In Re the Marriage of Hay , 241 Mont. 372 ( 1990 )

No. 8 9 - 3 6 0
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
IN RE THE MARRIAGE OF
ALAN MORRISON HAY,
Petitioner and Appellant,
and
HELEN LOUISE HAY,
Respondent and Respondent.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Leif Erickson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gregory E. Paskell, Kalispell, Montana
For Respondent:
M. Dean Jellison, Kalispell, Montana
Submitted on Briefs: Jan. 4, 1990
Decided: February 15, 1990
J u s t i c e Fred J. Weber d e l i v e r e d t h e Opinion o f t h e Court.
This appeal a r i s e s from an o r d e r modifying c u s t o d y by
the District Court, Eleventh Judicial District, Flathead
County, Montana. Mr. Hay a p p e a l s . W affirm.
e
The s o l e i s s u e p r e s e n t e d f o r o u r r e v i e w i s whether t h e
D i s t r i c t C o u r t e r r e d i n modifying a c u s t o d y o r d e r .
Alan and Helen Hay were married on April 10, 1978.
Their daughter, H e a t h e r , was born on May 1 0 , 1980. Mr. Hay
was manager o f D e s e r t Mountain F o r e s t P r o d u c t s , I n c . William
Hay, t h e b r o t h e r o f Alan Hay, was owner o f D e s e r t Mountain
Guest Ranch. A s an i n c i d e n t of h i s employment, M r . Alan Hay
and h i s f a m i l y r e s i d e d a t t h i s r a n c h , which i s l o c a t e d n e a r
West G l a c i e r , Montana.
In September 1985, M r . Hay f i l e d for dissolution. A
d e c r e e o f d i s s o l u t i o n was e n t e r e d by d e f a u l t on October 2 3 ,
1985. The d e c r e e awarded s o l e c u s t o d y of Heather t o M r . Hay.
On November 6 , 1985, M s . Hay f i l e d a motion t o s e t a s i d e t h e
default. In this motion Ms. Hay alleged that Mr. Hay
"lulled" her i n t o a l l o w i n g t h e d e f a u l t t o he e n t e r e d , and
a l s o t h a t he misrepresented t h e m a r i t a l e s t a t e . The c o u r t
held a hearing on this motion on February 28, 1986, and
determined t h a t M s . H a y ' s a l l e g a t i o n s were u n s u b s t a n t i a t e d .
Accordingly, t h e motion t o s e t a s i d e t h e d e f a u l t was d e n i e d .
However, t h e c o u r t ' s c o n c l u s i o n s o f law s t a t e d , "Custody o f
the minor child may be reviewed by the court upon a proper
application pursuant to 5 40-4-219 et seq." The court issued
its order denying the motion on January 12, 1987.
After the dissolution, Ms. Hay continued to reside at
the ranch. Initially, Mr. Hay agreed that Ms. Hay could live
at the ranch while she became recertified as a hairdresser.
After obtaining recertification, Mr. Hay requested that Ms.
Hay vacate the premises. However, Ms. Hay refused to move.
Because Mr. and Ms. Hay continued to reside in the same
residence after the dissolution, their relations became very
strained, occasionally resulting in physical violence. On
one occasion law enforcement was called to intervene. The
child, Heather, witnessed these altercations.
On February 2, 1987, Ms. Hay filed a motion to modify
the decree, by changing the custody arrangement to joint
custody. In an affidavit in support of the motion, filed
pursuant to 40-4-220, MCA, Ms. Hay alleged that she had
been primary caretaker of Heather since the dissolution, and
that severe tension existed under the present circumstances
which had an adverse psycholoqical impact on the child. Mr.
Hay filed an affidavit in opposition to the motion. The
District Court found that the affidavits presented facts
demonstrating a possibility that the child's environment
seriously endangered her mental or emotional health. It
therefore ordered a hearing on the matter.
A hearing was held on April 14, 1987. At this hearing
both parents testified, as well as the deputy sheriff for
Flathead County. The court interviewed Heather privately.
All parties confirmed the tension and physical violence which
had erupted as a result of the living arrangement. After
this hearing, on May 26, 1987, the court entered findings of
fact and conclusions of law, noting the severe family prob-
lems, including physical violence. The court ordered Ms. Hay
to vacate the ranch and establish her own residence. It
determined that custody of Heather should remain with Mr.
Hay, subject to liberal visitation by Ms. Hay, pending a
final hearing on the merits. The court also ordered Family
Court Services to counsel both parties and prepare a report
for the court. Additionally, the court stated that all other
matters would be held in abeyance pending a final hearing and
order.
On October 19, 1988, the court held a final hearing on
the motion to modify custody. At this hearing testimony was
taken from Mr. and Ms. Hay, several friends and relatives,
and again the court interviewed Heather privately. At this
time the court also had for its consideration reports from
Family Court Services.
On March 6, 1989, the District Court issued its final
order, modifying the custody to joint custody, with Ms. Hay
as residential parent, allowing liberal visitation to Mr.
Hay. The court determined that both Mr. and Ms. Hay were
suitable parents, and that during the two years in which the
proceeding had been in progress the child had resided with
her father, yet expressed a strong desire to live with her
mother. The court determined that Ms. Hay had established a
comfortable, neat home and that joint custody would be in
Heather's best interest. Mr. Hay contends that the court
erred in making this modification of custody.
The statute governing modification of custody,
§ 40-4-219, MCA, provides in pertinent part:
Modification. (1 The court may in its
discretion modify a prior custody 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 entry of the prior decree,
that a change has occurred in the circumstances of
the child or his custodian and that the modifica-
tion is necessary to serve the best interest of the
child and if it further finds that:
(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[.]
According to this statute, prior to modifying custody, the
court must find that "a change has occurred in the circum-
stances of the child, that the modification is in the best
interests of the child, and that the requirement of one of
the subsections is satisfied." Marriage of Anderson (Mont.
1989), 783 P.2d 1372, 1373, 46 St. Rep. 2155, 2157. In the
present case the District Court determined that subsection
(c) was satisfied, in that the child's present environment
seriously endangered her mental and emotional health, and
that the advantages of a change of environment outweighed the
harm.
Mr. Hay contends that the District Court misapplied the
statutory requirement of "serious endangerment." He contends
that Ms. Hay created the environment which seriously endan-
gered her daughter's welfare, by her refusal to vacate the
ranch. He contends that Ms. Hay cannot premise the need for
a change in custody based on a dangerous environment which
she has created.
In addressing this contention, we first note that al-
though the District Court determined that the residential
arrangement, wherein Mr. and Ms. Hay continued to live to-
gether after the divorce, was the cause of the tense environ-
ment, the court did not place the "blame" for this situation
on either party. Further, the statute itself is neutral as
to the cause of the detrimental environment. We conclude
that the District Court did not misapply the finding of
serious endangerment.
Mr. Hay further contends that the District Court failed
to make a finding of changed circumstances, as required by
the statute. Mr. Hay relies on In Re Custody of Andre (Mont.
1988), 761 P.2d 809, 45 St.Rep. 1745, for the holding that a
finding of changed circumstances must be made by the court.
In the case of In Re Custody of Andre the child had resided
with the mother for nine years. On a motion to modify custo-
dy the District Court awarded custody to the father. We
remanded for a determination of whether a change of circum-
stances had occurred, or whether an exception existed whereby
a change of circumstances need not be shown. - - Custody
In re
- Andre, 761 P.2d at 812.
of This Court noted the purpose of
the changed circumstances rule, quoting Burchard v. Garay
follows :
The changed-circumstances rule is not a different
test, devised to supplant the statutory test, but
an adjunct to the best-interest test. It provides,
in essence, that once it has been established that
a particular custodial arrangement is in the best
interests of the child, the court need not reexam-
ine that question. Instead, it should preserve the
established mode of custody unless some significant
change in circumstances indicates that a different
arrangement would be in the child's best interest.
The rule thus fosters the dual goals of judicial
economy and protecting stable custody arrangements.
(Citations omitted.)
-- - Custody - Andre, 761 P.2d at 811.
In re of
The requirement of changed circumstances applies even
where the initial custody determination was made by a default
decree, as it was in this case. "Whether the order respect-
ing custody has been granted after a full adversary
proceeding or after a default divorce, as in this case, the
considerations are the same." Svennungsen v . Svennungsen
(1974), 165 Mont. 161, 166, 527 P.2d 640, 643. However. in
Svennungsen we also stated:
We do not want to be understood as implying
that a substantial change in circumstances would be
required as a threshold finding in every factual
situation before the issue of custody could be
litigated on a petition to modify custody. Al-
though the case is not before us, we would be
receptive to the proposition that a showing of
unfitness on the part of the person having custody,
or some other justifiable grounds, might suffice
and, despite a failure to show a substantial change
of circumstances, enable the district court to
consider the issue n f custody on a petition t n
modify custody.
Svennunqsen, 527 P . 2 d at 643.
From our review of the record it is clear that the
severe tension and hostility between Mr. and Ms. Hay arose
after the dissolution, and was not contemplated by the par-
ties or by the court at the time the decree was entered. The
strained relations between Mr. and Ms. Hay constituted
changed circumstances. Thus Mr. Hay's contention that there
were no changed circumstances fails factually.
In this case the District Court very carefully and
extensively considered the motion to modify custody. It held
two separate hearings on the matter, and considered reports
by Family Court Services. We conclude that the District
Court properly applied the statutory factors to the facts of
this case. We affirm the District Court in its modification
of the custody arrangement to joint custody.
Chief Justice
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d Justices