In Re the Marriage of Hoodenpyle , 241 Mont. 345 ( 1990 )

No. 89-378
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
IN RE THE MARRIAGE OF
SUE SANDERSON HOODENPYLE,
Petitioner and Appellant,
and
IVAN W. HOODENPYLE,
Respondent and Respondent.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel Roth, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Brett C. Asselstine, Great Falls, Montana
For Respondent:
Mike Fanning; Scott & Tokerud, Great Falls, Montana
Submitted on Briefs: Jan. 18, 1990
Decided: February 114, 1990
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5-
Filed: o
Justice William E. Hunt, Sr., delivered the Opinion of the Court.
Sue Sanderson Hoodenpyle, petitioner and appellant, appeals
from an order of the District Court of the Eighth Judicial
District, Cascade County, denying her motion to modify custody.
We affirm.
This Court summarizes the issue on appeal as whether the
District Court erred in finding that appellant failed to establish
the statutory factors set forth in 5 40-4-219, MCA, as required for
a modification of custody.
The parties were married on February 5, 1983. Two children
were born of the marriage--Sheila Ann and Mitchell Gary, both
preschoolers. On September 10, 1987, Sue filed a petition for
dissolution of the parties marriage. Both parties sought custody
and Ivan Hoodenpyle, respondent, was granted temporary custody
during dissolution proceedings. Subsequently, the parties
stipulated that Ivan would have temporary custody. A decree of
dissolution was entered on February 2, 1988, which granted the
parties joint custody with Ivan as the primary custodian. The
parties both resided in Cascade, Montana, at that time. Sue had
visitation of the children alternating weeks although no specific
visitation order was put into effect. Sue was ordered to maintain
a health insurance policy on the children.
Also on February 2, 1988, Sue remarried and twin daughters
have since been born of the marriage. Sue and her new family
continue to reside in Cascade while Ivan now resides with the
children in Great Falls, Montana.
On June 6, 1988, Sue filed a motion to modify custody, which
was resisted by Ivan. The parties stipulated to a homestudy on
each of the parties. The homestudy was conducted by a social
worker employed by the Department of Family Services.
A hearing on the matter was held on April 7, 1989. Several
witnesses testified, including the social worker who conducted the
homestudy, and exhibits were introduced, including the homestudy
report of the Department of Family Services. The social worker
testified as to her home investigations as documented in the
homestudy report. She stated that Ivan's housekeeping standards
were "marginalt1 but that her investigation of his home did not
reveal any evidence of dirty dishes, dirty laundry, or garbage.
The social worker further testified that Sue was a better
disciplinarian but other testimony revealed that disciplinary
measurers taken by Ivan were very similar. The social worker also
stated that when she visited Ivan's home, Mitchell "looked real
scruffy.I' However, the social worker did testify that the
children, who had arrived at Sue's home from Ivan's home, were well
dressed and well kept. The homestudy report also set forth the
statements of ~heila'spreschool teacher who stated that there was
not any difference in Sheila s "dress, hygiene and attitudet'
despite which parent had physical custody of her.
On April 13, 1989, the District Court entered its findings of
fact, conclusions of law and order. The court denied Suetsmotion
to modify the joint custody arrangement and ordered a continuation
of child support and health insurance plans set forth previously.
The court further ordered that Sue shall have visitation of the
children on alternate weeks until their school schedule makes the
arrangement impracticable. From the order Sue appeals.
The standard of review in a custody determination is that this
Court will not disturb a district court's findings unless there is
a "clear preponderance of evidence against such findings. Cameron
v. Cameron (1978), 179 Mont. 219, 227, 587 P.2d 939, 944. See also
In re the Marriage of Ereth (Mont. 1988), 757 P.2d 1312, 45 St.Rep.
1223. The District Court's order will be upheld unless a clear
abuse of discretion is shown. In Re the Marriage of Rolfe (1985),
216 Mont. 39, 699 P.2d 79, 82.
Here, Sue alleges that, because the homestudy report
recommended physical custody of the children be awarded to her, the
District Court erred in continuing the joint custody arrangement
on an alternating weekly basis with Ivan as primary custodian. We
disagree.
Montana favors joint custody. Section 40-4-222, MCA. An
award of joint custody, in accord with 5 40-4-223, MCA, is to be
made according to the best interests of the child as set forth in
5 40-4-212, MCA.
Here, the District Court instituted a joint custody
arrangement where Sue would have visitation alternating weeks until
the arrangement interfered with the children's school schedule.
Both children are of preschool age.
Once a custody arrangement is established, a party may move
for modification under 5 40-4-219, MCA. However, one moving for
a modification under the statute must prove that a change has
occurred in the circumstances of the children or custodian that
necessitates the change in accord with the best interest
considerations set forth in 5 40-4-212, MCA. Section 40-4-219,
MCA, provides:
The court may in its discretion modify a prior custodv
decree if 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 the entry of the prior decree, that
a change has occurred in circumstances of the child or
his custodian and that the modification is necessary to
serve the best interests of the child and it if further
finds that:
(c) the child's present environment endanqers 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. (Emphasis ours.)
Here, while the record reflects that Sue's home may be better
maintained, we cannot say that Ivan's housekeeping shortcomings
endanger the children seriously in any way. Sue has failed to
convince this Court, as she failed to convince the District Court,
that a change in circumstances has occurred which necessitates a
modification of custody in accord with the best interests of the
children. There was no abuse of discretion.
Affirmed.
We Concur:
Justices
Justice Diane G. Barz dissenting.
I would reverse and remand this case for further consideration
of evidence concerning Ivan Hoodenpylevs fitness to serve as
residential custodian of Sheila and Mitchell.
Appellant Sue Fey met the jurisdictional test of § 40-4-
219(1), MCA, justifying the District Court's determination of a
modification of custody. Both the majority in this opinion and the
District Court focused on the least significant and most
superficial issue raised in regard to the potential for serious
endangerment to these children: Respondent's ability as a
housekeeper.
The majority disregards evidence of respondent's abuse of
various chemical substances. Respondent reportedly had difficulty
relating to the children of a woman he lived with for an extended
period prior to marrying appellant. These difficulties extended
to respondent's verbal abuse of the children, a pattern carried out
in his treatment of Sheila and Mitchell during the home
investigation conducted by Jan Schindell. Respondent further has
a history of domestic abuse, and was once arrested on such a
charge. There is evidence respondent repeatedly left Mitchell and
Sheila in the care of Ron Latin who was recently convicted of
selling illegal drugs. Respondent demonstrated marked bitterness
and hostility toward appellant and refused to desist in his
criticism of her in the presence of the children even when
requested to do so by the social worker. Appellant indicates that
respondent has interfered with her visitation. The respondent in
*b
fact requested that the lower court reduce her visitation to one
weekend per month. While there is evidence of the children's good
physical health and acceptable appearance, I would point out that
Sheila and Mitchell spent every other week with appellant during
the time period in which Jan Schindell conducted the home study.
The home study indicates appellant's home is comfortable and the
environment stable and nurturing. Sheila and Mitchell appeared to
relate well to their step-father and baby sisters.
Respondent's substance abuse, his history of domestic violence
and verbal abuse create a very real potential for the serious
endangerment of the physical, mental and emotional well-being of
these young children. Having leapt the jurisdictional hurdle, the
District Court must consider the best interests of the children.
In this case, their best interests certainly lies with appellant.
The potential for harm far outweighs the negative impact of a
change in custody mitigated in any event by the rotating visitation
schedule.
Recently we held that when a step-parent's verbal hostility
coupled with periodic substance abuse created an unpleasant home
environment the District Court properly modified custody. In re
the Marriage of Anderson (Mont. 1989), 783 P.2d 1372, 46 St.Rep.
2155. The only physical abuse alleged in that case was committed
by the step-parent against the family dog. The facts of the
instant case give more immediate and compelling cause for concern.