No. 84-534
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
IN RE THE MARRIAGE OF
COLLEEN M. STOUT,
Petitioner and Appellant,
and
WADE E. STOUT,
Respondent and Respondent.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Beaverhead,
The Honorable Frank Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Dooling Law Office, Dillon, Montana
For Respondent:
Chester L. Jones, Virginia City, Montana
Submitted on Briefs: May 3, 1985
Decided: June 13, 1985
Filed: I ,j 1985
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
This is an appeal from an order of the District Court of
the Fifth Judicial District, Beaverhead County, granting
change of custody of the parties h i n o r child, Laurie, from
the appellant Colleen Stout to the respondent Wade Stout.
We affirm.
A decree of dissolution was entered on November 9, 1982
dissolving the parties' marriage but specifically reserving
the issues of custody, child support, visitation, maintenance
and the division of property. On May 31, 1983, the parties
executed a property settlement, child custody and child
support agreement, and on June I-, 1983 the District Court
approved this agreement and incorporated it in the
dissolution d-ecree. Custody of the minor child wa.s awarded
to the wife, Colleen Stout, and the husband was allowed
visitation privileges which were set forth in detail.
Husband was required to pay $150 per month for child support.
Appellant Colleen Stout refused to let the respondent
exercise his visitation privileges as required by the decree.
Respondent moved for an order to show cause why he was denied
visitation and why Colleen should not be held in contempt of
court. After a closed hearing on February 1, 1984, the
District Court entered an order temporarily modifying the
dissolution decree. The order reflected a compromise
agreement between the parties and provided that Colleen allow
Wad-e to visit the minor child but that he not be allowed to
keep the child overnight. The court ordered Marjean Wagner,
R.N. to continue to monitor the entire situation. The court
recommended that b o t h parties seek counseling.
On April 17, 1.984, Wade moved the District Court again
for an order requiring Colleen to show cause why she has not
complied with the visitation provisions of the temporary
order issued on Februa.ry 1, 1984 and why she should not be
held in contempt of court. An order was issued but Colleen
was not served so no hearing was held. On May 11, 1984, Wa.de
filed a petition for modification of the dissolution decree
seeking a change in custody. The petition was duly verified
and alleged that there was a material change in circumstances
that affected the best interests of the child and that the
harm caused by the requested change was outweighed by the
advantages of the change. The petition alleged that Colleen
has a severe alcohol abuse problem, was committed to the
Gal-en State Hospital for treatment and that she removed the
minor child from the jurisdiction of the court without notice
to Wade.
Several orders to show cause were issued by the court
but none were served due to the inability to locate Colleen.
On June 29, 1984, an identical order to show cause was issued
by the Clerk of the District Court at the direction of the
ludge and properly served on Colleen. A hearing was set for
July 13, 1984. On July 12, 1984, Colleen moved to dismiss
Wade's petition on the grounds that the court lacked
lurisdiction or in the alternative that the petition did not
state a claim upon which relief could be granted. The motion
was accompanied by a brief.
The court vacated the hearing set for July 13, 1984 and
set another hearing for July 25, 1984. At this hearing the
court took under advisement Colleen's motion to dismiss and
granted Wade time to file a brief in response to the motion.
The court heard testimony from Wade, Colleen, Dale Samuel, an
alcohol counselor, and Joseph Albro, a social. worker,
concerning the merits of the case. The court appointed
Robert Dwyer as attorney for the minor child.
Another hearing was held on August 8, 1984. Joseph
Albro and Colleen Stout testified. On August 22, 1984, the
District Court issued findings of fact, conclusions of law
and order in which the court denied all Colleen's procedural
motions, granted a change of custody to the father and
granted the mother liberal visitation privileges. The mother
was not ordered to pay any child support. The court ordered
both Colleen and Wade to report to the court every three
months concerning the welfare of the child and ordered that
the situation be monitored by a social worker from the
Welfare Department.
Six issues are raised by Colleen:
1. The District Court was without jurisdiction to
consider the petition to modify child custody, and its
failure to grant the motion to dismiss that petition was
error;
2. The District Court's decree modifying custody of the
minor child was against the weight of the evidence, and j-t
was error for the court to decline to grant the motion to
dismiss for failure of proof;
3. The court erred in refusing evidence of sexual abuse
of the child as res judicata;
4. The District Court should. have granted attorney's
fees to the mother;
5. The District Court erred in appointing counsel with
a conflict or potential conflict of interest as attorney for
the minor child; and
6. The District Court erred in accepting - parte and
ex
hearsay communications, off the record, in deciding the case.
Appellant contends that the District Court erred in not
dismissing the petition to modify custody. Appellant asserts
that strict compliance with S 40-4-220(1), MCA, is a
jurisdictional prerequisite to hearing a child custody
modification petition.
Section 40-4-220(1) provides:
"40-4-220. Affidavit practice. (1) A party
seeking a temporary custody order or modification
of a custod-ydecree shall submit, together with his
moving papers, an affidavit setting forth facts
supporting the requested order or modification and
shall give notice, together with a copy of his
affidavit, to other parties to the proceeding, who
may file opposing affidavits. The court shall deny
the motion unless it finds that adequate cause for
hearing the motion is established by the
affidavits, in which case it shall set a date for
hearing on an order to show cause why the requested
order or modification should not be granted."
In this case no separate document entitled "affidavit"
was filed and served with the petition. Appellant contends
this is fatal. We think that this argument is an attempt
elevate form over substance. We have held in the past and
reiterate here today that there must be substantial
compliance with the procedures set forth in 5 40-4-220(1),
MCA, in order to insure that all parties to the proceeding
have notice and an opportunity to respond. See Knowlton v.
Knowlton (Mont. 1981), 632 P.2d 336, 38 St.Rep. 1304; Strouf
v. Strouf (1978), 176 Mont. 406, 578 ~ . 2 d746.
The District Court in thi.s case ruled that the verified
petition complied with the intent and purpose of S 40-4-220,
MCA. We agree. The petition set forth facts sufficient to
put the appellant on notice of Wade's factual basis for
modification. Wade averred that Colleen had a drinking
problem, that she had taken the minor child from the
jurisdiction of the court without notifying Wade, that
Colleen's living situation had changed and that it would be
in the best interest of the child for the child to be in
Wade's custody.
Section 26-1-1001, MCA, defines affidavit as a written
declaration under oath made without notice to the adverse
party. We held in State ex rel. Redle v. District Court
(1936), 102 Mont. 541, 545, 59 P.2d 58, 60, that a "verified
petition is equivalent to, and can be used as an affidavit in
a proceeding to be instituted on affidavit (citing authority)
provided, of course, that the petition contains the necessary
facts to move the court." We hold that the provisions of §
40-4-220 (1) were satisfied. by the verified petition and the
District Court properly assumed jurisdiction.
Colleen contends that the District Court order is not
supported by the evidence. Findings of fact of the district
court will not be set aside unless clearly erroneous. Rule
52 (a), M.R.Civ.P. Substantial evidence in the record
supports the findings of fact and conclusions of law
contained in the District Court order. The court found that
Colleen's life style and living situation lacked stability.
She had moved from town to town following the dissolution and
was presently cohabitating with her former husband, Randy
Smith, on a ranch 60 miles south of Dillon. Colleen had been
arrested for driving under the influence of alcohol with the
minor child in her vehicle.
Although Colleen did take the first step on the road to
recovery from her alcohol abuse problem by undergoing
treatment at Galen State Hospital she was unwilling or unable
to stop drinking. After her discharge, she did not avail
herself of any of the after care programs available in the
area. The evidence shows that her drinking adversely affects
her parenting ability.
There was no evidence introduced that tended to show
that the reunited couple of Randy Smith and Colleen Stout
would provide a suitable environment for Laurie Stout. The
District Court's finding that the child's present environment
posed a danger to her physical, mental and emotional health
is not clearly erroneous.
The court found that Wade could provide a more stable
environment for the child. He has a spacious three-room home
and earns a respectable salary. The court found that Wade
was motivated to care for his daughter and could make
suitable arrangements for her care while he was working.
In sum, we conclude that the findings of the District
Court are sufficient to meet the criteria set forth in S
40-4-219, MCA, for modification of child custody.
Appellant contends the District Court erred in not
admitting evidence concerning a case of alleged sexual abuse
of the minor child by the father, respondent herein. These
allegations gave rise to a petition for temporary
investigative authority which was filed by the State of
Montana. A hearing was held in District Court before Judge
Davis, the presiding judge herein, and the petition was
dismissed for la-ck of evidence.
The only time this issue was raised in this custody
modification proceeding was during the direct examination of
Mr. Albro, a social worker,
"MR. KOZAKIEWICZ (appellant's counsel): 0ka.y.
Thank you. You were involved in this case or at
least a similar case involving the same parties
earlier this year; is that true?
"MS. PARKER (respondent's counsel): Your Honor, we
object. That's been previously --
"THE COURT: Yes, that's res judicata about 14
times. The objection is sustained.
"MR. KOZAKIEWICZ: Okay. Your Honor, may I make an
offer of proof? I wasn't going to introduce
evidence of that particular --
"THE COURT: Well, you can make an offer of proof
for the record right now, and I know what it is
going to be."
Mr. Kozakiewicz failed to make an offer of proof and
proceeded with the examination. Rule 103 (21, M.R.Evid.
requires that if evidence is excluded the substance of the
evidence must he made known to the court by offer or it must
be apparent from the context of the questions asked. It is
evident from the judge's remarks that he was familiar with
the substance of the evidence sought to be admitted.
Technically, this evidence is not barred by the
principles of res jud.icata or collateral estoppel. Res
judicata technically only applies to situations where the
cause of action or claim has been previously litigated. In
contemporary legal vernacular it is referred to as claim
preclusion. Collateral estoppel or issue preclusion refers
to the situation where an issue has been previously litigated
by a party in a former case and that party is estopped from
relitigating it in a subsequent case. See Erault v. Smith
(Mont. 1984), 679 P.2d 236, 41 St.Rep. 527. Collateral
estoppel is more applicable here. In Aetna Life and Casualty
Insurance Company v. Johnson (Mont. 1984), 673 ~ . 2 d1277, 41
St.Rep. 40, we adopted the test to determine the
applicability of collateral estoppel first articulated in
Bernhard v. Bank of America (1942), 19 Cal.2d 807, 122 P.2d
892. (1) Was the issue decided in the prior adjudication
identical with the one presented in the action in question?
(2) Was there a final judgment on the merits? (3) Pas the
party against whom the plea is asserted a party or in privity
with a party to the prior adjudication? See 673 P.2d. at
1279.
The most important of the above elements is identity of
issues. Harris v. Harris (Mont. 1980), 616 P.2d 1099, 37
St.Rep. 1696. There must be precise identity of issues.
Stapleton v. First Security Bank (Mont. 19831, 675 P.2d 83,
40 St.Rep. 2015.
The issue presented in the previ.ous action, In Re the
Inquiry into Laurie Stout, a Youth in Need of Care, cause no.
296, is not identical to the issue in the instant case. In
the former case, the issue was whether the State of Montana
should intervene and terminate the parental rights of the
father. In this case, the evidence sought to be introduced
by Colleen concerning the facts involved in the former case
was offered to rebut Wade's contention that the advantages of
changing custody outweighed the disadvantages.
Moreover, the State is required to prove by clear and
convincing evidence that an order terminating parental rights
is justified. In the Matter of T.J.D., J.L.D. and R.J.W.
(Mont. 1980), 615 P.2d 212, 37 St.Rep. 1385; Matter of J.L.E.
(1979), 182 Mont. 100, 594 P.2d 1127. In the instant case,
the respondent's burden is proving by a preponderance of the
evidence that the statutory criteria set forth in § 40-4-219,
MCA, are satisfied. The difference in the burden of proof
must be considered when applying the principle of collateral
estoppel. If the issue decided in the former proceeding
required less proof by the prevailing party than the amount
of proof required to prove the same issue in the latter
proceeding, colla.tera1 estoppel will not apply and the issue
must be relitigated. We find the reasoning of the United
States Supreme Court in One Lot Emerald Cut Stones and One
Ring v. United States (1972), 409 U.S. 232, 93 s.Ct. 489, 34
L.Ed.2d 438 persuasive.
"Moreover, the difference in the burden of proof in
criminal and civil cases precludes application of
the doctrine of collateral estoppel. The acquittal
of criminal charges may have only represented 'an
adjudication that proof was not sufficient to
overcome all doubt of guilt of the accused (Citing
authority.)' 'As to the issues raised, it does not
constitute an adjudication on the
preponderance-of-the-evidence burden applicable in
civil procedings. (Citing authority. ) ' " 409 U.S.
at 235, 93 S.Ct. at 492, 34 L.Ed.2d at 442.
We note, however, if the issue decided in the former
proceeding required more proof by the prevailing party or the
burden of proof on the prevailing party was higher than that
required to prove the same issue in the latter proceeding and
all the other elements of collateral estoppel are satisfied
then the issue should not be relitigated. See Aetna Life and
Casualty Co. v. Johnson, supra.
Technically, we think that testimony concerning cause
no. 296 should have been admitted by the District Court.
However, given the nature of these proceedings and overall
factual setting, we think excluding this evidence was
harmless error. The same District Court judge heard both
cases. Appellant's counsel did not pursue the matter and
make a formal offer of proof or ask the court to take
judicial notice of the previous case and consider it when
deciding this case. No additional evidence concerning the
alleged sexual abuse that was the subject of the previous
case was offered. Although we think the District Court
should have let Colleen present the same evidence the court
had heard before, we do not think that doing so would have
had any effect on the outcome of this case.
Colleen's contention that the District Court should have
awarded her attorney's fees is without merit. She admits
that § 40-4-219(2), MCA, supplies the statutory authority to
grant attorney's fees in a custody modification proceeding.
Since Wade's action in securing a change of custody can
ha.rdly be considered vexatious or harrassing, Colleen has no
right to attorney's fees under § 40-4-219(2).
The District Court appointed Robert Dwyer as counsel for
the minor child, Laurie Stout. Counsel for the Colleen
objected to his appointment on the grounds that there was a
potential conflict of interest. Counsel asserts that the
conflict arises from the fact that Mr. Dwyer now occupies an
office formerly occupied by the District Court Judge Frank
Davis and Christine Parker who represented the respondent
throughout most of these proceedings. We find no conflict of
interest based on these facts.
Colleen alleges that there was an improper ex parte
communication between the judge and a person interested in
the proceedings. The allegation is made by an unverified
document entitled "Affidavit of Counsel" which is attached to
appellant's brief. Respondent filed a motion in this Court
to strike said affidavit from a.ppell.antrs
brief. We grant
respondent's motion. We will not consider evidence
extraneous to the record. Section 3-2-204, MCA; Downs v.
Smyk (1980), 185 Mont. 16, 604 P.2d 307. The record reveals
that appellant's counsel mad-e no motion for a mistrial or to
remove the District Court jud.ge from the case. The appellant
made no mention of the alleged misconduct on the record. The
District Court was given no opportunity to refute or explain
the allegation and no opportunity to remedy the situation or
rule on it. We will not discuss accusations of misconduct
against district court judges made to this Court in an appeal
that are not first raised in the District Court.
Affirmed.
We Concur:
Justices