No. 13784 INTHE SUPREME COURT OF THE STATE OF MONTANA 1977

LINDA SUE (SAGER) SCHIELE, Petitioner and Appellant,

-vsROBERT L. SAGER, Respondent and Respondent.

Appeal from: DistrictCourt 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. JusticeGene B. Daly delivered the Opinion of the Court:

Petitioner appeals from the finaljudgment 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 atKalispell, Montana, on June 27, 1968. Theirmarriage was dissolved by decree of divorce datedMarch 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 toprovide support for the minor children inthe sum of $50 per month per child. Respondent has remained current inhis payment of child support. Both parties have remarried. Petitioner resides inPablo, Montana, while respondent resides inRepublic, 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 fileda 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 inrespondent's visitation rights and an increase inthe 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 toaward respondent the care, custody and control of the minor children. Petitionerwas awarded visitation rights, no child support was awarded toeither party, and each party was to

assume his own attorney fees and costs in the action. Petitioner filedpost-trial motions toamend the findings of fact and conclusions of law; to alteror amend thejudgment; and an alternativemotion fornew trial. In its amended judgment of January 17, 1977, the District Court denied petitioner's motions; affirmed itsholding inthe previousjudgment; provided for the District Court's continuingjurisdiction inthe matter; and, established a date and procedure for the transfer of the custody of the minor children. On February 15, 1977, petitioner filednotice of appeal in the District Court. The court stayed execution of itsjudgment pending petitioner's appeal to this Court. Petitioner presents four issues for review: 1. Whether the District Court abused itsdiscretionby failing to make findings of fact and conclusions of law incompliance with sections 48-332 and 48-339, R.C.M. 1947? 2. Whether the District Court erredwhen it failed to

cause a record tobe 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 personnelpursuant 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 reputationon the basis of that testimony? Petitioner's first issue considers areas of the Uniform Marriage and DivorceAct, heretofore oftenbefore this Court. See: Gianottiv. McCracken, Mont. 

### ,569 P.2d 929, 34 St. Rep. 1087; In re Custody of Dallenger,

# - Mont

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

# . , 567 P.2d Mont

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

## , 567 P.2d 456, 34 St.Rep. 797; Groves v. Groves, 567 P.2d 459, 34 St.Rep. 790; Holm

### v. Holm,

# - Mont

# . -9 560 P.2d 905, 34 St.Rep. 118. These cases announce the law inMontana governing a petition for change of child custody and modification of a divorce decree. Section 48-339establishes 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 seekingmodificationhas satisfied the jurisdictionalprerequisites 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 seriouslyhis physical,mental,moral, or emotionalhealth. "(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 unknownto the court at the time of entry of the prior

-- - decree; that a changehas occurred in the circumstances of the child or his custodian,and that the modification is necessary to serve the best interest of the child. Inapplying these standards the court shall retain the custodianappointed pursuant to the prior decree unless: "(a) the custodianagrees 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 seriouslyhis 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 shallbe assessed against a party seeking modification if the court finds that the modification action is vexatious and constitutesharassment." (Emphasis added.) Although the District Court's findings of fact and conclustions of law in the instant case recognize the domestic conflict betweenpetitioner 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/theharm likely to be caused by a change of environment is outweighedby its advantages to the children. TheDistrict Court bases its judgment on the best interest of the childrenand 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 DivorceAct. The second issue raisedby 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 courtmay 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 indetermining whether an inchambers interview~5th children is necessary andwhether 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 interviewbe made and that such recordbe part of the case record. Themandate of the statute

was not compliedwith 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 adviceof professional personnel inmaking 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 regularbasis. The advice given shall be inwriting and made availableby the court toW-1 upon request

# . Counsel may examine as a witness any professional personnel consultedby the court. (Emphasisadded.) 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 investigationand report concerning custodial arrangements for the child, The investigationand report may be made by the countywelfare department."The language of the statutes dictates an exercise of the District Court's discretion in determiningwhether the findings and/or advice of professionalpersonnel 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, 34St.Rep. 1080; Leev. Gebhardt, supra. Petitionerhas failed to demonstrate such an abuse of discretion andwe fail to find the District Court abused its discretionwhen it determined the aid of professionalpersonnel 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 findinghe possessed a bad reputation in the community for peacefulness. Petitioner contends the District Court erred in admitting such reputation evidence and as a resultpetitioner incurred substantialprejudice. Section 48-332sets forth the relevant factors to be congidered in determining child custody: 

## "U 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) thewishes of the child as to his custodian;

I' (3) the interaction and interrelationship of the

childwith his parent or parents,his siblings,and any other personwho may significantlyaffect 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 402whichwas not adoptedby Montana: 

## "*

## *

# * The court shallnot consider conduct of a proposed custodian that does not effect his relationship to the child." AlthoughMontana 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. Soliev. 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 affectinghis 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 conflictwhile respondent labors under financial indebtedness. Therefore, to protect the interests of the minor childrenupon rehearing of this matter,we instruct the District Court to appoint independent counsel for the minor childrenpursuant to section 48-324,R.C.M. 1947. In the Matter of the Guardianship of Gullette, supra; In theMatter of Fish, supra.

# - 8

# -The judgment of the District Court isvacated. The cause isremanded 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.