NO. 95-243 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

IN RE A.R.A., a minor child. 

PATRICK ERGER, 

Petitioner and Respondent, 

v. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Robert W. Holmstrom, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Rodd A. Hamman (argued) and Robin A. Wolff, 

Calton Hamman & Wolff, Billings, Montana 

For Respondent: 

Damon L. Gannett (argued), Gannett, 

Anderson & Liechty, Billings, Montana 

For Amicus Curiae: 

Hon. Joseph P. Mazurek, Attorney General, 

Patricia A. Jordan, Assistant Attorney 

General (argued), Helena, Montana 

Filed: 

Submitted: April 30, 1996 

Decided: June 20, 1996 
Justice Charles E. Erdmann delivered the opinion of the Court. 

This is an appeal from a decision of the Thirteenth Judicial 

District Court, Yellowstone County, awarding custody of A.R.A. to 

Patrick J. Erger. We reverse and remand to the District Court for 

proceedings consistent with this opinion. 

We restate the issues as follows: 

1. Did the District Court err in awarding custody of the 

child to a stepparent over a natural parent based on the best 

interest of the child test? 

2. Did the District Court err in failing to set forth 

reasons for denial of attorney fees? 

FACTS 

Tracy Erger and William (Bill) Askren were married in 1983. 

A.R.A. was born to them in 1987. Tracy and Bill divorced in 1989 

when A.R.A. was nineteen months old. In the divorce decree, Tracy 

was awarded custody of A.R.A. and Bill was given reasonable rights 

of visitation. Bill was ordered to pay child support in the amount 

of $200 per month but became delinquent on those payments. Bill 

moved out of state and was not able to exercise his visitation 

rights to their full extent. He did, however, keep in touch by 

telephone and saw A.R.A. approximately once a year for extended 

periods. 

Bill remarried in 1989 to Colleen. They had a daughter in 

1990 and were expecting another child at the time of trial. 

Colleen's daughter from a previous marriage also lives with them. 
Colleen works as a secretary for the Salt Lake County Sheriff's 

Department and Bill, while not employed, attends a junior college 

and is studying to become a paralegal. 

Tracy married Patrick in 1990 and they had a son, Joshua, in 

February 1992. In September 1992, Patrick was transferred to 

Billings and Tracy, A.R.A., and Joshua moved shortly thereafter. 

Tracy was killed in an airplane crash on December 18, 1992. In her 

will, Tracy had named Patrick as A.R.A.'s guardian. 

Bill, as the surviving natural parent, came to Billings to 

pick up A.R.A. Patrick refused to relinquish physical custody of 

A.R.A. to Bill and petitioned the court for custody pursuant to 

§ 40-4-221, MCA. The District Court held a hearing on the matter 

and ordered that Patrick was the appropriate individual to have 

custody under the best interest of the child test even though he 

was not the natural father. From that order, Bill appeals. 

ISSUE 1 

Did the District Court err in awarding custody of the child to 

a stepparent over a natural parent based on the best interest of 

the child test? 

Patrick requested a custody hearing pursuant to § 40-4-221, 

MCA. That section provides: 

(1) Upon the death of a parent granted custody of 

a child, custody shall pass to the noncustodial parent 

unless one or more parties named in subsection (2) 

request a custody hearing. The noncustodial parent shall 

be a party in any proceeding brought under this section. 

(2) upon the death of a parent granted custody of 

a child, any of the following parties may request a 

custody hearing and seek custody of the child: 

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ibi . the . surviving spouse of the deceased custodial 

parent; 

Cc) a person nominated by the will of the deceased 

custodial parent; 

i3i 

. . 

The hearing and determination of custody shall 

be governed by this part. 

According to part 2 of Title 40, Chapter 4, Montana Code 

Annotated, a court shall determine custody pursuant to the best 

interest of the child. Section 40-4-212, MCA. The factors 

relevant to the child's best interest include the following: 

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

to custody; 

(b) the wishes of the child as to a custodian; 

(c) the interaction and interrelationship of the 

child with the child's parent or parents and siblings and 

with any other person who may significantly affect the 

child's best interest; 

Cd) the child's adjustment to home, school, and 

community; 

(e) the mental and physical health of all 

individuals involved; 

(f) physical abuse or threat of physical abuse by 

one parent against the other parent or the child; and 

(57) chemical dependency, as defined in 53-24-103, 

or chemical abuse on the part of either parent. 

i4j . The . following are rebuttable presumptions: 

(a) A knowing failure to pay birth-related costs 

that the person is able to pay is not in the best 

interest of the child. 

(b) Failure to pay child support that the person is 

able to pay is not in the best interest of a child in 

need of the child support. 

The District Court found that there was a close relationship 

between Patrick and A.R.A.; that A.R.A. was attached to her brother 

Joshua; that Patrick's parenting skills are superior to those 

possessed by Bill; that A.R.A. would be adversely affected by 

changing schools, therapists, and her primary residence; and that 

4 
it was in her best interest that she remain in Billings in the 

family unit to which she had grown accustomed. Based on these 

findings, the court determined that A.R.A.'s best interest 

warranted the award of her custody to Patrick. 

Bill contends that the court's use of the best interest of the 

child test in awarding custody to a stepparent abrogates his 

constitutional right to parent his child. Patrick concedes that 

Bill has a constitutional right to parent his child but argues that 

A.R.A.'s fundamental liberty interest and right to privacy in the 

association with her family is also constitutionally protected. 

Patrick maintains that the District Court properly balanced the 

rights of both Bill and A.R.A. in using the best interest of the 

child test as directed by § 40-4-221, MCA. 

The interpretation and application of a statute to a 

particular set of circumstances are matters of law. Denial of App. 

for Iss. of Beer/Wine Lit. (1994), 267 Mont. 298, 301, 883 P.Zd 

833, 835. We will therefore review the District Court's 

interpretation of § 40-4-221, MCA, for its correctness. See 

Babcock v. Wonnacott (1994), 268 Mont. 149, 151, 885 P.2d 522, 524. 

The District Court interpreted § 40-4-221, MCA, as giving the 

court the authority to award custody to a stepparent rather than a 

surviving natural parent using the best interest of the child test. 

A statute is to be construed according to the plain meaning of its 

language. Norfolk Holdings v. Dept. of Revenue (1991), 249 Mont. 

40, 43, 813 P.2d 460, 461. However, it is paramount that we give 

5 
such construction to the statute as will preserve the 

constitutional rights of the parties. LaFountaine v. State Farm 

Mut. Auto. Ins. (19851, 215 Mont. 402, 406-07, 698 P.2d 410, 413. 

We recognized the constitutional rights of a natural parent to 

parent his or her child in In re Doney (1977), 174 Mont. 282, 570 

P.2d 575 

This careful protection of parental rights is not 

merely a matter of legislative grace, but is 

constitutionally required. Stanley v. Illinois, 405 U.S. 645, 

92 s.ct. 1208, 31 L.Ed.2d 551 (1972). II* * * The 

integrity of the family unit has found protection in the 

Due Process Clause of the Fourteenth Amendment, Meyerv. 

Nebraska, supra [262 U.S. 3901, at 399, [43 S.Ct. 6251, 67 

L.Ed. [1042], at 1045, the Equal Protection Clause of the 

Fourteenth Amendment, Skinner 1z Oklahoma, supra [316 U.S. 

5351, at 541 162 S.Ct. 11101, 86 L.Ed. 116551, at 1660, 

and the Ninth Amendment, Griswoldv. Connecticut, 381 U.S. 479, 

496, 85 S.Ct. 1678, 14 L.Ed.2d 510, 522 (1965) (Goldberg, 

J., concurring) .'I Stanley, 405 U.S. at 651, 92 S.Ct. at 

1213, 31 L.Ed.2d at 559. 

Doney, 570 P.2d at 577. In a line of cases following Doney, we 

again stressed the constitutional protection of a natural parent's 

right to the custody of his or her child. Babcock, 885 P.2d at 

524; In re M.G.M. (1982), 201 Mont. 400, 406, 654 P.2d 994, 998; 

Pierce v. Pierce (1982), 198 Mont. 255, 260, 645 P.2d 1353, 1356; 

In re Aschenbrenner (1979), 182 Mont. 540, 544, 597 P.2d 1156, 

1160. This constitutional protection is based upon the integrity 

of the family unit which necessarily includes the child's right to 

be with his or her natural parent. Stanley v. Illinois (1972), 405 

U.S. 645, 652, 92 S. Ct. 1208, 1213, 31 L. Ed. 2d 551, 559. 

6 
Consequently, the state's ability to intrude upon the 

parent/child relationship must be guarded. Schultz v. Schultz 

(1979), 184 Mont. 245, 247, 602 P.2d 595, 596; Doney, 570 P.2d at 

577. For that reason, N [a] finding of abuse, neglect, or 

dependency is the jurisdictional prerequisite for any court-ordered 

transfer of custody from a natural parent to a third party." 

Babcock, 885 P.2d at 524. Therefore, where a surviving parent does 

not voluntarily relinquish custody, the best interest of the child 

test can be used only after a showing of dependency or abuse and 

neglect by the natural parent. M.G.M., 654 P.2d at 998; 

Aschenbrenner, 597 P.2d at 1162. 

Contrary to the above analysis, we have held that it was not 

error for a district court to apply the best interest of the child 

test rather than the dependency, abuse, and neglect test as set 

forth in Donev to determine custody between the natural father and 

the maternal grandmother. Brost v. Glasgow (1982), 200 Mont. 194, 

199, 651 P.2d 32, 34. In Brost -I we held that the 1979 Legislature, 

in § 40-4-221, MCA, changed the test to be used in determining 

custody when a custodial parent dies. Brost , 651 P.2d at 34. We 

again refused to require the stricter Donev standard in favor of 

the best interest of the child test in In re C.G. (1987), 228 Mont. 

118, 740 P.2d 1139. 

However, in Aschenbrenner and Henderson v. Henderson (1977), 

174 Mont. 1, 568 P.2d 177, we held that the Uniform Marriage and 

Divorce Act (Title 40, Chapters 1 and 4) does not diminish the 

7 
constitutionally protected rights of a natural parent to the 

custody of his or her child. Aschenbrenner, 597 P.2d at 1163; 

Henderson, 568 P.2d at 181-82. It follows that an amendment to the 

Uniform Marriage and Divorce Act, however limited, cannot infringe 

upon those same rights. Therefore, the use of the best interest of 

the child test, as referred to in 5 40-4-221, MCA, is improper in 

that any showing that a nonparent may be able to provide a better 

environment than can a natural parent is irrelevant to the question 

of custody between the two in view of the constitutional rights of 

a parent to custody. Babcock, 885 P.2d at 524; Aschenbrenner, 597 

P.2d at 1162. Accordingly, 5 40-4-221, MCA, is unconstitutional to 

the extent that it allows the granting of a § -221 petition prior 

to the termination of the natural parent's constitutional rights. 

We therefore overrule Brost and In re C.G. in their use of the best 

interest of the child test to award custody to a nonparent over a 

natural parent absent a finding of abuse and neglect or dependency. 

While we recognize that § 40-4-221, MCA, gives a nonparent 

standing to request a custody hearing, that section does not give 

the district court authority to deprive a natural parent of his or 

her constitutionally protected rights absent a finding of abuse and 

neglect or dependency. Accordingly, we hold that the District 

Court erred in awarding custody of A.R.A. to Patrick based on the 

best interest of the child test in view of the fact there were no 

allegations of abuse and neglect or dependency on the part of Bill. 

8 
We therefore reverse the District Court and award custody of A.R.A. 

to Bill, the natural father. 

ISSUE 2 

Did the District Court err in failing to set forth reasons for 

denial of attorney fees? 

The District Court denied attorney fees to Bill but did not 

set forth reasons for the denial. A district court may award 

attorney fees pursuant to § 40-4-110, MCA. In the past, we have 

held that a district court must indicate in the findings of fact, 

conclusions of law, or order why attorney fees were not awarded. 

In re Marriage of Gallinger (1986), 221 Mont. 463, 471, 719 P.2d 

777, 782 (citing Lewis v. Lewis (1982), 198 Mont. 51, 55, 643 P.2d 

604, 606). We said that a court's failure to set forth specific 

findings constituted remandable error. Gallinaer, 719 P.2d at 782. 

However, we later considered that rule much too harsh to be 

applied on a general basis, and we held that a more appropriate 

standard of review for a decision not to award attorney fees is 

abuse of discretion. Gallinqer, 719 P.2d at 783. In the present 

case, the record indicates that the District Court was informed of 

both parties' financial resources as required by § 40-4-110, MCA. 

Based on that information, the District Court determined that the 

parties would pay their own attorney fees. That information has 

not changed. Notwithstanding the fact that we are granting custody 

of A.R.A. to Bill, we determine the District Court did not abuse 
its discretion in directing the parties to pay their own attorney 

fees. 

Reversed in part and affirmed in part. 

We concur: 

10 

-. 
Justice James C. Nelson specially concurs. 

I concur in our opinion on both issues 1 and 2. I write 

separately because I believe that several points not addressed in 

our opinion deserve mention. 

First, it is only fair to point out that both Henderson v. 

Henderson (1977), 174 Mont. 1, 568 P.2d 177, and Matter of 

Guardianship of Doney (1977), 174 Mont. 282, 570 P.2d 575, were 

decided prior to the enactment of § 40-4-221, MCA, in 1979. 

Accordingly, the constitut-ional principles enunciated in those 

cases and relied upon here were neither considered nor addressed in 

the context of this statute. 

Second, Brost v. Glasgow (1982), 200 Mont. 194, 651 P.2d 32, 

and Matter of Paternity of C.G. (1987), 228 Mont. 118, 740 P.2d 

1139, were decided strictly on the basis of § 40-4-221, MCA. While 

in both cases we mentioned Donev, in neither Brost nor C.G. did we 

address the constitutionality of the best interest test mandated by 

this statute in light of our prior adoption of the principles 

enunciated in Stanley v. Illinois (1972), 405 U.S. 645, 92 S.Ct. 

1208, 31 L.Ed.2d 551. Having now done that, Brost and C.G. are 

correctly overruled. 

Third, notwithstanding that we have overruled Brost and C.G. 

we have not discussed nor attempted to deal with other cases, which 

remain good law, wherein we have permitted persons other than 

biological parents to seek or obtain custody of a child to the 

exclusion of a natural parent without prior termination of the 

natural parent's rights. I make no pretention that this list is 

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all-inclusive, but see, for example: In re Custody of R.R.K. 

(1993), 260 Mont. 191, 859 P.2d 998 (grandparents entitled to seek 

custody of child under 5 40-4-211, MCA; § 40-4-212 controls); In re 

Marriage of K.E.V. (1994); 267 Mont. 323, 883 P.2d 1246 (child 

awarded to non-biological father on the basis of equitable 

estoppel; neither natural mother's nor natural father's rights 

terminated); and Matter of Paternity of Adam (1995), 273 Mont. 351, 

903 P.2d 207 (non-biological father allowed to adopt the child over 

objection of natural father on basis of presumption of paternity 

under Montana's Uniform Parentage Act, Title 40, Chapter 6, MCA; 

best interest test controls). 

I mention these cases here only from the standpoint that in 

the instant case we properly have grounded our decision in the 

fundamental constitutional rights implicit in the biological 

parent/child relationship and have rejected a statutory scheme that 

permits the invasion of that relationship absent there first being 

proof or demonstration of the loss, forfeiture or termination of 

those rights. The cases referred to in the preceding paragraph 

were decided under different statutory schemes, and/or on different 

factual scenarios and without the constitutional question at issue 

here. Hence, while, arguably, it is not proper that we discuss or 

analyze these and similar decisions here, nevertheless, it begs the 

question whether such decisions remain viable in the face of other 

statutory schemes or legal theories that, like 5 40-4-221, MCA, 

permit custody to be awarded to a person other than a biological 

parent absent the rights pf the natural parent(s) being first 

12 
terminated or otherwise forfeited. Obviously, those skirmishes 

remain to be fought on future battlefields. Given our decision 

here, however, this may be an area of statutory law that should be 

addressed and clarified by the legislature 

Finally, it seems to me that the approach we have articulated 

in the instant case is as follows: 

1. Section 40-4-221, MCA, and, by implication, 

other statutes that allow persons other than biological 

parents to seek custody of a child to the exclusion of a 

natural parent, do no more than provide a basis for 

standing to file a custody petition, assuming that the 

petitioner meets the statutory criteria specified. 

2. In order for such a person to prevail on his or 

her petition, however, the petitioner must prove that: 

(a) the rights of the natural parent(s) have 

been lost via: 

(i) terminationforabuse, dependencyor 

neglect (Title 41, Chapter 3, MCA);l or 

(ii) death of both natural parents or the 

surviving natural parent (§ 40-4-221, MCA); or 

(iii) some other statutory basis or 

procedure on which parental rights have been forfeited, 

relinquished, abandoned or terminated or have otherwise 

ceased to exist; and 

(b) the best interest of the child will be 

served by granting the petition. 

If the petitioner does not prove or demonstrate one of the 

subparagraphs under 2(a) above, then the court will not reach 2(b) 

1 I note that our statutory and case law provide that 

petitions alleging abuse and neglect must be brought by the county 

attorney, the attorney general, or an attorney hired by Department 

of Health and Public Services with the consent of either of those 

two officials. Section 41-3-401(l), MCA; Pierce v. Pierce (19821, 

198 Mont. 255, 261, 645 P.2d 1353, 1357; Babcock v. Wonnacott 

(1994), 268 Mont. 149, 154, 885 P.2d 522, 525. 

13 
(best interest of the child). I~f 2 (a) i s proven or demonstrated, 

but Z(b) is not, then the petition will still be denied. In this 

Case, 2(a) has not been proven or demonstrated and, accordingly, 

Bill is entitled to custody of 

Justice Karla M. Gray joins in 

his daughter. 

the foregoing special concurrence. 

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