Girard v. Williams

• Decision Date: 29 October 1998
• Docket Number: No. 97-060,97-060
• Parties: , 1998 MT 231 James W. GIRARD, Petitioner and Respondent, and Donald and Janyth Girard, Intervenors and Respondents, v. Bruce E. WILLIAMS, Sandra Williams, and Frank D. Litke, Jr., Respondents and Appellants.
• Court: Montana Supreme Court

Page 1155

966 P.2d 1155

291 Mont. 49, 1998 MT 231

James W. GIRARD, Petitioner and Respondent and Donald and Janyth Girard, Intervenors and Respondents, v. Bruce E. WILLIAMS, Sandra Williams, and Frank D. Litke, Jr. Respondents and Appellants.

No. 97-060.

Supreme Court of Montana.

Argued Oct. 9, 1997.

Submitted Oct. 30, 1997.

Decided Sept. 15, 1998.

Rehearing Denied Oct. 29, 1998.

T. Geoffrey Mahar (argued); James A. Haynes Law Office, Hamilton, Vincent Stark; Newman & Boyer Chicago, IL, for Appellant Frank D. Litke, Jr.

Judith A. Loring (argued), Attorney at Law, Stevensville, for Intervenors and Respondents Donald and Janyth Girard.

GRAY, Justice.

¶1 Frank D. Litke, Jr. (Frank) appeals from the judgment entered by the Twenty-First Judicial District Court, Ravalli County, on its Findings of Fact, Conclusions of Law and Decree of Custody granting Donald (Don) and Janyth (Jan) Girard full and permanent legal custody of David and Michael Girard. We reverse.

¶2 The dispositive issue on appeal is whether the District Court erred in determining that Don and Jan had standing to intervene in the proceedings.

BACKGROUND

¶3 Frank met Bonnie Girard (Bonnie) in Arizona in 1986 and they developed an intimate relationship. At the time she met Frank, Bonnie was married to James Girard (Jim) and they remained married until Bonnie's death in 1990. On May 13, 1987, Bonnie gave birth to Frank David Litke, III (David). While David was given Frank's last name, his birth certificate listed Jim as the natural father. In August 1987, Frank filed a complaint in the Superior Court of Arizona, in and for the County of Maricopa (Arizona Superior Court), to establish paternity of David. Bonnie filed an answer in which she admitted that Frank was David's natural father. Frank did not pursue this complaint, but he remained convinced that he, rather than Jim, was David's biological father.

¶4 Frank was arrested on January 3, 1988, and subsequently incarcerated in an Arizona state prison as the result of a revocation of probation for a previous theft conviction. While Frank was in prison, Bonnie gave birth to Frank Thomas Litke Girard (Michael) on June 3, 1988. Again, while Michael's name includes Frank's last name, his ¶5 Jim was incarcerated in a federal penitentiary in Arizona on September 10, 1990, after being convicted of possessing a sawed-off shotgun. The two infants remained with Bonnie. On December 21, 1990, Bonnie was murdered in her home. The record indicates that David and Michael were alone with Bonnie's body for approximately 24 hours before they were found and that they likely witnessed the murder. Both children continue to experience emotional and psychological problems resulting from this traumatic event.

birth certificate listed Jim as the natural father.

¶6 Following Bonnie's death, the Arizona Department of Economic Security(ADES) contacted Jim in the federal prison to determine where to place the children and, at Jim's suggestion, the children subsequently were transported to Montana to live with Jim's brother and sister-in-law, Don and Jan. David and Michael arrived in Montana in December of 1990, and have resided with Don and Jan since that time. Having no knowledge of Frank's relationship with Bonnie or the children, the ADES did not contact Frank regarding the children's placement at that time, nor was he aware of the ADES's actions until after the children had been removed from Arizona. The ADES denied Frank's subsequent request to be told where the children had been placed.

¶7 In February of 1991, Frank's mother, Sandra Williams (Williams), and her husband filed a paternity action in the Arizona Superior Court, naming both Frank and Jim as respondents and requesting the court to determine that Frank was the natural father of David and Michael and to award custody of the boys to either Frank or Williams. Frank claims that he instigated the filing of the Arizona paternity action after learning that Bonnie had been killed and the children had been removed to Montana.

¶8 Frank was released from prison in early 1993 and, in March of 1993, the Arizona court amended Williams' paternity complaint to make Frank a petitioner, rather than a respondent, in the action. Jim participated actively in the paternity action and contested various of the Arizona court's orders, including an order that he and Frank submit to blood testing, through a number of appeals. He eventually had a blood group typing test completed, the results of which were consistent with his being the children's biological father, but did not undergo the DNA blood testing ordered by the Arizona court. Frank's DNA blood test indicated a greater than ninety-nine percent probability that he was the father of both David and Michael.

¶9 Jim was released from the federal penitentiary in October of 1991 and moved to Ravalli County, Montana, where he resided with Don, Jan and the children. In April of 1992, Jim petitioned the Fourth Judicial District Court (now the Twenty-First Judicial District Court), Ravalli County, to legally change the names on the children's birth certificates to remove the name Litke. At the hearing on his petition for name change, Jim testified that he was the children's natural father. He did not give notice of the name change proceeding to either Frank or Williams and did not disclose to the District Court that the children were the subject of an ongoing paternity action in Arizona.

¶10 On April 2, 1993, Jim filed a Verified Petition for Custody in the Twenty-First Judicial District Court, alleging that he was the presumed natural father of David and Michael pursuant to § 40-6-105, MCA, and that it would be in the children's best interests to award him sole and permanent custody of the children. Jim named Frank and Williams as respondents in the action and acknowledged that Frank might assert that he, rather than Jim, was the children's natural father. The petition disclosed the ongoing paternity and custody action in Arizona, but stated Jim's belief that Arizona did not have jurisdiction to determine custody of the children. In this regard, Jim alleged that the District Court had sole and exclusive jurisdiction of the custody issue pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA), §§ 40-7-101 through 40-7-125, MCA, because the children had lived in Montana since December 1990, thus making Montana a more appropriate forum in which to determine custody. The verified petition requested the District Court to assume jurisdiction under the UCCJA in order to determine ¶11 On May 11, 1993, the District Court and the Arizona Superior Court conferred by telephone regarding the simultaneous proceedings and determined that the Arizona court would retain jurisdiction over the pending paternity action. Once paternity was established, the courts would confer again to determine whether custody was still an issue and, if so, which court should exercise jurisdiction over the custody issue under the UCCJA. Pursuant to a stipulation of the parties, the District Court ordered that Jim would have temporary custody of David and Michael pending the outcome of the litigation. In a second telephone conference, the courts again determined that Arizona had, and would retain, jurisdiction to render a final adjudication on the paternity issue. They further determined that the District Court had jurisdiction over the custody issue, the Arizona court would enter no orders regarding custody of the children and the Montana custody proceeding would be stayed pending the Arizona paternity determination.

custody of the children, to award sole and exclusive custody to Jim, and to determine that neither Frank nor Williams had any rights or obligations with respect to either child. Frank responded to Jim's petition for custody by asserting that he was the children's natural father and that Jim had no blood relationship with either David or Michael. Frank requested the District Court to stay the proceedings on the petition for custody until the Arizona court ruled on the children's paternity and, thereafter, a determination could be made as to whether further custody litigation was necessary.

¶12 On February 17, 1994, the Arizona Superior Court entered its order decreeing that Frank was the natural and biological father of David and Michael. Based on its previous communications with the District Court, the Arizona court specifically declined to enter any custody orders and deferred jurisdiction over the custody issue to Montana. Frank subsequently moved the District Court to recognize the Arizona paternity order and grant him visitation with the children during the pendency of the custody proceeding. The District Court granted Frank's motion to recognize the Arizona paternity order, but denied his motion for visitation. The parties proceeded with the Montana custody action.

¶13 Jim died on October 28, 1994. Don and Jan then moved the District Court to either substitute them as petitioners in Jim's place or, in the alternative, allow them to intervene in the custody action. Frank opposed the motion on the basis that Don and Jan did not have standing to petition for custody of David and Michael. He also moved the court for an immediate judgment on the merits in his favor and custody of the children. The District Court entered its Findings of Fact, Conclusions of Law and Order permitting Don and Jan to intervene in the custody action and implicitly denying Frank's motion for immediate judgment on January 13, 1995. The court also ordered that Don and Jan would retain temporary custody of the children pending its ultimate custody determination. Don and Jan, as intervenors, subsequently filed a verified petition for custody of David and Michael.

¶14 The District Court held a hearing on the merits of the custody proceeding in February and March of 1996. Its subsequent Findings of Fact, Conclusions of Law and Decree of Custody granted Don and Jan...