In Re the Marriage of Ostrem

No. 86-514
88-164
IN THE SUPREME COURT OF THE STATE OF MONTANA
(No. 86-514)
IN RE MARRIAGE OF
VALLINA RUTH HOLSTON OSTREM,
Petitioner and Appellant,
and
ROBERT BRUCE HOLSTON, JR.,
Respondent and Respondent.
.............................
(No. 88-164)
IN RE THE MARRIAGE OF
VALLINA RUTH HOLSTON, n/k/a VALLINA RUTH OSTREM,
Petitioner and Respondent,
and
ROBERT B. HOLSTON, JR.,
Respondent and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Roy Rodeghiero, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Robert B. Holston, Jr. , pro se , Ketchikan I ~laska&~-jbr")
For Respondent:
Hash, OIBrien & Bartlett; James C. Bartlett, Kalispell,
Montana (3B-/69'
Submitted on Briefs: Sept. 1, 1988
Decided: October 18, 1988
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Mr. Justice R. C. McDonough delivered the Opinion of the
Court.
This appeal from the Eleventh Judicial District, in and
for the County of Flathead, involves a custody dispute.
Appellant, Robert R . Holston, Jr. (Robert), appeals the
decision of the District Court, Roy C. Rodeghiero presiding,
modifying a previously modified dissolution decree. Judge
Rodeghiero's decision substituted respondent parent Vallina
Ruth Holston Ostrem (Vallina) as the custodial parent in
place of Robert. Previous to Judge Rodeghiero's decree
modification, the District Court, Michael H. Keedy presiding,
modified the parties' dissolution decree to substitute Robert
as the custodial parent in place of Vallina. We affirm Judge
Rodeghiero's decision to return custody to Vallina.
The issues presented by Robert are:
1. Whether the trial court erred in its failure to
determine which parent would be the proper custodial parent?
2. Whether there was substantial evidence to make the
finding of danger to the physical, mental, moral or emotional
health of the children?
3. Whether a fair trial was given when the court failed
to consider the court record and past testimony?
4. Whether the trial court abused its discretion by
disregarding unimpeached credible evidence as to the
children's custodial environment in Alaska?
5. Whether the trial court erred in failing to find
that Vallina's home environment and/or attitude was no longer
endangering since the past decree?
6. Whether the trial court demonstrated a biased and
prejudicial treatment of the appellant by issuing ex parte
orders and later taking judicial consideration of these
orders without giving notice to the appellant?
7. Whether the appellant was denied due process of law
or provided the proper administration of justice when the
court committed procedural errors as follows:
a. Allowed the testimony of Dr. Monty Kuka, over the
objection of Robert, on the dates of August 21, 1986 and
August 25, 1987 without providing Robert be given notice of
such appearance.
b. Allowed hearsay testimony over Robert's objection.
c. Allowed a witness, Christian Holston, to admit a
tape recording, listened to it without Robert being present
to object to it or hear it.
8. Whether the appellant was denied a fair trial by
inviting biased and prejudiced testimony, when the court
issued its order dated August 19, 1987, thereby placing the
children under the extended control of the mother from their
summer visitation start of June 16, 1987 through and
inclusive of the hearing dates beginning on August 25, 1987?
9. Whether a fair trial was given when the court
allowed the appellant to be served the order to show cause
papers on the evening of August 22, 1987 and then conducted
the trial beginning on August 25, 1987?
10. Whether a fair trial was given the appellant when
the court considered testimony from an officer of the Court
who initiated a child abuse investigation on the appellant,
but failed to consider the results of this investigation and
failed to seek evidence from Ketchikan, Alaska?
11. Whether the trial court erred in its denial of
Robert's motion to appoint a guardian ad litem.
The relevant facts are briefly as follows: The parties
dissolved the marriage by decree entered September 8, 1982.
The decree made Vallina the custodial parent subject to
reasonable rights of visitation for Robert.
Robert thereafter petitioned to modify the decree to
make him the custodial parent alleging that Vallina's
interference with his visitation rights seriously endangered
the children. Following hearing, Judge Keedy agreed that
Vallina's interference with Robert's visitation seriously
endangered the children and ordered custody for Robert with
reasonable visitation for Vallina. Pursuant to the order the
parties' two children, Harrison and Christian, moved from
Vallina's residence in Kalispell to Robert's home in
Ketchikan, Alaska. At that time Harrison was six and
Christian was nine. The two boys lived with Robert through
the school year. During that year Robert separated from his
second wife, and physically disciplined his stepson in the
presence of the children.
Vallina exercised her visitation rights the ensuing
summer, and at the end of her visitation period petitioned
for modification. The District Court ordered the
continuation of Vallina's visitation pending a hearing on the
petition. Following hearing, the District Court modified
custody to make Vallina the custodial parent.
Robert, acting pro se on appeal, centers his argument on
the proper conclusion to be drawn from the conflicting
evidence offered in the lower court. For example, in part
"A" of his opening brief, Robert argues that the lower court
erred because it: (1) failed to consider Vallina's
intractable denial of his visitation rights, (2) failed to
consider the fact that when he had custody he provided
liberal visitation for Vallina, and (3) failed to consider
Vallina's denial of contact with the children for Robert
during summer visitation in 1987.
Part " R " of appellant's brief continues Robert's
argument on the evidence in this case. Specifically, Robert
contends that there was no showing that the children's
environment had changed since the prior modification.
In Part "C" of the brief Robert argues the District
Court erred: (1) by ignoring testimony indicating that the
children were healthy, and that their relationship with their
father was improving, ( 2 ) by giving too much weight to the
negative impact of Robert's separation from his new wife and
her stepson and by ignoring the positive impact, (3) by
failing to consider the fact that Vallina had moved from
Kalispell to Galata, and (4) by failing to consider evidence
revealing Robert as a stable and mentally healthy adult.
Robert presents a battle of the experts argument in
section "11" of his brief. According to Robert, his expert's
testimony should be given more weight than Vallina's expert
because his expert saw the children on a more regular basis.
Robert also presents a review of all the favorable testimony
he offered in the lower court.
Despite the evidence provided by Robert for continuing
his custody, the lower court found that:
Rob has proved himself incapable of
maintaining or portraying a loving, affectionate,
stress-free and abuse-free home environment for the
boys.
A review of the complete record demonstrates that
substantial credible evidence supports this finding.
Testimony from witnesses called by Vallina refuted testimony
offered by Robert. For example, the children testified that
they feared their father, and that living with him was an
extremely unhappy experience. There was also evidence that
without. the support of their stepmother Jackie and her son
Michael, their fear and anxlety had increased.
Psychologist Monty Kuka testified that continuing
Robert's custody endangered the children's emotional health.
Director of Family Services for the Eleventh Judicial
District, Tom Best, testified that his interview with the
children showed that their home in Alaska was one of great
stress.
It is "not our function to resolve conflict in the
evidence." In re Custody of Holm (Mont. 1985), 698 P.2d 414,
417, 42 St.Rep. 504, 507. The evidence provided by Vallina
supports the lower court's decision. Thus, Robert's argument
that the lower court ignored the evidence fails.
Robert also argues that the lower court erred in finding
a change of circumstances which endangered the children.
Robert asserts that the basis for the change recognized by
the lower court was the children's desire to live with
Vallina at the time of the most recent hearing. Robert
points out that the children have always wished to reside
with Vallina, thus, according to Robert, no change has
occurred. We understand the logic of this argument, but we
are not persuaded that no change occurred. Prior to Judge
Rodeghiero's decision, the children's preference for
Vallina's custody was expressed without the benefit of having
resided under Robert's custody for a substantial period of
time. Following the year with Robert, the preference for
residence with their mother intensified. Thus, this argument
fails.
Robert blames Vallina and her family for impeding the
adjustment of the children to their new home. However,
evidence in the record reveals that the fault for the
children's unhappiness may be attributed to Robert rather
than Vallina.
Robert opines that the first modification was designed
to eliminate the threat that the children would never develop
a good relationship with their father. The second
modification, according to Robert, makes that possibility a
certainty. However, substantial credible evidence in the
record supports the conclusion that Robert's chances of
improving his relationship with the children may be improved
by allowing a return of custody to Vallina.
As long as substantial credible evidence supports the
decision of the trial judge, it will be affirmed. Holm, 698
P.2d at 416. Modification pursuant to § 40-4-219(1)(c), MCA,
requires a finding that the children's environment seriously
endangers their physical, mental, moral, or emotional health,
and the harm likely to be caused by changing the environment
is outweighed by benefits from the change. Here, the change
from Vallina's home to Robert's home proved too bitter a pill
for the children to swallow. Evidence indicated that
Robert's custody seriously endangered Christian's and
Harrison's emotional health. Thus, the record sustains the
decision of the lower court.
Robert also argues that Judge Rodeghiero's failure to
fully review the District Court file as it existed after the
first modification constitutes an abuse of discretion. This
argument reasons that the fact finder could not know of a
change without reviewing the conditions leading to the first
modification. The argument also follows from Robert's
contention that a review of the conditions which led to the
first endangerment finding must precede a return of custody
to Vallina.
First, the relevant time period for the endangerment
finding was the time the children resided with Robert in
Alaska because this is the period occurring after the prior
modification. Section 40-4-219, MCA. Second, testimony at
the second hearing made the lower court fully cognizant of
the danger posed by Vallina's custody prior to the first
modification. Evidence that this danger has been mitigated
was provided when Vallina testified prior to the second
modification that she would cooperate in arranging adequate
visitation for Robert. Thus, there exists no error in regard
to the lower court's failure to review the previously
established record.
Several of the issues presented in the issue section o f
Robert's brief are not argued in his argument section.
However, we have reviewed them and we fail to see cause for
reversal in a:
n! of them. AFFIRMED.
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Justices