                             No.    92-211

           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1993


IN RE THE MARRIAGE OF
LYNN TACKETT STARKS,
           Petitioner and Appellant,
     and
MICHAEL JOSEPH STARKS,
           Respondent and Respondent.



APPEAL FROM:    District Court of the Eleventh Judicial District,
                In and for the County of Flathead,
                The Honorable Michael H. Keedy, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
                Chris P. Christensen, Attorney at Law,
                Kalispell, Montana
           For Respondent:
                Darrell Worm, Ogle & Worm,
                Kalispell, Montana


                             Submitted on Briefs:   January 14, 1993
Justice Terry N. Trieweiler delivered the opinion of the Court.
     Petitioner Lynn Tackett Starks appeals from an order of the
District Court forthe Eleventh Judicial District, Flathead County,
issued    on   February   12,   1992,    which   modified   the   original
dissolution decree and awarded sole custody of the parties' minor
child to Michael Joseph Starks.         We affirm.
     The following issues are raised on appeal:
     1.    Did the District Court err when it found that the
statutory requirements for modification of a prior custody decree
had been satisfied?
     2.    Did the District Court improperly exclude evidence of
respondent's past conduct?
     3.    Did the District Court err when it awarded sole custody
to respondent and did not assign custody to Lynn and Michael
jointly?
     4.    Was respondent's affidavit in support of a motion to
temporarily modify custody sufficient to warrant a hearing?
     Lynn and Michael were married on August 14, 1981.            They had
one daughter, Chelsea Nichole, who was two years old at the time of
their dissolution on August 16, 1984.            The dissolution decree
incorporated the parties1 custody agreement which designated that
Chelsea would be placed in the sole care, custody, and control of
Lynn, subject to Michael's        rights of liberal and reasonable
visitation.
       In 1985, Lynn and Chelsea moved to Albuquerque, New Mexico,
and Lynn subsequently lived with Robin Blagg. Lynn and ~ o b i n
                                                               Blagg
then separated in 1986, two months after the birth of their son,
Levi   Reston   Blagg.      Thereafter, when    Blagg would     exercise
visitation with his son, he would frequently take both ~ e v iand
Chelsea out for various activities.
       In 1989, it was discovered that Chelsea, who was then seven
years old, had been sexually molested by Blagg.         Lynn immediately
contacted rape counselors and notified the police department, which
investigated the incident.      As a result, the New Mexico District
Attorney's office initiated efforts to prosecute Blagg.             Lynn
testified     that   Chelsea   experienced     mental    and    emotional
difficulties after the incident with Blagg, but that she believed
Chelsea's condition was aggravated due to the ongoing investigation
by the district attorney's office and the appearance before the
Grand Jury.
       When the district attorney's office requested a second video
deposition of Chelsea in 1991, nearly two years after the
molestation     incident,    Lynn   objected   to   Chelsea's     further
participation in the legal proceedings against Blagg.           Lynn sent
Chelsea to Montana for summer visitation with Michael, claiming
that she believed there was sufficient information to convict Blagg
without Chelsea's testimony.        Although Lynn was aware that the
district attorney wanted Chelseato testify, she maintains that she
was not informed of a hearing scheduled for June 24, 1991, until
                                    3
after Chelsea had already Left far Montana.   Lynn insists that she
acted to protect Chelsea, butthe New Mexico authorities, based on
their observations and evidence, assert that Lynn was attempting to
protect Blagg from the sexual molestation charges.
     When Chelseals location was discovered, the New ~exico
District Attorney's office served subpoenas on ~ichaeland Chelsea
to require Chelsea's attendance at the proceedings against Blagg.
Lynn contacted Michael and told h i m not to bring Chelsea to New
Mexico because her testimony was not necessary to prosecute Blagg,
and that she did not want Chelsea to have Ifto come forward
anymore."    In a later communication, Lynnthreatenedto sue Michael
for custodial interference if he brought their daughter to the
trial. Despite these threats, Michael and Chelsea attended the New
Mexico proceedings.     Blagg subsequently pled guilty to criminal
sexual contact with a minor and received an 18 month suspended
sentence, conditioned on his completion of a sex offender treatment
program.
     In June 1991, because of these events and the fact that Lynn
was no longer willing to cooperate with the New Mexico authorities,
Michael petitioned the District Court in Flathead County and
obtained temporary custody of Chelsea, pending further order of the
court.     Hearings were then conducted on August 7, 1991, and on
February 3, 1992.
     In its findings of fact and conclusions of law, the court
found that Lynn has an ongoing relationship with Blagg to the
                                  4
e x t e n t t h a t Blagg exercises his court-ordered visitation rights
with Levi and that this threatens Chelsea's future welfare.
Furthermore, based on Lynn's refusal to cooperate with Blaggis
prosecution and her attempts to dissuade Michael from assisting the
New Mexico authorities, the court inferred that Lynn may have been
shielding Blagg from prosecution.     After concluding that Chelsea
had suffered physical and emotional harm while in Lynn's custody
and was in danger of suffering further serious harm if she was to
remain with Lynn, the court awarded Michael sole custody of
Chelsea, with reasonable visitation rights to Lynn.         From this
order, Lynn appeals.


      Did the District Court err when it found that the statutory
requirements for modification of a prior custody decree had been
satisfied?
     Section 40-4-219, MCA, provides in pertinent 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:


          (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.
     In In re Marriage ofSarsfieEd (1983), 206 Mont. 397,   404,   671 P.2d

595, 599, this Court made clear that a finding of a change in
circumstances, such that the child's welfare                is endangered
seriously by the present custody arrangement, is a jurisdictional
prerequisite to determining whether an original custody decree
should be modified. Seeaho, Gianottiv.McCracken (19771, 1 7 4 Mont. 209,

214, 569 P.2d 929, 932.

     In this instance, Lynn contends that the court erred in
modifying the decree because there was no evidence of any present
danger to Chelsea while in Lynn's custody.          She asserts that the
molestation was a past, one-time occurrence, and Chelsea's only
contact with Blagg at this time is that she witnesses him picking
up Levi from the street curb outside Lynn's residence.                  Lynn
disputes the court's finding that her relationship with Blagg is
           particularly in light of the fact that Blagg only
'longoing,l'
infrequently exercises his visitation with Levi, and she maintains
that the court's inference that she was shielding Blagg from
prosecution was not supported by any credible evidence. Therefore,
because there was no evidence of a change of circumstances
presently endangering Chelsea, she contends that the statutory
prerequisites for modification of custody were not satisfied.
     When reviewing findings in regard to the grounds for modifying
custody, this Court will not reverse those findings unless they are
clearly erroneous.     Rule 52 (a), M. R. C ~ V P. ; In re Mamiage of McClain
                                                .
(Mont. 1993), 849 P.2d 194, 50 St. Rep. 314.      After findings have
been made, it is within the court's discretion whether to modify
custody, based on its findings and its application of the law. We
will not reverse that decision unless there has been a clear abuse
of discretion. In re Mammage
                           ofMem'man (lggl), 247 Mont. 491, 807 P. 2d

1351.
     In custody modification cases, it is particularly important
for this Court to defer to the district court which personally
evaluated the testimony and was in the best position to determine
the credibility and character of the witnesses. In re Mam'age of Ulland

(1991), 251 Mont. 160, 168, 823 P.2d 864, 869. When the testimony
presented by the parties conflicts, it is the trier of fact's
function to resolve those conflicts, and this Court will not
substitute its judgment for that of the district court. Ulland, 823

P.2d at 870; InreMam'ageofMitchell (1991), 248 Mont. 105, 108, 809

P.2d 582, 584.
     In this instance, we hold that the court's findings of a
change in circumstances necessitating a custody modification in
order to protect Chelsea's well-being were supported by substantial
credible evidence and were not clearly erroneous.
     Even though there was conflicting testimony, the court could
reasonably find that there was an ongoing relationship between Lynn
and Blagg at least to the extent of Blagg's court-ordered rights to
visit Levi, who is in Lynn's custody. What particularly concerned
the court was the fact that Blagg was not incarcerated after he was
convicted of molesting Chelsea, so the potential existed for
recurring contact between Blagg and Chelsea if she returned to New
Mexico.   Although Lynn asserts that this does not constitute
evidence of present danger, we made clear in Sarsfield, 671 P.2d at

602, that a potential danger of future harm to a child is
sufficient      to   give   the   trial     court     jurisdiction   under
5 40-4-219(1) (c), MCA, to consider whether to modify a custody
decree.   Furthermore, although the testimony in regard to Lynn's
motives for her actions was conflicting, the District Court was in
the best position to evaluate credibility, and we will not
substitute our judgment in this situation.
     Lynn next asserts that, even if the statutory prerequisites of
a change of circumstances and present danger were satisfied, the
court failed to adequately consider the harmful effects of a change
of custody. Lynn points out that, before it can order a change in
custody, 5 40-4-219 (1)(c), MCA, requires the court to determine
that the advantages of a change in custody will outweigh the
disadvantages.       She contends that the District Court completely
ignored   the    adverse    effects   of   breaking    up   the   five-year
relationship that Lynn, Chelsea, and Levi have established, and the
consequences of removing Chelsea fromthe environment she has lived
in since she was three years old.
     However, the record clearly demonstrates that the court
evaluated Chelsea's adjustment to her new environment, as well as
her environment in New Mexico, when it decided whether the home
situation offered by Michael would serve her best interests.
Moreover, the court's purpose in changing custody was to protect
Chelsea from contact with her molester, and it is evident that the
court decided that this advantage outweighed any harm from the
change itself.
     We recognize that disrupting the familial relationship that
Chelsea has been raised in will inevitably have its negative
impacts.   Such problems are virtually unavoidable in a custody
dispute. However, in light of the tragic incident of sexual abuse
that this child was subjected to, we do not find it unreasonable
that the court acted to remove Chelsea from a situation that would
bring her into contact with her molester.        Having found that
substantial evidence existed to support the District Court's
findings, we conclude that the court did not clearly abuse its
discretion when it transferred custody of Chelsea from Lynn to
Michael.
                                 II

     Did the District Court err when it excluded evidence of
respondent's past conduct?
     The   court   sustained   Michael's   objection   to   questions
concerning his and Lynn's conduct before their dissolution on the
basis that the evidence was too remote in time to be probative of
                                  9
Michael's fitness to serve as Chelsea's custodian.     Lynn contends
that the language of 5 40-4-219(1), MCA, requires the court to
consider facts which were unknown to the trial court at the time
the decree was entered, and that, based on our holding in Samjleld,

671 P.2d at 604, it was reversible error for the court to limit the

evidence in this regard.
     In Samjield, the trial court ruled that evidence concerning the

parent seeking modification, which took place prior to the entry of
the decree, was inadmissible on a theory of resjudicata when there had

been no issue of fitness during consideration of the first decree.
We rejected this argument, noting that         §   40-4-219(1),   MCA,
specifically contemplates that the court should consider pre-decree
facts unknown to the trial court at the time the decree was
entered. We held that it was reversible error to summarily reject
evidence bearing on custodial fitness in that case.
     This case is distinguishable from SarfieM because Michael did

not object on the grounds that the trial court was precluded from
considering this evidence.    His objection, and contention before
this Court, is that the events in question were too remote in time
to be probative of the issue of custody and were not relevant with
respect to Chelsea.
     The determination of the admissibility of evidence is within
the discretion of the trial court, and we will not disturb the
court's ruling absent a manifest abuse of this discretion. Jacobsen
v.State (1989), 236 Mont. 91, 94, 769 P.2d 694, 695. In determining

whether evidence is too remote in time to be relevant, a trial
court is not guided by any fixed rules, but must consider the
nature of the evidence and the circumstances of the particular
case. Prestonv. McDonnell (i983), 203 Mont. 64, 67, 659 P.2d 276, 277.

     Here, the modification action was seven years after the
initial decree and the conduct alluded to occurred prior to the
dissolution.   In contrast, the evidence in Sarsfield was offered in a

modification action less than one year after the original custody
order was entered. In this instance, considering the circumstances
of this case and the nature of the evidence in question, we do not
find that the court abused its discretion when it ruled that the
evidence was too remote to have significant probative value in
regard to the question of custodial fitness.
                                 I11
     Did the District Court err when it awarded sole custody to
respondent and did not assign custody to Lynn and Michael jointly?
     Lynn contends that under fr 40-4-222, MCA, the court is to
presume that joint custody is in the child's best interest, and if
the court finds otherwise, it must state its reasons for not
awarding joint custody.    Section 40-4-224, MCA.    Therefore, Lynn
asserts that the court erred when it did not award joint custody,
or, alternatively, that the order should be set aside because the
court failed to state its reasons for not doing so.
     While it is true that Montana law creates a presumption in
favor of joint custody, this presumption only arises if a party
requests it.       Section 40-4-224, MCA, provides that       "Tulaon
ar~~lication either parent or both ~arents
          of                              for ioint custody, the
court shall presume joint custody is in the best interest of a
minor child    . . . ."   (Emphasis added.)
     There is no evidence in the record that either Lynn or Michael
ever requested joint custody.       Therefore, the District Court's
decision to award sole custody to Michael without articulating why
joint custody would not be in Chelsea's best interest is not in
conflict with Montana law.     Accordingly, the court did not err in
this regard.
                                   IV
     Was   respondent's    affidavit in support of     a   motion   to
temporarily modify custody sufficient to warrant a hearing?
     Finally, Lynn challenges the sufficiency of the affidavit
submitted by Michael when he moved to temporarily modify custody.
It is her contention that the affidavit was inadequate to establish
cause for a hearing because $ 40-4-220(1), MCA, requires that an
affiant set forth facts, and Michael's averments, with one
exception, wexe purely speculative.
     This is the first time Lynn has raised this objection and it
is the settled rule in Montana that we will not review an issue
raised for the first time on appeal. Hares v Nelson (1981), 195 Mont.
                                           .
463, 466-67, 637 P.2d        19, 21.   Therefore, we decline to address
this issue.

     For     the   reasons   stated,   the   District   Court's   order   is
affirmed.




We concur:


            . -4              &A
                               '
     Chief justice
                                          June 23, 1993

                                 CERTIFICATE OF SERVICE

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


Chris Christensen
Attorney at Law
1103 So. Main
Kalispell, MT 59903-1954

Darreil S. Worm
Ogle & Worm
P.O. Box 899
Kalispell, MT 59903-0899


                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT


                                                     BY:
                                                       Deputy
