1\70. 88-530 

IN THE SIJPREME COURT OF THE STATE OF MOKTANA 

1989 

IN RE THE MARRIAGE OF 

FPAMCISCO IVAN MORAZAN, 

Petitioner and Respondent, 

and 

VICKI LYNN KENDALTJ , 

Respondent and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial. District, 

In and for the County of Cascade, 

The Honorable John M. McCarvel, Judge presiding. 

COUNSEL CF RECORD: 

For Appellant: 

Cannon & Sheehy; Edmund F. Sheehy, Jr., Helena, 

Montana 

For Respondent: 

Miller & Cook; Joan E. Cook, Great Falls, Montana 

Submitted on Briefs: March 31, 1989 

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m :-I Decided: 51 1989 

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Filed: ,, v I 

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Clerk 
Mr. Justice 1. C. Gulbrandson deli~reredl the Opinion of the 

Court. 

Appellant Vicki Lynn Kendall (Kendall) appeals the July 

13, 1988, order of the Eighth Judicial District Court, 

Cascade County, modifying a divorce decree entered on January 

28, 1984. The modification order removed Kendall's children, 

M.M. and F.M., from her sole custody and granted joint 

custody of the children to Kendall and the children's natural 

father Francisco Ivan Morazan (Morazan), the respondent, with 

primary physical custody in Morazan. We affirm the 

modification order of the District Court. 

Kendall and Morazan were married in October 1980. At 

that time Kendall had three children, two sons and one 

daughter, R. B . These children lived with Kendall and 

Morazan. Two children were born during the marriage, M.M. in 

1981 and F.M. in 1983. In 1983, Kendall made allegations of 

sexual abuse of R.B. against R.B. 's natural father. These 

allegations arose in the midst of a custody battle between 

Kendall and E.B.'s natural father. Investigations by child 

welfare workers disclosed that R.R. may have been sexually 

abused by both her natural father and Morazan. The District 

Court modified custody of R.B., shifting custody from Kendall 

to R.B.'s natural father. Kendall was permitted reasonable 

visitation privileges, provided R.B. had no contact with 

Morazan. 

Kendall filed for and was granted a dissolution of her 

marriage to Morazan. Morazan did not contest the dissolution 

proceedings, the award of sole custody of their two children 

to Kendall, or the child support payments of $125 per month 

per child. The order of dissolutjon granted Mora7an 

reasonable vi si tation right^ . 
Subsequent to the dissolution in January 1984, Kendall 

began living with one Doug Owens. She later married Owens 

and moved with him to Lolo, Montana. Morazan exercised his 

visitation rights and paid the required child support. 

In September of 1986, after Owens physically abused 

Kendall, she contactefi Porazan requesting he move her and her 

children back to Great Falls. Morazan did so, at his own 

expense, relocating Rendall and the children across the 

street from his residence. Approximately one month later, 

Owens moved back in with Xendall-, staying approximately six 

months. Kendall then divorced Owens. She had begun seeinq 

another man, Dale Reeves. After divorcing Owens, Kendal? 

moved with Reeves to Canyon Ferry, Pontana, and then to East 

Helena, Montana. 

In February 1988, Kendall had problems with the 

principal at her daughter's school and with Dale Reeves and 

called Morazan to help her and her children move back to 

Great Falls. She felt she needed a "cooling-off period" in 

her relationship with F-eeves. Morazan moved them back to 

Great Falls to his house where they stayed for a month before 

Fendall and the children moved to another locatjon in Great 

Falls. 

Morazan testified at the modi-fication hearing that 

Kendall had confided in him that Reeves' thirteen-year-old 

son had been physically abusing her. She also told Morazan 

that her two older boys had been having inappropriate sexual 

contact with M.M. and that Reeves' son told her sons that he 

had this type of contact with his sister. 

Morazan filed a combination affidavit and petition for 

modification of custody on May 17, 1988. He also obtained a 

temporary restraining order to prevent Kendall from removing 

their chjl-dren from the jurisdiction of the court.. 
On May 23, 1988, Kendall removed M.M. from the 

kindergarten she was attending in Great Falls and moved both 

children to East Helena where they moved back in with Reeves. 

At the time of the June 7, 1988, hearinq, which Kendall 

attended without counsel, she was living with Reeves and five 

children in a two bedroom apartment. The District Court 

found cause to hold a hearing regarding Morazan's petition 

for modification of custody and set a hearing date for June 

16, 1988. 

Between the date of the June 7, 1.988, hearing and the 

June 16, 1988, hearing, M.M. reportedly confided to Kendall 

that Morazan had sexually abused her. Kendall reported this 

to Lewis and Clark County authoriti-es, who determined not to 

file any charges before the modification hearing. At the 

hearing, both parties testified and presented additional 

witnesses. The judge also interviewed M.M. in his chambers 

at the end of the hearing. 

The court issued its findings of fact, conclusions of 

law, and order on July 13, 1988. The court concluded that 

the children's existing environment constituted serious 

endangerment to their mental, moral, and emotional health; 

that the harm likely to result from a change in their 

environment was outweighed by the advantages of the change; 

and that modification of the custody order contained in the 

divorce decree was in the best interests of the children. 

The court then modified the custody order, granting joint 

custody, placing primary physical custody with Morazan, and 

ordering no child support. It is from this order of the 

court that Kendall presents the following issues on appeal: 

1. Did the District Court err in issuing the temporary 

restraining order and holding the show cause hearing on the 

petition to modify custody? 
2. Does substantial. credible evidence exist to support 

the District Court's order modifying custody? 

The first issue Kendall raises is that the District 

Court erred in issuing a temporary restraining order 

restricting her from removing the children from the 

jurisdiction of the court. Kendall contends there was no 

reason for the court to believe she intended to remove the 

children from the state. 

The court issued the temporary restraining ord.er based 

upon the duly sworn affidavit of Morazan. This affidavit 

stated that the temporary restraining order was necessary to 

prevent Kendall from removing the children from the 

jurisdiction of the court. The affidavit further alleged 

that Kendall had threatened to remove the children from the 

court's jurisdiction should Morazan ever seek modification of 

the custody order. We find that such a sworn statement was 

sufficient grounds for issuing a temporary restraining order, 

in light of the circumstances surrounding such proceedinqs 

and t.he minimal inconvenience such an order placed. upon 

Kendall. See S 40-4-220(1), MCA. 

Kendall also contends the petition for modification and 

supporting affidavit failed to provide adequate cause for 

hearing the motion under S 40-4-220 !I), MCA. Kendall claims 

the reasons presented in Morazan's affidavit were that 

Kendall had changed her residence on numerous occasions and 

was on welfare. While these grounds alone would. be 

insufficient to establish adequate cause for a hearing, they 

were not the only cause contained in the affidavit. The 

affidavit also stated that Kendall had previously exposed. the 

children to an abusive relationship while married to Owens, a 

relationship to which she had returned. Further, the 

affidavit stated that Kendall was currently involved in 

another relationship which exposed the children to a sexually 
abusive situation. We conclude these statements constituted 

adequate cause to order a hearing on the custody status of 

M.M. and F.M. 

Kendall's second issue is whether the evidence 

introduced at the hearing was sufficient to warrant a 

modification of the custody arrangement. Initially, we note 

that the primary responsibility for child custody decisions 

lies with the District Court. We will presume the District 

Court's decision is correct and not disturb it unless "there 

is a mistake of law or a finding of fact not supported by 

credible evidence." In re Marriage of Robbins (1985), 319 

Mont. 130, 134-35, 711 P.3d 1347, 1350, citing Solie v. Solie 

(1977), 172 Mont. 133, 137, 561 P.2d 443, 446; see also Rule 

52(a), M.R.Civ.P. (which provides that a finding must be 

clearly erroneous before it may be overturned). 

A district court must make certain determinations 

before modifying a prior child custody decision. Section 

40-4-219, MCA. First, the court must find, based upon facts 

arising since the prior decree or unknown to the court at the 

entry of the prior decree, that a change has occurred in the 

circumstances of the child or custodial parent which 

necessitates a modification to serve the best interests of 

the child. Section 40-4-219 (1) , MCA. Further, the court 

must find that the child's present environment seriously 

endangers the child's physical, mental, moral, or emotional 

health and that the harm likely to be caused by a change in 

environment is outweighed by the advantages to the child from 

such a change. Section 40-4-219 (1) (c) , MCA. 

The record shows that the court had adequate reason to 

find that circumstances had changed since the dissolution 

decree issued. Kendall's lifestyle indicated an inability to 

maintain a stable environment for her children. At the time 

of the modification hearinq, she was livincj with another 
adult and five children in a two bedroom apartment. Further, 

Kendall has shown little concern for M.M.'s education. Her 

removal of M.M. from kindergarten in Great Falls two weeks 

before the end of the term shows a lack of regard for the 

necessity and value of her child's education. These facts, 

as well as the allegations that M.M.'s stepbrothers sexually 

abused her, indicate changed circumstances. 

These changed circumstances are sufficient to show that 

the physical, mental, moral, and emotional health of M.M. and 

F.M. would be seriously endangerd if they remained with 

Kendall. See $$ 40-4-219(1)(c), MCA. We therefore agree with 

the District Court as to the dangers posed by the environment 

in which Kendall has placed her children. The advantages to 

the children under Morazan's custody, on the other hand, 

clearly outweigh any harm which would accompany a change in 

their environment. Morazan currently lives alone in a two 

bedroom house with a backyard in which the children may play. 

He has a stable job with the U.S. Post Office, and he is 

attending the College of Great Falls in hopes of bettering 

his life. He has exhibited concern For the children's 

educational opportunities and the need for testing M.M. for 

possible learning disabilities. His work and schooling will 

require baby-sitters to care for his children, but he has 

made arrangements to secure qualified people to do so. 

This Court has some reservations regarding Morazan's 

fitness as the custodial parent because of allegations that 

he sexually abused M.M. Proof of the validity of these 

allegations would clearly result in Morazan being unsuitable 

to take unsupervised custody of the children. Morazan, 

however, has denied these a1 legations. The ni strict Court, 

questioned because of the timing of the charges as well as 

Vorazan's denial, whether the charges were valid. The court 

noted that Kendall has been involved in two cases concerning 
the custody of her children, and in both she has alleged 

sexual. abuse on the part of the natural father. The 

District Court was in the best position to question and 

observe Kendall and M., and we therefore yield. to its 

evaluation of the validity of the sexual abuse charges. 

The modification order of the District Court is 

affirmed. 

1 

We concur: k,~v 

r. Justice 7ohn C. Sheehy did not. participate in this 

opinion.