IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
JON CONTWAY,
Plaintiff and Appellant,
SHERIFF MIKE CAMP, Sheriff of Phillips
Countv; DEPUTY SHERIFF JIM MAXI, a Deputy
Sheriff of Phillips County; SHERIFF BARRY
MICHELOTTI , Sheriff of Cascade County;
ANTONIA MARRA, a former Deputy County
Attorney of Cascade Countv; CASCADE COUNTY;
and PHILLIPS COUNTY,
Defendants and Respondents.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Chan Ettien, Judqe presiding.
COUNSEL OF RECORD:
For Appellant:
Thomas P. Meissner, Lewistown, Montana
For Respondent :
John C. McKeon, County Attorney, Malta, Montana
Patrick L. Paul, County Attorney; Steven M. Hudspeth,
Deputy County Attorney, Great Falls, Montana
Submitted on Briefs: Dec. 16, 1 9 8 8
Decided: February 16, 1989
0
Filed:
Mr. Justi-ce John C. Sheehv delivered the Opinion of the
Court.
Appellant, Jon Contway, appeals from an order of dis-
missal under Rule 12(b)(6), M.R.Civ.P., of the District Court
of the Eighth Judicial District, Count~y of Cascade, dismiss-
ing, with prejudice, his amended complaint against all
respondents.
Jon Contway was married to Patricia Contway on January
6, 1978. On August 8, 1986, while going through dissolution
proceedings, Contway signed a separation agreement with
Patricia awarding her custody of their three minor children,
subject to plaintiff's right of visitation. The separation
agreement was integrated into the final divorce decree of
October 14, 1986.
On August 27, 1986, appellant took the children from
the State of Montana, in violation of their separation agree-
ment. On September 10, 1986, the State filed a criminal
information against appellant on the ground of custodial
interference, a felony. A warrant for his arrest was issued
by the district iudge and bail on the warrant was set at.
$10,000.
Approximately five months later, on January 15, 1987,
appellant returned to Malta, Montana, and left the children
at the local office of Family Services there. On that same
day, defendant Sheriff Jim Maxie of Phillips County arrested
the appellant pursuant to the outstanding warrant. Prior to
and subsequent to arresting appellant, Sheriff Maxie
consulted with Cascade County Sheriff's Department to verify
that a valid warrant was still in existence there. Sheriff
Maxie made these inquiries to insure that his arrest of
Contway was lawful. Contway had informed the sheriff that
the arrest would be improper because he had transferred
custody of his children to the Montana Department of Family
Services. Cascade County refused to cancel the valid arrest
warrant and appellant was arrested by Phillips County offi-
cials and placed in custodv on January 15, 1987. On Zanuar~7
16, 1987, Cascade County officials went to Malta, picked up
the appellant, and brought him into custody in Cascade Coun-
ty. The appellant remained in custody there until Januarv
22, 1987, when the criminal information against Contway was
dismissed after the children had been returned to the lawful
custody of their mother and appellant had written and signed
a stipulation stating that the children had been "returned to
the custody of Patricia Contway in accordance with 45-5-304
.
(1985) " Rased on that stipulation and appellant's motion
to dismiss dated January 21, 1987, the felonv charge was
dismissed on January 22, 1987, and Conkway was released from
custody.
Contway then brought an action against the respondents
alleging that his "arrest and false imprisonment were con-
trary to law." In his amended complaint, appellant alleged
that at the time of arrest and imprisonment, he was a
candidate for legislative office for the State of Montana;
and appellant alleged in his original complaint that such
wrongful arrest and false imprisonment damaged his reputation
and, as a consequence, damaged his political race. In addi-
tion, at the time of his arrest and imprisonment, appellant
was starting a consultinq business in Great Falls, Montana,
and he alleged that due to the wrongful arrest and
imprisonment his business opportunities were curtailed and
the business never got started.
That action was dismissed at the District Court level
on a Rule 12 ( b ) ( 6 ) , M.R.ci~7.p. motion and he now appeals to
this Court.
The issue on appeal is whether the District Court
properly dismissed the plaintiff's amended complaint.
Section 45-5-304, MCA, states:
Custodial Interference. (1) A person
commits the offense of custodial inter-
ference if, knowing that he has no leqal
right to do so:
(a) he takes, entices, or withholds from
lawful custody any child, incompetent.
person, or other person entrusted by
authority of law to the custody of
another person or institution;
(b) prior to the entry of a court order
determining custodial rights, he takes,
entices or withholds any child from the
other parent where the action manifests
a purpose to substantially deprive that
parent of parental rights; or
(c) he is one of two persons who has
joint custody of a child under a court
order and he takes, entices, or with-
holds the child from the other where the
action manifests a purpose to substan-
tially deprive the other parent of
parental rights.
(2) A person convicted of the offense
of custodial interference shall be
imprisoned in the state prison for any
term not to exceed 10 years or be fined
an amount not to exceed $50,000, or
both.
(3) A person who has not left the state
does not commit an offense under this
section if he voluntarily returns such
person to lawful custody prior to ar-
raignment. A person - - - -
who has left the
state - - commit an offense under
does not
this section - - volntarily -
if he -
returns
to --
such person - lawful custody prior - to
the arrest. [Emphasis added.1
- -
Appellant asserts that as a consequence of the language
of $$ 45-5-304(3), MCA, he should not have been arrested after
he returned the children to "lawful custody" of Family Ser-
vices. Respondents insist that his arrest was valid under
the statute because returning the children to the local
office of Family Services (then SRS) was not a return to
"lawful custody" as called for by the statute. They assert
that "lawful custody" is custody awarded by the decree and
Contway could only have avoided arrest by returning the
children to the custody of their mother, to whom custody was
awarded by the court.
Appellant argues that whether or not the warrant was
legally and validly issued is irrelevant and that the validi-
ty of the warrant "makes no difference" because of the
language found in S 45-5-304, MCA: "[a] person who has left
the state does not commit an offense under this section
[custodial interference] if he voluntarily returns such
person to lawful custody prior to arrest." Appellant argues
that even if it is presumed that the warrant was validly
issued, the respondents1 action in serving the warrant and
arresting him constituted a basis for an action against the
respondents because Contway had obeyed the statute by
returning the children to the custody of Family Services.
Contway argues that returning the children to Family Services
is returning them to "lawful custody" before arrest as
required by the statute.
The respondents argue that 5 45-5-304(3), MCA, is a
defense to a conviction for custodial interference if a
criminal defendant raises and proves the defense as in any
other affirmative defense. Respondents recognize that the
statute does not state that subsection (3) is a defense to an
arrest, as opposed to a conviction, but posit that "the
Legislature could have stated as such," and that the more
reasonable construction of subsection (3) is that it is like
any other affirmative defense which imposes a burden of proof
upon the defendant and not upon the state.
The words of this statute prohibit the taking of a
child from "lawful custody" and permit a noncustodial parent
who has left the state to be free of committing custodial
interference if he voluntarily returns the child to "lawful
custody" prior to arrest. The words "lawful custody" are of
common usage and are sufficiently plain and precise to put
any reasonable person on notice concerning what conduct is
prohibited. Appellant attempted to thwart the court decree
by turning the children over to Family Services which was not
the lawful custodian named in the decree.
We hold that lawful custody in marital dissolution
proceedings is that custody awarded by the court. A district
court in the circumstances of this case has jurisdiction to
make a child custody determination. Section 40-4-211, MCA;
Wilson v. Wilson (1980), 186 Mont. 290, 607 P.2d 539. An
individual cannot return children to the custody of a legal-
entity of his choice. He must return them to the entity
granted lawful custody by the court in dissolution
proceedings.
The legislature was cautious in providing a means by
which a noncustodial parent may return children to the custo--
dial parent and avoid penal sanctions. This statute was
enacted to maintain parental custody against all unlawful
interruption, even if a child is a willing, undeceived par-
ticipant in the attack on the parental interest. Section
45-5-304, MCA, Criminal Law Commission Comments.
As to the state's argument that section (3) is a de-
fense to a conviction rather than an arrest, we note that the
statute formerly allowed the conduct to be excused if the
person taken was returned before trial for the offense
commenced. In 1979 the legislature amended the statute and
added subsection (3) which provides that a person does not
commit the offense of custodial interference if he returns
the individual taken to lawful custody prior to arraignment
or, in the case of a person who has left the state, prior to
arrest.
The district court judge properly applied the law in
response to the respondents' motion to dismiss under Rule
12 (b)(6), M.R.Civ.P. On a motion to dismiss the court takes
the allegations of the plaintiff to he true and construes the
allegation in a light most favorable to the plaintiff. Mogan
v. City of Harlem (Mont. 1987), 739 P.2d 491, 44 St.Rep.
1212; Willson v. Taylor (Mont. 1981), 634 P.2d 1180, 38
St.Rep. 1040. The court will then grant the motion only if
it appears beyond any doubt that the plaintiff can prove no
set of facts which would entitle him to relief. Fraunhofer
v. Price (1979), 182 Mont. 7, 594 P.2d 324; Kinion v. Design
Systems, Inc. (1982), 197 Mont. 177, 641 P.2d 472.
The respondents' arrest of Contwav was a valid arrest
under a valid warrant as a result of Contway's attempt to
frustrate the directive of the divorce decree by releasing
the children to custody of a state agency rather than to the
custody decreed by the court.
For the foregoing reasons, the District Court's deci-
sion is affirmed as to all respondents.
Justice Y