No. 12744 

### INTHE 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. JusticeWesley 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 (hereinafterreferred to as respondent) onAugust 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, respondenthad worked as a cocktail waitress and as a calculator on the horse racing circuit. In July, 1972,respondent left Derek with appellant and shemoved to Missoula where she rented an apartment. She worked as a waitress at a restaurantand 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 onmy 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 reasonablevisitation. 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 yourselfmake 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 questionsput to her by counsel or the judgewith 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 occasionswhen respondent would take Derek out of town. After the divorce, respondent took care of Derek during the day while appellant was working. This arrangementwas 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 findingsof 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

### willbe developed asneeded inthe course of thisopinion. We shall set up the respondent's position firsttoproperly frame the issue. Respondent maintains that unless the issueof child custody has actuallybeen "litigated" a Montana court isnot in fact precluded from looking tothe facts that existed atthe time of the originaldecree, litigating said issue and issuing a judgment thereon. Werecognize that a sizableminority of jurisdictionswould accept the proposition propounded by respondent, but



### aswillappear hereinafter,

### we reject it. In Stewart v. Stewart, 86 Idaho 108, 383 P.2d 617, the Supreme Court of Idaho stated: 

### " 

## * * * Where facts, affecting theirwelfare, existing atthe time of the divorce or awarding custody, arenot called tothe attention of the court, and particularly indefault cases where the issues affectingcustody have not been fully tried, the courtupon a proper application may consider allfacts and circumstances, including those existingprior toand atthe 

### timeof thejudgment of decree, inmaking a subsequent determination of custody." In King v. King, 25 Wis.2d 550, 131N.W.2d 357, 359, the Supreme Court of Wisconsin stated: "Since custody of the children 

### was granted upon the stipulationof the parties without testimony being taken on the issueand no finding of fitness was made, the court's determination isnot resjudicata nor does the rule of changed circum

# - stances apply. If the doctrine of 

## - res judicata applied in full force incustody cases, evidence of conduct occurring prior tothe time of the determination of custody would be excluded on a laterhearing. 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 doctrineof 

## - resjudicata isnot tobe applied tocustody matterswith strictnessbecause the rights of the child and of thepublic inthe 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 lineof authority. This Court stated in Simon v.Simon, 154Mont. 193, 197, 461 P.2d 851: "We have repeatedly held that custody of minor children should not be changed unless it can be shown thatthere

### was a substantial change incircumstances since the previous order was entered. As

### we set it forthinTrudgen v. Trudgen, 134 Mont. 174, 329 P.2d 225: "'Itisthe rule inthisjurisdiction that while "a decree fixing the custody of children 

### is finalupon the conditions then existing, when 

### it is shown that these conditions have changed, the court orjudge then has authority tomodify the originaldecree inrespect to them 

## * 

## * * Inproceedings of thisnature the welfare of the children 

### is the paramount consideration." Jewett v. Jewett, 73 Mont. 591, 595, 237 P. 702, 703. "'This rulewas stated for the full court more than a quarter century ago and was reiterated inBayers v. Bayers, supra, 129Mont. [l] atpage 6, 281 P.2d [506] atpage 509, where it 

### ispointed out that "otherwise eitherparent of a childor children could constantly harass the other with litigationnone of which would be conducive tothe 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 inthiscase, the considerations arethe same. The requirement for a finding of a change incircumstances is designed toprotect the person who has custody from the harassment of further litigation. Werecognize that this lineof reasoning would be inappropriate if appellant was in factunfit have custody. That

case isnot now before us. The district court, inboth thedecree of divorce and the order modifying custody, found that the appellant

### was a fitand proper person tohave the care, custody and control of Derek. We hold merely that, based upon the factsof thiscase, a showing of a substantialchange of circumstances should have been required before the districtcourt inquired into the custody issueon respondent's petition and that the district court erred inholding that, solelybecause the issue of custody

was not "litigated" in the prior divorce hearing, the custody issuecould be litigated afreshbefore him. We do not want tobe understood as implying that a substantial change incircumstanceswould be required asa threshold finding inevery factual situation before the issue of custody could be litigated on a petition tomodify custody. Although the case is not before us, 

### we would be receptive tothe proposition that a showing of unfitness on the part of the person having custody, or some other justifiable grounds, might sufficeand, despite a failure toshow a substantial change of circumstances, enable the district court toconsider the issue of custody on a petition tomodify custody. Appellant argues that respondent should not have been allowed tohave custody of her child subsequent tothe divorce without showing thatMark Svennungsen had been an unfit father and 

## -that there had been a substantial change of circunstances which would indicate that it would be inthe best interestof the child totransfer custody toher. Appellant cites Barham v. Barham, 127 Mont. 216, 259 P.2d 805, for the proposition that "even though themother had remarried there would be no change incustody without a finding that the child was being abused." Even though the trialjudge inBarham stated to counsel: "There is nothing to show the child isnat being cared for

# " * 

## *. " this Court's reason for affirmi~lg the Barham case was because this Court could not "say that the trialjudge in any wiseor

manner abused the discretion reposed inhim inmaking the order denying the motion tomodify the decree." Sarham, atp. 220. There isno 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 isunfit orhas abused the child. If this Court were torequire

a showing of unfitness on the part of the person who presentlyhas custody before a custody decree could be modified, it would result inthe situation that there could never be a change in custody if both parties were fitand proper persons tohave custody. As stated above, a snowing of unfitnessmay, in some situations, substitute for a change of circumstances. It will not, however, be required in addition toa showing of change of circumstances. The district court, in its findings of fact, found: 

### "5.

## * * * thatthe parties first separated in the 

### summer of 1972, and the agreement atthat time was that she was toget setup with a job, a place tolive, etc., and then she could have custody of the child, if her arrangements were satisfactory; that the arrangements of the mother were not satisfactorytothe father, she did not getcustody, and she returned tothe family residence tobe with the child; that almost immediately thereafter the divorce action was commenced; that again, it was decided that it would be inthe best interest of the child if he stayed with his father while themother got situated; that themother firmly believed that she was to have custody of the child after she had a job, a place tolive, etc.; that the father never intended that she have custody of thischild, but he led themother tobelieve that once she could provide adequate arrangements, inthe best interests of the child, then she would have custody

## * 

## * *." and in

### itsconclusions of law found: "1. That the parties agreed, atthe timeof the divorcebetween them, that themother was not then financially able totake the custody of the minor child of the parties, and support him in a manner thatwould be inthe best interests of the child; that the father led the mother tobelievethat once she secured adequate employment, had an adequate place tolive, and was otherwise ina position tofinancially take care of the minor child, that she would receive the custody of said child; that on that basis, she agreed that atthe time of the divorce, the custody should be given tothe father." Respondent contends thatbecause of this finding of fraud

on thepart of appellant, if forno other reason, the district court 

### wasjustified inhearing testimony on childcustody 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 arrangementwas 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." Themere 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, 154Mont. 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 ownmind, that her act of adultery would bar her fromhaving custody. Not only is there no showing of fraud, but the clear weight of the evidence is that respondentvoluntarily 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. 

### Imean, what Iam trying to say is I may not eat regularlymyself, and Imay not go to bed at 10:OO every night, but 

### I am positive thatwhen my son iswith 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 ismerely 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 transcriptwas 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'swelfare 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 theminor child of the parties 

## * * *.'I 

### and in its findingsof 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 respondentwas 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 tomodify that both parties are fit and proper persons to have custody.Inview of the foregoing, respondent'smotion to dismiss the appeal, based on the grounds that appellant "has failed to attack the findingsof 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 issuedetermines 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 

## - 10

## -