MARRIAGE OF ELSER
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NO. 94-433 IN THE SUPREME COURT OF THE STATE OF MONTANA 1995 IN RE THE MARRIAGE OF CINDY ANN ANSELL, f/k/a CINDY ANN ELSER, Petitioner and Appellant, and DAN ROY ELSER, Respondent and Respondent. APPEAL FROM: District Court of the Twenty-First Judicial District, In and for the County of Ravalli, The Honorable Jeffrey H. Langton, Judge presiding. COUNSEL OF RECORD: For Appellant: Howard C. Greenwood, Hamilton, Montana For Respondent: Philip J. O'Connell, O'Connell, Beers & Alterowitz, Missoula, Montana Submitted on Briefs: Decided.;~. Filed: February 16, 1995 May 23, 1995 Justice Karla M. Gray delivered the Opinion of the Court. Cindy Ann Ansell, formerly known as Cindy Ann Elser (Cindy), appeals from the findings, conclusions, and order of the Twenty- First Judicial District Court, Ravalli County, denying her motion for an order permitting her to remove her minor children to a permanent residence outside of Montana and granting Dan Roy Elser's (Dan) motion to appoint him primary residential custodian if Cindy proceeds with her relocation. We affirm. The District Court dissolved Cindy's and Dan's marriage via a final decree of dissolution dated November 17, 1993. Pursuant to the terms of a separation agreement incorporated into the final decree, Cindy and Dan were awarded joint custody of Amber and Jaimie, their two minor daughters; children's primary visitation rights residential Cindy was designated the custodian. Dan was granted on alternating weekends and major holidays, residential custody for two months in the winter, and any other visitation agreed to by Cindy and Dan which would not interfere with the children's separation agreement education also and provided social that activities. The "[nleither party shall remove any of the minor children to a permanent residence outside the State of Montana without the other party's prior written consent or prior approval of a court having proper jurisdiction over the minor Cindy dissolution; children resided in Dan . .'I Hamilton maintained a with residence the children in Corvallis. after the Cindy, a radiology assistant, desired to continue her education and applied 2 for admission to the radiology technician program at St. Patrick's Hospital in Missoula. After St. Patrick's denied her application, Cindy notified Dan of her intention to relocate with the children to Kansas and enroll in the University of Kansas' technician program. radiology Dan refused to consent to the relocation. Cindy moved the District Court for an order permitting her to remove the children to a permanent residence outside of Montana. She included a proposed visitation modification whereby Dan would be allowed to have his two-month custody of the girls during the summer instead holidays. of the winter and visitation on alternating major Dan objected to the children's relocation and moved the court to designate him as their primary residential custodian in the event Cindy relocated out of state. The District Court denied Cindy's motion and ordered that Dan would become the children's primary residential custodian in the event Cindy left Montana. Cindy appeals. Did the District Court abuse its discretion in granting Dan's motion to modify custody? At the outset, we note the parties' disagreement over which statutory standards were applicable to their respective, and each other's, motions in the District Court and clarify which statutes apply to this case. Dan's motion sought modification of the existing custody arrangement via his appointment as the children's primary physical custodian in the event Cindy moved out of state. Shortly after the District Court's grant of that motion, we adopted a new standard for evaluating motions in the joint custody context which seek a significant change in physical custody without regard 3 to whether a change in the formal joint custody designation is sought: [M]otion[s] or petition [sl to modify child custody provisions in a dissolution decree which have the effect of substantially changing the primary residence of the parties' children, even though the formal designation of "joint custody" is retained, are to be construed as motions or petitions to terminate joint custody and must satisfy the jurisdictional requirements set forth in § 40-4-219, MCA. In re Marriage of Johnson (19941, 266 Mont. 158, 166, 879 P.2d 689, 694. It is a general rule that an appellate court must apply the law in effect at the time it renders its decision. Haines Pipeline v. MPC (1991), 251 Mont. 422, 433, 830 P.2d 1230, 1238. Dan's motion, if successful, would reverse the children's physical custody arrangements by appointing him primary physical custodian of the children; it clearly would have the effect of substantially changing the children's physical custody. Pursuant to Marriaqe of Johnson, therefore, Dan's motion must be construed as a motion to terminate joint custody to which 5 40-4-219, MCA, applies. In order to modify custody under that statute, a court must determine that the circumstances of the child or custodian one of have changed since entry of the decree, contained in subsection (1) (a) through (f), the factors exists, and the best interests of the child require modification; only then may the court exercise its discretion to modify custody. 219(l), 1223, Section 40-4- MCA; In re Marriage of Allison (Mont. 1994), 887 P.2d 1217, 51 St.Rep. 1502, 1506. Cindy's children's motion, residence on the other hand, without sought to change the significantly 4 modifying custody arrangements. Under § 40-6-231; MCA, "[al parent entitled to the custody of a child has a right to change his residence, subject to the power of the proper court to restrain a removal which would prejudice the rights or welfare of the child." We previously have determined that the essentially the best "prejudice" standard in 5 40-6-231, MCA, is interest standard in Marriage of Bergner (1986), 222 Mont. 305, 1145. reverse. 310-11, 722 See In re P.2d 1141, In other words, a "prejudice" determination under § 40-6- 231, MCA, is the legal equivalent of a "not in the child's best interest" determination. As a result, and contrary to Cindy's argument that it was necessary for the District Court to make a specific determination of prejudice before denying her motion, the best interest standard applies to Cindy's motion to change the children's residence to Kansas. As our discussion clarifies, the District Court's ruling on both motions ultimately rested on application of the best interest of the children standard. As a result, if the court did not err in granting Dan's motion under 5 40-4-219, MCA, which includes the best interest standard, it did not err in denying Cindy's motion under the best interest standard. In addressing Dan's motion to modify, the District Court specifically found that Cindy's proposed move constituted a change in the children's circumstances dissolution decree was entered. 40-4-219(l), which had arisen after the Cindy does not challenge this 5 MCA, finding. The court also found that Cindy's intent to change the 5 children's residence to Kansas met the factor set forth in 5 40-4MCA. 219(l) (f), Cindy contends that the existence of subsection (I) (f) factor is insufficient. the Relying on In re Marriage of Miller (1992), 251 Mont. 300, 825 P.2d 189, she argues that the District Court could not grant Dan's motion to modify without first determining under 5 40-4-219(l) (c), MCA, that the children's environment in her physical custody seriously endangered them. Neither the statute nor Marriaqe of Miller supports Cindy's argument. As set forth above, the statute is clear that the court need find the existence of only one of the factors listed in § 40-421911) (a)-(f), MCA. Moreover, the motion to modify custody in Marriacre of Miller was brought pursuant to 5 40-4-219(l) (c), MCA, which requires a seriously emotional determination that the present environment endangers health. the child's Marriase of Miller, 825 subsection (1) (c) forms the basis custody. See, e.q., physical, mental, moral, or P.2d at 192. Indeed, for many motions to modify In re Marriage of Gallagher 119941, 266 Mont. 358, 361, 880 P.2d 1303, 1306; In re Marriage of Morazan (19891, 237 Mont. 294, 298, 772 P.2d 872, 874. Here, however, the District Court found the existence of the § 40-4-219(l) (f), MCA, factor. Nothing in the statute or Marriage of Miller requires more. The District Court having properly found two of the three § 40-4-219, MCA, criteria, we need only review its findings that the move to Kansas is not in the children's best interests. argues that the record supports findings that spending 6 time Cindy with the children was not a priority for Dan and that he could have spent much more time with the children. However, her argument ignores the applicable standards of review. We review a district court's findings relating to custody modification to determine whether those erroneous. omitted). Marriaqe of Johnson, 879 findings are clearly P.2d at 694 (citation Findings are clearly erroneous if they are not supported by substantial evidence, the court misapprehends the effect of the evidence, or this Court's review of the record convinces it that a mistake has been made. (citation omitted). Marriaae of Johnson, 879 P.2d at 694 We will reverse a court s decision to modify custody or visitation only where an abuse of discretion is clearly demonstrated. In re Marriage of Hunt (1994), 264 Mont. 159, 164, 870 P.Zd 720, 723. The District Court first found that the high cost of travel and the impossibility of scheduling a time which coordinated with the children's school schedule and Dan's work schedule would deprive Dan of meaningful custody and visitation. It also found that Dan was committed to being an active parent who was involved with his children as much as possible and that Cindy agreed with Dan that it was important for the children to visit with Dan. Based on these findings, the District Court ultimately found that moving to Kansas was not in the children's best interest. Ample evidence supports the court's finding that the children's school schedule and Dan's work schedule would make scheduling Dan's two-month extended 7 visitation during the summer is committed to being an active'parent. The record reflects both Dan's belief in the importance of spending as much time as possible with his children and that he visited them nearly every other weekend and as often as Dan's Furthermore, permitted concern about the by his work children's schedule. welfare was supported by the fact that, although he has experienced financial difficulty, he continued to make child support payments and, at Cindy's request, paid the entire amount owed to the children's day care and school so they could continue attending. We conclude that substantial evidence supports the District Court's finding that the proposed relocation to Kansas was not in the children's best interest. The court did not misapprehend the effect of the evidence and we are not left with the firm conviction that a mistake was made. We hold, therefore, that the District Court did not abuse its discretion in granting Dan's motion to modify custody and appoint him primary custodian if Cindy moved to a permanent residence outside of Montana. Because of our holding, we need not address Cindy's argument relating to attorney fees. Affirmed. / (cu-@?x Chief Justice 10 May 23, 1995 rebv certifv that the folIowine: certified
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