No. 84-241 INTHE SUPREME COURT OF THE STATE OF MONTANA 1985

IN RE THE CUSTODYOF KORRIE HOLM.

APPEAL FROM: District Court of Eighth Judicial District, In and for the County of Cascade, TheHonorableJohnM. McCarvel, Judgepresiding.

COUNSELOF RECORD:

ForAppellant:

Howard F. Strause, Great Falls,Montana For Respondent:

Asselstine & Tadewaldt; Art Tadewaldt, Great Falls, Montana

Submitted on Briefs: Jan. 31, 1955

Decided: April 11, 1985

Filed: !

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## iY85Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of the Court. On September 29, 1983,Robert Holm (Father) petitioned theDistrictCourt of the Eighth Judicial District,County of Cascade to granthim custody of his daughter,Korrie Holm. A hearing was held on the motion Janua.ry 24, 1984, and the motion was denied on March 1,1984. In addition, the trial judge increased Robert's child support obligation from $150 to $300 amonth. Robert appeals the denial ofhismotion for custody and the change in his child support obligation. We affirm the order of the DistrictCourt. The marriage of Robert and Shirley Holm (Mother) was dissolved on February 23, 1982. The custody of the couple's two minor children,Korrie and Timothy (T. J.)

## ,was given to Shirley. They reside in Great Falls. Robert was given reasonable visitation rights and was ordered to pay $150 per month per child as child support. On January 12, 1983, R.obertpetitioned for custody of his two children, alleging that Shirley's custody "endangers seriously their physical, mental,moral and emotionalhealth." Following a hearing on March 3, 1983,Robert'spetition was denied. Robert did not appeal that order. Robert vacationed from April 1 until April 23 or 24, 1983. Pursua.nt to an agreement between the parents, the children stayed in Red Rock, Montana, with their father, his

new wife, Beverly, and her three-year-old daughter during that time. The children were then returned to Shirley until May 20, 1983, when Shirley requested Robert to again take custody. According to the testimony of both Beverly and. Shirley, the childrenwere to staywith their father for the

summer because the length and difficulty of the trip between Great Falls and Red Rock often precluded visitation duringthe winter. At Shirley's request, the childrenwere returned to her on September 4, 1983, in time for Korrj-eto attend school in Great Falls. On September 23, 1983, Shirley and. her friend, Dee Coyle, went to the J Bar T bar in Great Falls, where Dee apparently introduced Shirley to Thomas Johnston. Deewas to have travelled with Johnston to Canada the following day to pick up combineheaders. When Deedecided not to go, Shirley accompanied him instead. Johnston,Shirley and Shirley's 3 1/2year old son,T.J. left for Lethbridge, Canada, at 9:00 the next morning. Twelve miles out of town,Thomas Johnston's truck broke down. At Mr. Johnston's request, an individual unknown to Shirley, James Steyee, agreed to drive them to Canada. They arrived in Canada shortly after noon, loaded equipment onto the 20 foot flatbed trailer being pulled by Steyee's 1968 half ton pickup and returned to Great Falls. All the adults drank alcohol to some extent,both on theway to Canada and on the return trip. T. J. sat onhismother's lap. Approximately 15miles north ofGreat Falls, Steyee lost control of his pickup, overcorrected his steering and landed in the median. The pickup came to rest on its side, while the trailer flipped, landing on itswheels. T. J. was thrown from the pickup, crushed and killed. The investigating officer, William Coffman, testified at trial that the accident occurred when the trailer,which was overweighted to the rear, caused the rear of the pickup to rise off the pavement as the unit passed over swales, or bumps in the road. He further testified that he did not originally believeMr. Steyee to he intoxicated. However, after further investigationand blood tests,Mr. Steyeewas issued a ticket for driving while intoxicated.Shortly after T. J.'s death, Robert filed this action requesting custody of the couple's remaining child, Korrie Holm. Shirley's response contained the following: "3. The Court should increase the child support. Respondents need more than $150.00 per month for the supportofKORRIE and Petitioner is able to pay more than $150.00 per month child support." The trial judge heard evidence on the issue of child support at the January 24, 1984, hearing, and ultimately increased Robert's obligation to $300 per month. Relying on child support records from the Cascade County Clerk of Court's Office, he also ordered Robert to pay $1,000 in past due support. Robert appeals, raising the following issues: 1. Did the District Court err in denying Robert Holm's petition for change of custody? 2. Did the District Court err in increasing child support payments from $150 to $300 per month and.declaring $1,000 owing inback child supportpayments? Section 40-4-219(1), MCA, controls when a prior child custody decreemay be modified: "40-4-219. Modification. (1) The court ma17 in its discretionmodify a prior custody decree if it finds, upon the basis of facts that have arisen since the prior decree or thatwere unknown to the court at the time of entry of the prior decree, that a change has occurred i.nthe circumstances of the child or his custodian and that the modification is necessary to serve the best interestof the child and if it further finds that:

I' (a) the custodian agrees to the modifica.tion; "(b) the child has been integrated into the family of the petitioner with consent of the custodian; "(c) the child's present environment endangers seriouslyhis physical,mental, moral, or emotional health and theharm likely to be caused by a change of environment is outweighed by its advantages to him; or "(dl the child is 14 years of age or older and desires themodification."This section requires the trial judge to only consider facts which have arisen since the prior decree or that were unknown to the court at the time of that decree. In re the Marriage of Erhardt (1976), 171Mont. 49, 51, 554 P.2d 758, 759. Likewise,the judge should only hear evidence which has arisen since the lastpetition tomodify orwhichwas unknown to the court at that time. To do otherwisewould be contrary to the purpose of this section

## - the prevention of repeated attempts by the non-custodial parent to modify custody. See Commissioner's Notes to Section 409, Uniform Marriage and DivorceAct. We admonish counsel for both parties for their repeated references,both at the lower court level and on appeal, to evidence presented at the hearing on Robert's initial petition for modification of custody. That evidence is raised solely in an attempt to unduly prejudice the court. Like the trial judge before us, we ignore any evidence not properly before this Court. After considering the changes since March 3, 1983, in the circumstances of Korrie and her mother, including Shirley's remarriage in December 1983 and T. J.'s tragic death, the trial judge found Shirley to he a fit and proper person to have custody of her daughter,Korrie. As long 3s there is substantial credible evidence to support the decision of the trial judge, itwill be affirmed. In re the Marriage of Sarsfield (Mont. 1983)

## , 671 P.2d 595, 599, 40 St.Rep. 1736, 1739. The trial judge's refusal to find that Korrie's present environment endangers her welfare is substantiated by the testimony and reports of Pauline Slade, a social worker assigned to assist Shirley Holm since August of 1982. Ms. Slade testified that while under her supervision, Shirley'smothering skills continually progressed, as did her ability to handle stress. Ms. Slade and her supervisors decided to close Shirley's case in December of 1983, stating in their report that Shirley was no longer in need of their service because "there is no evidence to indicate that Korrie is at risk of being abused or neglected in her mother's care." Further,Ms. Slade testified that she believed T.J.'s death to be the result of a tragic accident and that she believed that accidenthad no bearing onKorrie's safety. Virtually uncontradicted testimony of a social worker familiar with the family involved forms a solid base in supportof a trial judge's conclusions regarding custody of a child. In re the Marriage ofC.C.W. and H.M.W. (Mont. 1983), 668 P.2d 1065, 1067, 40 St.Rep. 1455, 1458. Ms. Slade's testimony is supportedby the testimony of severalwitnesses, including Pat Nowacki, Shirley's friend and neighbor. Ms. Nowacki is themother of three children. She often exchanged babysitting services with Shirley. She considers Shirley to be a good mother, truly concerned abouther child. Though Ms. Slade's testimony is not totally uncontradicted, it is not our functionto resolve conflict in the evidence. The trial jud-qehas observed the demeanor of the witnesses and is in the better position to judge the credibilityof thosewitnesses. In re theNarriage of C.C.W. and H.M.W., 668 P.2d at 1068, 40 St.Rep. at 1458. Brooks v. Brooks (1976), 1-71Mont. 132, 134, 556 P.3.d 901, 902. The trial judge's failureto findKorrie's present environment to be harmful is affirmed. Next, we find Robert's assertion that Korrie has been integrated into his family, pursuant to 5 40-4-219(1-)(b)

## , MCA,because she spent themajority of the timebetweenMarch and September 1983with them, tohe erroneous. See Weber

### v.Weber (1978)

## , 176 Mont. 144, 147, 576 I?. 2d 1102, 1103-1104, where we held that vacations spent with the non-custodial parent do not result in integration into that parent's family

# . Neither of the remaining two alternatives for changing custody found in S 40-4-219(1)(a) and (d)

## ,MCA, are relevant to this case. Korrie is under fourteenyears of age and her mother adamantly opposes anymodification inKorrie's custody arrangement. The decision of the trial judge not to modify the custody 

### of Korrie Holm takes into account Korrie's best interestsand is affirmed. Regarding the issue of child support,Robert contendshe had no notice that Shirley would be requesting the trial judge to increase his child support payment. However, the interrogatories posed by Robert to Shirley demonstra.tethat he in fact had notice of Shirley's request. The interroqa.toriesinvolve questions pertaining to Shirley and her new husband.'^ income and expenses. Interrogatories of this nature are irrelevant to the issue of child custody but are rather pertinent to the issue of child support. Shirley's failure to follow local District Court Rule 67 concerning financial affidavits for support cases was not raised at the lower court level. We do not consid-erissues raised for the first time on appeal. In re the Marriage of Glass (Mont. 1985), P.2d 

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### , 42 St.Rep. 328, 333. This rule is especially pertinent where the issue involves adherence to the lower court's own rules of procedure. There is sufficient evidence to support the trial court

### 's increase in child. support payments. Section 40-4-208(2)(b)(i)

## ,MCA, controls when support provisions may be modified by requiring "a showing of changed circumstancesso substantial and continuing as to make the terms unconscionable." T.J.'s death reduced Robert's support obligation by $150. In light of the discrepancy between Robert's and Shi.rleyls incomes, the trial judge did not abuse his discretion in changingRobert's child supportobligation. The purpose of a support obligation is to make reasonable provisions for the parties' children. There is no evidence that Robert is less capable of making $300 a month payments than he 

### was at the time of the original custody and support decree. A balance between the needs of the children and the ability of the parties' to pay, as required by In re the Marriage of McNeff (Plont. 1983), 673 P.2d 473, 475, 40 St.Rep. 2050, 2052,has beenmet. Finally, there is no error in the court's order to Robert to make delinquent child support payments in the amount of $1,000. Robert was required to make the payments to the Clerk of the District Court, Cascade County,pursuant to § 40-4-206,MCA. Thus, the Clerk's records regarding the status of Robert's payments is the best evidence of any delinquent payments. Those records showdelinquent payments totalling $1,000. Af firmed.

We concur: -7'