NO. 80-129
I N THE SUPREME COURT O THE STATE OF M N A A
F OTN
1980
IN THE MARRIAGE OF
ELAINE KIEFFER Q U I N N ,
P e t i t i o n e r and A p p e l l a n t ,
-vs-
DANIEL J. Q U I N N ,
Respondent and R e s p o n d e n t .
Appeal from: D i s t r i c t Court o f t h e F i f 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 B e a v e r h e a d , The Hon-
o r a b l e Frank B l a i r , Judge p r e s i d i n g .
Q o u n s e l o f Record:
For Appellant:
M o r r o w , S e d i v y , Olson & Scully, Bozeman, Montana
F o r Respondent:
Cummins a n d E r b , H e l e n a , Montana
S u b m i t t e d on B r i e f s : November 2 6 , 1980
Decided: J A N 2 1 1981
Mr. Justice John C. Sheehy delivering the Opinion of the
Court.
Copetitioner Elaine Quinn appeals from an order of
contempt of court in the Fifth Judicial District Court,
Beaverhead County and from the court order dismissing her
petition for modification of the decree of dissolution which
ended her marriage to copetitioner Daniel Quinn.
On September 15, 1978, Elaine and Daniel Quinn filed a
joint petition for dissolution of their marriage in the
Beaverhead County District Court. One month later, the
court entered a decree of dissolution. The court incorporated
into its decree the terms of a written separation agreement
made by the Quinns which divided their property and specified
terms of custody regarding their children--Deirdre, Colby
and Carson Quinn. The child custody provisions of the
Quinn's separation agreement provide as follows:
"6. It is hereby agreed that Husband and Wife
are the fit and proper persons to be granted the
joint care, custody and control of the minor
children of the parties. It is understood and
agreed that until the said children reach legal
age or are otherwise emanicipated, Husband will
most probably exercise the greater amount of
care and control of said children, since the
children will continue to reside with Husband
at the family home near Dillon, Montana. This
arrangement is not to be construed against Wife
in any way.
"7. It is specifically agreed that neither Husband
nor Wife shall remove the minor children from the
State of Montana without the express written
consent of the other party and upon such terms and
conditions for visitation by the other party as
may thereupon be agreed upon by amendment to this
Agreement.
"8. Notwithstanding anything set forth herein,
it is fully understood and agreed that each of the
parties may exercise their respective custody rights
in any way, provided that such exercise of rights
does not unduly inconvenience the other party, and
is mutually satisfactory to the parties. The parties
mutually agree that the wishes of the said minor
children shall be the deciding factor in this regard."
One y e a r a f t e r t h e e n t r y of t h i s d e c r e e o f d i s s o l u t i o n
and t h e e x e c u t i o n o f t h i s c u s t o d y agreement, E l a i n e Q u i n n
f i l e d a p e t i t i o n t o modify t h e c h i l d c u s t o d y arrangement. She
requested t h a t t h e c o u r t terminate her husband's custody r i g h t s
and t h a t c u s t o d y of t h e c h i l d r e n be p l a c e d w i t h h e r a l o n e . I n an
accompanying a f f i d a v i t , s h e a l l e g e d t h a t t h e b e s t i n t e r e s t s
of t h e c h i l d r e n were n o t b e i n g s e r v e d by t h e p r e s e n t c u s t o d y
arrangement.
A t t h e t i m e E l a i n e Quinn f i l e d h e r m o d i f i c a t i o n p e t i t i o n ,
s h e was l i v i n g i n Bozeman, Montana, and a t t e n d i n g Montana
S t a t e University. She had p h y s i c a l c u s t o d y of Carson Q u i n n .
D e i r d r e and Colby Quinn w e r e s t a y i n g w i t h t h e i r f a t h e r a t
t h e f a m i l y home n e a r D i l l o n , Montana. Since t h e divorce,
however, a l l t h r e e c h i l d r e n have been p a s s e d back and f o r t h
between p a r e n t s , a number o f t i m e s .
I n r e s p o n s e t o t h e m o d i f i c a t i o n p e t i t i o n and i n an
a t t e m p t t o r e c o v e r Carson from h i s ex-life, D a n i e l moved t h e
D i s t r i c t C o u r t t o h o l d a h e a r i n g r e q u i r i n g E l a i n e t o show
c a u s e why s h e s h o u l d n o t b e h e l d i n contempt of c o u r t .
D a n i e l c l a i m e d t h a t by t h e t e r m s of t h e s e p a r a t i o n agreement,
he was awarded s o l e c u s t o d y of a l l t h r e e c h i l d r e n . He
contended t h a t h i s w i f e was v i o l a t i n g t h e i r agreement and
t h e c o u r t d e c r e e by k e e p i n g Carson Quinn i n Bozeman w i t h o u t
h i s permission. The D i s t r i c t C o u r t a g r e e d w i t h D a n i e l ' s
i n t e r p r e t a t i o n of t h e agreement and found E l a i n e i n contempt
of c o u r t f o r n o t r e t u r n i n g Carson t o D i l l o n . T h i s contempt
o r d e r w a s s t a y e d by t h e c o u r t pending i t s d e c i s i o n r e g a r d i n g
Elaine's modification p e t i t i o n .
On F e b r u a r y 1 9 , 1980, t h e C o u r t h e l d a h e a r i n g on t h e
modification p e t i t i o n . Following t h e h e a r i n g , t h e c o u r t
e n t e r e d f i n d i n g s of f a c t , c o n c l u s i o n s of law and a d e c r e e
d i s m i s s i n g E l a i n e ' s r e q u e s t t o change t h e p a r t i e s ' c h i l d
custody arrangement. Findings of fact nos. I11 and V made by
the court include:
"That the provisions of the child custody
Agreement awarded custody of the three (3)
minor children, Deirdre P. Quinn, Colby S.
Quinn and Carson K. Quinn, to Daniel Quinn
and allowed reasonable visitation to Elaine
Quinn;
"That Daniel Quinn has petitioned this Court
for an Order holding Elaine Quinn in Contempt
for failure to return the youngest child, Carson
Quinn, as required by the Agreement incorporated
in the Decree of Dissolution;"
In her appeal following the entry of the court's decree,
Elaine Quinn presents a number of issues for our review
concerning both the contempt order and the dismissal order.
We accept review of the court's dismissal of the modification
petition as an appeal from the District Court, and we accept
review of the court's contempt of court order as a request
for review by writ of certiorari. We reverse both the
decree of the District Court and the contempt of court
order.
As we read the Quinn's separation agreement, Daniel and
Elaine Quinn were awarded joint custody of their children.
The District Court erred in finding that the agreement gave
only Daniel Quinn the rights of legal and physical custody
of the Quinn children. The agreement clearly reads that ". . .
Husband and Wife are . . . to be granted the joint care,
custody and control of the minor children . . ." Montana
courts are required by statute to interpret dissolution of
marriage agreements by the law of contracts. Section 40-4-
201(5), MCA. If the language used in a contract is clear
and explicit, it controls the contract's interpretation.
Section 28-3-401, MCA. The District Court's finuings of
fact nos. 111 and V are clearly erroneous and must, be
reversed. Rule 52(a), M.R.Civ.P. The District Court contempt
-4-
of court order must also be reversed because Elaine Quinn
committed no act or omission contemptuous of the authority
of the court by keeping her son with her pursuant to the
joint custody agreement. See, section 3-1-501, MCA.
We remand this case to the District Court for an additional
hearing to determine whether the best interests of Deirdre,
Colby and Carson Quinn are being served by the present joint
custody arrangement. We recognize there are advantages in
the joint custody alternative to the single parent custody/non-
custodial parent visitation arrangement, but there are also
important disadvantages to this alternative. In this case,
for example, with the parents living a distance apart, the
joint custody arrangement appears only to be fostering
antagonism between Daniel and Elaine Quinn and instability
in the childrens home environment.
Reversed and remanded.
We Concur:
Chief Justice
/'-
.............................
Justices
This case was submitted prior to January 5, 1981.