No. 85-595 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

IN RE THE MARRIAGE OF 

JOHN C. BERGNER, 111, 

Petitioner and Respondent, 

and 

Respondent and Appellant. 

APPEAL FROM: District court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Joel G. Roth, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Harrison, Loendorf & Poston; John P. Poston, Helena, 

Montana 

For Respondent : 

Baiz & Olson; Kenneth Olson, Great Falls, Montana 

Submitted on Briefs: May 30, 1986 

Decided: July 18, 1986 

Filed: Ju1.. 1 fi 1986 

Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

Adela M. (Bergner) Owens appeals the order of the Eighth 

Judicial District Court which modifies a provision of a 

divorce decree awarding her and her ex-husband, John C. 

Bergner , 111, joint custody of their two daughters. We 

affirm the modification. 

Adela and John Bergner were married on August 11, 1972. 

Two daughters were born to the couple, Eva on July 26, 1973, 

and Katheryne Darcy (K.D.) on March 27, 1976. The couple 

separated in February of 1980. The decree of dissolution was 

entered on March 12, 1981, in the Superior Court of 

California, in and for the County of Los Angeles. The decree 

awarded the parties joint legal custody of the children. 

Adela was named as the physical custodian and John was 

granted reasonable visitation. 

The girls spent the summer of 1981 with their father. 

Thereafter, John, a member of the United States Air Force, 

was ordered to serve in Korea. One month prior to John's 

return to California, he received a letter from Adela asking 

if he would take temporary physical custody of the girls upon 

his return. 

They [the children] are really looking forward to 

seeing you again. Chris [Adela ' s present husband] 

has two part-time jobs. Things are tight. If by 

the end of this summer things are not any better we 

are going to ask you to keep them for a year and a 

half. That would be this summer, the school year 

of '83 - '84 and next summer. We already let the 

girls know and they are excited about it. We will 

know more about the situation by the end of this 

summer. 

John returned to California in May of 1983. The girls 

immediately came to live with him. John married his present 

wife, Cindy, that same month. Cindy also has a daughter. 
The two adults and three children currently live together as 

a family at Malmstrom Air Force Base in Montana. 

It is undisputed that Eva and K.D. are integrated into 

their father's family. They attend church and church 

functions together. They engage in numerous family-oriented 

outdoor and recreational activities. John and Cindy are very 

involved in school activities and take an active role in 

ensuring that each girl's special educational needs are met. 

Adela testified that the integration was something she had 

anticipated and for which she had hoped when she suggested 

that John take the girls for an extended period of time. 

Near the end of her allotted time with her father, Eva 

asked if she might continue to live with John the next school 

year. Adela initially consented to the request. However, 

one week later she changed her mind. John thereafter 

petitioned for modification of the custody arrangement, 

requesting that he be designated physical custodian. He 

subsequently amended his petition to request that he be 

awarded custody subject to the reasonable visitation rights 

of Adela. A hearing was held July 31, 1984, and a temporary 

order granting John custody was thereafter issued. Following 

a second hearing on April 12, 1985, the trial judge issued 

his final order granting John's petition for modification of 

custody and awarding John custody of his two daughters 

subject to Adela's right of reasonable visitation. 

Adela appeals, raising the following issues: 

1. Whether, pursuant to S 40-4-219, MCA, the District 

Court had jurisdiction to modify the joint custody provision 

of the divorce decree? 

2. Whether, in light of the evidence and the statutory 

prerequisites concerning the best interests of the children, 
the District Court erred in modifying the original joint 

custody provision? 

3. Whether a parent entitled to joint custody of a 

child has the right to change his residence subject to the 

best interest of the child? 

John and Adela were originally awarded joint custody of 

their children. Joint custody assures minor children 

frequent and continuing contact with their mother and their 

father. It further encourages the parents to share in the 

rewards, the privileges and the responsibilities of rearing 

their children. In re the Marriage of Paradis (Mont. 1984), 

689 P.2d 1263, 1264, 41 St.Rep. 2041, 2043. Section 

40-4-222, MCA. Although joint custody is, at least 

theoretically, the ideal situation, it does not always 

satisfy the best interest of every child. Our Legislature 

thus provided in S 40-4-224(3), MCA, for the termination of 

joint custody provided the terms of 5 40-4-219, MCA, are met. 

However, 5 40-4-219, MCA, may only be relied on to terminate 

a joint-custody arrangement. It may not be used to modify 

relationships within the joint-custody arrangement. See 

Paradis, 689 P.2d at 1264-1265, 41 St.Rep. at 2043. 

Section 40-4-219, MCA, states in pertinent part: 

40-4-219. Modification. (1) The court may in its 

discretion modify a prior custody decree if 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 and if it further finds that: 

(a) the custodian agrees to the modification; 

(b) the child has been integrated into the family 

of the petitioner with consent of the custodian; 

(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; or 

(d) the child is 14 years of age or older and 

desires the modification. 
Subsections (1) (a) through (1) (d) are jurisdictional 

prerequisites to modification. In re the Custody of 

Dallenger (1977), 173 Mont. 530, 534, 568 P.2d 169, 172. 

Once jurisdiction to modify is established using the 

integration criterion, the trial judge must determine whether 

a change has occurred in the children's and/or the 

custodian's circumstances and, if it has, whether that change 

has resulted in the children's best interests being served by 

a modification of custody. In re the Marriage of Hardy and 

Hans (Mont. 1984), 685 P.2d 372, 374, -41 St.Rep. 1566, 1568. 

Where joint custody is at issue, the children's best 

interests must be served by the termination of the joint 

custody arrangement. 

It is undisputed in this instance that Eva and K.D. have 

been integrated into John's home with Adela's permission and 

that this integration is the only jurisdictional prerequisite 

for modification which has been met. Unlike in In re the 

Marriage of Gahn and Henson, Slip Opinion #85-376, decided 

this same day, there is no allegation of serious 

endangerment to the children in this case. 

Obviously, if a joint custody arrangement has been at 

all successful, the children have been integrated into the 

homes of both their parents. This is the primary goal of 

joint custody. Thus, when integration is the sole 

jurisdictional prerequisite for termination of joint custody, 

the District Court must be exceedingly cautious in 

determining whether the circumstances of the children or 

their custodian have changed and in determining whether, 

because of that change, the best interests of the children 

would be served by the termination of joint custody. 

Otherwise, the joint-custodian with physical custody of the 

children will be reluctant to allow the integration of the 
children into the other joint-custodian's home for fear of 

having the joint custody arrangement terminated. 

Here the trial judge found that Eva and K.D. 's 

circumstances had changed and that their best interests would 

be served by granting John custody of them. Where the 

decision of the trial judge is supported by substantial 

evidence, and not an abuse of discretion, it will not be 

reversed by this Court. Weber v. Weber (1978), 176 Mont. 

144, 147, 576 P.2d 1102, 1104. 

The trial judge found that Adela gave John temporary 

extended custody of the girls because of her unstable 

financial situation. The letter Adela wrote to John supports 

this finding. Although it is commendable for a parent to 

temporarily forego her children's presence for the sake of a 

better life for them in the future, the parent must remain 

cognizant of the effect of the change of custody on the 

children. After all, the stability of a child's homelife is 

vital to his or her well-being. Gilbert v. Gilbert (1975), 

166 Mont. 312, 316, 533 P. 2d 1079, 1081. 

The change in physical custody caused a weighty change 

in Eva's and K.D.'s circumstances. They have lived with John 

and Cindy since May of 1983. They consider Cindy's daughter 

to be their younger sister. The family participates in 

innumerable activities together. The children appear to be 

the center of John and Cindy's lives. The children have 

become established in the Great Falls school system. They 

have numerous friends on which to rely as a support network. 

A large part of their life centers around the church attended 

by the family. 

In contrast, Adela did not see Eva and K.D. for the 

entire 15 months they were to be with their father. Letters 

and phone calls, while beneficial in their own right, do not 
equal the love and attachment developed through day to day 

contact. Thus we find substantial evidence to support the 

finding of the trial judge that Eva's and K.D. 's 

circumstances have changed. The focus of their lives is now 

their father and his family, not their mother. 

Section 40-4-212, MCA, lists the factors to be 

considered in determining the best interest of a child. 

40-4-212. Best interest of child. The court shall 

determine custody in accordance with the best 

interest of the child. The court shall consider 

all relevant factors including: 

(1) the wishes of the child's parent or parents as 

to his custody; 

(2) the wishes of the child as to his custodian; 

(3) the interaction and interrelationship of the 

child with his parent or parents, his siblings, and 

any other person who may significantly affect the 

child's best interest; 

(4) the child's adjustment to his home, school, 

and community; and 

(5) the mental and physical health of all 

individuals involved. 

The trial judge considered each of these factors. He 

twice interviewed each of the children in chambers. At her 

first interview, Eva expressed a preference to live with her 

father. K.D. stated only that she wanted to be with Eva. 

Neither girl expressed a preference at her second interview. 

Each parent wishes to have custody of the children. 

Numerous findings of fact center on the interaction and 

interrelationship of Eva and K.D. with their parents. Other 

findings reflect the testimony of school and church officials 

who believe the children to be happy, content and flourishing 

in their present environment. Finally, there is no question 

but that all concerned are in excellent physical and mental 

health. Neither Adela nor John have any qualms about the 

other's ability to raise the girls. 

This is a difficult case. Adela and John are both 

loving, competent parents. The children like and love both 

parents. The children would most likely be happy with either 
parent following a period of adjustment. However, the trialjudge, after viewing the parties concerned, interviewing the 

children and hearing testimony from numerous individuals, 

decided that the children's best interests would be served by 

granting John custody. There is substantial evidence to 

support his determination. 

This Court also recognizes the superior position of 

the trial judge in such matters and will not 

disturb the trial court's findings unless there is 

a mistake of law or a finding of fact not supported 

by credible evidence that would amount to a clear 

abuse of discretion. (Citations omitted.) 

Gilbert, 166 Mont. at 316, 533 P.2d at 1081. 

Finally, Adela raises the issue of whether a parent has 

the right to change residence subject to the best interest of 

the child. The answer is of course an unqualified "yes". 

Section 40-6-231, MCA. John was not awarded custody of the 

girls because Adela moved to Texas but because the girls' 

interests will best be served by allowing them to remain in 

the family, school and community they have enjoyed for 

several years. 

Affirmed. 

We Concur: 

Chief Justice