No. 84-49 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

IN RE THE MARRIAGE OF 

TERRI Be HANS HARDY, 

Co-Petitioner and Appellant, 

and 

MICHAEL A. HANS, 

Co-Petitioner and Respondent. 

APPEAL FROM: District Court of the Tenth Judicial District, 

In and for the County of Fergus, 

The Honorable Peter L. Rapkoch, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John R. Christensen, Stanford, Montana 

For Respondent: 

John Paulson, Lewistown, Montana 

Submitted on Briefs: June 7, 1984 

Filed: g4hJG I ;: 1984 

Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

Terri B. Hans Hardy appeals from judgments of the 

District Court denying her petition for modification of 

custody of her son and denying her motion for a new trial. 

We affirm the decisions of the District Court. 

On May 2, 1979, the marriage of appellant, Terri Hans 

Hardy and respondent, Michael Hans, was dissolved pursuant to 

a joint petition which incorporated a child custody, support, 

visitation and property settlement agreement entered into by 

the parties. The agreement gave Terri custody of the 

couple's two daughters, Janice and Kim. Michael received 

custody of their son, Kris. 

Terri married Aaron Hardy in August of 1979 and resides 

in Lewistown, Nontana. At the time of his divorce from 

Terri, Michael was studying to become a school psychologist. 

His internship required that he and Kris reside in Deer Lodge 

and Great Falls, Montana before moving to Casper, Wyoming, 

where Michael is still employed and living with his wife, 

Laura. 

In an apparent effort to develop a close relationship 

with their non-custodial parent, Kim spent the 1981-82 school 

year with her father while Kris spent the summer of 1981 and 

that same school year with his mother. After a summer visit 

to Casper, Kris returned to Lewistown for the 1982-83 school 

year. In June of 1983, Terri requested Michael to allow Kris 

to remain in Lewistown for the next school year. Michael 

refused and Terri filed a petition requesting that the 

custody decree be modified to give her custody of Kris. 

A hearing on the petition was held September 12, 1983. 

Kris was interviewed by the judge in chambers. Terri, 

Janice, Michael and Laura testified. A memorandum order was 
issued September 19, 1983, denying Terri's petition. A 

motion to amend or in the alternative for a new trial was 

then filed by Terri on September 28, 1983. The motion for 

new trial was denied, but the memorandum order was amended to 

include a paragraph noting Kris' preference for remaining in 

Lewistown. 

Terri raises two issues in this appeal: 

1. Did the District Court misapply section 40-4-219, 

MCA (1983), when it found that a change to custody by the 

mother was not in the child's best interest, even though it 

found the child to be integrated into the mother's home? 

2. Does the evidence support the finding that a change 

in custody was not in the child's best interest, in 

accordance with section 40-4-212, MCA (1983)? 

All parties agree with the District Court judge's 

determination that Kris was integrated into Terri's family 

with Michael's consent. 

Appellant asserts that the finding of integration 

mandates modification of custody. Such is not the case. 

Although it has since been amended, at the time of the 

hearing, section 40-4-219, MCA (1983), stated in part: 

"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: 

"(a) the custodian agrees to the modification; 

"(b) the child has been integrated into the family 

of the petitioner with consent of the custodian; or 

"(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. " 
We held subsections (1) (a) through (1) (c) to be 

jurisdictional prerequisites to modification in In re Custody 

of Dallenger (1977), 173 Mont. 530, 568 P.2d 169. Therefore, 

rather than a finding of integration requiring modification, 

modification required that either integration into 

petitioner's family with consent or one of the situations 

described in subsections (1) (a) or (1) (c) exist. 

Once jurisdiction to modify was established, the 

District Court had to determine whether a change had occurred 

in Kris' circumstances and whether that change resulted in 

Kris' best interests being served by a modification in 

custody. Section 40-4-212, MCA provides the criteria to be 

used in determining the best interests of a child in a 

modification proceeding. R. I,. S. and T. L. S. v. Barkhof f 

(Mont. 1983), 674 P.2d 1082, 1087, 40 St.Rep. 1982, 1986. 

Section 40-4-212, MCA states: 

"The court shall determine custody in accordance 

with the best interest of the child. The court 

shall consider all relevant factors including: 

" (1) the wishes of the child's parent or parents 

as to his custody; 

" (2) the wishes of the child as to his custodian; 

"(3) the interaction and interrelationship of the 

child with his parent or parents, his siblings, and 

any other person who may significantly affect the 

child's best interest; 

" (4) the child's adjustment to his home, school, 

and community; and 

" (5) the mental and physical health of all 

individuals involved." 

The District Court need not make specific findings on 

each of the elements. Speer v. Speer (Mont. 1982), 654 P.2d 

1001, 1003, 39 St. Rep. 2204, 2206. However, the "essential 

and determining facts upon which the District Court rested 

its conclusion" must be expressed. Cameron v. Cameron 

(1982), 197 Mont. 226, 231, 641 P.2d 1057, 1060. 
The amended memorandum order states in part: 

"The child, KRISTOFOR HANS, was interviewed by the 

Court . . .. Kris expressed himself freely and 

apparently without any fear of either parent. He 

indicated that he would prefer to remain with his 

mother in Lewistown, Montana, but that preference 

was not a firm or adamant preference. He has 

friends in Lewistown, as must be expected. He is 

quite active in sports. He did, however, indicate 

he is, or soon will be, equally active in Wyoming 

with his father. The boy's life is a normal one in 

the homes of both his parents; the father's 

provides considerably more structure and challenge 

to a very talented and capable young man. 

". . . It is this Court's opinion that the father's 

home will provide more stability and structure for 

the boy and will thereby enhance his 

self-discipline. Thus will Kris' scholarship and 

general upbringing be enhanced and that these 

matters will be accomplished more readily in the 

father's than in the mother's home." 

These statements address Kris' desires, ~ris' 

interaction with his family and friends in both Lewistown and 

Wyoming, Kris' adjustment to each community and the effects 

of each setting on Kris' school work and athletic 

participation. The desires of Kris' parents are obvious. 

Finally, the court's statements are supported by 

substantial credible evidence. Schell v. Schell (Mont. 

1984), 678 P.2d 1146, 1147, 41 St.Rep. 617, 618. Kris stated. 

that although he preferred to remain in Lewistown, he had 

friends and participated in sports in Wyoming. School 

records indicate that his work performance is better in 

Wyoming. Kris' sister Janice testified that although she 

preferred her brother remain in Lewistown, their relationship 

would continue to be close if he lived with their father in 

Wyoming. As there is substantial credible evidence to 

support the court's findings and conclusions, the order 

denying Terri's petition is affirwd, 
We concur: 

24 &&* 

Chief Justice '