IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN RE THE MARRIAGE OF 

A.R.C., 

Petitioner and Respondent, 

VS. 

C.K.C., 

Respondent and Appellant. 

Appeal from: District Court of the Nineteenth Judicial 

District, In and for the County of Lincoln, 

The Honorable Robert M. Holter, Judge 

presiding. 

Counsel of Record: 

For Appellant: 

Sverdrup & Spencer; Scott B. Spencer, Libby, 

Montana 

For Respondent: 

Douglas and Bostock; Thomas Bostock, Libby, 

Montana 

Submitted on Briefs : January 7, 1983 

Decided : April 7, 1983 

Filed: APR 'd - 1983 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

C.K.C. (the mother) appeals from an order of the Lincoln 

County District Court modifying the initial custody provision 

of a divorce decree. The couple had three children. The 

initia.1 custody provision gave the father custody of one of 

the children and gave the mother custody of the other two. 

The modification order gave custody of all three children to 

the father. The mother contends that the trial court's 

findings of fact were not supported by substantial credible 

evidence and that the findings did not meet the requirements 

of section 40-4-219(1), MCA, relating to the modification of 

a custody decree. We affirm. 

The couple were married and divorced twice. At the time 

of the second divorce in 1981, they had three children, J.L., 

a nine year old girl; J.R., an eight year old boy; and M.S., 

a year old girl. The trial court awarded custody of the 

oldest girl, J.L., to the father and gave custody of the 

younger two children to the mother. 

The modification depends on a finding by the trial court 

that a change has occurred since the divorce in the 

circumstances of the children or of their custodian and that 

modification is necessary to serve the best interest of the 

child. Section 40-4-219 (I), MCA. The trial court held a 

hearing on the issue of the father's petition for custody 

modification and then made the following findings relating to 

the change in circumstances: 

Since the divorce the mother had not been steadily 

employed and had been living on welfare benefits. The mother 

and the two children had been living with the maternal 
grandfather and his wife. The mother had frequently been 

away from home for periods of two or more days. During 

these absences, the children were left in the care of the 

maternal grandfather and his wife, who had a difficult time 

caring for them. The mother's frequent absences had affected 

the eight year old boy, who had continual disciplinary 

problems, he had refused to bathe and attend to his personal 

hygiene, and had been failing in school. During one of the 

mother's absences, the grandfather asked the children's 

father to take control of the boy. The boy's father did so. 

While the boy stayed with his father in Troy, Montana, his 

school work improved and his disciplinary problems began to 

disappear. The boy also expressed a strong desire to remain 

with his father. The mother then returned for the boy, 

asserting her custody right. She moved the young boy from 

Troy to Libby and kept him out of school during the last week 

of that school year. The mother was a "filthy housekeeper 

and did not attend to the needs of the children." The mother 

seldom bathed the baby girl and did not keep her diapers 

clean. The baby girl has suffered from severe diaper rash 

which required a doctor's care. Since the divorce the mother 

had failed to support and care for the two children. 

Based on these findings, the trial court concluded that 

it did have jurisdiction over the case; it would be in the 

children's best interest to live with their father; the 

children's present environment with their mother seriously 

endangered their mental, moral, emotional and physical 

health; any harm which might result by a change of custody 

would be outweighed by the advantages; and that it is 

desirable that all three children live together. 
The mother first claims that the trial court's findings 

of fact are not supported by substantial credible evidence, 

or that there is evidence in the record which directly 

conflicts with the court's findings. 

The mother takes specific exception to five of the trial 

court's findings of fact. In finding of fact no. 8, the 

trial court found that since the divorce the mother has not 

been steadily employed, has been on welfare, and has failed 

to support and care for the two minor children. She contends 

this finding is improper because there is evidence in the 

record which contradicts this finding. We note that although 

there is evidence that the mother was employed, it was not 

steady employment. The mother herself testified that she had 

cared for the children, yet there was also testimony that she 

frequently left them in the care of others for days at a 

time. There is evidence that the mother's primary source of 

income is welfare benefits. Sufficient evidence supports 

this finding. The mere existence of contradictory evidence 

does not require us to overturn a finding. 

In finding of fact no. 10, the trial court found that 

the mother has absented herself from her county of residence 

on numerous occasions, for periods from two days to over a 

month. During the mother's absence the children were left in 

the care of the maternal grandfather and his wife. The 

mother admits that she has frequently been absent, but 

contends that there was no testimony that she was away for a 

month in any one consecutive period. We note that there was 

testimony that the mother once was away for several weeks. 

Keeping in mind that the paramount consideration in this 

proceeding is the best interest of the children, we do not 

find it necessary to measure the mother's absences with 
mathematical precision. Whether she was away for over a 

month or away for several weeks is less important than the 

fact that she was away. We will not overturn this finding. 

In finding of fact no. 11, the trial court found that 

the maternal grandfather and his wife had a difficult time 

caring for the children during the mother's absences. The 

trial court also found that the mother's long absences and 

lack of concern for the children have caused noticeable 

problems. While in the mother's custody the eight year old 

boy had been a disciplinary problem, had refused to bathe and 

attend to his personal hygiene, and was failing in school. 

The mother contends that no evidence was presented to show 

that her absences caused the boy's disciplinary problems, nor 

that she showed a lack of concern for her children. While no 

testimony specifically tied the boy's disciplinary problems 

or his school problems to his mother's absences or her lack 

of concern for his welfare, the record holds ample evidence 

that he had those problems. The record also indicates that 

those problems improved or disappeared when the boy lived 

with his father. Reviewing the evidence in the light most 

favorable to the respondent (father), there is sufficient 

evidence in the record to support the trial court's finding. 

The trial court's finding no. 15 was that during the 

time the parties were married, the mother was a "filthy 

housekeeper and did not attend to the needs of the children" 

and that by all indications her capabilities had not improved 

since the divorce. The mother contends that this finding 

concerns pre-divorce matters and is not relevant to this 

proceeding. We agree that pre-divorce matters are not 

relevant to this inquiry. Nonetheless, insofar as the 

mother's housekeeping and attention to her childrens' needs 
have not improved, it is relevant to this inquiry because it 

concerns the care the children receive while they are with 

their mother. 

Finally, in finding of fact no. 16, the trial court 

found that while in the mother's custody, the baby girl had 

suffered from severe diaper rash, to the extent that she had 

to be taken to a local doctor for treatment, and that the 

ostensible cause for the severe diaper rash was the mother's 

failure to bathe the baby and change her diapers. The mother 

contends that there is no evidence in the record to support 

this finding. The father testified that the baby suffered 

from a severe diaper rash. A day care attendant testified 

that when the mother left the baby at the day care center in 

the mornings, the baby often did not appear to be well taken 

care of and that she had an unpleasant smell. The day care 

attendant also testified that the baby was usually given a 

bath in the morning at the day care center. Therefore, 

sufficient evidence supports this finding. 

It is the trial court's duty to weigh the evidence and 

make findings. The trial court did so in this case and we 

see no indication of any abuse of discretion which would 

require those findings to be overturned. 

The second issue raised by the mother is whether the 

trial court met the specific requirements of section 

40-4-219(l), MCA, before modifying the custody arrangement. 

The trial court must find that a change has occurred in the 

circumstances of the child or his custodian and that 

modification is necessary to serve the best interest of the 

child. In addition, the statute directs the trial court to 

retain the previously appointed custodian unless (a) the 

custodian agrees to the modification, (b) the child has been 
integrated into the petitioner's family with consent of the 

custodian, or (c) the child's present environment seriously 

endangers his physical, mental, moral, or emotional health 

and the harm likely to be caused by a change of environment 

is outweighed by its advantages. In this case the trial 

court made findings regarding the circumstances arising when 

the two children were placed in the mother's custody. Based 

on those findings the trial court concluded that the 

children's environment with their mother ". . . seriously 

endangers their mental, moral, emotional and physical health, 

and any harm which might result by a change of custody would 

be outweighed by the advantages which would inure to the 

benefit of such children by such a change." 

The trial court did not make a specific finding in the 

language of the statute "that a change has occurred in the 

circumstances of the child or his custodian.. . . " It is 

always good practice to do so. The welfare of the children 

is the paramount consideration in awarding custody. We will 

look behind the form to the substance of the trial court's 

findings. The trial court made ample findings relating to 

the circumstances of the mother and children since the 

divorce. Th.ose findings indicate that the circumstances have 

changed to the detriment of the children. 

The District Court's modification order changing custody 

to the father is affirmed. 
We Concur: 

~h~8~2'$dU-4 Chief Justice