                             NO. 96-444
           IN THE SUPREME COURT OF THE STATE OF MONTANA




IN RE THE MARRIAGE OF
DAVID HEINE,
           Petitioner and Appellant,            ,   . .
                                                          !:.pi/
     and
LAURA HEINE,
           Respondent and Respondent.



APPEAL FROM:   District Court of the Thirteenth Judicial District,
               In and for the County of Yellowstone,
               The Honorable Diane G. Barz, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
               Donald L. Harris; Crowley, Haughey, Hanson,
               Toole & Dietrich, Billings, Montana
           For Respondent:
               Mark D. Parker, Nicole A. Temkin; Parker Law
               Firm, Billings, Montana



                             Submitted on Briefs: December 5, 1997
                                          Decided: February 6, 1997
Filed:
Justice W. William Leaphart delivered the Opinion of the Court


      Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of the Supreme Court and by a report of its
result to State Reporter Publishing Company and West Publishing
Company.
      Appellant David Heine appeals the December 1, 1995 Order of
the   Thirteenth   Judicial   District   Court, Yellowstone   County,
awarding sole legal custody of the parties' two children to Laura
Heine. We reverse and remand to the District Court.
      We consider the following issue on appeal:
           Did the District Court err by awarding Laura Heine
      sole legal custody of the parties' children on the basis
      that David Heine presented a danger to the children?

                   Factual and Procedural Backsround
      Laura and David Heine were married in 1983 and subsequently
had two children, Jenna, born in 1986, and Brandon, born in 1988.
In 1993 Laura and David Heine separated.        In their separation
agreement, the parties agreed to joint legal custody of the
children, with Laura having temporary residential custody of the
children during the separation period.     Each party reserved their
right to seek primary residential custody of the children at a
later date.   The separation agreement was first incorporated into
the parties' final decree of separation, and then later into their
final decree of dissolution.
                                   2
     After the dissolution, Laura and David agreed to alternate
physical custody of their children each week.     After two years of
such arrangement David filed a motion to modify custody in which he
sought primary residential custody of the children. Subsequently,
Laura moved for an order seeking a full custody evaluation and for
a hearing to determine permanent custody.       Prior to hearing the
matter, the District Court ordered a court services investigation
and custody evaluation.
     A hearing was held November 30, 1995 during which both parties
sought primary residential custody of the children. Neither party
sought termination of the joint legal custody arrangement.         The
court services report, which was admitted into evidence, contained
the investigator's recommendation that the "parents shall continue
to maintain Joint Legal Custody of their children . . . . "      David
Heine presented evidence that certain persons made reports to the
Department of Family Services (DFS) alleging that Laura abused the
children.   Laura presented evidence that Detta Heine, David's
present wife, "coached" the children's testimony regarding the
allegations of abuse and was a negative influence on the children.
The record reflects that at the conclusion of the hearing David
"loudly banged his hand on Counsel table," following Laura's
rebuttal testimony.
     In its December 1, 1995 Order, the District Court awarded sole
legal   custody   of   the   children to   Laura, with   David   having
visitation only after "proof that David Heine no longer represents
a danger to his children." The court based its holding that David
Heine was endangering his children on several findings:
      David Heine's refusal to cooperate with Court Services,
      David Heine's allowing Detta Heine far more influence in
      the children's lives than is appropriate, David Heine's
      behavior in the courtroom, and David Heine's attempt
      through incredible witnesses to prove a case of abuse
      which had been rejected by two investigators.

The   court   set   a   future date   for the purpose     of   discussing

appropriate visitation for David Heine and appropriate child

support. Before a final hearing on those matters took place, David

Heine appealed from the December 1, 1995 Order.
                            Standard of Review

      The standard of review for a district court's award of child

custody is whether the district court's findings are clearly
erroneous.    In re Marriage of Dreesbach (1994), 265 Mont. 216, 220-

21, 875 P.2d 1018, 1021; In re Marriage of Maxwell             (1991), 248
Mont. 189, 193, 810 P.2d 311, 313.       The findings of fact must be

based on substantial, credible evidence, and the court's decision
will be upheld unless a clear abuse of discretion is shown.

Marriaqe of Dreesbach, 875 P.2d at 1021.         See also In re Marriage

of Njos (1995), 270 Mont. 54, 60, 889 P.2d 1192, 1195-96.
      In reviewing a      district court's conclusion of         law, the

standard of review is whether the district court's interpretation

of the law is correct.       Carbon County v. Union Reserve Coal Co.

(1995), 271 Mont. 459, 469, 898 P.2d 680, 686; Kreger v. Francis
(1995), 271 Mont. 444, 447, 898 P.2d 672, 674


           Did the District Court err by awarding Laura Heine
      sole legal custody of the parties' children on the basis
      that David Heine presented a danger to the children?
    David Heine contends that the District Court's finding that he
was seriously endangering the welfare of the children is clearly
erroneous and consequently, the court had no basis to award Laura

Heine sole legal custody.

     This Court has on numerous occasions reviewed the proper

standards by which a court can modify or terminate joint custody
arrangements. See In re Marriage of Johnson (1994), 266 Mont. 158,

879 P.2d 689. A court may terminate a prior joint custody decree
upon satisfaction of the prerequisites in      §   40-4-219, MCA.
     The   requirements of      §   40-4-219, MCA, are    jurisdictional

prerequisites to terminating joint custody.        Marriase of Johnson,
879 P.2d at 694; In re Marriage of Starks (1993), 259 Mont. 138,

855 P.2d 527; Gianotti v. McCracken (1977), 174 Mont. 209, 569 P.2d


     In the present case the District Court awarded Laura Heine

sole legal custody on the basis of a finding of endangerment

pursuant to    §   40-4-219(1)(c), MCA, which provides:
          (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 the child's custodian and that the modification
     is necessary to serve the best interest of the child and
     if it further finds that:
           .   .   . .
          (c) the child's present environment endangers
     seriously the child's physical, mental, moral, or
     emotional health and that the harm likely to be caused by
     a change of environment is outweighed by its advantages
     to the child . . . .
     Strict compliance with this statutory scheme is necessary to
provide for the continuity and stability of children's living
arrangements. Marriaae of Johnson, 879 P.2d at 694.
      We hold that the District Court's finding that David Heine
was seriously endangering the children is unsupported by the facts
and clearly erroneous and therefore the District Court did not have
jurisdiction to terminate joint custody and award Laura Heine sole
legal custody of the parties' two children.
     The parties and witnesses presented conflicting testimony
regarding the care the children were receiving in both parents'
homes.   There was conflicting testimony regarding whether the
children received help with their homework while at David and Detta
Heine's home.   There were allegations that Laura Heine and her ex-
boyfriend abused Jenna on two separate occasions.       There were
allegations that Detta Heine was a bad influence on the children.
However, there was no evidence presented that the children were
endangered while in the custody of David and Detta Heine. While it
is a general rule that it is the trier of fact's function to
resolve conflicts in the testimony presented, Marriaae of Starks,
855 P.2d at 5 3 0 , the district court's findings of fact must be
based on substantial and credible evidence, Marriase of Dreesbach,
875 P.2d at 1021, and the district court's interpretation of the
law must be correct, Carbon County, 898 P.2d at 686.
     The District Court based its holding that David Heine was a
danger to his children, in part, on the finding that Detta Heine
was a bad influence on the children and, specifically, that she
coached the children to falsely accuse Laura of abusing them.
However, there was also evidence presented that DFS received
reports from other sources, of alleged abuse by Laura, before Detta
Heine made her reports to DFS and before Detta brought the children
in to be interviewed by counselors at DFS.     While at DFS, Detta
Heine allegedly refused to allow Jenna to be interviewed alone.
Detta testified that she became concerned about the competency of
the counselors at DFS, after Jenna had allegedly told Detta that
the counselor Jenna had just spoken with had suggested that Jenna
was not telling the truth.    In addition to testimony that Detta
Heine improperly coached the children's reports to DFS, the court
also heard testimony that Detta Heine had a close and healthy
relationship with the children.
     While   a   step-parent's conduct has   been   held   to   create
endangerment sufficient to warrant termination of joint legal
custody, Detta's alleged transgressions, even if true, do not rise
to the level of endangerment presented in other cases. See,      e.s,
In re Marriage of Anderson (l989), 240 Mont. 316, 783 P.2d 1372
(holding that a "hostile, siege-like" environment created by the
step-father, met the standard of serious endangerment). Although
the court concluded that Detta Heine exercised more influence over
the children than is appropriate, this conclusion does not support
a finding that the children were seriously endangered in their
father's custody.
     No evidence was presented that David Heine himself posed a
danger to his children. The court services investigator found that
David Heine and his children had a loving and caring relationship
and recommended joint custody. At trial, Laura Heine agreed with
the   recommendations of     the   court    services   investigator and
stipulated to the fact that David Heine was "a fit and proper
parent."      Laura Heine admits in her brief that "David is a good
father" who "is entitled to generous and liberal visitation."
      The court found that David Heine was endangering his children,
in part, on the basis that he failed to cooperate with court
services in undergoing a psychological evaluation.            However, the
record does not support this finding.        Laura Heine concedes that
David Heine did see a psychologist. She merely claimed that David
did not see the same psychologist as the rest of the family, as
recommended by the court services investigator. Additionally, the
court services investigator indicates in the report that she relied
on psychological evaluations of David performed in 1993 and 1995.
Moreover, even if David Heine failed to see the psychologist, this
failure would not prove that he was endangering the children.
      The District Court also found that David Heine was endangering
his children on the basis of his use of incredible witnesses.          The
court rejected the testimony of Laura Heine's ex-boyfriend, Chris
Blount, as incredible, on the basis of Blount's involvement in
other litigation, his alleged financial debt to David Heine and on
his general demeanor while testifying. The court did not specify
anything particular about Blount's demeanor that led it to believe
Blount was fabricating his testimony.       More importantly, while the
court   has    discretion   to   discount   the   testimony    of   certain
witnesses, the fact that David Heine presented a witness that the
court did not find credible does not support the court's finding
that David Heine was a danger to his children.
      Finally, the court relied on David Heine's courtroom behavior
in finding that he was a danger to his children.                            However
inappropriate David Heine's conduct of slapping the counsel table
and glaring at Laura Heine on the witness stand at the end of the
hearing     may   have    been,       it   does    not    warrant    a   finding   of
endangerment to the children. Furthermore, the court did not issue
David Heine a citation for contempt of court. The court's comment
was, "if looks could kill, it would be - - I don't know who it is
directed at, but I find it very frightening." The District Court
did not have the discretion to punish David for an isolated
inappropriate outburst in the courtroom by terminating his rights
as a custodial parent.
      In cases where this Court has found substantial evidence to
support a district court's finding of serious endangerment, the
records     reflect      that    the       allegations     of     endangerment     are
considerably more         serious and         better     substantiated     than the
allegations in the present case.                  See,   e.cr.,   In re Marriage of
Miller    (1992), 251 Mont. 300, 825 P.2d 189                     (holding that the
custodial parent's uncooperative and antagonistic attitude towards
her children's teachers and school authorities, her alcohol abuse
and   DUI    conviction,        and    driving      with    her     children     while
intoxicated, frequent moves, and refusal to allow visitation to the
non-custodial parent, warranted a finding of serious endangerment
and a modification of the custodial arrangement); Marriage of
Anderson, 783 P.2d 1372 (holding that a step-father created a
"hostile, siege-like" environment, thus meeting the standard of
serious endangerment); In re Marriage of Morazan (1989), 237 Mont.
294, 772 P.2d 872 (holding that frequent moves of the custodial
parent,   removal    of   the   children    from     school   mid-term, and
allegations of      sexual   abuse   in    the    custodial    parent's home
warranted a finding of endangerment).
     The most serious allegations in the present case were made
against Laura Heine, not David Heine. Despite the allegations, the
court services investigator found that both parents exhibited
caring and loving relationships with their children. There was no
evidence presented that the children were seriously endangered in
the custody of David Heine.
                                Conclusion
     We conclude that the evidence at the hearing did not establish
that the children's environment in David Heine's home seriously
endangered their physical, mental, moral, or emotional health.
Therefore, we conclude that there was not substantial evidence to
satisfy the jurisdictional prerequisite in           §   40-4-219(1)(c), MCA,
and, as a result, the District Court did not have jurisdiction to
alter the joint legal custody arrangement provided for in the
decree of dissolution.
     The judgment of the District Court is reversed and this case
is remanded to the District Court to determine the primary
residential custody of the children.             The question remains as to
the proper standard under which that determination must be made.
     We note that the decree of dissolution incorporated the
separation agreement which gave temporary residential custody to
Laura Heine during the divorce proceedings.          In the separation

agreement the parties expressly reserved the right to establish

permanent primary residential custody at a later date.       Therefore

there is no existing decree of custody to "modify" under 5 40-4-

219, MCA.   See In re Marriage of Zuelke (1995), 274 Mont. 362, 909

P.2d 684 (holding that a court-ordered phase-in of equal custody
contemplated by the decree of dissolution was not a modification of

custody and thus    §   40-4-212, MCA, was the proper standard by which

to determine the custodial arrangement).
     In the District Court's findings and conclusions, awarding
Laura with sole custody, the court found that "[bloth parties

testified at trial that week to week visitation was not in the best
interests of the children.         The court finds that week to week

visitation is not in the best interests of the children."          The

testimony at the hearing indicates that the parties were not
seeking a     "modification" under    §   40-4-219, MCA, but that the

parties understood this to be the first court-ordered decree of

permanent primary residential custody.       Under these circumstances

we hold that primary residential custody of the parties' children

should be determined pursuant to the best interests of the child

standard in   §   40-4-212,MCA.
     Reversed and remanded.
We concur:
