No. 89-378 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

IN RE THE MARRIAGE OF 

SUE SANDERSON HOODENPYLE, 

Petitioner and Appellant, 

and 

IVAN W. HOODENPYLE, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Joel Roth, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Brett C. Asselstine, Great Falls, Montana 

For Respondent: 

Mike Fanning; Scott & Tokerud, Great Falls, Montana 

Submitted on Briefs: Jan. 18, 1990 

Decided: February 114, 1990 0 

5- Filed: o 
Justice William E. Hunt, Sr., delivered the Opinion of the Court. 

Sue Sanderson Hoodenpyle, petitioner and appellant, appeals 

from an order of the District Court of the Eighth Judicial 

District, Cascade County, denying her motion to modify custody. 

We affirm. 

This Court summarizes the issue on appeal as whether the 

District Court erred in finding that appellant failed to establish 

the statutory factors set forth in 5 40-4-219, MCA, as required for 

a modification of custody. 

The parties were married on February 5, 1983. Two children 

were born of the marriage--Sheila Ann and Mitchell Gary, both 

preschoolers. On September 10, 1987, Sue filed a petition for 

dissolution of the parties marriage. Both parties sought custody 

and Ivan Hoodenpyle, respondent, was granted temporary custody 

during dissolution proceedings. Subsequently, the parties 

stipulated that Ivan would have temporary custody. A decree of 

dissolution was entered on February 2, 1988, which granted the 

parties joint custody with Ivan as the primary custodian. The 

parties both resided in Cascade, Montana, at that time. Sue had 

visitation of the children alternating weeks although no specific 

visitation order was put into effect. Sue was ordered to maintain 

a health insurance policy on the children. 

Also on February 2, 1988, Sue remarried and twin daughters 

have since been born of the marriage. Sue and her new family 

continue to reside in Cascade while Ivan now resides with the 

children in Great Falls, Montana. 

On June 6, 1988, Sue filed a motion to modify custody, which 

was resisted by Ivan. The parties stipulated to a homestudy on 

each of the parties. The homestudy was conducted by a social 

worker employed by the Department of Family Services. 

A hearing on the matter was held on April 7, 1989. Several 

witnesses testified, including the social worker who conducted the 

homestudy, and exhibits were introduced, including the homestudy 
report of the Department of Family Services. The social worker 

testified as to her home investigations as documented in the 

homestudy report. She stated that Ivan's housekeeping standards 

were "marginalt1 but that her investigation of his home did not 

reveal any evidence of dirty dishes, dirty laundry, or garbage. 

The social worker further testified that Sue was a better 

disciplinarian but other testimony revealed that disciplinary 

measurers taken by Ivan were very similar. The social worker also 

stated that when she visited Ivan's home, Mitchell "looked real 

scruffy. I' However, the social worker did testify that the 

children, who had arrived at Sue's home from Ivan's home, were well 

dressed and well kept. The homestudy report also set forth the 

statements of ~heila's preschool teacher who stated that there was 

not any difference in Sheila s "dress, hygiene and attitudet' 

despite which parent had physical custody of her. 

On April 13, 1989, the District Court entered its findings of 

fact, conclusions of law and order. The court denied Suets motion 

to modify the joint custody arrangement and ordered a continuation 

of child support and health insurance plans set forth previously. 

The court further ordered that Sue shall have visitation of the 

children on alternate weeks until their school schedule makes the 

arrangement impracticable. From the order Sue appeals. 

The standard of review in a custody determination is that this 

Court will not disturb a district court's findings unless there is 

a "clear preponderance of evidence against such findings. Cameron 

v. Cameron (1978), 179 Mont. 219, 227, 587 P. 2d 939, 944. See also 

In re the Marriage of Ereth (Mont. 1988), 757 P. 2d 1312, 45 St.Rep. 

1223. The District Court's order will be upheld unless a clear 

abuse of discretion is shown. In Re the Marriage of Rolfe (1985), 

216 Mont. 39, 699 P.2d 79, 82. 

Here, Sue alleges that, because the homestudy report 

recommended physical custody of the children be awarded to her, the 

District Court erred in continuing the joint custody arrangement 

on an alternating weekly basis with Ivan as primary custodian. We 

disagree. 
Montana favors joint custody. Section 40-4-222, MCA. An 

award of joint custody, in accord with 5 40-4-223, MCA, is to be 

made according to the best interests of the child as set forth in 

5 40-4-212, MCA. 

Here, the District Court instituted a joint custody 

arrangement where Sue would have visitation alternating weeks until 

the arrangement interfered with the children's school schedule. 

Both children are of preschool age. 

Once a custody arrangement is established, a party may move 

for modification under 5 40-4-219, MCA. However, one moving for 

a modification under the statute must prove that a change has 

occurred in the circumstances of the children or custodian that 

necessitates the change in accord with the best interest 

considerations set forth in 5 40-4-212, MCA. Section 40-4-219, 

MCA, provides: 

The court may in its discretion modify a prior custodv 

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 the entry of the prior decree, that 

a change has occurred in circumstances of the child or 

his custodian and that the modification is necessary to 

serve the best interests of the child and it if further 

finds that: 

(c) the child's present environment endanqers seriously 

his physical, mental, moral, or emotional health and the 

harm likely to be caused by a change of environment is 

outweighed by its advantages to him. (Emphasis ours.) 

Here, while the record reflects that Sue's home may be better 

maintained, we cannot say that Ivan's housekeeping shortcomings 

endanger the children seriously in any way. Sue has failed to 

convince this Court, as she failed to convince the District Court, 

that a change in circumstances has occurred which necessitates a 

modification of custody in accord with the best interests of the 

children. There was no abuse of discretion. 
Affirmed. 

We Concur: 

Justices 
Justice Diane G. Barz dissenting. 

I would reverse and remand this case for further consideration 

of evidence concerning Ivan Hoodenpylevs fitness to serve as 

residential custodian of Sheila and Mitchell. 

Appellant Sue Fey met the jurisdictional test of § 40-4- 

219(1), MCA, justifying the District Court's determination of a 

modification of custody. Both the majority in this opinion and the 

District Court focused on the least significant and most 

superficial issue raised in regard to the potential for serious 

endangerment to these children: Respondent's ability as a 

housekeeper. 

The majority disregards evidence of respondent's abuse of 

various chemical substances. Respondent reportedly had difficulty 

relating to the children of a woman he lived with for an extended 

period prior to marrying appellant. These difficulties extended 

to respondent's verbal abuse of the children, a pattern carried out 

in his treatment of Sheila and Mitchell during the home 

investigation conducted by Jan Schindell. Respondent further has 

a history of domestic abuse, and was once arrested on such a 

charge. There is evidence respondent repeatedly left Mitchell and 

Sheila in the care of Ron Latin who was recently convicted of 

selling illegal drugs. Respondent demonstrated marked bitterness 

and hostility toward appellant and refused to desist in his 

criticism of her in the presence of the children even when 

requested to do so by the social worker. Appellant indicates that 

respondent has interfered with her visitation. The respondent in 

*b 
fact requested that the lower court reduce her visitation to one 

weekend per month. While there is evidence of the children's good 

physical health and acceptable appearance, I would point out that 

Sheila and Mitchell spent every other week with appellant during 

the time period in which Jan Schindell conducted the home study. 

The home study indicates appellant's home is comfortable and the 

environment stable and nurturing. Sheila and Mitchell appeared to 

relate well to their step-father and baby sisters. 

Respondent's substance abuse, his history of domestic violence 

and verbal abuse create a very real potential for the serious 

endangerment of the physical, mental and emotional well-being of 

these young children. Having leapt the jurisdictional hurdle, the 

District Court must consider the best interests of the children. 

In this case, their best interests certainly lies with appellant. 

The potential for harm far outweighs the negative impact of a 

change in custody mitigated in any event by the rotating visitation 

schedule. 

Recently we held that when a step-parent's verbal hostility 

coupled with periodic substance abuse created an unpleasant home 

environment the District Court properly modified custody. In re 

the Marriage of Anderson (Mont. 1989), 783 P.2d 1372, 46 St.Rep. 

2155. The only physical abuse alleged in that case was committed 

by the step-parent against the family dog. The facts of the 

instant case give more immediate and compelling cause for concern.