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 

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Submitted on Briefs: June 25, 1992 ,; ii 

Decided: August 13, 1992 

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Justice 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 for modification of custody: 

2. Whether the District Court erred in modifying the custody 

award: and 

3. Whether the District Court erred in ordering Paul McDanald 

to pay child support to Eileen Thomas. 

Paul Douglas McDanold (McDanold) and Eileen McDanold a/k/a/ 

Eileen Thomas (Thomas) were divorced on July 1, 1986. McDanold was 

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 time with his father. Testimony revealed 

Derek enjoyed spending time with both his parents and that he was 

doing exceptionally well in school. At the time of the hearing in 

1989 Derek was eight years of age. 

In January 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 to whether adequate cause 

existed to modify the custody and child support provisions of the 

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decree. 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, with Thomas as primary residential custodian. This appeal 

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 findings of fact 

will only be overturned if clearly erroneous. Marriage of Moseman 

(1992)r - Mont. -, 830 P.2d 1304; In re Marriage of Anderson 

(1989), 240 Mont. 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 that McDanold abused alcohol which effected the physical, 

mental, and emotional health of the child. Thomas raised further 

concerns that Derek was making the decisions as to which parent he 

wanted to stay with. 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 

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insubstantial motions for modification. We held in In re Marriage 

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 Thomas were 

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 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 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 

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change in the custody arrangement and that the current custody 

arrangement was working 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 that Derek often makes the decision as to which parent 

he wants to stay with. Thomas contends a more formal visitation 

would be best, and that an eight year old should not be making the 

custody decisions. What we have before us is a case which began as 

a sole custody arrangement with the father, but through liberal and 

cooperative visitation, has evolved into a 'joint custody' 

arrangement. 

Evidence presented at the hearing showed Derek spent 50 to 60 

percent of his time with his mother. On the facts before us, the 

District Court could find that Derek was 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 relinquished his or her right to physical 

custody so frequently or for so prolonged a period that 

the child has become settled and established in the home 

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: 

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The 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. Thomas moved 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 

shop with her boyfriend. Since Thomas returned to Forsyth, she and 

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 sole custody 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. 

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I11 

Whether the District Court erred in ordering Paul McDanold to 

pay child support to Eileen Thomas. 

The District Court found that Thomas provides the majority of 

support for Derek. The District Court applied the Uniform Child 

Support Guidelines to the facts and ordered McDanold to pay $60.55 

per month in child support to Thomas. 

Section 40-4-208, MCA, governs modification of child support: 

(1) Except as otherwise provided 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 for modification 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 that he provided Derek with clothing, 

food, health insurance, in addition to his 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 amounts were given as to some of the items of support. 

The District Court found that at the time of the hearing 

McDanold was making approximately $19,800.00 a year, and Thomas was 

making $8000 a year. However, Thomas testified she was making 

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$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’s determination 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 shall be published by its filing as a public document 

with the Clerk of this Court and by a report of its result to the 

West Publishing Company. 

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