No. 13925 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

BEULAH MAY WEBER, 

Plaintiff and Respondent, 

-vsJACK L. WEBER, 

Defendant and Appellant. 

Appeal from: District Court of the Third Judicial District, 

Honorable Robert Boyd, Judge presiding. 

Counsel of Record: 

For Appellant: 

Bennett and Bennett, Bozeman, Montana 

Lyman H. Bennett, I11 argued, Bozeman, Montana 

For Respondent : 

Maurice Maffei argued, Butte, Montana 

Submitted: January 31, 1978 

WR * ,. -I.- 

Filed: 
Mr. Justice Gene B. Daly delivered the Opinion of the Court: 

This is an appeal from a judgment and order of the 

District Court, Deer Lodge County, entered June 8, 1977, 

finding defendant Jack Weber delinquent in payment of child 

support and determining he was not entitled to modification 

of the decree of custody entered on November 15, 1972, with 

respect to the two minor children of the parties to this action. 

The period of time relevant to this appeal commenced in 

the late spring and early summer of 1976, when plaintiff mother 

contacted defendant father for the purpose of requesting him 

to care for the minor children for the summer months of 1976. 

Following the conversation defendant traveled to the home of 

plaintiff, acquired the children and returned to his home in 

Belgrade for the purpose of caring for the children during 

the summer months. 

In the fall 1976, defendant returned the children to 

plaintiff. A discussion between the parties took place as 

to whether defendant could maintain the temporary custody of the 

children for the purpose of allowing the children to attend 

school in Belgrade. Following this discussion, plaintiff agreed 

to allow defendant to maintain the custody of the minor son, 

John, to allow him to attend school in Belgrade. Defendant 

thereafter returned to his home and enrolled his son in the 

Belgrade school system. 

Subsequently defendant was advised by his sister-in-law, 

Dorothy Weber, that plaintiff was bringing the minor daughter 

Brenda eo Gallatin Gateway for the purpose of residing with 

defendant' s sister-in-law and brother. Thereupon defendant 
went to the home of his sister-in-law and brother and took his 

daughter with him to Belgrade and enrolled her in the Belgrade 

school system, without the permission of his ex-wife. 

On September 26, 1976, plaintiff returned to Gallatin 

Gateway to visit with her minor daughter at which time she 

was advised the child was residing with defendant. She then 

went to defendant's home in Belgrade to get her daughter. 

Following an altercation which occurred on September 26 

at the residence of defendant, a motion for temporary restraining 

order, supported by affidavit, was filed by plaintiff and was 

followed by a temporary order and order to show cause issued 

by the District Court. After the issuance of the order to show 

cause defendant surrendered the children to plaintiff. 

These issues are presented for review: 

1) Whether the District Court erred in failing to modify 

the custody degree entered in November 1972, with respect to the 

two minor children of the parties? 

2) Whether the District Court erred in determining 

delinquencies in child support without allowing credit to 

defendant for house repairs, groceries purchased, and clothing 

purchased for the children? 

It is the position of defendant that the court erred in 

failing to modify the custody with respect to both children. 

The basis for the modification is different for each child. 

Section 48-339, R.C.M. 1947, provides in part: 

"(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. 
J 

In applying these standards the court shall retain 

the custodian appointed pursuant to the prior decree unless: 

"(b) The child has been integrated into the 

family of the petitioner with consent of the 

custodian * * *." 

Defendant argues that in the case of his minor son, John, 

integration took place with the consent of plaintiff. The 

record is not clear as to the arrangement concerning how long 

the son was to stay with the father, but the father did enter 

the son in the Belgrade school system for the year 1976-1977. 

It is apparent from the record that when defendant was allowed to 

take the minor son for the school year 1976-1977, that John was 

not integrated into defendant father's family because a temporary 

restraining order was filed on October 1, 1976 and the custody 

of the son returned to the plaintiff. The son was only in the 

custody of the defendant from early summer 1976 to October 1, 1976. 

There is no evidence from which the court could determine, 

as required by section 48-339(2), R.C.M. 1947, that a change 

has occurred in the circumstances of the child John, or his 

custodian, which requires a modification to serve his best 

interests. 

This Court has long relied upon the discretion of the 

District Court in custody matters. In Brooks v. Brooks, 

Mont . , 556 P.2d 901, 33 St. Rep. 1114, 1116, the Court 

stated: 

"This Court has long followed the rule that 

unless there is a clear abuse of discretion by 

the trial court, a decision on custody will not 

be overruled on appeal. Love v. Love, 106 Mont. 303, 

533 P.2d 280; Gilmore v. Gilmore, 166 Mont.47, 530 

P.2d 480; Anderson v. Anderson, 145 Mont. 244, 400 

P.2d 632. In these cases this Court has committed 
itself to the view that the welfare of the child 

is the paramount consideration in awarding custody 

and that it must of necessity, be left largely to 

the discretion of the trial judge. He hears the 

testimony, sees the witnesses' demeanor and has a 

superior advantage in determining those difficult 

problems .'' 

We can find no abuse of discretion on the part of the 

District Court regarding the custody of John, the minor son. 

In regard to the minor daughter Brenda, defendant asks 

this Court to look to section 48-339(2)(c), R.C.M. 1947, which 

states that in applying its standards the court shall retain 

the custodian appointed pursuant to the prior decree unless: 

" (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." 

It is the position of defendant that the record preponderates 

in favor of modification of custody based upon section 48-339(2)(c). 

From the record it is clear Brenda was .placed in the custody 

of defendant for the summer 1976. After plaintiff returned from 

receiving medical treatment in California, she took Brenda 

with her to her home in Anaconda. Thereafter, she, as the 

custodian of the child, placed her temporarily in the home of 

her former brother-in-law, Sam Weber. Defendant without the 

consent of plaintiff took Brenda to his own home and would not 

return her custody to plaintiff, until the court order required 

him to do so. 

We find no change in the circumstances of plaintiff mother 

which would justify a modification of the decree as it pertains 

to the custody of the minor daughter Brenda. The welfare and 

best interests of the child are the primary concern of the 

court and even though there have been substantial changes in 
the mother's health, this Court will not modify the order 

unless the welfare of the child will be promoted. Plaintiff 

testified she has no present health problems which would 

interfere with her duties in caring for the children. Defendant 

has failed to produce any evidence upon which a modification of 

custody could be based. 

The District Court as trier of the facts, had the opportunity 

to observe the parties, had the benefit of the reports of the 

welfare departments and found insufficient evidence for modification of the decree as it pertains to the custody of the two 

minor children. This Court will not disturb that ruling. 

Also, it is defendant's position that the District Court failed 

to recognize other contributions made by him toward the support 

of his children in determining that defendant was delinquent 

in payment of child support. Haaby v. Haaby, (1974), 165 Mont. 

475, 478, 529 P.2d 1387. 

Here, defendant father has contributed to the support of 

his minor children in ways other than the payment of child support. It is uncontradicted that he (1) bought groceries for 

the children; (2) bought clothes for the children; (3) repaired 

the motor in the furnace at the mother's home; and (4) skirted 

the trailer home of the mother. 

All of these contributions enhance the welfare of the 

children, but are things customarily performed by a father in 

addition to support payments. Further, the problem of giving 

the defendant father credit for doing these things is that nowhere 

in the record does defendant offer testimony as to the amount 

he spent for groceries, clothing and repairs. The District Court 

had no way of knowing whether he contributed, in kind, an amount 

equal to the delinquency in the support payments. Therefore, the 
District Court was not in error in holding that defendant was 

delinquent in his child'support payments. 

The judgment of the District Court is affirmed. 

f F 

Justice 

We Concur: 

- - 

Chief stic ice