                            NO.    92-192
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1992


IN RE THE MARRIAGE OF
CYNTHIA A. FRYDENLUND,
          Petitioner and Appellant,
    and
MERLIN C. FRYDENLUND,
          Respondent and Respondent.



APPEAL FROM:   District Court of the Ninth Judicial District,
               In and for the County of Toole,
               The Honorable R.D. McPhillips, Judge presiding


COUNSEL OF RECORD:
          For Appellant:
               David F. Stufft, Attorney at Law, Cut Bank, Montana
          For Respondent:
               Robert G. Olson; ~risbee,Moore & Olson, Cut Bank,
               Montana


                            Submitted on Briefs:   October 14, 1992
Justice Karla M. Gray delivered the Opinion of the Court.

          Cynthia Frydenlund appeals from an order of the Ninth Judicial
District       Court, Toole   County, designating    respondent Merlin
Frydenlund as primary physical custodian of the parties' two
youngest children.       We reverse.
          The sole issue on appeal is whether the District Court erred
by applying the "best interest" standard contained in S 40-4-212,
MCA   .
          The parties' marriage was dissolved on June 20, 1985.     The
District Court awarded Merlin and Cynthia (Cindy) joint custody of
their three children, Tiffany, Travis and Tennile, and designated
Cindy as the physical custodian.           Merlin has enjoyed liberal
visitation since the dissolution.
          On January 29, 1992, Merlin moved to modify the joint custody
award, requesting that the court dissolve joint custody and award
him sole custody of Travis, age 11, and Tennile, age 9: he also
requested that Tiffany, age 15, be allowed to reside with the
parent of her choice.         The motion alleged that the children's
circumstances had changed since the decree and that their physical,
mental, moral or emotional health was seriously endangered. In his
supporting affidavit, Merlin claimed that the children's desire to
live with him, Cindy's unstable home, an incident of physical abuse
to Tiffany, and         the children's adjustment to his household
supported his motion.
          The District Court heard testimony from numerous witnesses and
interviewed Travis and Tennile in camera. The testimony generally
                                       2
established that both parents were fit, caring and loving, and that
the children were polite and well-adjusted. After Merlin's case in
chief, and again at the close of testimony, the District Court
expressed its intention to use the best interest standard in
considering Merlin's motion.     In response, Cindy's counsel argued
that 5 40-4-219, MCA, and more specifically--given Merlin's motion
andtestimony--the serious endangerment standard containedtherein,
applied rather than the best interest standard announced by the
court.   In closing argument and rebuttal, Merlin's counsel argued
that the children's present environment with their mother seriously
endangered their mental or emotional health.
      id the ~istrictCourt err by applying the "best interest"
standard contained in 3 40-4-212, MCA?
     Cindy argues that the District Court erred as a matter of law
in concluding that    40-4-212, MCA, rather than S 40-4-219, MCA,
applied to the case before it.    Our standard of review relating to
conclusions of law is whether the district court's interpretation
of the law is correct. Steer, Inc. v. Dep't of Revenue (1990), 245
Mont. 470, 475, 803 P.2d 601, 603.
     Insofar as is pertinent here, the District Court began by
making the following finding of fact:
     6. The Respondent only expressed at trial a desire for
     a change in primary custodian with reasonable rights of
     visitation, not sole custody. The Petitioner met this
     issue with testimony of her own.
Based on that finding, the District Court concluded that pursuant
to Rule 15(b), M.R.Civ.P., the issue of modifying only the physical
custody provisions of the joint custody decree was raised by the
express or implied consent of the parties at the hearing.              As a
result, the court concluded that the "serious endangermentvi
standard of g 40-4-219, MCA, did not apply, and that the proper
test was the "best interest of the child1' standard pursuant to
5 40-4-212, MCA.     The District Court modified the joint custody
award by designating Merlin as the primary physical custodian of
Travis and Tennile and allowing Tiffany to choose her residence.
Cindy appeals.
     Our analysis begins with the finding set forth above which
forms the basis for the conclusions of law at issue.           In reviewing
a district courtts finding of fact, we apply the clearly erroneous
test, the first prong of which is whether the finding is supported
by substantial evidence.       Interstate Prod. Credit Ass9n v. DeSaye
( l g g l ) , 250 Mont. 320, 323, 8 2 0 P.2d 1285, 1287.   Our review of the
record indicates a lack of substantial evidence to support the
District Court's finding.
     Merlin's original motion unequivocally requests that joint
custody be dissolved and that he be awarded sole custody of ~ravis
and Tennile on the basis that the children's present environment
Nseriously endangers their physical, mental, moral or emotional
health.   ...      Thus, the motion clearly mirrors the requirements
of 5 40-4-219, MCA.      Nor did Merlin relinquish his claim for sole
custody at the hearing; he reinforced his commitment to sole
custody with testimony such as the following:
     Q:  Have you filed with this Court a motion to modify a
     prior custody order with respect to Travis and Tennile,
     to give you sole custody of t h e s e c h i l d r e n ?
     A:  Yes, I have. [Emphasis added.]
    The entire thrust of Merlin's case reveals his intent to seek
sole custody pursuant to 5 40-4-219, MCA.          He further testified
that:
     (1) Cindy is not mentally stable enough to provide for
     the needs of the children;
     (2) Cindy physically abused Tiffany in front of the
     younger children;
     (3) Cindy's younger boyfriend spends the night at her
     house, which he feels is not a good environment for the
     children; and
     (4) The children's strong desire to live with him would
     result in serious endangerment of their mental or
     emotional health if custody is not modified.
Finally, Merlin's counsel in closing argument continued to stress
that the children's present environment with their mother seriously
endangered     their   mental    or    emotional   health,   echoing   the
requirements of 9 40-4-219, MCA.
        The District Court's finding that Merlin "only expressed at
trial a desire for a change in primary custodian with reasonable
rights of visitation, not sole custody" is devoid of support in the
record.      Therefore, we conclude that the finding is clearly
erroneous.
        Based on this erroneous finding, the District Court concluded
that the issue of modifying only the physical custody provisions
of the joint custody decree was raised by express or implied
consent of     the parties      at    the hearing, citing Rule     15(b),
M.R.Civ.P.     That conclusion is erroneous as a matter of law.         As
discussed, Merlin himself did not "consentw to that issue.             More
importantly, even if Merlin had consented to revising the issue
before the court, Cindy clearly did not do so.           Indeed, Cindy's
counsel reiterated objections to the court's use of the "best
interest" standard at every juncture.          No consent of the parties
exists    in   this   case   upon   which    the   court   properly   could
characterize the issue before it as one of modifying physical
custody only. Therefore, the District Court's application of Rule
15(b), M.R.Civ.P., was in error.
     The issue before the District Court was whether to dissolve
joint custody and award sole custody of Travis and Tennile to
Merlin.   Montana law is clear that, where a joint custodian seeks
to terminate joint custody and obtain sole custody, 5 40-4-219,
MCA, applies.      See 5 40-4-224(3), MCA; In re Marriage of Gahm
(1986), 222 Mont. 300, 722 P.2d 1138; Keil v. Ferguson (1990), 246
Mont. 344, 805 P.2d 1334.      Thus, the court erred in applying only
the best interest standard of 9 40-4-212, MCA.
     ~ e r l i nargues, somewhat disingenuously given the posture of
his case throughout the District Court proceedings, that the court
merely modified physical custody of ~ r a v i s and Tennile and,
therefore, that it did not err in applying          §   40-4-212, MCA.   He
directs our attention to a number of cases in which we have stated
that modification of the physical custody provisions of a joint
custody award, as opposed to termination of joint custody, is
governed by    §   40-4-212, MCA.       Merlin's characterization of the
cases is correct; however, the cases are distinguishable.
     For example, in In re Marriage of Johnson (1989), 238 Mont.
153, 777 P.2d 305, the father moved to modify the physical custody
provisions of the joint custody award. We focused on the nature of
his motion and concluded that       §   40-4-212, MCA, rather than g 40-4-
219, MCA, was      applicable because the motion    sought   only   a
modification of physical custody.   a.at   156.   Similarly, when a
father petitioned the court for clarification of the physical
custody arrangements of a joint custody award, we again affirmed
the district court's application of the best interest standard of
5 40-4-212, MCA.   In re Custody of J.H. (1988), 231 Mont. 301, 303,
752 P.2d 194, 195. The moving parties in J H and Johnson did not
                                          ..
actively seek dissolution of the joint custody and granting of sole
custody as Merlin did in this case.
     As discussed above, the case presented to the District Court,
and the issue before it, was a motion to terminate joint custody
and to award sole custody to Merlin.    Rule 15(b), M.R.Civ.P., did
not operate to alter or amend the issue.    A district court's acts
must be within the issues presented to the court. In re Custody of
C.S.F.   (1988), 232 Mont. 204, 209, 755 P.2d 578, 582 (citations
omitted).
     Finally, Merlin argues, under both the "serious endangermentu
and the "integrationu factors, that the requirements of 5 40-4-219,
MCA, were met.     We decline to address this argument absent an
opportunity for the District Court to do so first on the record
before it.
     Reversed and remanded for findings and decision pursuant to
5 4'0-4-219,MCA.
We concur:
                                  December 15. 1992

                             CERTIFICATE OF SERVICE

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


DAVID F. STUFFT
Attorney at Law
P.O. Box 1225
Cut Bank, MT 59427-1225

Robert G. Olson
FRISBEE, MOORE & OLSON
P.O. Box 547
Cut Bank, MT 59427


                                               ED SMITH
                                               CLERK OF THE SUPREME COURT
                                               STATE OF MONTANA
