No. 84-277 INTHE SUPFEiME COURTOF THE STATEOF MONTANA 1985

INRE THEMARRIAGE OF LINDAH. SARSFIELD, Petitioner and Respondent, and MICHAEL J. SARSFIELD

## , Respondent andAppellant.

APPEAL FROM: DistrictCourtof the Second Judicial District, Inand for the County of Silver Bow, The Honorable RobertJ. Boyd, Judgepresiding.

COUNSEL OF RECORD: ForAppellant: Deirdre Caughlan, Butte,Montana

For Respondent: Garnaas, Ball & Pinsoneault, Missoula,Montana

Submitted onBriefs: Oct. 18, 1984 Decided: February 20, 1985 

### FER 

## 1985 Filed:

ClerkMr. Justice John C. Harrison delivered the Opinion of the Court.

This is an appeal from an order of the Second Judicial District, Silver Row County, Montana, returning custody of Michael John and Sarah Sarsfield to their mother, Linda Sarsfield. This is the second time this custody dispute has reached this Court, In Re the Marriage of Sarsfield (Mcnt. 1983), 671P.2d 595, 40 St.Rep. 1736. Michael and Linda Sa.rsfieldwere married in 1970. Two children were born of the marriage: Michael John and Sarah. The marriage was ever precarious and j.n 1980 Linda filed a petition for dissolution. The final decree of dissolution

was issued in February of 1981. Linda received custody and Michael received.liberal visitationrights. Littlemore than a year laterMichael filed a petition to modify the custody decree. He alleged thatMichael John and Sarah had been left alone with M.M., whom Michael believed to be a child molester. He further alleged that Linda was planning to marry M.M. and that the home environment of the children seriously endangered their physical, moral and emotional well being. Michael sought temporary and permanent custody of the children. Linda admitted her pending marriage to M.M. but denied that the children were in any danger or that a change of custody would be in theirbest interest. After several hearings on the proposed modification, the court found that the children were seriously endangered by the association of M.M. with Linda, because of M.M.'s status as a child molester, and that there was a danger of furtherharm if the children stayed in Linda's custody. The court found that the transfer of custody to Michael was in the best interest of the children and so ordered. Linda received visitation rights.On appeal it was found that there was substantial evidence "to suggest that a potentially serious situation existedwith respecttoM.M.'s associationwith Linda and her children." Sarsfield, 671 P.2d at 602, 40 St.Rep. at 1742. Further, it was found that the potential danger to the children constituted a change in circumstances sufficient to justify modifying the prior decree. However, this Court reversed on the grounds that theDistrict Courtdid not allow evidence on the issue of Michael's fitness as a custodial parent. The case was then remanded with specific instructions as to the nature and scope of further proceedings. At the conclusion of the remand hearing, the lower court foundMichael a fit custodialparent. However,it also found that therewasno longer adangerposed to the children because Linda had effective1.y severed her relationshipwith M.M. Therefore,the District Court ordered that the original decree be reinstated in all respects. It is from that order that Michael Sarsfieldnow appeals. The issue presented by this case is whether the District Court erred by not complying with the directives of this Court onremand. The notion that a lower court must abide by the mandates of a higher court is both logical and clearly expressed in the law of Mo~tana. Section 3-2-204(1)

## , MCA reads: "The supreme courtmay affirm, reverse,ormodify any judgment or order appealed from and may direct the proper judgment or order to be entered or direct a new trial on further proceedings to be had." Ithas been held that this statute gives this Court the power to remand a case to a lower court "accompaniedby instructions that direct furtheractionbe takenby it in accordance with those instructions." State ex rel Olson v. District Court of Nineteenth Judicial District (1979), 184 Mont. 346, 349, 602 P.2d 1002, 1003-4. In Olson it is stated unequivocably that a lower court cannot ignore an appellatecourt's mandate indisposing of a case on remand. Failure to follow the directives of the appellate court constitutes error. Further, a district court cannot fail to carry outthedirectivesof this Courtwhen a case is remanded for further proceedings. In Re Stoian's Estate

(1960),138Mont. 384, 390, 357 P.2d 41,45. The instructions to the District Court on remand in this case are clear and are set out as follows: "upon remand, the trial court shall take testimony relating to facts or allegations that have arisen since the prior decree or thatwere unknown to the courtat the time of entry of thatdecree concerning Michael's fitness to obtain custody. The trial court shall decide whether its findings with respect to Michael

## 's fitness, considered in conjunction 

## -- with its earlier findings concerning the changes in circumstances, stillwarrantmodificatirnof the initial decree by placing the Sarsfield children in Michael's custody." Sarsfield 671 P.2d at 604, 40 St.Rep. at 1745-6.

(Emphasisadded.) The District Courtdid not abideby these instructions. At the opening of the remand hearing the court indicated its awareness that testimony was to be presented regarding Michael's fitness to be a custodialparent. Though some of the subsequent testimony did concern that subject, the great majority of the hearing was devoted to Linda Sarsfield's relationship, or lack thereof, with M.M. Linda's attorney obviously viewed the remand hearing as an opportunity to reopen the question 

### of Linda's relationship with M.M. and whether or not that re]-ationship constituted a sufficientchange of circumstances to warrant a change of custody. But the findings concerning change of circumstances had been affirmed by this Court on the initial appeal and were not properly a subject for the remand proceedings. See Sarsfield, 671 P.2d at 603. The clear import of the instructions on remand was that the District Court should weigh whatever findings it made regarding Michael's fitness

as a parent against the already settled findings regarding change of circumstances. It was then to decide if modification of the initial decree was stillwarranted. By failing to do this the District Court has committed error. In finding fromthe remand hearing that Michael Sarsfieldhas matured since his remarriage and offers a stable and loving home for his children, but then concluding from the same hearing that a lack of change of circumstances prevents the modification of the initial decree, the District Court has exceeded its mandate from thisCourt. Accordingly, the May, 1984 order is reversed and custody of Michael John and Sarah Sarsfield is awarded to their father Michael Sarsfield pursuant to the District Court's finding thathe is a fit custodialparent.

We concur:Mr. JusticeL. C. Gulbrandson,dissenting.

The parties, through their respective counsel, by stipulation and. participation 

### in the hearing on remand, treated that hearing as a continuation of the original hearing on the petition to modify custody decree. Both parties, along with thirteen other witnesses, testified without objection. The trial judge alsohad the transcripts available from the previous hearing and, although he found that the father was now able to offer a stable, secure and loving home for the children, concluded that there had been no substantial change in the circumstances to permit modificationof the originaldecree. There is substantial credible evidence to support the findings of t.he trial judge and I would therefore, affirm.

Justice' ,/"