No. 13925 INTHE 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. JusticeGene B. Daly delivered the Opinion of the Court:

This is an appeal from ajudgment and order of the District Court, Deer Lodge County, entered June 

### 8, 1977, finding defendant JackWeber delinquent inpayment of child support and determining he was not entitled tomodification 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 tocare 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 tohishome 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 towhether defendant could maintain the temporary custody of the children for the purpose of allowing the children to attend school inBelgrade. Following this discussion, plaintiff agreed to allow defendant tomaintain the custody of the minor son, John, toallow him to attend school inBelgrade. Defendant thereafter returned to his home and enrolledhis son inthe 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 defendantwent to thehome of his sister-in-law and brother and took his daughter with him toBelgrade and enrolled her in the Belgrade school system, without the permission of his ex-wife. On September 26, 1976, plaintiff returned toGallatin Gateway to visitwith her minor daughter atwhich time she

was advised the childwas residing with defendant. She then went to defendant's home inBelgrade together daughter. Following an altercationwhich occurred on September 26 atthe residence of defendant, a motion for temporary restraining order, supportedby affidavit, was filedby 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 arepresented for review: 1)Whether the District Court erred infailing tomodify the custody degree entered inNovember 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 tomodify the custody with respect toboth children. The basis for the modification isdifferent for each child. Section48-339, R.C.M. 1947, provides inpart: "(2) The court shallnot modify a prior custody decree unless it finds, upon thebasis of facts that have arisen since the prior decree or that were unknown to the court atthe time of entry of the prior decree, that a change has occurred inthe circumstances of the child orhis custodian, and that the modification 

### isnecessary to serve the best interest of the child.J Inapplying these standards the court shallretain 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 inthe case of hisminor son, John, integration took place with the consent of plaintiff. The record 

### isnot 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 thatwhen 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 tothe plaintiff. The son was only inthe custody of the defendant from early summer 1976 to October 

### 1, 1976. There 

### isno evidence from which the court could determine,

as required by section 48-339(2), R.C.M. 1947, that a change has occurred inthe circumstances of the childJohn, orhis custodian, which requires a modification to servehisbest interests. This Court has long relied upon the discretion of the District Court in custody matters. InBrooks 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 isa clear abuse of discretionby the trialcourt, a decision on custody willnot be overruled on appeal. Love v. Love, 106Mont. 303, 533 P.2d 280; Gilmore v. Gilmore, 166 Mont.47, 530 P.2d 480; Anderson v. Anderson, 145Mont. 244, 400 P.2d 632. In these cases this Court has committeditself to the view that thewelfare of the child 

### isthe paramount consideration inawarding custody and that it must of necessity, be left largely to the discretionof the trialjudge. He hears the testimony, sees the witnesses' demeanor and has a superior advantage indetermining those difficult problems

## .'' We can find no abuse of discretionon 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 section48-339(2)(c), 

### R.C.M. 1947, which states that in applying 

### its standards the court shallretain 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 tobe caused by a change of environment is outweighed by its advantages tohim." It is the position of defendant that the record preponderates in favor of modification of custody based upon section48-339(2)(c). From the record it 

### is clearBrenda was .placedin the custody of defendant for the summer 1976. After plaintiff returned from receiving medical treatment in California, she took Brenda with her toherhome inAnaconda. Thereafter, she, as the custodian of the child, placed her temporarily in the home of her former brother-in-law, SamWeber. Defendant without the consent of plaintiff took Brenda tohis own home and would not return her custody to plaintiff, until the court order required him to do so. We findno change inthe circumstances of plaintiff mother which would justify a modification of the decree as it pertains tothe 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 inthemother's health, this Court willnot modify the order unless thewelfare of the child

### willbe promoted. Plaintiff testified she has no present health problems which would interfere with her duties incaring for the children. Defendant has failed toproduce any evidence upon which a modification of custody could be based. The District Court as trierof 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 willnot disturb that ruling. Also, it 

### is defendant's position that the District Court failed torecognize other contributionsmade by him toward the support of his children indetermining that defendant was delinquent inpayment of child support. Haaby v. Haaby, (1974), 165Mont. 475, 478, 529 P.2d 1387. Here, defendant fatherhas contributed tothe support of hisminor children inways other than the payment of child support. It isuncontradicted that he (1) bought groceries for the children; (2) bought clothes for the children; 

### (3)repaired the motor inthe furnace atthe mother's home; and (4) skirted the trailerhome of the mother. Allof these contributions enhance the welfare of the children, but are things customarily performed by a father in additionto support payments. Further, the problem of giving the defendant father credit for doing these things is thatnowhere inthe 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, inkind, an amount equal to the delinquency in the support payments. Therefore, theDistrict Court was not inerror inholding that defendant was delinquent inhis child'supportpayments. The judgment of the District Court 

### is affirmed. 

### f F

Justice

We Concur:

- - Chief 

### stic ice