MARRIAGE OF SCHAPLOW

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TABLE OF CONTENTS Page iii TABLE OF AUTHORITIES . . . . . . : . . . . . . . . . . STATEMENT OF ISSUES . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF CASE . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF FACTS . . . . . . . . . . . . . . . 2 . . . . 5 . . . . . 5 . . . . . . 7 . . . . . 13 . . . . . 14 . . . . . . . 15 ARGUMENT I. II. III. . . . . . . . . . . . . . . . . THE DISTRICT COURT ERRED BY MODIFYING CUSTODY OF THE PARTIES' CHILDREN WHEN THERE WAS NO MOTION FOR MODIFICATION BEFORE THE COURT . . . . . . . . . . . . . THE DISTRICT COURT ERRED BY APPLYING THE "BEST INTERESTS" TEST WITHOUT MAKING THE REQUISITE JURISDICTIONAL FINDINGS SET FORTH AT MONT. CODE ANN. § 40-4-219 (1993) . . . . . . . . . THE DISTRICT COURT ERRED BY MODIFYING THE FINAL DECREE WHERE THE STATUTORY CRITERIA SET FORTH AT MONT. CODE ANN. $ 40-4-219 (1993) WERE NOT MET . . . A. B. C. D. IV. . . . . . . . . There was no change in circumstance subsequent the entry of the prior There was no danger children's physical, emotional well-being to decree . . to the mental or . . . . . . . . The harm to the children resulting from the change in environment outweighs the advantages . . . . . . . . . . . . . . . . 16 The modification the children's . . . . . . . . 16 is best not in interests . THE DISTRICT COURT ERRED BY MODIFYING THE FINAL DECREE BECAUSE TERRY FILED NO AFFIDAVIT IN SUPPORT OF MODIFICATION, AS REQUIRED BY MONT. CODE ANN. § 40-4-220 (1993) . . . . . . . . . . . . . i . . . . 20 TABLE OF CONTENTS (Cont.) Page V. THE DISTRICT COURT ERRED BY ORDERING THE CHILDREN TO ATTEND THE CHURCH OF FATHER'S CHOICE WHILE THEY WERE IN MOTHER'S CUSTODIAL CARE IN VIOLATION OF HER FIRST AMENDMENT RELIGIOUS RIGHTS AND MONT. CODE ANN. § 40-4-218 (1993) . CONCLUSION . . . . . . . . . . . . . . . . . . REQUEST FOR ORAL ARGUMENT . . . . . . . . . . CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . . . . APPENDIX OF SERVICE . . ii . . . . . . . . . . 22 . . . 27 . . . . 27 . . . . . . . 28 . . . . ...29 TABLE OF AUTHORITIES CASES Angel v. Angel, 140 N.E.2d 86 (Ohio Page C.P. 1956) . In re the Custody of C.S.F., 232 Mont. 204, 755 P.2.d 578 (1988) . . . . . . . . . . . . . . In re the Marriage of 887 P.2d 1217 (1994) Allison, . . . . .T. Mont. . . ..: B.T., 223 Mont. 287, . . . . . . . . . . . . In re the Marriage of 722 P.2d 1138 (1986) . . 25 . . . . . . In re the Marriage of Alnert, 258 Mont. 344, 852 P.2d 669 (1993) . . . . . . . . . . . . . In re the Matter of 725 P.2d 230 (1986) . . Gahm, 222 Mont. 300, . . . . . . . . . . . . 10,11,21 . . . . . . . . . . . . 11 . . . . . . . 10 In re the Marriaae of Gersovitz, 238 Mont. 506, 779 P.2d 883 (1989) . . . . . . . . . . . . . . . . In re the Marriage of Hoodennvle, 241 Mont. 345, 787 P.2d 326 (1990) . . . . . . . . . . . . . . . . In re the Marriage of Johnson, 266 Mont. 158, 879 P.2d 689 (1994) . . . . . . . . . . . . . In re the Marriage of 689 P.2d 1263 (1984) Khalsa (N.M. v. Ct. Munoz v. 489 P.2d Munoz, 79 Wash.2d 810, 1133 (1971) . . . . . . . . . . . . . . . . . . 8,9 22,23 . . . . . . . . 10 . . . . . 26 . . . . 24 . . OTHER AUTHORITIES Montana Code Annotated § 40-4-212 (1993) . . . . . . 2,8-11 Montana Code Annotated § 40-4-218 (1993) . . . . . . Montana Code Annotated § 40-4-219 (1993) . . . Montana Code Annotated 5 40-4-220 (1993) . . iii 8 9,10,11,12,13 Paradis, 213 Mont. 177, . . . . . . . . . . . . . Khalsa, 751 P.2d 715, App. 1988) . . . . . . . . 5,6 22,27 1,2,7-16,27 1,20,21,22,27 STATEMENT OF THE ISSUES The issues court district for erred residence Final of the Decree, before the forth at consideration by substantially parties' where court, Mont. Code Ann. § 40-4-220 appeals the children of statutory attend court the order the the primary (1993) the modification statutory Also, religion whether modifying for requirements (1993). district the § 40-4-219 Code Ann. the thereby was no motion no finding is changing children, there establishing on appeal criteria set and no affidavit set forth at Mont. Plaintiff/Appellant requiring of his her to assure the choice. STATEMENT OF THE CASE The Eighteenth ("district court"), motions for Contempt" filed of 20 and 21, custodian At that time, night through Sunday hearing, an affidavit and had been the dissolution children The district of were the residing with their mother morning with their father. the district court had Respondent/Respondent alleging and Order Rights night was before nor County ("Peggy") Peggy the the Thursday modification Gallatin Visitation 1994. since through for Court, Petitioner/Appellant's morning modification. Opinion District Determination marriage. Thursday October "Final primary parties' motion heard on October children's Sunday Judicial facts which issued its [hereinafter "December 1 No at the ("Terry") would court and warrant Memorandum, Order"] on December 16, 1994. The December Order children's primary age children switching custodian would parties'~ children and, forth Instead, at Mont. "best 40-4-212 the jurisdictional court set forth of the court should prerequisites (1993) erroneously I1 test interests school- each parent, arrangements Code Ann § 40-4-219 the district to the with the the district therefore, that that The December Order basis. changed the custodial have made a finding set and provided spend equal time on a weekly substantially removed Peggy as the had been met. proceeded at Mont. directly Code Ann. § (1993): In a prior district court Terry's church proceedins ordered over and in the December Order, Peggy to assure the objection the children the attend fo Peggy. STATEMENTOF FACTS 1. Bozenan, Final The parties Montana were married (Findings of Fact, Decree of Dissolution Decree"], 2. Jesse page 1, paragraph Two children B. Schaplow, Schaplow, 3. County, Eighteenth dated in of Law and [hereinafter "Final 3). were born of the parties' marriage, 15, 1981; and Michael born May 29, 1984 (Final the Montana Conclusions of Marriage born July The parties' on June 18, 1977, Decree at 2, para. marriage was dissolved Judicial District May 6, 1991, the Honorable 2 J. Court, by order 4). of Gallatin Thomas A. Olson, District Judge (Final Decree at 4). The parties 4. Property entered Settlement into Agreement a Separation, [hereinafter May 6 1991, which was incorporated Final Decree 2, paragraph (Final parties' Decree provided children residential 7, para. into on the 10; Agreement, page 3). two minor primary and ltAgreement"] by reference Decree at 2, para. The Final 5. Custody for joint and designated parent (Final custody of the Peggy as the Decree at 3; Agreement at 2). The parties 6. mediators since have utilized the dissolution several unsuccessful custody and visitation (Agreement at 7); of their attempts to reach schedule, Dr. Marvin ad Litem, District Judge Joseph B. Gary; Summer Custody Schedule Hearing, Dr. Dr. and Retired (See Respondent's Motion for 7. forth that The parties in the Final Terry through children's Charles Kelly at 7); Traynham; Retired District Judge Determination 8. Expedited changed the visitation of Sunday morning; however, residential The visitation from Thursday Peggy remained parent schedule 3 (Agreement was modified Telephonic schedule Decree in December of 1992, would have the children primary for acceptable June 8, 1995). dated and Request in a mutually (Agreement N. Truitt; of numerous marriage, including Backer Guardian Jack Levitt. Eleanor the services set to provide evening as the at 7). again, after a telephone hearing children's for participation their season attendance Order," 9. On April implement the primary to provide ski for programs during the the and 1994 ski November 26, 1993 [hereinafter page 2, lines 22-28). 4, 1994, after as a meditor, parties in two five-week in Sunday School dated (Order, "November court on November 26, 1993, assignment Judge Levitt a weekly residential by the district recommended that visitation parent schedule designation the and remove (Dec. Order at 3, 11. l-6). 10. Both parties objected to the visitation recommended by Judge Levitt and, pursuant telephone schedule 9, 1994, the parties hearing the visitation schedule Order wherein primary on August Peggy remained residential 11. set forth In this Peggy to assure to another reverted in the court's designated to November as the children's parent. November Order, the children attend the district Terry's court church ordered (Nov. Order). 12. Peggy filed Visitation district court that Rights court issued Motions and Contempt on October its for Order December Order that Final Determination and both were heard 20 and 21, 1995. on December 16, 1995, Peggy now appeals. 4 of by the The district and it is from ARGUMENT I. TRE DISTRICT COURT ERRED BY MODIFYING CUSTODY OF THE PARTIES' CHILDREN EEEN THERE SEAS NO MOTION FOR MODIFICATION The long-standing rule to on issues jurisdiction properly before it was no motion did In not re the court this arrangement 1.) court for for In C.S.F., on the the parties' C.S.F., refusal 232 Mont. father's specifying accumulated another and notice at number visitation. number of the court days at 579. issued ordering the copies things, Supreme was void, 5 of at the of occasions. After its their 1, of as a result a hearing order to parties their Order moved days he was entitled with order visitation on several 755 P.2d 578 district father of it i.e, 755 P.2d deem accumulated the The Montana of the visitation a, (See Dec. child's among other of, court the the 205, and further and the of there court, the to motion, the before of of Because district 204, children. B, have decree. 232 Mont. was clarification he was allowed mother's cases. the properly not pleadings the modify C.S.F., a determination visitation the before question case does domestic to of The only para. to jurisdiction a court outside modification Custody in provision applies for have (1988). the rule that BEFORE THE COURT. to work intent Court held that as it was outside deem provide one schedules to the exercise notice the issues set forth in the pleadings, stating: A district court does not have jurisdiction to grant relief outside of the issues presented by the pleadings unless the parties stipulate that the other questions be considered or the pleadings (Citing are amended to conform to the proof. authority.) In National Surety Corporation 121 Mont. 202, 192 P.2d 3171, this Court [(I-948), recognized that "the rule in Montana as well as in other jurisdictions seems to be well settled that a judgment must be based on a verdict or findings of the court and must be within the issues presented to the court. . . . 232 Mont. In re the Custodv of C.S.F., 582 (Citations omitted). in Likewise, outside matters this the modification the the defined court; the in issues 209, district There pleadings. before specifically case, at 755 P.2d court ruled was no motion fact, the which were on for December before at it Order as follows: The central issue before the Court is Petitioner's Motion for Final Determination of Visitation Rights. Ancillary thereto are contempt motions filed by each party against the other and Petitioner's motion for sanctions alleging Respondents [sic] violation of Rule 4(D)(l)(a), Montana Rules of Civil Procedure. (Dec. Order Terry of other with the 1, para. and Peggy 1.) did not issues or the proof, in accordance pleadings rule Mont. at court erred provisions at 209, by modifying of amendment as stated 755 P.2d the Final stipulate at 582. the Decree of with by the to the consideration pleadings to conform exceptions to the the the Court in C.S.F. Therefore, the custody since C.S.F., district and visitation the only issue before 232 it with respect to custody a determination there of the existing had been a motion court, and visitation for order. the district modifying court the children's Furthermore, modification the December Order would, because was a request before nonetheless, applied even if the district fail on appeal the wrong standard custodial for in arrangement. II. THE DISTRICT COURT ERRED BY APPLYING THE "BEST INTERESTS" TEST WITEOUT MAKING THE REQUISITE JURISDICTIONAL SET FORTH AT MONT. CODE ANN. 5 40-4-219 The visitation significantly parties' children Andy eliminated primary ~therefore, custodian. constitutes Accordingly, set the forth standard at Mont. court's constitutes in this Peggy's of review to utilize error for the designation of the Final that as the Decree. the district endangerment" Code Ann. § 40-4-219 reversible case, The December Order, was the *'serious failure (1993). arrangement a modification have applied district set forth changed the custodial children's should schedule FINDINGS (1993). this standard The standard and should, court therefore, be reversed. One indication than of the court's merely the existing removal parent eliminate clarify intent to change, visitation schedule of Peggy as the children's (Dec. Order at 11, para. the designation primary 1). It of the primary rather was the residential is not necessary residential parent to merely with because the parents the children of HoodenDvle, HoodenDvle, district in their supra, approximately primary 241 Mont. court's 345, care. ~finding criteria (19931, and denied time 787 P.2d 326 (1990). that set forth equal In re the Marriaue the Montana Supreme Court statutory decree share affirmed the petitioner at Mont. her request for In the had not met the Code Ann. § modification 40-4-219 of the prior stating: Once a custody arrangement is established, a party may move for modification under Section 40-4-219, MCA. However, one moving for a modification under the statute must prove that a change has occurred in the circumstances of the children or custodian that necessitates the change in accord with the best interest considerations set forth in Section 40-4-212, MCA . . . Hoodenpvle at 347, 787 P.2d at 328. The Hoodenpvle case, issued Court, an order alternate weeks. were both arrangement children during Id. the duration children's primary alters conditioned when the Id. And, more importantly, week visitation, custodian. designation interpretation forth rights the Court as the Id. of unspecified in a prior where the clarification the visitation in Hoodenpvle expressly Respondent's set on of visitation of alternate and/or of visitation a modification age. instant visitation the children and the Court continued Clarification rights However, school in the the parties on renegotiation reached in HoodenDvle the court granting preschoolers this like amounts to or interpretation of the parties. 8 decree In re the Marriaqe of Alwert but this the this In Alnert, 258 Mont. issue arose reasoning case, set since Alnert, the the by the context the 852 P.2d context forth Court V'modification'l in 344, does concluded of Court not that and "clarification" 669 In a UCCJA question, is applicable affect the (1993). the in analysis. distinction between was superficial: [I]n this case, the court's order altered the rights of the parties beyond that originally contemplated when the visitation provisions were left unspecified, and thus, modified those rights. Alwert at 347, 852 P.2d The Montana inconsistencies seeks its standard involving re the (1994). before Marriaqe In it prior of Johnson, has recognized decisions be applied change the 671. Court to a substantive decree In Supreme in appropriate at to custody cases portions 266 Mont. the Court the where and visitation Johnson, suwra, regarding to those the of of 158, phrased a party a prior children. 879 P.2d the 689 issue as follows: When a party to a former dissolution proceeding moves to amend the decree in a way that substantially changes the residential living arrangements of the former couple's children without seeking a change in the legal designation of "joint custody," is the District Court's decision governed by the l'best interest" standard found at Section 40-4-212, MCA, or by the "serious endangerment" standard found at Section 40-4219(l)(c), MCA? Johnson at 159, 879 P.2d The Montana contradictory Supreme rulings in at 691. Court the explained two 9 leading the cases seemingly on the issue of the appropriate modification standard cases at that Paradis, 213 Mont. Marriaqe of Gahm, 222 Kant. their prodigy, 177, of review time, for custody In re the Marriaqe 689 P.2d 1263 (1984), 300, 722 P.2d of and In re the 1138 (1986) and stating: In summary, our prior decisions have held that where one party to a dissolution moves or petitions to modify a sole custody provision in the dissolution decree, then that party must satisfy the jurisdictional requirements of Section 40-4-219, MCA. However, if the original decree provided for joint custody and the motion to modify does not attempt to terminate joint custody, but simply alter the physical custody arrangements, the district court should consider the motion in light of the best interest standard established by Section 40-4-212, MCA. We have carved out an exception to the previous two rules where the form of a party's pleading asks for a modification of physical custody, but in essence terminates joint custody. Johnson at 165, 879 P.2d at 694. The Court appropriate elaborated standard in In re the Marriaoe on its of review explanation in custody of Allison, suora, of the modification stating: Motions or petitions to modify a sole custody provision or terminate a joint custody provision must satisfy the jurisdictional prerequisites set forth in Section 40-4-219, MCA. Likewise, a motion or oetition to modify child custody provisions in a dissolution decree which harsl the effect of substantiallv chanqinq the primarv residence of the parties' children, even thouqh the formal desiqnation of "ioint custodv" is retained, are to be construed as motions or petitions to terminate joint custody and must satisfy the jurisdictional requirements set forth Section 40-4-219, MCA. Any effort to modify the physical custody, which does notseek a substantial change in the children's primary 10 cases residence, according in Section In re the (1994) may be considered to the best interest 40-4-212, MCA. Marriace of Allison, (emphasis Johnson, added) In re 158, 879 P.2d 689 December the substantially Order changed terminated Peggy's custodian, the action the district endangerment" 40-4-219 (1993). reversible error without joint test Instead, forth at Mont. the of the district where In (1986). the Ann. re the In the the at page the Mont. requisite Code Ann. 11, 11. and, B.T., in the will is set best be overruled 287, void forth with in applied the "best (1993). 7-9.) 11 finding (See, respect Code Order interests" (1993), as set Dec. 725 P.2d Mont. December tj 40-4-212 on credible the jurisdictional interest (1993), fact, Code Ann. § committed 223 Mont. record court § 40-4-219 Code Ann. by substantial requirements that forth supported case, the prerequisites. court of (1993), states set making not Matter this § 40-4-219 test Mont. are jurisdictional clearly 19; they Mont. § 40-4-212 jurisdictional evidence. to at Code Ann. the and applied to to appeal construed directly The findings 230 have and primary court reference of residence district by proceeding 1217 court children's forth the Marriaoe district custody set 887 P.2d primary should court forth (1994)). as the court -, the the children's terminate "serious set of designation as one to standard Mont. (quoting 266 Mont. Because by the district standard set Order without forth at at 7, 1. The substance in an action relief for of the relief modification as stated modification joint actually custody similar because the parties' point it would contrary be beneficial guidelines for changing the mother's custodian, actually therefore, the proper endangerment (1993). the Court did seeking policy the held by, to modify to to be applied at Mont. visitation altering primary was the serious § 40-4-219 presented this by the imposed upon a party citing had committed the custodial 879 in In applying the underlying and continuity 12 169, and Code Ann. the evidence decree, court interests, court, Decree, "heavy burden" stability best of custody Johnson at 166, 879 P.2d at 695. the district "substantially that a final "preserve children." that held their as the children's the Final standard not meet the about the district that, to the Johnson at Johnson at 166, 879 P.2d at 694. standard, father that designation set forth held more specific to follow. modified test, the Court to communicate held is had deteriorated to establish The Court schedule, which to the children's the parties P.2d at 696. case, relationship were unable needs, schedule of an existing In Johnson, to the present where they children's Id. the at 159, change in the children's situation. factually visitation amounts to termination party than Johnson pleadings. Where the resulting a significant by the moving is more significant in the formal 879 P.2d at 693. constitutes sought for The Court reversible arrangements error provided P.2d for at in its original Johnson at 169, 879 696. Even applied if the district the serious best interest test, the modification, court that Code Ann. in endangerment it would as set a finding 5 40-4-219 by the decree." the case test, have forth statutory this in as opposed been the error for December criteria set is to it the to Order, forth had been met (1993), had correctly at not grant since Mont. supported record. III. THE DISTRICT COURT ERRED BY MODIFYING DECREE WHERE THE STATUTORY CRITERIA MONT. CODE ANN. Since above, the this Court and find serious that should the endangerment district court findings of Ann. 5 40-4-219 erred the 5 40-4-219 district (1993), test, the it is to criteria which WERE NOT MET. logic court by failing statutory SET FORTH AT (1993) accept states, set should obvious make the set THE FINAL forth in forth have that applied the requisite at Mont. relevant part: (1) The court may in its 40-4-219. Modification. discretion modify a prior custody decree if it finds, upon the basis of facts that have arisen since the prior decree that were unknown to the court at the time of the entry of the prior decree, that a change had occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child and if it further finds that: . . . . 13 Code (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; . . . Mont. Code Ann. 5 40-4-219(1)(a) Neither court the record support (1993). nor the findings the existence of the statutory necessary to support a modification visitation provisions of the prior Code Ann. required § 40-4-219 to find subsequent mental, of the Final environment moral advantages pursuant court Decree that interests seriously or emotional a change in environment decree, and to Mont. was was a change in circumstance was in the best children's criteria of the custody The district there to the entry modification the (1993). that of the district health; of the children; endangered and, that Mont. that their the benefit would be outweighed to the children. indicated of by the Code Ann. § 40-4-219(c) (1993). A. There subsequent At the hearing was no change to the in entry on Peggy's of circumstance the prior Motions for Determination of Visitation party alleged any change in circumstance entry of the Final test set Neither forth party Rights Decree sufficient at Mont. Final and Contempt, neither 14 neither subsequent to meet the Code Ann. § 40-4-219 has remarried, decree. to the threshold (1993). has had a significant change in their respective contemplating The December change in of parties. met, the Order nor circumstance, district is has silent is had any with additional respect to any was any change court alleged by either this Therefore, and the neither and neither relocation, children. the lifestyle, element was not threshold erred by modifying custody of children. B. There was no danger physical, mental The December danger to the not apply at Mont. to whether Code Ann. the October, is or record does endangerment circumstance Decree, the that the as to it district test as it More the any set forth made no findings their existed any the mental, importantly, of as at physical, existence the serious made no finding subsequent make no finding determination (1993), court arising of endangerment to children. by Mont. The failure respect Because endangered district physical, with environment, as required children's well-being. silent well-being. the the also serious indicate to Because the hearing, not children's emotional 5 40-4-219 emotional the well-being. children's 1994, moral, could or children's did court in Order to mental, district whether to the Code Ann. such a change moral, entry a change of the 5 40-4-219 or emotional to there had been Final (1993), endangered court 15 of the well being. make a preliminary a change in it circumstance subsequent dissolution being which endangered as contemplated rendered the court However, even if finding to the entry the children's by Mont. without jurisdiction the court the record Decree of health or well- Code Ann. (fj 40-4-219 to modify (1993), custody. had made the requisite of a changed circumstance, statute, of the Final initial in accordance does not establish with any danger the to the children. C. The harm change in to that children it set establishes, resulting outweighs from the even considered whether in its of visitation In fact, to the children. in section the record (d), indicates from a more stable, December the harm to the from the modification forth the advantages. made no indication any advantage testimony benefit court resulting outweighed children environment The district Order the below, that as the clearly the children consistent would environment. D. The modification is not Once the district jurisdictional (1993)) in court requirements have been met, of the children's does not support schedule set forth best it the children's makes a finding of Mont. must then interests. the court's best finding that Code Ann. proceed the § 40-4-219 to an analysis The record that interests. in this case the visitation in the December Order and the elimination 16 of Peggy's parent designation is in the best the record Truitt, supports clinical guardian parents facilitate share dated marriage and family conflict between for their Nona Faith, mother that court for the boys, separated children schedule that Vol. family best the type between Terry I at 49, 11. 2-4). The procedural Ms. Faith's observations. psychologist working psychology, 1989, testified about issues between regarding testified of flexibility would arrangement history (Oct. children 17 Tr. of the and Peggy supports Backer, the parties the parties' their friend, and clinical in the area of child who counseled about Terry Dr. Marvin primarily on-going law mediator and Peggy that 50/50 custody proceedings and I at 30, 11. 3-4). or degree a successful antagonistic ~8-11.) is the most damaging Tr., administrator, to (See Transcript professor testified (Oct. testified where the lines University parents a 1994 [hereinafter page 276, therapist as and communicate 20-21, I, Eleanor who acted the children. Ph.D., she has not observed facilitate family worker of the Schaplow children's and communication vol. with Vol. Carmen Knudson-Martin, thing social October Transcript"], In fact, For example, ad-litem time residential of the children. and visitation equal of Proceedings, "October primary must be able to negotiate a custody parents interests the contrary. a licensed court-appointed that as the children's inability and in July of to communicate at a hearing on Temporary Custody on September 14, and 24, 1990: Q. Can you describe the communication problems or the problems that the parties were having that they presented to you? A. I think there were a number of problems, one had to do with decision making, of how they would reach decisions. And part of my function was essentially that of being mediator, trying to resolve some conflicts, trying to reach decisions with regard to the kids, particularly with reference to visitation and schedules. The parents seemingly had great difficulty doing this together. And it was one of the reasons that I offered my services. Q. describe deciding When you said "apparently", could you the,problems the parties were having in issues concerning their children? A. I could. I guess my preference, Mr. is to speak in more general terms about Sinclair, a process rather than giving specifics. If you want specifics, I can do that. Q. Can you describe the process? A. Yes. One of the things that I was aware of is that there is a lot of bitterness that exists between those two people. There are .ongoing conflicts that go back for years, there're [sic] communication problems that go back for years. We just have a different arena with which to deal with some of the power struggles that operate, some of the differences of opinion that exist between them. And so, when it came to the area of deadline with children, it wasn't terribly surprising that they would have as much difficulty reaching decisions there as maybe other areas of their marriage. Their ideas with regard to child rearing are somewhat different. There ideas with regard to what is in the childrens' [sic] best interests. Perhaps they're somewhat different. And so, when they would typically sit down and try to reach some decision about things, most often it was a stalemate. Frequently, there was no 18 resolution. So, there are ongoing conflict which is maintained. areas of dated September 14 and 24, 1990 (Transcript of Proceedings, [hereinafter "September Transcript"], page 7, lines 8-25; p. 11. 1-21.) 8, The record improvement cooperate shows thatthere ability in the parties' Dr. Backer had to ~file parties since Motions December Order, requiring order regarding June 28, 1995). for specifically had attempted set forth spring a weekly 11. 1-12). schedule, anticipated suggested a strategy parties to cooperate mediator (Oct. Tr., None of the parties' their divorce of Facts, whereby Vol. II skills for between inevitable at 189, schedule both parties 19 act as a 1. 5). (a since Statement the parties' them to sustain and the parties and of the at mediation substantial at 3, the parties would Obviously, the visitation 1. 9; p. 190, not enable without Order failure Judge Levitt during to continue (Dec. a weekly numerous attempts will the schedule of time schedule 6.) the parties like in 1989, have been successful. visitation witnesses the that were unable disagreements page 2, paragraph communication weekly period in suggesting for another court schedule a brief to the pre-existing Even Terry, yet the district and summer of 1994, but they and reverted of the December Order, for both the summer of 1995 (Order, visitation in the Order and In fact, clarification Further, in its ruled, in 1990. Judge Cox to issue for or no to communicate testified visitation dated has been little a conflict. themselves As have testified, this on-going children's best conflict is contrary to the interests. IV. THE DISTRICT COURT ERRED BY MODIFYING BECAUSE TERRY FILED NO AFFIDAVIT the district modification review, before it, court 5 40-4-220 had applied to be in the children's modification would, did necessary for statutory an affidavit, 5 40-4-220 (1993), 40-4-220. standard best before criteria. interests, it decree setting with which in relevant Affidavit Mont. the forth the to a motion must support in accordance states, the since The moving party of a custody of and had found be erroneous, not have an affidavit modification with nonetheless, for the correct findings, modification court (1993). had had a motion had made the requisite DECREE IN SUPPORT OF MODIFICATION, AS REQUIRED BY MONT. CODE ANN. Even if THE FINAL his motion Code Ann. part: practice. (1) A Party seeking a temporary custody order or modification of a custody decree shall submit, together with his moving papers, an affidavit setting forth facts supporting the requested order or modification and shall give notice, together with a copy of his affidavit, to other parties to the proceeding, who may file opposing affidavits. The court shall denv the motion unless it finds that adeauate cause for hearina the motion is established bv the affidavits, in which case it shall set a date for hearing on an order to show cause why the requested order or modification should not be granted. Mont. Code Ann. § 40-4-220 There was no motion and, accordingly, neither (1993) for (emphasis modification party 20 filed added). before a supporting the court affidavit in accordance with and the resulting vacated. December Order Supreme Court vacating because it required -, Code Ann. § 40-4-220 In In re the Marriaae Montana court the Mont. the ruling changing was not adequately by Mont. therefore, of Allison, affirmed an order should, (1993), be suora, the of the district residential supported custody, by an affidavit Code Ann. § 40-4-220 (1993). as Allison, at 887 P.2d at 1227. The Court literal held compliance the moving party with the statutory at Mont. Code Ann. § 40-4-220 explicit and provides at 1227. The Court the district court affidavit (1993), rejected should at the time modification, stating, set Id. at is , 887 P.2d argument have made an exception that to the he did not have adequate he filed "[t]he his statute requirement, motion for provides and we refuse no exception to create one." Id. Nor should this Court The fact that neither case. a motion for modification the district before it criteria. the Final court It was improper Decree without Terry should modified a sworn affidavit carve out an exception setting for not excuse the 21 fact Decree without forth the district an initial in this nor Peggy actually the Final finding of forth because the statute the respondent's since information standard requirement no exceptions. requirement to the affidavit to a strict filed that having the statutory court that to modify the threshold statutory It an affidavit. modify the forth facts in criteria met error for was reversible Final Decree when there sufficient accordance had been with to and set the court grounds for Code Ann. § 40-4-220 in to was no affidavit establish Mont. forth setting modification (1993). V. THE DISTRICT COURT ERRED BY ORDERING THE CHILDREN THE CHURCH OF FATHER'S CUSTODIAL Montana CHOICE WHILE THEY WERE IN MOTHER'S CARE IN VIOLATION RIGHTS law TO ATTEND OF HER FIRST AND MONT. CODE ANN. AMENDMENT RELIGIOUS 5 40-4-218 (1993). states: Except as otherwise agreed by the parties in writing at the time of the custody decree, the custodian may determine the child's upbringing, including his education, health care, and relisious training, unless the court after hearing finds, upon motion by the noncustodial parent, that in the absence of a specific limitation of the custodian's authority, the child's physical health would be endangered or his emotional development significantly impaired. Mont. Code Ann. In it when this ordered the her case, children wishes, attend § 40-4-218 solely Court in P.2d 883 church is In as the the (Oct. the (1989)held in abused custodial Terry II its parent desired Vol first Marriace added). Presbyterian Tr., of .(emphasis Court First because an issue re District Peggy attend his This the (1993) at to discretion make Church the 169, against children 11. in Gersovitz, 238 Mont. a custody 22 determination: to 5-13). impression of sure Montana. This 506, 779 [Clourts religions faith. Id. will not debate the merits of different or show oreference to anv relicrious at 885 (emphasis However, added). the case at bar is not an issue based on religion. children Rather, must attend Order; the church Dec. Order). their children period. the district It attend court chosen solely did so by ordering his church during of the held custody the by Terry Peggy to assure her custodial Id. As this Court held in Gersovitz: [T]he first Amendment guarantees religious liberty and the right of parents to direct the religious upbringing of their children. Id. at 885. Judge Cox's orders state as follows: Terry shall return the boys to Peggy's house at 8:00 a.m. on Sunday on or after January 9, 1993 for the two five-week ski lessons, provided that Peggy takes the boys to each evening service at First Presbyterian Church for those Sundays. Peggy shall give Terry reasonable advance written notice of when said two five-week programs are to be held; Other than the said two five-week ski programs, the boys shall attend Sunday School uninterrupted from 9:00 a.m. to 10:00 a.m. at First Presbyterian Church. (Nov. Order at 2.) Both parties Sunday School Presbyterian parent is not (Dec. Order It is shall ensure that the boys attend and/or Church Services at First Church each Sunday that the custodial out of town. at 12). impossible to perceive 23 (Nov. how, knowing Peggy's objection, First the court Presbyterian exclusion the children Church without Rather, rights. ordered the court of Peggy's to attend violation of her and her First custodial desire mandated Terry's desire the to the Amendment legal rights. In this case, to make sure custodial 202, 11. 12-14; school I, not prefer lawyer 222, the (Oct. Tr., with church at 201, 11. 6-19). church of church her custodial services plans and affected for the religious were in their programming care courts could (Oct. Tr., two children. The court, the judge awarded sole to the mother 24 and his Vol. II at in attending Tr., their Vol. of the I at 80, decide children and when I at 79, 11. 7-12). this issue. In Munoz v. the divorcing the religious control Vol. the values went to trial. matter to this Peggy did each parent Vol. p. Tr., Tr., 489 P.2d 1133 (1971) not agree regarding training for have addressed their religious (Oct. Peggy requested Munoz, 79 Wash.2d 810, parties (Oct. about her children 1. 41; p. 81, 1. 9). Regional' (Oct. Church as Terry her attitude her or Sunday More importantly, Presbyterian Peggy 11. l-2; This made Peggy uncomfortable attendance pursue during Peggy objected were both members of the church church to order II, 11. 11; p. 81, 1. 9). the First the court his Vol. because the time 11. 7-19). they attend p. 222, conflicted at 77, requested the children period requirement Terry training for In the lower over the children's who was the physical custodian. &at-, The the 489 P.2d Supreme decree Court of at 1134. Washington reversed and modified stating: [Clourts are reluctant . . . to interfere with the religious faith and training of children where the conflicting religious preferences of the parents are in no way detrimental to the welfare of the American courts are child . . . constitutionally, forbidden from interfering with religious freedoms or to take steps preferring one religion over another. Id. at 1135. In the case allegation of mandatory bar, jeopardy attendance Church (Oct. 10). such Tr., Rather, religious children 11. at to the II at entire met his religious assure at 11. 5-13; desire Presbyterian p. 222, 11. on Terry's to (Oct. requiring First focused beliefs this the case, the district attendance of her training creates a preference excludes Peggy's desires. desires to provide district desire educate Tr., 6belief the Vol. II at court's children for in in December training Order for Peggy Terry's Terry's Moreover, no religious court's order religious religion the to and event Peggy the precludes children, her religious altogether. In Anael welfare children 169, nor 169, 5-13). In the children's testimony training on his was no testimony the for Vol the there v. Ohio, Angel, Generally the Court of 140 N.E.2d speaking Common Pleas, in 86 (Ohio 1956), held: teachings that and apart 25 C.P. from the case of to are subversive others equally authority over which consists Id. at 87. Terry desire has not alleged nor presented to choose her own religion subversives 169, their morality 11. 5-13). at 169, This he choices 11. 5-14; Court for p. zoo, must honor (Oct. their that Tr., desires merely for facts Peggy's the children or decency Rather, and her religious II of morality and decency and some obnoxious, the courts have no that part of the child's training in religious discipline. Vol II to control children (Oct. 1. 20; p. 201, at Peggy Tr., Vol. 1. 7). the Constitution. Courts should adhere to a policy of impartiality between religions and should intervene in this sensitive and constitutionally protected area only where there is a clear and affirmative showing of harm to the children. Restrictions in this area present the danger that court-imposed limitations will unconstitutionally infringe upon a parent's freedom of worship or be uerceived as having that effect. Khalsa v. Khalsa, (emphasis added). In this to infringe reality upheld 751 P.2d 715, case, the district on Peggy's is that Ct. court not have intended may freedom to worship she perceives when she is ordered Terry's 721 (N.M. her rights to educate App. or not, 1988) the have not been her children in faith. For these reasons, the district court to assure the children Peggy asks this Peggy asks this abused its Court attend to order Court discretion Terry's to hold when it choice the district that ordered her of religion. court to enforce the law that grants a custodial religious training during Code Ann. § 40-4-218(l) parent their the right custodial to decide Mont. period. (1993). CONCLUSION The district ruling court on a motion applying decree at Mont. satisfying 5 40-4-220 appropriate affidavit; attend the statutory (1993), reasons, Order of the Eighteenth the court; requiring of only Peggy respectfully Judicial criteria the set (4) modifying forth the mandate of Mont. the filing of an Peggy to assure Terry's choice. requests District (1) (2) (3) modifying and (5) ordering the church these (1993); by: error the statutory satisfying Code Ann. children of review; Code Ann. § 40-4-219 without reversible was not before the wrong standard without decree that committed that Court her For the December be reversed and remanded. REQUEST FOR ORAL ARGUMENT Petitioner/Appellant argument before RESPECTFULLY this respectfully requests oral Court. SUBMITTED this .qq&(? 27 4th day of November,,1995. tQ+ le C. Quist j K. Anderson i eys for Petitioner/Appellant CERTIFICATE OF SERVICE I hereby certify that on the 4th of November, 1995, a true and correct copy of the above and foregoing document was duly served upon counsel of record by depositing in the United States mail, postage prepaid, addressed as follows: Edmund I?. Sedivy, Jr. SEDIVY, BENNETT & WHITE, Attorneys at Law P.O. BOX 1168 Bozeman, MT 59715 P.C. 28

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