                                  No. 81-198
                      IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          1981


IN RE THE MARRIAGE OF
DENNIS P. CORBETT,
                                 Petitioner and Respondent,
         VS   .
SUSAN M. CORBETT,
                                 Respondent and Appellant.


Appeal from:          District Court of the Eleventh Judicial District,
                      In and for the County of Flathead
                      Honorable James M. Salansky, Judge presiding.
Counsel of Record:
    For Appellant:
         Morales, Volinkaty         &   Harr, Missoula, Montana
    For Respondent:
         Robert B. Allison, Kalispell, Montana
         Daley, Sherlock & Nardi, Kalispell, Montana


                                   Submitted on briefs: October 1, 1981

                                                 Decided: N OV   1 2 1981
Filed: BO\I '     ;
                  I    . -$
Mr. Justice John Conway Harrison delivered the Opinion of
the Court.
          This is an appeal by Susan M. Corbett Adler, the
mother    of two children, from an order granting her                          ex-
husband Dennis P. Corbett's motion for a modification of the
divorce        decree    which     changed    the   custody      of    two minor
children       from the mother         to    the    father    and     denied   her
counterpetition for a modification seeking additional child
support .
         The issues before this Court are:
          1.     Whether the District Court applied the correct
standards        in making       its decision       to   grant      respondent's
petition for a change of custody?
          2.     Whether, even if the District Court applied the
correct        standards    in making        its decision        to   grant    the
respondent's request for a change of custody, there was
sufficient evidence to support that decision?
         The parties to this action were married on October
26, 1968, at Ronan, Montana.                Two children were born of the
marriage--namely,          James    Patrick Corbett,          born    March    25,
1969, and Christine Marie Corbett, born April 17, 1972.                        The
marriage was dissolved February 14, 1977, by the Honorable
James M. Salansky, who is also the presiding judge in this
modification proceeding.              A property settlement agreement
executed by the parties was incorporated in the decree of
dissolution.            In that     agreement, and       in    the    decree    of
dissolution, the mother was granted the care, custody and
control of the two minor children with the father to have
certain visitation rights.
         It should be noted            that at the time the original
ruling was made, the court had a report submitted by Tom
Best,        the     director           of        family     court       services,         on      his

i n v e s t i g a t i o n and    recommendations.                 Best     recommended S u s a n

b e awarded c u s t o d y b a s e d upon                  the    assumptions        t h a t Dennis

was n o t       in a position                at    that    time       t o serve as a         single

p a r e n t a n d t h a t S u s a n would move t o N a s h u a ,                Montana, w h e r e

s h e would r e s i d e w i t h a b r o t h e r on h i s r a n c h and would h a v e

h i s assistance           i n s u p e r v i s i o n of         the    children     a s we11 a s

c o n t i n u o u s employment on t h e               ranch.           Best,    in his report,

recommended t h a t t e m p o r a r y c u s t o d y be p l a c e d i n S u s a n s o t h e

court       i n F l a t h e a d C o u n t y c o u l d m a i n t a i n some c o n t r o l o v e r

the    custody.           One      of    the       reasons       given     in    his    testimony

concerning t h e temporary custody a t t h e t i m e of t h e o r i g i n a l

d i v o r c e was     that       Susan       had     been       seriously       injured      in     an

a u t o m o b i l e a c c i d e n t i n 1969 and s i n c e t h a t t i m e had s u f f e r e d

a p a r t i a l d i s a b i l i t y d u e t o t r a u m a t i c b r a i n damage and had

been s u b j e c t t o p e r i o d i c e p i l e p t i c s e i z u r e s .

            The r e c o r d i n d i c a t e s S u s a n r e s i d e d o n l y b r i e f l y w i t h

her brother          i n Nashua.             She t h e n r e t u r n e d w i t h h e r c h i l d r e n

to    her     home    community           of       Charlo,       Montana,       where     she      was

r e s i d i n g a t t h e time of t h e hearing.

            The c o u r t n o t e d       in      its findings of              f a c t that ordi-

n a r i l y e v i d e n c e of     e v e n t s and s i t u a t i o n s e x i s t i n g p r i o r    to

t h e d i s s o l u t i o n were        inadmissible.                 I n view of      the    above

factors,        however,         t h e c o u r t d e t e r m i n e d t h e b a c k g r o u n d would

demonstrate t h e reasons f o r t h e o r i g i n a l custody arrangement

and deemed i t r e l e v a n t t o t h e p r o c e e d i n g s on c u s t o d y m o d i f i -

cation.         The e v i d e n c e i n d i c a t e s S u s a n f r e q u e n t l y     left       the

c h i l d r e n a t home u n a t t e n d e d d u r i n g t h e y e a r s s h e had c u s t o d y
o f them.        I n a d d i t i o n , s e v e r a l t i m e s when t h e c h i l d r e n w e r e

with her        S u s a n had some t y p e o f              s e i z u r e and e i t h e r had a n
a u t o m o b i l e a c c i d e n t o r was p r e v e n t e d f r o m h a v i n g o n e by t h e

children        in     the      car.      There        a l s o was      testimony,              although

c o n t r o v e r t e d , t h a t S u s a n had a p r o b l e m o f a l c o h o l a b u s e t h a t

r e q u i r e d t r e a t m e n t which s h e had e i t h e r               r e f u s e d o r had n o t

obtained.            S h e a d m i t t e d t h a t on a number                of     occasions she

l e f t t h e c h i l d r e n u n a t t e n d e d w h i l e s h e went t o t h e b a r s t o

drink.       S u s a n d i d s u b m i t t o a n e v a l u a t i o n by t h e Comprehen-

s i v e A l c o h o l i c Program         i n Ronan d u r i n g             these proceedings.

S h e a d m i t t e d h a v i n g d r i n k i n g e p i s o d e s b u t d e n i e d s h e had a n

a l c o h o l problem o r           was s u f f e r i n g a n y i l l n e s s f r o m a l c o h o l

abuse.

           During         the     summer      of      1980,      the    c h i l d r e n were w i t h

their     father,         Dennis,       a n d h i s new w i f e .             They r e t u r n e d t o

their     mother          i n Charlo       on      a p p r o x i m a t e l y August         4    to    get

r e a d y t o go t o s c h o o l a c c o r d i n g t o t h e p a r t i e s '              predissolu-

tion     agreement.              After     having          the   children            and    observing

them     during           the    summer       vacation,             Dennis          and     his       wife

d e t e r m i n e d i t was n e c e s s a r y t o r e q u e s t a m o d i f i c a t i o n o f t h e

d i v o r c e d e c r e e and t o o b t a i n c u s t o d y o f t h e two c h i l d r e n .

           The f i r s t h e a r i n g was h e l d on A u g u s t 29, 1 9 8 0 .                    Susan

appeared pro s e .               A l s o p r e s e n t was an a t t o r n e y who had b e e n

a p p o i n t e d by t h e c o u r t t o a p p e a r f o r t h e c h i l d r e n . T e s t i m o n y

was     presented          indicating           the        nature      of     Susan's           problems

i n c l u d i n g t h e e p i l e p t i c s e i z u r e s and t h e f a c t t h a t money had

been     sent        to    the     children           by    various          members        of     their

father's         family          but    which         they       never        received.           Susan

admitted       s h e had        used     t h e money         for    other          purposes.           One

c h e c k s e n t by a          r e l a t i v e had    been      cashed         at    a    tavern       in

Charlo.        S u s a n i n t r o d u c e d e v i d e n c e t h a t b e c a u s e t h e r e was no
bank     i n Charlo,           t h e b a r was one o f                  t h e f e w p l a c e s where a

c h e c k c o u l d be c a s h e d .

             At     the       hearing      ,       rebuttal         testimony         was     presented

c o n c e r n i n g s e v e r a l c a l l s made t o D e n n i s and h i s w i f e , L i n d a ,

by    David        Adler,        a    friend           of     Susan,       late      in     June       1980.

During       these        telephone             c a l l s Adler         told    Dennis       and       Linda

that      Susan         was    an     alcoholic,               an    unfit      mother,       left       the

c h i l d r e n u n a t t e n d e d , b e a t them w i t h a b e l t , and t h a t he a l s o

was a n a l c o h o l i c .          He o f f e r e d         t o a s s i s t Dennis w i t h l e g a l

f e e s t o g e t t h e c h i l d r e n away from S u s a n .

             Based on t e s t i m o n y a t t h e h e a r i n g on A u g u s t 29,                       the

c o u r t g r a n t e d temporary c u s t o d y of                   t h e c h i l d r e n t o Dennis,

requested          that       Susan        be      evaluated,            and    scheduled          a    full

h e a r i n g on O c t o b e r 2 ,         1980.            C o u n s e l f o r S u s a n a p p e a r e d on

h e r b e h a l f o n S e p t e m b e r 11, 1 9 8 0 , and f i l e d a m o t i o n f o r a

m o d i f i c a t i o n and a c o u n t e r p e t i t i o n .

            At     the        October          2    hearing         a    number       of     additional

witnesses          were       called       by       both p a r t i e s .        Thomas B e s t ,         the

d i r e c t o r of      family court services,                          explained      t o the court

why     he        had     made       his        recommendations                 at     the       time     of

dissolution.              He i n d i c a t e d t h a t ,         i n h i s opinion,          "school is

t h e b e s t window o f             how t h e c h i l d r e n a r e p e r f o r m i n g "          i n any

given        family           situation.                There        was       testimony         by     the

p r i n c i p a l of t h e C h a r l o s c h o o l i n d i c a t i n g t h a t w h i l e b o t h of

the     Corbett           children             were     bright           and    had       good     school

records,           their       grades           had     deteriorated            during        the       last

school year.

             David A d l e r , who had m a r r i e d S u s a n on J u l y 1 5 , 1 9 8 0 ,

testified          that        he    had        been        drunk       when   he     made    the      June

t e l e p h o n e c a l l s t o D e n n i s a c c u s i n g S u s a n of b e i n g u n f i t and
an a l c o h o l i c .         H e s t a t e d t h a t h e had made t h e c a l l s b e c a u s e

he had q u a r r e l e d w i t h S u s a n and he was u s i n g t h e c h i l d r e n a s

a pawn        a g a i n s t t h e mother.             At    the      October     2 hearing          he

t e s t i f i e d t h a t he d i d n o t f e e l S u s a n was a poor m o t h e r o r a n

alcoholic,          and h e d i s a v o w e d         the   things       he    said    about      her

during the telephone c a l l s .

            Both i s s u e s p r e s e n t e d        f o r review w i l l       be c o n s i d e r e d

as    one      in        our     discussion          upholding         the     action      of     the

District        Court.             Section       40-4-219,           MCA,     sets     forth      the

s t a n d a r d s and g u i d e l i n e s i n c o n s i d e r i n g a m o t i o n t o m o d i f y

custody.         T h r e e s u b s e c t i o n s d e f i n e when a c h a n g e o f c u s t o d y

can      be      granted:              (a)     the      custodian             agrees      to      the

modification;              (b) the        child       has     been    integrated         into     the

f a m i l y of t h e p e t i t i o n e r w i t h t h e c o n s e n t of t h e c u s t o d i a n ;

or    ( c ) the child's present                   environment endangers s e r i o u s l y

h i s physical,            mental,       moral,       or emotional h e a l t h ,         and harm

l i k e l y t o b e c a u s e d by a c h a n g e o f e n v i r o n m e n t i s o u t w e i g h e d

by t h e a d v a n t a g e s t o him.

            Subsection ( a ) is n o t a t i s s u e h e r e because t h e r e is

no a g r e e m e n t f o r a m o d i f i c a t i o n .        Nor     is s u b s e c t i o n ( b ) a t
issue here.              A p p e l l a n t a r g u e s t h e judge m i s t a k e n l y took t h e

f a c t t h a t t h e c h i l d r e n were w i t h t h e i r f a t h e r f o r t h e summer

visitation          and        later     for    approximately a               month    under      the

c o u r t ' s temporary c u s t o d y t o c o n s t i t u t e an i n t e r g r a t i o n i n t o

t h e f a t h e r ' s home w i t h t h e c o n s e n t o f           the custodian.              That

is    not     what        the      district       judge       found.          Nothing       in    his

f i n d i n g s o f f a c t and c o n c l u s i o n s o f law a p p l y s u b s e c t i o n ( b )

in t h i s matter.              T h i s C o u r t h a s p r e v i o u s l y r u l e d i n Weber v .

Weber       ( 1 9 7 8 ) , 176 Mont.            144,     576    P.2d      1102,     that      summer

visitation           does          not       constitute           integration          into      the
noncustodial            parent's           family.         What      the    District         Court

a c t u a l l y f o u n d h e r e was t h a t t h e c h i l d r e n had a d a p t e d w e l l

t o t h e i r f a t h e r ' s home.

           This leaves us with the District Court's application

of s u b s e c t i o n ( c ) i n changing t h e custody.                   That subsection,

a s n o t e d a b o v e , r e q u i r e s t h e c o u r t t o f i n d upon t h e b a s i s o f

facts      there       has     been    a    change of         circumstances since t h e

original         custody        decree         and     that       the      modification         is
necessary         in     the     best       interests        of    the      children.          The

statute        also      requires          that      the     court      find    the     child's

present        environment             seriously           endangers         his   physical,

m e n t a l , m o r a l o r e m o t i o n a l h e a l t h and t h a t t h e harm l i k e l y

t o be c a u s e d by t h e c h a n g e o f e n v i r o n m e n t i s o u t w e i g h e d by

t h e a d v a n t a g e s t o t h e c h i l d making          t h e change.        Here,       the

c o u r t f o u n d t h e r e was a c h a n g e of c i r c u m s t a n c e s ;     the court

f o u n d a n e n d a n g e r m e n t ; t h e c o u r t f o u n d t h e harm l i k e l y t o be

c a u s e d by t h e c h a n g e was o u t w e i g h e d by t h e a d v a n t a g e s t o t h e

c h i l d r e n a n d s u c h c h a n g e was i n t h e i r b e s t i n t e r e s t s .        The

c o u r t a p p l i e d t h e c o r r e c t s t a n d a r d s i n making i t s d e c i s i o n ,

and w e c a n f i n d no a b u s e o f d i s c r e t i o n .

           This        Court      has       said      many        times     regarding         the

discretion         of    the     District         Court      in    child       custody       cases

that:

           " I n r e v i e w i n g o r d e r s which a f f e c t t h e c u s t o d y
           of t h e c h i l d , t h i s C o u r t is m i n d f u l t h a t t h e
           primary duty of deciding the proper custody
           o f c h i l d r e n i s a t a s k of t h e D i s t r i c t C o u r t .
           Thus, a l l reasonable presumptions a s t o
           c o r r e c t n e s s of t h a t d e t e r m i n a t i o n w i l l be
           made.         No r u l i n g w i l l be d i s t u r b e d a b s e n t a
           c l e a r showing t h a t t h e D i s t r i c t C o u r t ' s
           d i s c r e t i o n was a b u s e d . "      Foss v. L e i f e r
           ( 1 9 7 6 ) , 1 7 0 Mont. 97, 550 P.2d 1 3 0 9 , 1 3 1 1 .

           Here        the     court       made    extensive         findings         that     are

c l e a r l y s u p p o r t e d by t h e e v i d e n c e ,   and we f i n d no a b u s e o f
discretion.    The decision of the District Court is affirmed.




We concur:

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