No. 12160 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 

BONNIE E. McCULLOUGH, 

Plaintiff and Respondent, 

-vs - 

RICKEY P. McCULLOUGH, 

Defendant and Appellant. 

Appeal from: District Court of the First Judicial District, 

Honorable We We Lessley, Judge presiding. 

Counsel of Record: 

For Appellant : 

Harris, Jackson and Utick, Helena, Montana. 

Hollis A. Connors argued, Helena, Montana. 

For Respondent: 

C. W. Leaphart, Jr. argued, Helena, Montana. 

Submitted: April 19, 1972 

Decided: JUN 3 o 1972 

Filed : JarR 3 2 ;5/;;. 
Mr. Chief Justice James T. Harrison delivered the Opinion of 

the Court. 

This is an appeal by defendant from an order of the 

Lewis and Clark County district court modifying a decree of 

divorce so as to grant plaintiff the care, custody and control 

of a minor child. The appeal was taken after an order denied 

his motion for a new trial. 

From the record it appears that a divorce action was 

commenced by plaintiff Bonnie E. McCullough in August, 1968, and 

on September 27, 1968, she was granted a decree of divorce from 

defendant Rickey P. McCullough. The divorce decree contained 

custody provisions for the parties' three-year-old son, Burke 

McCullough, in accordance with a contractual agreement and property settlement entered into by the parties on August 9, 1968, 

and modified by addendum of September 19, 1968. The decree 

granted the physical care, custody and control of Burke to plaintiff's sister, a married woman residing in Helena. The district 

court awarded legal custody to the father. 

As part of its decree, however, the district court made 

particular mention that the plaintiff retained her right to petition the court for modification of the custody provisions upon 

change of circumstances. 

Subsequently, plaintiff did petition the district court 

in April, 1971, seeking a modification of the divorce decree so 

as to place the care, custody, control and education of Burke 

McCullough in plaintiff, the natural mother of the minor child. 

Plaintiff's petition alleged change of circumstances in that she 

had remarried and was able to take care of her minor son and 

rear him in a stable home. Defendant father then filed a crosspetition stating that it would be in the best interests of the 
minor child to award physical custody as well as legal custody 

to him. 

Hearing on the petitions was had on May 19, 1971. The 

district court took the matter under advisement and then rendered 

its order on June 29, 1971, by which the divorce decree was 

modified to grant the care, custody and control of Burke McCullough 

to his mother. 

Defendant took exception to the court's findings and moved 

for a new trial on July 12, 1971. He substituted new attorneys 

in his behalf and disqualified the trial judge prior to the hearing 

on his motion. The motion for new trial was heard on August 16, 

1971, and upon consideration of the pleadings, transcript of the 

child custody hearing, and arguments of counsel, the motion was 

denied. This appeal followed. 

At the outset, it should be noted that the record reflects 

a change in circumstances for each of the parties following the 

divorce decree. Each of them naturally desires the full custody 

and companionship of the minor child. The record nowhere indicates 

any dissatisfaction with the manner of care given the child by 

plaintiff's sister. 

The record does show the remarriage of plaintiff to one 

Dr. John G. Fisher on June 9, 1970. Dr. Fisher is a medical doctor 

with a specialty in adolescent psychiatry. He was associated with 

hospitals in Denver, Colorado at the time of plaintiff's petition. 

Plaintiff and her husband had maintained a home in Denver for almost a year immediately preceding her petition. 

Plaintiff petitioned for custody at this time because 

Burke was now six years old and would enter school in fall, 1971. 

She testified that she had quit her job in Denver just prior to 

the hearing; thus, she would be able to take care of Burke in 
her home if she were awarded custody. 

It appeared on cross-examination of plaintiff that at 

the time of her divorce she had been using drugs. Plaintiff 

also testified, however, that the drugs were nonaddictive and 

that she had not used any for more than two years immediately 

preceding the hearing. 

The testimony of plaintiff's mother indicates she had 

observed plaintiff radically change following her divorce into 

a mature, stable adult capable of rearing her son. 

Following the hearing, the court talked privately with 

plaintiff's sister about the minor child and the conditions of 

custody. Furthermore, the district judge caused an investigation 

of plaintiff's home to be made by the Welfare Department in 

Denver. 

On the other hand, defendant's testimony shows that he 

has worked and resided in Helena and has spent time with his son 

almost every weekend following the divorce. Defendant, too, has 

remarried. His present wife testified that she was willing to 

give up her employment if custody were awarded to defendant and 

that she had much affection for the child already. On crossexamination, though, she found no fault with plaintiff seeking 

custody of plaintiff's own child. 

On the basis of these facts contained in the record, together with information resulting from its own inquiry, the district 

court found "that the present home atmosphere of the plaintiff is 

one of stability" and concluded "that these surroundings will be 

in the best interests of the child." 

Defendant advances three issues on this appeal: 

(1) That the evidence does not support the district court's 
order; 

(2) that the decision of the district court is contrary 

to the case law and statutory provisions of Montana; 

(3) that the district court abused its discretion and 

committed reversible error in awarding custody to plaintiff. 

Plaintiff contends there is only one issue on this appeal: 

whether or not the district court abused its discretion in modifying the custody. 

In resolving the issues here presented, it is first necessary to review the applicable statutory provisions. Section 21- 

138, R.C.M. 1947 states in pertinent part: 

"In an action for divorce the court or judge 

may * * * give such direction for the custody, 

care, and education of the children * * * as 

may seem necessary or proper, and may at any 

time vacate or modify the same." Emphasis 

supplied. 

Section 91-4515, R.C.M. 1947 states that in awarding the 

custody of a minor, the court is to be guided by the following 

considerations: 

"1. By what appears to be for the best interests 

of the child in respect to its temporal and its 

mental and moral welfare * * * 

"2. As between parents adversely claiming the 

custody * * * other things being equal * * * it 

should be given to the mother * * *." 

We have repeatedly recognized that the welfare of the 

child is to be given prime importance in custody proceedings. 

This Court stated in Haynes v. Fillner, 106 Mont. 59, 75 P.2d 802: 

"In awarding the custody of a child, the paramount consideration is the best interests of 

the child in respect to its temporal and its 

mental and moral welfare." See also Cleverly 

v. Stone, 141 Mont. 204, 378 P.2d 653. 

And again in Simon v. Simon, 154 Mont. 193, 197, 461 P.2d 

851, the Court said: 
"'What is, or is not, in the best interests 

of the child depends upon the facts and circumstances of each case.'" 

Of particular importance in considering a modification 

of custody is the presence of a change in circumstances affecting 

the parties. This Court noted in Simon: 

"We have repeatedly held that custody of minor 

children should not be changed unless it can 

be shown that there was a substantial change 

in circumstances since the previous order was 

entered. " 

Here the record is replete with evidence of substantial 

change on the part of plaintiff mother. Not only had she remarried and quit her job, thus allowing herself ample time to 

give her child the attention he needs, but her very life-style 

had also changed. Her emotional difficulties were part of her 

past. The evidence shows that plaintiff succeeded in her efforts 

to rehabilitate herself. 

Certainly it is true that the record in this case shows 

a change of circumstances on the part of defendant husband as 

well. We must be mindful, however, that the district court both 

heard and observed the witnesses; it discussed the custody of 

the child in chambers with plaintiff's sister; it had access to 

the reports of the welfare investigation. As we stated in Jewett 

v. Jewett, 73 Mont. 591, 595, 237 P. 702: 

"When a controversy arises between parents over 

the right to the custody of children, the duty 

of deciding it is a delicate one, which is lodged 

with the district court or the judge thereof. 

The judge hearing oral testimony, in such a controversy has a very superior advantage in determining the same, and his decision ought not to 

be disturbed except upon a clear showing of abuse 

of discretion." 

Here, the evidence supports the ruling of the district 

court. That ruling is soundly based upon the applicable statutes 
and case law. There was no abuse of discretion. 

Accordingly, the order of the district court is 

a£ f irmed .