Custody of R.R.K., In re
| Decision Date | 27 August 1993 |
| Docket Number | Nos. 92-424,92-495,s. 92-424 |
| Citation | 260 Mont. 191,859 P.2d 998 |
| Parties | In re the CUSTODY OF R.R.K., R.D.K., and L.M.K., Minor Children. In re the Marriage of Jeff KOLPIN, Petitioner, and Jeannette Kolpin, Respondent, v. Normond and Beverly KOLPIN, Third-Party Petitioners and Appellants. |
| Court | Montana Supreme Court |
Rodd A. Hamman, Calton, Hamman & Wolff, Billings, for appellant.
Richard A. Simonton, Simonton, Howe & Schneider, Glendive, for respondent.
Richard L. Burns, Glendive, for the children.
Normond and Beverly Kolpin (the Kolpins) appeal from orders of the Seventh Judicial District Court, Dawson County, and the Seventh Judicial District Court, McCone County, denying and dismissing their efforts to seek custody of their grandchildren, imposing sanctions and awarding certain attorney's fees. The appeals from the Dawson County dissolution proceeding and McCone County custody action were consolidated by this Court. We affirm in part, reverse in part and remand.
We phrase the issues on appeal as follows:
1) Are non-parents entitled to seek custody of a child under the Uniform Marriage and Divorce Act, through either an independent custody proceeding or intervention in a dissolution proceeding?
2) Did the District Court err in imposing Rule 11 sanctions on the Kolpins in the custody action?
3) Did the District Court err in ordering the Kolpins to pay Jeff Kolpin's share of the children's attorney's fees in the dissolution action?
4) Did the District Court err in awarding Jeannette Kolpin attorney's fees incurred in opposing the Kolpins' motion for a stay of execution in the dissolution action?
Jeff and Jeannette Kolpin were married in March of 1982. Due to inadequate health services where the couple resided, Jeannette soon moved to Billings to live with Jeff's parents, the Kolpins, pending the birth of her and Jeff's first child. Russell Kolpin was born on May 21, 1982, and Jeannette and Russell remained with the Kolpins for approximately one month following his birth. In October, 1983, Jeannette and Russell moved back in with the Kolpins to facilitate Jeannette's psychological treatment at a nearby clinic. During this stay, Jeff and Jeannette's second son, Raymond, was born on December 16, 1983. Jeannette and the two children lived with the Kolpins until February, 1984. Jeannette and the children also lived with the Kolpins for approximately two months following the birth of a third child, Leanne, on June 26, 1985.
In April, 1987, Jeff and Jeannette brought all three children to live with the Kolpins while they attempted to work out their marital difficulties. On April 9, 1987, Jeff Kolpin executed an affidavit directing the Kolpins to care for the three children; the document stated that the children were placed in the Kolpins' care due to Jeannette's hospitalization and out-patient treatment for mental disorders. In 1988, Jeff and Jeannette separated. Jeff moved to Glendive, Montana, and Jeannette moved to her parents' ranch in Circle, Montana.
All three children continued to live with the Kolpins until August 5, 1988. On that date, Jeannette and her parents, Joe and Elaine Wittkopp, arrived in Billings and told the Kolpins that they were taking the two younger children on a picnic. Raymond and Leanne were not returned to the Kolpins at the end of the day; instead, the Wittkopps took the two children back to Circle.
Russell was visiting his father on the day Raymond and Leanne were taken to Circle. Russell continued to live in Billings with the Kolpins until he moved in with Jeff in Glendive in September, 1988. The Kolpins had frequent contact with Russell during the time he lived with his father. When Jeff began working night shifts, Beverly Kolpin moved to Glendive and rented the apartment above Jeff's to care for Russell. After the 1988-89 school year, Russell and Beverly returned to live in Billings. Russell continued to live with the Kolpins.
Jeff Kolpin filed a petition for dissolution in February of 1989. As a result of the parents' dispute over child custody, the District Court appointed an attorney to represent the interests of the children; the court ordered Jeff to pay for the children's attorney's fees.
The Kolpins filed a petition for grandparents' visitation rights as a separate cause of action from the dissolution proceeding in June, 1989. In October of 1989, they filed a motion to intervene in the dissolution action, seeking custody of the three children and joinder of their visitation action with the dissolution action. After a hearing on the Kolpins' motion for intervention and joinder, Dawson County District Court Judge Dale Cox granted the Kolpins' motion for joinder of the visitation claim with the dissolution action, but denied their motion to intervene regarding custody. The court did not issue findings, conclusions or a supporting memorandum with this order.
In November of 1990, in conjunction with a contempt citation for failure to pay costs assessed against him, the court struck Jeff's request for custody and issued an order precluding Jeff from presenting evidence against an award of custody to Jeannette. Jeff moved for relief from the order, which was denied after a hearing. Soon after the hearing, Jeff disappeared. Because Jeff's counsel could not locate him, the court granted counsel's motion to withdraw from the proceedings. District Court Judge Richard Phillips assumed jurisdiction of the dissolution proceeding in March, 1991.
In March of 1992, the Kolpins filed an independent petition for custody of the three children in McCone County, where Raymond and Leanne resided. Jeannette moved to dismiss the petition and requested sanctions against the Kolpins under Rule 11, M.R.Civ.P. The District Court, Judge Phillips presiding, dismissed the Kolpins' independent petition for custody and awarded Jeannette attorney's fees under Rule 11, M.R.Civ.P.
Judge Phillips also presided over the hearing in the Dawson County dissolution action on June 8, 1992. Because Jeannette had agreed that the Kolpins were entitled to visitation and the court had denied their motion to intervene regarding custody, the District Court allowed the Kolpins to present evidence only regarding the amount of visitation they believed was appropriate.
The District Court issued findings of fact, conclusions of law and decree of dissolution on July 1, 1992. The court determined that it was in the best interests of the children to award custody to Jeannette, with reasonable visitation rights to Jeff and the Kolpins. The court expressed concerns about Jeannette's ability to care for the three children but concluded that, with the help of her parents and sister-in-law, Jeannette could adequately care for the children in Circle. The District Court also ordered the Kolpins to pay half of the children's attorney's fees, because Jeff had "no intention of doing so."
The Kolpins subsequently filed a motion for a stay of execution regarding Russell's custody. The District Court denied the stay motion. Although the court concluded the motion was made in good faith, it ordered the Kolpins to pay Jeannette's attorney's fees incurred in opposing the motion. This appeal follows.
Are non-parents entitled to seek custody of a child under the Uniform Marriage and Divorce Act, through either an independent custody proceeding or intervention in a dissolution proceeding?
The Kolpins contend that § 40-4-211, MCA, expressly entitles them to petition for custody of the three children and, consequently, entitles them to intervene in the dissolution action. They assert that the District Courts erred as a matter of law in dismissing their independent petition for custody in McCone County (DR 92-07) and denying their motion to intervene in Dawson County (DR 89-011). Our review of a court's legal conclusion is plenary. Steer, Inc. v. Dep't of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 603.
Section 40-4-211, MCA, sets forth the procedural and jurisdictional standards for a child custody proceeding under the Uniform Marriage and Divorce Act (the Act). Subsection (4) of § 40-4-211, MCA, reads:
(4) A child custody proceeding is commenced in the district court:
(a) by a parent, by filing a petition:
(i) for dissolution or legal separation; or
(ii) for custody of the child in the county in which he is permanently resident or found; or
(b) by a person other than a parent, by filing a petition for custody of the child in the county in which he is permanently resident or found, but only if he is not in the physical custody of one of his parents.
The statute provides three distinct methods of instituting a child custody proceeding: 1) a parent may file a petition for dissolution or legal separation; 2) a parent may file a petition for custody; or 3) a non-parent may file a petition for custody. This Court must give effect to each provision of the statute; it is not our function to omit what the legislature has included. Section 1-2-101, MCA.
The plain language of § 40-4-211(4)(b), MCA, authorizes a non-parent to commence a custody proceeding by filing a petition. However, it is equally clear that the non-parent must satisfy the "standing" requirement by demonstrating that the child is not in the physical custody of one of his parents. Henderson v. Henderson (1977), 174 Mont. 1, 5, 568 P.2d 177, 179.
In Henderson, the mother and father each were awarded custody of one of their children following dissolution of their marriage; the couple then agreed that the father should retain temporary custody of both children pending further proceedings. When the father died unexpectedly, an aunt filed a petition for custody of both children under § 48-331(4)(b), RCM (1947), the predecessor to § 40-4-211(4)(b), MCA.
We concluded that "[t]he aunt did not have standing to begin a custody proceeding ..." under the statute. Henderson, 568 P.2d at 179. Finding no merit...
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