No. 12429 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1974 

DONNA J. TURK, 

Plaintiff and Appellant, 

-VS - 

HENRY V. TURK, 

Defendant and Respondent. 

Appeal from: District Court of the Eighth Judicial District, 

Honorable R. J. Nelson, Judge presiding. 

Counsel of Record : 

For Appellant : 

Dola N. Wilson argued, Great Falls, Montana 

For Respondent: 

Jardine, Stephenson, Blewett & Weaver, Great Falls, 

Montana 

James E. Aiken argued, Great Falls, Montana 

Dzivi, Conklin, Johnson and Nybo, Great Falls, 

Montana 

Amicus Curiae 

Neil E. Ugrin argued, Great Falls, Montana 

Submitted: January 16, 1974 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This appeal results from a denial of a petition to modify 

a custody award of children by the district court of the eighth 

judicial district, county of Cascade. 

Donna Turk (Fitzgerald) appellant and Henry Turk respondent 

were divorced in October 1967. The two children of the marriage, 

Vincent and Verna, were awarded to appellant. In August 1968, 

respondent petitioned the court to modify the decree with respect to the custody of the two children. In his petition he 

alleged that appellant had given him the children on July 8, 1968. 

He further alleged appellant had proven herself an unfit person 

to have the care and custody of the children. Following hearing, 

at which both parties appeared with counsel, the court awarded 

respondent custody of the children. 

Following his divorce from appellant, respondent married 

a woman with two children and they later had one child. In addition, respondent had taken into his home to raise a boy, Andy 

Hawkinson Turk, who had been abandoned by his mother seven years 

before. Respondent classified himself as a farmer and a linesman. 

He had a small farm in the vicinity of Fairfield, Montana, where the 

family lived. He worked full time as a linesman for the Hartz 

Construction Company. The farm consisted of 160 acres plus 

60 leased acres, on which the family raised some 60 head of sows, 

20 head of milk cows, 80 head of sheep and some horses. 

Appellant, following her divorce from respondent, married one 

Ronald Fitzgerald and at the time of her petition had two small 

children by Mr. Fitzgerald. Problems developed between the 

parties as to visitation rights of appellant, which caused appellant to petition the district court for the custody of the children, 

alleging she had reestablisheda home where they could now be 

properly cared for. Hearing was had on June 29, 1972. 

At the hearing considerable evidence was introduced concerning appellant's allegations that respondent was a severe disciplinarian and abused the boys by making them do farm chores 
when they should have been in school. The disciplinary matter 

arose when the boys got involved in taking some ice cream from 

a truck. This was talked about in the mmmunity resulting in 

reports to law enforcement people and to the welfare department. 

In addition, at the hearing, the school records of all the Turk 

children were discussed and it was charged that the boys missed 

or were late for school far too often for their scholastic welfare. 

A thorough airing of the allegations raised by appellant was 

had at the hearing. There was testimony of neighbors, local 

law enforcement officers and school personnel. 

A Mrs. Rita Bond, an employee of the school, who saw the 

children each day of school, described the children as "adjusted 

and happy and very capable children". Based on her observations 

at school, she testified they were well behaved and she had never 

seen any of them beaten or abused. Frank Allum, who had worked 

for the Turks in 1971 and 1972, never saw the children abused or 

overworked and, in his opinion, the children were loved by their 

parents. ~espondent's supervisor testified Turk was a fine 

employee with no reputation for cruelty or hot temper. Hugh 

Maxwell, a neighbor, testified the family was a well adjusted 

happy family and that all the children s~emed to be one big 

family. He described the parents as "generous, kindhearted 

people. I 1 

At the hearing testimony was heard from respondent's witnesses 

as to conditions in the Turk home, the work of the children around 

the ranch, their school records and the disciplinary actions taken 

by respondent when he learned of the ice cream incident. All of 

this testimony was before the trial judge for consideration when 

he issued an order providing that: (1) pending a further order 

of the court Vincent and Verna were placed in the care, custody 

and control of Donna Fitzgerald; (2) the matter was referred to 

the Cascade County Court of Conciliation directing it to (a) 

make a complete investigation of the background, family situation, 
and all related matters as to the named minor children, (b) make 

psychological testing of all the children and adults involved, and 

(c) that all parties were to cooperate in the investigation and 

testing; (3) a report to be made to the Court following the 

investigation and testing. 

Thereafter an informal hearing was held on September 8, 

1972, before the Court of Conciliation with all parties present 

with counsel, Dr. Edward Shubat, a clinical psychologist, gave 

testimony on his findings obtained by interviews and tests. He 

concluded that both homes were fit and proper homes to raise the 

children but that for the best interests of the children they 

should be kept together as a family unit in the Turk home, with 

visitation rights to appellant. Thereafter, on September 11, 1972, 

the trial court returned Verna and Vincent to respondent with 

reasonable visitation rights in appellant. Appellant appeals and 

raises three issues: 

1. That the evidence does not support the district court's 

order. 

2. That the decision of the trial court is contrary to the 

case law and statutory provisions of Montana, and 

3. That the district court abused its discretion and 

committed reversible error in awarding custody to respondent, 

Henry Turk. 

Issues one and two will be discussed together. 

There was substantial and credible evidence presented to 

the trial court for its holding. In addition, Judge Nelson 

utilized para legal facilities available to him, through the Court 

of Conciliation, to make independent investigations of the conditions in both homes, and use psychological tests to ass& him in 

arriving at a proper solution of the problem, a solution that 

would be in the best interests of the children. 

In a long series of cases this Court has adhered to the 

principle in custody cases that the discretionary power of the 

trial court will not be disturbed unless there is a clear showing 
of an abuse of that discretion. Jewett v. Jewett, 73 Mont. 591, 

237 P. 702. 

Too, it has long been recognized as the law of this state 

that the Court considers of prime import the welfare and best 

interests of the children. McCullough v. McCullough, 159 I4ont. 

419, 498 P.2d 1189; Simon v, Simon, 154 Mont. 193, 461 P.2d 851. 

Appellant argues that in a recent case, Baertsch v, Baertsch, 

155 Mont. 98, 467 P.2d 142, the decision hinged on a "single 

incident" of a mother's violent temper as the controlling factor 

in support of the district court's ruling that it was such a 

11 change of conditions" that it justified the modification as to 

custody of a child. Not so! To construe Baertsch as appellant 

would have us do would be to limit the trial court's discretionary 

power. Baertsch is factually not comparable to the instant case. 

Here, the evidence was both homes offered an acceptable home situation, contrary to the findings in Baertsch, 

We find no merit in issues one and two, 

Appellant in issue three, attacks the use by the trial 

court of the post hearing investigative procedure, including an 

informal hearing before the Court of Conciliation. We do not find 

merit in this contention. The record is bare as to any objections 

on appellant's part to Judge el son's post hearing effort to obtain 

as much information as possible by investigative and testing procedures before making his final order on custody. 

Neither did appellant object to the court making the report 

of the Court of Conciliation a part of the record. It would appear 

from the record that appellant chose to go along with all the 

post hearing efforts believing the decision would be in her favor, 

and only when the final order was made did she object. 

The time for objection was before the trial court's final 

order. It cannot be considered for the first time on appeal. Close v. 

Ruegsegger, 143 I.lont. 32, 386 P.2d 739; Teesdale v. Anschutz 
Drilling Co., 138 Mont. 427, 357 P.2d 4; Carpenter v. Free, 138 

Mont, 552, 357 P.2d 882. 

The order of the district court is affirmed. 

l We Concur: 

Chie 2 ~ustice. 

................................ Justices.