Overman v. Overman

• Decision Date: 22 December 1980
• Docket Number: No. 13337,13337
• Parties: Lillian A. OVERMAN, Plaintiff-Appellant, v. Steven G. OVERMAN, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 127

629 P.2d 127

102 Idaho 235

Lillian A. OVERMAN, Plaintiff-Appellant, v. Steven G. OVERMAN, Defendant-Respondent.

No. 13337.

Supreme Court of Idaho.

Dec. 22, 1980.

Dissenting Opinion Jan. 29, 1981.

Ismael Chavez, Caldwell, for plaintiff-appellant

Gary H. Lew, Caldwell, for defendant-respondent.

BAKES, Justice.

Plaintiff appellant Lillian Overman obtained a default judgment of divorce from defendant respondent Steven Overman in January, 1978, in the district court of the Third Judicial District. The divorce decree awarded appellant Lillian Overman custody of the couple's five minor children, ordered respondent Steven Overman to pay $75 per month per child in child support, and divided the couple's property.

On September 26, 1978, respondent Steven Overman moved for modification of the divorce decree to enable him to obtain permanent custody of the couple's children. Respondent sought immediate temporary custody of the five children and a hearing on his motion to modify the divorce decree to grant him permanent custody.

In support of his motion, respondent submitted an affidavit of a social worker employed by the Idaho Department of Health & Welfare. The affidavit was based on the files of the department and alleged that the department had received numerous reports and complaints indicating that appellant was improperly caring for the couple's children. Among the allegations made by affiant, based upon the department's files, were that the two school age children were not regularly attending school; the children were often left without proper supervision; the children were in need of clothing and shoes; the appellant mother had attempted to place the children in a foster home; and that the affiant feared that the appellant mother would soon be leaving the state with the children.

On September 26, 1978, prior to notice to appellant of the proceedings and without a hearing, the district court granted the respondent father immediate temporary custody of the children pending a plenary hearing on respondent's motion for modification of the divorce decree. The district court's temporary order stated that it was entered to enable the court to maintain jurisdiction over the children until a hearing could be held. Hearing on the respondent father's motion was set for October 6, 1978, ten days after entry of the court's ex parte order granting respondent temporary custody of the children.

On October 6, 1978, both parents stipulated to a continuance of the matter until November 2, 1978, and agreed that the district court's order granting the respondent father temporary custody of the children should remain in effect until a full hearing in the matter could be held. On October 31, 1978, the district court granted the appellant mother's attorney leave to withdraw Following the plenary hearing, the district court entered an order modifying the parties' decree of divorce to grant the respondent father permanent care, custody and control of the parties' five children. The district court concluded that appellant had neglected the needs of the children and that the best interests of the children would be served by modifying the original decree to grant the children's father permanent custody of the children subject to visitation rights of the mother. In its findings of fact made following the hearing, the court noted that while in their mother's custody the two school age children's school attendance had been extremely sporadic and that, despite several conferences between the mother and school authorities on the problem, the children's attendance did not improve. Neither child was promoted with her class at the end of the 1977-78 school year. Both children had continued to miss substantial amounts of school time when 1978-79 school year commenced until custody was obtained by their father on September 26, 1978. The court found that while in their father's custody the children had regularly attended school and had received assistance with their school work at home. The court found, as a result of its interviews with the children, that the children understood the nature of the court proceeding and that they expressed satisfaction with the home environment created by their natural father and new stepmother. As a result of the evidence received at the hearing and the visits with the children, the district court granted permanent custody of the children to the respondent father and granted the appellant mother specified visitation rights.

from the case on the grounds that appellant had not heeded his advice and had failed to maintain her financial commitments to him. This order extended the effect of the September 26, 1978, order until a hearing on respondent's motion for modification could be held. The November 2, 1978, hearing was vacated and reset for December 8, 1978. On December 8, 1978, the appellant mother again moved for a continuance to allow her new attorney to prepare. The plenary hearing was finally held on February 20, 1979, with both parents present and represented by counsel. Testimony by several witnesses was heard and, by agreement of the parties, the court visited with each child in chambers.

Appellant on appeal challenges the propriety of the district court's entry on September 26, 1978, of an ex parte order granting respondent temporary custody of the children pending a hearing on respondent's motion for modification of the divorce decree's child custody provisions. Appellant contends that consideration of the Department of Health & Welfare's affidavit and entry of the ex parte order deprived her of her right to custody of the children, granted by the divorce decree, without due process of law. She also argues that the district court's procedure was in violation of I.R.C.P. 6(c)(3) which requires that the court shall hear the testimony of interested parties in proceedings to modify child custody provisions of a divorce decree unless the parties have stipulated to modification of the decree.

The question presented by this appeal is a narrow one, i. e., whether the district court, on the non-custodial parent's motion to modify the child custody decree, erred in entering an order granting temporary custody of the minor children to the non-custodial parent upon a properly supported ex parte motion pending a full hearing, to be held within ten days. It is our opinion that I.C. § 32-705 ¹ and I.R.C.P. 65(g), read together, permit the district court to enter an ex parte order granting temporary custody to a non-custodial parent if the record before him indicates that such an order was necessary in the case, would be in the best interests of the children, and is followed within ten days by a full hearing on the merits of the non-custodial Due process is not a fixed concept requiring a specific procedural course in every situation. "(D)ue process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). Determination of the specific dictates of due process requires comparing the private interest which will be affected and the probable value of additional or alternative procedural safeguards with the risk of erroneous deprivation of the private interest through the procedures actually used and the governmental interest in the procedural safeguards utilized. E. g., Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). Although central to procedural due process is the right to notice and an opportunity to be heard at a meaningful time and in a meaningful manner, see e. g., Goldberg v. Kelly, supra, prehearing judicial intervention in a matter is not per se violative of state or federal due process requirements. For example, seizure of a debtor's property without notice to the debtor or opportunity for a preseizure hearing, upon application to a judicial officer by a creditor and submission of an affidavit setting out facts entitling the creditor to sequestration when state law provided for an immediate post seizure hearing, has been approved by the Supreme Court of the United States. Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974); see also Mathews v. Eldridge, supra (non-need based social welfare benefits may be terminated prior to hearing when recipient has opportunity for a post termination hearing on his or her right to receive benefits).

parent's motion. We further hold that if adequate justification for an ex parte order temporarily transferring custody to a non-custodial parent is shown and if a full hearing on the question of which parent should maintain custody pending a motion to modify a custody decree is provided within ten days, no due process violation appears. ²

Questions regarding custody of minor children are directed in the first instance to the discretion of the trial court and unless such discretion is abused the court's judgment in respect to custody will not be disturbed on appeal. Blakely v. Blakely, 100 Idaho 107, 594 P.2d 145 (1979); Koester v. Koester, 99 Idaho 654, 586 P.2d 1370 (1978); Strain v. Strain, 95 Idaho 904, 523 P.2d 36 (1974); Tomlinson v. Tomlinson, 93 Idaho 42, 454 P.2d 756 (1969). Where the district court exercises its discretion to award temporary custody to a non-custodial parent pending an immediate plenary hearing on a motion for modification of a child custody decree, our appellate review will be limited to determining whether the district court abused its discretion in entering the ex parte temporary order.

Provisions of a court order governing child custody are not final judgments and are not res judicata as to the issues determined. The district court maintains continuing jurisdiction to modify custody provisions whenever required by changed circumstances to insure the best interests and welfare of the children....