Paternity and Custody of J.E.H. ( 1995 )

No. 94-387
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
IN RE THE PATERNITY AND CUSTODY OF:
J.E.H., a minor child.
SEAN HOLMAN,
Petitioner and Respondent,
v
SAMANTHA BEAUBIEN,
Respondent and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
1n and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Brett C. Asselstine, Attorney at Law, Great Falls,
Montana
For Respondent:
Nathan J. Hoines and Marvin Anderson, Attorneys
at Law, Great Falls, Montana
Submitted on Briefs: June 15, 1995
Decided: July 25, 1995
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Samantha Beaubien appeals the decision of the Eighth Judicial
District Court, Cascade County, granting Sean Holman's motion to
modify the parties' custody agreement. We affirm
The sole issue is whether the District Court erred in granting
Holman's motion to modify the custody agreement.
We review a district court's findings of fact concerning
modification of a custody agreement to determine whether the
findings are clearly erroneous. In Re the Marriage of McClain
(1993), 257 Mont. 371, 849 P.2d 194. We review a district court's
conclusions of law to determine whether its interpretation of the
law is correct. Steer, Inc. v. Dept. of Revenue (1990), 245 Mont.
470, 803 P.2d 601Decisions concerning modification of primary custodial rights,
without altering the parties' status as joint legal custodians, are
governed by § 40-4-219, MCA. In Re the Marriage of Johnson (1994),
266 Mont. 158, 879 P.2d 689. In Johnson, we concluded that:
a motion or petition to modify child custody provisions
in a dissolution decree which have the effect of substan-
tially changing the primary residence of the parties'
children, even though the formal designation of "joint
custody" is retained, are to be construed as motions or
petitions to terminate joint custody and must satisfy the
jurisdictional requirements set forth in 5 40-4-219, MCA.
Johnson, 879 P.2d at 694.
After reviewing the record, we conclude that the District
Court correctly determined that the requirements of § 40-4-219,
MCA, had been satisfied. The record indicates that a change of
circumstances occurred necessitating a modification of custody to
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serve the child's best interest. The record also supports the
District Court's conclusion that allowing J.E.H.'s mother to retain
custody seriously endangered J.E.H.'s physical, mental, moral or
emotional health and the harm likely to be caused by a change of
environment is outweighed by its advantages to her. The record
also indicates that J.E.H.'s mother willfully and consistently
attempted to frustrate or deny the father's visitation rights. See
§ 40-4-219, MCA.
We conclude that the District Court's findings are not clearly
erroneous and its interpretation of the law is correct. According-
ly, we affirm the decision of the District Court.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to the State Reporter and West Publishing Company.
Vhief Justice
We concur:
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prepaid, to the
COURT
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