140. 53-109 

IN THE SUPREME COURT OF THE STATE OF MO>ITANA 

1983 

IN RE THE MARRIAGE OF 

C.C.W., 

Petitioner and Appellant, 

and 

H.M.W., 

Respondent and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable William J. Speare, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Keefer, Roybal, Hanson, Stacey & Jarussi; Calvin J. 

Stacey, Billings, Montana 

For Xespondent: 

Craig R. Buehler, Lewistown, Montana 

Zones, Jones & Work, Billings, Montana 

Submitted on Briefs: June 30, 1983 

Decided: September 8, 1983 

Filed: 

SEP 8 - 1983 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

C.C.W. (mother) appeals from the modification award of 

the District Court of Yellowstone County granting custody of 

three minor children to H.M.W. (father). Inititally 

pursuant to agreement, custody of the children had been 

awarded to the mother. We affirm the District Court. 

The marriage between husband and wife was terminated by 

decree of dissolution dated October 18, 1976, incorporating 

the separation agreement of the husband and wife. Custody of 

the three minor children, together with a fourth child not 

involved in this proceeding, was awarded to the mother with 

reasonable visitation rights to the father. In August 1980, 

the father filed a motion with the District Court requesting 

modification of the custody arrangement. Hearing was held on 

March 12, 1981, a.nd the testimony of a number of witnesses 

was presented in behalf of both parties. The District Court 

entered its findings of fact and conclusions of law and 

determined that custody of the three minor children should be 

placed with the father. The determination of the District 

Court was appealed to this Court, which remanded the case to 

the District Court for the entry of findings of fact 

sufficient to resolve the conflicts in the evidence. Amended 

findings of fact and conclusions of law were entered by the 

District Court on January 18, 1983, based upon the evidence 

originally submitted in March 1981. 

The issues are: 

(1) Did the evidence establish the change in 

circumstances required under section 40-4-219, MCA? 

(2) Did the evidence establish that the environment 

with the mother seriously endangered the physical, mental, 

moral or emotional health of the children as required under 

section 40-4-219, MCA? 
Counsel for mother presents an extensive review of the 

testimony submitted in behalf of both the mother and the 

father. In doing so, counsel emphasizes that the witnesses 

testifying for the mother contradicted the witnesses 

testifying for the father on a great many essentials 

necessary to prove the father's case. Because of the 

conflict in the testimony, mother's counsel suggests that 

there has been a failure to show the change in circumstances 

required for jurisdiction. We agree there are many conflicts 

in the testimony, but disagree with the conclusion on the 

part of counsel. 

The standard of review of the evidence by this Court is 

stated in Jensen v. Jensen (19811, Mont., 629 P.2d 765, 768, 

"This Court will not substitute its judgment for 

that of the trier of fact. We will consider only 

whether substantial credible evidence supports the 

findings and conclusions. Findings will not be 

overturned unless there is a clear preponderance of 

evidence against them, recognizing that evidence 

may be weak or conflicting, yet still support the 

findings." 

The same limited standard of review is set forth in Nicolai 

v. Nicolai (1981), Mont., 631 P.2d 300, 303, 38 St.Rep. 1100, 

1103, where we pointed out that findings of a district court 

may not be set aside unless they are clearly erroneous under 

Rule 52 (a) , M.R.Civ.P. We consider only whether substantial 

credible evidence supports the findings and will not overturn 

the findings unless there is a clear preponderance of 

evidence against them. "The trial court's decision 

concerning child custody will not be disturbed unless there 

is a clear abuse of discretion." In Re Marriage of McLean 

(1980), Mont., 609 P.2d 282, 284, 37 St.Rep. 589, 591. 
The challenged findings of fact are: 

Since the entry of the prior decree, changes have 

occurred in the circumstances of the mother in that 

she does not properly care for the children. 

The children have been inadequately provided with 

clothing, endangering their physical health, 

including not having proper shoes and coats in the 

winter. 

The children's emotional, moral and mental health 

has been endangered by the mother's constant 

association with several different violent, 

alcoholic males. 

VII. 

The children's physical health is threatened by the 

lack of cleanliness in the home as well as the 

mother's failure to keep the children and their 

clothing clean. 

VIII. 

The mother's failure to adequately supervise the 

children in personal hygiene has resulted in severe 

tooth decay and other health problems." 

In addition, the District Court found that the father and his 

present wife desire the custody of the children and have a 

stable and comfortable environment. 

The first issue is whether the evidence established the 

change in circumstances required under section 40-4-219, MCA. 

While the findings are not detailed, a significant change is 

noted in that the mother does not properly care for the 

children and has inadequately provided them with clothing, 

endangering their physical health. In addition, change is 

shown in that the emotional, moral and mental health of the 

children has been endangered because of the mother's constant 

association with several different violent, alcoholic males. 

Last, the lack of cleanliness is an indication of a change 

from the original agreed capacity of the mother. Considered 
together, these findings, if supported by the evidence, are 

sufficient to meet the statutory requirement of change in 

circumstances. 

The second issue is whether the present environment 

endangers the physical, mental, moral or emotional health of 

the children. Again, while the findings are not detailed, 

they do contain sufficient facts upon which to base the 

conclusion reached by the District Court if there is 

sufficient evidence in the record to sustain the findings. 

While the record does show contradictory testimony by a 

number of the witnesses testifying for the mother as compared 

to the father, it is important to consider the testimony and 

report of the Yellowstone County social worker involved in 

this case. She had approximately 15 years of experience. 

She conducted five personal interviews with the mother, three 

interviews with the father, interviews with approximately ten 

of the persons in the schools attended by the minor children, 

interviews with the family dentist and family doctor, an 

interview with the counselor who knew both parties, and an 

interview with personnel in the Sheriff's Department. She 

was aware that modification of custody could be made only 

after a showing that the physical, mental, moral or emotional 

health of the children would be harmed and that the harm 

caused by the change of environment should be outweighed by 

the advantages of the change. She prepared a comprehensive 

and well documented nine-page report and testified 

extensively on both direct and cross-examination. Her report 

and testimony clearly established that there had been a 

change in the circumstances of the mother and that there was 

a factual basis for findings VI, VII and VIII of the District 

Court. Her conclusion was that a modification of custody was 

proper. She recommended that the custody of the three 
children be changed from the mother to the father. While 

some parts of the testimony of other witnesses for the father 

were contradicted in part, there is more than sufficient 

evidence to establish a factual basis for findings IV and V, 

that the children lacked proper care and had been 

inadequately provided with clothing, endangering their 

physical health. 

We emphasize the evidence on the part of the social 

worker because much of her testimony is uncontradicted and 

forms a solid base for the conclusions reached by the 

District Court. We need not review the balance of the 

evidence most favorable to the father. We only point out 

that there is substantial evidence to support the contentions 

of the father and the social worker, as well as to support 

the District Court's findings. Even though parts of that 

testimony are contradicted by other testimony on the part of 

the mother, we emphasize that the credibility and weight of 

such conflicting evidence is within the province of the trier 

of fact. Matter of Custody of R.L.S. (1981), Mont., 632 P.2d 

703, 706, 38 St.Rep. 1328, 1332, citing Rankin v. Ferriter 

(1969), 76 Wash.2d 533, 537, 458 P.2d 176, 179. 

We conclude there is substantial evidence to establish a 

change in circumstances of the children and their custodian, 

and that the children's environment with the mother seriously 

endangered their physical, mental, moral or emotional health. 

We affirm the District Court. 
We concur: 

%& &,QdL4@ Chief Justice