that summer visitation does not constitute integration into the noncustodial parent's family. What the District Court a c t u a l l y f o u n d h e r e was t h a t t h e c h i l d r e n had a d a p t e d w e l l t o t h e i r f a t h e r ' s home.

This leaves us with the District Court's application of s u b s e c t i o n ( c ) i n changing t h e custody. That subsection, a s n o t e d a b o v e , r e q u i r e s t h e c o u r t t o f i n d upon t h e b a s i s o f facts there has been a change of circumstances since t h e

original custody decree and that the modification is necessary in the best interests of the children. The

statute also requires that the court find the child's present environment seriously endangers his physical, m e n t a l , m o r a l o r e m o t i o n a l h e a l t h and t h a t t h e harm l i k e l y t o be c a u s e d by t h e c h a n g e o f e n v i r o n m e n t i s o u t w e i g h e d by t h e a d v a n t a g e s t o t h e c h i l d making t h e change. Here, the c o u r t f o u n d t h e r e was a c h a n g e of c i r c u m s t a n c e s ; the court f o u n d a n e n d a n g e r m e n t ; t h e c o u r t f o u n d t h e harm l i k e l y t o be c a u s e d by t h e c h a n g e was o u t w e i g h e d by t h e a d v a n t a g e s t o t h e c h i l d r e n a n d s u c h c h a n g e was i n t h e i r b e s t i n t e r e s t s . The c o u r t a p p l i e d t h e c o r r e c t s t a n d a r d s i n making i t s d e c i s i o n , and w e c a n f i n d no a b u s e o f d i s c r e t i o n .

This Court has said many times regarding the discretion of the District Court in child custody cases that:

" I n r e v i e w i n g o r d e r s which a f f e c t t h e c u s t o d y of t h e c h i l d , t h i s C o u r t is m i n d f u l t h a t t h e primary duty of deciding the proper custody o f c h i l d r e n i s a t a s k of t h e D i s t r i c t C o u r t . Thus, a l l reasonable presumptions a s t o c o r r e c t n e s s of t h a t d e t e r m i n a t i o n w i l l be made. No r u l i n g w i l l be d i s t u r b e d a b s e n t a c l e a r showing t h a t t h e D i s t r i c t C o u r t ' s d i s c r e t i o n was a b u s e d . " Foss v. L e i f e r ( 1 9 7 6 ) , 1 7 0 Mont. 97, 550 P.2d 1 3 0 9 , 1 3 1 1 .

Here the court made extensive findings that are c l e a r l y s u p p o r t e d by t h e e v i d e n c e , and we f i n d no a b u s e o f discretion. The decision of the District Court is affirmed. We concur:

?A& Xj&MUzQQ A h i e f Justice