                             NO.    93-170

           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1994


IN RE THE MARRIAGE OF
TERRY LEE GALLAGHER,
           Petitioner and Respondent,
     and
REBECCA JUNE GALLAGHER,
           Respondent and Appellant.




APPEAL FROM:    District
                       Court of the Twelfth Judicial District,
                In and for the County of Hill,
                The Honorable John Warner, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
                Roxanne Rogers, Montana Legal Services Association,
                Havre, Montana

           For Respondent:
                Patricia Jensen; Rice Law Office, Havre, Montana



                              Submitted on Briefs:      October 5, 1993
                                             Decided:   September 12, 1994
Filed:



                                   Clerk
Justice John Conway Harrison delivered the Opinion of the Court.

      Rebecca June Davis (formerly Gallagher) appeals from an order
of the Twelfth Judicial District Court, Hill County, modifying the
primary physical custody of her and her former husband's three
children.     We affirm.
      Terry Lee Gallagher (Terry) and Rebecca June Davis (Rebecca)
were married in January 1982, in Havre, Montana.         Their   marriage
was dissolved in 1988.           The District Court incorporated the
parties'    separation agreement into the dissolution decree which
provided for joint custody of the parties' three minor children.
Rebecca was designated as the primary physical custodian during the
school year and Terry was granted custody during the summer months.
      Rebecca later married Richard Davis (Richard) and together
they had two children.       Rebecca's and Richard's family, which now
consisted of five children and two adults,           at times lived in
poverty and depended on public assistance.
      In August 1992, Terry learned that Rebecca intended to move
her entire family from Montana to Virginia.        Terry filed with the
District Court a petition to modify the primary physical custody of
his   three   children.      He alleged that since his children were
integrated into the Havre school system,          he should be awarded
primary physical custody thereby allowing them to continue their
schooling in Havre.       Terry further alleged that Rebecca's resources
to provide for the children in Virginia were unknown.
      Rebecca responded, asserting in part that it would not be in
the best interests of the children to change their primary physical
                                      2
custodian as they had been integrated into her family unit for over

four years.           In     September    1992,   Rebecca,    Richard and the five
children moved to Virginia.

      In    a    November        1992     hearing,    the    District      Court        heard

testimony,       received evidence and met privately in chambers with
Terry's and Rebecca's three children.                 After reviewing the record,
the court determined that it would be in the best interests of the

children to modify the parties' joint custody arrangement by making
Terry the primary physical custodian during the school year and

Rebecca the custodian of the children during the summer.                         In making
its   determination, the court found that Rebecca and Richard had

problems        in     their     relationship        in     addition      to     financial
difficulties         which    adversely    affected   the    best   interests       of    the

children.
      These          difficulties        included:    Rebecca       had        sought     two

restraining      orders       against    Richard: the children were improperly

clothed: the family faced eviction from its residence in Virginia:

they did not own an automobile: the five children shared one common

bed in the same room as their parents; and Rebecca did not work

outside of the home nor was Richard employed at the time.

      The court noted that Terry was a supportive father, and that

he had "adequate housing" for his three children.                              Further,    no

evidence was presented at the hearing to suggest that Terry's home

was unsafe.           The court found that the children's environment at

Rebecca's house seriously endangered their physical, mental, moral

and emotional health, and that the danger outweighed any detriment


                                              3
a change of custody might cause.        Rebecca appeals.


                                   I
     Did the District Court improperly base its decision on
evidence not found in the record?
     Rebecca argues that the court improperly took judicial notice
of a disputable fact--that the Davis family's use of a kerosene
heater in their home was unsafe.        She states that no evidence was
presented during trial which alluded to the safety of the heater,
and that, in essence, the court became an advocate for Terry by
permitting its personal views to become part of its decision.
Additionally,   she asserts that the court improperly impugned her
testimony based on the court's personal views of kerosene heaters
in the home.    Conversely,   Terry contends that because the court
specifically stated that its decision was not based on the safety
of the kerosene heater, it committed harmless error by questioning
the dangers of operating the heater in the Davis household.
     For the convenience of Rebecca, who had to travel from
Virginia to Montana to attend the hearing, the court made oral
findings of fact in court with the parties present.        The court did
make statements concerning the safety of using a kerosene heater in
the home: however, the court also stated that it did not base its
decision on those statements.          Rather,   as discussed below,   the
court gave appropriate reasons for modifying the parties' joint
custody arrangement.   Therefore, we conclude that the court did not
improperly base its decision on evidence not found in the record.


                                   4
                                          II
     Did the District Court use the proper legal standard to modify
the primary physical custody of the children?

        The parties generally agree that the requirements relating to

modification of custody contained in 5 40-4-219, MCA, apply in this

case.       Rebecca    argues,     however,        that those    "jurisdictional

requirements 'I were not met; Terry contends otherwise.
        We recently clarified that § 40-4-219, MCA, applies to a

petition     to   modify   child        custody    which   has   "the    effect   of

substantially changing the primary residence of the parties'
children, even though the formal designation of 'joint custody' is

retained . . . .I*     In re Marriage of Johnson (Mont. 1994),             _ P.3d

        _, 51 St.Rep.      703, 706.       We emphasized that such petitions

must satisfy the jurisdictional requirements contained in that

statute.     Marriage of Johnson, 51 St.Rep. at 706.                    Only if and

after the court determines that the petitioner has met the combined

jurisdictional        requirements        by      establishing    both     "changed

circumstances" and one of the other statutorily defined factors may

the court go on to consider the best interests of the children.
        Here, the relevant additional statutory factor is "the child's

present     environment endangers seriously his physical,                   mental,

moral,    or emotional health and the harm likely to be caused by a

change in environment is outweighed by its advantages to him[.]"

Section    40-4-219(1)(c),       MCA.     In the case presently before us,

then, Terry was obligated to meet both the "changed circumstances"

and "serious endangerment" requirements as a threshold matter.                    The

District Court determined that those requirements were met and,

                                           5
further,        that the best interests of the children were served by

modifying primary physical custody.
       As       we   stated     in Marriase of Johnson,                a party seeking
modification         pursuant    to   5   40-4-219,      MCA, bears a heavy burden.

Marriaoe of Johnson, 51 St.Rep.                  at 706 (citation omitted).          When

reviewing a district court's findings regarding modification, we

will not reverse unless those findings are clearly erroneous. In

re Marriage of McClain            (1993), 257 Mont. 371, 374, 849               P.2d 194,

196.

       Here, we find sufficient evidence in the record to support the

District        Court's   finding     that   a       change   of   circumstances   existed

requiring a modification in consideration of the children's best
interests.           In its January 27,              1993,    order   denying   Rebecca's

motion, the court detailed the living arrangements of the children

and stated in part:
            Prior to their move to Virginia, the children lived
       with their mother in unsanitary conditions, partially
       from neglect, and partially from animal waste.       The
       children lived in abject poverty. Neither [Rebecca] nor
       Mr.   Davis  worked.     The  children's  clothing   was
       inadequate.    Their rent was unpaid and they faced
       eviction when they moved to Virginia. The utility bills
       were unpaid.

            Currently,   they have no operative vehicle or
       telephone.   Additionally, evidence shows that at least
       some of the money received for the children from public
       assistance was used for Mr. Davis' pleasure, obviously
       adversely affecting the children.
       .    .   .

             [Rebecca] obtained two restraining orders against
       her current husband due to physical abuse. Mr. Davis has
       been difficult to control,      and the children were
       intimidated by him.    During the court's interview with
       the children, they stated that they did not fear Mr.

                                                 6
     Davis.   However, their eyes and demeanor belied their
     words when they described how he spanked them with a
     bread board or his belt.     It appears to the Court in
     interviewing the boys that they have been instructed not
     to   say   anything   negative   about   their   present
     circumstances, perhaps out of fear.
     .   .       .

           The house in Virginia is older and is not in good
     condition. At one time, twelve people shared the house,
     now only ten reside there, along with about seven house
     pets.
          All five of [Rebecca's] children sleep on one
     mattress in the upstairs of this house, partly because
     they only have one mattress for the children to share,
     and partly to keep warm.
           [Rebecca] and Mr. Davis share another mattress in
     this same room. The owner of the house has asked them to
     vacate the home because of the unpaid rent, and there is
     no evidence that they have any place to live.
     .   .       .

          The Court does not make the decision to modify the
     parenting plan easily.     [Rebecca] obviously loves her
     children, and they love her, and their two younger half-
     brothers. They also seem to do adequately in school, and
     presently appear to be physically healthy. However, the
     pattern of unpaid rent, unpaid bills, evictions in the
     middle of winter, substandard living conditions, and
     physical discipline are contrary to the best interests of
     the children. These factors, and others in the evidence,
     combine to show that modification of the parenting plan
     is in the best interest of the children.
     .       .       .

     In the case at bar,            the children's "present environment
endangers seriously [their] physical, mental, moral, or emotional
health and the harm likely to be caused by a change in environment
is   outweighed          by   its   advantages   to   [them.]"   Section
40-4-219(1)(c), MCA.          We find the District Court did not err in
modifying the primary physical custody of the children:              the
jurisdictional   prerequisite found in 5 40-4-219(1)(c),   MCA, has

been met.

     Affirmed.




            Justices
Justice Karla M. Gray, dissenting.

     I respectfully dissent from the Court's opinion.         While I
agree that 5 40-4-219, MCA,      applies to this petition to modify
custody,     I disagree that the jurisdictional requisites of that
statute were met here.     It is clear that, in resolving this case,
the District Court believed that 5 40-4-212, MCA, applied; it did
add several findings directed to the 5 40-4-219, MCA, standards,
but those findings are somewhat nebulous and, to some extent,
unsupported by the record.       Because of the confusion over the
applicable    standard and the nature and content of the court's
findings as they relate to § 40-4-219, MCA, I would remand this
case to the District Court for redetermination.
     At the outset, it is important to note that Terry filed his
petition for modification & to Rebecca's move to Virginia.         The
basis for the petition was the upcoming move.           AnY   "changed
circumstance" necessary as a foundation for a total change of the
children's physical custody was met, in Terry's view, by the move
itself.    The District Court apparently agreed, finding that "this
travel does represent a substantial change in the circumstances of
the children."     I disagree.
     While changing the state of residence of the children may
provide a sufficient foundation to modify visitation rights and
associated costs, it is my view that such a change does not, in and
of itself, meet the substantial change in circumstances requirement
of 5 40-4-419, MCA.     It is not for the courts of Montana to negate
a   custodial parent's decision about where to live with her
                                   9
children;    only    where   those   decisions   produce an   otherwise
substantial change in circumstances can such a factor impact on a
court's decision to modify physical custody of the children.
     Nor does the record support the notion that the children's
living circumstances were significantly changed in an adverse
manner by the move.     The fact is that Rebecca, her husband and the
children lived in near poverty during their time in Havre.
Rebecca's unemployment outside the home and motherhood of five
children certainly did not change after the move, and the same is
true of her husband's underemployment.
     Moreover,      the District Court's efforts to make findings
sufficient to establish the serious endangerment standard contained
in 5 40-4-219, MCA, are not supported by the record.          It is true
that money was scarce, as it had been in Havre.        It is also true
that housing in Virginia was unlikely to be stable, as was also the
case in Havre.      It is also true that the children were sleeping on
a mattress on the floor awaiting the family's furniture.           These
matters do not constitute serious endangerment.
     Indeed,     the court made findings which negate the serious
endangerment standard.       It found that the children were physically
healthy.    It also found that, after an initial period of adaptation
to their new school, the children had perfect attendance records
and good grades.
     It is my view that the District Court's lengthy pronouncements
about the dangers of kerosene heaters,           which even this Court
concedes were inappropriate as being totally unsupported by any

                                     10
evidence, significantly and improperly influenced its approach to
the serious endangerment standard of 5 40-4-219, MCA.        Without
those pronouncements and the court's clearly substantial concern in

that   regard,   there is little evidence to support the court's

serious   endangerment   conclusion.

       I would remand to the District Court for a redetermination of

the petition to modify custody based on application of § 40-4-219,

MCA.




                                       11
                                       September 12, 1994

                                  CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:


ROXANNE ROGERS
Montana Legal Services Association
P.O. Box 548
Havre, MT 59501

Patricia Jensen
RICE LAW OFFICE
P.O. Box 912
Havre, MT 59501-0912

                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE OF MONTANA
