No. 13637 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

RONALD M. RONCHETTO, 

Plaintiff and Respondent, 

-vsSUSAN KAY RONCHETTO et a1 . , 

Defendant and Appellant. 

Appeal from: District Court of the Second Judicial District, 

Honorable Arnold Olsen, Judge presiding. 

Counsel of Record: 

For Appellant: 

Jardine & McCarthy, Whitehall, Montana 

Jack McCarthy argued, Whitehall, Montana 

For Respondent : 

Corette, Smith and Dean, Butte, Montana 

Dolphy 0. Pohlman, Jr. argued, Butte, Montana 

Submitted: June 2, 1977 

Filed: 4U6 -5 -- im 

-P * 

Clerk 
Mr. Chief Justice Paul G. Hatfield delivered the Opinion of 

the Court. 

Defendant appeals from an order of the district court, 

Silver Bow County, modifying her divorce decree with plaintiff 

and awarding permanent legal custody of their daughter to 

plaintiff. 

Defendant, Susan Ronchetto, a/k/a Susan Tavares, and 

plaintiff, Ronald Ronchetto, were divorced on May 5, 1970 in 

the state of Nevada. The Nevada court placed Julie Ronchetto, 

the couple's minor child, in the custody of her mother and gave 

her father reasonable rights of visitation. Shortly after her 

divorce from plaintiff, defendant married David Tavares. Defendant subsequently divorced David Tavares and later married 

and divorced another man. 

On October 18, 1974, plaintiff filed an action against 

defendant in district court, Jefferson County, the county in 

which defendant at that time resided. Plaintiff, in his complaint, alleged that defendant had refused to allow him to visit 

with their daughter, Julie, and requested the court to modify 

the divorce decree to protect plaintiff's visitation rights. 

Plaintiff and defendant settled the visitation dispute out of 

court and, on December 30, 1974, stipulated that the court action 

be dismissed with prejudice. 

On July 12, 1976, plaintiff filed a petition in the district court, Silver Bow County, asking for a temporary restraining order and a temporary custody order. Plaintiff requested the 

court to order defendant to relinquish temporary custody of the 

minor child, Julie Ronchetto, and to restrain defendant from 

molesting the child. Plaintiff requested that the court order 

that temporary custody of the child, pending a full hearing, be 

placed in plaintiff and his wife. The court issued the temporary 

custody and temporary restraining orders in reliance upon statements in plaintiff's affidavit that defendant had on occasion 
abandoned and abused the child. At the time plaintiff filed 

this action, plaintiff, defendant and the child were residents 

of Silver Bow County. 

The district court held a nonjury hearing on July 19, 

1977, to determine if the divorce decree should be modified so 

as to transfer permanent custody of the parties' minor child, 

Julie Ronchetto, from defendant to plaintiff and his wife. 

Several witnesses were called for both plaintiff and defendant. 

After the hearing, the judge ordered the Department of Social 

and Rehabilitation Services (SRS) to conduct an investigation 

into the welfare of Julie Ronchetto. On the basis of both the 

testimony at the hearing and the statements in the SRS investigative report, the court ordered that the divorce decree be 

modified to give permanent legal custody of Julie Ronchetto to 

plaintiff and his wife. 

Defendant raises two issues in her appeal from the 

district court's order: 

1. Was proper jurisdiction and venue to hear this case 

vested in the district court, Silver Bow County? 

2. Did the district court err in granting plaintiff the 

permanent custody of the parties' minor child, based on the 

testimony at the hearing and the statements in the SRS investigative report? 

Defendant first asserts that the district court, Silver 

Bow County, was without jurisdiction to order that Julie Ronchetto's 

permanent legal custody be taken from defendant and given to 

plaintiff. Defendant maintains that because plaintiff's petition 

to modify the divorce decree was dismissed with prejudice on 

December 30, 1974, the court was precluded, under section 48- 

339, R.C.M. 1947, from modifying the custody decree until at 

least two years after the dismissal with prejudice. Because 
plaintiff instituted this custody proceeding on July 12, 1976, 

less than two years after the previous court action, defendant claims the court had no jurisdiction to change custody. 

Section 48-339(1), R.C.M. 1947, provides: 

"No motion to modify a custody decree may be 

made earlier than two (2) years after its date, 

unless the court permits it to be made on the 

basis of affidavits that there is reason to 

believe the child's present environment may 

endanger seriously his physical, mental, moral, 

or emotional health." 

Section 48-339(1) therefore prohibits modification of a 

custody decree which has been issued or modified within the two 

previous years. The prior district court action cited by defendant dealt only with clarification of plaintiff's visitation 

rights and not with child custody. The last child custody order 

for Julie Ronchetto, prior to this action, was contained in the 

divorce decree of May 5, 1970. The petition to modify child 

custody that is the subject of appeal in this case was filed 

by plaintiff on July 12, 1976, more than six years after the prior 

custody order. Section 48-339(1), therefore, did not prevent 

the district court from modifying the child custody provision of 

the parties' divorce decree. The district court, Silver Bow 

County, had jurisdiction under section 48-331 (1) (a) (i) , R.C.M. 

1947, to modify Julie Ronchetto's custody, because Montana was 

the home state of the child at the time the action was commenced. 

Venue of the case was properly in Silver Bow County. 

Section 93-2904, R.C.M. 1947, provides that actions such as the 

one involved in this case "shall be tried in the county in which 

the defendants * * * may reside at the commencement of the 

action * * *." Defendant, at the time plaintiff filed his petition, was a resident of Silver Bow County. 

While defendant's claim that the district court did not 

exercise proper jurisdiction or venue is without merit, we must 
sustain defendant's assertion that custody of Julie Ronchetto 

was improperly taken from defendant on the basis of the evidence presented. 

After the July 12, 1976 custody hearing, the district 

judge ordered SRS to investigate the welfare of Julie Ronchetto 

and to prepare the court a report of the investigation, The 

district judge did not issue his custody order until "after 

reviewing the investigative report". The out of court statements of the SRS workers, which were contained in their investigative report constitute hearsay evidence. This Court recently 

held that consideration of investigation reports in a child 

custody case, without requiring the authors to testify at a hearing, constitutes reversible error. In re Declaring Swan Children 

Youths in Need of Care, Mont . -1 - P.2d , 34 St.Rep. 

390 (1977). To satisfy the due process rights of the custodial 

parent and to accurately assess the best interests of the minor 

child, the trial judge must require " * * * the authors of the 

report to testify at a hearing and be subject to cross-examination" before he may consider the statements in the report. In 

re Moyer Children, Mont . -1 - P. 2d , 34 St.Rep. 682 

(1977). 

This case is, therefore, remanded to the trial court 

for the purpose of conducting another permanent custody hearing. 

To modify the custody award, the judge must find that, since the 

1970 divorce decree, a change has occurred in the circumstances 

of the child or defendant and that modification is necessary to 

serve the child's best interests. Section 48-339, R.C.M. 1947. 

The trial court must determine the fitness of both parents, 

plaintiff and defendant, and not just the fitness of defendant. 

Love v. Love, 166 Mont. 303, 533 P.2d 280. The court must consider the wishes of the child as to her custodian. Section 48- 

332(2), R.C.M. 1947. The court may interview the child 
in chambers to ascertain her wishes, because the child's 

wishes as to who should be her custodian may be highly probative 

of her best interests and may have a substantial effect on her 

emotional development with her custodial parent. See Hurly v. 

Hurly, 147 Mont. 118, 411 P.2d 359. If it grants such an interview, the court must "cause a record of the interview to be 

made and to be part of the record of the case." Section 48- 

334 (1) , R.C.M. 1947. 

The court must determine the best interests of the child 

in accordance with the facts as they exist at the time of the 

new hearing. If defendant can now provide a more stable home 

environment than she could have provided at the time of the initial 

custody modification hearing, the trial court must consider this 

factor on rehearing. Finally, if the trial judge considers an 

investigative report in his custody decision, the court must mail 

the report to defendant's counsel at least ten days prior to the 

hearing, and afford defendant the privilege of cross-examining 

the authors of the report at the hearing. Section 48-335(3), 

R.C.M. 1947. 

The judgment of the district court is reversed and remanded for rehearing in accordance with this opinion. ,7 / 

Chief Justice 1)