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: ForAppellant: 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:

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## 2 371Mr. JusticeFrank I. Haswelldelivered the Opinion of the Court.

This is an appeal by the father of two minor girls from an order of thedistrictcourt, Yellowstone County, changing their custody totheirmother. The children of the parties are twin girlswho were six years old atthe timeof their parents' divorce. On June 2, 1975, their fatherwas awarded a default divorce from their mother. The decree awarded custody of the girlstothe father, with reasonable rights of visitation tothemother, pursuant toa written custody agreement soproviding which was approved, confirmed and made a part of the decree. In October, 1975, the father and the two girlsmoved to Rapid City, South Dakota and have resided there continuously sincethat date. On October 20, 1975, themother filed an affidavit seeking a change incustody toher based upon a change incircumstances of theparties since entry of the original decree four months previously. The affidavit alleged that atthe timeof thedivorce themother was ina physically and mentally debilitated condition as a result of surgerymaking her ability tocare for the children doubtful; that she signed the custody agreement under these circumstances; and that she had sincerecovered and was physically capable of caring for the children. She also alleged the father's inability tocare for the children. She sought an award of child support on change of custody toher. Following a hearing, the district courtmade a finding that themother's application for change of custody was premature and denied it. The court's order further provided that 

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## * Thismatter iscontinued for further consideration ata later dateupon application of eitherparty." On June 28, 1976, themother fileda second affidavitand 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, thewillingness of her present husband to have the children in the home, her return to steady employment, and her furtherphysical recovery. She again soughtan award of child support on change of custody. Following denial of the husband'smotion 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 themother and awarding her child support of $65per month per child. In its findings the district court found that at the time themother signed the custody agreement incorporated in the divorce decree shewas in a physically and emotionallydebilitated state; that at the time of themother's first application for change of custody the courtwas of the opinion 

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## * * * that [themother] 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 thematter at a later date upon application of either party; that the remarriageof themother, establishmentof 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 arematerial changes in circumstances from those existing at the time of the divorce. The court further found that it would be in the bestinterests of these female children approaching their eighth birthdays that their custody be placed with their mother. The findings state that 

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## * * Thiswould not necessarily be the

case if theyweremale 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 itwould be in the best interests of these female children to have their primary guidance provided by theirmother, who appears at this time to be a fit and proper mother." There are two issues assigned for reviewon appeal:

(1) Did the district court have jurisdiction to entertain themother'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 thatAct pertinent to this appeal is codified as section 48-339,R.C.M. 1947,and reads: "Modification. (1) No motion to modify a custody decreemay be made earlier than two (2)years after its date, unless the courtpermits it to be made on the basis of affidavits that there is reason to believe the child's present environmentmay 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 themodification 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 familyof 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 isvexatious and constitutesharassment." 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 custodywas entered onAugust 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 

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## * * * is and has been a fit and proper father.

### "The rationale behind this provision is expressed in this language in the Comment of the Committeewhich acted for the National Conference of Commissioners on Uniform State Laws in promulgating the Uniform Marriage and DivorceAct: "Mostexperts who have spoken to the problems of post-divorce adjustment of childrenbelieve that insuring the decree's finality is more important than determining which parent should be the custodian. SeeWatson, The Children ofArmageddon: 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 emergencywhich poses an immediate threat to the child's physical safety usually can be handled by the juvenile court, subsection

(a) [subsection1of section 48-339,R.C.M. 19471 prohibits modification petitions until at least two years have passed following the initialdecree, with a 'safety valve' for emergency situations. To discourage the noncustodial parent who tries to punish a former spouseby frequentmotions tomodify, the subsection includes a two-year waiting period following each modification decree. During that two-year period, a contestantcan get a hearing only if he canmake 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 themoving party carries the onerous burden of showing that the child's present environment may endanger his physical, mental, moral, or emotional health."

(Bracketedmaterial supplied.) This rationale is persuasive. Itmakes 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 themodification, 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 Conferenceof Commissioners on Uniform State Laws, Uniform Marriage and DivorceAct, 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 initiatedprior 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 heroriginal 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 

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## * * * 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 theAct became effective and alleged a change in circumstances based in part on events that had occurred following the effective date of theAct. Under these circumstanceswe hold that themother'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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