Morrell v. Giesick

• Decision Date: 14 May 1980
• Docket Number: No. 79-58,79-58
• Citation: 610 P.2d 1189,188 Mont. 89
• Parties: Carrie M. MORRELL, previously known as Carrie M. Giesick, Petitioner and Appellant, v. Robert Lee GIESICK, Respondent and Respondent.
• Court: Montana Supreme Court

Page 1189

610 P.2d 1189

188 Mont. 89

Carrie M. MORRELL, previously known as Carrie M. Giesick Petitioner and Appellant, v. Robert Lee GIESICK, Respondent and Respondent.

No. 79-58.

Supreme Court of Montana.

Submitted April 15, 1980.

Decided May 14, 1980.

Phyllis A. Bock, argued, Montana Legal Services, Miles City, for petitioner and appellant.

John S. Forsythe, argued, Forsyth, for respondent and respondent.

HARRISON, Justice.

Carrie M. Morrell appeals from a summary judgment entered in favor of Robert Lee Giesick. The judgment, entered by the District Court, Sixteenth Judicial District, Rosebud County, precluded Morrell from challenging Giesick's custody of Morrell's child, Sandy Joe Giesick.

Sandy Joe was born on July 21, 1974. Morrell is listed on Sandy Joe's birth certificate as the mother but no father is named. Sandy Joe's surname on the birth certificate was Baertsch, Morrell's maiden name. According to Giesick, he and Morrell were living together and having sexual intercourse at the time Sandy Joe was conceived. Morrell, however, maintains she had not even met Giesick at the time Sandy Joe was conceived and Morrell was dating and having sexual intercourse exclusively with Darrell Canfield. Canfield did contribute $360 towards the medical expenses associated with Sandy Joe's delivery.

On Thanksgiving 1974, Morrell told Giesick he was not Sandy Joe's natural father. Morrell told Giesick this again in July 1975 and repeated it numerous times thereafter.

In December 1974, Morrell and Giesick were married in Sheridan, Wyoming. Giesick took Sandy Joe into his home, openly held her out as his natural child and allowed her to use his surname.

At some point, Morrell signed a "Consent To Custody And Guardianship" transferring Sandy Joe's custody and control to Morrell's parents, George and Dorothy Baertsch. In November 1975, Morrell and Giesick jointly petitioned for a writ of habeas corpus to secure Sandy Joe's return from Morrell's parents. The petition recited that Morrell and Giesick were Sandy Joe's natural parents. Subsequently, Morrell's parents voluntarily returned Sandy Joe, and the petition was dismissed.

Morrell and Giesick separated several times during their marriage. The last separation occurred in May 1976, when Morrell took the children, Sandy Joe and Amy Marie Giesick, to Oklahoma. In late December 1976, the children were returned to Montana and put into Giesick's custody. The children have lived in Montana with Giesick and his second wife since that time.

On March 24, 1977, Giesick obtained a dissolution of his marriage with Morrell in the District Court, Rosebud County. Morrell was served by publication. Giesick was given custody of Sandy Joe and Amy Marie under the default judgment entered by the District Court. No issue has been raised here regarding the propriety of the marriage dissolution itself.

On March 29, 1979, Morrell filed this petition to set aside the child custody provision in the default marriage dissolution decree. The petition alleged Giesick possibly committed a fraud upon the District Court by alleging in the dissolution petition that Sandy Joe was "born of the marriage." The petition also alleged the District Court lacked jurisdiction to award Giesick custody of Sandy Joe since Morrell was served by publication.

Giesick moved for summary judgment which was granted on September 26, 1979. The District Court held the dissolution court had jurisdiction to award Giesick custody of the children since the children were in Montana at the time the dissolution petition was filed and there was no irregularity in service of process. Next, the District Court held Morrell was barred by estoppel, laches and res judicata from challenging the dissolution decree's custody provision.

Upon appeal, Morrell challenges the propriety of the summary judgment itself as well as the jurisdiction of the District Court to determine Sandy Joe's custody. We affirm the District Court.

According to Morrell, genuine issues of material fact remain unresolved, and Giesick was not entitled to a judgment as a matter of law. The contention is without merit. Morrell admits Giesick took Sandy Joe into his home, openly held her out as his natural child, and allowed her to use his surname. Morrell also admits her representation in the 1975 petition for a writ of habeas corpus that Giesick is Sandy Joe's natural father. Moreover, Morrell admits she has acquiesced for almost five years in Giesick's being Sandy Joe's...