No. 12859 INTHE 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 SixthJudicialDistrict, 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

## 131975 Filed: 

# kBA

## 8 L$,f!SMr. 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 districtcourt, 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 atthe 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 thejudgment which was granted by default toplaintiffwife. Custody of theminor child was placed with the mother and provided liberal visitation tothe father; with two months temporary custody tothe father during the summer months of June, July and August each year, with the same liberal visitation privileges tothe mother during the father's custody. In addition, there were provisions for custody on holidays. In the summer 1972, the child resided with themother who was attending summer school inBozeman. The mother allowed the father, who also lived inBozeman, frequent visitation. In the fall 1972, themother moved toGardiner, Montana totake a teaching position. During the football seasonwhenever the Bobcats had a home game, themother brought the child to Bozeman and allowed her to staywith the father for theweekend. During that school year, the father traveled toGardiner 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 asprovided inthedivorce decree. She then accompanied her mother toIowa for two or threeweeks tovisit her maternal grandparents. During this 

### timeboth parents had become concerned about the child. She had become quite shy around people and seemed tobehaving emotional troubles which were not improving, but rather seemed tobe getting out of hand. After consulting with professional people and the University School officials, both parents agreed in September 1973, that the child should staywith the father in Bozeman and attend the child development center sponsored by Montana StateUniversity. This program isbasically a nursery school designed toteach young children torelate with other children. The child was enrolled inthe school and did very well. Atthe end of fallquarter, the mother wanted the child back but allowed her tocontinue in the school after talking to her teacher who encouraged the mother tokeep the child in the school. The mother again attempted toget the child back at the end of winter quarter, but gave up after being threatened with legal action by the father. InMay 1974, the father petitioned for the custody of hisdaughter, Whitney. The court refused toaward him custody. Atthe end of the school 

### term, the mother was served with a restraining order issued toprevent 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 BellTelephone Company, permanently assigned toCheyenne, 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 constitutionalityof 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 tothe mother. He also attacks section 21-137, R.C.M. 1947, asunconstitutional. That section provides the wife may be awarded attorney fees from the husband.There 

### isno likeprovision for the husband. The father contends that both statutesdiscriminate on the basis of sex inviolation of Article 11, Sec. 4, 1972Montana Constitution and the Fifth and Fourteenth Amendments to the United StatesConstitution. The constitutional questions presented forreview 

### were not raised inthe trialcourt and were not certified tothis Court

as is required by Rule 38, M.R.App.Civ.P., therefore there was no notice tothe attorney general. The attorney general must be given an opportunity under Rule 38 toappear indefense of legislative actswhich are challenged on constitutional grounds. The father's final issue is "Did the trialjudge abuse his discretion in failing tomodify the decree of divorce toaward custody of the minor child of the parties todefendant husband?" The father argues there has been a significantchange of circumstances since the original divorce decreewhich warrants the change of custody of Whitney from the mother tothe father. However, the district court inits findings of factNo. IX stated: "That there has been no material chanse of 

### cird cumstances 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 inthe original decree." This Court has consistently held that incustody cases the underlying principle, paramount to allothers, 

### is the welfare and best interests of the child and no change inthe child's custody 

### willbe allowed except where adequate cause therefor arises out of a changed condition. That changed circumstances or conditions arebased on the principle that stabilityof home lifeof children 

### is a vital factor totheir well being and the turmoil oflitigation must be minimized and somewhere brought to an end. This Court alsorecognizes the superior position of the trial judge in such matters and 

### willnot disturb the trialcourt's findings unless there is a mistake of 

### lawor a finding of fact not supported by credible evidence that would amount toa clear abuse of discretion. Bayers v. Bayers, 129 Mont. 1, 281 P.2d 506; In the Matter of theAdoption of Dwayne Biery, a Minor Child, Mont

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

### is uncontradicted inthe 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 atthat time toserve the best interest of this child. Disregarding the stated intentions of the parties atthat 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 atthe time she came into the present environment after an unsuccessful

one year from age three tofour years in the firstagreed custody arrangement. This child 

### willbe sixyears old on March 16, 1975. There areno allegations of unfitness or the likebefore this Court. The change of custody 

### is agreed tohave been successful in so far as the emotional health of the child was concerned. There isno 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 allagree 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 tothe mother 

### is basedprimarily on thematernal desire and love for the child which is no doubt genuine and sincere. The mother has remarried toa

man who has a responsible position out of the stateof Montana and 

### is paying support for his own children by a prior marriage. The step-father did not appear incourt, so that any evaluation could be made by the trial court concerning the understanding and willingness or qualifications he might have toassume the responsibilities that would attend the moving of thischild who has formed strong emotional 

### ties with her own father. AsthisCourt said in Biery: "Directing our attention to the firstissue, 

### we note that this Court has consistently looked tothe best interests of the child indetermining custody. [Citing cases] In awarding the custody of a minor, section 91-4515(1) specifically provides that the court istobe guided: "'By what appears tobe for the best interests of the child inrespect to its temporal and 

### itsmental and moral welfare

## * * *' "The parent's right tothe custody of her minor child is not an absolute one, even though it be conceded that she is a fitand proper person. In 

### all such cases the crucial factor 

### is the child's welfare,.bothmaterial and psychological, considering inparticular the ties of affection the child has formed and the consequences of breaking those ties. 

## * * *" The agreed facts inthis case demonstrate several interrelated changes of condition that would warrant consideration by the court, inasmuch asthey bear directly on the welfare of this child, and the trialcourt'is holding that none exist 

### was error. In view of the history of this child and the emotional problems that have so recentlyjust begun todisappear in the present environment, we feel that touproot her again and place her ina strange home in another city, with a step-father who is unknown to the child or tothe court, as it relates tohis role



### as a father, could have an extremely detrimental effect on the child. The record before this Court 

### willnot justify the uprooting

### of the child from the security she now feels and place her in

an environment of which thisCourt is

### unsure. The judgment of the districtcourt isreversed and the

cause remanded tothe districtcourt toplace legal custody in the father and provide themother with visitation rights equivalent tothose enjoyed by 

### the father inthe o 1

### decree of divorce.

Justice

., 

### We concur:

Chief Justice

Justices