No. 13193 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1976 

CHERYL LEIFER FOSS , 

Appellant and Petitioner, 

-vs - 

JAMES T. LEIFER, 

Respondent. 

Appeal from: District Court of the Fifth 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 

custody provisions 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. 

Leifer were married in the city of Butte, Montana, in November 

1968. Their son Christopher Lance Leifer was 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 reasonable visitation by respondent. The court 

ordered respondent to pay child support in the amount of $100 

per month. Respondent has never defaulted-in paying the child 

support payments . 

Respondent made no attempt to contest the provisions of 

the divorce decree at the time. Shortly after the divorce 

respondent moved to the state of Michigan and later to Pullman, 

Washington, where he spent approximately eighteen months 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, respondent was 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, appellant was employed at several 

local financial institutions in the city of Butte. She was 

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 living with appellant and 

her son Lance. In early January 1975, appellant began to date 
Richard Foss. He moved into appellant's home several weeks later. 

They were subsequently married. 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 to petition for modification 

of the divorce decree shortly after receiving a letter from his 

ex-wife informing him that she and Foss had begun living together. 

In his petition respondent alleged that circumstances bearing a 

direct relationship to the best interests of his child had 

materially changed since the date of the divorce decree in that: 

"a. * * * the spiritual and moral atmosphere in 

the home has deteriorated to a state wherein the 

issue of the parties hereto, Christopher Lance Leifer, 

will be materially affected and altered. 

"b.Jc * * the plaintiff in the above captioned matter 

is residing with a male who is not the spouse of the 

above named plaintiff and the presence of this individual has aided and contributed. to the moral decline 

and decay of the atmosphere in which the minor party 

of the parties hereto must reside. I I 

The parties agreed by stipulation that the matter be heard in 

the eighth judicial 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 to meet the needs of Lance Leifer and is the parent 

most likely to see the needs of Lance Leifer are met." and 

granted respondent's petition. 

In Montana it has been firmly established that the court's 

jurisdiction in matters of custody is of a continuing nature. 

Barbour v. Barbour, 134 Mont. 317,,330 P.2d 1093; Libra v. Libra, 

154 Mont. 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 to modify a prior custody decree unless two basic elements are shown to exist: 1) new facts or facts 

unknown to the court at the time the initial decree was entered 
demonstrate that a change has 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 standard was 

applied in this jurisdiction long before the enactment of the 

new law, and a determination of which law would be applicable 

under the facts presented would have no bearing on the result. 

Jewett v. Jewett, 73 Mont. 591, 237 P.702; Trudgen v. Trudgen, 

134 Mont. 174, 329 P.2d 225; Simon v. Simon, 154 Mont. 193, 

461 P.2d 851. 

Here, the issue to be decided is whether the district 

court, in granting the petition for modification, abused its 

discretion. Although no specific finding to this effect appears 

in the order, such judicial action must inherently be predicated 

on the conclusion that a change in circumstances had occurred 

sufficient to endanger the welfare 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 determination will be made. No ruling will 

be disturbed absent a clear showing the district court's discretion was abused. In re Corneliusen et al., 159 Mont.6, 494 

P.2d 908; State ex rel. Veach v. Veach, 122 Mont. 47, 195 P.2d 

697; Ex parte Bourguin, 88 Mont. 118, 290 P. 250; In re Thompson, 

77 Mont. 466, 251 P. 163. 

It is elemental that the phrase "change in circumstances" 

is a term of art which 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, 340 
P.2d 829; Haynes v. Fillner, 106 Mont. 59, 75 P.2d 802. In 

all cases, the lodestar of the district court in exercise of its 

discretion is the welfare and best interests of the child, and 

not the parent. Grant v. Grant, 166 Mont. 229, 531 P.2d 1007, 

32 St.Rep. 191; In re Adoption of Biery, 164 Mont, 353, 522 P. 

2d 1377; Turk v. Turk, 164 Mont. 35, 518 P.2d 804. 

In the instant case the pleadings and testimony offered 

at hearing suggest the issue to be decided should be considerably 

narrowed. The record is replete with evidence that both parties 

to this action are well-qualified to be fit and 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 to do all that is necessary to provide 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 to her 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 to the effect 

that appellant was an unfit parent. Reports concerning both 

parties were requested and furnished to the district court by a 

clinical psychologist. These reports show a conspicuous absence 

of the types of adverse psychological factors which, 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 to develop due to a rather loosely defined "learning 

disability". The prognosis concerning this problem was described 

in the record as good, and the record fails to substantially connect 

the problem to the home environment. 
The clinical psychofogist testified: 

"A. * 9: * I think this youngster has a natural 

difficulty coping with change, coping with a 

great many pieces of information which might be - 

given to him at one time * * *. 

"Q. Would the fact that your report said Mrs. 

Foss, formerly Mrs. Leifer had some guilt feelings 

about her past and about her family * * affect a 

child? A. It could. But in this case 1 do not 

think it does to any marked degree." (Emphasis supplied.] 

The fact that a parent allows her paramour to live with 

her for a short time before their marriage does not, by itself, 

? 1 constitute a change in circurnstances" 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 the matter. They are 

almost unanimous in holding that such conduct may be the basis 

for a change in custody only upon a showing that the children have 

in some way been adversely affected. Christensen v. Christensen, 

31 Ill.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 the Washington 

State Supreme Court speaking through Justice Farris in Wildermuth 

v. Wildermuth, 14 Wash.App. 442, 542 P.2d 463, 466: 

"We find that the controlling statute requires more 

than a showing of illicit conduct 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 from which the trier 

of fact can reasonably conclude that the child's environment is detrimental to his or her physical, mental, or 

emotional health and, further, that the harm likely to be 

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 is devoid of evidence to reasonably establish 

that the conduct of the custodial parent caused a "moral decline" 

in the home which has either materially or adversely affected the 

well-being of the minor child. Further, the record establishes that 

progress concerning the child's aforementioned learning disability 
might be interrupted by a geographical change of residence, 

indicating that change must be clearly justified to promote 

the child's best interests. 

Returning to the issue of abuse of discretion on the 

part of the district judge in modifying the divorce decree, 

we consider first whether any change of circumstances has 

occurred which affects the best 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 to change custody 

without a finding of changed circumstances. 

The order of the district court modifying and awarding 

custody to respondent 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 its judgment 

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

22e&.&SAJustice. 

Mr. Arnold Olsen, District Judge, sitting for Chief Justice 

James T. Harrison, dissenting: 

I agree with the foregoing dissent of Mr. Justice 

/ 

Frank I. Haswell. 

Chief Justice James T . Harrison.