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, HonorableW. W. Lessley, Judge presiding. Counsel of Record: ForAppellant: JamesM. Kommers, Bozeman, Montana For Respondent: Linda K. Firman, Pro Se, Bozeman, Montana



### - Submitted on briefs: February 8, 1980 

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

DaleM. ~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. Firmanwere formerlyhusband 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 $150per month child support and to keep in effect a health insurancepolicy for the children. The insurance policy carries a $51per month premium. In addition,Dale

was to receive reasonablevisitation rights. In this regard, Dale generally enjoyed a oneweekend per month arrangement at the time this causewas filed. Problems arose regarding Dale's visitation rights. On December 27, 1978, Dale petitioned the DistrictCourt for a modification of the dissolution decree. Specifically,the petition requested a fixed schedule of visitation consisting of three summermonths, alternateweekends, 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 schoolunder 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'spetition. Trial without a jury was held on March 14, 1979, and the DistrictCourt entered its judgment

onApril 5, 1979. The judgment, in effect, granted Linda's counterclaim. Under the judgment,Dale has a visitation right of onemonth during the summer,provided he gives one week's notice to Edward. Also, Dalemust 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 childrenmay 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 themodified provisions. Dale first contends the DistrictCourt arbitrarily restricted his visitation rights to one summermonth. 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 findingwas 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 Courtmade no specific finding or conclusion -3-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 factno. 6, the District Court found that overnightweekend visits interferewith the children's schoolpreparations. Yet, Linda herself testified the childrenwere notpermitted to take schoolwork along during theweekend. Similarly, in finding of fact no. 10, the District Court found Dale left the childrenwithout 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 thiswas 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 theprior visitation arrangement was it deprived Edward of free timewith the children since Lcivrard works six days a week. This concern is an insufficient basis formodifying Dale's visitation rights. Thewellrounded development of a normal child demands association with both natural parents, and the noncustodial parent is entitled to a fairopportunity to share in the child's love and affectionwhen this canbe done without detriment to the child. McGetrick v. McGetrick (Ore. 1955), 284 P.2d 352, 354. Dalenext contends the District Court abused its discretion in requiring Dale to pay one-half of the children's uninsured medical expenses and $75per month into a trust fund for the children. We agree here too. -4-As with Dale's visitation rights, our function upon reviewing this issue is to determine whether there is substantial credible evidence to support the DistrictCourt's determination. Burris v. Burris (1976), 171Mont. 227, 557 P.2d 287. There is none here. Since Dalenever consented inwriting to a modification of his child support obligation, the District Court could modify that obligationonly upon a showing of changed circumstances so substantialand continuing as to make the original child supportprovision unconscionable. Section 40-4-208(2)(b), MCA. No such showingwas made at trial. Moreover, there is a complete absence in the record of any evidence concerning the need for increased child supportor 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 estrangehim from his children. We also agree here. At common law, a person could adopt any surnamehe might choose so long as the changewas notmade for fraudulent purposes. Thus, absent a statute to the contrary, thewidespread 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 (Ohio1953), 112N.E.2d 562. Since there is no other statute inpoint, this Courtmust fall back on general principles, the most importantof which in any proceeding concerning the relationshipof a father and his child is the best interest of the child. -5-Under the particular circumstances presented, it is in the best interests of the children to use the surnameof Firman for allpurposes. Dale and his children live in the same community and have manifested an abiding interest in each other. Dalehas consistently fulfilled his child support obligations. Thus,until the children reach an age where they can fully understand the circumstances surrounding theirparents' marriage dissolution, the District Court should notpermit an unnatural barrier to comebetween 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 DistrictCourt's judgment and remand the

cause for further proceedings in accordance with this opinion.

We Concur:

Chief Justice 

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# I/ Justice