MARRIAGE OF WEIS
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NO. 92-126 IN THE SUPREMECOURT OF THE STATE OF MONTANA 1992 IN RE THE MARRIAGE OF CYNTHIA K. BLACK, f/k/a CYNTHIA K. WEIS, Petitioner and Respondent, and GERALD T. WEIS, Respondent APPEAL FROM: and Appellant. District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable G. Todd Baugh, Judge presiding. COUNSELOF RECORD: For Appellant: Craig W. Halt, Attorney at Law, Billings, Montana Attorney at Law, Missoula, Montana For Respondent: Terry Wallace, Submitted on Briefs: Decided: July 2, 1992 September 1, 1992 Justice Fred Mr. J. Weber Weis filed his attempt to parties' three in the erred change to the Opinion modify primary Judicial District, Mr. sole when a petition After petition. The the children. Thirteenth Weis' delivered Weis issue it for refused to the the Court. decree of residential dissolution custody Yellowstone the District the of Court for County, a hearing, denied Mr. We affirm. appeals. our of review is let the her last whether the testify children District Court as to their wishes. Cynthia Black) (who and Gerald on June court 28, 1989. residential parent The Irena, to smoke 7, residential children custody maiden name County, Montana of the and between marriage. ordered the ordered that parents that the the on school Christmas ordered or in the primary for weekends, break. court The annually alternate the of non-residential visitation in her presence 1991, custody He alleged custodial care "continual alleged of her the Because parents house where one not to she was or visiting. custodian. of to had asthma, On October of three further and half anyone residing court to in Yellowstone be alternated entitled Thanksgiving daughter, were legal custody was allow There joint years. name Weis were divorced awarded five changed that of Ms. contact all three Mr. Weis filed designating that Black, with a petition him when the Irena's direct as the children health were 2 modification permanent were in the was endangered and passive children for smoking". endangered physically primary primary because He also and emotionally by Ms. Black's In his that all affidavit three he picked and present in support children of his were sick Olivia medication: had Esther tonsillitis from requiring medication. boyfriend continued Irena's continually smoke in and caused undue stress. physically hurt Black neglected the asthma Weis claimed children. 23, 1991. Ms. that Ms. which that her care of the children and, infection Black and her in spite Black's frightened former of present them boyfriend he maintained Finally, He requiring medication: presence, He maintained care when and an ear at the children the physical Weis averred infection that Irena's claimed yelled Mr. requiring bronchial He further asthma. boyfriend and an ear Mr. to motion, boyfriends. home on September had an ear infection was suffering live-in and in need of medical them up from Ms. Black's claimed Irena past that Ms. by not requiring them to bathe. In response temporary Black to Mr. Weis' restraining from having restraining petition order for order the house. children attack had care remained At the hearing, in effect medicine. which Ms. Black until of custody testified as Mr. Weis had claimed. cold children. she was testified bearing Irena she testified although Ms. 10, 1992. she does not smoke in was not having with a on the when Mr. Weis picked Rather, that a full that that treating issued The temporary was held on January Ms. Black testified She further Court to show cause prohibiting of the on September 23, 1991, that a the District and order custodial modification motion, an up the an asthma that Irena over-the-counter she had never heard her boyfriend yell She testified that after they at her children, the problem boyfriend they talking was really that getting Near the the children the District Court any conclusion, interview mother's petition issue refused before to let the factors Black Section prior that to coming to might Court without confirm denied Mr. interviewing procedure here: in determining Court maintains is required that and that the best of primary interests custodian. adherence We agree. residential in to Custody custody MCA, 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 his custodian and that the modification is necessary to serve the best interest of the child and if it further finds that: . . 4 . of MCA, to MCA, controls stringent MCA, is not required. erred wishes. by § 40-4-212, as to their the Court as to their $j 40-4-219, modification 40-4-219, the District testify of the children of § 40-4-212, not at issue that of the hearing. testimony custody us is whether that District the wishes modification children The District the children Mr. Weis maintains Ms. her Mr. Weis appeals. The sole consider she felt Mr. Weis requested the children's residential it, testified at the time three testimony. to modify the children. the child, well all about She further of the hearing, in hope that or deny their when it along very her he is mean. did not want to accept figure. conclusion Weis' to the children as a disciplinarian were all have told a the is is. (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; (d) the . the child modification: . The Weis children their not decision in to all the deny all of under the wishes interview described Court were Therefore, consider 14 years age or older and desires . hearing. did is District as to the 14 years Court of it Dr. modification was However, custody. children, testimony of age at did Veraldi. of primary the time not required although consider the their In custody, of District On October 9, 1991, the Court talked with the oldest child, Olivia, and the Court has reviewed Dr. Veraldi's notes attached to her deposition which reflect her interview with all three children. Weis has Mr. requested that this Court interview the children but the Court finds that to be unwarranted and unnecessary. . . The children express a preference for the father but have a fair relationship with the mother. The basis of seems to be a dislike of the children's preference mother's boyfriend and the fact that the father is able to take them more places, buy them more things, and the fact that he does not make them work around the house. Some of these reasons are somewhat shallow and immature, as one might expect of young children. When Mr. Weis got the Court to issue a temporary order last September giving him residential custody, things were just beginning to stabilize in the mother's home and a better relationship between the children and the mother's boyfriend was beginning to develop. Given that, the children's relationships with others and their expressed preferences are not enough to convince this Court that their best interests would be served by modifying residential custody. 5 court wishes stated: . to explaining the the as its Clearly We hold the the that children District Court the District Court testify as to considered did their not wishes. Affirmed. We Concur: Justices 6 the err children's when it refused wishes. to let September 1, 1992 CERTIFICATE OF SERVICE I hereby certify that the following order was sent by United States mail, prepaid, to the following named: Craig W. Holt Attorney at Law 490 N. 31st St., Ste. 205 Billings, MT 59101 Terry Wallace Attorney at Law P.O. Box 4763 Missoula, MT 59806 ED SMITH CLERK OF THE SUPREME COURT
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