No. 13784 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

LINDA SUE (SAGER) SCHIELE, 

Petitioner and Appellant, 

-vsROBERT L. SAGER, 

Respondent and Respondent. 

Appeal from: District Court of the Fourth Judicial 

District, 

Honorable Jack L. Green, Judge presiding. 

Counsel of record: 

For Appellant: 

Christian, McCurdy, Ingraham and Wold, Polson, 

Montana 

Donald K. Peterson argued, Polson, Montana 

For Respondent: 

Tipp and Hoven, Missoula, Montana 

Douglas G. Skjelset argued, Missoula, Montana 

Submitted: September 12, 1977 

Decided : 

mv 9 :: .. Filed: -- .- 
Mr. Justice Gene B. Daly delivered the Opinion of the Court: 

Petitioner appeals from the final judgment of the District 

Court, Lake County, granting respondent's petition for modification of the parties' decree of divorce and awarding respondent 

the care, custody and control of the parties' two minor children. 

Petitioner and respondent were married at Kalispell, 

Montana, on June 27, 1968. Their marriage was dissolved by 

decree of divorce dated March 28, 1973, in the District Court, 

Lake County. Pursuant to stipulation of the parties the general 

care, custody and control of the parties' minor children, 

Richard Lee Sager, age 8 and Sherrie Sue Sager, age 5, was awarded 

to their mother, the petitioner. Respondent was granted visitation rights and was ordered to provide support for the minor 

children in the sum of $50 per month per child. Respondent has 

remained current in his payment of child support. Both parties 

have remarried. Petitioner resides in Pablo, Montana, while 

respondent resides in Republic, Washington. 

On July 12, 1976, petitioner filed a petition in the District 

Court, Lake County, seeking an order of the District Court finding 

respondent in contempt of the divorce decree's visitation provisions and an award of $500 punitive damages. Respondent subsequently filed a petition on August 16, 1976, seeking modification of the divorce decree and an award of the permanent care, 

custody and control of the minor children. Petitioner similarly 

filed a petition for modification of the divorce decree on August 

18, 1976, seeking a change in respondent's visitation rights 

and an increase in the amount of respondent's contribution to 

the support and maintenance of the minor children. 
The causes were consolidated and heard by the District Court 

on September 22 and 24, 1976. On December 8, 1976, the court 

issued its findings of fact, conclusions of law and judgment, 

holding that due to the domestic conflict associated with petitioner's remarriage, the best interests of the minor children 

dictated that the divorce decree of March 28, 1973, be modified 

to award respondent the care, custody and control of the minor 

children. Petitioner was awarded visitation rights, no child 

support was awarded to either party, and each party was to 

assume his own attorney fees and costs in the action. 

Petitioner filed post-trial motions to amend the findings 

of fact and conclusions of law; to alter or amend the judgment; 

and an alternative motion for new trial. In its amended judgment 

of January 17, 1977, the District Court denied petitioner's 

motions; affirmed its holding in the previous judgment; provided for the District Court's continuing jurisdiction in the 

matter; and, established a date and procedure for the transfer 

of the custody of the minor children. 

On February 15, 1977, petitioner filed notice of appeal in 

the District Court. The court stayed execution of its judgment 

pending petitioner' s appeal to this Court. 

Petitioner presents four issues for review: 

1. Whether the District Court abused its discretion by 

failing to make findings of fact and conclusions of law in compliance with sections 48-332 and 48-339, R.C.M. 1947? 

2. Whether the District Court erred when it failed to 

cause a record to be made of the in-chambers interview of the 

minor children pursuant to section 48-334(1), R.C.M. 1947? 
3. Whether the District Court abused its discretion when 

it denied petitioner's request for the appointment of professional 

personnel pursuant to section 48-335, R.C.M. 1947? 

4. Whether the District Court abused its discretion. in 

accepting unfounded reputation testimony and making a finding 

of reputation on the basis of that testimony? 

Petitioner's first issue considers areas of the Uniform 

Marriage and Divorce Act, heretofore often before this Court. 

See: Gianotti v. McCracken, Mont. , 569 P.2d 929, 34 St. 

Rep. 1087; In re Custody of Dallenger, - Mont . , 568 P. 2d 

169, 34 St.Rep. 938; Lee v. Gebhardt, Mont . , 567 P.2d 

466, 34 St.Rep. 810; Ronchetto v. Ronchetto, Mont . 7 

567 P.2d 456, 34 St.Rep. 797; Groves v. Groves, Mont. , 

567 P.2d 459, 34 St.Rep. 790; Holm v. Holm, - Mon t . -9 

560 P.2d 905, 34 St.Rep. 118. These cases announce the law 

in Montana governing a petition for change of child custody 

and modification of a divorce decree. 

Section 48-339 establishes the "best interest of the child1' 

test, stated in section 48-332 as the primary consideration 

controlling any proposed modification of child custody. However, the criteria of the best in-terest test is not put into 

effect until the petitioning party seeking modification has 

satisfied the jurisdictional prerequisites announced in section 

"Modification. (1) No motion to modify a custody 

decree may be made earlier than two (2) years after its 

date, unless the court permits it to be made on the 

basis of affidavits that there is reason to believe the 

child's present environment may endanger seriously his 

physical, mental, moral, or emotional health. 

"(2) 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: 

"(a) the custodian agrees to the modification; 

"(b) the child has been integrated into the family 

of the petitioner with consent of the custodian; or 

I' (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. 

"(3) Attorney fees and costs shall be assessed 

against a party seeking modification if the court 

finds that the modification action is vexatious and 

constitutes harassment." (Emphasis added.) 

Although the District Court's findings of fact and conclustions of law in the instant case recognize the domestic conflict 

between petitioner and her present husband, the District Court 

fails to make a specific finding there has been a change in 

circumstances in the children's environment since the prior 

divorce decree which seriously endangers the children's physical, 

that 

physical, mental, moral or emotional health and/the harm likely 

to be caused by a change of environment is outweighed by its 

advantages to the children. The District Court bases its judgment on the best interest of the children and fails to consider 

the provisions of section 48-339,enacted to preserve the basic 

policy of custodial continuity. Such modification of a divorce 

decree's provisions for the custody of children disregards the 

provisions of the Uniform Marriage and Divorce Act. 

The second issue raised by petitioner concerns the District 

Court's failure to cause a record to be made of its in-chambers 

interview with the minor children. Section 48-334(1), R.C.M. 

1947, provides: 
"Interviews (1) The court may interview the child in 

chambers to ascertain the child's wishes as to his 

custodian and as to visitation. The court may permit 

counsel to be present at the interview. The court 

shall cause a record of the interview to be made and 

to be part of the record in the case." (Emphasis added.) 

The language of section 48-334(1) provides for' the District 

Court's exercise of discretion in determining whether an inchambers interview ~5th children is necessary and whether counsel 

may be present. However, once the District Court determines 

the in-chambers interview is necessary, section 48-334(1) 

mandates that a record of the interview be made and that such 

record be part of the case record. The mandate of the statute 

was not complied with in the instant case and the court erred in 

failing to cause a record of the interview to be made. Ronchetto 

v, Ronchetto, supra. 

Petitioner's third issue challenges the District Court's 

failure to seek the advice of professional personnel in making 

its decision to modify the divorce decree and award custody of 

the children to respondent, Section 48-334(2) provides : 

"(2) The court may seek the advice of professional 

personnel, whether or not employed by the court on a 

regular basis. The advice given shall be in writing 

and made available by the court to W-1 upon request . Counsel may examine as a witness any professional 

personnel consulted by the court. (Emphasis added.) 

Section 48-335, provides : 

"Investigations and reports. (1) In contested custody 

proceedings, and in other custody proceedings if a 

parent or the child's custodian so requests, the court 

may order an investigation and report concerning custodial 

arrangements for the child, The investigation and report 

may be made by the county welfare department." 
The language of the statutes dictates an exercise of the 

District Court's discretion in determining whether the findings 

and/or advice of professional personnel is necessary to a resolution of the pending action. This Court has long held the 

District Court's exercise of discretion ought not be disturbed 

except upon a clear showing of abuse of discretion. In the 

Matter of Fish, Mont . , 569 P.2d 924, 34 St.Rep. 1080; 

Lee v. Gebhardt, supra. Petitioner has failed to demonstrate 

such an abuse of discretion and we fail to find the District 

Court abused its discretion when it determined the aid of professional personnel was not necessary to the resolution of the 

instant case. 

Petitioner's final issue attacks the District Court's 

exercise of discretion in admitting into evidence reputation 

testimony concerning petitioner's present husband and its 

reliance upon such testimony in finding he possessed a bad 

reputation in the community for peacefulness. Petitioner contends the District Court erred in admitting such reputation 

evidence and as a result petitioner incurred substantial prejudice. 

Section 48-332 sets forth the relevant factors to be congidered 

"U 

in determining child custody: 

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; 

I' (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. " (Emphasis added. ) 

The counterpart to section 48-332 is section 402 &f the 

Uniform Marriage and Divorce Act as approved by the National 

Conference of Commissioners on Uniform State Laws. The language 

of the two sections is the same except for the last sentence 

of section 402 which was not adopted by Montana: 

"* * * The court shall not consider conduct of a 

proposed custodian that does not effect his relationship to the child." 

Although Montana chose not to adopt this particular language, 

case authority has established a precedent moving away from the 

policy of admitting evidence of misconduct which did not effect 

the relationship of a custodian with the child. Solie v. Solie, 

Mont . -s 561 P.2d 443, 34 St.Rep. 142; Foss v. Leifer, 

- Mont . , 550 P.2d 1309, 33 St.Rep. 528; 37 Montana Law 

Review 119. In the instant case, the admission of reputation 

evidence concerned petitioner's present husband's violent conduct in the home and would be relevant as affecting his relationship 

with the child. 

The ultimate concern of this Court is the welfare of the 

minor children. The record in the instant case reveals disabilities of both parents seeking permanent custody of the children. 

Petitioner resides in an atmosphere of domestic conflict while 

respondent labors under financial indebtedness. Therefore, to 

protect the interests of the minor children upon rehearing of 

this matter, we instruct the District Court to appoint independent 

counsel for the minor children pursuant to section 48-324, R.C.M. 

1947. In the Matter of the Guardianship of Gullette, supra; In 

the Matter of Fish, supra. 

- 8 - 
The judgment of the District Court is vacated. The cause 

is remanded for a new hearing to determine permanent custody 

of the children, consistent with this opini 

We Concur: 

- 

Chief Justice 

Mr. Justice Daniel J. Shea deeming himself disqualified 

took no part in this Opinion.