In Re the Custody of Dumont , 216 Mont. 118 ( 1985 )

No. 85-13
IN THE SUPFU3ME COURT OF THE STATE OF MONTANA
1985
IN F G THE CUSTODY OF
EDWARD C. DUMONT.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable Douglas Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
K. PI. Bridenstine, Polson, Montana
For Respondent:
Manley & Smith; James A. Manley, Polson, Montana
Submitted on Briefs: March 21, 1985
Decided: May 13, 1985
Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
The mother, Colleen M. All.ison, formerly Colleen M.
DuMont, appeals from a child custody modification ord-er. She
was the custodial parent of Ed-ward Charles DuMont, her
natural son from marriage to the father, Edward DuMont. The
father had petitioned for modification. The District Court
concluded that there was good and sufficient basis to modify
the custody awarded in the original dissolution decree issued
when the parties' marriage was dissolved.
We affirm.
The mother and the father were married in Charlo,
Montana, in 1 9 7 7 . The mother had one daughter prior to this
marriage. One child, a son, Edward Charles DuMont, was born
of this marriage. This marriage was dissolved in 1 9 7 9 . The
mother was awarded custody of Edward Charles, then a year
old.
In 1 9 8 0 the mother married Allison a.nd had two more
children of this marriaqe. Allison is an oil field. worker
whose employment requires that he and his family move to
different locations.
The father married again in 1 9 8 1 . He has remained in
the Charlo, Montana area. His second marriage also produced
two more children.
In 1 9 8 3 the father sought modification of the custody
award contained in the 1 9 7 9 dissolution decree. At trial on
the matter the District Court found. that the child, Edward
Charles, now age seven, had been moved to seven different
locations in. the five years since dissolution. The court
found that the family had often lived in crowded and
substandard housing conditions without adequate health care.
At times Edward Charles was not furnished a bed to sleep in
and was singled out from his siblings for harsh, repeated,
inappropriate, and excessive physical discipline. He
exhibited signs of abuse by, and fear of, his stepfather. He
desired to live with his natural father. The District Court
found that the natural father had superior child raising and
discipl-ine practices and stability and security over that
which Edward Charles DuMont had been subiect to under custody
of the mother. The District Court found that the mother was
neither a credible nor candid witness.
Three issues are presented for review:
(1) Whether there was sufficient evidence of serious
endangerment of a child to meet the jurisdictional
requirement of S 40-4-219(1) (c), MCA.
(2) Whether sufficient evidence supports the District
Court's findings, conclusions, and order modifying custody
and interrupting the continuity of custody pursuant to S
40-4-219 (1)(c), MCA.
(3) Whether the father met the required burden of proof
to support his contention that the advantage of modification
outweighed custodial continuity pursuant to S 40-4-219(1) (c),
MCA .
The first issue is whether there was sufficient evidence
of serious endangerment of a child to meet the jurisdictional
requirements in a custody modification. We hold that the
requirement was properly met.
We note at the outset that a District Court's
jurisdiction in matters of custody is continuing in nature.
Gianotti v. McCracken (1977), 174 Mont. 209, 213, 569 P.2d
929, 931. The jurisdictional requirement in issue here is
one concerning what has been denominated a jurisdictional
prerequisite. In In re the Custody of Dal-lenger (1977), 173
Mont. 530, 568 P.2d 169, this Court held that the subsections
in § 48-339(2), R.C.M. (1947), which are now contained in the
subsections in 40-4-219 (I), MCA, are jurisdictional
prerequisites to modification which were placed there to
serve the basic policy behind the entire section, the policy
of custodial continuity. Dallenger, 568 P.2d at 172. The
jurisdictional prerequisite in issue here is contained in §
40-4-219 (1)(c), MCA:
"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
modification is necessary to serve the best
interest of the child and if it further finds that:
" (c) the child ' s present environment endangers
seriousl-y 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; .. .I'
For the District Court to have jurisdiction to modify a
custody decree in a case where what is now § 40-4-219(1) (c),
MCA, is applicable there must be a finding of danger to the
physical, mental, moral, or emotional health of the child in
the present environment and a finding that the harm likely to
be caused by such a change is outweighed by its advantages to
the child. Dallenger, 568 P.2d at 171. Only the first part
of 6 40-4-219(1) (c), MCA, serious endangerment, is presented.
for review in the first issue.
The District Court may not modify custody on
considerations of best interest and change in circumstances
if it has not found at the outset that the child's welfare is
seriously endangered by the present custody arrangement. In
re the Marriage of Sarsfield (Mont. 1983), 671 P.2d 595, 599,
40 St-Rep. 1736, 1739. A potential for or a probability of
serious harm is sufficient to satisfy this jurisdictional
prerequisite, that is, this Court will not interpret the
provisions of the modification statute so narrowly as to
prevent trial courts from assuminq jurisdiction over
modification petitions where substantial, credible evidence
of potential danger is presented by a petitioner during the
case-in-chief. Sarsfield, 671 P.2d at 602.
We hold that this jurisdictional prerequisite
requirement was properly met. There is sufficient evidence
of serious endangerment to this child to meet the
jurisdictional requirement. The District Court's finding
that Edward Charles was subjected to harsh, repeated,
inappropriate, and excessive physical discipline and
exhibited signs of abuse and fear of his stepfather is enough
to satisfy the required serious endangerment. We hold that
Edward Charles's welfare was endangered seriously within the
meaning of 40-4-219 (1)(c), MCA.
The second issue is whether sufficient evidence supports
the District Court's findings, conclusions, and order
modifying custody and interrupting the continuity of custody.
We hold that there is sufficient evidence.
After the threshold jurisdictional test is met, that is,
after the jurisdictional prerequisites are satisfied, it is
followed by the substantive test. Reinoehl v. Perry (Mont.
1.984), 691 P.2d 1384, 1386, 41 St.Rep. 2269, 2271. The
substantive test is met when there is a change of
circumstances significant enough i-n relation to the best
interests of the child that those interests are no longer
served by the decree in force. R.L.S. v. ~arkhoff ( ~ o n t .
1983), 674 P.2d 1082, 1087, 40 St.Rep. 1982, 1986. The best
interests of a child in a modification proceeding are judged
by the criteria in § 40-4-212, MCA. R.L.S., 674 P.2d at
1087. Section 40-4-212, MCA, reads:
"Best interest of child. The court shall determine
custody in accorda.nce with the best interest of the
child. The court shall consider all relevant
factors including:
" ( 1 ) the wishes of the child1s parent or parents
as to his custody;
" (2) the wishes of the child as to his custodian;
" (3) the interaction and interrelationship of the
child with his parent or parents, his siblings, and
any other person who may significantly affect the
child's best in.terest;
" (4) the child's adjustment to his home, school,
and community; and
" (5) the mental and physical health of all
individuals involved."
We hold that there was a change of circumstances
significant enough in relation to the best interests of
Edward Charles that it was in his best interests that the
original custody provision be modified. After the original
decree was entered the mother remarried. This marriage
resulted in an itinerant lifestyle with crowded and
substandard housing conditions. It resulted in Edward
Charles being subject to abuse and fear. This is ample
evidence of changed circumstances.
The conclusion that it was in the best interests of
Edward Charles to modify the original decree is further
supported by the finding that the child desired to live with
the natural father. Furthermore, the disciplinary problems
that the District Court found that Edward Charles exhibited
and the abuse that he received demonstrate that his
interrelationship with his mother and stepfather was not in
the child's best interest. We hold that there was sufficient
evidence to support the District Court's findings,
conclusions, and orders modifying custody.
The final issue is whether the father met the required
burden of proof to support his contention that the ad-vantage
of modification outweighed custodial continuity. We hold
that the burden of proof was met.
The party seeking modification of custody has a heavy
burden to prove that modification of a decree is necessary to
serve the best interests of the child. Reinoehl v. Perry
(Mont. 1984), 691 P.2d 1384, 1386, 41 St.Rep. 2269, 2271.
This burden is met, however, if the threshold test and the
substantive test for modification are satisfied. Here we
have already determined that sufficient evidence supported
the District Court's findings and conclusions. The only
remaining element that is involved in a custody modification
that has relevance to this issue and has not been already
addressed is the second jurisdictional prerequisite contained
in 5 40-4-219(1) (c), MCA, that part being that the District
Court must find that the harm likely to be caused by such a
change is outweighed by its advantages to the child. See, In
re the Custody of Dallenger (1977), 173 Mont. 530, 533-534,
568 P.2d 169, 171.
We hold that the father met the required burden of proof
to support his contention that the advantage of modification
outweighed custodial continuity. We find that any harm
likely to be caused by the modification was outweighed by the
advantages of modification. The custody arrangement provided
in the original decree was detrimental. The District Court
found that there was abuse, fear, substandard housing, and
inadequate health care. The District Court found that the
father had superior child raising and discipline practices
and stability and security over that which Edward Charles
DuMont had been subject to. These findings are supported by
substantial evidence.
A£ f irmed.
We Concur: