Barbour v. Barbour, 9696

• Citation: 134 Mont. 317,330 P.2d 1093
• Decision Date: 18 November 1958
• Docket Number: No. 9696,9696
• Parties: Shirley BARBOUR, Plaintiff and Respondent, v. Charles BARBOUR, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

Page 1093

330 P.2d 1093

134 Mont. 317

Shirley BARBOUR, Plaintiff and Respondent, v. Charles BARBOUR, Defendant and Appellant.

No. 9696.

Supreme Court of Montana.

Submitted March 20, 1958.

Decided Aug. 12, 1958.

Rehearing Denied Nov. 18, 1958.

Loble & Picotte and Patrick F. Hooks, Helena, Henry Loble, Helena, and Patrick F. Hooks, argued orally, for appellant.

Toomey & Hughes, Helena, Michael J. Hughes, Helena, argued orally, for respondent.

CASTLES, Justice.

This is an appeal by defendant, a divorced father, brought to reverse an order refusing to limit the residence of his children to Helena, Montana. The order continues custody of children in the plaintiff mother, without residence limitation, allows her costs and counsel fees, and conditions the father's right to visit the children upon his payment of $80 monthly for their support, promptly in the future as it shall fall due.

The father is appellant, the mother respondent. They insist that their concern is solely for the welfare of their children. The record proclaims their discord, but to some extent discounts their interest. The sanctity of their marriage and the security of their children have been all but spent in bickering and dispute. It is too late for proper solution. The court must do the best it can. Although the 'state makes itself a party to every marriage' (Franklin v. Franklin, 40 Mont. 348, 106 P. 353, 354, 26 L.R.A.,N.S., 490) the state's interest as parens patriae is but cold comfort to children.

The children are four, one born July 5, 1946, one September 30, 1948, one December 12, 1949, and one January 18, 1952. Beginning with the divorce when the oldest child was eight years of age, although custody was decreed to the mother, residing in Helena, these children were first cared for by the paternal grandmother, in Nevada, then were taken to Texas and elsewhere by their father as he went about the west following construction work. How he cared for them during the time is not shown. Finally they were returned to Helena, Montana, and watched over by a kindly baby sitter while their mother worked. For the last four years they have known only a broken home. The record indicates that neither parent has remarried, that the children are still in Helena, Montana, and that reduced support money has been paid.

The parents of these four children were married in Parwon, Utah, December 23, 1944, moved to Helena during the year 1949, and were divorced in Lewis and Clark County, Montana in 1954. The father is a carpenter, the mother is a secretarial worker. The mother filed for divorce, alleging mental cruelty. She asked no alimony. The record implies that the mother was planning another marriage never completed. The father was personally served, but did not appear. The mother was awarded custody of the four children, subject to 'the right in the defendant to visit said children at any and all reasonable times which are agreeable to the plaintiff and which will not, in plaintiff's opinion, be detrimental to the children', $150 monthly payable through her for child support, costs and counsel fees. She was her only witness. The decree was given and entered by George W. Padbury, Jr., then a judge of the first judicial district. It is dated June 23, 1954.

Two days after the decree was entered, through counsel he then retained but no longer in the case, the father moved to set aside the default, alleging inadvertence and swearing, through his then attorney's affidavit, that he had been misled by his wife's then counsel. On hearing, he was not sustained. Eventually the wife's then attorney withdrew from the case and waived the fee decreed to him. This proceeding was heard by the Honorable William R. Taylor, called in from the third judicial district. Judge Taylor found that the wife's then attorney had attempted to reconcile the parties but that the husband had refused reconciliation and had written the wife to proceed with the divorce. Judge Taylor's order is dated August 28, 1954. From it no appeal was taken.

As stated, the decree was awarded to the mother and was entered June 23, 1954. With the exception of $125.76, paid into court on September 19, 1955, to purge himself of contempt, the father contributed nothing to the mother toward the support of the children until after the child support money had been reduced on September 20, 1955, from $150 to $80 per month. This reduction was ordered by the Honorable Jack R. Loucks, judge of the fifteenth judicial district, called in to hear further proceedings between the parties. Judge Loucks also ordered that 'the Defendant's right of reasonable visitation is made contingent upon the payment of $80 per month to said Plaintiff for the support, care and maintenance of said minor children. In the event the Defendant does not comply with the payment as herein set forth he is without right to visit said children at any time or place.'

Present counsel for the respondent wife argue that the time has passed to appeal this order conditioning visitation upon prompt payment of child support money. This is irrelevant. Generally the court's jurisdiction is continuing in child custody matters (R.C.M.1947, §§ 21-137, 21-138) and, specifically, the present appeal is taken from a later order entered by Judge Loucks on February 4, 1956.

The foregoing will suffice for review of a weary record of legal moves, accusations, charges and countercharges reflecting little credit upon the parents and even less solicitude for the welfare of their children. We have read it all.

On December 9, 1955, the divorced husband filed the motion for modification out of which this appeal has developed. He charged that the mother contemplated taking the children to reside with her in California. On this allegation he moved for an order restricting the residence of the children to the City of Helena, because, so he said, he could not visit them in California while conducting a construction business he said he proposed to commence in East Helena, with the earnings of which he said he intended to support himself. He concluded that any change in the residence of the children would prejudice their welfare. We are convinced neither by the father's logic nor by his conclusion. Primarily he urges his own convenience.

The mother countered with a demand that the father's visits to the children at her residence in Helena be limited to a day and time certain, and preferably not at mealtime. She suggested that the construction plans were phonies, claimed the frequency of the father's visits was in itself unreasonable, and pointed out that if the father was as anxious to work as he alleged, he could more easily secure employment in California where he was complaining she intended taking the children. The mother added that as to her moving anywhere out of Helena, she did not know what she intended to do. The record supports her.

In other testimony the mother charged that once during the interim between the divorce and the permanent return of the children to Montana, the father suddenly appeared one night in Helena at the mother's residence, told her the older children were outside in his car, thrust the youngest child into her arms, struck her with a homemade sap, took the child back and as suddenly departed. Countering, the father attached the mother's moral fitness for custody of children and testified she once kicked him in the back.

Charged with the well-being of four children, faced with the dilemma implicit in a record for which the foregoing samples will more than suffice, and struggling for a proper solution no longer to be found, the court continued custody in the mother who, in any event, then had an established abode and a kindly baby sitter, refused to restrict residence of the children and limited visitation by the father in an order obviously as unsatisfactory to the district judge who felt compelled to issue it in such detail as to the father who brings this appeal. This order is dated February 2, 1956.

The order concludes:

'2. That the plaintiff be awarded the care, custody and control of the minor children * * * with the right in the defendant to visit said children in the custody of plaintiff on Saturday of each week for as long as he wishes between the hours of 1:00 o'clock p. m. and 8:00 o'clock p. m., and, also on the birthdays of each of said children and on Christmas when such days to not fall on Saturday, except when defendant is prevented from making such visits by the illness or absence of the children from their place of residence, in which events defendant shall have the right to make up such lost visits by a second visit in subsequent week or weeks on a day of his selection, on notice to plaintiff, to the end that defendant shall have the right to visit said children in plaintiff's custody fifty-two (52) times each year and on their birthdays and on Christmas when such days do not fall on Saturday; provided, however, that defendant's right of visitation is made contingent upon the payment of $80 per month to plaintiff for the support, care and maintenance of said minor children. In the event that Defendant does not comply with this Court's order * * * he is without right to visit said children at any time or place.'

Three specifications of error are raised: (1) The allowance by the court of respondent's costs and counsel fees in an order modifying child custody; (2) the refusal of the court to restrict residence of the children to its jurisdiction; and, (3) the order of the court conditioning appellant's right of visitation upon his prompt payment of money decreed for the support of his children. The first two of the three specifications are controlled by a recent decision of this court; the third is controlled by two earlier decisions for this state. We discuss the specifications seriatim.

(1) Allowing costs and counsel fees on motion to modify child custody.

Appellant objects to paying respondent's costs...