No. 84-241 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

IN RE THE CUSTODY OF 

KORRIE HOLM. 

APPEAL FROM: District Court of Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John M. McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

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: ! i iY85 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of 

the Court. 

On September 29, 1983, Robert Holm (Father) petitioned 

the District Court of the Eighth Judicial District, County of 

Cascade to grant him 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 a month. Robert appeals the denial of his motion for 

custody and the change in his child support obligation. We 

affirm the order of the District Court. 

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.obert petitioned for custody of his two children, alleging 

that Shirley's custody "endangers seriously their physical, 

mental, moral and emotional health." Following a hearing on 

March 3, 1983, Robert's petition 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 children were to stay with their father for the 

summer because the length and difficulty of the trip between 

Great Falls and Red Rock often precluded visitation during 
the winter. At Shirley's request, the children were returned 

to her on September 4, 1983, in time for Korrj-e to 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. Dee was to 

have travelled with Johnston to Canada the following day to 

pick up combine headers. When Dee decided not to go, Shirley 

accompanied him instead. 

Johnston, Shirley and Shirley's 3 1/2 year 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 the way to Canada and on the 

return trip. T. J. sat on his mother's lap. 

Approximately 15 miles north of Great 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 its wheels. 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 

believe Mr. Steyee to he intoxicated. However, after further 

investigation and blood tests, Mr. Steyee was 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 support of KORRIE 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 in back child support payments? 

Section 40-4-219(1), MCA, controls when a prior child 

custody decree may be modified: 

"40-4-219. Modification. (1) The court ma17 in 

its discretion modify a prior custody decree if it 

finds, upon the basis of facts that have arisen 

since the prior decree or that were unknown to the 

court at the time of entry of the prior decree, 

that a change has occurred i.n the circumstances of 

the child or his custodian and that the 

modification is necessary to serve the best 

interest of the child and if it further finds that: 

I' (a) the custodian agrees to the modif ica.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 

seriously his physical, mental, moral, or emotional 

health and the harm 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 the modification." 
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), 171 Mont. 49, 51, 554 P.2d 758, 

759. Likewise, the judge should only hear evidence which has 

arisen since the last petition to modify or which was unknown 

to the court at that time. To do otherwise would 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 

Divorce Act. 

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, it will 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's 
mothering 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 accident had no bearing on Korrie's safety. 

Virtually uncontradicted testimony of a social worker 

familiar with the family involved forms a solid base in 

support of a trial judge's conclusions regarding custody of a 

child. In re the Marriage of C.C.W. and H.M.W. (Mont. 1983), 

668 P.2d 1065, 1067, 40 St.Rep. 1455, 1458. Ms. Slade's 

testimony is supported by the testimony of several witnesses, 

including Pat Nowacki, Shirley's friend and neighbor. Ms. 

Nowacki is the mother of three children. She often exchanged 

babysitting services with Shirley. She considers Shirley to 

be a good mother, truly concerned about her child. 

Though Ms. Slade's testimony is not totally 

uncontradicted, it is not our function to resolve conflict in 

the evidence. The trial jud-qe has observed the demeanor of 

the witnesses and is in the better position to judge the 

credibility of those witnesses. In re the Narriage of C.C.W. 

and H.M.W., 668 P.2d at 1068, 40 St.Rep. at 1458. Brooks v. 

Brooks (1976), 1-71 Mont. 132, 134, 556 P.3.d 901, 902. The 

trial judge's failure to find Korrie'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 the majority of the time between March 

and September 1983 with them, to he 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 fourteen years of age and her 

mother adamantly opposes any modification in Korrie's custody 

arrangement. The decision of the trial judge not to modify 

the custody of Korrie Holm takes into account Korrie's best 

interests and is affirmed. 

Regarding the issue of child support, Robert contends he 

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.te that 

he in fact had notice of Shirley's request. The 

interroqa.tories involve 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-er issues 

raised for the first time on appeal. In re the Marriage of 

Glass (Mont. 1985), P.2d - , 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 circumstances 
so 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 changing Robert's child support obligation. 

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 been met. 

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 show delinquent payments 

totalling $1,000. 

Af firmed. 

We concur: - 7'