No. 12744 

IN THE SUPREME COURT OF TIIE STATE OF MONTANA 

1974 

MEMRY ANN SVENNUNGSEN, 

Plaintiff and Respondent, 

-vs - 

MARK WILLIAM SVENNUNGSEN, 

Defendant and Appellant. 

Appeal from: District Court of the Eleventh Judicial District, 

IIonorable Robert Keller, Judge presiding. 

Counsel of Record: 

For Appellant : 

Daley and Sherlock, Kalispell, Montana 

Joseph F. Daley argued, Kalispell, Montana 

For Respondent : 

E. James Oleson argued, Kalispell, Montana 

Fratik B. Morrison, Jr. Whitefish, Montana 

Submitted: September 12, 1974 

Filed : ?CT n 7914 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

This is an appeal from an order of the district court 

of the eleventh judicial district for the County of Flathead 

modifying a divorce decree as to custody of a child. 

Mark William Svennungsen (hereinafter referred to as 

appellant) married Memry Ann Svennungsen (hereinafter referred 

to as respondent) on August 19, 1967. Their one child, Derek, 

was born January 6, 1971. Appellant is a doctor of optometry 

and has practiced in Whitefish since September, 1967. Prior to 

the parties' divorce, respondent had worked as a cocktail waitress and as a calculator on the horse racing circuit. In July, 

1972, respondent left Derek with appellant and she moved to 

Missoula where she rented an apartment. She worked as a waitress 

at a restaurant and worked at horse races in Missoula and Hamilton. 

She testified that she left her husband and child because "I 

had to see if I could do it on my own." She occasionally returned to Whitefish in order to visit her son. 

In the fall of 1972, appellant and respondent agreed to 

get a divorce. They contacted a family friend and attorney, Frank 

Morrison, to obtain a divorce. Morrison testified that he was 

counsel for respondent in the divorce action. A separation, 

custody and property settlement agreement, prepared in October, 

was signed by the parties in December, 1972. The Agreement provided that appellant was to have custody of Derek with respondent 

having a right of reasonable visitation. 

On January 31, 1973, respondent was granted a divorce and 

custody of Derek was given to appellant. Mr. Morrison, at the 

hearing on the petition to modify, testified: 

"Q. * * * When you got into court, did the Judge 

or did Memry or yourself make specific mention 

of custody of Derek, the minor child? A. Well, 

Memry testified that she had read the Agreement 

and approved it, and that is the only reference 

to the subject. 
"Q. Did she speak specifically, either in response to the questions put to her by counsel or 

the judge with regard to custody of Derek? A. 

It seems to me that the Judge asked her about it, 

but I am not sure exactly what the conversation 

was." 

From July of 1972 until February 19, 1974, Derek was in 

the custody of appellant except on several occasions when respondent would take Derek out of town. After the divorce, respondent 

took care of Derek during the day while appellant was working. 

This arrangement was terminated several months after the divorce 

and Derek was placed with a babysitter during the day. Appellant 

remarried on December 7, 1973. His present wife has two children, 

ages two and four. 

On December 28, 1973, respondent petitioned the district 

court to modify the custody portion of the divorce decree to have 

custody of Derek changed from appellant to respondent. After a 

hearing on January 9, 1974, the Court, sitting without a jury, 

changed custody from appellant to respondent. In its findings of 

fact the district court found: 

"7. That the question of the custody of this 

child, in terms of its best interests, was 

never submitted to a Court for litigation, nor 

litigated, until this hearing." 

No finding was made as to whether there had been a substantial 

change of circumstances since the divorce. 

Appellant moved to amend the court's findings and order on 

March 4, 1974. On April 3, 1974, his motion was denied. From the 

order granting modification of the custody portion of the divorce 

decree and the denial of his motion to amend, appellant appeals. 

The primary issue raised in this appeal is whether the 

respondent, in order to change custody from appellant to respondent, must make a showing of a "substantial change of circumstances" 

where the custody issue was not contested in an adversary hearing 

in the initial divorce action. We answer in the affirmative. 
Subsidiary issues and further facts will be developed as needed 

in the course of this opinion. We shall set up the respondent's 

position first to properly frame the issue. 

Respondent maintains that unless the issue of child custody has actually been "litigated" a Montana court is not in fact 

precluded from looking to the facts that existed at the time of 

the original decree, litigating said issue and issuing a judgment thereon. We recognize that a sizable minority of jurisdictions would accept the proposition propounded by respondent, but 

as will appear hereinafter, we reject it. 

In Stewart v. Stewart, 86 Idaho 108, 383 P.2d 617, the 

Supreme Court of Idaho stated: 

" * * * Where facts, affecting their welfare, 

existing at the time of the divorce or awarding custody, are not called to the attention 

of the court, and particularly in default cases 

where the issues affecting custody have not been 

fully tried, the court upon a proper application 

may consider all facts and circumstances, including those existing prior to and at the time of 

the judgment of decree, in making a subsequent 

determination of custody." 

In King v. King, 25 Wis.2d 550, 131 N.W.2d 357, 359, the 

Supreme Court of Wisconsin stated: 

"Since custody of the children was granted upon 

the stipulation of the parties without testimony 

being taken on the issue and no finding of fitness was made, the court's determination is not 

- res judicata nor does the rule of changed circumstances apply. If the doctrine of - res judicata 

applied in full force in custody cases, evidence 

of conduct occurring prior to the time of the 

determination of custody would be excluded on a 

later hearing. However, the doctrine does not 

apply unless there has been a finding of fitness. 

[Citing cases.] Even when such a finding has been 

made, the doctrine of - res judicata is not to be 

applied to custody matters with strictness because the rights of the child and of the public 

in the child's welfare should not be concluded 

by the nonaction of others." 

And see cases cited in 9 A.L.R.2d 623. We decline to 

follow this line of authority. This Court stated in Simon v. 
Simon, 154 Mont. 193, 197, 461 P.2d 851: 

"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. As we set it forth in Trudgen v. 

Trudgen, 134 Mont. 174, 329 P.2d 225: 

"'It is the rule in this jurisdiction that 

while "a decree fixing the custody of children 

is final upon the conditions then existing, 

when it is shown that these conditions have 

changed, the court or judge then has authority 

to modify the original decree in respect to 

them * * * In proceedings of this nature the 

welfare of the children is the paramount consideration." Jewett v. Jewett, 73 Mont. 591, 

595, 237 P. 702, 703. 

"'This rule was stated for the full court 

more than a quarter century ago and was reiterated in Bayers v. Bayers, supra, 129 Mont. [l] 

at page 6, 281 P.2d [506] at page 509, where 

it is pointed out that "otherwise either parent 

of a child or children could constantly harass 

the other with litigation none of which would 

be conducive to the best interests of the 

child." * * *I" 

Whether the order respecting custody has been granted 

after a full adversary proceeding or after a default divorce, as 

in this case, the considerations are the same. The requirement 

for a finding of a change in circumstances is designed to protect 

the person who has custody from the harassment of further litigation. We recognize that this line of reasoning would be inappropriate if appellant was in fact unfit have custody. That 

case is not now before us. The district court, in both the decree 

of divorce and the order modifying custody, found that the appellant was a fit and proper person to have the care, custody and 

control of Derek. We hold merely that, based upon the facts of 

this case, a showing of a substantial change of circumstances 

should have been required before the district court inquired into 

the custody issue on respondent's petition and that the district 

court erred in holding that, solely because the issue of custody 

was not "litigated" in the prior divorce hearing, the custody issue 
could be litigated afresh before him. 

We do not want to be understood as implying that a substantial change in circumstances would be required as a threshold 

finding in every factual situation before the issue of custody 

could be litigated on a petition to modify custody. Although 

the case is not before us, we would be receptive to the proposition that a showing of unfitness on the part of the person having 

custody, or some other justifiable grounds, might suffice and, 

despite a failure to show a substantial change of circumstances, 

enable the district court to consider the issue of custody on a 

petition to modify custody. 

Appellant argues that respondent should not have been 

allowed to have custody of her child subsequent to the divorce 

without showing that Mark Svennungsen had been an unfit father 

- and that there had been a substantial change of circunstances 

which would indicate that it would be in the best interest of 

the child to transfer custody to her. Appellant cites Barham v. 

Barham, 127 Mont. 216, 259 P.2d 805, for the proposition that 

"even though the mother had remarried there would be no change 

in custody without a finding that the child was being abused." 

Even though the trial judge in Barham stated to counsel: 

"There is nothing to show the child is nat being 

cared for " * *. " 

this Court's reason for affirmi~lg the Barham case was because 

this Court could not "say that the trial judge in any wise or 

manner abused the discretion reposed in him in making the order 

denying the motion to modify the decree." Sarham, at p. 220. 

There is no requirement in the law of Xontana that tL1e 

party sesking a nodifization 3f the terss of a sus~o3y d22rz2 

must make a showing that the person who presently has custody 

is unfit or has abused the child. If this Court were to require 

a showing of unfitness on the part of the person who presently 
has custody before a custody decree could be modified, it would 

result in the situation that there could never be a change in 

custody if both parties were fit and proper persons to have 

custody. As stated above, a snowing of unfitness may, in some 

situations, substitute for a change of circumstances. It will 

not, however, be required in addition to a showing of change of 

circumstances. 

The district court, in its findings of fact, found: 

"5. * * * that the parties first separated in the 

summer of 1972, and the agreement at that time 

was that she was to get set up with a job, a 

place to live, etc., and then she could have 

custody of the child, if her arrangements were 

satisfactory; that the arrangements of the mother 

were not satisfactory to the father, she did 

not get custody, and she returned to the family 

residence to be with the child; that almost immediately thereafter the divorce action was commenced; that again, it was decided that it would 

be in the best interest of the child if he stayed 

with his father while the mother got situated; 

that the mother firmly believed that she was to 

have custody of the child after she had a job, 

a place to live, etc.; that the father never 

intended that she have custody of this child, 

but he led the mother to believe that once she 

could provide adequate arrangements, in the 

best interests of the child, then she would have 

custody * * *." 

and in its conclusions of law found: 

"1. That the parties agreed, at the time of the 

divorce between them, that the mother was not 

then financially able to take the custody of the 

minor child of the parties, and support him in a 

manner that would be in the best interests of 

the child; that the father led the mother to believe that once she secured adequate employment, 

had an adequate place to live, and was otherwise 

in a position to financially take care of the 

minor child, that she would receive the custody 

of said child; that on that basis, she agreed 

that at the time of the divorce, the custody 

should be given to the father." 

Respondent contends that because of this finding of fraud 

on the part of appellant, if for no other reason, the district 

court was justified in hearing testimony on child custody relating 
back to and prior to January, 1973, and modifying the original 

decree accordingly. The record does show that appellant indicated to respondent prior to her leaving for Missoula in the 

summer of 1972 that she could have Derek once she got a job, an 

apartment and got settled. There is no evidence in the record 

that a similar arrangement was made for purposes of the Separation, 

Custody and Property Settlement Agreement. The strongest testimony in this regard was appellant's response to the following 

question on cross-examination: 

"Q. Now, if that is so, is it possible that you 

could have indicated this at other times? A. 

Possibly, right." 

The mere possibility that such indication could have occurred is 

hardly sufficient proof that it did occur. 

Neither does a reading of the record support a finding 

of fraud on the part of appellant. As stated above, the most the 

record will support is a finding that, in the summer of 1972, 

appellant indicated to respondent that she could have Derek once 

she got a job, an apartment and got settled. However, the mere 

making of a promise which the promisor fails to keep is not 

actionable fraud. Gallatin Tr. & Sav. Bk. v. Henke, 154 Mont. 170, 

175, 461 P.2d 448. Rather, the record indicates that respondent 

signed the Separation, Custody and Property Settlement Agreement 

giving appellant custody of Derek, which was later incorporated 

into the divorce decree, because (1) appellant had convinced her 

that he was more "stable" than she was; (2) she wanted to avoid 

a prior act of adultery from being brought into open court; (3) 

she wanted a divorce and wanted to avoid a custody fight; and 

(4) she felt, in her own mind, that her act of adultery would 

bar her from having custody. Not only is there no showing of fraud, 

but the clear weight of the evidence is that respondent voluntarily 

agreed that appellant should have custody of Derek. 
The district court made no finding as to whether there 

had been a substantial change of circumstances since the divorce 

decree of January 31, 1973. Respondent contends that, despite 

this lack of a finding, this Court should find a substantial 

change of circumstances in the following testimony of respondent" 

"A. Derek, has always, when I was living there 

in the house as the wife and the mother, my son 

always had three meals a day at the right times. 

He was always in bed. Now, when I left home 

and came back and would come back, Derek would 

be up until all hours of the night because Mark 

had been working and he didn't want to put him 

to bed. I mean, what I am trying to say is I 

may not eat regularly myself, and I may not go 

to bed at 10:OO every night, but I am positive 

that when my son is with me, he does these things. 

And I have always been very careful to do that." 

Construing this testimony in the light most favorable 

to respondent, it is merely a statement that appellant allowed 

Derek to stay up late because he did not want to put him to bed. 

This is not a substantial change of circumstances sufficient to 

warrant a modification of a custody decree. 

The only other change of circumstances testified to in 

the entire transcript was that appellant had remarried and his 

new wife had two children, ages two and four. In Simon v. Simon, 

154 Mont. 193, 198, 461 P.2d 851, we stated: "I" * * * the 

substantiality of the change of circumstances is tested with 

respect to the child's welfare rather than the parents' welfare."'" 

There is absolutely nothing in the transcript to indicate 

that this change of circumstances was detrimental to the welfare 

of Derek. Derek continued to be babysat during the day as before. 

The undisputed testimony of appellant and his present wife was 

that Derek was getting along well with his wife's children and 

that being around the children helped Derek. Even if appellant's 

remarriage be deemed a substantial change of circumstances, such 

a change should not result in relitigation of the custody issue 

if the change in fact enhances the welfare of the child. 
Appellant contends that the district court in its conclusions of law erroneously found: 

"3. That both parties hereto are fit and proper 

persons to have the care, custody and control 

of the minor child of the parties * * *.'I 

and in its findings of fact found: 

"4. * * * that there was nothing in evidence of 

this hearing to show that either party is not a 

fit and proper person to have the care, custody 

and control of the minor child." 

The issue as to whether respondent was in fact a fit 

and proper person to have custody at the time of the divorce is 

moot in light of the district court's finding on the petition 

to modify that both parties are fit and proper persons to have 

custody. 

In view of the foregoing, respondent's motion to dismiss 

the appeal, based on the grounds that appellant "has failed to 

attack the findings of fact of the district court, either by point, 

legal argument or by legal citation or authority" is not well 

taken. Other issues raised need not be discussed because our 

holding on this issue determines the case. 

The order of the district court is reversed and the cause 

remanded to the district court for entry of an order denying the 

modification of the decree. 

4 

We concur: , i 

Justices I 

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