No. 13493 INTHE SUPREME COURT OF THE STATE OF MONTANA

INRE THE CUSTODY OF SUZANNE DAWN DALLENGER and CHRISTOPHER MICHAEL DALLENGER

Appeal from: District Court of the Eighth Judicial District, Honorable R.D. McPhillips, Judge presiding. Counsel of Record: For Appellant: Scott, Linnell, Neill & Newhall, Great Falls,

Montana Kenneth R. Neillargued, Great Falls, Montana For Respondent: Swanberg, Koby, Swanberg & Matteucci, Great Falls,

Montana Arthur G. Matteucci appeared, Great Falls, Montana John Albe argued, Great Falls, Montana

Submitted: March 15, 1977 Decided: 

## AUG

## 221977Mr. Justice John Conway Harrison delivered the Opinion of the Court.

This is an appeal from an order of the districtcourt, Cascade County, granting respondent's petition for modification of the decree as tocustody of the parties' two children. Appellant Ronald Dallenger was awarded custody of the children, Suzanne and Christopher, pursuant to a decree of divorce entered May 24, 1974. Appellant has since remarried and presently lives inGreat Falls, Montana. Respondent, Martha Herren, also 

### is remarried and resides inFlorida. On February 20, 1976, respondent filed a petition formodification of custody. She filedan amended petition to the same effect on March 25, 1976. The matter was referred to the court of conciliation for investigation and hearing was held June 

### 30, 1976, on themodification issue. After the hearing the district court granted respondent's petition formodification and awarded custody of the children to her. The court expressed the standards it employed in these findings and conclusions: 

# "*** Without going into the nature and particulars of allsuch testimony, the Court finds as a matter of fact, that Suzanne's and Christopher's physical, mental, moral and emotional healthwould be best served if Herren had the care, custody and control of said children subject to reasonable rights of visitationby Dallenger atreasonable times, places and intervals as fully set forth inthe order herein. A change in custody would serve said children's best interest.

"Martha F. Herren (Dallenger) has shown by a preponderance of the evidence introduced herein that the physical, mental, moral and emotional health are best served by she acquiring custody of Suzanne and Christopher Dallenger, and that to change custody arrangements forthwith is to the environmental benefit of said children."Appellant urges two specifications of error: (1) The districtcourt applied incorrect standards in its decision to change custody of the children to respondent. (2) That even if the proper standards were applied, the decision was not supported by the evidence. We hold the first specificationof error requires a reversal of the districtcourt's order and new hearing, therefore we express no opinion regarding the sufficiency of the evidence presented atthe prior hearing. The action formodification of custody arises under the Uniform Marriage and Divorce Act, section48-339, R.C.M. 1947, it provides: "(1) No motion tomodify a custody decree may be made earlier than two (2) years after its date, unless the court permits it tobe made on the basis of affidavits that there is reason tobelieve the child's present environment may endanger seriously hisphysical, mental, moral, or emotional health. "(2) The court shallnot modify a prior custody decree unless it finds, upon the basis of facts that have arisen since the prior decree or thatwere unknown to the court atthe 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 shallretain the custodian appointed pursuant to the prior decree unless: "(a) the custodian agrees to the modification;

"(b) the childhas been integrated into the family of thepetitionerwith consent of the custodian; or "(c) the child's present environment endangers seriously his physical, mental, moral, or emotional health, and the harm likelytobe caused by a change of environment is outweighed.by 

### its advantages to him. "(3) Attorney fees and costs shallbe assessed against a party seeking modification if the court finds that the modification action 

### isvexatious and constitutes harassment. IfSection48-339 requires a showing of a change incircumstances and that modification 

### isnecessary to serve the best interests of the child. The statute 

### is specific, however, inpointing out how these standards are tobe applied. No change incustody may be made unless subsections (a), (b)

## ,or (c) under section48-339(2) are satisfied. Here only subsection 2(c) 

### is applicable, and it requires: (1) the physical, mental, moral, or emotional health of the childbe endangered in

### itspresent environment; and (2) the advantages to the child of a change incustody outweigh:theharm likely tobe caused by such a change. This burden put on the party seeking a change incustody

was developed'intentionally to further the policy that custody ought tobe difficultto change aftera decree 

### ismade. The Comment of the National Conference of Commissioners on Uniform StateLaws, quoted by this Court inHolm v.i-'Holm, Mont

# . ,560 P.2d 905, 908, 34 St.Rep. 118, 121, states inpart: "Most experts who have spoken to the problems of post-divorce adjustment of children believe that insuring the decree's finality 

### ismore important than determining which parent should be the custodian. SeeWatson, The Children of Armageddon: Pfoblems of Custody Following Divorce, 21 SyracuseL.Rev. 55 (1969). This section 

### isdesigned tomaximize finality (and thus assure continuity for the child) without jeopardizing the child's interest.

# * *

# *" In light of these policy considerations inaddition to the clear language of the statute, we cannot hold the statute is satisfiedwhere the court finds only that the interests of the children would be "best served" by a change in custody, and that such a change would be "to the environmental benefit"of the children. For the court in this case tohave jurisdiction to modify a custody decree under section 48-339, there must be

a finding of danger to the physical, mental, moral, or emotional health of the children in theirpresent environment, and a finding that the harm likely tobe caused by such a change 

### is outweighed by itsadvantages to them. Here, there simply were

no such findings. Respondent argues the ultimate determinationunder the statute is stillthebest interests of the child and a finding to that effectnecessarily includes a finding that one of the subsections to section 48-339(2) is satisfied. We agree the finaldecision remains the traditional "best interests" decision. Eoss v. Leifer, Mont

# . , 550 P.2d 1309, 33 St.Rep. 528; Erhardt v. Erhardt, 

# - Mont

# . -2 554 P.2d 758, 33 St.Rep. 883. But the subsections to section 48-339(2) arejurisdictional prerequisites tomodification which were placed there to serve the basic policybehind the entire section, the policy of custodial continuity. To allow these crucial issues tobe resolved merely by references to the best interests of the children would seriouslyweaken the statute. We hold the districtcourt didnot comply with the correct statutory standards setout in section 48-339(2)(c), R.C.M. 1947. The order grantingmodification of the custody decree is reversed. The case isremanded to the districtcourt for

a new hearing incompliance with this opinion.We Concur: i

, I \ Chief 

### Justice