No. 13193 INTHE SUPREME COURT OF THE STATE OF 

### MONTANA 1976

CHERYL LEIFER FOSS

## ,Appellant and Petitioner,

-vs

# - JAMES T. LEIFER, Respondent.

Appeal from: District Court of theFifth Judicial District, Honorable R. J. Nelson, Judge presiding. Counsel of Record: For Appellant: Jardine, Stephenson, Blewett and Weaver, Great Falls,

Montana K. Dale Schwanke argued, Great Falls, Montana For Respondent

### : Swanberg, Koby, Swanberg and Matteucci, Great Falls,

Montana Brett C. Asselstine argued, Great Falls, Montana

Submitted: April 19, 1976 Decided :

## &Fib!14'i976.

### Mr. Justice John Conway Harrison delivered the Opinion of the Court.
This appeal concerns a petition seeking to modify child custodyprovisions contained in a decree of divorce granted to appellant on August 10, 1972. The judgment appealed from is that of the district court, Jefferson County, entered December 17, 1975. Appellant Cheryl Leifer Foss and respondent James T. Leiferwere married in the city of Butte,Montana, inNovember 1968. Their son Christopher Lance Leiferwas born the following year. The divorce decree provided,inter alia,that appellant should have the care, custody and control of the child, subject to the right of reasonablevisitationby respondent. The court ordered respondent to pay child support in the amount of 

### $100 per month. Respondent has never defaulted-inpaying the child support payments

# . Respondent made no attempt to contest the provisions of the divorce decree at the time. Shortly after the divorce respondentmoved to the state of Michigan and later to Pullman, Washington, where he spent approximately eighteenmonths completing requirements necessary to obtain a Master's degree. Following his graduation respondent became employed in Yakima, Washington. At the time of the hearing on the petition for modification, respondentwas contemplating the prospect of a transfer on his employer's behalf to Hermiston, Oregon. It is our understanding that he has now made that move. Following her divorce, appellantwas employed at 

### several local financial institutions in the city of Butte. Shewas transferred by her employer to Great Falls in May 1974. She gave birth to a second child in September 1973,and at the time this matter was heard, the child was livingwith appellant and her son Lance. In early January 1975, appellant began to dateRichard Foss. He moved into appellant'shome several weeks later. They were subsequentlymarried. Several months after the marriage, appellant was able to terminate her employment to devote more time to the care of her two children. Respondent commenced the action topetition formodification of the divorce decree shortlyafterreceiving a letter from his ex-wife informing him that she and Foss had begun living together. In his petition respondent alleged that circumstancesbearing a direct relationship tothebest interests of his childhad materially changed since the date of the divorce decree in that: "a. 

# *

# ** the spiritual and moral atmosphere in the home has deteriorated toa statewherein the issue of the parties hereto, Christopher Lance Leifer, willbe materially affected and altered. "b.Jc 

# ** the plaintiff in the above captioned matter 

### isresiding with a male who isnot the spouse of the above named plaintiff and the presence of this individual has aided and contributed.to themoral decline and decay of the atmosphere inwhich the minor party of the parties hereto must reside. II The parties agreed by stipulation that the matter be heard in the eighthjudicial district, Cascade County, and a two-day hearing commenced on October 16, 1975. The district court

11 found respondent was best suited and motivated morally and emotionally tomeet theneeds of Lance Leifer and 

### is the parent most likely to see the needs of Lance Leifer aremet." and granted respondent's petition. In Montana it has been firmly established that the court's jurisdiction inmatters of custody 

### is of a continuing nature. Barbour v. Barbour, 134Mont. 317,,330P.2d 1093; Libra v. Libra, 154Mont. 222, 462 P.2d 178. This concept also controls under the recently enacted Uniform Marriage and Divorce Act, section 48- 339, R.C.M. 1947, which clearly provides district courts may not exercise discretionary power tomodify a prior custody decree unless two basic elements are shown to exist: 1)new facts or facts unknown to the court atthe time the initialdecreewas entered

### demonstrate that a changehas occurred in the circumstances of the child or those of his custodian;and 2) this change is sufficient to warrant a modification in order to promote the particular child's best interests. This basic standardwas applied in this jurisdiction long before the enactment of the

new law,and a determination ofwhich lawwould be applicable under the facts presented would have nobearing on the result. Jewett v. Jewett, 73 Mont. 591, 237 P.702; Trudgen v. Trudgen, 134Mont. 174, 329 P.2d 225; Simonv. Simon, 154Mont. 193, 461P.2d 851. Here, the issue to be decided is whether the district court, in granting the petition formodification, abused its discretion. Although no specific finding to this effect appears in the order, such judicial action must inherentlybe predicated

on the conclusion that a change in circumstances had occurred sufficient to endanger thewelfare of the child to support the modification order. In reviewing orders which affect the custody of a child, this Court is mindful that the primary duty of deciding the proper custody of children is the task of the district court. Thus, all reasonable presumptions as to the correctness of that determinationwill be made. No rulingwill be disturbed absent a clear showing the district court's discretionwas abused. In re Corneliusen et al., 159Mont.6, 494 P.2d 908; State ex rel. Veach v. Veach, 122Mont. 47, 195 P.2d 697;

### Ex parte Bourguin, 

### 88 Mont. 118, 290 P. 250; In re Thompson, 77Mont. 466, 251 

### P. 163. It is elemental that the phrase "change in circumstances" is a term of artwhich must not be considered in a vacuum. No change in circumstances,regardless of its substantiality, is legally sufficient to support a modification order altering custody unless the best interests and general welfare of the child will be promoted. Altmaier v. Altmaier, 135 Mont. 

### 404, 340P.2d 829; Haynes v. Fillner, 106Mont. 59, 75 P.2d 802. In allcases, the lodestar of the district court in exercise of 

### its discretion 

### is thewelfare and best interests of the child, and not the parent. Grant 

### v. Grant, 166Mont. 229, 531P.2d 1007, 32 St.Rep. 191; In reAdoption of Biery, 164Mont, 353, 522 P. 2d 1377; Turk v. Turk, 164Mont. 35, 518 P.2d 804. In the instant case the pleadings and testimony offered athearing suggest the issue tobe decided should be considerably narrowed. The record 

### isrepletewith evidence that both parties to this action arewell-qualified tobe fitand proper parents to Christopher Lance Leifer. Respondent 

### is a well-educated individual with promising and steady employment, The record amply demonstrates the affection respondent has for his son and his willingness todo allthat 

### isnecessary toprovide him with an environment conducive to a happy childhood and the development of a well-adjusted adulthood. Investigations made by the Department of Social and Rehabilitation Services establish that appellant 

### is a capable and enthusiastic mother toher two children, and that her present husband 

### is qualified to adopt the children. Neither party seriously challenges the general fitness of the other regarding parenthood. The district court made no finding tothe effect that appellant was an unfit parent. Reports concerning both partieswere requested and furnished tothe district courtby a clinicalpsychologist. These reports show a conspicuous absence of the types of adverse psychological factorswhich, if possessed by either party, might tend to affect unfavorably the well-being of the child. The record does show that the child has been somewhat slow todevelop due to a rather loosely defined "learning disability". The prognosis concerning this problem was described in therecord as good, and the record fails to substantially connect the problem tothe home environment.The clinicalpsychofogist testified: "A. 

# * 9:

# * I think this youngster has a natural difficultycopingwith change, copingwith a great many pieces of information which might be - given tohim at one time

# **

# *. "Q. Would the fact that your report saidMrs. Foss, formerly 

### Mrs. Leifer had some guilt feelings about her past and about her family

# ** affect a child? A. It could. But inthis case 

### 1 do not think it does to any marked degree." (Emphasis supplied.] The fact that a parent allows her paramour to livewith her for a short time before theirmarriage does not, by itself,

?1 constitute a change incircurnstances" sufficient to support the granting of a custodial modification order. This Court has never specifically decided this precise issue. But a number of recent

cases from other jurisdictions have examined thematter. They are almost unanimous inholding that such conduct may be the basis for a change incustody only upon a showing that the children have in some way been adversely affected. Christensen 

### v. Christensen, 31Ill.App.3d 1041, 335 N.E.2d 581; Van Buskirk 

### v. Van Buskirk, 19 Ill.App.3d 647, 312 N.E.2d 395; Christian v. Randall, 33 Colo.App. 129, 516 P.2d 132; Howland v. Howland, (1nd.App. 1975), 337 N.E.2d 555. Of particular relevance 

### is the language of theWashington State Supreme Court speaking through Justice Farris inWildermuth

v. Wildermuth, 14Wash.App. 442, 542 P.2d 463, 466: "We find that the controlling statuterequires more

than a showing of illicitconduct by the parent who has custody. There must be a showing of the effect of that conduct upon the minor child or children. 

# *** Unless the record contains evidence fromwhich the trier of fact can reasonably conclude that the child's environment 

### is detrimental tohis orher physical, mental, or emotional health and, further, that the harm likely tobe caused by 

### a change of environment 

### is outweighed by the advantage of a change to the child,the court errs 

### in entering an order changing custody." Here, the record isdevoid of evidence toreasonably establish that the conduct of the custodial parent caused a "moral decline" inthe home which has eithermaterially or adversely affected the well-being of the minor child. Further, the record establishes that progress concerning the child's aforementioned learning disabilitymight be interruptedby a geographical change of residence, indicating that change must be clearlyjustified topromote the child's best interests. Returning to the issue of abuse of discretion on the part of the districtjudge inmodifying the divorce decree,

we consider firstwhether any change of circumstances has occurred which affects thebest interests and general welfare of the child. No change of substance appears from the record. The district court found no lack of fitness of the mother. There simply appears no evidence upon which the district court could /fund such a lack of fitness including love, affection and care. Thus, this amounts to an abuse of discretion tochange custody without a finding of changed circumstances. The order of the district court modifying and awarding custody torespondent 

### is set aside.

We Concur:

Justices



### -- 

## - Hon. Arnold Olsen, District Judge sitting for Chief Justice James T. Harrison.Mr. Justice Frank I. Haswell dissenting:

I find substantial credible evidence in the record supporting the custody award of the district court. In my view, the majority here has simply substituted itsjudgment

on custody for that of the district court contrary to law. 

# 22e&.&SAm Justice.

Mr. Arnold Olsen, District Judge, sitting for Chief Justice James T. Harrison, dissenting: I agreewith the foregoing dissent of Mr. Justice 

# / Frank I. Haswell.

Chief Justice James T

# .Harrison.