No. 13487 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

RICHARD W. HOLM, 

Plaintiff and Appellant, 

ALLENA N. HOLM, 

Defendent and Respondent. 

Appeal from: District Court of the Thirteenth Judicial 

District, 

Honorable C. B Sande, Judge presiding. 

Counsel of Record: 

For Appellant: 

Beiswanger and Wilson, Billings, Montana 

Gary L. Beiswanger argued, Billings, Montana 

For Respondent : 

Berger, Anderson, Sinclair and Murphy, Billings, 

Montana 

Richard W. Anderson argued, Billings, Montana 

Submitted: January 25, 1977 

Decided: MAR 2 3977 

Filed: dlb,( 2 371 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

This is an appeal by the father of two minor girls 

from an order of the district court, Yellowstone County, changing their custody to their mother. 

The children of the parties are twin girls who were six 

years old at the time of their parents' divorce. On June 2, 

1975, their father was awarded a default divorce from their 

mother. The decree awarded custody of the girls to the father, 

with reasonable rights of visitation to the mother, pursuant 

to a written custody agreement so providing which was approved, 

confirmed and made a part of the decree. 

In October, 1975, the father and the two girls moved to 

Rapid City, South Dakota and have resided there continuously 

since that date. 

On October 20, 1975, the mother filed an affidavit seeking a change in custody to her based upon a change in circumstances of the parties since entry of the original decree four 

months previously. The affidavit alleged that at the time of 

the divorce the mother was in a physically and mentally debilitated 

condition as a result of surgery making her ability to care for 

the children doubtful; that she signed the custody agreement 

under these circumstances; and that she had since recovered 

and was physically capable of caring for the children. She also 

alleged the father's inability to care for the children. She 

sought an award of child support on change of custody to her. 

Following a hearing, the district court made a finding 

that the mother's application for change of custody was premature 

and denied it. The court's order further provided that " * * * 

This matter is continued for further consideration at a later 

date upon application of either party." 

On June 28, 1976, the mother filed a second affidavit 
and application for change of custody. This affidavit, in 

addition to the matters alleged previously, alleged further 

changes in circumstances consisting of her remarriage, her 

maintenance of a suitable home for the children, the willingness of her present husband to have the children in the home, 

her return to steady employment, and her further physical 

recovery. She again sought an award of child support on change 

of custody. 

Following denial of the husband's motion to dismiss for 

lack of jurisdiction, the district court held a hearing on the 

wife's application for change of custody. 

On August 4, 1976, the district court entered findings 

of fact, conclusions of law and an order changing custody to 

the mother and awarding her child support of $65 per month per 

child. 

In its findings the district court found that at the 

time the mother signed the custody agreement incorporated in the 

divorce decree she was in a physically and emotionally debilitated state; that at the time of the mother's first application 

for change of custody the court was of the opinion " * * * that 

[the mother] had in fact not fully recovered from her physical 

problems and was not yet restored to normal health and vitality" 

and that for these reasons, the court "entered an interim order" 

continuing custody in the father but invited further consideration 

of the matter at a later date upon application of either party; 

that the remarriage of the mother, establishment of a new home, 

her recovery from her physical impairments, and her return to 

work,finding she is physically able to meet the demands of her 

occupation and homemaking are material changes in circumstances 

from those existing at the time of the divorce. 

The court further found that it would be in the best 
interests of these female children approaching their eighth 

birthdays that their custody be placed with their mother. The 

findings state that " * * * This would not necessarily be the 

case if they were male children, where their interests and 

needs * * * would be more in keeping with [their father's] 

situation." and "Everything else being equal, however, and for 

well-known biological and emotional reasons, the Court determines that it would be in the best interests of these female 

children to have their primary guidance provided by their mother, 

who appears at this time to be a fit and proper mother." 

There are two issues assigned for review on appeal: 

(1) Did the district court have jurisdiction to entertain the mother's petition for change of custody? 

(2) Did the district court abuse its discretion in 

changing custody? 

The jurisdictional issue determines the outcome of this 

appeal. The Uniform Marriage and Divorce Act was enacted by the 

Montana legislature in 1975. Its effective date was January 1, 

1976. The provision of that Act pertinent to this appeal is 

codified as section 48-339, R.C.M. 1947, and reads: 

"Modification. (1) No motion to modify a custody 

decree may be made earlier than two (2) years after 

its date, unless the court permits it to be made 

on the basis of affidavits that there is reason to 

believe the child's present environment may endanger seriously his physical, mental, moral, or 

emotional health. 

"(2) The court shall not modify a prior custody 

decree unless 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 in the 

circumstances of the child or his custodian, and 

that the modification is necessary to serve the 

best interest of the child. In applying these 

standards the court shall retain the custodian 

appointed pursuant to the prior decree unless: 

"(a) the custodian agrees to the modification; 

"(b) the child has been integrated into the family 
of the petitioner with consent of the custodian; 

or 

"(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. 

"(3) Attorney fees and costs shall be assessed 

against a party seeking modification if the court 

finds that the modification action is vexatious 

and constitutes harassment." 

Subsection (1) above specifically bars an application 

for change of custody within 2 years of an existing custody award, 

subject to an exception not pertinent to this case. Here the 

original custody award was made on June 2, 1975; the application for change of custody was filed on June 28, 1976; and the 

order granting the change of custody was entered on August 4, 1976. 

The district court lacked jurisdiction to change custody less 

than 14 months after the original custody award based on the best 

interests of the children where, as here, it specifically found 

that the custodian " * * * is and has been a fit and proper 

father. " 

The rationale behind this provision is expressed in this 

language in the Comment of the Committee which acted for the 

National Conference of Commissioners on Uniform State Laws in 

promulgating the Uniform Marriage and Divorce Act: 

"Most experts who have spoken to the problems of 

post-divorce adjustment of children believe that 

insuring the decree's finality is more important 

than determining which parent should be the custodian. See Watson, The Children of Armageddon: 

Problems of Custody Following Divorce, 21 Syracuse 

L.Rev. 55 (1969). This section is designed to 

maximize finality (and thus assure continuity for 

the child) without jeopardizing the child's interest. Because any emergency which poses an immediate threat to the child's physical safety usually 

can be handled by the juvenile court, subsection 

(a) [subsection 1 of section 48-339, R.C.M. 19471 

prohibits modification petitions until at least 

two years have passed following the initial decree, 

with a 'safety valve' for emergency situations. 

To discourage the noncustodial parent who tries to 

punish a former spouse by frequent motions to 
modify, the subsection includes a two-year waiting period following each modification decree. 

During that two-year period, a contestant can get 

a hearing only if he can make an initial showing, 

by affidavit only, that there is some greater 

urgency for the change than that the child's 

'best interest' requires it. During the twoyear period the judge should deny a motion to 

modify, without a hearing, unless the moving party 

carries the onerous burden of showing that the 

child's present environment may endanger his 

physical, mental, moral, or emotional health." 

(Bracketed material supplied. ) 

This rationale is persuasive. It makes sense. It explains the purpose, intent, and operation of the statute. We 

adopt it. 

Subsection (2) of section 48-339, R.C.M. 1947, also 

denied jurisdiction to the district court to change custody. 

It requires the district court to retain the prior custodian 

unless he agrees to the modification, or the child has been 

integrated into the family of the petitioner with the consent 

of the custodian, or the child's present environment seriously 

endangers his physical, mental, moral, or emotional health to 

an extent where the harm to the child from a change in custody 

is outweighed by its advantages to the child. None of these 

conditions is present in this case. For the rationale and application of this subsection see Commission Comment, National 

Conference of Commissioners on Uniform State Laws, Uniform Marriage 

and Divorce Act, approved and recommended at its Annual Conference, 

August 1-7, 1970, with amendments approved August 27, 1971 and 

August 2, 1973. 

The mother argues that the Uniform Marriage and Divorce 

Act has no application to this case. She contends that her modification proceeding was initiated prior to its adoption, continued for further consideration at a later date, and the prior 

law governs this proceeding. 

We cannot agree with this contention. Although her 
original application and the district court's order thereon 

occurred prior to the effective date of the Act, the district 

court held her application premature and denied it. While it is 

true that the district court at that time provided that " * * * 

this matter is continued for further consideration at a later 

date upon application of either party", it amounted to no more 

than an expression of the district court's continuing jurisdiction over child custody. The second custody hearing was 

based on another application for change of custody after the Act 

became effective and alleged a change in circumstances based in 

part on events that had occurred following the effective date 

of the Act. Under these circumstances we hold that the mother's 

application for change of custody is governed by the Act. 

The order of the district court of Yellowstone County 

changing custody dated and filed on August 4, 1976, is vacated 

for lack of jurisdiction. This cause is remanded to the district 

court for determination of whether attorney's fees should be 

awarded the husband pursuant to the provisions of section 48- 

339 (3), R.C.M. 1947. 

Justice 

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Justices 

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