Wenz v. Schwartze, 14228
Decision Date | 11 September 1979 |
Docket Number | No. 14228,14228 |
Citation | 36 St.Rep. 1360,598 P.2d 1086,183 Mont. 166 |
Parties | Emil WENZ et al., Plaintiffs and Respondents, v. Diane SCHWARTZE et al., Defendants and Appellants. |
Court | Montana Supreme Court |
Smith, Emmons, Baillie & Walsh, James R. Walsh, argued, Great Falls, for defendants and appellants.
Marra, Wenz, Iwen & Johnson, Joseph Marra argued and Warren Wenz argued, Great Falls, for plaintiffs and respondents.
Carroll Blend argued, Great Falls, for minor child.
The District Court of Pondera County terminated the parental rights of a father and mother, both residents of California, and granted custody of their daughter to her aunt and uncle, residents of Montana. The father appeals.
The subject of this appeal is a minor child who was born in California in 1969. Her parents separated some eighteen months after her birth and obtained a final dissolution of marriage on January 13, 1972. The Los Angeles County Superior Court, in an uncontested proceeding, granted custody to the mother and allowed reasonable visitation to the father. It also ordered the father to pay weekly child support of $25 and to maintain medical and life insurance policies for his daughter's benefit.
Prior to the dissolution, the mother had separated from the father and had begun living with another man, alternatively known as Bridges, Martin, or Leonard. While the parents' living condition prior to their separation had not been ideal, the conditions under which the mother and child lived grew steadily worse in the company of Bridges. The mother, child, and Bridges lived in a variety of houses, and finally in a run-down apartment with little furniture, little food, and much questionable company.
As time went on and conditions worsened for the mother and child, the child's paternal grandmother, who lived in the area, became concerned for the child's welfare. She made frequent visits to the mother's apartment and often kept the child on weekends. In late 1973 after her mother and Bridges had moved into an apartment building in Venice, California, the child began relating information which caused her grandmother considerable concern. She described in particular that her mother and Bridges had received, on occasion, hypodermic injections from some unknown man, and that she was unable to awaken her mother after she had received those injections. She also told how she had been repeatedly subjected to sexual abuse by Bridges. The grandmother testified that the child's complaints of abuse were ongoing and confirmed that the child had visible physical indications of abuse.
The grandmother shared this information with the child's father and his new wife. When questioned by the father, the child first refused to answer but later gave an affirmative response. She also responded positively to the father's new wife. The father next questioned the child's mother, who denied any such activities. His testimony indicates that he cannot remember whether he ever confronted Bridges with this information.
In November 1973 the father spoke to Jerome Kessler, an attorney in Los Angeles, about a change of custody. According to Kessler, the father said that his former wife "was a hippie who wanted to go on welfare" and the father "expressed an interest at some point obtaining custody of his daughter." Kessler told the father at that time that he doubted whether the father had ample grounds to obtain a modification of the decree.
The father again consulted Kessler in February 1974, and, according to Kessler, told him of at least one of the alleged incidents of abuse. Kessler testified that he informed the father that some form of proof would be necessary, and that a lawsuit to change custody would be difficult to maintain in the absence of an eyewitness to the mistreatment of the child.
A deposition by Linn Davis, a paralegal in Kessler's office, indicates that the father spoke with her on numerous occasions regarding a change of custody. However, her testimony indicates that the father's reasons for desiring custody remained general until the early part of 1975. "At first it was just an expression of desire for the child." In January or February, according to Davis, the father complained that his former wife was a "hippie, an irresponsible woman who did not seem to care about the suitability of the environment of the child." In February 1975 the father called to ask " 'Can I get custody if (the mother) is smoking marijuana?' " According to Davis, it was March 1975 when the father first related anything to her about any alleged abuse of his daughter.
During the summer of 1974, the mother permitted the paternal grandmother to take the child to Oregon to stay at her ranch home there. In early July, however, in response to a request from the child's maternal grandmother in Billings, Montana, the child was put on a plane to Billings so she could spent part of the summer with her mother's relatives in Montana. When she arrived in Billings, the maternal grandmother noticed that the child's hair was matted with blood and pus around one ear. She had heard earlier from the other grandmother that the child had ear problems, but that the mother was unwilling to have the condition treated by a physician. The maternal grandmother obtained medical assistance for the child and by the time she returned to Los Angeles in August the condition, a bad infection, had cleared up.
The maternal grandmother accompanied the child on the return trip to Los Angeles and spent about three days in the mother's apartment. During that visit she observed the deprived conditions under which her daughter and granddaughter lived. She also observed the father in the company of the mother and Bridges and noticed that the father appeared friendly toward Bridges.
The child remained in the mother's custody for the next several months, but her paternal grandmother continued to care for her on weekends. The grandmother testified that the child again complained of abuse by Bridges and that she kept the child as much as possible to keep her away from Bridges.
In May 1975 the paternal grandmother, who had remarried, prepared to move to Oregon with her husband. On May 12, shortly after she had left the child with her mother in Venice, she received a call from the mother who told her to come back and get the child "before (Bridges) kills her." When she arrived back at the mother's apartment, the child's clothing was all in the hallway, and the mother told the grandmother, It appeared to the grandmother that Bridges had learned that the child had told about his abuse of her. She also testified that the mother referred to her child as a liar.
The grandmother and her husband kept the child for the next month as they prepared for an extended tour through the western states and Canada. They arrived at the residence of the child's aunt and uncle in Pondera County, Montana, on June 15, 1975, and there shared the full story of the child's life with her mother and Bridges. The child's aunt testified that when she and her husband heard the grandmother's story they were horrified and agreed with her that the child should not go back to her mother.
The aunt and uncle contacted the wife's cousin, an attorney in Great Falls, Montana, who agreed to come to their ranch to talk the situation over. At the attorney's request, the grandmother prepared a letter detailing all she knew of the child's situation, closing with a plea that someone would help her son, the father, gain custody of the child. The attorney then telephoned the father in California who told him that he was to meet with Kessler in Los Angeles the next day. According to an affidavit prepared by the attorney, he told the father that the child's aunt and uncle were considering filing for custody.
On the following day the grandmother and her husband left for Canada, leaving the child's clothing, medical records, and birth certificate with her aunt and uncle. The grandmother testified that she understood the child would be returned to her in Oregon after she got home from Canada. That same day the Great Falls attorney telephoned Kessler in Los Angeles and discussed the aunt and uncle's desire to keep the child away from her mother, and their doubts concerning the father's willingness or ability to care for the child. He learned from Kessler that the father had not yet filed for the child's custody and stated that Kessler told him that the father was not able to make up his mind about whether to seek custody.
The next day, June 18, the Great Falls attorney again called Kessler to inform him that the aunt and uncle had decided to seek permanent custody and that a complaint would be filed in Pondera County on June 20, when the child's maternal grandparents could come from Billings, Montana, to sign it. He further informed Kessler that the aunt and uncle would have a temporary custody and restraining order issued to them at that same time. The order granting temporary custody to the aunt and uncle was signed on June 19, 1975.
On June 19, 1975, the father, having been informed that an action was about to be filed in Montana, filed a separate action in Los Angeles County to have custody changed to himself, alleging that the mother was unfit because she had permitted the child to be abused. He subsequently obtained a stipulation from the mother agreeing to a change of custody and on July 7 the Los Angeles County Superior Court granted custody to the father.
On June 24, 1975, the grandmother, father, and a friend of the father's appeared at the aunt and uncle's ranch in Pondera County and took the child away, intending to fly her back to California. With the assistance of the sheriff, however, the aunt and uncle recovered the child that same evening.
Two years later, in August 1977, the Pondera...
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