NO. 94-574

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

IN RE THE MARRIAGE OF

JULIE RIES KESSLER,

Petitioner

and

ARLEN JOHN KESSLER,

Respondent

and Appellant,

and Respondent.

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis and Clark,

The Honorable Dorothy McCarter, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Charles E. Petaja, Attorney at Law,

Helena, Montana

For Respondent:

Mark P. Yeshe, Attorney at Law,

Helena, Montana

Filed:

Submitted on Briefs: July 27, 1995

Decided: September 8, 1995
Justice Terry N. Trieweiler delivered the opinion of the Court.

The respondent, Arlen John Kessler, filed a motion in the

District Court for the First Judicial District in Lewis and Clark

County in which he asked the court to reallocate physical custody

of his and petitioner Julie Ries Kessler's children, and for a

restraining order prohibiting Julie from removing the children from

Montana. The court granted Arlen's motion and Julie appeals. We

affirm the order of the District Court.

Although a number of issues are raised in Julie's brief, we

conclude that the dispositive issue on appeal is whether the

District Court erred when it found that it was in the children's

best interests that the prior custody arrangement should be

modified and residential custody awarded to Arlen during the school

year.

FACTUAL BACKGROUND

Julie Ries Kessler and Arlen John Kessler were married on

June 20, 1981. During the course of their marriage, Julie and

Arlen had two children, Jennifer Lynn, who was born on October 16,

1984, and Nicholas John, who was born on December 19, 1987. On

July 11, 1990, Julie and Arlen filed a petition for dissolution.

In that petition, Julie and Arlen agreed that it was in the best

interests of their children that they share joint custody of

Jennifer and Nicholas in accordance with the marital and property

settlement agreement drafted by Julie and Arlen.
The agreement provided that Jennifer and Nicholas would reside

with one parent for two weeks, and then reside with the other

parent for two weeks. The non-residential parent would be

permitted visitation on two nights per week. The agreement also

provided that Julie and Arlen would carefully monitor the custody

schedule in order to ensure that it remained in Jennifer's and

Nicholas's best interests. In the event of problems with the

residential arrangement, the agreement provided that Julie and

Arlen would seek professional consultation and renegotiate a new

arrangement. The final decree of dissolution incorporated the

terms of the agreement.

Sometime after the dissolution, Julie's job was terminated.

To qualify herself for new employment, Julie enrolled in the

University of Washington's masters degree program for social work.

Thereafter, Julie notified Arlen in writing that she, Jennifer, and

Nicholas were moving to Bothell, Washington, a Seattle suburb.

Arlen opposed the move and ultimately filed a motion for

reallocation of physical custody and for restraining order in which

he asked the District Court to award him primary residential

custody of Jennifer and Nicholas and restrain Julie from removing

the children from Montana until the court could make a custody

determination. In the motion, Arlen specified that since the

dissolution the shared custody arrangement had worked well for

Jennifer and Nicholas, and that he did not believe the move to

Bothell would serve the children's best interests because they had

3
lived their entire lives in Helena, had attended Helena schools,

have relatives in Helena, and get along very well with Arlen's new

wife, Janet. Arlen also stated in the motion that he had a close

relationship with Jennifer and Nicholas and that their best

interests would be served if they lived with him in Helena and

maintained visitation with Julie "at all reasonable opportunities."

Julie filed an affidavit and memorandum in opposition to

Arlen's motion in which she stated that both Arlen and she loved

their children and were good parents, that they had shared physical

custody, but that she was the primary residential custodian because

she had the children more often than Arlen had them. Julie also

stated that the move to Bothell would serve Jennifer's and

Nicholas's best interests because they would not have to adjust to

living with their stepmother and her twelve-year-old daughter.

The District Court conducted a hearing at which evidence in

support of and in opposition to Arlen's motion was considered. Tom

Walstad, a psychotherapist who performed a custody evaluation,

testified that Julie and Arlen were equally adequate as parents and

that they both loved and provided for their children very well.

Mr. Walstad ultimately presented three options the court could

adopt: (1) have the children live with Julie; (2) have the children

live with Arlen; or (3) split custody by having Nicholas live with

Arlen and Jennifer live with Julie. Neither Julie nor Arlen

assented to split custody. Mr. Walstad did not recommend a custody

arrangement to the District Court.

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After considering the evidence, the District Court issued its

findings of fact, conclusions of law, and order in which it found

that both Julie and Arlen were equally qualified to serve as

parents, and that Jennifer and Nicholas were equally bonded to

Julie and Arlen. However, the court found that up to that point

Jennifer and Nicholas had grown up in Helena and were established

in the community and their school, that Julie's work and school

schedule placed a burden on her ability to spend time with them,

and that Julie was not sure where she would live after completing

her degree program.

The court concluded that Jennifer's and Nicholas's best

interests would be best served by granting Arlen primary

residential custody during the school year and Julie residential

custody during the summer, and therefore, that modification of the

residential custody arrangement was appropriate pursuant to

S 40-4-219(l) (f), MCA. The court noted that such an arrangement

would best "assure continuity and stability in [Jennifer's and

Nicholas's] lives with a minimum of disruption." However, the

court permitted Julie to request a review of the custody order

after receiving her degree. Julie appeals the District Court's

order.

DISCUSSION

Did the District Court err when it found that it was in the

children's best interests that the prior custody arrangement should
be modified and residential custody awarded to Arlen during the

school year?

We review a district court's findings of fact regarding

custody modification and visitation to determine whether the

district court's findings are clearly erroneous. In re Marriage of E&r

(Mont. 1995), 52 St. Rep. 434, 43 6 (citing In re Marriage of Johnson

(1994), 266 Mont. 158, 166, 879 P.2d 689, 694). Findings of fact

are clearly erroneous if: they are not supported by substantial

evidence; the district court misapprehends the effect of the

evidence; or, we are convinced upon reviewing the record that the

district court made a mistake. Marriage of Elser , 52 St. Rep. at 436

(citing Marriage ofJohnson, 879 P.2d at 694) We will review a

district court's decision to modify custody or visitation based on

its findings to determine whether the district court has abused its

discretion. MarriageofEker, 52 St. Rep. at 436 (citing In reMarriageof

Hunt (1994), 264 Mont. 159, 164, 870 P.2d 720, 723).

Julie first contends that the court incorrectly found that

both parties have "equally shared custody" because, in fact, she

has had the children for more days than Arlen. However, whether or

not Julie had the children for more days than Arlen was a disputed

question of fact. Julie's testimony in that regard was

controverted by Arlen's and the testimony of his wife, Janet.

After reviewing the testimony of each, we conclude that the

District Court's finding that custody was shared equally was

supported by substantial evidence and was not clearly erroneous.

6
Furthermore, whether Julie had the children a greater number of

days during each year than Arlen is not relevant to the statute

which controlled the District Court's decision.

Modification of custody was appropriately considered in this

case pursuant to § 40-4-219(l) (f), MCA, which provides as follows:

The court may in its discretion modify a prior custody

decree if 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 and if it further

finds that:

;fj the custodial parent has changed or intends to

change the child's residence to another state.

This proceeding was initiated in response to written notice

from Julie that she intended to change the children's residence to

another state. That decision was made and notice was sent

subsequent to entry of the prior decree. The only issue for the

District Court was, then, whether it was in the children's best

interests that they remain in Helena or go with Julie to Bothell.

Although Julie offered evidence that she could provide a

satisfactory home and education for her children in Bothell, Arlen

also offered substantial evidence that it would be in their best

interests to remain in Helena. For example, there was testimony

that the children have a good relationship with their stepmother,

and due to her joint effort with their father, other care for the

children is rarely necessary when they are at his home. There was

evidence that the children are happy and well-adjusted while in the

7
custody of both parents, but that in Helena they will be able to

continue attending the same elementary school where they have done

well in the past. Although they have relatives in Bothell, they

also have relatives in Helena with whom they have had regular and

close interaction. Although Tom Walstad made no recommendation

regarding the children's residential arrangement, he did note that

the least disruptive alternative for the children would be for them

to remain primarily in Helena.

Our role as a court of appellate review is not to try and

weigh conflicting evidence regarding the children's best interests

where two equally qualified parents claim, but cannot at the same

time, exercise residential custody. The district court is in a

better position to do that. Our role is simply to determine

whether the district court's findings are clearly erroneous and, if

not, whether in the application of those findings the district

court abused its discretion. We conclude that the District Court's

findings regarding the children's best interests were not clearly

erroneous. After a review of its decision in light of those

findings, we conclude that the court did not abuse its discretion

when it awarded residential custody to Arlen during the school

year.

Julie also contends that the District Court erred when it

prohibited her from removing her children to the state of

Washington without finding that doing so would seriously endanger

the children. However, other than the District Court's order

8
modifying the couple's custody arrangement, we can find no specific

injunction or restraining order which restricted Julie's or the

children's movement. Even if it had, we have pointed out

previously in Marriage ofElser that a district court may restrain

removal of children from the state where it would prejudice the

children's rights or welfare. In the same case, we held that

"prejudice" within the meaning of 5 40-6-231, MCA, is simply the

opposite of the children's "best interest." Since we have

concluded that the District Court did not err when it determined

the children's best interests, we also conclude that the District

Court would not have abused its discretion had it restrained their

removal from the state by their mother.

For these reasons, we affirm the order of the District Court

which modified the residential arrangement of the children and

these parents' visitation schedules.

Pursuant to Section I, Paragraph 3 (cl, Montana Supreme Court

1995 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document

with the Clerk of the Supreme Court and by a report of its result

to Montana Law Week, State Reporter and West Publishing Company.
1 0
September 8, 995

CERTIFICATE OF ‘SERVICE

I hereby certify that the following certified order was: sent by United States mail, prepaid, to the

following named:

Charles E. Petaja, Esq.

1085 Helena Ave.

Helena, MT 59601

Mark P. Yeshe

Attorney at Law

P.O. Box 413

Helena, MT 59624-0413

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA