                           TABLE OF CONTENTS
                                                                                      Page

TABLE OF AUTHORITIES           . . .   . . .    : . . . .       . .   . .       . .       iii

STATEMENT OF ISSUES      . . . .       . . .    . . . . .       . .   . .       . .   .         1

STATEMENT OF CASE . . . . .            . . .    . . . . .       . .   . .       . . .           1

STATEMENT OF FACTS       . . . .       . . .    . . . . .       . .   . .       . .   .         2

ARGUMENT    . . . .   . . . . . . . . . .               . . . .   . .     . .     . .           5

I.     THE DISTRICT COURT ERRED BY MODIFYING
       CUSTODY OF THE PARTIES' CHILDREN WHEN
       THERE WAS NO MOTION FOR MODIFICATION
       BEFORE THE COURT . . . . . . . . . . . . .                     .   . .     . .           5

II.    THE DISTRICT    COURT ERRED BY APPLYING
       THE "BEST INTERESTS" TEST WITHOUT
       MAKING THE REQUISITE JURISDICTIONAL
       FINDINGS SET FORTH AT MONT. CODE
       ANN. § 40-4-219    (1993) . . . . . . . . .                . .     . .     . .           7

III.   THE DISTRICT   COURT ERRED BY MODIFYING
       THE FINAL DECREE WHERE THE STATUTORY
       CRITERIA  SET FORTH AT MONT. CODE
       ANN. $ 40-4-219   (1993) WERE NOT MET . . .                    .   . .     . . 13

       A.   There was no change in
            circumstance    subsequent          to
            the entry    of the prior          decree     . .   . .   .   . .     . . 14

       B.   There was no danger          to the
            children's  physical,          mental or
            emotional  well-being           . . . . . .         . . .     . .     . . 15

       C.   The harm to the children
            resulting   from the change
            in environment   outweighs
            the advantages     . . . . . . . .                . . .   .     . . .       . 16

       D.   The modification        is   not in
            the children's        best   interests        .   . . .   .     . . .       . 16

IV.    THE DISTRICT   COURT ERRED BY MODIFYING
       THE FINAL DECREE BECAUSE TERRY FILED
       NO AFFIDAVIT   IN SUPPORT OF MODIFICATION,
       AS REQUIRED BY MONT. CODE ANN.
       § 40-4-220   (1993)  . . . . . . . . . . . . .                       .   . . . 20


                                         i
                       TABLE OF CONTENTS (Cont.)
                                                                        Page

V.   THE DISTRICT COURT ERRED BY ORDERING
     THE CHILDREN TO ATTEND THE CHURCH OF
     FATHER'S CHOICE WHILE THEY WERE IN
     MOTHER'S CUSTODIAL CARE IN VIOLATION
     OF HER FIRST AMENDMENT RELIGIOUS RIGHTS
     AND MONT. CODE ANN. § 40-4-218  (1993)  .          . .   . .   . . 22

CONCLUSION      . . . . . .   . .   . . . . . . .   . . .   . .   . .   . 27

REQUEST FOR ORAL ARGUMENT . . . . . .         . . . .   . .   . .   . . 27

CERTIFICATE     OF SERVICE    . . . . . . .   . . .   . .   . . .   . . 28
APPENDIX      . .   . . . . . . . . . . . .   . . .   . .   . . ...29




                                     ii
                                TABLE OF AUTHORITIES

                                        CASES                                              Page
Angel     v.    Angel,   140 N.E.2d    86 (Ohio     C.P.   1956)          .    . .    . . 25

In re the Custody    of C.S.F.,  232 Mont. 204,
755 P.2.d 578 (1988)    . . . . . . . . . . . . . .                       .    . .    .        5,6

In re the Marriage   of           Allison,        Mont.
887 P.2d 1217 (1994)              . . . . .T.      . . ..:           . .       . 10,11,21

In re the Marriage  of Alnert,  258 Mont. 344,
852 P.2d 669 (1993)   . . . . . . . . . . . . .                      .    . . .       .        8,9

In re the Matter  of            B.T., 223 Mont. 287,
725 P.2d 230 (1986)             . . . . . . . . . . . .          . .      . . .       . . 11
In re the Marriage   of           Gahm, 222 Mont. 300,
722 P.2d 1138 (1986)              . . . . . . . . . . .          . .      . . .       . . 10

In re the Marriaae  of Gersovitz,  238 Mont. 506,
779 P.2d 883 (1989)   . . . . . . . . . . . . . .                         . .     .       22,23
In re the Marriage  of Hoodennvle,  241 Mont. 345,
787 P.2d 326 (1990)   . . . . . . . . . . . . . . . .                             . .      .         8

In re the Marriage  of Johnson,  266 Mont. 158,
879 P.2d 689 (1994)   . . . . . . . . . . . . .                          9,10,11,12,13
In re the Marriage   of           Paradis, 213 Mont. 177,
689 P.2d 1263 (1984)              . . . . . . . . . . . . .               . .     .   . . 10

Khalsa     v.    Khalsa,  751 P.2d 715,
(N.M.     Ct.    App. 1988)   . . . . . . . .          . . . . .          . .     .   . . 26

Munoz v.        Munoz, 79 Wash.2d 810,
489 P.2d        1133 (1971)  . . . . . . . .           . . . .       . .       . .    . . 24

                                 OTHER AUTHORITIES

Montana        Code Annotated      § 40-4-212     (1993)     .   . . .         . . 2,8-11

Montana        Code Annotated      § 40-4-218     (1993)     .   . . .         . .        22,27
Montana        Code Annotated      § 40-4-219     (1993)     .   . .          1,2,7-16,27
Montana        Code Annotated      5 40-4-220     (1993)     .   .       1,20,21,22,27




                                         iii
                                            STATEMENT OF THE ISSUES

           The      issues            for     consideration                on appeal               is      whether          the

district            court         erred        by substantially                      changing              the       primary
residence               of    the       parties'           children,           thereby             modifying               the

Final        Decree,            where         there        was no motion                for        modification

before        the        court,             no finding         of      the     statutory                  criteria          set

forth        at     Mont.           Code Ann.            § 40-4-219                (1993)         and no affidavit

establishing                  the       statutory           requirements                set        forth           at     Mont.

Code Ann.               § 40-4-220              (1993).          Also,         Plaintiff/Appellant
appeals           the        district           court       order       requiring                 her      to      assure         the

children            attend            the     religion          of his         choice.



                                              STATEMENT OF THE CASE

           The      Eighteenth                Judicial          District             Court,             Gallatin           County
("district               court"),             heard        Petitioner/Appellant's                                ("Peggy")

motions           for        "Final          Determination              of     Visitation                  Rights          and

Contempt"               on October              20 and 21,             1994.          Peggy             had been           the

children's               primary             custodian          since         the     dissolution                    of    the

parties'            marriage.                 At    that      time,          the     children               were        residing

Sunday        morning               through         Thursday           night         with         their          mother          and

Thursday            night           through         Sunday       morning             with         their          father.           No
motion        for        modification                 was before              the     district               court         at     the

October           hearing,              nor     had Respondent/Respondent                                   ("Terry")

filed        an affidavit                    alleging         facts          which      would             warrant

modification.                       The district              court          issued         its         Memorandum,
Opinion           and Order                 [hereinafter              "December             Order"]              on December


                                                                 1
16, 1994.               The December Order               removed Peggy as the
children's              primary     custodian        and provided          that    the      school-
age children              would     spend equal time             with     each parent,
switching          on a weekly           basis.          The December Order
substantially              changed the custodial                 arrangements           of the
parties'~         children        and,       therefore,       the district          court        should
have made a finding                   that     the jurisdictional             prerequisites
set     forth      at Mont.         Code Ann § 40-4-219                 (1993)     had been met.
Instead,          the district           court      erroneously          proceeded       directly
to the          "best     interests      I1 test        set forth       at Mont.     Code Ann. §
40-4-212          (1993):
           In a prior         proceedins           and in the December Order,                     the
district          court      ordered         Peggy to assure            the children         attend
Terry's          church      over     the objection            fo Peggy.


                                       STATEMENTOF FACTS
           1.       The parties          were married           on June 18, 1977,                in
Bozenan,          Montana         (Findings        of Fact,       Conclusions        of Law and
Final       Decree of Dissolution                   of Marriage          [hereinafter            "Final
Decree"],           page 1, paragraph               3).
           2.       Two children             were born of the parties'                  marriage,
Jesse       B. Schaplow,            born July           15, 1981; and Michael               J.
Schaplow,           born May 29, 1984 (Final                    Decree at 2, para.                4).
           3.       The parties'             marriage       was dissolved          by order           of
the Montana              Eighteenth          Judicial       District      Court,     Gallatin
County,          dated      May 6, 1991, the Honorable                    Thomas A. Olson,

                                                        2
District           Judge         (Final     Decree at 4).
           4.       The parties             entered      into     a Separation,                 Custody          and
Property           Settlement             Agreement      [hereinafter               ltAgreement"]               on
May 6 1991, which was incorporated                                by reference                into        the
Final       Decree         (Final         Decree at 2, para.                10; Agreement,                 page
2, paragraph               3).
           5.       The Final             Decree provided            for     joint         custody         of the
parties'           two minor          children        and designated                Peggy as the
primary         residential               parent     (Final     Decree at 3; Agreement                           at
7, para.           2).
           6.       The parties             have utilized            the services               of numerous
mediators           since         the dissolution             of their            marriage,          in
several         unsuccessful               attempts      to reach           a mutually            acceptable
custody         and visitation                schedule,         including            Dr.    Charles         Kelly
(Agreement               at 7);      Dr. Marvin        Backer        (Agreement             at 7);
Guardian           ad Litem,          Eleanor        N. Truitt;            Dr.     Traynham;          Retired
District           Judge Joseph B. Gary;                    and Retired              District         Judge
Jack Levitt.               (See Respondent's                Motion         for     Determination                of
Summer Custody                   Schedule      and Request           for         Expedited        Telephonic
Hearing,           dated         June 8, 1995).
           7.       The parties             changed the visitation                      schedule           set
forth       in the Final              Decree in December of 1992,                           to provide
that       Terry         would have the children                  from Thursday                  evening
through         Sunday morning;                however,         Peggy remained                  as the
children's               primary      residential           parent         (Agreement            at 7).
           8.       The visitation                 schedule      was modified               again,         after

                                                        3
a telephone           hearing           on November 26, 1993,               to provide            for     the
children's           participation            in two five-week              ski     programs            and
for     their      attendance            in Sunday School              during      the     1994 ski
season          (Order,         dated    November 26, 1993 [hereinafter
"November          Order,"         page 2, lines            22-28).
           9.      On April         4, 1994, after             assignment          by the district
court       as a meditor,               Judge Levitt         recommended that               the
parties          implement         a weekly       visitation           schedule       and remove
the primary           residential            parent        designation          (Dec.      Order        at 3,
11. l-6).
           10.     Both parties             objected        to the visitation               schedule
recommended by Judge Levitt                          and, pursuant          to another
telephone          hearing         on August         9, 1994, the parties                  reverted           to
the visitation                  schedule     set forth         in the court's              November
Order wherein              Peggy remained             designated         as the children's
primary          residential            parent.
           11.     In this         November Order,             the district           court       ordered
Peggy to assure                  the children         attend     Terry's          church      (Nov.
Order).
           12.     Peggy filed             Motions     for     Final     Determination              of
Visitation           Rights        and Contempt            and both were heard                by the
district          court         on October        20 and 21, 1995.                The district
court       issued        its     Order     on December 16, 1995,                  and it      is       from
that       December Order that                Peggy now appeals.




                                                       4
                                                                   ARGUMENT

                                                                          I.

                         TRE DISTRICT                        COURT ERRED BY MODIFYING
                    CUSTODY OF THE PARTIES'                                         CHILDREN EEEN THERE

           SEAS NO MOTION FOR MODIFICATION                                                       BEFORE THE COURT.

           The       long-standing                          rule         that        a court              does            not        have

jurisdiction                      to      rule         on issues                   outside            the          pleadings

properly             before               it     applies            to         domestic                cases.             Because              there

was no motion                       for        modification                        before         the          district               court,            it
did     not         have          jurisdiction                     to     modify             the        decree.                  a,            i.e,

In    re     the       Custody                  of     C.S.F.,            232 Mont.                    204,         755 P.2d                578

(1988).              The only                   question            properly                 before                the        district

court         in     this           case         was clarification                               of     the         visitation

arrangement                   for         the        parties'             children.                    (See Dec.                 Order          at      1,

para.         1.)          In          C.S.F.,          B,                the         child's                father             moved          the

court         for      a determination                             of     the         number             of        days         of

visitation               he was allowed                            to      deem accumulated                               as a result                   of
the     mother's                  refusal              of    visitation                     on several                    occasions.

C.S.F.,             232 Mont.                   at     205,        755 P.2d                 at        579.          After             a hearing

on the             father's               motion,             the        court         issued                its         order

specifying                 the          number          of      days           he was entitled                            to      deem

accumulated                   and further                     ordering                the        parties                 to     provide               one

another             and the               court         with            copies         of        their             work         schedules

and notice                  of,         among other                     things,             their             intent            to       exercise

visitation.                       The Montana                   Supreme               Court            held         that          the       notice

provision               of        the          order        was void,                 as it            was outside                       the


                                                                               5
issues         set     forth            in     the        pleadings,                 stating:

          A district           court     does not have jurisdiction              to
          grant      relief       outside     of the issues      presented         by
          the pleadings             unless    the parties     stipulate        that
          the other          questions       be considered      or the pleadings
          are amended to conform                 to the proof.         (Citing
          authority.)             In National       Surety Corporation
           [(I-948),        121 Mont.       202, 192 P.2d 3171, this             Court
          recognized           that    "the rule     in Montana as well            as in
          other      jurisdictions           seems to be well        settled       that
          a judgment           must be based on a verdict              or findings
          of the court            and must be within        the issues
          presented          to the court.         . . .

In re the Custodv    of C.S.F.,                                     232 Mont.                 at        209,     755 P.2d               at
582 (Citations  omitted).

           Likewise,              in        this         case,      the         district                court     ruled            on

matters          outside           the         pleadings.                  There           was no motion                     for

modification                  before            the       court;          in     fact,            the      December           Order

specifically                  defined              the        issues       which           were          before         it    as

follows:
           The central         issue    before      the Court is Petitioner's
           Motion      for Final       Determination        of Visitation
           Rights.        Ancillary       thereto      are contempt       motions
           filed     by each party          against     the other      and
           Petitioner's          motion     for sanctions      alleging
           Respondents          [sic]   violation       of Rule 4(D)(l)(a),
           Montana Rules of Civil                Procedure.

(Dec.       Order           at    1,        para.         1.)

           Terry        and Peggy                  did        not      stipulate              to        the     consideration

of     other         issues        or         the        amendment              of     the        pleadings             to    conform

with       the       proof,            in     accordance                with         the      exceptions                to    the

pleadings             rule        as stated                   by the           Court         in    C.S.F.           C.S.F.,              232
Mont.       at       209,        755 P.2d                at     582.       Therefore,                    the     district

court       erred           by modifying                      the      custody           and visitation

provisions              of       the         Final        Decree          since          the       only         issue        before
it     with      respect      to custody           and visitation             was a request                  for
a determination               of the existing               order.          Furthermore,            even if
there         had been a motion             for     modification             before      the district
court,         the December Order would,                     nonetheless,             fail      on appeal
because          the district         court        applied        the wrong standard                    in
modifying           the children's            custodial           arrangement.
                                                     II.
     THE DISTRICT COURT ERRED BY APPLYING THE "BEST INTERESTS"
     TEST WITEOUT MAKING THE REQUISITE JURISDICTIONAL                                           FINDINGS
              SET FORTH AT MONT. CODE ANN. 5 40-4-219                                  (1993).
           The visitation            schedule         set forth            in this     case,
significantly               changed the custodial                  arrangement            for      the
parties'          children        Andy eliminated            Peggy's         designation            as the
children's           primary        custodian.             The December Order,
~therefore,          constitutes           a modification             of the Final               Decree.
Accordingly,            the      standard         of review        that      the district               court
should         have applied          was the *'serious               endangerment"               standard
 set     forth      at Mont.        Code Ann. § 40-4-219                    (1993).          The
district          court's        failure      to utilize           this      standard
constitutes            reversible          error      and should,            therefore,            be
reversed.
           One indication            of the court's               intent      to change,            rather
than       merely      clarify       the existing            visitation          schedule           was the
removal          of Peggy as the children's                       primary       residential
parent         (Dec.    Order       at 11, para.            1).       It     is not necessary                      to
eliminate           the designation               of the primary             residential            parent
merely       because the parents                 share           approximately       equal       time
with       the children         in their         primary           care.      In re the Marriaue
of HoodenDvle,               241 Mont.         345,      787 P.2d 326 (1990).                   In
HoodenDvle,           supra,     the Montana Supreme Court                        affirmed           the
district        court's        ~finding        that      the petitioner           had not met the
statutory         criteria        set forth            at Mont.        Code Ann.        §     40-4-219

(19931,        and denied        her request               for     modification         of the prior
decree       stating:
           Once a custody arrangement is established,          a party
           may move for modification       under Section 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 Section
           40-4-212,   MCA . . .
Hoodenpvle           at 347,      787 P.2d at 328.
           The Hoodenpvle             Court,      like         the court       in the       instant
case,       issued      an order        granting           the parties          visitation            on
alternate         weeks.        Id.       However,             the children         in Hoodenpvle
were both         preschoolers            and the Court               expressly       conditioned
this       arrangement         on renegotiation                   of visitation         when the
children         reached       school        age.        Id.       And, more importantly,
during       the duration             of alternate               week visitation,            the Court
in HoodenDvle              continued         Respondent's             designation           as the
children's           primary      custodian.               Id.
           Clarification          and/or        interpretation               of unspecified
rights       of visitation             set     forth       in a prior          decree       amounts to
a modification               where the clarification                       or interpretation
alters        the visitation            rights         of the parties.               In re the
                                                       8
Marriaqe               of    Alnert,             258 Mont.             344,       852 P.2d             669        (1993).           In

Alwert         this          issue         arose         in     the       context          of      a UCCJA question,

but      the          reasoning            set      forth         by the          Court         is     applicable              in

this        case,           since      the         context            does       not      affect        the        analysis.
In     Alnert,              the     Court          concluded              that      the      distinction                 between

V'modification'l                    and "clarification"                           was superficial:

             [I]n  this   case, the court's         order    altered    the
            rights     of the parties    beyond that         originally
            contemplated        when the visitation        provisions       were
            left   unspecified,      and thus,      modified      those rights.

Alwert         at          347,     852 P.2d             at      671.

            The Montana                Supreme              Court         has     recognized                the
inconsistencies                       in     its        prior         decisions            regarding               the

appropriate                  standard              to    be applied               to    cases         where         a party

seeks        a substantive                       change         to     those        portions            of     a prior

decree           involving             the         custody            and visitation                   of     children.

In     re    the           Marriaqe          of     Johnson,              266 Mont.             158,        879 P.2d           689

(1994).                In    Johnson,              suwra,         the      Court        phrased             the     issue
before           it        as follows:

            When a party        to a former       dissolution         proceeding
            moves to amend the decree in a way that
            substantially         changes the residential               living
            arrangements        of the former        couple's       children
            without      seeking      a change in the legal            designation
            of "joint       custody,"      is the District          Court's
            decision      governed      by the l'best       interest"         standard
            found at Section           40-4-212,     MCA, or by the "serious
            endangerment"         standard     found at Section             40-4-
            219(l)(c),       MCA?
Johnson               at    159,      879 P.2d             at     691.

            The Montana                Supreme             Court          explained             the     seemingly

contradictory                      rulings          in     the       two      leading           cases        on the         issue


                                                                      9
of the appropriate             standard     of review      for     custody
modification         cases at that         time,     In re the Marriaqe           of
Paradis,       213 Mont.       177,   689 P.2d 1263 (1984),             and In re the
Marriaqe       of Gahm, 222 Kant.           300,     722 P.2d      1138 (1986)         and
their    prodigy,      stating:
        In summary, our prior           decisions     have held that
        where one party to a dissolution               moves or
        petitions     to modify a sole custody provision                in
        the dissolution         decree, then that party must
        satisfy    the jurisdictional          requirements      of Section
        40-4-219,     MCA. However, if the original                decree
        provided     for joint      custody and the motion to
        modify does not attempt to terminate                joint
        custody,     but simply alter the physical             custody
        arrangements,        the district      court should consider
        the motion in light          of the best interest          standard
        established       by Section 40-4-212,         MCA. We have
        carved out an exception           to the previous        two rules
        where the form of a party's             pleading asks for a
        modification       of physical      custody,    but in essence
        terminates      joint    custody.
Johnson at       165, 879 P.2d at 694.
        The Court      elaborated         on its     explanation       of the
appropriate         standard      of review        in custody      modification         cases
in In re the Marriaoe              of Allison,        suora,     stating:
        Motions or petitions          to modify a sole custody
        provision       or terminate     a joint     custody provision
        must satisfy        the jurisdictional        prerequisites      set
        forth     in Section 40-4-219,         MCA.      Likewise,     a
        motion or oetition          to modify child custody
        provisions        in a dissolution       decree which harsl the
        effect      of substantiallv       chanqinq the primarv
        residence       of the parties'       children,     even thouqh
        the formal desiqnation           of "ioint      custodv"    is
        retained,       are to be construed as motions or
        petitions       to terminate     joint    custody and must
        satisfy      the jurisdictional        requirements      set forth
        Section 40-4-219,         MCA. Any effort        to modify the
        physical       custody,   which does notseek          a
        substantial        change in the children's          primary


                                              10
            residence,                  may be considered                            by the district                        court
            according                 to the best interest                             standard     set                   forth
            in Section                  40-4-212,  MCA.

In     re     the      Marriace                 of Allison,                             Mont.        -,            887 P.2d            1217

(1994)             (emphasis                added)           (quoting             In re           the       Marriaoe            of

Johnson,              266 Mont.                 158,         879 P.2d             689         (1994)).
            Because              the        December            Order           of      the       district              court

substantially                     changed              the      children's                  primary             residence             and

terminated               Peggy's                designation                    as the          children's                 primary

custodian,               the          district               court          should          have           construed            the

action         as one to                    terminate               joint         custody               and applied              the

"serious              endangerment"                      test         set       forth          at    Mont.             Code Ann.            §
40-4-219              (1993).                 Instead,           the           district             court          committed

reversible                  error           by proceeding                      directly             to      the        best     interest
standard              set        forth          at Mont.              Code Ann.                § 40-4-212                 (1993),

without             reference                 to     the      jurisdictional                        prerequisites.

             The findings                     of     the      district                 court        will          be overruled                  on

appeal         where             they         are      not      supported                 by substantial                      credible

evidence.                   In    re the             Matter           of       B.T.,          223 Mont.                287,     725 P.2d

230         (1986).              In      this        case,          the        record          is    void          with       respect

to     the         jurisdictional                      requirements                     set       forth           in    Mont.         Code

Ann.         § 40-4-219                     (1993),          and,         in    fact,          the         December           Order

clearly             states             that        the       court          applied            the         "best        interests"

test         set      forth            at     Mont.          Code Ann.                 tj 40-4-212                (1993),        without
making         the          requisite                 jurisdictional                       finding             as set         forth         at

Mont.         Code Ann.                  § 40-4-219                  (1993).              (See,         Dec.       Order        at     7,       1.

19;      page         11,        11.         7-9.)


                                                                          11
          The substance                of the relief              sought       by the moving              party
in an action                for     modification            is more significant                   than     the
relief       as stated              in the formal               pleadings.         Johnson            at 159,

879 P.2d at 693.                     Where the resulting                    visitation           schedule
constitutes            a significant                change in the children's                          schedule,
modification                actually       amounts to termination                        of an existing
joint      custody           situation.             Id.         In Johnson,        which         is
factually          similar           to the present               case,      the Court          held      that,
because          the parties'             relationship             had deteriorated                   to the
point      where they               were unable            to communicate            about        their
children's            needs,         contrary        to the children's                   best     interests,
it    would       be beneficial             to establish              more specific               visitation
guidelines            for      the parties           to follow.              Johnson at           169,     879
P.2d at 696.                 The Court         held        that    the district            court,         in
changing          the mother's             designation             as the children's                   primary
custodian,            actually          modified           the Final         Decree,       and
therefore,            the proper           standard             to be applied            was the serious
endangerment                test,      set forth           at Mont.         Code Ann.           § 40-4-219
(1993).           Johnson at 166, 879 P.2d at 694.                                 In applying             this
standard,          the Court            held      that      the evidence           presented            by the
father       did      not meet the              "heavy burden"               imposed upon a party
seeking          to modify           a final        decree,        citing       the underlying
policy       to    "preserve            stability           and continuity               of custody            for
the      children."               Johnson at 166, 879 P.2d at 695.                                The Court
held      that     the district             court          had committed           reversible             error

by,      "substantially                altering           the custodial           arrangements

                                                           12
provided           for            in        its      original              decree."                     Johnson              at        169,         879
P.2d       at    696.

           Even        if         the           district          court               in    this            case      had correctly

applied          the         serious                 endangerment                      test,            as opposed                     to     the

best       interest                test,             it      would         have            been         error         for         it        to      grant

the    modification,                              as set         forth           in        the         December              Order,              since

a finding             that                 the     statutory               criteria                    set      forth          at       Mont.

Code Ann.              5 40-4-219                          (1993),         had been met                         is    not         supported

by the          record.
                                                                         III.

            THE DISTRICT                           COURT ERRED BY MODIFYING                                          THE FINAL

           DECREE WHERE THE STATUTORY CRITERIA                                                                 SET FORTH AT

                MONT. CODE ANN.                             5 40-4-219                     (1993)            WERE NOT MET.

           Since            this            Court           should         accept                the         logic       set           forth

above,          and find                    that          the    district                  court             should          have           applied

the    serious               endangerment                        test,           it        is         obvious         that             the

district           court                   erred          by failing                  to    make the                 requisite

findings           of         the           statutory                criteria                   set     forth           at        Mont.             Code

Ann.       5 40-4-219                       (1993),             which           states,                in     relevant                 part:

           40-4-219.         Modification.        (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 that were unknown to the
           court     at the time of the entry            of the prior
           decree,      that   a change had 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:
                        .     .        .    .



                                                                           13
                (c) the child's     present environment   endangers
         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; . . .
Mont.      Code Ann. 5 40-4-219(1)(a)                            (1993).
         Neither         the record          nor the findings                 of the district
court      support        the existence           of the statutory                   criteria
necessary         to support           a modification               of the custody              and
visitation         provisions           of the prior               decree,         pursuant        to Mont.
Code Ann.         § 40-4-219           (1993).         The district                court    was
required        to find        that     there     was a change in circumstance
subsequent         to the entry              of the Final               Decree that         indicated
modification             was in the best              interests            of the children;             that
the     children's         environment           seriously              endangered         their
mental,        moral      or emotional           health;           and,     that     the benefit         of
a change in environment                      would be outweighed                    by the
advantages         to the children.                   Mont.        Code Ann.         § 40-4-219(c)
(1993).
                                                      A.

                       There    was no change               in     circumstance

               subsequent        to    the    entry        of     the     prior      decree.

         At the hearing               on Peggy's           Motions         for     Final
Determination             of Visitation           Rights           and Contempt,            neither
party      alleged        any change in circumstance                             subsequent        to the
entry      of the Final           Decree sufficient                     to meet the         threshold
test     set     forth     at Mont.          Code Ann. § 40-4-219                     (1993).
Neither        party      has remarried,              neither           has had a significant

                                                      14
change         in     their          respective              lifestyle,                  neither             is

contemplating                    relocation,               and neither                  has          had any            additional

children.              The December                   Order         is        silent           with        respect             to     any

change         in     circumstance,                   nor        was any change                       alleged            by either

of     the     parties.               Therefore,                 this         threshold               element            was not

met,      and the             district            court          erred         by modifying                       custody            of
the      children.

                                                                  B.

                       There          was no danger                      to    the       children's

                     physical,             mental           or      emotional                 well-being.

          The December                    Order       is     also         silent              with     respect                to     any

danger         to     the        children's              well-being.                     Because             the        district

court         did     not        apply      the       serious             endangerment                     test         set        forth

at     Mont.         Code Ann.             5 40-4-219                   (1993),          it        made no findings                         as

to     whether         the         children's               environment,                      as it        existed             at     the

October,             1994,         hearing,           endangered                 their             physical,             mental,

moral,         or     emotional             well-being.                       More       importantly,                    the

record         does         not      indicate            the       existence                  of     any     serious

endangerment                  to     the    children.

             Because          the     district              court         made no finding                          of    a change
in     circumstance                  arising          subsequent                 to      the         entry         of    the         Final

Decree,             as required             by Mont.               Code Ann.                  5 40-4-219                (1993),              it

could         make no finding                     that         such       a change                 endangered                 the

children's             physical,               mental,            moral,             or emotional                   well            being.

The failure                 of      the    district              court          to     make a preliminary

determination                     as to     whether              there          had been              a change                in


                                                                   15
circumstance              subsequent              to the entry                    of the Final          Decree of
dissolution              which     endangered                 the children's                  health         or well-
being      as contemplated                  by Mont.                Code Ann. (fj 40-4-219                     (1993),
rendered          the court            without              jurisdiction                 to modify      custody.
However,          even if         the court                 had made the requisite                          initial
finding       of a changed circumstance,                                    in accordance              with           the
statute,          the record             does not establish                         any danger          to the
children.
                                                              C.
              The harm            to     the          children        resulting             from      the
            change        in      environment                 outweighs            the      advantages.

          The district              court         made no indication                        in its          December
Order      that     it     even considered                       whether           the harm to the
children          resulting            from the modification                              of visitation
outweighed          any advantage                      to the children.                     In fact,           as the
testimony          set     forth          in section                (d),     below,         clearly
establishes,              the record                  indicates            that     the children               would
benefit       from a more stable,                            consistent             environment.
                                                               D.

 The modification                   is     not         in    the     children's             best      interests.

          Once the district                    court           makes a finding                 that         the
jurisdictional                 requirements                  of Mont.             Code Ann.         § 40-4-219

(1993))       have been met,                     it      must then           proceed          to an analysis
of the children's                   best         interests.                 The record             in this            case
does not          support         the court's                  finding            that     the visitation
schedule          set     forth          in the December Order and the elimination

                                                               16
of Peggy's            designation           as the children's                          primary        residential
parent        is     in the best           interests              of the children.                     In fact,
the record             supports       the contrary.                      For example,               Eleanor
Truitt,        a licensed            clinical          social            worker          who acted           as       a
court-appointed                 guardian        ad-litem                for     the boys,           testified
that      parents          must be able to negotiate                                 and communicate                  to
facilitate             a custody        and visitation                        schedule          where the
parents            share     equal    time      with         the children.                     (See Transcript
of Proceedings,                 dated      October           20-21,            1994 [hereinafter
"October            Transcript"],           Vol.       I,        page 276,              lines     ~8-11.)
Carmen Knudson-Martin,                      Ph.D.,           University                professor           and
marriage            and family        therapist              testified                that      on-going
conflict            between      separated          parents              is the most damaging
thing        for     their      children        (Oct.            Tr.,         Vol.      I at 30, 11. 3-4).
Nona Faith,             court       administrator,                  family            law mediator               and
mother        of the Schaplow children's                                best         friend,       testified
that      she has not observed                     the type              or degree              of flexibility
and communication                   between Terry                 and Peggy that                   would
facilitate             a successful           50/50 custody                     arrangement                (Oct.          Tr.
vol.      I at 49, 11. 2-4).                 The procedural                          history       of the
antagonistic               proceedings          between             Terry            and Peggy supports
Ms. Faith's             observations.              Dr. Marvin                  Backer,          clinical
psychologist               working      primarily                in the area of child                        and
family        psychology,            who counseled                  the parties                 in July          of
1989,      testified            about      the parties'                  inability              to communicate
about        issues        regarding        their           children            at a hearing                on

                                                            17
Temporary   Custody   on September       14, and 24, 1990:
           Q. Can you describe the communication
     problems or the problems that the parties   were
     having that they presented to you?
            A. I think there were a number of problems,
     one had to do with decision making, of how they
     would reach decisions.      And part of my function
     was essentially     that of being mediator,    trying  to
     resolve   some conflicts,   trying  to reach decisions
     with regard to the kids, particularly       with
     reference   to visitation   and schedules.     The
     parents seemingly had great difficulty       doing this
     together.    And it was one of the reasons that I
     offered   my services.
            Q.   When you said "apparently",       could you
     describe    the,problems  the parties    were having in
     deciding    issues concerning  their    children?
            A. I could.     I guess my preference,   Mr.
     Sinclair,   is to speak in more general terms     about
     a process rather    than giving specifics.    If you
     want specifics,    I can do that.

            Q.   Can you describe        the process?
             A. Yes. One of the things that I was aware
      of is that there is a lot of bitterness                that
      exists     between those two people.          There are
     .ongoing conflicts        that go back for years, there're
       [sic]   communication problems that go back for
      years.      We just have a different         arena with which
      to deal with some of the power struggles                 that
      operate,      some of the differences        of opinion that
      exist between them.           And so, when it came to the
      area of deadline with children,            it wasn't terribly
      surprising      that they would have as much difficulty
      reaching decisions         there as maybe other areas of
      their    marriage.      Their ideas with regard to child
      rearing     are somewhat different.          There ideas with
      regard to what is in the childrens'              [sic]     best
      interests.        Perhaps they're    somewhat different.
     And so, when they would typically              sit down and try
      to reach some decision          about things,     most often it
     was a stalemate.          Frequently,    there was no




                                    18
          resolution.      So, there are ongoing                                areas       of
          conflict    which is maintained.
(Transcript    of Proceedings,   dated September 14 and 24, 1990
[hereinafter     "September Transcript"],  page 7, lines 8-25; p.
8,  11. 1-21.)
          The record         shows thatthere                        has been little               or no
improvement             in the parties'                  ability         to communicate                and
cooperate         since      Dr.     Backer             testified          in 1990.          In fact,           both
parties         had to ~file         Motions             for       clarification            of the
December Order,              requiring             Judge Cox to issue                     yet     another
order      regarding         visitation                 for     the summer of 1995 (Order,
dated      June 28, 1995).                  Further,               the district           court
specifically             ruled,      in its             December Order,              that        the parties
had attempted             a weekly          visitation                schedule       like        the schedule
set     forth     in the Order              for         a brief        period      of time         during        the
spring      and summer of 1994, but they                                were unable              to continue
and reverted             to the pre-existing                        schedule       (Dec.         Order       at 3,
11. 1-12).              Even Terry,           in suggesting                 a weekly         visitation
schedule,         anticipated           disagreements                    between      the parties               and
suggested         a strategy          for      the            inevitable        failure          of the
parties         to cooperate          whereby                 Judge Levitt         would         act    as a
mediator         (Oct.     Tr.,      Vol.         II     at 189,         1. 9; p. 190,             1. 5).
None of the parties'                  numerous attempts                      at mediation               since
their      divorce        in 1989, have been successful.                                    (a         Statement
of Facts,         page 2, paragraph                      6.)        Obviously,          the parties'
communication             skills      will             not enable          them to sustain               a
weekly      visitation             schedule             without        substantial           conflict.              As
witnesses         for     both      parties             and the parties              themselves              have
                                                              19
testified,         this    on-going        conflict         is      contrary        to the
children's         best    interests.
                                                  IV.

      THE DISTRICT        COURT ERRED BY MODIFYING                         THE FINAL         DECREE

BECAUSE TERRY FILED               NO AFFIDAVIT             IN SUPPORT OF MODIFICATION,

          AS REQUIRED BY MONT. CODE ANN.                          5 40-4-220           (1993).

         Even if       the district           court      had had a motion                  for
modification           before     it,     had applied             the correct          standard              of
review,      had made the requisite                     findings,          and had found
modification           to be in the children's                      best    interests,              the
modification           would,     nonetheless,             be erroneous,              since         the
court     did   not have an affidavit                    before       it    setting         forth         the
necessary       statutory         criteria.             The moving party               to a motion
for     modification         of a custody             decree        must support            his      motion
with     an affidavit,           in accordance             with      Mont.     Code Ann.
5 40-4-220         (1993),       which     states,         in relevant             part:
                40-4-220.           Affidavit           practice.            (1)    A Party
         seeking a temporary custody order or modification
         of a custody decree shall submit, together              with
         his moving papers, an affidavit        setting     forth
         facts supporting    the requested order or
         modification   and shall give notice,        together      with
         a copy of his affidavit,      to other parties        to the
         proceeding,   who may file    opposing affidavits.            The
         court shall denv the motion unless it finds that
         adeauate cause for hearina the motion is
         established   bv the affidavits,     in which case it
         shall set a date for hearing on an order to show
         cause why the requested order or modification
         should not be granted.
Mont.     Code Ann. § 40-4-220                   (1993)      (emphasis         added).
         There was no motion               for    modification              before         the court
and,     accordingly,           neither       party      filed       a supporting                affidavit
                                                   20
in accordance                       with      the Mont.              Code Ann. § 40-4-220                     (1993),
and the resulting                           December Order                   should,         therefore,            be
vacated.                In In re the Marriaae                              of Allison,             suora,         the
Montana           Supreme Court                      affirmed             the ruling          of the district
court       vacating                 an order          changing              residential             custody,
because           it     was not adequately                           supported            by an affidavit                 as
required               by Mont.             Code Ann. § 40-4-220                           (1993).         Allison,         at
-,          887 P.2d at 1227.
          The Court                  held      the moving party                     to a strict             standard            of
literal           compliance                  with     the statutory                  requirement             set       forth
at Mont.               Code Ann. § 40-4-220                           (1993),         because the statute                       is
explicit               and provides                  no exceptions.                  Id.      at              , 887 P.2d
at 1227.                The Court              rejected              the respondent's                    argument        that
the district                       court      should         have made an exception                         to the
affidavit               requirement                  since      he did not have adequate
information                       at the time          he filed              his    motion         for
modification,                       stating,          "[t]he          statute        provides             no exception
to the affidavit                           requirement,               and we refuse                to create            one."
Id.
          Nor should                   this     Court          carve         out an exception                 in this
case.        The fact                  that     neither              Terry     nor Peggy actually                       filed
a motion               for         modification              should          not excuse the                fact     that
the district                       court      modified          the Final             Decree without                having
before       it         a sworn affidavit                       setting            forth      the statutory
criteria.                    It     was improper               for        the district             court      to modify
the Final               Decree without                   an initial                finding         that     the

                                                                     21
threshold               statutory            criteria                had been             met     and set             forth         in

an affidavit.                       It     was reversible                    error         for     the         court          to

modify          the         Final         Decree        when there                  was no affidavit                        setting
forth          facts         sufficient                to    establish               grounds            for        modification

in    accordance                  with      Mont.           Code Ann.               § 40-4-220                (1993).

                                                                     V.

THE DISTRICT                      COURT ERRED BY ORDERING THE CHILDREN                                                 TO ATTEND

     THE CHURCH OF FATHER'S                                 CHOICE WHILE THEY WERE IN MOTHER'S

CUSTODIAL               CARE IN VIOLATION                           OF HER FIRST                 AMENDMENT RELIGIOUS
                    RIGHTS          AND MONT. CODE ANN.                            5 40-4-218                 (1993).

Montana             law      states:

          Except     as otherwise          agreed by the parties             in
          writing     at the time of the custody                  decree,      the
          custodian      may determine           the child's       upbringing,
          including      his education,            health    care,     and
          relisious      training,         unless    the court        after    hearing
          finds,     upon motion         by the noncustodial             parent,
          that     in the absence of a specific                 limitation         of
          the custodian's           authority,       the child's         physical
          health     would be endangered              or his emotional
          development        significantly          impaired.

Mont.          Code Ann.                 § 40-4-218             (1993)             .(emphasis           added).

          In        this       case,        the        District             Court         abused         its        discretion

when      it        ordered              Peggy     as the            custodial             parent             to    make       sure

the      children              attend        the        First            Presbyterian                  Church         against

her      wishes,             solely         because             Terry        desired             the     children              to

attend          his         church         (Oct.        Tr.,         Vol      II     at    169,         11.        5-13).

          This          is     an issue            of       first          impression             in     Montana.                  This

Court          in      In    re     the     Marriace                of     Gersovitz,             238 Mont.                 506,      779

P.2d      883          (1989)held                 in    a custody                  determination:



                                                                     22
          [Clourts          will not debate the merits of different
          religions          or show oreference to anv relicrious
          faith.
Id.     at 885 (emphasis               added).
          However,          the case at bar is not an issue                    of the     custody
based on religion.                    Rather,         the district     court    held    the
children          must attend          the church           chosen solely      by Terry       (Nov.
Order;          Dec. Order).           It     did so by ordering         Peggy to assure
their          children      attend         his   church     during   her custodial
period.          Id.
         As this           Court     held     in Gersovitz:
         [T]he first   Amendment guarantees religious     liberty
         and the right   of parents to direct  the religious
         upbringing   of their  children.
Id.     at 885.
          Judge Cox's              orders     state     as follows:
          Terry shall return   the boys to Peggy's house at
          8:00 a.m. on Sunday on or after     January 9, 1993
          for the two five-week   ski lessons,   provided that
          Peggy takes the boys to each evening service      at
          First  Presbyterian  Church for those Sundays.
          Peggy shall give Terry reasonable advance written
          notice of when said two five-week     programs are to
          be held;
          Other than the said two five-week  ski programs,
          the boys shall attend Sunday School uninterrupted
          from 9:00 a.m. to 10:00 a.m. at First  Presbyterian
          Church.
(Nov.          Order      at 2.)
         Both parties               shall ensure that the boys attend
         Sunday School               and/or Church Services at First
         Presbyterian               Church each Sunday that the custodial
         parent is not               out of town.
(Dec.      Order          at 12).
          It     is    impossible           to perceive       how, knowing      Peggy's
                                                       23
objection,          the court         ordered          the children             to attend              the
First      Presbyterian            Church without               violation             of her       custodial
rights.        Rather,        the court            mandated Terry's                   desire       to the
exclusion        of Peggy's           desire        and her First               Amendment legal
rights.
          In this     case,        Terry      requested              the court         to order          Peggy
to make sure          the children                attend       his     church         during       her
custodial        period       (Oct.        Tr.,     Vol.       II,     at 201,         11. l-2;          p.
202,      11. 12-14;        p. 222,         11. 6-19).                Peggy objected               to this
requirement          because the time                  of church             services         or Sunday
school       conflicted        with        her custodial               plans         (Oct.      Tr.,     Vol.
I,    at 77,     11. 11; p. 81, 1. 9).                         More importantly,                   Peggy did
not prefer          the First         Presbyterian               Church as Terry                 and his
lawyer       were both members of the church                                 (Oct.     Tr.,      Vol.        II    at
222,      11. 7-19).          This made Peggy uncomfortable                                  in attending
the     church      and affected            her attitude               about         the values          of the
church       attendance        for     her children                  (Oct.     Tr.,     Vol.       I at 80,
1. 41; p. 81, 1. 9).                   Peggy requested                      each parent          decide           and
pursue       the religious            programming              for     their         children          when
they      were in their            care      (Oct.      Tr.,         Vol.     I at 79, 11. 7-12).
          Regional'       courts      have addressed                  this     issue.           In Munoz v.
Munoz, 79 Wash.2d 810,                     489 P.2d 1133 (1971)                       the divorcing
parties       could       not agree regarding                    the religious                training            for
their      two children.              The     matter        went to trial.                    In the         lower
court,       the judge        awarded sole              control             over the children's
religious        training          to the mother               who was the physical

                                                       24
custodian.                 &at-,                             489 P.2d          at      1134.

           The      Supreme            Court            of    Washington               reversed             and modified

the     decree            stating:

            [Clourts     are reluctant         . . . to interfere         with   the
           religious      faith      and training       of children     where the
           conflicting        religious      preferences       of the parents
           are in no way detrimental               to the welfare       of the
           child      . . . constitutionally,            American    courts     are
           forbidden      from interfering           with religious       freedoms
           or to take steps preferring                one religion      over
           another.

Id.     at        1135.

           In      the     case        at     bar,           there        was no testimony                           nor

allegation                of     jeopardy               to    the     children's                 welfare              requiring
mandatory                attendance               for        the     children           at       First          Presbyterian

Church            (Oct.        Tr.,      Vol       II        at     169,     11.       5-13;          p.       222,          11.    6-
10).         Rather,            the      entire              testimony           focused              on Terry's                   belief

such       religious               training              met his            desire          to     educate              the

children              on his          religious               beliefs           (Oct.        Tr.,          Vol.         II     at     169,

11.      5-13).

           In      this        case,        the         district            court's          order             for      Peggy         to

assure          the       attendance               of        her     children           in       Terry's              religious

training            creates            a preference                   for      Terry's             religion                  and
excludes            Peggy's            desires.                   Moreover,            in    the         event          Peggy

desires            to     provide           no religious                    training             to      the         children,

the      district              court's            December            Order         precludes               her         religious
desire          altogether.

           In      Ohio,        the      Court           of        Common Pleas,                 in      the         case      of

Anael        v.     Angel,            140 N.E.2d                   86 (Ohio         C.P.         1956),              held:

           Generally               speaking              and apart             from         teachings                 that

                                                                     25
          are subversive               of morality    and decency and some
          others equally               obnoxious,   the courts have no
          authority  over              that part of the child's    training
          which consists               in religious    discipline.
Id.    at 87.
          Terry     has not alleged               nor presented              facts       that       Peggy's
desire       to choose her own religion                        for     the children
subversives            their     morality         or decency            (Oct.     Tr.,        Vol     II     at
169,      11. 5-13).            Rather,      he     merely       desires         to control                Peggy
and her religious                choices      for      their         children         (Oct.      Tr.,       Vol.
II    at 169,       11. 5-14;           p. zoo,      1. 20; p. 201,               1. 7).
          This    Court        must honor         the Constitution.
          Courts should adhere to a policy              of impartiality
          between religions          and should intervene        in this
          sensitive     and constitutionally         protected      area only
          where there is a clear and affirmative                 showing of
          harm to the children.           Restrictions      in this area
          present the danger that court-imposed                limitations
          will    unconstitutionally       infringe     upon a parent's
          freedom of worship or be uerceived              as having that
          effect.
Khalsa v. Khalsa,                751 P.2d 715,               721 (N.M.          Ct.    App.      1988)
(emphasis added).
          In this       case,     the district               court     may      not have intended
to    infringe         on Peggy's         freedom to worship                    or not,         the
reality       is that          she perceives           her rights            have not been
upheld      when she is ordered                   to educate           her children              in
Terry's       faith.
          For these        reasons,         Peggy asks this               Court        to hold          that
the district            court     abused its           discretion            when it          ordered          her
to assure         the children            attend       Terry's         choice         of religion.
Peggy asks this                Court     to order       the district              court         to enforce
the   law that         grants      a custodial             parent       the right          to decide
religious       training          during      their        custodial          period.         Mont.
Code Ann.        § 40-4-218(l)             (1993).


                                            CONCLUSION

         The district           court      committed          reversible           error      by:        (1)
ruling       on a motion          that     was not before               the court;           (2)
applying       the wrong standard                of review;                (3) modifying           the
decree       without     satisfying           the statutory                 criteria        set     forth
at Mont.       Code Ann. § 40-4-219                    (1993);          (4) modifying             the
decree       without     satisfying           the statutory                 mandate of Mont.
Code Ann.        5 40-4-220          (1993),      requiring             the filing           of an
appropriate        affidavit;            and (5) ordering                   Peggy to assure              her
children       attend      the church          of only          Terry's          choice.          For
these       reasons,      Peggy respectfully                  requests          that       the December
Order       of the Eighteenth              Judicial          District          Court       be reversed
and remanded.


                                REQUEST FOR ORAL ARGUMENT

         Petitioner/Appellant                 respectfully                 requests        oral
argument        before     this      Court.


         RESPECTFULLY           SUBMITTED        this        4th day of November,,1995.

                                           .qq&(?                          tQ+
                                                           le C. Quist      j
                                                             K. Anderson   i
                                                           eys for Petitioner/Appellant

                                                      27
                         CERTIFICATE        OF SERVICE

       I hereby    certify     that  on the 4th of November,         1995, a
true   and correct       copy of the above and foregoing          document
was duly served upon counsel           of record    by depositing      in the
United    States   mail,     postage  prepaid,   addressed     as follows:
      Edmund I?. Sedivy, Jr.
      SEDIVY, BENNETT & WHITE,          P.C.
      Attorneys  at Law
      P.O. BOX 1168
      Bozeman,  MT 59715




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