MARRIAGE OF SARSFIELD
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No. 83-140 IN THE SUPREME COURT OF THE STATE OF MONTANA 1383 IN RE THE MARRIAGE OF LINDA H. SARSFIELD, Petitioner and Appellant, and MICHAEL J. SARSFIELD, Respondent and Respondent. APPEAL FROM: District Court of the Second Judicial District, In and for the County of Silver Bow, The Honorable Arnold Olsen, Judge presiding. COUNSEL OF RECORD: For Appellant: Daniel R. Sweeney, Butte, Montana For Respondent: Deirdre Caughlan, Butte, Montana -------.-- Submitted on Briefs: Decided: Filed: 8CT 2 :? El83 * 4 4 - @ --- Clerk August 4, 1983 October 27, 1983 Mr. Justice L.C. Court. Gulbrandson delivered the Opinion of the Linda Sarsfield appeals from an order of the District Court of the Second Judicial District, Silver Bow County, in favor of her former husband, Michael Sarsfield, modifying a prior child custody decree by transferring custody of the former couple's minor children from Linda to Michael. For the reasons stated below, we reverse the order of the trial court and remand for additional proceedings consistent with this opinion. Michael and Linda were married in November, 1970, and remained together for approximately children were born of this union: and Sarah, now four. nine years. Michael John, now twelve, Husband Michael apparantly left the family home in 1979 shortly before Sarah's birth. filed a petition Two for dissolution of Linda the marriage in November, 1980, and sought permanent custody of the children and child support. Michael agreed to the custody proposal, and after negotiations between the parties over child support and property were completed, the court issued a final decree of dissolution on February 6, 1981. Linda received custody, and Michael was allowed liberal visitation rights. Michael moved into a mobile home located next door to the family home. He remarried sometime later, and he and his new wife had a baby girl in 1982. The immediate dispute began nearly a year after the entry of the divorce decree and custody order. On April 16, 1982, Michael filed a petition to modify the custody decree. The petition alleged that the children had been left alone on several occasions believed to be in the care of M.M., a child molester. alleged that Linda and M.M. the homelife of the temporary and The petition further were planning to marry, and that children seriously endangered their physical, mental, moral, and sought whom Michael emotional permanent health. custody of Michael the children, maintaining that the benefits of a transfer would outweigh any disadvantages. He also filed a motion requesting that the court conduct an in camera inspection of all records and documents in possession of the Rehabilitation Services (S.R.S.) Department of Social & relating to abuse of M.M.'s daughter. In her answer, Linda admitted her impending marriage to M.M., but denied that the children were in any danger and that a change in custody would be in their best interests. She also filed a counter-petition, contending that Michael's petition was vexatious and constituted harrassment. Four separate hearings were held proposed modification. concerning the The first, conducted May 7th, 1982, focused primarily on the allegations concerning M.M. and the supposed threat to the Sarsf ield children. Michael testified in support of his petition, as did his new wife, Penny. M.M. was called as a hostile witness, but the bulk of testimony concerning M.M.'s M.M.'s sexual proclivities came from former wife, who appeared voluntarily at Michael's request. Dr. Janet Allison, a psychologist, also testified on matters concering sexual abuse of children. Linda took the stand to challenge the allegations of Michael and his witnesses. behalf. Her minister, Dwayne Miller, testified on her At the conclusion of the hearing, the court ordered that the children be placed in Michael's custody for two weeks, and then be returned to Linda for two weeks. court further ordered that public welfare The authorities investigate the home environments of Michael and Linda while the children were in their respective custody. court ordered that M.M. was not to be Finally, the allowed in the presence of the Sarsfield children, and granted Michael's motion for a court inspection of the S.R.S. daughter file on M.M.'s . The second hearing, held May 28th, dealt with the alleged presence of M.M. in Linda's home in violation of the court's May 7th order. Testimony was taken from Michael, Linda, and members of their respective families, as well as M.M. Upon conclusion of the hearing, Michael was granted temporary custody of the children. The third hearing, held June 18th, consisted primarily of testimony from Dave Evans, the social worker who home environments. investigated Michael's and Linda's Evidence was also taken from Michael and his mother, Olive, as well as Linda and Pastor Miller, and Ronald Kautzman, Michael John Sarsfield's principal at the school he attended while under his mother's custody. A separate colloquy was held with Michael John on September 28th in the presence of counsel, wherein the court interviewed the boy concerning his current family life and that of his sister Sarah. The court entered November 29th, 1982. its findings and conclusions Specifically, the court found that the children's physical, mental, moral and emotional health were seriously endangered by the association of M.M. Sarsfield, because of M.M.'s with Linda status as a child molester, and t h a t t h e r e was a p o t e n t i a l f o r f u t u r e harm i f t h e c h i l d r e n remained i n L i n d a ' s c u s t o d y . Linda's c o n d u c t was, negligent and The c o u r t f u r t h e r f o u n d t h a t under the circumstances, irresponsible." "grossly The c o u r t c o n c l u d e d t h a t a t r a n s f e r o f c u s t o d y t o M i c h a e l was i n t h e b e s t i n t e r e s t s o f the children, i n t h a t t h e a . d v a n t a g e s of t r a n s f e r o u t w e i g h e d the disadvantages. motion t o amend L i n d a was g r a n t e d v i s i t a t i o n r i g h t s . the A f i n d i n g s and c o n c l u s i o n s was p r o m p t l y filed. A denied. N o t i c e o f a p p e a l was t i m e l y f i l e d . h e a r i n g was h a d , and the motion to amend was failing to L i n d a r a i s e s t h r e e i s s u e s on a p p e a l : (1) Whether the trial court erred by dismiss Michael's p e t i t i o n f o r modification f o r f a i l u r e t o meet t h e j u r i s d i c t i o n a l p r e r e q u i s i t e s o f S e c t i o n 40-4-219, MCA? (2) Whether, statutory in light requirements of the concerning evidence and the changes in the circumstances of t h e c h i l d r e n , t h e c o u r t e r r e d i n modifying the o r i g i n a l custody decree? (3) objection Michael's Whether to t h e t r i a l c o u r t e r r e d i n sustaining an hearing fitness testimony to be concerning granted allegations custody, where of the a l l e g a t i o n s i n v o l v e d m a t t e r s o c c u r i n g b e f o r e and a f t e r t h e o r i g i n a l custody decree? Once a g a i n , t h i s C o u r t i s c a l l e d upon t o assume t h e u n e n v i a b l e r o l e o f King Solomon and r e n d e r judgment b e t w e e n p a r e n t s warring over t h e f u t u r e of t h e i r c h i l d r e n . This sad and d i f f i c u l t t a s k i s made e v e n more v e x i n g b e c a u s e o f t h e unique f a c t s of t h i s c a s e . r a i s e d by t h e p a r t i e s have Many o f t h e e v i d e n t i a r y m a t t e r s n o t y e t b e e n a d d r e s s e d by t h e appellate courts of sister states, especially those that, like Montana, have adopted Uniform Marriage and Divorce Act provisions respecting modification of child custody decrees. Thus, we set out, to an extent, upon unchartered waters, although our prior experience with considering modified custody decrees does offer at least one star upon which we may rely when plotting our course. The polestar modification case that guides our discretion is mapped out carefully in in this certain provisions of Section 40-4-219, MCA: "40-4-219. Modification. (1) 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: "(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." Subsection (c) is determining whether a jurisdictional modification of the prior in the best interests of the child. district court considerations "is [of powerless best prerequisite decree to is In other words, the to interests entertain and . changes in circumstances] if it has not found at the outset [that] the child's welfare [is] 'endangered seriously' by the present custody arrangement." (1977), 174 Mont. Gianotti v. 209, 214, 569 P.2d 929, 932. McCracken See also In re the Custody of Dallenger (1977), 173 Mont. 530, 534, 568 P.2d 169, 171-2. This prerequisite codifies the basic policy behind the modification statute: a presumption in favor of Dallln er custodial continuity. supra. -7z-I seeking modification bears a heavy Thus, the party burden circumstances necessary for modification. to prove the Groves v. Groves (1977), 173 Mont. 291, 298-99, 567 P.2d 459, 463. The sine qua non of appellant's case is a satisfactory showing that the trial court proceeded without regard to the evidence relied upon to support the change in custody. We emphasize, however, that the findings and conclusions of the court will not be disturbed substantial, credible evidence. if they are supported by Sawyer-Adecor Intern., Inc. v. Anglin (Mont. 1982), 646 P.2d 1194, 39 St.Rep. 1118. Appellant's first issue for review goes to the trial court's decision not to dismiss Michael's petition following presentation of his case-in-chief at the first hearing. Her principal objections are that there was no evidence pointing to actual serious danger to the minor children during her association with M.M., and former wife concerning M.M.'s that the testimony of M.M.'s history of child sexual abuse should not have been admitted into evidence. We first consider the admissibility wife's testimony. the former M.M. was subpoened by Michael to testify as a hostile witness, but he privilege of against invoked his constitutional self-incrimination and did not answer questions concerning allegations that he had sexually abused his daughter a few years prior to the immediate case. The trial court protected him from any incriminating questions posed by Michael's attorney. After he was dismissed, f o r m e r w i f e was c a l l e d a s a w i t n e s s . however, M . M . ' s She t e s t i f i e d t h a t h e r d a u g h t e r had b e e n removed from t h e f a m i l y She had home b e c a u s e s h e had b e e n s e x u a l l y a b u s e d by M . M . n e v e r w i t n e s s e d a n y i n c i d e n t s o f a b u s e , b u t h e r h u s b a n d had admitted the incidents t o her. that, indicated t o h i s wife M.M. f o r a t l e a s t s i x y e a r s p r i o r t o h i s a d m i s s i o n , he had " u s e d v a r i o u s items, h i s h a n d s , p o k e r s , v a r i o u s i n s t r u m e n t s of t h a t s o r t t o induce her on several occasions. but a g a i n s t M.M., and underwent the [ t h e d a u g h t e r ] i n v a r i o u s ways" No criminal charges were filed d a u g h t e r was removed by a u t h o r i t i e s treatment for emotional problems connected with t h e abuse. After her wife that daughter he r e t u r n from t h e r a p y , had was s e x u a l l y molested removed to a c o n t i n u e s t o undergo therapy. M.M. He admitted M.M. the g i r l childrens' home to his again. where The she According t o t h e former w i f e , is n o t allowed t o s e e t h e g i r l w i t h o u t o t h e r s p r e s e n t . admitted h i s problem t o c o u n s e l o r s , but has apparently n o t committed any d e v i a n t a c t s s i n c e t h e l a s t i n c i d e n t w i t h h i s daughter. Linda's attorney objected to the entire line of t e s t i m o n y on g r o u n d s t h a t i t was b a s e d s o l e l y on p r i v i l e g e d communications between M.M. course of objected their to marriage. the testimony and h i s f o r m e r w i f e d u r i n g t h e In as the alternative, inadmissible t r i a l court overuled the objection. counsel hearsay. The W f i n d no e r r o r i n t h e e c o u r t ' s r u l ing. The privilege inter-spousal 26-1-802, MCA: against communications examination is set forth concerning in Section "Spousal p r i v i l e g e . A husband c a n n o t b e examined f o r o r a g a i n s t h i s w i f e w i t h o u t her consent o r a wife f o r o r against her husband w i t h o u t h i s c o n s e n t ; nor c a n e i t h e r during t h e marriage o r af terward, be, without t h e consent of t h e o t h e r , e x a m i n e d a s t o a n y c o m m u n i c a t i o n made by one t o t h e o t h e r d u r i n g t h e marriage; b u t t h i s exception does n o t apply t o a c i v i l a c t i o n o r p r o c e e d i n g by o n e a g a i n s t t h e other or t o a criminal action or p r o c e e d i n g f o r a c r i m e c o m m i t t e d by o n e against the other." Michael argues we that have generally 267. Appellant notes M a t t e r -f - . o-J . H was concerned p r i v i l e g e as it p e r t a i n s this (Mont. 1 9 8 2 ) , 640 P.2d p r i v i l e g e , c i t i n g Matter of J . H . 39 S t . R e p . abrogated correctly, solely to parties to however, with an 445, the that spousal action, and is t h e r e f o r e n o t a p p l i c a b l e t o r e v e a l i n g communications between a s is t h e s i t u a t i o n is i n t h e c a s e b e f o r e us. non-parties, we Nevertheless, think is appellant focusing on an i r r e l e v a n t a s p e c t o f t h e p r i v i l e g e when a s k i n g t h i s C o u r t t o throw o u t t h e evidence. W e have p r e v i o u s l y recognized t h a t t h e purpose of t h e s p o u s a l p r i v i l e g e i s t o p r o t e c t t h e s a n c t i t y of t h e m a r r i a g e and home. St.Rep. 5 1 5 P.2d Matter of J.H., a t 269; S t a t e v. 6 9 5 , 703. supra, 640 P.2d at Taylor ( 1 9 7 3 ) , 1 6 3 Mont. This privilege, however, 447, 39 106, 119, is s u b j e c t t o t h e maxim t h a t , when t h e r e a s o n f o r a r u l e c e a s e s t o e x i s t , s o then should t h e r u l e . i n Matter of J.H., we S e e S e c t i o n 1-3-201, held that once a MCA. Thus, f a m i l y member has b e e n s e x u a l l y a b u s e d , t h e s a n c t i t y o f t h e home a n d t h e r e f o r e the P.2d reason for a t 447, the r u l e a r e simultaneously destroyed, 39 S t . R e p . at t e s t i f y about her husband's c h i l d neglect proceeding, 269, and that a mother 640 could sexual abuse of t h e i r son i n a w h e r e t h e f a t h e r was a p a r t y t o the action. In the immediate case, the sexual abuse of M.M. 's daughter decidedly contributed to the destruction of the family home circumstances, and we M.M.'s believe marriage. the Under privilege the concerning communications about this abuse died with the marriage, and we are disinclined to invoke the privilege even though M.M. and his former wife are not parties to this custody battle. Additionally, spousal privilege Professor Wigmore has criticized the in situations involving non-parties on other grounds: "[Tlhe exclusion of a wife on the ground that her testimony may reveal his misconduct, and thus 'tend' to charge [or incriminate] him, rests on the assumption, false in fact, that her testimony on the stand would in any sense be a revelation, an unsealing of that which was secret. Nothing prevents her from revealing her knowledge out of court; in most instances she has in fact done so. It would be mere hypocrisy to sanction her silence on the stand on the pretext that the husband was thus really safeguarded from her disclosure." 8 J. Wigmore, Evidence Section 2234 (NcNaughton rev. 1961). Clearly, the subject of the supposedly privileged communications had been revealed to welfare authorities and, as it Miller. M.M.'s turned out later, to M.M.'s "counselor," Pastor We agree with the trial court that the testimony of wife was not protected by the spousal privilege under these facts. Neither the trial court nor the parties have fully explored appellant's suggestion that the testimony was inadmissible as privilege applied. hearsay, We whether find or not the spousal that the evidence would be admissible as a statement against interest, an exception to the hearsay rule. See Rule 804(b)(3), Mont.R.Evid. Hearsay testimony admitted under the enumerated subsections of Rule 804 cannot be admitted unless the declarant is "unavailable" for trial. Exemption from testifying on A witness' claim of self-incrimination is generally of Rule 804 (a)(1), privilege is one form of "unavailability." Mont.R.Evid. grounds the privilege against regarded as a sufficient ground of unavailability to warrant reception as a statement against interest of a prior statement or communication made by him. See generally Annot., 43 ALR3d 1413 (1972). this case, M.M.'s In communications to his wife were "so far tended to subject him to ... criminal liability . . . or to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement[s] unless he believed [them] to be true." Rule 804(b)(3), Mont.R.Evid. guarantees trustworthiness, of There being we See circumstantial conclude that the communications were admissible. We next examine appellant's argument that Michael and his witnesses presented no evidence of an actual danger to the children while in the wife's custody. Indeed, there was nothing to suggest that either of the children, especially the girl Sarah, who was probably the most susceptible to harm, had ever been physically molested. Nevertheless, we recognize that child abuse presents a special problem with respect to proof of danger. Specifically, we must decide whether or not the probability of danger is great enough to give the trial modification. court jurisdiction over the See Section 40-4-219(1)(c). proposed No other appellate court has dealt with this particular problem, so we must rely solely on a reasonable construction of the existing statute and the available evidence. During the initial hearing, evidence concerning M.M.'s the trial court heard record as a sexual molester. In addition, Dr. Allison, a psychologist qualified to discuss child sexual abuse, testified concerning the causes of this deviant behavior and treatment methods. She testified that child molesters cannot be cured, but can only be controlled. In short, the molester must especially in the sensitive present. Although Dr. be carefully situation when Allison had monitored, children not examined are M.M. personally, she indicated that if a previous offender like M.M. were placed in a family environment like Linda's, the risk of reoccuring sexual abuse, especially of the young girl, would be "rather high." She reiterated this concern later in her testimony, believing substantial risk involved in molester in a family situation. does not have a that there would placing an admitted be a child She also noted that Montana comprehensive treatment program for offenders. Given the testimony described above, we cannot say that the trial court erred by not dismissing the petition after presentation of Michael's case-in-chief. substantial evidence before There was the court to suggest that a potentially serious situation existed with respect to M.M.'s association with Linda and her children. however, that without proof of Appellant insists, "actual danger ," the jurisdictional pre-requisites of Section 40-4-219(1)(c) have not been met. reasoning maintaining We find it difficult to accept this line of under these facts. that until one of Appellant the is surely Sarsfield children not is sexually assaulted, a trial court cannot consider altering the terms of an interpreting initial custody decree. statutory provisions Other similar to courts Section 40-4-219 (1) (c) have concluded that, even in less serious situations than probability of sexual abuse, serious harim the potential for or is sufficient to invoke the trial court ' s jurisdiction to contemplate modification of a custody decree. See e.g., , ; n 101 111.App. 3d, 427 NE, .., that child's mental, re Marriage of Padiak (1981), at@ 1372 (testimony by psychiatrist moral and emotional health was potentially endangered by custodial parent's social behavior held sufficient to justify consideration of modification). In summary, we will not interpret the provisions of the modification statute so narrowly as to prevent trial courts from petitions assuming where jurisdiction substantial, over credible modification evidence of a potential danger is presented by a petitioner during the case-in-chief. did Such is the case here, and the trial judge not abuse his discretion by failing to dismiss the complaint. With respect to the second issue for review, appellant must again point to a lack of substantial, credible evidence to warrant modification. further consideration of the proposed We conclude that, in addition to testimony presented by Michael and his witnesses at the first hearing, subsequent testimony and information attention of the court provided evidence of a change brought to the substantial, credible in circumstances so as to warrant consideration of modifying the prior decree. At the May 7th hearing, Linda testified that she knew of the allegations about nearly M.M. petition, and two that months she was before aware Michael that filed was M.M. his being c o u n s e l e d a b o u t h i s p r o b l e m by h i s m i n i s t e r , Dwayne M i l l e r . A t t h e May 2 8 t h h e a r i n g , t h e c o u r t h e a r d t e s t i m o n y t h a t M.M. had been i n t h e p r e s e n c e o f least one hearing, occasion indicated i n s p e c t i o n of entered immediately following contrary t o the court's order from t h e c h i l d r e n . court t h e S a r s f i e l d c h i l d r e n on a t of had it t h e S.R.S. consideration. May conducted file In addition, into an in daughter, f i l e on M . M . ' s the 7th t h a t h e s t a y away F i n a l l y , a t t h e June 28th hearing, that portions the evidence the camera and t h e n for further t h e c o u r t heard testimony from O l i v e S a r s f i e l d , M i c h a e l ' s m o t h e r , t h a t L i n d a had t h r e a t e n e d not to allow her to see the grandchildren again if she ( L i n d a ) was s u c c e s s f u l i n t h e c u s t o d y b a t t l e , and t h a t O l i v e was " i n l e a g u e w i t h t h e d e v i l ' ' b e c a u s e of h e r s u p p o r t f o r Michael's petition. To counter statements this that the evidence, impending appellant marriage points t o M.M. to had her been p o s t p o n e d , and e v e n t u a l l y t h a t t h e r e l a t i o n s h i p was s e v e r e d because of her overriding interest i n the children. She f u r t h e r t e s t i f i e d t h a t s h e had a s s u r a n c e s f r o m P a s t o r M i l l e r t h a t M.M. was "O.K.," was m o t i v a t e d Linda also by and t h a t t h e t e s t i m o n y o f M . M . ' s jealousy relies contended t h a t M . M . ' s on the because she remarks of wanted Pastor M.M. Miller, wife back. who r e l i g i o u s c o n v e r s i o n had b r o u g h t him down t h e p a t h t o s o l v i n g h i s s e x u a l p r o b l e m s , and t h a t a s a minister and a counselor to M.M., he would not have s a n c t i o n e d t h e i m p e n d i n g m a r r i a g e had h e n o t b e e n c o n v i n c e d t h a t M.M.'s p r o b l e m s had b e e n s o l v e d . Linda a l s o d i s p u t e s t h e a l l e g a t i o n t h a t M.M. was i n t h e p r e s e n c e o f h e r c h i l d r e n a f t e r t h e May 7 t h h e a r i n g , a s s e v e r a l members o f h e r f a m i l y t e s t i f i e d t h a t t h e c h i l d r e n w e r e n o t i n t h e home when M.M. was there. Linda also children were Michael, who l i v e d earlier arguments that physically never renews harmed by and next door M.M., f o r much of the the that t i m e of the h e a r i n g , was i n a p o s i t i o n t o d e a l w i t h a n y p r o b l e m s i f t h e y arose. The f i n d i n g s o f a t r i a l j u d g e w i l l n o t b e d i s t u r b e d o n appeal where they are based on substantial though c o n f l i c t i n g evidence, unless t h e r e is a c l e a r preponderance of evidence Schwartz against 1979), (Mont. 1980, 1981. such findings. 602 P.2d 175, Marriage 176-77, 36 of St.Rep. I t is n o t t h e f u n c t i o n of t h i s C o u r t t o r e s o l v e c o n f l i c t s i n the evidence. Mont. re In 1 3 2 , 1 3 6 , 638 P.2d Weyler v. 3 9 3 , 396. Kaufnan ( 1 9 8 1 ) , 196 The t r i a l j u d g e h a s t h e s u p e r i o r a d v a n t a g e o f o b s e r v i n g t h e demeanor a n d c r e d i b i l i t y of the witnesses, 1 3 4 , 556 P.2d particular Brooks v. 901, 902, Brooks (1976), 1 7 1 Mont. 132, a n d we w i l l n o t d i s p u t e h i s o r h e r r e s o l u t i o n of conflicting statements unless evidence c l e a r l y preponderates a g a i n s t t h e findings. the Here, many o f a p p e l l a n t ' s a r g u m e n t s i n v o l v e c o n f l i c t i n g e v i d e n c e . The trial court c o n c l u d e t h a t M.M. the Sarsfield court's May Obviously, had substantial the before it to w a s a p o t e n t i a l t h r e a t t o the s a f e t y of children, 7th evidence order trial and to had stay judge was apparantly away not from defied the the children. convinced by the t e s t i m o n y o f L i n d a , members o f h e r f a m i l y , o r P a s t o r M i l l e r (who was n o t q u a l i f i e d a s a n e x p e r t o n s e x u a l a b u s e ) , a n d we refuse to assign a different weight to their collective testimony . I n summary, findings M.M.'s with find we no error to the potential respect the trial danger court's raised by a s s o c i a t i o n w i t h L i n d a and L i n d a ' s c o n d u c t o n c e s h e knew o r had r e a s o n t o know of M.M.'s during t h e June 18th proceedings, M.M. in had left the community W note e that t h e r e was t e s t i m o n y t h a t and p o s e d no t h r e a t t o t h e S a r s f i e l d past. therefore inferentially children. Nevertheless, d u r i n g t h e September 28th c o l l o q u y , Michael John S a r s f i e l d indicated that he usually saw M.M. a t t e n d e d by L i n d a , Michael John, visitation and rights, that time. at the same church and S a r a h when L i n d a h a d t h a t L i n d a would speak t o M.M. at The c o u r t c o u l d t h u s r e a s o n a b l y c o n c l u d e t h a t L i n d a ' s a s s o c i a t i o n w i t h M.M. had n o t e n d e d , even i f their former m a r r i a g e p l a n s were i n limbo. Having concluded that the potential danger to the c h i l d r e n was a s u f f i c i e n t c h a n g e i n c i r c u m s t a n c e s t o j u s t i f y m o d i f y i n g t h e p r i o r d e c r e e , t h e t r i a l c o u r t was s t i l l bound to consider the best interests of the children before d e c i d i n g t h a t t r a n s f e r o f c u s t o d y t o M i c h a e l was m a n d a t e d . Appellant's third i s s u e goes t r i a l court t o hear to the u n w i l l i n g n e s s of the evidence concerning a l l e g a t i o n s about M i c h a e l ' s b e h a v i o r b e f o r e t h e i n i t i a l d e c r e e was e n t e r e d i n 1 9 8 1 and s h o r t l y t h e r e a f t e r . W e conclude t h a t t h e f a i l u r e t o a l l o w t h i s e v i d e n c e i n t o t h e r e c o r d was r e v e r s i b l e e r r o r . A l t h o u g h t h e s o c i a l w o r k e r , Dave E v a n s , t e s t i f i e d t h a t Michael's children, new and home life although was suitable Michael John for indicated raising the during the S e p t e m b e r 2 8 t h c o l l o q u y t h a t h e and S a r a h w e r e h a p p y l i v i n g with t h e i r father, h i s new w i f e , a n d t h e i r newborn c h i l d , Linda attempted to put in evidence concerning Michael's moral behavior prior to and shortly after the dissolution of their marriage. Michael did not Linda did testify at the early hearing that relate well to the children, and had "deserted" the family in 1979, but the evidentiary problem arose during the June 18th hearing when the court sustained an objection to having Linda elaborate on the question of Michael's moral conduct and fitness to raise children. We disagree with respondent that Linda's argument is a twelfth-hour attempt to convince the court that modification of the decree was unnecessary. In her answer to Michael's petition, Linda generally denied several averments made by Michael, including the ones that he could provide "a safe and stable home for the children," and that at the very least, temporary custody was "in the best interests of the children." By denying these averments, Linda put into issue Michael's fitness as a custodial parent, and her testimony on this issue should not have been summarily refused. Section 40-4-219(1) specifically contemplates that: "[tlhe 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 at the time of entry of the prior decree, that a change has occured in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child." (emphasis added) Clearly, the statute requires the trial court to consider post-decree facts, as well as pre-decree facts unknown to the trial court at the time the decree was entered, in determining both the "change in circumstances" and the "best interests" requirements. Respondent Michael argues that, because there was no issue as to Michael's fitness during consideration of the first decree, the trial is court automatically precluded from p r o b i n g t h a t i s s u e i n a l a t e r modification This hearing. is inconsistent with a fair r e a d i n g of t h e s t a t u t e and o u r d e c i s i o n i n M a t t e r o f C u s t o d y of R.L.S. 1981), (Mont. wherein w e held that 632 i t was P.2d 703, 38 reversible St.Rep. error 1328, for a trial c o u r t t o l i m i t evidence i n a custody d i s p u t e t o post-decree facts. Whether initial t h e r e was decree, as no h e a r i n g in prior to C u s t o d y o f R.L.S., entry the whether or of the f i t n e s s of t h e p a r e n t s e e k i n g m o d i f i c a t i o n was n o t a t i s s u e p r i o r t o e n t r y of t h e i n i t i a l d e c r e e b e c a u s e t h a t p a r e n t d i d n o t c h a l l e n g e h i s s p o u s e ' s demand f o r c u s t o d y , concern of child. the The trial court consciously or is court cannot the welfare this concern still satisfy decree. argument, behavior Contrary Linda's prior "facts . . . within the to testimony entry unknown scope to of to of the 65 if ( 1 9 6 9 ) , 76 Wash.2d Accordingly, thrust the first the court at S e c t i o n 40-4-219, Ill.App.3d 965, judgment of the it his decree conduct may t i m e of and this 9; In or involve the N.E.2d the Michael's entry" testimony S e e a l s o Boggs v. 383 5 3 3 , 458 P.2d the t o e n t r y of concerning s h o u l d n o t have been p r o h i b i t e d . (1978), of unconsciously avoids f a c t s about t h e parent seeking m o d i f i c a t i o n t h a t took p l a c e p r i o r initial t h e primary re Boggs Rankin 176. of the district court is r e v e r s e d and t h e c a s e i s remanded f o r f u r t h e r p r o c e e d i n g s . Upon remand, t h e t r i a l c o u r t s h a l l take testimony r e l a t i n g t o facts or allegations decree or that were t h a t have unknown to arisen the court since the prior a t the t i m e of entry of that decree concerning Michael's fitness to obtain custody. The trial court shall decide whether its findings with respect to Michael's fitness, considered in conjunction with its earlier findings concerning circumstances, still warrant modification decree by placing changes in of the initial the Sarsfield children in Michael's custody. We concur: - Chief Justice the .
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