No. 84-270 

IN THE SUPREIE COURT OF THE STATE OF MONTANA 

1984 

IN RE THE MARRIAGE OF 

ROSEMARY ELAINE REINOEHL, f/k/a 

ROSEMARY ELAINE PERRY, 

Petitioner and Respondent, 

LARRY GEORGE PERRY, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Madison, 

The Honorable Arnold Olsen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Jackson Law Firm, Helena, Montana 

For Respondent: 

Jardine, McCarthy a Grauman; David Grauman, Whitehall, 

Montana 

Chester L. Jones, Virginia City, Montana 

For Children: 

Douglas L. Smith, Sheridan, Montana 

Submitted on Briefs: October 11, 1984 

Decided: December 6, 1984 

Clerk 
Mr. Justice Frank R. Morrison, Jr., delivered the opinion of the Court. 

Larry Perry, respondent, appeals from the judgment of 

the District Court of the Fifth Judicial District, in Madison 

County, modifying a prior custody decree and transferring 

custody of their four children to petitioner, Rosemary 

Reinoehl . 

On November 23, 1983, Rosemary Reinoehl moved the district court to modify the prior custody decree dated July 25, 

1980, and grant her custody of their four children. After 

recommendation from the Director of the Madison County Welfare Department, interview with each child, and a hearing on 

the matter, the trial court granted the motion. Respondent's 

motion to stay execution of judgment pending appeal was 

denied. 

Rosemary and Larry Perry dissolved their marriage by 

decree on November 29, 1979. They had four children; Justin, 

now 17; Keith, now 14; Leslie, now 11; and, Neil, now 9. The 

court's determination of custody was reserved pending investigation. The Director of the Madison County Welfare Department submitted a report on January 16, 1980, indicating that 

the children preferred to live with their mother but both 

parents were capable of providing a home for the children. 

Despite the preference of the children, the trial court 

awarded their custody to Larry, and granted Rosemary restrictive visitation rights in its July 23, 1980, order. 

Three and a half years later, November 17, 1983, Rosemary filed a motion to modify the 1980 custody decree. The 

accompanying affidavit alleged that due to a change in the 

circumstances the present environment seriously endangered 

the physical, mental and emotional health of the children and 
that their best interest would only be served by making 

Rosemary the custodial parent. The Director of the Madison 

County Welfare Department was appointed to reinvestigate the 

homes of Larry and Rosemary with respect to the children's 

custody and care. 

On November 18, 1981, Larry married Karen Allen, the 

custodial parent of her four minor children. Larry, Karen 

and the eight children live in his five-bedroom ranch house, 

seven and a ha1.f miles east of Twin Bridges. All eight 

children are responsible for daily chores on the farm operation. Larry advocates that hard work, a ranch life and 

responsibilities properly prepare chi]-dren for adulthood. He 

does not permit the children to participate in school or 

extracurricular activities until they enter high school. 

Larry, a devoted member of a non-denominational Christian group, raises the family according to his religious 

beliefs. His church group lacks a traditional organizational 

structure. He described his religion as "just a fellowship" 

of "workers" who hold gospel meetings in private homes. 

Three of Larry's natural children are "professed" (vowed to 

serve God), in this religious group enabling them to participate in the "meetings." Larry believes that children should 

learn at a young age to abide with rules and regulations, 

starting in the family. He testified that he "physically 

disciplined" his children for disobedience. 

Rosemary Perry married Dan Reinoehl and moved to Ennis, 

Montana. The Reinoehl's purchased a four-bedroom house on 

2.8 acres within walking distance from local schools. Dan 

has two daughters, ages 8 and 11, who live in Ennis with 

their mother and visit their father frequently. Dan is 

employed as a school bus mechanic and driver. Rosemary works 
full-time at the Madison County Nursing Home. Although Dan 

and Rosemary do not attend church, Dan's daughters do. 

The Director of the Madison County Welfare Department 

observed in his report filed with the court January 25, 1984, 

that the original custody award did not follow the children's 

wishes and severely limited Rosemary's visitation rights. 

The Director noted that the Perry family was a classic case 

of a strained divorce with the children caught in the middle. 

Although investigating Director commented he had no reason to 

believe that one parent is the more appropriate custodian 

than the other, he recommended "Rosemary definitely should be 

allowed much more visitation, if not custody of the three 

younger children." 

After interviewing the four children individual]-y in 

chambers the trial judge granted the motion and ordered the 

custody of all four Perry children transferred to Rosemary. 

Larry Perry appeals. 

The issues are: 

1. Did the evidence presented at the hearing establish 

the change in circumstances required under 40-4-219, MCA? 

2. Did the evidence establish that the present environment with the respondent (appellant) Larry, seriously 

endanger the physical, mental, moral or emotional health of 

the children as required under section 40-4-219, MCA, so as 

to support a change of custody? 

3. Whether the Court considered the wishes of all the 

children, and, more especially, those over 14 years of age, 

as to their custodian. 

The welfare of the children is the paramount consideration in awarding custody. A.R.C. v. C.K.C. (Mont 1983) , 661 

P.2d 459, 462. In custody modification actions, the best 

interest must be balanced with the underlying legal 
presumption in favor of custodial continuity. The modification statute, 40-4-219, MCA, codifies this policy of continuity by establishing jurisdictional prerequisites which must 

be- -satisfied before the issue of "best interest" can be 

reached. In sum, tEe modification statute sets out a 

two-part test. R.L.S. v. Barkhoff (Mont. 1983), 674 P.2d 

1082, 1087. The threshold jurisdictional test is followed by 

the substantive test of best interest of the children. 

The statute places a heavy burden on the person seeking 

modification to prove that modification of the decree is 

necessary to serve the best interest of the children. In 

order to carry that burden, the moving party must satisfy one 

of four jurisdictional prerequisites enumerated in subsections (a) , (b), (c), or (d). Only (c) and (d) are app1icabl.e 

to the appeal before us. 

Pertinent language of 40-4-219 (1) (c) & (d) provides: 

"40-4-219. Modification. (1) The court may in 

its discretion modify a prior custody decree if it 

finds, upon the basis of facts that have arisen 

since the prior decree or that were unknown to the 

court at the time of entry of the prior decree, 

that a change has occurred in the circumstances of 

the child or his custodian and that the modification is necessary to serve the best interest of the 

child and if it further finds that: 

" (c) the child1 s present environment end-angers 

seriously his physical, mental, moral, or emotional 

health and the harm likely to be caused by a change 

of environment is outweighed by its advantages to 

him; or 

" (d) the child is 14 years of age or older and 

desires the modification." 

In a recent decision, this Court construed the statutory 

requirements for modification in this manner: 

"The statute sets out a two part test. The first 

part of the test contained two subparts which bear 

a qualifying relation to each other. Gilmore v. 

Gilmore (1975), 166 Mont. 47, 530 P.2d 480. There 

must be a change of circumstances, but that change 

is not measured in a vacuum. The change must be 
significant enough in relation to the best interests of the child that those interests are no 

longer served by the decree in force. The best 

interests of the child in a modification proceeding 

are judged by the criteria of Section 40-4-212, 

MCA. Schiele v. Sager (1977), 174 Mont. 533, 571 

P.2d 1142. The second part of the test also involves two subparts which bear less of a relation 

than those above, but are intertwined nonetheless. 

The primary custodian may not be changed unless the 

court finds the enumerated dangers exist, and the 

advantages of change outweigh the disadvantages." 

R.L.S. v. Barkhoff, 674 P.2d at 1087. 

The first issue is whether sufficient evidence supports 

the change in circumstances required by 40-4-219(1). 

Ample evidence supports the trial court's findings 

relating to the change of circumstances of the father and 

children since the divorce. Larry's marriage to Karen Allen 

resulted in ten family members residing in their five-bedroom 

ranch house. These living accommodations for the child.ren 

were definitely more crowded and considerably less private. 

Larry's membership in a non-denominational religious group 

advocating rigid religious beliefs may have altered his 

values and concepts of raising his children. At any rate, 

physical discipline has become more pronounced. 

The second and third issues a.dd.ress the requisite jurisdictional standards and are discussed jointly. 

With regard to Justin and Keith, both 14 years old or 

older, 40-4-219(l) (d), MCA, permits modification of their 

custody arrangement to serve their best interest, if they 

desire such a change in custodian. Justin stated without 

equivocation that he desired to live with his mother. 

Keith's preference as told to the trial judge in chambers is 

more ambiguous in that he expressed his desire to live with 

both parents, but in any event to see more of his mother. 

The other jurisdictional question is whether the present 

environment with Larry seriously endangers the physical, 

mental, moral or emotional health of the children to warrant 
modification of custody. The trial judge's findings on this 

issue are sufficiently supported by credible evidence on the 

record. 

Finding No. 12 provides: 

"There is evidence to support the determination 

that the methods of discipline empl-oyed by the 

respondent, especially as to the older children 

have become unduly harsh, possibly resulting in 

misbehavior of the oldest child, Justin." 

When questioned about his standards of discipline and 

goals in raising his children, Larry testified: 

"A. I have been of the belief that a youngster 

should learn at a young age that he has to abide 

with the rules and regulations. And I have spanked 

my kids when they don't obey the rules. 

"Q. Have you ever beaten your kids? 

"A. I don't call it beating. No, I don't beat my 

kids. 

"Q. But you have physically disciplined them on 

the behind? 

"A. Yes. 

Larry admitted using a stick on the "hind side" of his 

oldest son and booting him in the buttocks with the side of 

his boot "a time or two." The Court pursued its own interrogation of Larry on this issue. 

"THE COURT: Well, was Justin abused severely in 

any way? 

"THE WITNESS: I don't think so. 

"THE COURT: Was he bruised? 

"THE WITNESS: He was bruised on the buttocks, yes. 

"THE COURT: Was he bruised on any other part of 

the body? 

"THE WITNESS: Shoulder, back. 

THE COURT: And-- 

THE WITNESS: Right before the stick hit him, he 

moved his arm and he bruised it. It was across the 

wrist. 
The fact that the custodian has not inflicted such 

severe disciplinary practices upon the younger children is 

not conclusive. The potential for serious harm is sufficient 

to contemplate modification of custody, as long as the best 

interest of the child is served. 

This Court held: 

"In summary, we will not interpret the provisions 

of the modification statute so narrowly as to 

prevent trial courts from assuming jurisdiction 

over modification petitions where substantial, 

credible evidence of a potential danger is presented by a petitioner during the case-inichief." 

Sarsfield, 671 P.2d at 602. 

Having concluded that the potential danger to the children was a sufficient change in circumstances to justify 

modifying the prior decree, the trial court is still bound to 

consider the best interests of the children before deciding 

that transfer of custody should be ordered. 

Applying the facts found by the trial court there is no 

error. In Finding No. 14 the court stated, 

"That based upon the facts relating to the best 

interest of the minor children and their welfare, 

it is determined that, because of the location of 

petitioner's home, her stable employment picture, 

and other relevant and positive changes in circumstances and facts, that it would be, and is in the 

best interests of said minor children if they be 

placed in the custody, care and control of their 

mother . . ." 

In the Finding No. 13 the court does not specifically use the 

"best interest1' language, but sta.tes: 

"There is evidence to support the determination 

that the children are being raised in such a manner 

so as to neglect proper social development and 

without sufficient social interaction with their 

peers; that a home near Ennis, Montana, within 

walking distance of the schools and other related 

facilities, as is the petitioner's, will provide 

more opportunity and availability for the children 

to communicate and interact with peers and others 

on a more frequent and desirable manner and basis." 

This Court will look through the form to the substance 

of the district court's ruling. Barkhoff at 1088. The trial 
court apparently felt that the strict social rules which 

Larry imposed upon his children were not in the best interest 

of their personal development. Larry prohibited the children 

from participating in any school or extracurricular activities until they entered. high school. He advocated that hard 

work and ranch life properly prepared them for adulthood. 

This Court has a limited standard of review in custody 

modification appeals. 

"The findings of a trial jud~e will not be disturbed on appeal where they are based on substantial though conflicting evidence, unless there is a 

clear preponderance of evidence against such findings. (cites omitted) It is not the function of 

this Court to resolve conflicts in the evidence. 

(cite omitted) The trial judge has the superior 

advantage of observing the demeanor and credibility 

of the witnesses, (cites omitted) and we will not 

dispute his or her particular resolution of conflicting statements unless the evidence clearly 

preponderates against the findings." ~arsfield, 

671 P.2d at 603. 

This Court may consider only whether substantial credible evidence supports the findings. We see no indication of 

any abuse of discretion which would require overturning those 

findings. The evidence supports modification of the custody 

decree necessary to serve the best interest of the Perry 

children due to change of circumstances in the children's 

environment. The change found by the trial court has arisen 

since the prior decree and has created a danger to the 

childrens' welfare which is not outweighed by the disadvantages caused by change of custody. 

The judgment of the trial 

We concur: 
Justice P