Marriage of Brekhus ( 1993 )

NO. 93-120
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
IN RE THE MARRIAGE OF
JOWELL J. BREKHUS,
Petitioner and Respondent,
and
SHARON P. BREKHUS,
Respondent and Appellant.
APPEAL FROM: District Court of the Twelfth Judicial District,
In and for the County of Hill,
The Honorable John Warner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Lawrence LaFountain, Attorney at Law,
Havre, Montana
For Respondent:
Brian Lilletvedt; Bosch, Kuhr, Dugdale,
Martin & Kaze, Havre, Montana
Submitted on Briefs: July 15, 1993
Decided: August 31, 1993
Filed:
Clerk
Justice Terry N. Trieweiler delivered the opinion of the Court.
Sharon P. Brekhus appeals from an order of the District Court
for the Twelfth Judicial District, Hill County, which modified the
original dissolution decree and named Respondent Jowell J. Brekhus
the primary residential custodian of the parties' minor child.
We affirm.
The issues on appeal are restated as follows:
1. Did the District Court err when it modified the primary
physical custody of the parties' minor child?
2. Did the District Court err when it refused to grant a
hearing pursuant to Sharon's motion to alter or amend the judgment
establishing a modified parenting plan?
The parties' marriage was dissolved on January 7, 1991. The
final decree incorporated a separation agreement providing for
joint custody of the parties' three-year-old son, Timothy. Sharon
was named primary physical custodian, and was given exclusive
discretion to determine Timothy's primary place of residence.
Until September 5, 1991, Timothy resided with Sharon. On that
date, the court granted the Hill County Department of Family
Services (DFS) authority to place Timothy in Jowell's custody based
on allegations of child abuse and neglect. A hearing on a petition
for temporary investigative authority and protective services,
filed by the Hil.1 County Attorney on behalf of the DFS, was
scheduled for October 10, 1991.
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On October 9, 1991, Jowell filed a petition for modification
of custody requesting the District Court to modify the original
decree and grant him custody of Timothy, or in the alternative, to
modify the joint custody parenting plan and award him primary
physical custody of Timothy. Following the October 10, 1991,
hearing concerning the DFS petition, the court granted temporary
custody of Timothy to Jowell until Jowell's custody modification
petition could be acted upon.
The hearing on Jowell's petition was held on May 18, 1992, and
in the court's findings of fact and conclusions of law issued on
June 4, 1992, it found that there had been a substantial change in
circumstances since the original decree. The court concluded that
the changed circumstances did not require termination of joint
custody, but that it would be in Timothy's best interest to modify
the joint custody by establishing a different parenting plan.
After considering proposals from both parties, the court issued an
order on November 18, 1992, modifying the original joint custody
decree by naming Jowell primary residential custodian and giving
Sharon specified visitation rights.
On November 30, 1992, Sharon filed a motion pursuant to
Rule 59, M.R.Civ.P., in which she moved the court to alter or amend
its judgment, and requested the court to set a hearing to consider
evidence of circumstances which had arisen since the June 4, 1992,
decision to modify custody. The court denied this motion on
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December 29, 1992. From the order denying her motion, Sharon
appeals.
I.
Did the District Court err when it modified the primary
physical custody of the parties' minor child?
Sharon contends that the court improperly granted Jowell's
petition for modification of custody under § 40-4-224(2), MCA,
which allows for a modification of joint custody based on the
child's best interest, rather than under 5 40-4-219(1)(c), MCA,
which requires a showing of serious endangerment to the child. She
argues that 5 40-4-219(1)(c), MCA, was the basis of Jowell's
petition, and that he failed to meet the burden of establishing
that Sharon presented a serious danger to Timothy. Sharon also
contends that, under either of the statutes which allow for
modification of custody, there was insufficient evidence to find
that it was in Timothy's best interest to modify custody.
Contrary to Sharon's contention that the court's only options
were to either terminate joint custody and award physical custody
to Jowell, or to leave the original joint custody arrangement
undisturbed, Jowell's petition clearly requested that he be awarded
custody of Timothy, or in the alternative, primary physical custody
under the existing joint custody decree. Section 40-4-224(2), MCA,
requires only that there be a determination that a revision is in
the best interest of the child before a parenting plan under a
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joint custody arrangement is modified. In re Marriage of MitchelllGraveIy
(1991), 248 Mont.. 105, 809 P.2d 582. Here, the court chose to
proceed under § 40-4-224(2), MCA, and based its determination on
evidence that it would be in Timothy's best interest to name Jowell
primary physical custodian under the existing joint custody decree.
When reviewing custody issues, this Court will not substitute
its judgment for that of the district court unless there has been
an abuse of discretion and there is a clear preponderance of
evidence against the court's findings. Mitchell, 809 P.2d at 584.
A district court need not make specific findings on each factor to
be considered in determining "best interest" under § 40-4-212, MCA,
but must express the "essential and determining" facts upon which
its conclusions rest. In re Marriage of Cameron (1982), 197 Mont. 226,
231, 641 P.2d 1057, 1060.
A review of the record demonstrates that the court considered
the relevant factors and that its findings were supported by
substantial evidence which justified the modification of primary
physical custody. Accordingly, we hold that the court did not err
in modifying the joint custody arrangement by transferring physical
custody of Timothy from Sharon to Jowell.
II.
Did the District Court err when it refused to grant a hearing
pursuant to Sharon's motion to alter or amend the judgment
establishing a modified parenting plan?
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Sharon contends that the court erred when it refused to grant
her motion for an additional hearing in order to allow her to
present evidence relevant to the issue of custody. By refusing
this request, she asserts the court's decision rests only upon a
partial record.
First, the record demonstrates that Sharon had ample
opportunity prior to the May 18, 1992, hearing to prepare her case.
There is nothing in the record to suggest that she was prohibited
from presenting existinq, relevant evidence during the hearing.
Second, in her Rule 59 motion seeking to amend or alter the
November 18, 1992, judgment which established the parenting plan,
Sharon claimed that the order was entered without giving her the
opportunity to present evidence regarding circumstances which
occurred _after the order modifying the joint custody was issued on
June 4, 1992. The court determined that Sharon's attempt to submit
evidence of circumstances which occurred subsequent to the hearing
constituted a request to modify an existing custody determination
and that a Rule 59(g) motion was not the proper vehicle for doing
so. The court then concluded that the allegations in Sharon's
motion and affidavit failed to meet the statutory requirements for
seeking a change in custody.
We agree with the District Court's determination and conclude
that the court did not err when it denied Sharon's motion and
refused to grant a hearing.
The judgment of the District Court is affirmed.
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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 Montana Law Week, State Reporter and West Publishing Company.
We concur:
Just-"
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