NO. 89-587 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

IN RE THE MARRIAGE OF 

SALLA MARIE KEIL, 

f/k/a SALLA MARIE FERGUSON, 

Petitioner and Appellant, 

RICHARD A. FERGUSON, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Fifteenth Judicial District, 

In and for the County of Roosevelt, 

The Honorable M. James Sorte, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Robert G. Olson; Frisbee, Moore, Stufft & Olson, Cut 

Bank, Montana 

For Respondent: 

Laura Christofferson; Gallagher, Archambeault & 

Knierim, Wolf Point, Montana 

Submitted on Briefs: October 19, 1990 

N6V2 0 1998 Decided: November 20, 1990 
Justice John Conway ~arrison delivered the Opinion of the Court. 

Salla Marie Keil appeals from an August 22, 1989, order of the 

District Court of the Fifteenth Judicial District, County of 

Roosevelt, denying her motion to modify the joint custody of her 

three children with her former husband, Richard A. Ferguson. Keil 

also appeals the order of the District Court modifying the original 

dissolution decree with respect to child support payments. We 

affirm. 

The parties present the following issues: 

1. Did the District Court abuse its discretion by refusing 

to modify the joint custody arrangement of the dissolution decree? 

2. Did the District Court abuse its discretion by ordering 

the parties to pay child support "for each full month1' that the 

children are in the other parent's custody? 

The marriage of Salla Marie Keil and Richard A. Ferguson was 

dissolved on June 17, 1986. The parties were granted joint custody 

of their three children, now ages 14, 8, and 6. Ferguson was 

awarded physical custody of the three children. In January 1988, 

Ferguson requested that Keil take custody of the children while he 

attempted to resolve difficulties between him and his second wife, 

whose children were also living with the couple. The Ferguson 

children resided in Shelby, Montana, with Keil and her current 

husband from that time until the end of the school year. The 

children returned to live with Keil during the 1988-89 school year. 

Keil wanted the children to continue to live with her for the 

1989-90 school year and filed a petition to modify child support 

2 
and the joint custody arrangement to give her primary physical 

custody. Ferguson cross-petitioned for modification of child 

support provisions of the dissolution decree. After a hearing held 

August 2, 1989, the court ordered that the children remain with 

Ferguson pursuant to joint custody provisions of the dissolution 

decree. The court modified child support and required Keil to pay 

$171 per month "for each full month that the children are in the 

custody of the Respondent," as well as ordering Ferguson to pay 

$651 per month "for each full month that the children are in the 

custody of the Petitioner." 

From this order, Keil appeals. 

I 

Modification of primary custody without termination of ioint 

custody. 

Keil argues that the District Court erred in applying the 

criteria of 5 40-4-219 (I), MCA, which governs termination of joint 

custody where custody has been granted to one party. She asserts 

that the court's application of the factors of 5 40-4-219 (1) , MCA, 

in determining whether modification of custody can be allowed, 

rather than using the child's "best interesttt standard as required 

by 5 40-4-224, MCA, constitutes reversible error. 

We have previously addressed the standard for review of 

custody issues in Bier v. Sherrard (Mont. 1981), 623 P. 2d 550, 551, 

38 St.Rep. 158, 159: 

In order to prevail, [the appellant] must show 

an abuse of discretion by the judge, must 
demonstrate that there is a clear 

preponderance of evidence against the 

findings, and must overcome the presumption 

that the judgment of the trial court is 

correct. 

This Court will not substitute its judgment for that of the trier 

of fact concerning the "delicatett issue of child custody because 

the trial court is in the best position to observe witnesses and 

determine their credibility and character. In re the Marriage of 

Syljuberget (1988), 234 ~ont. 178, 183, 763 P.2d 323, 326. With 

this standard in mind, we review the findings of the court in this 

case. 

Keil is correct in her statement of which statutory provision 

applies to a change of primary physical custody without termination 

of joint custody. In resolving whether modification of custody 

will be allowed, the court need merely make a "best interest" 

determination pursuant to 5 40-4-224(2), MCA, rather than deciding 

whether the more stringent requirements of 5 40-4-219 are 

satisfied. In re Marriage of Stephenson (1988), 230 Mont. 439, 

445, 750 P.2d 1073, 1077. The section governing joint custody and 

modification of physical custody arrangements without terminating 

the decree of joint custody provides: 

[ J] oint custodytt means an order awarding 

custody of the minor child to both parents and 

providing that the physical custody and 

residency of the child shall be allotted 

between the parents in such a way as to assure 

the child frequent and continuing contact with 

both parents. The allotment of time between 

the parents must be as equal as possible; 

however: 

(a) each case shall be determined 

according to its own practicalities, with the 
best interest of the child as the primary 

consideration; and 

(b) when allotting time between the 

parents, the court shall consider the effect 

of the time allotment on the stability and 

continuity of the child's education. 

Section 40-4-224 (2), MCA (emphasis added). In determining the 

child's best interest, the court must consider "all relevant 

factorsw pursuant to 5 40-4-212, MCA, including: 

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

parents as to his custody; 

(b) the wishes of the child as to his 

custodian; 

(c) 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; 

(d) the child's adjustment to his 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 

(g) chemical dependency, as defined in 

53-24-103, or chemical abuse on the part of 

either parent. 

~xamination of the court's findings reveals that the court 

addressed each of the mandatory factors. 

Keil claims that the District Court did not take into account 

a ''potentially volatile and dangerous situationw existing in 

Fergusonls home, referring to the difficulties which prompted 

Ferguson to ask Keil to take the children in 1988. We have 
reviewed the record and find no support for this allegation. In 

fact, the record reflects quite the opposite; Ferguson appears to 

be a stable, responsible parent, interested in his children and 

their activities. Both parties testified that the other parent was 

an able parent. Keil agreed in her testimony that Ferguson was a 

good father who took good care of his children. The children 

appear to be well-integrated into the family and into the community 

of Wolf Point, Montana. On the other hand, Keil has recently moved 

to Thompson Falls, Montana, and the children would need to make 

adjustments to new schools and a different community. 

One of the goals of the custody provisions of the Uniform 

Marriage and Divorce Act as enacted in Montana, is to maximize 

finality to assure continuity and stability for the child. Keil 

did not overcome the presumption that the judgment of the trial 

court is correct. We find that the court did not abuse its 

discretion in refusing to modify primary physical custody of the 

children. 

Moreover, we find mo merit in Keil Is claim that the court's 

consideration of 5 40-4-219, MCA, rather than 5 40-4-224, MCA, 

constitutes reversible error. Keil cites no authority for this 

proposition. More importantly, although the District Court did not 

specifically refer to 5 40-4-224, MCA, in its findings, the court 

did comply with its provisions by making a determination of the 

children's best interest pursuant to 5 40-4-212, MCA. Erroneous 

findings of fact that are not necessary to support the judgment of 

the trial court are not grounds for reversal. Eaton v. Morse 
(1984), 212 Mont. 233, 244, 687 P.2d 1004, 1010. As long as the 

District Court correctly complied with the provisions of 5 40-4- 

224, MCA, its error in considering 5 40-4-219, MCA, is harmless. 

Modification of child support. 

Keil claims that the District Court erred in modifying child 

support by providing in its order that child support be paid !!for 

each full monthu that the children are in the custody of the other 

parent. The court's order provides: 

That Petitioner is hereby ordered to pay 

$57.00 per month per child to the Respondent 

as and for the support of the minor children 

of the parties for each full month that the 

children are in the custody of the Respondent. 

That Respondent is hereby ordered to pay 

$217.00 per month per child to the Petitioner 

as and for the support of the minor children 

of the parties for each full month that the 

children are in the custody of the Petitioner. 

(Emphasis added.) 

Keil argues that the "full restriction unworkable and 

unsupported by the Uniform Child Support Guidelines. She claims 

that under the order, the children could stay with one parent for 

29 days, but not receive child support because that would not 

constitute a full month. We have examined the Uniform Child 

Support ~uidelines and find that payments are determined llmonthlyll 

or Itper month. "' See Uniform Child Support Guidelines (1987) , 44 

'pursuant to 5 40-5-209, MCA, the Montana Department of Social 

and Rehabilitation Services has promulgated new Uniform Child 

Support Guidelines, effective July 13, 1990, to be published this 

fall at 5 46.30.1501 - .1549, ARM. See 1990 Montana Administrative 

Register 1337-1366 (Issue No. 13, July 12, 1990). 
St.Rep. 828; also see Desk Book published annually by the State Bar 

of Montana. No guidelines exist regarding pro rating payments when 

a child lives less than a full month with a parent. 

The literal interpretation of the court's order given by Keil 

is unnecessary. The District Court reviewed the Uniform Child 

Support Guidelines and used the Guidelines in its calculation of 

support payments. We find that the District Court intended that 

normal methods of collection of support according to the Guidelines 

be used. The District Court did not abuse its discretion. 

The District Court's judgment is affirmed. 

'chief Justice