                              NO.    91-269

           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1992



IN RE THE MARRIAGE OF
EILEEN THOMAS, f/k/a/ EILEEN McDANOLD,
           Petitioner and Respondent,
     and
PAUL DOUGLAS McDANOLD,
           Respondent and Appellant.



APPEAL FROM:       District Court of the Sixteenth Judicial District,
                   In and for the County of Rosebud,
                   The Honorable Joe L. Hegel, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
                   Gary Ryder, Attorney at Law, Sidney, Montana
           For Respondent:
                   Dennis Corbin, Attorney at Law, Miles City, Montana

            t,; y v-p,
                ii ".<d
            i;   .~....             Submitted on Briefs:   June 25, 1992
                                                Decided:   August 13, 1992




                                    Qlerk
Justice R. C. McDonough delivered the Opinion of the Court.

     Paul Douglas McDanold appeals from an order of the Sixteenth
Judicial District Court, Rosebud County, modifying the custody
decree.   We affirm and remand in part.
     The following issues are presented on appeal:
     1.     Whether the District Court erred in considering Eileen
Thomas's petition for modification of custody:
     2.   Whether the District Court erred in modifying the custody
award: and
     3.   Whether the District Court erred in ordering Paul McDanald
to pay child support to Eileen Thomas.
     Paul Douglas McDanold (McDanold) and Eileen McDanold a/k/a/
Eileen Thomas (Thomas) were divorced on July 1, 1986. McDanold was
awarded sole custody of the couple's only minor child, Derek John
McDanold.      The   decree   of   dissolution provided       for   liberal
visitation.      Thomas moved      to North   Dakota for a time, but
subsequently returned to Montana.             Testimony at the hearing
provided that Derek spends 50 to 60 percent of the time with his
mother, and the remaining time with his father. Testimony revealed
Derek enjoyed spending time with both his parents and that he was
doing exceptionally well in school. At the time of the hearing in
1989 Derek was eight years of age.

     In January of 1989, Thomas sought modification of the original
custody decree with the District Court.         On February   9,   1989, the

District Court granted Thomas's order as to whether adequate cause
existed to modify the custody and child support provisions of the
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decree.    On June   9,    1989, a non-jury hearing was held on Thomas's

motion to modify.         On March 12, 1991, the District Court modified
the original custody decree, providing the parties with joint
custody, with Thomas as primary residential custodian. This appeal
followed.
     Our    standard       for reviewing a      district court's      findings
regarding modification of custody and whether a party has met the
criteria of 5 40-4-219, MCA, is whether the findings are supported
by substantial credible evidence.           District court findings of fact
will only be overturned if clearly erroneous. Marriage of Moseman
(1992)r   - Mont. -,          830 P.2d 1304; In re Marriage of Anderson

(1989), 240 Mont. 316, 783 P.2d 1372.



     Whether the District Court erred                 in considering Eileen
Thomas's petition for modification of custody.
     The District Court determined that adequate cause existed to
hold a hearing on Thomas's motion to modify.                     Thomas raised
concerns that McDanold abused alcohol which effected the physical,
mental, and emotional health of the child.             Thomas raised further
concerns that Derek was making the decisions as to which parent he
wanted to stay with. Section 40-4-220(1), MCA, requires a court to
find "adequate cause for a hearing" in determining modification.
The Commissioner's Note to 5 40-4-220, MCA, provides that the
procedure for seeking a modification in custody is by motion with
supporting affidavits.           The procedure is meant to discourage
contests    over          temporary   custody   and    prevent    repeated   or

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insubstantial motions for modification.    We held in In re Marriage
of Anderson (1989), 240 Mont. 316, 783 P.2d 1372, that averred
facts and allegations are sufficient to constitute adequate cause
for a hearing.
     In the present case, the affidavits submitted by Thomas were
sufficient for the District Court to find adequate cause for a
hearing.   We therefore affirm the District Court on this issue.
                                 I1
     Whether the District Court erred in modifying the custody
award.
     The District Court modified the original custody decree.      It
granted the parties joint custody of Derek, with Thomas as the
primary residential custodian.        The District Court found that
McDanold agreed to joint custody at the hearing.
     Section 40-4-219, MCA, provides in part:
     (1) The court may in its discretion modify a prior
     custody decree if it finds, upon the basis of facts that
     have arisen since the prior decree or that were unknown
     to the court at the time of entry of the prior decree,
     that a change has occurred in the circumstances of the
     child or his custodian and that the modification is
     necessary to serve the best interest of the child and if
     it further finds that:
     (a) the custodian agrees to the modification:

     (b) the child has been integrated into the family of the
     petitioner with consent of the custodian;
     . . .
At the hearing McDanold was ambivalent as to whether he agreed to
joint custody.   He stated he had no problems with a joint custody
arrangement, then later he stated he felt there was no need for a

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change in the custody arrangement and that the current custody
arrangement was working well.    However, he said he opposed his ex-
wife as the primary residential custodian.    Therefore, it appears
(1)(a) of 5 40-4-219, MCA, is not satisfied.
     Thomas argues that Derek spends 50 to 60 percent of the time
with her and that Derek often makes the decision as to which parent
he wants to stay with.    Thomas contends a more formal visitation
would be best, and that an eight year old should not be making the
custody decisions. What we have before us is a case which began as
a sole custody arrangement with the father, but through liberal and
cooperative visitation,    has   evolved   into   a   'joint custody'
arrangement.
     Evidence presented at the hearing showed Derek spent 50 to 60
percent of his time with his mother.    On the facts before us, the
District Court could find that Derek was integrated into the family
of Thomas with the consent of McDanold.       As we said in In re
Marriage of Paradis (1984), 213 Mont. 177, 689 P.2d 1263:
     The integration standard of subsection (1)(b) of Section
     40-4-219 is intended to provide a child with continuity
     and stability where a sole custodian under the Uniform
     Act has freely relinquished his or her right to physical
     custody so frequently or for so prolonged a period that
     the child has become settled and established in the home
     of the noncustodial parent.
Paradis at 180, 689 P.2d at 1265.      However, there is a twist to
this case, the integration occurred but not to the exclusion of
McDanold's family relationship with Derek.
     In re Marriage of Bolton (1984), 212 Mont. 212, 690 ~ . 2 d
                                                               401,

we said:

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       The consent requirement of [ (1) (b]) is intended to
       ensure that the custodian acquiesced in the transfer of
       physical custody   . . .  and the integration into the
       family of the petitioner and should be viewed in that
       narrow context.
Bolton at 221, 690 P.2d at 405.             In Bolton the mother lived in
California and the father lived in Montana.          The child spent 12 of
the last 18 months in Montana with the father and attended school
in Montana.     We found that the voluntary transfer of the child's
physical custody from the custodial to the non-custodial parent
results    in   the   child's       integration, satisfying the     consent
requirement of 5 40-4-219(1)(b),         MCA.   Bolton at 221, 690 P.2d at
405.
       In the case before us the parties were divorced in July of
1986. McDanold was awarded sole custody of Derek.            Thomas moved to
North Dakota, but returned in approximately a year and a half.
After her return she attended taxidermy school in Denver, and was
absent from Montana for a few months.            She now runs a taxidermy
shop with her boyfriend. Since Thomas returned to Forsyth, she and
McDanold set a pattern of a very liberal visitation schedule.
Derek goes to his mother's shop after school and on Saturday
mornings when his father is working.
       We note that the District Court made no findings of fact and
conclusions of law under        §   40-4-219 (1) (b), MCA.    Therefore, we
remand to the District Court for findings of fact and conclusions
of law relative to integration and for judgment on this matter.




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                                         I11

    Whether the District Court erred in ordering Paul McDanold to
pay child support to Eileen Thomas.
     The District Court found that Thomas provides the majority of
support for Derek.        The District Court applied the Uniform Child
Support Guidelines to the facts and ordered McDanold to pay               $60.55

per month in child support to Thomas.
     Section     40- 4- 208,   MCA, governs modification of child support:
     (1) Except as otherwise provided in 4 0 - 4 - 2 0 1 ( 6 ) , a decree
     may be modified by a court as to maintenance or support
     only as to installments accruing subsequent to actual
     notice to the parties of the motion for modification.
     ( 2 ) ( b ) Whenever the decree proposed for modification
     contains provisions relating to maintenance or support,
     modification under subsection (1) may only be made: (i)
     upon a showing of changed circumstances so substantial
     and continuing as to make the terms unconscionable.
     ..
     Thomas's petition for modification requested $150.00 a month
in child support.        Thomas alleged she provides 80 percent of the
support to Derek including medical care, clothing and school lunch
tickets. McDanold testified that he provided Derek with clothing,
food, health insurance, in addition to his monthly rental expenses
and cable TV.       Discovery documents reveal that McDanold believes
that he provides at least          50   percent of the child's support.       No
expended amounts were given as to some of the items of support.
     The District Court found that at the time of the hearing
McDanold was making approximately             $19,800.00   a year, and Thomas was
making   $8000    a year.       However, Thomas testified she was making



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$20,000 a year as   a taxidermist.    She and her live-in boyfriend
make a combined income of $60,000 a year.
     We do not find substantial evidence in the record to support
the District Court’s determination of support.    We remand to the
District Court for appropriate fact finding on the issue of support
and determination of the same.   We request the District Court to
expeditiously conclude this matter.
     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document
with the Clerk of this Court and by a report of its result to the
West Publishing Company.




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