Benson v. Benson

• Decision Date: 15 May 1948
• Docket Number: 8799.
• Citation: 193 P.2d 827,121 Mont. 439
• Parties: BENSON v. BENSON.
• Court: Montana Supreme Court

193 P.2d 827

121 Mont. 439

BENSON v. BENSON.

No. 8799.

Supreme Court of Montana

May 15, 1948

As amended on Denial of Rehearing June 11, 1948.

Appeal from District Court, Fifteenth Judicial District, Sheridan County; F. S. P. Foss, Presiding Judge.

Proceeding in the matter of the application of Mabel Benson, on behalf of Gordon Benson, a minor, for a writ of habeas corpus opposed by Oscar G. Benson. From an order granting the writ Oscar G. Benson appeals.

Affirmed.

James T. Shea and John Marriott Kline, both of Glasgow, for appellant.

Slattery & Dempsey, of Great Falls, for respondent.

ADAIR Chief Justice.

In September 1945 the district court of Roosevelt county Montana, granted Mabel M. Benson a decree of absolute divorce from her husband Oscar G. Benson and made therein an order for the custody of the son of the parties, then eight years old, providing that, 'said Mabel M. Benson is hereby granted the exclusive rights to the custody of said son, Oscar Gordon Benson, during the periods of the following respective years, while said son is in grade school attendance; said Oscar G. Benson is hereby granted the exclusive rights to the custody of said son, Oscar Gordon Benson, during the summer vacation periods while said son is acquiring his grade school education; and that the rights to the custody of said son as between his said parents, during the period of years he acquires his high school education shall be dependent upon the then best interests of said son, with due consideration to his then personal desires, and that each of said parents shall have reasonable part time rights to the custody of said son, during each of the years said son acquires his high school education.'

Following the divorce the mother, Mabel M. Benson, and her son went to Missoula, Montana, where Mrs. Benson has since resided while the father, Oscar G. Benson, resides at Plentywood, Montana.

During the 1945-1946 and the 1946-1947 school years the son resided with his mother in Missoula but spent his 1946 and 1947 vacations with his father in Plentywood.

On August 29, 1947, at the end of the 1947 summer vacation the mother telegraphed the father requesting him to send the son to her by train advising that she would meet the train at Whitefish, Montana upon its arrival there, but the father declined to comply with such request.

On September 9, 1947, the mother, by long distance telephone, again requested the father to send her child to her, but again the father failed and refused to surrender the custody of the boy.

On September 22, 1947, upon the filing in the district court of Sheridan county, Montana of a petition by the mother on behalf of the son, a writ of habeas corpus directed to the father was issued and served commanding that the father have the child before the said district court on September 25, 1947.

On the return day, September 25, 1947, Judge Vernon Hoven, the duly elected judge of the fifteenth judicial district, deeming himself disqualified, called in Judge F. S. P. Foss, the district judge of the seventh judicial district, who assumed jurisdiction and presided in the cause. The father made written return and answer to the writ averring that he has not at any time restrained his son in any way or violated the mandate of the decree of divorce and 'that since the said decree rendered * * * that a change of condition has taken place wherein and whereby it is now, and for a long time last past, has been for the best interest and welfare of the said. Gordon Benson, that the decree in said cause or by appropriate proceedings in this cause, be modified wherein and whereby the custody of the said Gordon Benson would be lodged in the undersigned, father of said child, and * * * that it will be for the best interest of said child, that such custody be awarded to the undersigned and that it will be to the mental and physical detriment and damage of said child, if he will be obligated to return to the custody of Mabel Benson.'

After hearing the evidence introduced by both the petitioner and the father, the trial court made written findings of fact and conclusions of law. Among other facts the court found that the mother is a fit and proper person to have the custody and control of the child in accordance with the divorce decree, and that said child is being restrained by the father. The trial court also rendered the following written decision:

'In the Court's opinion the adjudication of the judgment heretofore entered in the original divorce proceedings is conclusive so far as the right to the custody of the child is concerned as to every matter or fact which might have been urged against that right, particularly where the custody of the child is awarded in accordance with agreement of the parties. The testimony adduced at this hearing, in this Court's opinion, affirmatively shows no change in petitioner's qualifications as custodian of the minor child since the entry of that decree.

'Considerable weight has been given to the testimony of the minor involved in this action, but our Supreme Court has held that a writ may issue regardless of the wishes of the minor and even against his expressed wishes.

'The Court being of the opinion that the qualifications of the petitioner, not having been changed or altered by reason of the testimony given today, that the Judgment heretofore entered providing for the custody of the child should not be changed or altered and the Writ will issue.

'Let Judgment be entered accordingly.'

Upon rendering its decision the court ordered and adjudged that the petition be granted 'and that the said child be remanded to the custody of the mother, Mabel Benson.'

The father has not complied with such order. Instead he appealed therefrom to this court assigning some two dozen specifications of error in none of which do we find merit.

The district court of Roosevelt county, wherein the action for divorce was commenced and prosecuted to judgment, had original jurisdiction to make and render the decree of divorce (Const. of Montana, Art. VIII, sec. 11; section 8829 Rev.Codes, 1935). Upon the entry of the decree awarding his custody the child became a ward of the...