HOLM v HOLM
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No. 13487 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 RICHARD W. HOLM, Plaintiff and Appellant, ALLENA N. HOLM, Defendent and Respondent. Appeal from: District Court of the Thirteenth Judicial District, Honorable C. B Sande, Judge presiding. Counsel of Record: For Appellant: Beiswanger and Wilson, Billings, Montana Gary L. Beiswanger argued, Billings, Montana For Respondent : Berger, Anderson, Sinclair and Murphy, Billings, Montana Richard W. Anderson argued, Billings, Montana Submitted: Decided: Filed: dlb,( 2 31 7 January 25, 1977 MAR 2 3977 Mr. J u s t i c e Frank I . H a s w e l l d e l i v e r e d t h e Opinion o f t h e C o u r t . T h i s i s a n a p p e a l by t h e f a t h e r o f two minor g i r l s from a n o r d e r o f t h e d i s t r i c t c o u r t , Y e l l o w s t o n e County, changi n g t h e i r custody t o t h e i r mother. The c h i l d r e n o f t h e p a r t i e s a r e t w i n g i r l s who w e r e s i x years old a t t h e t i m e of t h e i r parents' divorce. On J u n e 2 , 1975, t h e i r f a t h e r was awarded a d e f a u l t d i v o r c e from t h e i r mother. The d e c r e e awarded c u s t o d y of t h e g i r l s t o t h e f a t h e r , w i t h r e a s o n a b l e r i g h t s of v i s i t a t i o n t o t h e mother, p u r s u a n t t o a w r i t t e n c u s t o d y agreement s o p r o v i d i n g which was a p p r o v e d , c o n f i r m e d and made a p a r t o f t h e d e c r e e . I n O c t o b e r , 1975, t h e f a t h e r and t h e two g i r l s moved t o Rapid C i t y , S o u t h Dakota and have r e s i d e d t h e r e c o n t i n u o u s l y since t h a t date. On O c t o b e r 2 0 , 1975, t h e mother f i l e d a n a f f i d a v i t s e e k i n g a change i n c u s t o d y t o h e r based upon a change i n circumstances of t h e p a r t i e s s i n c e entry of t h e o r i g i n a l decree four months p r e v i o u s l y . The a f f i d a v i t a l l e g e d t h a t a t t h e t i m e o f t h e d i v o r c e t h e mother w a s i n a p h y s i c a l l y and m e n t a l l y d e b i l i t a t e d c o n d i t i o n a s a r e s u l t o f s u r g e r y making h e r a b i l i t y t o care f o r t h e c h i l d r e n d o u b t f u l ; t h a t s h e signed t h e custody agreement u n d e r t h e s e c i r c u m s t a n c e s ; and t h a t s h e had s i n c e r e c o v e r e d and w a s p h y s i c a l l y c a p a b l e o f c a r i n g f o r t h e c h i l d r e n . a l l e g e d t h e f a t h e r ' s i n a b i l i t y t o care f o r t h e c h i l d r e n . She a l s o She s o u g h t a n award o f c h i l d s u p p o r t on change o f c u s t o d y t o h e r . F o l l o w i n g a h e a r i n g , t h e d i s t r i c t c o u r t made a f i n d i n g t h a t t h e m o t h e r ' s a p p l i c a t i o n f o r change o f c u s t o d y was p r e m a t u r e and d e n i e d it. The c o u r t ' s o r d e r f u r t h e r p r o v i d e d t h a t " * * * This m a t t e r i s continued f o r f u r t h e r consideration a t a l a t e r d a t e upon a p p l i c a t i o n of e i t h e r p a r t y . " On J u n e 2 8 , 1976, t h e mother f i l e d a second a f f i d a v i t and application for change of custody. This affidavit, in addition to the matters alleged previously, alleged further changes in circumstances consisting of her remarriage, her maintenance of a suitable home for the children, the willingness of her present husband to have the children in the home, her return to steady employment, and her further physical recovery. She again sought an award of child support on change of custody. Following denial of the husband's motion to dismiss for lack of jurisdiction, the district court held a hearing on the wife's application for change of custody. On August 4, 1976, the district court entered findings of fact, conclusions of law and an order changing custody to the mother and awarding her child support of $65 per month per child. In its findings the district court found that at the time the mother signed the custody agreement incorporated in the divorce decree she was in a physically and emotionally debilitated state; that at the time of the mother's first application for change of custody the court was of the opinion " * * * that [the mother] had in fact not fully recovered from her physical problems and was not yet restored to normal health and vitality" and that for these reasons, the court "entered an interim order" continuing custody in the father but invited further consideration of the matter at a later date upon application of either party; that the remarriage of the mother, establishment of a new home, her recovery from her physical impairments, and her return to work,finding she is physically able to meet the demands of her occupation and homemaking are material changes in circumstances from those existing at the time of the divorce. The court further found that it would be in the best interests of these female children approaching their eighth birthdays that their custody be placed with their mother. findings state that " * * * The This would not necessarily be the case if they were male children, where their interests and needs * * * would be more in keeping with [their father's] situation." and "Everything else being equal, however, and for well-known biological and emotional reasons, the Court determines that it would be in the best interests of these female children to have their primary guidance provided by their mother, who appears at this time to be a fit and proper mother." There are two issues assigned for review on appeal: (1) Did the district court have jurisdiction to entertain the mother's petition for change of custody? (2) Did the district court abuse its discretion in changing custody? The jurisdictional issue determines the outcome of this appeal. The Uniform Marriage and Divorce Act was enacted by the Montana legislature in 1975. 1976. Its effective date was January 1, The provision of that Act pertinent to this appeal is codified as section 48-339, R.C.M. 1947, and reads: "Modification. (1) No motion to modify a custody decree may be made earlier than two (2) years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child's present environment may endanger seriously his physical, mental, moral, or emotional health. "(2) The court shall not modify a prior custody decree unless 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. In applying these standards the court shall retain the custodian appointed pursuant to the prior decree unless: "(a) the custodian agrees to the modification; "(b) the child has been integrated into the family of the petitioner with consent of the custodian; or "(c) the child's present environment endangers seriously 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. "(3) Attorney fees and costs shall be assessed against a party seeking modification if the court finds that the modification action is vexatious and constitutes harassment." Subsection (1) above specifically bars an application for change of custody within 2 years of an existing custody award, subject to an exception not pertinent to this case. Here the original custody award was made on June 2, 1975; the application for change of custody was filed on June 28, 1976; and the order granting the change of custody was entered on August 4, 1976. The district court lacked jurisdiction to change custody less than 14 months after the original custody award based on the best interests of the children where, as here, it specifically found that the custodian " * * * is and has been a fit and proper father. " The rationale behind this provision is expressed in this language in the Comment of the Committee which acted for the National Conference of Commissioners on Uniform State Laws in promulgating the Uniform Marriage and Divorce Act: "Most experts who have spoken to the problems of post-divorce adjustment of children believe that insuring the decree's finality is more important than determining which parent should be the custodian. See Watson, The Children of Armageddon: Problems of Custody Following Divorce, 21 Syracuse L.Rev. 55 (1969). This section is designed to maximize finality (and thus assure continuity for the child) without jeopardizing the child's interest. Because any emergency which poses an immediate threat to the child's physical safety usually can be handled by the juvenile court, subsection (a) [subsection 1 of section 48-339, R.C.M. 19471 prohibits modification petitions until at least two years have passed following the initial decree, with a 'safety valve' for emergency situations. To discourage the noncustodial parent who tries to punish a former spouse by frequent motions to modify, the subsection includes a two-year waiting period following each modification decree. During that two-year period, a contestant can get a hearing only if he can make an initial showing, by affidavit only, that there is some greater urgency for the change than that the child's 'best interest' requires it. During the twoyear period the judge should deny a motion to modify, without a hearing, unless the moving party carries the onerous burden of showing that the child's present environment may endanger his physical, mental, moral, or emotional health." (Bracketed material supplied. ) This rationale is persuasive. It makes sense. It ex- plains the purpose, intent, and operation of the statute. We adopt it. Subsection (2) of section 48-339, R.C.M. 1947, also denied jurisdiction to the district court to change custody. It requires the district court to retain the prior custodian unless he agrees to the modification, or the child has been integrated into the family of the petitioner with the consent of the custodian, or the child's present environment seriously endangers his physical, mental, moral, or emotional health to an extent where the harm to the child from a change in custody is outweighed by its advantages to the child. conditions is present in this case. None of these For the rationale and appli- cation of this subsection see Commission Comment, National Conference of Commissioners on Uniform State Laws, Uniform Marriage and Divorce Act, approved and recommended at its Annual Conference, August 1-7, 1970, with amendments approved August 27, 1971 and August 2, 1973. The mother argues that the Uniform Marriage and Divorce Act has no application to this case. She contends that her mod- ification proceeding was initiated prior to its adoption, continued for further consideration at a later date, and the prior law governs this proceeding. We cannot agree with this contention. Although her original application and the district court's order thereon occurred prior to the effective date of the Act, the district court held her application premature and denied it. While it is true that the district court at that time provided that " * * * this matter is continued for further consideration at a later date upon application of either party", it amounted to no more than an expression of the district court's continuing jurisdiction over child custody. The second custody hearing was based on another application for change of custody after the Act became effective and alleged a change in circumstances based in part on events that had occurred following the effective date of the Act. Under these circumstances we hold that the mother's application for change of custody is governed by the Act. The order of the district court of Yellowstone County changing custody dated and filed on August 4, 1976, is vacated for lack of jurisdiction. This cause is remanded to the district court for determination of whether attorney's fees should be awarded the husband pursuant to the provisions of section 48339 (3), R.C.M. 1947. Justice /'* Justices -
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