No. 83-140 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1383 

IN RE THE MARRIAGE OF 

LINDA H. SARSFIELD, 

Petitioner and Appellant, 

and 

MICHAEL J. SARSFIELD, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver Bow, 

The Honorable Arnold Olsen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Daniel R. Sweeney, Butte, Montana 

For Respondent: 

Deirdre Caughlan, Butte, Montana 

-------.-- 

Submitted on Briefs: August 4, 1983 

Decided: October 27, 1983 

Filed: 8CT 2 :? El83 

@ 

*4 4- - -- 

Clerk 
Mr. Justice L.C. Gulbrandson delivered the Opinion of the 

Court. 

Linda Sarsfield appeals from an order of the District 

Court of the Second Judicial District, Silver Bow County, in 

favor of her former husband, Michael Sarsfield, modifying a 

prior child custody decree by transferring custody of the 

former couple's minor children from Linda to Michael. For 

the reasons stated below, we reverse the order of the trial 

court and remand for additional proceedings consistent with 

this opinion. 

Michael and Linda were married in November, 1970, and 

remained together for approximately nine years. Two 

children were born of this union: Michael John, now twelve, 

and Sarah, now four. Husband Michael apparantly left the 

family home in 1979 shortly before Sarah's birth. Linda 

filed a petition for dissolution of the marriage in 

November, 1980, and sought permanent custody of the children 

and child support. Michael agreed to the custody proposal, 

and after negotiations between the parties over child 

support and property were completed, the court issued a 

final decree of dissolution on February 6, 1981. Linda 

received custody, and Michael was allowed liberal visitation 

rights. Michael moved into a mobile home located next door 

to the family home. He remarried sometime later, and he and 

his new wife had a baby girl in 1982. 

The immediate dispute began nearly a year after the 

entry of the divorce decree and custody order. On April 16, 

1982, Michael filed a petition to modify the custody decree. 

The petition alleged that the children had been left alone 
on several occasions in the care of M.M., whom Michael 

believed to be a child molester. The petition further 

alleged that Linda and M.M. were planning to marry, and that 

the homelife of the children seriously endangered their 

physical, mental, moral, and emotional health. Michael 

sought temporary and permanent custody of the children, 

maintaining that the benefits of a transfer would outweigh 

any disadvantages. He also filed a motion requesting that 

the court conduct an in camera inspection of all records and 

documents in possession of the Department of Social & 

Rehabilitation Services (S.R.S.) relating to abuse of M.M.'s 

daughter. 

In her answer, Linda admitted her impending marriage 

to M.M., but denied that the children were in any danger and 

that a change in custody would be in their best interests. 

She also filed a counter-petition, contending that Michael's 

petition was vexatious and constituted harrassment. 

Four separate hearings were held concerning the 

proposed modification. The first, conducted May 7th, 1982, 

focused primarily on the allegations concerning M.M. and the 

supposed threat to the Sarsf ield children. Michael 

testified in support of his petition, as did his new wife, 

Penny. M.M. was called as a hostile witness, but the bulk 

of testimony concerning M.M.'s sexual proclivities came from 

M.M.'s former wife, who appeared voluntarily at Michael's 

request. Dr. Janet Allison, a psychologist, also testified 

on matters concering sexual abuse of children. Linda took 

the stand to challenge the allegations of Michael and his 

witnesses. Her minister, Dwayne Miller, testified on her 

behalf. At the conclusion of the hearing, the court ordered 
that the children be placed in Michael's custody for two 

weeks, and then be returned to Linda for two weeks. The 

court further ordered that public welfare authorities 

investigate the home environments of Michael and Linda while 

the children were in their respective custody. Finally, the 

court ordered that M.M. was not to be allowed in the 

presence of the Sarsfield children, and granted Michael's 

motion for a court inspection of the S.R.S. file on M.M.'s 

daughter . 

The second hearing, held May 28th, dealt with the 

alleged presence of M.M. in Linda's home in violation of the 

court's May 7th order. Testimony was taken from Michael, 

Linda, and members of their respective families, as well as 

M.M. Upon conclusion of the hearing, Michael was granted 

temporary custody of the children. The third hearing, held 

June 18th, consisted primarily of testimony from Dave Evans, 

the social worker who investigated Michael's and Linda's 

home environments. Evidence was also taken from Michael and 

his mother, Olive, as well as Linda and Pastor Miller, and 

Ronald Kautzman, Michael John Sarsfield's principal at the 

school he attended while under his mother's custody. A 

separate colloquy was held with Michael John on September 

28th in the presence of counsel, wherein the court 

interviewed the boy concerning his current family life and 

that of his sister Sarah. 

The court entered its findings and conclusions 

November 29th, 1982. Specifically, the court found that the 

children's physical, mental, moral and emotional health were 

seriously endangered by the association of M.M. with Linda 

Sarsfield, because of M.M.'s status as a child molester, and 
that there was a potential for future harm if the children 

remained in Linda's custody. The court further found that 

Linda's conduct was, under the circumstances, "grossly 

negligent and irresponsible." The court concluded that a 

transfer of custody to Michael was in the best interests of 

the children, in that the a.dvantages of transfer outweighed 

the disadvantages. Linda was granted visitation rights. A 

motion to amend the findings and conclusions was promptly 

filed. A hearing was had, and the motion to amend was 

denied. Notice of appeal was timely filed. 

Linda raises three issues on appeal: 

(1) Whether the trial court erred by failing to 

dismiss Michael's petition for modification for failure to 

meet the jurisdictional prerequisites of Section 40-4-219, 

MCA? 

(2) Whether, in light of the evidence and the 

statutory requirements concerning changes in the 

circumstances of the children, the court erred in modifying 

the original custody decree? 

(3) Whether the trial court erred in sustaining an 

objection to hearing testimony concerning allegations of 

Michael's fitness to be granted custody, where the 

allegations involved matters occuring before and after the 

original custody decree? 

Once again, this Court is called upon to assume the 

unenviable role of King Solomon and render judgment between 

parents warring over the future of their children. This sad 

and difficult task is made even more vexing because of the 

unique facts of this case. Many of the evidentiary matters 

raised by the parties have not yet been addressed by the 
appellate courts of sister states, especially those that, 

like Montana, have adopted Uniform Marriage and Divorce Act 

provisions respecting modification of child custody decrees. 

Thus, we set out, to an extent, upon unchartered waters, 

although our prior experience with considering modified 

custody decrees does offer at least one star upon which we 

may rely when plotting our course. 

The polestar that guides our discretion in this 

modification case is mapped out carefully in certain 

provisions of Section 40-4-219, MCA: 

"40-4-219. Modification. (1) 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. In 

applying these 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." 

Subsection (c) is a jurisdictional prerequisite to 

determining whether modification of the prior decree is 

in the best interests of the child. In other words, the 

district court "is powerless to entertain . considerations [of best interests and changes in 

circumstances] if it has not found at the outset [that] the 

child's welfare [is] 'endangered seriously' by the present 

custody arrangement." Gianotti v. McCracken (1977), 174 

Mont. 209, 214, 569 P.2d 929, 932. See also In re the 
Custody of Dallenger (1977), 173 Mont. 530, 534, 568 P.2d 

169, 171-2. This prerequisite codifies the basic policy 

behind the modification statute: a presumption in favor of 

custodial continuity. Dallln er supra. Thus, the party -7z-I 

seeking modification bears a heavy burden to prove the 

circumstances necessary for modification. Groves v. Groves 

(1977), 173 Mont. 291, 298-99, 567 P.2d 459, 463. 

The sine qua non of appellant's case is a satisfactory 

showing that the trial court proceeded without regard to the 

evidence relied upon to support the change in custody. We 

emphasize, however, that the findings and conclusions of the 

court will not be disturbed if they are supported by 

substantial, credible evidence. Sawyer-Adecor Intern., Inc. 

v. Anglin (Mont. 1982), 646 P.2d 1194, 39 St.Rep. 1118. 

Appellant's first issue for review goes to the trial 

court's decision not to dismiss Michael's petition following 

presentation of his case-in-chief at the first hearing. Her 

principal objections are that there was no evidence pointing 

to actual serious danger to the minor children during her 

association with M.M., and that the testimony of M.M.'s 

former wife concerning M.M.'s history of child sexual abuse 

should not have been admitted into evidence. 

We first consider the admissibility of the former 

wife's testimony. M.M. was subpoened by Michael to testify 

as a hostile witness, but he invoked his constitutional 

privilege against self-incrimination and did not answer 

questions concerning allegations that he had sexually abused 

his daughter a few years prior to the immediate case. The 

trial court protected him from any incriminating questions 

posed by Michael's attorney. After he was dismissed, 
however, M.M.'s former wife was called as a witness. She 

testified that her daughter had been removed from the family 

home because she had been sexually abused by M.M. She had 

never witnessed any incidents of abuse, but her husband had 

admitted the incidents to her. M.M. indicated to his wife 

that, for at least six years prior to his admission, he had 

"used various items, his hands, pokers, various instruments 

of that sort to induce her [the daughter] in various ways" 

on several occasions. No criminal charges were filed 

against M.M., but the daughter was removed by authorities 

and underwent treatment for emotional problems connected 

with the abuse. 

After her return from therapy, M.M. admitted to his 

wife that he had sexually molested the girl again. The 

daughter was removed to a childrens' home where she 

continues to undergo therapy. According to the former wife, 

M.M. is not allowed to see the girl without others present. 

He admitted his problem to counselors, but has apparently 

not committed any deviant acts since the last incident with 

his daughter. 

Linda's attorney objected to the entire line of 

testimony on grounds that it was based solely on privileged 

communications between M.M. and his former wife during the 

course of their marriage. In the alternative, counsel 

objected to the testimony as inadmissible hearsay. The 

trial court overuled the objection. We find no error in the 

court ' s rul ing. 

The privilege against examination concerning 

inter-spousal communications is set forth in Section 

26-1-802, MCA: 
"Spousal privilege. A husband cannot be 

examined for or against his wife without 

her consent or a wife for or against her 

husband without his consent; nor can 

either during the marriage or af terward, 

be, without the consent of the other, 

examined as to any communication made by 

one to the other during the marriage; but 

this exception does not apply to a civil 

action or proceeding by one against the 

other or to a criminal action or 

proceeding for a crime committed by one 

against the other." 

Michael argues that we have generally abrogated this 

privilege, citing Matter of J.H. (Mont. 1982), 640 P.2d 445, 

39 St.Rep. 267. Appellant notes correctly, however, that 

Matter --- of J.H. was concerned solely with the spousal 

privilege as it pertains to parties to an action, and is 

therefore not applicable to revealing communications between 

non-parties, as is the situation is in the case before us. 

Nevertheless, we think appellant is focusing on an 

irrelevant aspect of the privilege when asking this Court to 

throw out the evidence. 

We have previously recognized that the purpose of the 

spousal privilege is to protect the sanctity of the marriage 

and home. Matter of J.H., supra, 640 P.2d at 447, 39 

St.Rep. at 269; State v. Taylor (1973), 163 Mont. 106, 119, 

515 P.2d 695, 703. This privilege, however, is subject to 

the maxim that, when the reason for a rule ceases to exist, 

so then should the rule. See Section 1-3-201, MCA. Thus, 

in Matter of J.H., we held that once a family member has 

been sexually abused, the sanctity of the home and therefore 

the reason for the rule are simultaneously destroyed, 640 

P.2d at 447, 39 St.Rep. at 269, and that a mother could 

testify about her husband's sexual abuse of their son in a 

child neglect proceeding, where the father was a party to 
the action. In the immediate case, the sexual abuse of 

M.M. 's daughter decidedly contributed to the destruction of 

the family home and M.M.'s marriage. Under the 

circumstances, we believe the privilege concerning 

communications about this abuse died with the marriage, and 

we are disinclined to invoke the privilege even though M.M. 

and his former wife are not parties to this custody battle. 

Additionally, Professor Wigmore has criticized the 

spousal privilege in situations involving non-parties on 

other grounds: 

"[Tlhe exclusion of a wife on the ground 

that her testimony may reveal his 

misconduct, and thus 'tend' to charge [or 

incriminate] him, rests on the 

assumption, false in fact, that her 

testimony on the stand would in any sense 

be a revelation, an unsealing of that 

which was secret. Nothing prevents her 

from revealing her knowledge out of 

court; in most instances she has in fact 

done so. It would be mere hypocrisy to 

sanction her silence on the stand on the 

pretext that the husband was thus really 

safeguarded from her disclosure." 

8 J. Wigmore, Evidence Section 2234 (NcNaughton rev. 1961). 

Clearly, the subject of the supposedly privileged 

communications had been revealed to welfare authorities and, 

as it turned out later, to M.M.'s "counselor," Pastor 

Miller. We agree with the trial court that the testimony of 

M.M.'s wife was not protected by the spousal privilege under 

these facts. 

Neither the trial court nor the parties have fully 

explored appellant's suggestion that the testimony was 

inadmissible as hearsay, whether or not the spousal 

privilege applied. We find that the evidence would be 

admissible as a statement against interest, an exception to 

the hearsay rule. See Rule 804(b)(3), Mont.R.Evid. Hearsay 
testimony admitted under the enumerated subsections of Rule 

804 cannot be admitted unless the declarant is "unavailable" 

for trial. Exemption from testifying on grounds of 

privilege is one form of "unavailability." Rule 804 (a) (1) , 

Mont.R.Evid. A witness' claim of the privilege against 

self-incrimination is generally regarded as a sufficient 

ground of unavailability to warrant reception as a statement 

against interest of a prior statement or communication made 

by him. See generally Annot., 43 ALR3d 1413 (1972). In 

this case, M.M.'s communications to his wife were "so far 

tended to subject him to . . . criminal liability . . . or 

to make him an object of hatred, ridicule, or disgrace, that 

a reasonable man in his position would not have made the 

statement[s] unless he believed [them] to be true." See 

Rule 804(b)(3), Mont.R.Evid. There being circumstantial 

guarantees of trustworthiness, we conclude that the 

communications were admissible. 

We next examine appellant's argument that Michael and 

his witnesses presented no evidence of an actual danger to 

the children while in the wife's custody. Indeed, there was 

nothing to suggest that either of the children, especially 

the girl Sarah, who was probably the most susceptible to 

harm, had ever been physically molested. Nevertheless, we 

recognize that child abuse presents a special problem with 

respect to proof of danger. Specifically, we must decide 

whether or not the probability of danger is great enough to 

give the trial court jurisdiction over the proposed 

modification. See Section 40-4-219(1)(c). No other 

appellate court has dealt with this particular problem, so 

we must rely solely on a reasonable construction of the 
existing statute and the available evidence. 

During the initial hearing, the trial court heard 

evidence concerning M.M.'s record as a sexual molester. In 

addition, Dr. Allison, a psychologist qualified to discuss 

child sexual abuse, testified concerning the causes of this 

deviant behavior and treatment methods. She testified that 

child molesters cannot be cured, but can only be controlled. 

In short, the molester must be carefully monitored, 

especially in the sensitive situation when children are 

present. Although Dr. Allison had not examined M.M. 

personally, she indicated that if a previous offender like 

M.M. were placed in a family environment like Linda's, the 

risk of reoccuring sexual abuse, especially of the young 

girl, would be "rather high." She reiterated this concern 

later in her testimony, believing that there would be a 

substantial risk involved in placing an admitted child 

molester in a family situation. She also noted that Montana 

does not have a comprehensive treatment program for 

offenders. 

Given the testimony described above, we cannot say 

that the trial court erred by not dismissing the petition 

after presentation of Michael's case-in-chief. There was 

substantial evidence before the court to suggest that a 

potentially serious situation existed with respect to M.M.'s 

association with Linda and her children. Appellant insists, 

however, that without proof of "actual danger ," the 

jurisdictional pre-requisites of Section 40-4-219(1)(c) have 

not been met. We find it difficult to accept this line of 

reasoning under these facts. Appellant is surely not 

maintaining that until one of the Sarsfield children is 
sexually assaulted, a trial court cannot consider altering 

the terms of an initial custody decree. Other courts 

interpreting statutory provisions similar to Section 

40-4-219 (1 ) (c) have concluded that, even in less serious 

situations than sexual abuse, the potential for or 

probability of serious harim is sufficient to invoke the 

trial court ' s jurisdiction to contemplate modification of a 

custody decree. See e.g., ,;n re Marriage of Padiak (1981), 

at@ 101 111.App. 3d, 427 N.E.,, 1372 (testimony by psychiatrist 

that child's mental, moral and emotional health was 

potentially endangered by custodial parent's social behavior 

held sufficient to justify consideration of modification). 

In summary, we will not interpret the provisions of 

the modification statute so narrowly as to prevent trial 

courts from assuming jurisdiction over modification 

petitions where substantial, credible evidence of a 

potential danger is presented by a petitioner during the 

case-in-chief. Such is the case here, and the trial judge 

did not abuse his discretion by failing to dismiss the 

complaint. 

With respect to the second issue for review, appellant 

must again point to a lack of substantial, credible evidence 

to warrant further consideration of the proposed 

modification. We conclude that, in addition to testimony 

presented by Michael and his witnesses at the first hearing, 

subsequent testimony and information brought to the 

attention of the court provided substantial, credible 

evidence of a change in circumstances so as to warrant 

consideration of modifying the prior decree. At the May 7th 

hearing, Linda testified that she knew of the allegations 
about M.M. nearly two months before Michael filed his 

petition, and that she was aware that M.M. was being 

counseled about his problem by his minister, Dwayne Miller. 

At the May 28th hearing, the court heard testimony that M.M. 

had been in the presence of the Sarsfield children on at 

least one occasion immediately following the May 7th 

hearing, contrary to the court's order that he stay away 

from the children. Finally, at the June 28th hearing, the 

court indicated that it had conducted an in camera 

inspection of the S.R.S. file on M.M.'s daughter, and then 

entered portions of the file into evidence for further 

consideration. In addition, the court heard testimony from 

Olive Sarsfield, Michael's mother, that Linda had threatened 

not to allow her to see the grandchildren again if she 

(Linda) was successful in the custody battle, and that Olive 

was "in league with the devil'' because of her support for 

Michael's petition. 

To counter this evidence, appellant points to her 

statements that the impending marriage to M.M. had been 

postponed, and eventually that the relationship was severed 

because of her overriding interest in the children. She 

further testified that she had assurances from Pastor Miller 

that M.M. was "O.K.," and that the testimony of M.M.'s wife 

was motivated by jealousy because she wanted M.M. back. 

Linda also relies on the remarks of Pastor Miller, who 

contended that M.M.'s religious conversion had brought him 

down the path to solving his sexual problems, and that as a 

minister and a counselor to M.M., he would not have 

sanctioned the impending marriage had he not been convinced 

that M.M.'s problems had been solved. Linda also disputes 
the allegation that M.M. was in the presence of her children 

after the May 7th hearing, as several members of her family 

testified that the children were not in the home when M.M. 

was there. Linda also renews earlier arguments that the 

children were never physically harmed by M.M., and that 

Michael, who lived next door for much of the time of the 

hearing, was in a position to deal with any problems if they 

arose. 

The findings of a trial judge will not be disturbed on 

appeal where they are based on substantial though 

conflicting evidence, unless there is a clear preponderance 

of evidence against such findings. In re Marriage of 

Schwartz (Mont. 1979), 602 P.2d 175, 176-77, 36 St.Rep. 

1980, 1981. It is not the function of this Court to resolve 

conflicts in the evidence. Weyler v. Kaufnan (1981), 196 

Mont. 132, 136, 638 P.2d 393, 396. The trial judge has the 

superior advantage of observing the demeanor and credibility 

of the witnesses, Brooks v. Brooks (1976), 171 Mont. 132, 

134, 556 P.2d 901, 902, and we will not dispute his or her 

particular resolution of conflicting statements unless the 

evidence clearly preponderates against the findings. Here, 

many of appellant's arguments involve conflicting evidence. 

The trial court had substantial evidence before it to 

conclude that M.M. was a potential threat to the safety of 

the Sarsfield children, and had apparantly defied the 

court's May 7th order to stay away from the children. 

Obviously, the trial judge was not convinced by the 

testimony of Linda, members of her family, or Pastor Miller 

(who was not qualified as an expert on sexual abuse), and we 

refuse to assign a different weight to their collective 
testimony . 

In summary, we find no error in the trial court's 

findings with respect to the potential danger raised by 

M.M.'s association with Linda and Linda's conduct once she 

knew or had reason to know of M.M.'s past. We note that 

during the June 18th proceedings, there was testimony that 

M.M. had left the community and therefore inferentially 

posed no threat to the Sarsfield children. Nevertheless, 

during the September 28th colloquy, Michael John Sarsfield 

indicated that he usually saw M.M. at the same church 

attended by Linda, Michael John, and Sarah when Linda had 

visitation rights, and that Linda would speak to M.M. at 

that time. The court could thus reasonably conclude that 

Linda's association with M.M. had not ended, even if their 

former marriage plans were in limbo. 

Having concluded that the potential danger to the 

children was a sufficient change in circumstances to justify 

modifying the prior decree, the trial court was still bound 

to consider the best interests of the children before 

deciding that transfer of custody to Michael was mandated. 

Appellant's third issue goes to the unwillingness of the 

trial court to hear evidence concerning allegations about 

Michael's behavior before the initial decree was entered in 

1981 and shortly thereafter. We conclude that the failure 

to allow this evidence into the record was reversible error. 

Although the social worker, Dave Evans, testified that 

Michael's new home life was suitable for raising the 

children, and although Michael John indicated during the 

September 28th colloquy that he and Sarah were happy living 

with their father, his new wife, and their newborn child, 
Linda attempted to put in evidence concerning Michael's 

moral behavior prior to and shortly after the dissolution of 

their marriage. Linda did testify at the early hearing that 

Michael did not relate well to the children, and had 

"deserted" the family in 1979, but the evidentiary problem 

arose during the June 18th hearing when the court sustained 

an objection to having Linda elaborate on the question of 

Michael's moral conduct and fitness to raise children. 

We disagree with respondent that Linda's argument is a 

twelfth-hour attempt to convince the court that modification 

of the decree was unnecessary. In her answer to Michael's 

petition, Linda generally denied several averments made by 

Michael, including the ones that he could provide "a safe 

and stable home for the children," and that at the very 

least, temporary custody was "in the best interests of the 

children." By denying these averments, Linda put into issue 

Michael's fitness as a custodial parent, and her testimony 

on this issue should not have been summarily refused. 

Section 40-4-219(1) specifically contemplates that: 

"[tlhe 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 at the 

time of entry of the prior decree, that a 

change has occured in the circumstances 

of the child or his custodian and that 

the modification is necessary to serve 

the best interest of the child." 

(emphasis added) 

Clearly, the statute requires the trial court to consider 

post-decree facts, as well as pre-decree facts unknown to 

the trial court at the time the decree was entered, in 

determining both the "change in circumstances" and the "best 

interests" requirements. Respondent Michael argues that, 

because there was no issue as to Michael's fitness during 
consideration of the first decree, the trial court is 

automatically precluded from probing that issue in a later 

modification hearing. This is inconsistent with a fair 

reading of the statute and our decision in Matter of Custody 

of R.L.S. (Mont. 1981), 632 P.2d 703, 38 St.Rep. 1328, 

wherein we held that it was reversible error for a trial 

court to limit evidence in a custody dispute to post-decree 

facts. 

Whether there was no hearing prior to entry of the 

initial decree, as in Custody of R.L.S., or whether the 

fitness of the parent seeking modification was not at issue 

prior to entry of the initial decree because that parent did 

not challenge his spouse's demand for custody, the primary 

concern of the trial court is still the welfare of the 

child. The court cannot satisfy this concern if it 

consciously or unconsciously avoids facts about the parent 

seeking modification that took place prior to entry of the 

initial decree. Contrary to the thrust of Michael's 

argument, Linda's testimony concerning his conduct or 

behavior prior to entry of the first decree may involve 

"facts . . . unknown to the court at the time of entry" 

within the scope of Section 40-4-219, and this testimony 

should not have been prohibited. See also Boggs v. Boggs 

(1978), 65 Ill.App.3d 965, 383 N.E.2d 9; In re Rankin 

(1969), 76 Wash.2d 533, 458 P.2d 176. 

Accordingly, the judgment of the district court is 

reversed and the case is remanded for further proceedings. 

Upon remand, the trial court shall take testimony relating 

to facts or allegations that have arisen since the prior 

decree or that were unknown to the court at the time of 
entry of that decree concerning Michael's fitness to obtain 

custody. The trial court shall decide whether its findings 

with respect to Michael's fitness, considered in conjunction 

with its earlier findings concerning the changes in 

circumstances, still warrant modification of the initial 

decree by placing the Sarsfield children in Michael's 

custody. 

We concur: 

- -. 

Chief Justice