No. 14895 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

IN FU3 THE MARRIAGE OF 

LINDA K. FIRMAN, 

Plaintiff and Respondent, 

VS . 

DALE M. FIRMAN, 

Respondent and Appellant. 

Appeal from: District Court of the Eighteenth Judicial District, 

Honorable W. W. Lessley, Judge presiding. 

Counsel of Record: 

For Appellant: 

James M. Kommers, Bozeman, Montana 

For Respondent: 

Linda K. Firman, Pro Se, Bozeman, Montana 

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Submitted on briefs: February 8, 1980 

7Q;,r; Filed: -- 
Mr. Justice John C. Sheehy delibered the opinion of the 

Court. 

Dale M. ~irman appeals from a judgment of the District 

Court, ~ighteenth Judicial District, Gallatin County, modifying 

a marriage dissolution decree. Dale seeks review of his 

child visitation rights, his child support obligations and 

the use by his children of a different surname than Firman. 

Dale and Linda K. Firman were formerly husband and 

wife. Their marriage was dissolved in February 1976. Under 

the dissolution decree, Linda was granted custody of the 

parties three minor children, Kelley, Marty and Kimberly, 

now eight, nine and ten years old, respectively. Dale was 

to pay $150 per month child support and to keep in effect a 

health insurance policy for the children. The insurance 

policy carries a $51 per month premium. In addition, Dale 

was to receive reasonable visitation rights. In this regard, 

Dale generally enjoyed a one weekend per month arrangement 

at the time this cause was filed. 

Problems arose regarding Dale's visitation rights. On 

December 27, 1978, Dale petitioned the District Court for a 

modification of the dissolution decree. Specifically, the 

petition requested a fixed schedule of visitation consisting 

of three summer months, alternate weekends, Thanksgiving and 

Christmas days during alternate years. The petition also 

requested the children be required to use their legal surname 

of Firman. Subsequent to the marriage dissolution, Linda 

was remarried to Edward Hauser. The children were enrolled 

in school under the name of Hauser, but Edward had never 

legally adopted the children. All the children's other 

records have remained in the name of Firman. The children 

wanted to use the Hauser name at school to avoid inquisitive 

peers. 
On January 22, 1979, Linda filed an answer and counterclaim to Dale's petition. Trial without a jury was held on 

March 14, 1979, and the District Court entered its judgment 

on April 5, 1979. The judgment, in effect, granted Linda's 

counterclaim. Under the judgment, Dale has a visitation 

right of one month during the summer, provided he gives one 

week's notice to Edward. Also, Dale must pay one-half of 

all the children's uninsured medical expenses and $25 per 

month per child to be held in trust for each child until 

that child reaches eighteen years of age. This is in addition 

to Dale's prior support obligations under the original 

dissolution decree. Finally, the children may use any surname 

they prefer. 

The issue presented is whether the District Court 

abused its discretion in restricting Dale's prior visitation 

rights, increasing his child support obligations and allowing 

the children to use any surname they prefer. We hold the 

District Court abused its discretion with regard to all 

three of the modified provisions. 

Dale first contends the District Court arbitrarily 

restricted his visitation rights to one summer month. We 

agree. 

Clearly, a District Court has the discretion to modify 

the noncustodial parent's visitation rights whenever such 

modification would be in the best interests of the child. 

However, by the express terms of the controlling statute, 

the District Court cannot restrict such rights unless it 

first finds that the existing visitation arrangement seriously 

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

health. Section 40-4-217(3), MCA. No such finding was made 

here. 

In its findings of fact, the District Court found the 

existing visitation arrangement to be reasonable. Yet, the 

District Court restricted Dale's visitation rights to one summer 

month. The District Court made no specific finding or conclusion 

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that the existing arrangement seriously endangered the 

children's health. Moreover, the District Court's findings 

which might provide a basis for such a determination are not 

supported by substantial credible evidence in the record. 

In finding of fact no. 6, the District Court found that 

overnight weekend visits interfere with the children's 

school preparations. Yet, Linda herself testified the 

children were not permitted to take schoolwork along during 

the weekend. Similarly, in finding of fact no. 10, the 

District Court found Dale left the children without supervision 

on at least one occasion. The only evidence in the record 

is that Dale left the children unsupervised for one-half to 

one and one-half hours. Given the children's ages and the 

fact this was a one-time occurrence, this hardly seems a 

serious endangerment to the children's health. 

At the trial of this cause, the children told the 

District Court they enjoy seeing their father. Linda herself 

testified Dale's prior visitation rights did no harm to the 

children other than he occasionally took them along hunting. 

Linda's prime concern with the prior visitation arrangement 

was it deprived Edward of free time with the children since 

Lcivrard works six days a week. This concern is an insufficient 

basis for modifying Dale's visitation rights. The wellrounded development of a normal child demands association 

with both natural parents, and the noncustodial parent is 

entitled to a fair opportunity to share in the child's love 

and affection when this can be done without detriment to the 

child. McGetrick v. McGetrick (Ore. 1955), 284 P.2d 352, 

354. 

Dale next contends the District Court abused its discretion 

in requiring Dale to pay one-half of the children's uninsured 

medical expenses and $75 per month into a trust fund for the 

children. We agree here too. 

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As with Dale's visitation rights, our function upon 

reviewing this issue is to determine whether there is substantial credible evidence to support the District Court's 

determination. Burris v. Burris (1976), 171 Mont. 227, 557 

P.2d 287. There is none here. 

Since Dale never consented in writing to a modification 

of his child support obligation, the District Court could 

modify that obligation only upon a showing of changed circumstances so substantial and continuing as to make the original 

child support provision unconscionable. Section 40-4-208(2)(b), 

MCA. No such showing was made at trial. Moreover, there is 

a complete absence in the record of any evidence concerning 

the need for increased child support or Dale's increased 

ability to pay such support. 

Dale's final contention is the District Court abused its 

discretion in allowing the children to use the surname they 

prefer. According to Dale, the only possible effect of this 

determination is to further estrange him from his children. 

We also agree here. 

At common law, a person could adopt any surname he might 

choose so long as the change was not made for fraudulent 

purposes. Thus, absent a statute to the contrary, the widespread 

custom in this country of giving a child the surname of his 

father is a matter of choice rather than law. Secretary of 

Com. v. City Clerk of Lowell (Mass. 1977), 366 N.E.2d 717, 

725. Title 27, chapter 31, parts 1 and 2, MCA, provides a 

procedure for changing one's name. These statutes are in 

affirmance and aid of common law and do not abrogate it. Kay 

v. Kay (Ohio 1953), 112 N.E.2d 562. Since there is no other 

statute in point, this Court must fall back on general principles, 

the most important of which in any proceeding concerning the 

relationship of a father and his child is the best interest of 

the child. 

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Under the particular circumstances presented, it is in 

the best interests of the children to use the surname of 

Firman for all purposes. Dale and his children live in the 

same community and have manifested an abiding interest in 

each other. Dale has consistently fulfilled his child 

support obligations. Thus, until the children reach an age 

where they can fully understand the circumstances surrounding 

their parents' marriage dissolution, the District Court 

should not permit an unnatural barrier to come between Dale 

and the children. Such a barrier can only further estrange 

Dale and the children. 

Having determined the District Court abused its discretion 

concerning Dale's visitation rights, his child support obligations and the children's use of the surname they prefer, 

we reverse the District Court's judgment and remand the 

cause for further proceedings in accordance with this opinion. 

We Concur: 

Chief Justice 

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I/ Justice