NO. 91-269 IN THE SUPREME COURT OF THE STATE OF MONTANA 1992

IN RE THE MARRIAGE OF EILEEN THOMAS, f/k/a/ EILEEN McDANOLD, Petitioner and Respondent, and PAUL DOUGLAS McDANOLD, Respondent and Appellant.

APPEAL FROM: District Court of the Sixteenth Judicial District, In and for the County of Rosebud, The Honorable Joe L. Hegel, Judge presiding.

COUNSEL OF RECORD: For Appellant: Gary Ryder,Attorney at Law, Sidney, Montana For Respondent: Dennis Corbin,Attorney at Law,Miles City,Montana 

# ty v-p, i;

. ~....".<d Submitted on Briefs: June 25, 1992 

### ,; ii Decided: August 13, 1992

QlerkJustice R. C. McDonough delivered the Opinion of the Court.
Paul Douglas McDanold appeals from an order of the Sixteenth Judicial District Court, Rosebud County, modifying the custody decree. We affirm and remand in part. The following issues are presented on appeal: 1. Whether 

### the District Court erred in considering Eileen Thomas's petition formodification of custody: 2. Whether the District Court erred inmodifying the custody award: and 3. Whether theDistrict Court erred in ordering PaulMcDanald to pay child support to Eileen Thomas. Paul Douglas McDanold (McDanold) and Eileen McDanold a/k/a/ Eileen Thomas (Thomas)

### were divorced onJuly 1, 1986. McDanoldwas awarded sole custody of the couple's only minor child, Derek John McDanold. The decree of dissolution provided for liberal visitation. Thomas moved to North Dakota for a time, but subsequently returned to Montana. Testimony at the hearing provided that Derek spends 50 to 60 percent 

### of the time with his mother, and the remaining timewithhis father. Testimony revealed Derek enjoyed spending time with both his parents and that he was doing exceptionally well in school. At the time of thehearing in 1989 Derek was eight years of age. InJanuary of 1989,Thomas sought modification of the original custody decree with the District Court. On February 9, 1989,the District Court granted Thomas's order as towhether adequate cause existed to modify the custody and child support provisions of the 2decree. On June 9, 1989, a non-jury hearing was held on Thomas's motion to modify. On March 12, 1991, the District Court modified the original custody decree, providing the parties with joint custody, withThomasasprimary residentialcustodian. Thisappeal followed. Our standard for reviewing a district court's findings regarding modification of custody and whether a party has met the criteria of 5 40

-4

-219,MCA, 

### is whether the findings are supported by substantial credible evidence. District court findingsof fact will only be overturned if clearly erroneous. Marriage ofMoseman

(1992)r 

## -Mont. 

## -, 830 P.2d 1304; In re Marriage of Anderson (1989), 240Mont. 316, 783 P.2d 1372.

Whether the District Court erred in considering Eileen Thomas's petition for modification of custody. The District Court determined that adequate cause existed to hold a hearing on Thomas's motion to modify. Thomas raised
concerns thatMcDanold abused alcoholwhich effected thephysical, mental, and emotional health of the child. Thomas raised further concerns that Derekwasmaking the decisions as to which parent he wanted to staywith. Section 40-4-220(1), MCA, requires a court to find "adequate cause for a hearing" in determining modification. The Commissioner's Note to 5 40

-4

-220, MCA, provides that the procedure for seeking a modification in custody is by motion with supporting affidavits. The procedure is meant to discourage contests over temporary custody and prevent repeated 

### or

3insubstantialmotions formodification. We held in In reMarriage of Anderson (1989), 240 Mont. 316, 783 P.2d 1372, that averred facts and allegations are sufficient to constitute adequate cause for a hearing. In the present case, the affidavits submitted by Thomaswere sufficient for the District Court 

### to find adequate cause for a hearing. We therefore affirm the District Court on this issue. I1 Whether the District Court erred in modifying the custody award. The District Court modified the original custody decree. It granted the parties joint custody of Derek, with Thomas as the primary residential custodian. The District Court found that McDanold agreed to joint custody at the hearing. Section 40-4-219, MCA, provides in part:

(1) The court may in its discretion modify a prior custody decree if it finds,upon thebasis of facts that have arisen since the prior decree or thatwere 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 thebest interest of the child and if it further finds that: (a) the custodian agrees to the modification: (b) the child has been integrated into the family of the petitioner with consent of the custodian;



# ... At the hearing McDanold was ambivalent as to whether he agreed to joint custody. He stated he had no problems with a joint custody arrangement, then later he stated he felt there was no need for a

4change in the custody arrangement and that the current custody arrangementwasworking well. However,he said he opposed his exwife as the primary residential custodian. Therefore, 

### it appears

(1)(a) of 

### 5 40-4-219, MCA, is not satisfied. Thomas argues that Derek spends 50 to 60 percent of the time with her and thatDerek often makes 

### thedecision as 

### towhichparent he wants to stay with. Thomas contends a more formal visitation would be best, and that an eightyear old should notbemaking the custody decisions. What we have before us is a casewhich began as a sole custody arrangement with the father,but through liberal and cooperative visitation, has evolved into a 'joint custody' arrangement. Evidencepresented at thehearing showed Derek spent 50 to 60 percent of his time with his mother. On the facts before us, the District Court could find thatDerekwas integrated into the family of Thomas with the consent of McDanold. As we said in In re Marriage of Paradis (1984), 213 Mont. 177, 689 P.2d 1263: The integration standard of subsection (1)(b) of Section 40-4-219 is intended to provide a child

### with continuity and stability where a sole custodian under the Uniform Act has freely relinquishedhis or her right tophysical custody so frequently or for so prolonged a period that 

### the child hasbecome settled and established in thehome of the noncustodial parent. Paradis at 180, 689 P.2d at 1265. However, there is a twist to this case, the integration occurred but not to the exclusion of McDanold's family relationship with Derek. In re Marriage of Bolton (1984), 212 Mont. 212, 690 ~.2d 401,
we said:

5The consent requirement of [ (1) (b]) is intended to ensure that the custodian acquiesced in the transfer of physical custody 

# . . . and the integration into the family of the petitioner and should be viewed in that narrow context. Bolton at 221, 690 P.2d at 405. In Bolton the mother lived in California and the father lived in Montana. The child spent 12 

### of the last 18 months in Montana with the father and attended school in Montana. We found that the voluntary transfer of the child's physical custody from the custodial to the non-custodial parent results in the child's integration, satisfying the consent requirement of 

### 5 40-4-219(1)(b), MCA. Bolton at 221, 690 P.2d at 405. In the case before us the parties were divorced in July of 1986. Thomasmoved to North Dakota, but returned in approximately a year and a half. After her return she attended taxidermy school in Denver, and was absent from Montana for a few months. She now runs a taxidermy shopwithherboyfriend. SinceThomas returned to Forsyth, sheand McDanold set a pattern of a very liberal visitation schedule. Derek goes to his mother's shop after school and on Saturday mornings when his father is working. McDanold was awarded solecustody of Derek.

We note that the District Court made no findings of fact and conclusions of law under § 40

-4

-219 (1) (b), MCA. Therefore,we remand to the District Court for findings 

### of fact and conclusions 

### of law relative to integration and for judgment on this matter.

6I11 Whether the District Court erred in ordering Paul McDanold to pay child support to Eileen Thomas. The District Court found that Thomasprovides themajority of support for Derek. The District Court applied the Uniform Child Support Guidelines to the facts and ordered McDanold topay $60.55 per month in child support to Thomas. Section 40
-4
-208, MCA, governs modification of child support:

(1)Exceptasotherwiseprovided in 40-4-201(6), a decree may be modified by a court as to maintenance or support only as to installments accruing subsequent to actual notice to the parties of the motion for modification. (2)(b) Whenever the decree proposed for modification contains provisions relating to maintenance or support, modification under subsection (1)may only be made: (i) upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable.



# .. Thomas's petition formodification requested $150.00 a month in child support. Thomas alleged she provides 80 percent of the support to Derek including medical care, clothing and school lunch tickets. McDanold testified thathe provided Derekwith clothing, food, health insurance, in addition tohis monthly rental expenses and cable TV. Discovery documents reveal that McDanold believes that he provides at least 50 percent of the child's support. No expended amountswere given as to some of the items of support. The District Court found that at the time of the hearing McDanoldwasmaking approximately $19,800.00 ayear,and Thomas was making $8000 a year. However, Thomas testified she was making

7$20,000 a year as a taxidermist. She and her live

-in boyfriend make a combined income of $60,000 a year. We do not find substantial evidence 

### in the record to support the District Court’sdetermination of support. We remand to the District Court for appropriate fact finding on the issue of support and determination of the same. We request the District Court to expeditiously conclude this matter. Pursuant to Section 

### I, Paragraph 3(c), Montana Supreme Court 1988 Internal Operating Rules, this decision shall not be cited as precedent and shallbe published by its filing as apublic document with the Clerk of this Court and by a report of its result to the West Publishing Company.

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