No. 84-277 

IN THE SUPFEiME COURT OF THE STATE OF MONTANA 

1985 

IN RE THE MARRIAGE OF 

LINDA H. SARSFIELD, 

Petitioner and Respondent, 

and 

MICHAEL J. SARSFIELD , 

Respondent and Appellant. 

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver Bow, 

The Honorable Robert J. Boyd, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Deirdre Caughlan, Butte, Montana 

For Respondent : 

Garnaas, Ball & Pinsoneault, Missoula, Montana 

Submitted on Briefs: Oct. 18, 1984 

Decided: February 20, 1985 

FER 1985 Filed: 

Clerk 
Mr. 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), 671 P.2d 595, 40 St.Rep. 1736. 

Michael and Linda Sa.rsfield were 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 visitation rights. 

Little more than a year later Michael filed a petition 

to modify the custody decree. He alleged that Michael 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 their best 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 

further harm 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 

existed with respect to M.M.'s association with 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 the District Court did 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 found Michael a fit custodial parent. However, it also 

found that there was no longer a danger posed to the children 

because Linda had ef fective1.y severed her relationship with 

M.M. Therefore, the District Court ordered that the original 

decree be reinstated in all respects. It is from that order 

that Michael Sarsfield now appeals. 

The issue presented by this case is whether the 

District Court erred by not complying with the directives of 

this Court on remand. 

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 court may affirm, reverse, or modify 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." It has been held that this 

statute gives this Court the power to remand a case to a 

lower court "accompanied by instructions that direct further 
action be taken by 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 appellate court's mandate in disposing of a case on 

remand. Failure to follow the directives of the appellate 

court constitutes error. Further, a district court cannot 

fail to carry out the directives of this Court when a case is 

remanded for further proceedings. In Re Stoian's Estate 

(1960), 138 Mont. 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 that were unknown to the 

court at the time of entry of that decree 

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, 

still warrant modificatirn of the initial 

decree by placing the Sarsfield children 

in Michael's custody." Sarsfield 671 

P.2d at 604, 40 St.Rep. at 1745-6. 

(Emphasis added. ) 

The District Court did not abide by 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 custodial parent. 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 sufficient 
change 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 still warranted. By 

failing to do this the District Court has committed error. 

In finding from the remand hearing that Michael Sarsfield has 

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 this Court. 

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 that he is a fit custodial parent. 

We concur: 
Mr. Justice L. 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 also had 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 

modification of the original decree. 

There is substantial credible evidence to support the 

findings of t.he trial judge and I would therefore, affirm. 

Justice' 

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