No. 81-198 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

IN RE THE MARRIAGE OF 

DENNIS P. CORBETT, 

Petitioner and Respondent, 

VS . 

SUSAN M. CORBETT, 

Respondent and Appellant. 

Appeal from: District Court of the Eleventh Judicial District, 

In and for the County of Flathead 

Honorable James M. Salansky, Judge presiding. 

Counsel of Record: 

For Appellant: 

Morales, Volinkaty & Harr, Missoula, Montana 

For Respondent: 

Robert B. Allison, Kalispell, Montana 

Daley, Sherlock & Nardi, Kalispell, Montana 

Submitted on briefs: October 1, 1981 

Decided: N OV 1 2 1981 

Filed: BO\I ' ;I . -$ 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This is an appeal by Susan M. Corbett Adler, the 

mother of two children, from an order granting her exhusband Dennis P. Corbett's motion for a modification of the 

divorce decree which changed the custody of two minor 

children from the mother to the father and denied her 

counterpetition for a modification seeking additional child 

support . 

The issues before this Court are: 

1. Whether the District Court applied the correct 

standards in making its decision to grant respondent's 

petition for a change of custody? 

2. Whether, even if the District Court applied the 

correct standards in making its decision to grant the 

respondent's request for a change of custody, there was 

sufficient evidence to support that decision? 

The parties to this action were married on October 

26, 1968, at Ronan, Montana. Two children were born of the 

marriage--namely, James Patrick Corbett, born March 25, 

1969, and Christine Marie Corbett, born April 17, 1972. The 

marriage was dissolved February 14, 1977, by the Honorable 

James M. Salansky, who is also the presiding judge in this 

modification proceeding. A property settlement agreement 

executed by the parties was incorporated in the decree of 

dissolution. In that agreement, and in the decree of 

dissolution, the mother was granted the care, custody and 

control of the two minor children with the father to have 

certain visitation rights. 

It should be noted that at the time the original 

ruling was made, the court had a report submitted by Tom 
Best, the director of family court services, on his 

investigation and recommendations. Best recommended Susan 

be awarded custody based upon the assumptions that Dennis 

was not in a position at that time to serve as a single 

parent and that Susan would move to Nashua, Montana, where 

she would reside with a brother on his ranch and would have 

his assistance in supervision of the children as we11 as 

continuous employment on the ranch. Best, in his report, 

recommended that temporary custody be placed in Susan so the 

court in Flathead County could maintain some control over 

the custody. One of the reasons given in his testimony 

concerning the temporary custody at the time of the original 

divorce was that Susan had been seriously injured in an 

automobile accident in 1969 and since that time had suffered 

a partial disability due to traumatic brain damage and had 

been subject to periodic epileptic seizures. 

The record indicates Susan resided only briefly with 

her brother in Nashua. She then returned with her children 

to her home community of Charlo, Montana, where she was 

residing at the time of the hearing. 

The court noted in its findings of fact that ordinar ily evidence of events and situations existing prior to 

the dissolution were inadmissible. In view of the above 

factors, however, the court determined the background would 

demonstrate the reasons for the original custody arrangement 

and deemed it relevant to the proceedings on custody modification. The evidence indicates Susan frequently left the 

children at home unattended during the years she had custody 

of them. In addition, several times when the children were 

with her Susan had some type of seizure and either had an 
automobile accident or was prevented from having one by the 

children in the car. There also was testimony, although 

controverted, that Susan had a problem of alcohol abuse that 

required treatment which she had either refused or had not 

obtained. She admitted that on a number of occasions she 

left the children unattended while she went to the bars to 

drink. Susan did submit to an evaluation by the Comprehensive Alcoholic Program in Ronan during these proceedings. 

She admitted having drinking episodes but denied she had an 

alcohol problem or was suffering any illness from alcohol 

abuse. 

During the summer of 1980, the children were with 

their father, Dennis, and his new wife. They returned to 

their mother in Charlo on approximately August 4 to get 

ready to go to school according to the parties' predissolution agreement. After having the children and observing 

them during the summer vacation, Dennis and his wife 

determined it was necessary to request a modification of the 

divorce decree and to obtain custody of the two children. 

The first hearing was held on August 29, 1980. Susan 

appeared pro se. Also present was an attorney who had been 

appointed by the court to appear for the children. Testimony 

was presented indicating the nature of Susan's problems 

including the epileptic seizures and the fact that money had 

been sent to the children by various members of their 

father's family but which they never received. Susan 

admitted she had used the money for other purposes. One 

check sent by a relative had been cashed at a tavern in 

Charlo. Susan introduced evidence that because there was no 
bank in Charlo, the bar was one of the few places where a 

check could be cashed. 

At the hearing , rebuttal testimony was presented 

concerning several calls made to Dennis and his wife, Linda, 

by David Adler, a friend of Susan, late in June 1980. 

During these telephone calls Adler told Dennis and Linda 

that Susan was an alcoholic, an unfit mother, left the 

children unattended, beat them with a belt, and that he also 

was an alcoholic. He offered to assist Dennis with legal 

fees to get the children away from Susan. 

Based on testimony at the hearing on August 29, the 

court granted temporary custody of the children to Dennis, 

requested that Susan be evaluated, and scheduled a full 

hearing on October 2, 1980. Counsel for Susan appeared on 

her behalf on September 11, 1980, and filed a motion for a 

modification and a counterpetition. 

At the October 2 hearing a number of additional 

witnesses were called by both parties. Thomas Best, the 

director of family court services, explained to the court 

why he had made his recommendations at the time of 

dissolution. He indicated that, in his opinion, "school is 

the best window of how the children are performing" in any 

given family situation. There was testimony by the 

principal of the Charlo school indicating that while both of 

the Corbett children were bright and had good school 

records, their grades had deteriorated during the last 

school year. 

David Adler, who had married Susan on July 15, 1980, 

testified that he had been drunk when he made the June 

telephone calls to Dennis accusing Susan of being unfit and 
an alcoholic. He stated that he had made the calls because 

he had quarreled with Susan and he was using the children as 

a pawn against the mother. At the October 2 hearing he 

testified that he did not feel Susan was a poor mother or an 

alcoholic, and he disavowed the things he said about her 

during the telephone calls. 

Both issues presented for review will be considered 

as one in our discussion upholding the action of the 

District Court. Section 40-4-219, MCA, sets forth the 

standards and guidelines in considering a motion to modify 

custody. Three subsections define when a change of custody 

can be granted: (a) the custodian agrees to the 

modification; (b) the child has been integrated into the 

family of the petitioner with the consent of the custodian; 

or (c) the child's present environment endangers seriously 

his physical, mental, moral, or emotional health, and harm 

likely to be caused by a change of environment is outweighed 

by the advantages to him. 

Subsection (a) is not at issue here because there is 

no agreement for a modification. Nor is subsection (b) at 

issue here. Appellant argues the judge mistakenly took the 

fact that the children were with their father for the summer 

visitation and later for approximately a month under the 

court's temporary custody to constitute an intergration into 

the father's home with the consent of the custodian. That 

is not what the district judge found. Nothing in his 

findings of fact and conclusions of law apply subsection (b) 

in this matter. This Court has previously ruled in Weber v. 

Weber (1978), 176 Mont. 144, 576 P.2d 1102, that summer 

visitation does not constitute integration into the 
noncustodial parent's family. What the District Court 

actually found here was that the children had adapted well 

to their father's home. 

This leaves us with the District Court's application 

of subsection (c) in changing the custody. That subsection, 

as noted above, requires the court to find upon the basis of 

facts there has been a change of circumstances since the 

original custody decree and that the modification is 

necessary in the best interests of the children. The 

statute also requires that the court find the child's 

present environment seriously endangers his physical, 

mental, moral or emotional health and that the harm likely 

to be caused by the change of environment is outweighed by 

the advantages to the child making the change. Here, the 

court found there was a change of circumstances; the court 

found an endangerment; the court found the harm likely to be 

caused by the change was outweighed by the advantages to the 

children and such change was in their best interests. The 

court applied the correct standards in making its decision, 

and we can find no abuse of discretion. 

This Court has said many times regarding the 

discretion of the District Court in child custody cases 

that: 

"In reviewing orders which affect the custody 

of the child, this Court is mindful that the 

primary duty of deciding the proper custody 

of children is a task of the District Court. 

Thus, all reasonable presumptions as to 

correctness of that determination will be 

made. No ruling will be disturbed absent a 

clear showing that the District Court's 

discretion was abused." Foss v. Leifer 

(1976), 170 Mont. 97, 550 P.2d 1309, 1311. 

Here the court made extensive findings that are 

clearly supported by the evidence, and we find no abuse of 
discretion. The decision of the District Court is affirmed. 

We concur: 

?A& Xj&MUzQQ Ahief Justice