State ex rel. Graveley v. District Court of Third Judicial Dist. in and for Powell County

Decision Date16 November 1946
Docket Number8682.
CourtMontana Supreme Court

As Amended on Denial of Rehearing December 4, 1946.

Proceeding for a writ of supervisory control by the State of Montana, on the relation of Daniel Marvin Graveley, against the District Court of the Third Judicial District of the State of Montana in and for the County of Powell, and the Honorable William R Taylor, Judge thereof, respondents, to annul and vacate an order by the respondents modifying a divorce decree.

Writ issued for modification of order in conformance with opinion.

Loble & Loble, of Helena, and S. P. Wilson, of Deer Lodge, for appellant.

W. E Keeley, of Deer Lodge, for respondent.


This proceeding invokes the supervisory power of this court to annul and vacate an order made by respondent court modifying a decree of divorce.

The salient facts are these: Relator and Alice Myrle Graveley were formerly husband and wife; on October 7, 1942, a decree of divorce was rendered in the district court of Powell county in an action brought by the wife and based upon charges of cruelty; the defendant in the divorce action, relator here, appeared in the action by demurrer but declined to further plead after the demurrer was overruled; the decree awarded the care and custody of Charles Russell Graveley, a child of the marriage, born July 14, 1941, to the mother; required the husband to pay $75 a month alimony and to deliver certain personal properly to the wife.

The decree recited that 'it is expected that there will be another baby born, the issue of such marriage' and ordered that the hospital and medical expense attendant upon the birth of the expected child be paid by the husband.

It provided that the mother 'shall not, without an order by this court made after reasonable notice to defendant, remove such child from the state of Montana, nor shall she, without a like order from this court made after due notice to the defendant, place such child in the care or custody of some person other than herself.'

The decree allowed the husband to take the child into his own home and into his care and custody for one week during each calendar month, and in case defendant be inducted into the military service then the privilege of the custody of the child each calendar month was extended to Rhoda Graveley, the mother of relator.

On June 15, 1946, Alice Myrle Graveley filed her petition for modification of the decree in the following respects: First, that the provision for the payment of $75 per month alimony to petitioner be changed to read as being for the maintenance of the minor children. Second, that she be awarded the custody of Dan Marvin Graveley, Jr., born on February 27, 1943, and after the decree of divorce was rendered. Third, that she be awarded temporary alimony for two years at $50 per month. Fourth, that she be permitted to remove the children to the state of California where she desires to take a two-year course in a beautician's school. Fifth, that during the hours while she is attending school for the two years, a nursery school in California supervised by a fit and proper person, or some other fit and proper person, may have the temporary custody and control of the children, and after the two-year period of schooling she intended to seek employment in California as a beautician and sought the right to then place the children in the temporary custody of some proper and responsible person while she was working.

The court, after a hearing on the petition, granted petitioner the permission to remove to California with her children and ordered relator to pay $125 per month instead of $75 as originally ordered, and ordered relator to pay to petitioner $100 as attorneys' fee and awarded to petitioner the custody of the child born after the decree of divorce was entered.

Is this a proper case for the exercise of the supervisory powers of this Court to review the action of the district court? The order complained of, it is true, is reviewable by an appeal. However, relator contends that the remedy by appeal is inadequate because of the difficulty attendant upon having the children returned to Montana in case the order should be reversed on appeal and in case the mother should decline to abide by the result of the appeal.

The mere fact that the ruling might be reviewed on appeal is no ground for withholding the remedy by supervisory control, if the remedy by appeal be inadequate. State ex rel. Regis v. District Court, 102 Mont. 74, 55 P.2d 1295; State ex rel. State Bank of Townsend v. District Court, 94 Mont. 551, 25 P.2d 396; In re Weston, 28 Mont. 207, 72 P. 512. The case is one warranting review by this court of the order complained of.

It is the contention of relator that the court erred in granting petitioner permission to take the children from the state of Montana. He contends that the petition and the evidence was insufficient to warrant modification of the decree. He contends that in view of the case of State ex rel. Cash v. District Court, 58 Mont. 316, 195 P. 549, it is not proper in any case to permit the children to be removed from the state of Montana. That case presented a different question from the one here presented. There it was sought to remove the children from the state before an order was made regarding their custody. Their absence from the state might have deprived the court of power to make an effective order regarding their custody. That case does not hold that it is improper in any case to permit the children to be taken without the state. The rule throughout the country is to permit the removal when it is to the best interest of the children. In 27 C.J.S., Divorce, § 313, p. 1179, it is said: 'It is against the policy of the law to permit the removal of the child from the jurisdiction unless its welfare would be better subserved thereby and ordinarily custody should not be awarded to a nonresident or to one contemplating immediate removal from the state.' Would the welfare of these children be better subserved by their removal from the state of Montana to the state of California?

We shall first consider the case from the standpoint of the allegations in the petition, so far as they have to do with the necessity or advisability of taking the children out of the state of Montana.

The petition for modification alleges that petitioner has no trade or profession but has an opportunity to take a two-year course of schooling to become a beautician in the state of California where she may reside alone or with her sister during the two-year period and where she may have the children under her personal supervision and control except during the hours when she would be attending school, during which time the children would be placed in a nursery school; that after she completes the beautician's course she will be able to make large sums of money at her profession and will be able to pay for her own care and support and for a portion of the care and maintenance of the children.

The petition sets forth that petitioner would agree that even though she and the children are without the state of Montana, the court would have jurisdiction over the children and that she would be willing to arrange that relator might see and visit the children at his own expense, under such arrangement as the court might consider fair and just.

It is to be noted that the petition contains nothing to indicate that the best interests of the children require their removal to California. The petition is based solely upon the personal desires of the mother to first take a two-year course in school and thereafter to embark upon a career in which she hopes to make large sums of money. the welfare of the children is not the inducement for the contemplated change but their welfare is affected only by the fact that, as now, they would have the personal supervision and care of the mother when the mother is not in school or attending to the work involved in the business after the two years of schooling.

Defendant objected to the introduction of any evidence upon the ground that the petition failed to allege grounds for the modification of the decree. The objection being overruled, evidence was introduced by petitioner which in some particulars amplified the petition.

From the evidence it appears that petitioner had been working for the reilroad company in Deer Lodge until the time of the hearing when she had been laid off because the company was reducing its force. She had received $175 per month for some months and as much as $214 per month when she was discharged. Before she secured employment with the railroad company she worked in the registry office for $115 per month. She lives with her mother and pays rent and pays her for taking care of the children. Her mother is 65 years of age and, according to plaintiff's testimony, is unable to take care of the children. She said her mother is 'heavy and she isn't able to chase after them.' In addition to petitioner and her children living with petitioner's mother, five children of a deceased sister of petitioner for the past four months have been living with her and their father pays $20 per week for their care. Relator had been in the armed forces from the time of the decree until the latter part of August, 1945. Petitioner received regular allotments of $92 per month which included the $75 per month alimony while relator was overseas. Relator also sent her $100 with which to buy something for herself. Since his discharge he has paid the alimony regularly. Relator is a native of Powell county where his parents still reside. Petitioner allowed the children to visit...

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1 cases
  • Aiken v. Aiken
    • United States
    • Montana Supreme Court
    • October 10, 1947
    ...discretion. State ex rel. Graveley v. District Court, Mont., 174 P.2d 565, 568. This case is governed by the rule which we recognized in the Graveley case, wherein we said: 'This case is comparable to those wherein the mother is obliged to move to another state because of her subsequent mar......

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