No. 12859 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1974 

PAMELA A. GILBERT, 

Plaintiff and Respondent, 

-vs - 

WILLIAM E. GILBERT, 

Defendant and Appellant. 

Appeal from: District Court of the Sixth Judicial District, 

Honorable Nat Allen, Judge presiding. 

Counsel of Record : 

For Appellant : 

Berger, Anderson, Sinclair & Murphy, Billings, 

Montana 

Arnold A. Berger argued, Billings, Montana 

Brown and Gilbert, Bozeman, Montana 

Gene I. Brown argued, Bozeman, Montana 

For Respondent : 

Huppert and Swindlehurst, Livingston, Montana 

Joseph T. Swindlehurst argued, Livingston, Montana 

Submitted: November 21, 1974 

Decided: TeB 13 1975 

Filed : kB A 8 L$,f!S 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is an appeal by defendant-father from a judgment 

dated August 7, 1974, of the district court, Park County, denving his petition for a legal change of custody from the mother. 

The parties were married approximately seven and one half 

years and at the time of the divorce on April 4, 1972, there was 

one issue of the marriage a daughter Whitney, age 3 years. The 

parties entered into a voluntary property settlement and custody 

agreement and this agreement was filed with the court and made 

a part of the judgment which was granted by default to plaintiffwife. Custody of the minor child was placed with the mother and 

provided liberal visitation to the father; with two months temporary custody to the father during the summer months of June, 

July and August each year, with the same liberal visitation 

privileges to the mother during the father's custody. In addition, 

there were provisions for custody on holidays. 

In the summer 1972, the child resided with the mother 

who was attending summer school in Bozeman. The mother allowed 

the father, who also lived in Bozeman, frequent visitation. 

In the fall 1972, the mother moved to Gardiner, Montana 

to take a teaching position. During the football season whenever 

the Bobcats had a home game, the mother brought the child to 

Bozeman and allowed her to stay with the father for the weekend. 

During that school year, the father traveled to Gardiner two or 

three times t o v i s i t the child. 

In the summer 1973, the child resided with the father 

for approximately two months as provided in the divorce decree. 

She then accompanied her mother to Iowa for two or three weeks 

to visit her maternal grandparents. 

During this time both parents had become concerned about 

the child. She had become quite shy around people and seemed to be 
having emotional troubles which were not improving, but rather 

seemed to be getting out of hand. After consulting with professional people and the University School officials, both parents 

agreed in September 1973, that the child should stay with the 

father in Bozeman and attend the child development center sponsored by Montana State University. This program is basically a 

nursery school designed to teach young children to relate with 

other children. The child was enrolled in the school and did 

very well. 

At the end of fall quarter, the mother wanted the child 

back but allowed her to continue in the school after talking to 

her teacher who encouraged the mother to keep the child in the 

school. The mother again attempted to get the child back at 

the end of winter quarter, but gave up after being threatened 

with legal action by the father. In May 1974, the father petitioned for the custody of his daughter, Whitney. The court refused to award him custody. At the end of the school term, the 

mother was served with a restraining order issued to prevent her 

from gaining custody until the instant appeal was completed. 

The mother remarried on June 15, 1974. Her husband is a 

Facilities Planning Engineer with Mountain Bell Telephone Company, permanently assigned to Cheyenne, Wyoming. The couple has 

purchased a two bedroom home. The new husband's earnings are 

$14,500 per annum. He has three children by a previous marriage 

and pays $225 per month child support. 

On appeal, the father challenges the constitutionality of 

section 91-4515(2), R.C.M. 1947, which provides in essence that a 

child of tender years, everything else being equal between the 

two parents, should be awarded to the mother. He also attacks 

section 21-137, R.C.M. 1947, as unconstitutional. That section 

provides the wife may be awarded attorney fees from the husband. 
There is no like provision for the husband. The father contends 

that both statutes discriminate on the basis of sex in violation 

of Article 11, Sec. 4, 1972 Montana Constitution and the Fifth 

and Fourteenth Amendments to the United States Constitution. 

The constitutional questions presented for review were 

not raised in the trial court and were not certified to this Court 

as is required by Rule 38, M.R.App.Civ.P., therefore there was no 

notice to the attorney general. The attorney general must be 

given an opportunity under Rule 38 to appear in defense of legislative acts which are challenged on constitutional grounds. 

The father's final issue is "Did the trial judge abuse 

his discretion in failing to modify the decree of divorce to award 

custody of the minor child of the parties to defendant husband?" 

The father argues there has been a significant change of 

circumstances since the original divorce decree which warrants the 

change of custody of Whitney from the mother to the father. However, the district court in its findings of fact No. IX stated: 

"That there has been no material chanse d of circumstances warranting a modification of the 

decree. I' 

In its conclusion of law I, the court stated: 

"That no material change of circumstances exists 

that warrant a modification of the original 

decree, and that it is for the best interests 

of the minor child that she remain in the custody 

of her mother, subject to the visitation and 

summer custody on the part of her father, as 

provided in the original decree." 

This Court has consistently held that in custody cases 

the underlying principle, paramount to all others, is the welfare 

and best interests of the child and no change in the child's custody will be allowed except where adequate cause therefor arises 

out of a changed condition. That changed circumstances or conditions are based on the principle that stability of home life of 

children is a vital factor to their well being and the turmoil of 
litigation must be minimized and somewhere brought to an end. 

This Court also recognizes the superior position of the trial 

judge in such matters and will not disturb the trial court's 

findings unless there is a mistake of law or a finding of fact 

not supported by credible evidence that would amount to a clear 

abuse of discretion. Bayers v. Bayers, 129 Mont. 1, 281 P.2d 

506; In the Matter of the Adoption of Dwayne Biery, a Minor Child, 

- Mont . - , 522 P.2d 1377, 1378, 31 St.Rep. 458. 

It is uncontradicted in the record that after the first 

year under the original custody agreement the child became emotionally ill. The parties recognized this change of condition 

and physical custody was given to the father at that time to serve 

the best interest of this child. Disregarding the stated intentions of the parties at that time and only considering the natural 

consequences of their acts, we view the situation solely from the 

point of view of the best interests of this child. 

physical custody of this child in its present environment 

is a fact and has been for a long period of time, when viewed in 

the light of the formative years of a four year old child at the 

time she came into the present environment after an unsuccessful 

one year from age three to four years in the first agreed custody 

arrangement. This child will be six years old on March 16, 1975. 

There are no allegations of unfitness or the like before 

this Court. The change of custody is agreed to have been successful in so far as the emotional health of the child was concerned. 

There is no conflict on this point. There is testimony in the 

record from seven people, other than the parties, who appear to 

have been friends of both of the parties and have observed the 

present environment. They all agree to the high quality of the 

present custody environment and the healthy emotional effect it has 

had on the child. 

The return of physical custody to the mother is based 
primarily on the maternal desire and love for the child which 

is no doubt genuine and sincere. The mother has remarried to a 

man who has a responsible position out of the state of Montana 

and is paying support for his own children by a prior marriage. 

The step-father did not appear in court, so that any evaluation 

could be made by the trial court concerning the understanding 

and willingness or qualifications he might have to assume the 

responsibilities that would attend the moving of this child who 

has formed strong emotional ties with her own father. 

As this Court said in Biery: 

"Directing our attention to the first issue, 

we note that this Court has consistently looked 

to the best interests of the child in determining 

custody. [Citing cases] In awarding the custody 

of a minor, section 91-4515(1) specifically provides that the court is to be guided: 

"'By what appears to be for the best interests of 

the child in respect to its temporal and its mental 

and moral welfare * * *' 

"The parent's right to the custody of her minor 

child is not an absolute one, even though it be 

conceded that she is a fit and proper person. In 

all such cases the crucial factor is the child's 

welfare,.both material and psychological, considering in particular the ties of affection the child 

has formed and the consequences of breaking those 

ties. * * *" 

The agreed facts in this case demonstrate several interrelated changes of condition that would warrant consideration by 

the court, inasmuch as they bear directly on the welfare of this 

child, and the trial court'is holding that none exist was error. 

In view of the history of this child and the emotional 

problems that have so recently just begun to disappear in the 

present environment, we feel that to uproot her again and place 

her in a strange home in another city, with a step-father who is 

unknown to the child or to the court, as it relates to his role 

as a father, could have an extremely detrimental effect on the 

child. The record before this Court will not justify the uprooting 
of the child from the security she now feels and place her in 

an environment of which this Court is unsure. 

The judgment of the district court is reversed and the 

cause remanded to the district court to place legal custody in 

the father and provide the mother with visitation rights equivalent 

to those enjoyed by the father in the o 1 decree of divorce. 

Justice ., 

We concur: 

Chief Justice 

Justices