No. 13493 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN RE 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. Neill argued, 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 22 1977 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from an order of the district court, 

Cascade County, granting respondent's petition for modif ication of the decree as to custody 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 in Great Falls, Montana. Respondent, Martha 

Herren, also is remarried and resides in Florida. On February 

20, 1976, respondent filed a petition for modification of custody. 

She filed an 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 the modification 

issue. After the hearing the district court granted respondent's 

petition for modification 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 all such testimony, the Court finds as a matter of 

fact, that Suzanne's and Christopher's physical, mental, 

moral and emotional health would be best served if 

Herren had the care, custody and control of said children 

subject to reasonable rights of visitation by Dallenger 

at reasonable times, places and intervals as fully set 

forth in the 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 district court 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 specification of error requires a reversal 

of the district court's order and new hearing, therefore we 

express no opinion regarding the sufficiency of the evidence 

presented at the prior hearing. 

The action for modification of custody arises under the 

Uniform Marriage and Divorce Act, section 48-339, R.C.M. 1947, 

it provides : 

"(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. If 
Section 48-339 requires a showing of a change in circumstances and that modification is necessary to serve the best 

interests of the child. The statute is specific, however, 

in pointing out how these standards are to be applied. No 

change in custody may be made unless subsections (a), (b) , or 

(c) under section 48-339(2) are satisfied. Here only subsection 2(c) is applicable, and it requires: (1) the physical, 

mental, moral, or emotional health of the child be endangered 

in its present environment; and (2) the advantages to the 

child of a change in custody outweigh :the harm likely to be 

caused by such a change. 

This burden put on the party seeking a change in custody 

was developed' intentionally to further the policy that 

custody ought to be difficult to change after a decree is made. 

The Comment of the National Conference of Commissioners on 

Uniform State Laws, quoted by this Court in Holm v.i-'Holm, 

Mont . , 560 P.2d 905, 908, 34 St.Rep. 118, 121, 

states in part: 

"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: Pfoblems 

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. * * *" 

In light of these policy considerations in addition to 

the clear language of the statute, we cannot hold the statute 

is satisfied where 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 to have 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 their present environment, and a 

finding that the harm likely to be caused by such a change is 

outweighed by its advantages to them. Here, there simply were 

no such findings. 

Respondent argues the ultimate determination under the 

statute is still the best interests of the child and a finding 

to that effect necessarily includes a finding that one of the 

subsections to section 48-339(2) is satisfied. We agree the 

final decision 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) are jurisdictional 

prerequisites to modification which were placed there to serve 

the basic policy behind the entire section, the policy of 

custodial continuity. To allow these crucial issues to be 

resolved merely by references to the best interests of the children 

would seriously weaken the statute. We hold the district court 

did not comply with the correct statutory standards set out in 

section 48-339(2)(c), R.C.M. 1947. 

The order granting modification of the custody decree 

is reversed. The case is remanded to the district court for 

a new hearing in compliance with this opinion. 
We Concur: 

i 

, I \ 

Chief Justice