Marriage of Corbett ( 1981 )

No. 81-198
IN THE SUPREME COURT OF THE STATE OF MONTANA
1981
IN RE THE MARRIAGE OF
DENNIS P. CORBETT,
Petitioner and Respondent,
VS .
SUSAN M. CORBETT,
Respondent and Appellant.
Appeal from: District Court of the Eleventh Judicial District,
In and for the County of Flathead
Honorable James M. Salansky, Judge presiding.
Counsel of Record:
For Appellant:
Morales, Volinkaty & Harr, Missoula, Montana
For Respondent:
Robert B. Allison, Kalispell, Montana
Daley, Sherlock & Nardi, Kalispell, Montana
Submitted on briefs: October 1, 1981
Decided: N OV 1 2 1981
Filed: BO\I ' ;
I . -$
Mr. Justice John Conway Harrison delivered the Opinion of
the Court.
This is an appeal by Susan M. Corbett Adler, the
mother of two children, from an order granting her ex-
husband Dennis P. Corbett's motion for a modification of the
divorce decree which changed the custody of two minor
children from the mother to the father and denied her
counterpetition for a modification seeking additional child
support .
The issues before this Court are:
1. Whether the District Court applied the correct
standards in making its decision to grant respondent's
petition for a change of custody?
2. Whether, even if the District Court applied the
correct standards in making its decision to grant the
respondent's request for a change of custody, there was
sufficient evidence to support that decision?
The parties to this action were married on October
26, 1968, at Ronan, Montana. Two children were born of the
marriage--namely, James Patrick Corbett, born March 25,
1969, and Christine Marie Corbett, born April 17, 1972. The
marriage was dissolved February 14, 1977, by the Honorable
James M. Salansky, who is also the presiding judge in this
modification proceeding. A property settlement agreement
executed by the parties was incorporated in the decree of
dissolution. In that agreement, and in the decree of
dissolution, the mother was granted the care, custody and
control of the two minor children with the father to have
certain visitation rights.
It should be noted that at the time the original
ruling was made, the court had a report submitted by Tom
Best, the director of family court services, on his
i n v e s t i g a t i o n and recommendations. Best recommended S u s a n
b e awarded c u s t o d y b a s e d upon the assumptions t h a t Dennis
was n o t in a position at that time t o serve as a single
p a r e n t a n d t h a t S u s a n would move t o N a s h u a , Montana, w h e r e
s h e would r e s i d e w i t h a b r o t h e r on h i s r a n c h and would h a v e
h i s assistance i n s u p e r v i s i o n of the children a s we11 a s
c o n t i n u o u s employment on t h e ranch. Best, in his report,
recommended t h a t t e m p o r a r y c u s t o d y be p l a c e d i n S u s a n s o t h e
court i n F l a t h e a d C o u n t y c o u l d m a i n t a i n some c o n t r o l o v e r
the custody. One of the reasons given in his testimony
concerning t h e temporary custody a t t h e t i m e of t h e o r i g i n a l
d i v o r c e was that Susan had been seriously injured in an
a u t o m o b i l e a c c i d e n t i n 1969 and s i n c e t h a t t i m e had s u f f e r e d
a p a r t i a l d i s a b i l i t y d u e t o t r a u m a t i c b r a i n damage and had
been s u b j e c t t o p e r i o d i c e p i l e p t i c s e i z u r e s .
The r e c o r d i n d i c a t e s S u s a n r e s i d e d o n l y b r i e f l y w i t h
her brother i n Nashua. She t h e n r e t u r n e d w i t h h e r c h i l d r e n
to her home community of Charlo, Montana, where she was
r e s i d i n g a t t h e time of t h e hearing.
The c o u r t n o t e d in its findings of f a c t that ordi-
n a r i l y e v i d e n c e of e v e n t s and s i t u a t i o n s e x i s t i n g p r i o r to
t h e d i s s o l u t i o n were inadmissible. I n view of the above
factors, however, t h e c o u r t d e t e r m i n e d t h e b a c k g r o u n d would
demonstrate t h e reasons f o r t h e o r i g i n a l custody arrangement
and deemed i t r e l e v a n t t o t h e p r o c e e d i n g s on c u s t o d y m o d i f i -
cation. The e v i d e n c e i n d i c a t e s S u s a n f r e q u e n t l y left the
c h i l d r e n a t home u n a t t e n d e d d u r i n g t h e y e a r s s h e had c u s t o d y
o f them. I n a d d i t i o n , s e v e r a l t i m e s when t h e c h i l d r e n w e r e
with her S u s a n had some t y p e o f s e i z u r e and e i t h e r had a n
a u t o m o b i l e a c c i d e n t o r was p r e v e n t e d f r o m h a v i n g o n e by t h e
children in the car. There a l s o was testimony, although
c o n t r o v e r t e d , t h a t S u s a n had a p r o b l e m o f a l c o h o l a b u s e t h a t
r e q u i r e d t r e a t m e n t which s h e had e i t h e r r e f u s e d o r had n o t
obtained. S h e a d m i t t e d t h a t on a number of occasions she
l e f t t h e c h i l d r e n u n a t t e n d e d w h i l e s h e went t o t h e b a r s t o
drink. S u s a n d i d s u b m i t t o a n e v a l u a t i o n by t h e Comprehen-
s i v e A l c o h o l i c Program i n Ronan d u r i n g these proceedings.
S h e a d m i t t e d h a v i n g d r i n k i n g e p i s o d e s b u t d e n i e d s h e had a n
a l c o h o l problem o r was s u f f e r i n g a n y i l l n e s s f r o m a l c o h o l
abuse.
During the summer of 1980, the c h i l d r e n were w i t h
their father, Dennis, a n d h i s new w i f e . They r e t u r n e d t o
their mother i n Charlo on a p p r o x i m a t e l y August 4 to get
r e a d y t o go t o s c h o o l a c c o r d i n g t o t h e p a r t i e s ' predissolu-
tion agreement. After having the children and observing
them during the summer vacation, Dennis and his wife
d e t e r m i n e d i t was n e c e s s a r y t o r e q u e s t a m o d i f i c a t i o n o f t h e
d i v o r c e d e c r e e and t o o b t a i n c u s t o d y o f t h e two c h i l d r e n .
The f i r s t h e a r i n g was h e l d on A u g u s t 29, 1 9 8 0 . Susan
appeared pro s e . A l s o p r e s e n t was an a t t o r n e y who had b e e n
a p p o i n t e d by t h e c o u r t t o a p p e a r f o r t h e c h i l d r e n . T e s t i m o n y
was presented indicating the nature of Susan's problems
i n c l u d i n g t h e e p i l e p t i c s e i z u r e s and t h e f a c t t h a t money had
been sent to the children by various members of their
father's family but which they never received. Susan
admitted s h e had used t h e money for other purposes. One
c h e c k s e n t by a r e l a t i v e had been cashed at a tavern in
Charlo. S u s a n i n t r o d u c e d e v i d e n c e t h a t b e c a u s e t h e r e was no
bank i n Charlo, t h e b a r was one o f t h e f e w p l a c e s where a
c h e c k c o u l d be c a s h e d .
At the hearing , rebuttal testimony was presented
c o n c e r n i n g s e v e r a l c a l l s made t o D e n n i s and h i s w i f e , L i n d a ,
by David Adler, a friend of Susan, late in June 1980.
During these telephone c a l l s Adler told Dennis and Linda
that Susan was an alcoholic, an unfit mother, left the
c h i l d r e n u n a t t e n d e d , b e a t them w i t h a b e l t , and t h a t he a l s o
was a n a l c o h o l i c . He o f f e r e d t o a s s i s t Dennis w i t h l e g a l
f e e s t o g e t t h e c h i l d r e n away from S u s a n .
Based on t e s t i m o n y a t t h e h e a r i n g on A u g u s t 29, the
c o u r t g r a n t e d temporary c u s t o d y of t h e c h i l d r e n t o Dennis,
requested that Susan be evaluated, and scheduled a full
h e a r i n g on O c t o b e r 2 , 1980. C o u n s e l f o r S u s a n a p p e a r e d on
h e r b e h a l f o n S e p t e m b e r 11, 1 9 8 0 , and f i l e d a m o t i o n f o r a
m o d i f i c a t i o n and a c o u n t e r p e t i t i o n .
At the October 2 hearing a number of additional
witnesses were called by both p a r t i e s . Thomas B e s t , the
d i r e c t o r of family court services, explained t o the court
why he had made his recommendations at the time of
dissolution. He i n d i c a t e d t h a t , i n h i s opinion, "school is
t h e b e s t window o f how t h e c h i l d r e n a r e p e r f o r m i n g " i n any
given family situation. There was testimony by the
p r i n c i p a l of t h e C h a r l o s c h o o l i n d i c a t i n g t h a t w h i l e b o t h of
the Corbett children were bright and had good school
records, their grades had deteriorated during the last
school year.
David A d l e r , who had m a r r i e d S u s a n on J u l y 1 5 , 1 9 8 0 ,
testified that he had been drunk when he made the June
t e l e p h o n e c a l l s t o D e n n i s a c c u s i n g S u s a n of b e i n g u n f i t and
an a l c o h o l i c . H e s t a t e d t h a t h e had made t h e c a l l s b e c a u s e
he had q u a r r e l e d w i t h S u s a n and he was u s i n g t h e c h i l d r e n a s
a pawn a g a i n s t t h e mother. At the October 2 hearing he
t e s t i f i e d t h a t he d i d n o t f e e l S u s a n was a poor m o t h e r o r a n
alcoholic, and h e d i s a v o w e d the things he said about her
during the telephone c a l l s .
Both i s s u e s p r e s e n t e d f o r review w i l l be c o n s i d e r e d
as one in our discussion upholding the action of the
District Court. Section 40-4-219, MCA, sets forth the
s t a n d a r d s and g u i d e l i n e s i n c o n s i d e r i n g a m o t i o n t o m o d i f y
custody. T h r e e s u b s e c t i o n s d e f i n e when a c h a n g e o f c u s t o d y
can be granted: (a) the custodian agrees to the
modification; (b) the child has been integrated into the
f a m i l y of t h e p e t i t i o n e r w i t h t h e c o n s e n t of t h e c u s t o d i a n ;
or ( c ) the child's present environment endangers s e r i o u s l y
h i s physical, mental, moral, or emotional h e a l t h , and harm
l i k e l y t o b e c a u s e d by a c h a n g e o f e n v i r o n m e n t i s o u t w e i g h e d
by t h e a d v a n t a g e s t o him.
Subsection ( a ) is n o t a t i s s u e h e r e because t h e r e is
no a g r e e m e n t f o r a m o d i f i c a t i o n . Nor is s u b s e c t i o n ( b ) a t
issue here. A p p e l l a n t a r g u e s t h e judge m i s t a k e n l y took t h e
f a c t t h a t t h e c h i l d r e n were w i t h t h e i r f a t h e r f o r t h e summer
visitation and later for approximately a month under the
c o u r t ' s temporary c u s t o d y t o c o n s t i t u t e an i n t e r g r a t i o n i n t o
t h e f a t h e r ' s home w i t h t h e c o n s e n t o f the custodian. That
is not what the district judge found. Nothing in his
f i n d i n g s o f f a c t and c o n c l u s i o n s o f law a p p l y s u b s e c t i o n ( b )
in t h i s matter. T h i s C o u r t h a s p r e v i o u s l y r u l e d i n Weber v .
Weber ( 1 9 7 8 ) , 176 Mont. 144, 576 P.2d 1102, that summer
visitation does not constitute integration into the
noncustodial parent's family. What the District Court
a c t u a l l y f o u n d h e r e was t h a t t h e c h i l d r e n had a d a p t e d w e l l
t o t h e i r f a t h e r ' s home.
This leaves us with the District Court's application
of s u b s e c t i o n ( c ) i n changing t h e custody. That subsection,
a s n o t e d a b o v e , r e q u i r e s t h e c o u r t t o f i n d upon t h e b a s i s o f
facts there has been a change of circumstances since t h e
original custody decree and that the modification is
necessary in the best interests of the children. The
statute also requires that the court find the child's
present environment seriously endangers his physical,
m e n t a l , m o r a l o r e m o t i o n a l h e a l t h and t h a t t h e harm l i k e l y
t o be c a u s e d by t h e c h a n g e o f e n v i r o n m e n t i s o u t w e i g h e d by
t h e a d v a n t a g e s t o t h e c h i l d making t h e change. Here, the
c o u r t f o u n d t h e r e was a c h a n g e of c i r c u m s t a n c e s ; the court
f o u n d a n e n d a n g e r m e n t ; t h e c o u r t f o u n d t h e harm l i k e l y t o be
c a u s e d by t h e c h a n g e was o u t w e i g h e d by t h e a d v a n t a g e s t o t h e
c h i l d r e n a n d s u c h c h a n g e was i n t h e i r b e s t i n t e r e s t s . The
c o u r t a p p l i e d t h e c o r r e c t s t a n d a r d s i n making i t s d e c i s i o n ,
and w e c a n f i n d no a b u s e o f d i s c r e t i o n .
This Court has said many times regarding the
discretion of the District Court in child custody cases
that:
" I n r e v i e w i n g o r d e r s which a f f e c t t h e c u s t o d y
of t h e c h i l d , t h i s C o u r t is m i n d f u l t h a t t h e
primary duty of deciding the proper custody
o f c h i l d r e n i s a t a s k of t h e D i s t r i c t C o u r t .
Thus, a l l reasonable presumptions a s t o
c o r r e c t n e s s of t h a t d e t e r m i n a t i o n w i l l be
made. No r u l i n g w i l l be d i s t u r b e d a b s e n t a
c l e a r showing t h a t t h e D i s t r i c t C o u r t ' s
d i s c r e t i o n was a b u s e d . " Foss v. L e i f e r
( 1 9 7 6 ) , 1 7 0 Mont. 97, 550 P.2d 1 3 0 9 , 1 3 1 1 .
Here the court made extensive findings that are
c l e a r l y s u p p o r t e d by t h e e v i d e n c e , and we f i n d no a b u s e o f
discretion. The decision of the District Court is affirmed.
We concur:
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A h i e f Justice