No. 89-307 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

IN RE THE MARRIAGE OF 

ROXY L. ANDERSON, 

Petitioner and Appellant, 

and 

ARVID W. ANDERSON, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Seventh Judicial District, 

In and for the County of Dawson, 

The Honorable H. R. Obert, Judge presiding. 

COTJNSEL OF RECORD: 

For Appellant: 

Kevin T. Sweeney; Sweeney & Healow, Billings, Montana 

For Respondent: 

Greg W. Hennessy; Bjella, Neff, Rathert, Wahl & Eiken, 

Willistown, North Dakota 

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Submitted on Briefs: Oct. 25, 1989 

Decided: December 20, 1989 

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Justice Fred J. Weber delivered the Opinion of the Court. 

This is an appeal from an order by the District Court, 

Seventh Judicial District, Dawson County, Montana, modifying 

a custody order. Roxy Anderson Denning appeals. We affirm. 

The issues presented for our review are: 

1. Does substantial credible evidence support the 

District Court's findings of fact in regard to modification 

of custody pursuant to 5 40-4-219(1), MCA? 

2. Does the petition for modification of custody meet 

the jurisdictional requirements of 5 40-4-220, MCA? 

Mr. Arvid W. Anderson (father) and Ms. Roxy L. Anderson 

Denning (mother) were married in 1968. They had three sons, 

Duane, Kory and Shane. Father and mother were divorced in 

1985. The divorce decree granted joint custody, with residential custody to mother. Mother and the children have 

since resided in Glendive, Montana, and mother is remarried 

to Mr. Michael Denning. Father moved to Williston, North 

Dakota, and married his present wife, Carol Anderson, in 

April 1988. 

Father exercised his visitation rights regularly after 

the divorce. In the summer of 1988 the two younger sons 

expressed a desire to live with father. At this time Duane 

was 18, and Kory and Shane were 13 and 11, respectively, 

When mother did not agree to this suggestion, father filed a 

petition for modification of custody, requesting that the two 

younger sons be allowed to live with him and his new wife in 

Williston, North Dakota. The older son was approaching his 

senior year in high school and elected to stay in Glendive, 

Montana, to finish his schooling. 

After a hearing, the District Court granted father's 

petition. Mother appeals. 
Does substantial credible evidence support the District 

Court's findings of fact in regard to modification of custody 

pursuant to 40-4-219 (1) , MCA? 

This Court's standard of review of a custody order is 

whether the district court' s findings of fact are supported 

by substantial credible evidence. In re Marriage of Morazan 

(Mont. 1989), 772 P.2d 872, 874, 46 St.Rep. 814, 817. District court findings of fact will be overturned only if 

clearly erroneous. Rule 52(a), M.R.Civ.P. 

Modification of a prior custody decree is governed by R 

40-4-219, MCA, which provides in pertinent part: 

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: 

(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: 

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

desires the modification; 

Pursuant to S 40-4-219(1), MCA, the court must find that a 

change has occurred in the circumstances of the child, that 

the modification is in the best interests of the child, and 

that the requirement of one of the subsections is satisfied. 

In the present case father contends that subsection (c) is 

satisfied in that the children's environment in mother's home 

seriously endangers the children's physical, mental, moral or 
emotional health and that the advantage of a change would 

outweigh any harm. Father also notes that his son, Kory, is 

now 14 and may choose his residential parent pursuant to 

subsection (d) . On December 21, 1988, the District Court held a hearinq 

on father's motion. The court heard testimony from all 

parties concerned, including father and his new wife, mother 

and her new husband, and the older son, Duane. The court 

interviewed the two younger sons, Kory and Shane, in chambers 

without any other parties present. 

In substance, the District Court found that the presence 

of the stepfather, Michael Denning , had created a "hostile, 

seige-like" environment in the home, partially because of Mr. 

Denning's alcohol consumption. When Mr. Denning consumes 

alcohol he becomes angry and yells at the boys. The boys 

spend increasing time in their rooms in order to avoid the 

stepfather. Mr. Denning has been verbally abusive, and 

threatened to take the older son out and hit him. He has 

mistreated the children's dog, both throwing and kickinq it. 

The court noted that Mr. Denning had previously been through 

alcohol treatment and had recently instigated two bar fights. 

On one occasion, when Mr. Anderson came to visit his sons, 

Mr. Denning slammed the door in his face. 

At the hearing the District Court also found it significant that Kory would be 14 years old on January 24, 1989, and 

would at that point be able to choose his residential parent, 

and that Shane expressed the desire to remain with his brother Kory. 

In its order modifying custody, the court concluded that 

the remarriage of the mother which had caused the boys to 

feel like strangers in their own home was a change in circumstances and that custody modification was in the boys1 best 

interests. It further concluded that the boys' present 
environment seriously endangered their mental, moral, emotional and perhaps their physical health. 

Mother contends that these findings are not supported by 

substantial credible evidence, and alternatively that they do 

not satisfy the "serious endangerment" standard as required 

by the statute. Our review of the record, however, reveals 

substantial credible evidence to support the District Court's 

findings. Testimony by all three children supported the 

court's findings on the home environment, the stepfather's 

drinking, and their apprehension of him. The children confirmed the abusive treatment of their dog. Kory and Shane 

stated their desire to live with their father and new 

stepmother. 

We further conclude that these circumstances satisfy the 

statutory requirements. The presence of the stepfather in 

the home and the consequent change in the home environment to 

one of strained relations and apprehension satisfies the 

requirement of changed circumstances. The modification of 

custody is in the best interests of the children since they 

both desire to live with their father, and feel very comfortable with their new stepmother. The children's fear of their 

stepfather, heightened by his drinking episodes, the hostile 

home environment, and the potential for physical abuse, is 

sufficient to meet the standard of serious endangerment. 

Marriage of Morazan, - (evidence of mother's unstable lifestyle, combined with allegations that stepbrothers had sexu-. 

ally abused M.M., was sufficient to meet custody modification 

standard); In re Marriage of Cole (Mont. 1988), 763 P.2d 39, 

45 St.Rep. 1965, (evidence that children feared their father 

and that living with him was an extremely unhappy experience, 

creating stressful home environment, was sufficient to modify 

custody); In re Marriage of Cook (1986), 223 Mont. 293, 725 

P.2d 562, (evidence of mother's attempt to stifle children's 
relationship with father and her interference with communication with father was sufficient to modify custody); In re 

Marriage of Stout (1985), 216 Mont. 342, 701 P.2d 729, (evidence of mother's lack of stability and fact that she had 

been arrested for driving under the influence with child in 

car, was sufficient to support trial court's order modifying 

custody); In re Custody of Dumont (1985), 216 Mont. 118, 700 

P.2d 167, (evidence that child was subjected to harsh, repeated, inappropriate and excessive physical discipline and 

exhibited signs of fear of stepfather was sufficient to meet 

standard) . In cases involving custody of children, it is particularly important that an appellate court defer to the district 

court, which is able to personally evaluate the testimony of 

the children and other witnesses. We do not attempt to judge 

the facts based on a cold record. In this case, involving 

present abuse, and the potential for future abuse by someone 

with an alcohol problem, we underscore the reliance that an 

appellate court places on the district court. In re Marriaqe 

of West (Mont. 1988), 758 P.2d 282, 285, 45 St.Rep. 1281, 

1283; Connolly v. Connolly (1981), 209 Mont. 198, 305-06, 680 

P.2d 568, 572; Malcolm v. Malcolm (1982), 196 Mont. 477, 478, 

640 P.2d 450, 451. We conclude that substantial credible 

evidence supports the District Court's findings, and that the 

statutory requirements for modification of custody were met. 

We affirm the order by the District Court. 

II 

Does the petition for modification of custody meet the 

jurisdictional requirements of § 40-4-220, MCA? 

Before the district court may grant a hearing on modification of custody, the party seeking modification must submit 

an affidavit pursuant to § 40-4-220(1), MCA, which provides: 
Affidavit practice. (1) A party seeking a 

temporary custody order or modification of a custody decree shall submit, together with his moving 

papers, an affidavit setting forth facts supporting 

the requested order or modification and shall give 

notice, together with a copy of his affidavit, to 

other parties to the proceeding, who may file 

opposing affidavits. The court shall deny the 

motion unless it finds that adequate cause for 

hearing the motion is established by the affidavits, in which case it shall set a date for hearing 

on an order to show cause why the requested order 

or modification should not he granted. 

In the present case, father provided the District Court 

with an affidavit stating that the boys had always expressed 

a desire to reside with him, but that this expressed desire 

"has now reached such a degree that the youngest boy has said 

he is willing to give up the friends he has in Glendive i.n 

order to move to Williston." He stated that the boys repeatedly express to him a lack of "feeling at home" in Glendive, 

possibly resulting from the strained relationship with the 

new stepfather. He stated the boys perceive their present 

homelife as "uncomfortable." He noted that they have cousins 

their age in North Dakota. Mother contends that this affidavit failed to establish adequate cause for a hearing, which 

is the preliminary jurisdictional requirement. 

There must be substantial compliance with the procedures 

set forth in 5 40-4-220 (I), MCA, in order to insure that all 

parties have notice and an opportunity to respond. 

Marriage of Stout, 701 P.2d at 732. In Marriage of Stout a 

verified petition averred that the mother had a severe drinking problem and had taken the minor children from the court's 

jurisdiction without notice to the father. This Court concluded that these averred facts, combined with allegations 

that the mother's living situation had. changed and it would 

be in the child.renls best interests to live with the father, 
were sufficient to confer jurisdiction upon the District 

Court. In the present case, we conclude that father's affidavit stated facts constituting adequate cause for a hearing 

and the District Court properly assumed jurisdiction. 

Affirmed. 

FJe Concur: A 

4. FT 

Chief Justice 

J11,ctice R. C. McDonaugh did not participate in this 

opinion.