No. 79-8
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1980
I N RE THE MARRIAGE OF
CAMDEN ELAINE W I N N ,
P e t i t i o n e r and R e s p o n d e n t ,
-vs-
LESLIE NiND W I N N ,
Respondent a n d , A p p e l l a n t .
Appeal from: The D i s t r i c t C o u r t o f t h e N i n e t e e n t h J u d i c i a l
D i s t r i c t , I n and f o r t h e County o f L i n c o l n ,
The H o n o r a b l e R o b e r t C. H o l t e r , J u d g e p r e s i d i n g .
Counsel o f Record:
For A p p e l l a n t :
Murphy, Robinson, H e c k a t h o r n and P h i l l i p s ,
K a l i s p e l l , Montana
For Respondent:
Fennessy, C r o c k e r , Harmon and B o s t o c k , L i b b y ,
Montana
S u b m i t t e d on B r i e f s : J u n e 5 , 1980
Decided:OC~ z2 <..
J;50$
.
Filed: J&1 A h c, JJCJ
Mr. J u s t i c e D a n i e l J . S h e a d e l i v e r e d t h e O p i n i o n o f t h e C o u r t .
The f a t h e r , L e s l i e Rand Winn, a p p e a l s from a judgment of
t h e L i n c o l n County D i s t r i c t C o u r t d e n y i n g h i s p e t i t i o n t o m o d i f y
a custody decree. W affirm the District Court,
e b u t a l s o deny
t h e r e q u e s t of t h e w i f e t h a t s h e be awarded attorney fees for
expenses incurred i n defending t h i s appeal.
Camden E l a i n e Winn and L e s l i e Rand Winn w e r e married on
J u l y 2 7 , 1 9 7 3 i n T r o y , Montana, and d i v o r c e d on May 2 6 , 1 9 7 6 . A
daughter was born during the marriage and the Lincoln County
D i s t r i c t Court decree gave custody t o t h e mother. The f a t h e r
received reasonable v i s i t a t i o n r i g h t s .
On January 19, 1979, the father filed a petition for
m o d i f i c a t i o n of the custody decree, and a s k e d t h a t h e b e g i v e n
custody of t h e minor daughter. Shortly before, t h e m o t h e r had
moved t o N o r t h C a r o l i n a w i t h t h e d a u g h t e r t o be w i t h a man whom
she was to marry in May of that year. The original decree
provided that the mother first obtain permission from the
D i s t r i c t Court i f she intended t o e s t a b l i s h residence i n another
state. The m o t h e r f a i l e d t o do t h i s .
The e s s e n t i a l c o n t e n t i o n o f the father i n s u p p o r t of his
request for custody, was that the mother had changed her
r e s i d e n c e many times w h i l e l i v i n g i n t h e L i n c o l n C o u n t y a r e a ,
t h u s a d v e r s e l y a f f e c t i n g t h e c h i l d , and t h a t t h e m o t h e r had l i v e d
with other men or had other men living with her before her
remarriage. The t r i a l c o u r t a c c e p t e d n e i t h e r o f t h e s e a r g u m e n t s ;
nor do we.
Although t h e mother had moved many times in the general
v i c i n i t y o f L i b b y and K a l i s p e l l a f t e r t h e d i v o r c e and b e f o r e h e r
move t o N o r t h C a r o l i n a , i t was n o t e s t a b l i s h e d t h a t t h e s e moves
adversely affected the physical, mental, moral or emotional
h e a l t h o f t h e c h i l d a s r e q u i r e d by s e c t i o n 4 0 - 4 - 2 1 9 ( 1 ) , MCA. The
f a t h e r was n o t p r e v e n t e d f r o m v i s i t i n g h i s c h i l d b e c a u s e o f t h e s e
many moves.
The father did not prove that the mother's living with
o t h e r men b e f o r e h e r r e m a r r i a g e a d v e r s e l y a f f e c t e d t h e h e a l t h o f
the child so a s t o require a change in custody under section
40-4-219. See Foss v. Leifer ( 1 9 7 6 ) , 1 7 0 Mont. 97, 550 P.2d
1309, 1312. The e v i d e n c e , a t best, shows t h a t t h e mother may
h a v e t e m p o r a r i l y l i v e d w i t h o n e man o t h e r t h a n t h e man s h e i s now
married to. The e v i d e n c e e s t a b l i s h e s t h a t t h e m o t h e r ' s p r e s e n t
husband i n t e r a c t s w e l l with t h e c h i l d and t h a t h e i s n e a t and
clean. I t a p p e a r s t h a t h e i s employed. W cannot say t h a t the
e
trial court abused its discretion in finding that the child's
w e l f a r e was n o t a d v e r s e l y a f f e c t e d w i t h i n t h e meaning o f s e c t i o n
40-4-219.
N o n e t h e l e s s , t h i s c a s e i l l u s t r a t e s a p r o b l e m w h i c h may v e r y
w e l l g e t worse. By n o t seeking t h e c o u r t ' s permission before
removing the child from the state, the mother forced her
ex-husband to take some action in court to reestablish his
relationship with h i s daughter.
The original decree allowed the father to visit his
d a u g h t e r upon r e a s o n a b l e n o t i c e a s o f t e n a s h e w i s h e d a s l o n g a s
t h e v i s i t s did n o t unreasonably i n t e r f e r e with t h e wife. That
p o r t i o n of t h e d e c r e e was e f f e c t i v e l y n u l l i f i e d when t h e m o t h e r
moved t o North C a r o l i n a with her child. The f a t h e r was l e f t
with a visitation decree which was virtually meaningless.
U n d o u b t e d l y i t was t o p r e v e n t t h i s k i n d o f s i t u a t i o n w h i c h c a u s e d
t h e t r i a l c o u r t i n t h e o r i g i n a l o r d e r t o r e q u i r e t h e mother to
g e t permission f r o m t h e c o u r t b e f o r e moving w i t h t h e c h i l d to
another s t a t e . A l t h o u g h w e do n o t s u g g e s t t h a t t h e t r i a l c o u r t
could, a b s e n t some p e r s u a s i v e e v i d e n c e , p r e v e n t t h e m o t h e r from
moving t o a n o t h e r s t a t e with her child, it goes without saying
t h a t had t h e m o t h e r g i v e n a d v a n c e n o t i c e , t h e f a t h e r ' s v i s i t a t i o n
p r i v i l e g e s c o u l d have been a c c o r d i n g l y m o d i f i e d . B u t when the
mother left without first getting the decree modified as to
visitation, she forced the father's hand. The only meaningful
option he had was to force the issue by seeking a change in
custody. Although he was not successful, he at least obtained a
change in visitation to reflect the changed geographical distance
between himself and his daughter. The trial court ordered that
the father have custody for six weeks every summer, during
alternate Christmas and Easter holidays and at other times
convenient to the father and which would not interfere with the
schooling or other activities of the child.
District courts have the means to compel compliance with
their orders concerning removal of children from the state. A
trial court may assert continued power over domestic matters by
requiring a bond conditioned upon a party's compliance with the
court order. See Grimditch v. Grimditch (1951), 71 Ariz. 237,
226 P.2d 142 (permitting, under the facts, removal without bond);
Wallace v. Wallace (1932), 92 Mont. 489, 15 P.2d 915, 918
(security can be required to enforce an alimony decree). The
trial court may also hold in contempt a parent who violates an
order to secure court approval before removing a child from the
state. Ex Parte Sellers (1948), 250 Ala. 87, 33 So.2d 349;
Benson v. Benson (1948), 121 Mont. 439, 193 P.2d 827, 829
(dictum); see also Kramer v. Kramer (1978), 176 Mont. 362, 578
P.2d 317, 318. We suggest that the trial court, in appropriate
cases, employ these alternatives.
The mother contends that this appeal is frivolous and asks
us to assess a penalty against the father pursuant to Rule 32,
M.R.App.Civ.P., or, alternatively, to award her attorney fees
pursuant to section 40-4-110, MCA, because she cannot afford to
pay her own attorney. She did not make this request at the trial
level, and we are not inclined to act favorably on this request
here. We cannot ignore the fact that it was the mother who moved
to North Carolina without first getting a change in the
visitation privileges, and thus forced the father to initiate the
present litigation. Essentially, he had no other choice. Under
the circumstances, the mother is not in an equitable position to
argue that the father should pay her attorney fees.
The order refusing to grant custody to the father is
affirmed.
y&
d & J t e
We Concur :
C h b f Justice