No. 83-140 

### INTHE SUPREME COURTOF 

### THE STATEOF MONTANA 1383

INRE THEMARRIAGE OF LINDA

### H. SARSFIELD, Petitioner andAppellant, and MICHAEL J. SARSFIELD, Respondentand Respondent.

APPEAL FROM: DistrictCourt of the Second Judicial District, Inand for the County of SilverBow, TheHonorableArnold Olsen, Judgepresiding.

COUNSELOF RECORD: ForAppellant: DanielR. Sweeney, Butte,Montana

For Respondent: DeirdreCaughlan,Butte,Montana

-------.-- Submittedon Briefs: August 

### 4, 1983 Decided: October 27, 1983

Filed: 

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### 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 thisunion: 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 soughtpermanent custody of the children and child support. Michael agreed to the custodyproposal, 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 amobile home located next door to the familyhome. He 

### remarried sometime later,and he and his newwife had ababy girl in 1982. The immediate dispute began nearly a year after the entry of the divorce decree and custody order. OnApril 16, 1982,Michael filed apetition tomodify the custodydecree. 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 tomarry, 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 toM.M., but denied that the children were in anydanger and that a change in custody would be in their best interests. She also filed a counter-petition, contending thatMichael's petition was vexatious and constituted harrassment. Four separate hearings were held concerning the proposed modification. The first, conducted May 7th, 1982, focusedprimarily on the allegations concerningM.M. and the supposed threat to the Sarsfield 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 concerningM.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

onmatters 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 thehearing, the courtordered

### 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 inviolation of the court's May 7th order. Testimony was taken from Michael, Linda, and members of their respective families, aswell 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 fromDave Evans, the social worker who investigated Michael's and Linda's home environments. Evidencewas 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 ofM.M.'s status asa childmolester,andthat therewas 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 toMichael was inthebest interestsof the children, in that the a.dvantagesof transfer outweighed thedisadvantages. 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 appealwas timely filed. Linda raisesthree issueson 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 inmodifying theoriginalcustodydecree? (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 originalcustodydecree? Once again, this Court is called upon to assume the unenviable role of King Solomon and render judgment between parentswarring over thefutureof theirchildren. This sad and difficult task is made even more vexing because of the unique factsof thiscase. Many of the evidentiary matters raised by the parties have not yet been addressed by theappellate courts of sister states, especially those that, like Montana, have adopted Uniform Marriage and Divorce Act provisions respecting modification of child custodydecrees. 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 theprior 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 hisphysical,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 ithas 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. Grovesv. Groves (1977),173Mont. 291,298-99, 567P.2d 459,463. The sinequanon 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), 646P.2d 1194, 39 St.Rep. 1118. Appellant's first issue for review goes to the trial court's decision not to dismissMichael's petition following presentation of his case-in-chief at the firsthearing. Her principal objections are that therewas 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 concerningM.M.'s history of child sexual abuse should nothave been admitted into evidence. We first consider the admissibility of the former wife's testimony. M.M. was subpoenedby 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 thather daughter had been removed from thefamily home because she had been sexually abused by M.M. She had

never witnessed any incidentsof abuse, but her husband had admitted the incidents toher. M.M. indicated tohiswife that, for atleast sixyears prior tohis admission, he had "used various items, hishands, pokers, various instruments of that sort to induce her [thedaughter] invarious 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 theabuse. 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 toundergo therapy. According tothe former wife, M.M. isnot allowed tosee the girlwithout otherspresent. He admitted his problem to counselors, but has apparently not committed any deviant acts since the lastincident with hisdaughter. Linda's attorney objected to the entire line of testimony on grounds that it was based solelyon 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 trialcourtoveruled theobjection. We findno error inthe court

## 's ruling. 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 againsthiswife without her consent or a wife for or againsther husband without his consent; nor can either during the marriage or afterward, be, without the consent of the other, examined astoany communication made by one totheother during themarriage; but thisexception does not apply toa civil action or proceeding by one against the other or to a criminal action or proceeding for a crime committed by one againsttheother." Michael argues that we have generally abrogated this privilege, citingMatter 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 thereforenot applicable torevealing communications between non-parties, as is the situation is in the case before us. Nevertheless, we think appellant is focusing on an irrelevantaspectof theprivilegewhen asking thisCourt to throwouttheevidence. Wehave previously recognized that the purpose of the spousalprivilege is toprotect the sanctityof themarriage and home. Matter of J.H., supra, 640 P.2d at 447, 39 St.Rep. at269; Statev. Taylor (1973), 163Mont. 106, 119, 515 P.2d 695, 703. This privilege, however, is subject to the maxim that, when the reason for a rule ceases toexist,

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 sexuallyabused, the sanctityof thehome 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 thoughM.M. and his formerwife are not parties to this custodybattle. 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 fromher disclosure." 8 J. Wigmore, Evidence Section 2234 

### (NcNaughton rev. 1961). Clearly, the subject of the supposedly privileged communicationshad been revealed towelfare 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. SeeRule 804(b)(3), Mont.R.Evid. Hearsay

### testimony admitted under the enumerated subsections of Rule 804cannotbe admitted unless thedeclarant 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 towarrant 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 tomakehim an object ofhatred, 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 thewife'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 theprobability of danger isgreat 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 theexisting statute and the available evidence. During the initial hearing, the trial court heard evidence concerningM.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 treatmentmethods. She testified that child molesters cannotbe 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 associationwith 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 endangeredby custodial parent's social behavior held sufficient to justify consideration ofmodification). 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 ofmodifying the prior decree. At the May 7th hearing, Linda testified that she knew of the allegationsabout M.M. nearly two months before Michael filed his petition, and that she was aware that M.M. was being counseled about hisproblem by hisminister, Dwayne Miller. AttheMay 28thhearing, thecourtheard testimonythatM.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, attheJune 28th hearing, the court indicated that it had conducted an in camera inspection of the S.R.S. fileon M.M.'s daughter, and then entered portions of the file into evidence for further consideration. In addition, the courtheard testimony from OliveSarsfield,Michael's mother, thatLindahad threatened not to allow her to see the grandchildren again if she (Linda)was successfulinthecustodybattle, and thatOlive

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 relationshipwas severed because of her overriding interest in the children. She further testified thatshehad assurancesfromPastorMiller 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 thepath to solvinghis sexualproblems, and that asa 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 disputesthe allegationthatM.M. was inthepresence of her children after the May 7thhearing, as severalmembers 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 ina position todealwith anyproblems if they

arose.The findingsof a trialjudge willnotbe disturbed on appeal where they are based on substantial though conflicting evidence, unless there is a clearpreponderance of evidence against such findings. In re Marriage of Schwartz (Mont. 1979), 602 P.2d 175, 176-77, 36 St.Rep. 1980, 1981. Itisnot the functionof thisCourttoresolve conflicts in the evidence. Weyler v. Kaufnan (1981), 196 Mont. 132, 136, 638 P.2d 393, 396. The trialjudge has the superior advantage of observing thedemeanor and credibility of the witnesses, Brooks v. Brooks (1976), 171Mont. 132, 134, 556 P.2d 901, 902, and we willnot dispute hisor her particular resolution of conflicting statements unless the evidence clearlypreponderates 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 tothe safetyof 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 (whowas notqualifiedas anexperton sexual abuse), andwe refuse to assign a different weight to their collectivetestimony

# . In summary, we find no error in the trial court's findings with respect to the potential danger raised by M.M.'s associationwith Linda and Linda's conduct once she knew or had reason to know of M.M.'s past. We note that during the June 18thproceedings, 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 formermarriageplanswere inlimbo. Having concluded that the potential danger to the childrenwas a sufficientchange incircumstances tojustify modifying the prior decree, the trialcourt was stillbound 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 initialdecree was entered in 1981and shortly thereafter. We conclude that the failure toallowthisevidence intotherecord was reversibleerror. Although thesocialworker, Dave Evans, testifiedthat Michael's new home life was suitable for raising the children, and although Michael John indicated during the September 28th colloquy thathe and Sarahwere 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 disagreewith respondent thatLinda's argument is a twelfth-hour attempt to convince the court thatmodification 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, Lindaput into issue Michael's fitness as a custodial parent, and her testimony on this issue should nothave 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 thatwere unknown at the time of entry of theprior 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 duringconsideration 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 statuteand our decisioninMatter 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 tolimitevidence in a custody dispute topost-decree facts.Whether there was no hearing prior to entry of the initial decree, as in Custody of R.L.S., or whether the fitnessof the parent seekingmodification was not atissue prior toentryof the initialdecree because thatparent 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 

### thatdecree concerning Michael's fitness to obtain custody. The trial court shall decide whether its findings with respect toMichael'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:

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### -. Chief Justice