Trudgen v. Trudgen, 9678

Citation329 P.2d 225,134 Mont. 174
Decision Date30 July 1958
Docket NumberNo. 9678,9678
PartiesSharon Kay TRUDGEN, Plaintiff and Respondent, v. Dale TRUDGEN, Defendant and Appellant.
CourtUnited States State Supreme Court of Montana

Raymond F. Gray, Missoula, for appellant.

Doyle & Heinz, Richard P. Heinz and J. A. Turnage, Polson, Richard P. Heinz argued orally, for respondent.

CASTLES, Justice.

This is an appeal by defendant, a divorced father, hereafter referred to as the father, from the last of a series of child custody orders made by the district court of the fourth judicial district in and for Lake County; the order appealed from having been entered at Polson, on January 17, 1956. The mother, plaintiff in the divorce action, was granted sole custody of the children and is respondent here. Interim orders divided custody. Sole custody was restored to her by the order appealed from.

Two children of the parties are involved, a girl, Chery Lynn Trudgen, born October 9, 1953, and a boy, Leslie Kent Trudgen, born February 25, 1955. It is with their welfare this court is primarily concerned. Thus, other things being equal, custody in the mother is to be preferred because these children are of such tender years. R.C.M.1947, § 91-4515, subd. 2; Bayers v. Bayers, 129 Mont. 1, 281 P.2d 506.

To safeguard the welfare of children, but neither to reward nor punish parents, child custody orders are interlocutory in nature and for good cause shown, are modifiable in the sound discretion of the district court. R.C.M.1947, § 21-138. In the absence of a strong showing of abuse of that discretion, custody orders should not be disturbed on appeal. Pearce v. Pearce, 30 Mont. 269, 76 P. 289; Kane v. Kane, 53 Mont. 519, 165 P. 457; Ex parte Bourquin, 88 Mont. 118, 290 P. 250; Oberosler v. Oberosler, 128 Mont. 140, 272 P.2d 1005.

The record indicates that, with exceptions no longer material, the parents and their counsel appeared at all hearings. The moral fitness of the parents is not questioned. Nothing before us indicates either has remarried.

The original decree of divorce was entered in Lake County on May 17, 1955. At that time, the parties and all grandparents resided near Polson. The children were then about nineteen months and three months of age, respectively. Custody was decreed to the mother without limitation, subject only to right of reasonable visitation in the father. An attorney's fee for securing the divorce, costs and support money were allowed to the mother. Support money has since been increased to $90 per month.

The divorce was granted by the Honorable Albert Besancon, then one of the two resident judges for the fourth judicial district. Under rules of court for that district, resident judges sit in Lake County on specified week days during half of each year, alternately beginning January 2nd and July 1st. As a consequence, Judge Besancon heard the divorce action and granted the mother sole custody of the children. The Honorable C. E. Comer heard the intervening motions, increased support money and ordered that custody of the older child be divided between the parents. In a subsequent order Judge Besancon restored sole custody of both children to the mother.

About two months after the divorce decree, the mother moved with her two children to Spokane, Washington. The father continued to reside in Lake County, making his home with his parents. His later custody of the older child was exercised there within these grandparents' home.

On November 8, 1955, the first order modifying the divorce decree was entered. That order specifically authorized the mother to have her children with her in the State of Washington, where she was then residing. Such order required that she return the older child to Lake County at three month intervals for one week of custody by the father, the first period to begin on February 8, 1956.

While this order was in effect, and during the 1955-56 Christmas holidays, the mother returned with her children to visit in the home of her parents near Polson. During the morning of December 27, 1955, on motion of counsel for the father, supported by statements to the court made by the father's parents, but with no notice to the mother and over the objections of her counsel of record who was present in court and protested the lack of notice, the decree as modified November 8, 1955, was further modified to give immediate custody of the older child to the father for one week. Under this order the sheriff of Lake County took the older child from its mother during its lunch period and brought the child into court. The child was not yet fifteen months of age. The sheriff described the scene at the maternal grandparents' home as 'quite a commotion.'

Later the same day after the mother and her counsel of record, joined by associate counsel retained during the noon hour, had protested to the judge in chambers that the older child had been terrified by what had occurred and that both children had to be returned by December 29th for booster immunization shots, to Spokane, Washington, a distance of some 250 miles and requiring about twelve hours traveltime by public transportation, the court shortened the father's period of immediate custody of the older child to one day. However, the court ordered the mother to return the older child to Lake County during February 1956 for custody by the maternal grandfather. The maternal grandfather was ordered to deliver the older child at that time to the court so that such order granting the father custody of the child for a period of one week beginning February 8, 1956, together with six days additional time, might be carried out. Much was made in oral argument of a so-called stipulation and agreement as to custody during the 1955-56 Christmas period, but none of this is relevant to the problem at hand.

On January 10, 1956, while the above order was in effect, citation was issued to the father requiring him to appear and show cause why the mother should not have sole custody of both children, reimbursement for expense of travel to a hearing set for January 17, 1956, and allowance of a fee for additional counsel to represent her. Citation was supported by the mother's affidavit. The father traversed by counter-affidavit. As with the so-called stipulation, recital of charges and counter-charges here would serve no purpose.

At the January 17th hearing the court allowed the mother $50 for her travel from Spokane and loss of time, $100 for additional counsel fees, and restored sole custody of both children to her as originally had been decreed. The modifying order specifically recited that the mother would have the 'right and privilege of residing wherever she may select' subject to reasonable visitation by the father.

To support a modification order within three weeks of a prior modification which had been ordered less than seven weeks following a previous modification, counsel for the mother argued that nervousness induced in the older child by changes of custody was in itself a change of condition sufficient to warrant the hearing of January 17th and the modifying order there made returning sole custody to the mother. Counsel for the father objected that within the three-week period following the date of the order of modification then in effect, there had been no change in the circumstances of the parties sufficiently material to justify further modification. He argued that the privilege granted the mother, of taking the children out of the state, nullified the right of visitation accorded him in the original decree of divorce, and would have the same effect if repeated in the order of modification being sought. He asked time to file proposed findings of fact and conclusions of law, with a supporting brief. His objections were summarily overruled; the court instructing the mother to 'take your children and go back to Spokane, or wherever you want to live.'

It is from this order of January 17, 1956, that appeal is taken. The appellant father specifies error in the court's holding that material change had taken place; in his denying request for time to file proposed findings; in directing the mother to take the children out of the court's jurisdiction; and in allowing additional counsel fees.

1. Was there a material change in conditions?

It is the rule in this jurisdiction that while 'a decree fixing the custody of children is final upon the conditions then existing, when it is shown that these conditions have changed, the court or judge then has authority to modify the original decree in respect to them. * * * In proceedings of this nature the welfare of the children is the paramount consideration.' Jewett v. Jewett, 73 Mont. 591, 595 237 P. 702, 703.

This rule was stated for the full court more than a quarter century ago and was reiterated in Bayers v. Bayers, supra, 129 Mont. at page 6, 281 P.2d at page 509, where it is pointed out that 'otherwise either parent of a child or children could constantly harass the other with litigation none of which would be conducive to the best interests of the child.' Welfare of children is likewise given as the paramount consideration in Wolz v. Wolz, 110 Mont. 458, 102 P.2d 22, so that in principle the ruling in the Jewett case, the dicta in the Wolz case, and the opinion in the Bayers case are in accord. The facts of the present appeal in themselves confirm the wisdom of the rule. Furthermore, 'Each case must be decided on its own peculiar facts and circumstances.' Haynes v. Fillner, 106 Mont. 59, 71, 75 P.2d 802, 806.

'There must be a substantial change of circumstances * * * There is no fixed standard to determine * * * such substantial change * * * the welfare and best interests of the child are the primary concern * * * the substantiality of the change of circumstances is tested with respect to the child's welfare rather than the parents' welfare.' 17A Am.Jur., Divorce and Separation, § 839, p. 32. See also 27 C.J.S. Divor...

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