NO. 92-294
IN THE SUPREME COURT OF THE STATE OF MONTANA
IN RE THE MATTER OF CUSTODY
OF C.J.K., a minor.
In and for the County of Toole,
The Honorable R. D. McPhillips, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Robert G. Olson, Frisbee, Moore & Olson,
Cut Bank, Montana
For Respondent:
Susan L. Weber, Miller & Cook,
Great Falls, Montana
Submitted on Briefs: March 4, 1993
Decided: June 8, 1993
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
This is an appeal from the Ninth Judicial District Court,
Toole County, Montana. The appellant mother appeals the District
Court's award of joint custody with the respondent father in which
respondent was designated primary residential custodian of the
minor child, C.J.K. We reverse and remand.
The following issue is dispositive of this case:
Was the issue of primary physical custody of C.J.K. properly
before the District Court?
On July 24, 1990, C.J.K. was born to appellant and respondent
after a one-year relationship in which the parties residedtogether
but were never married. Prior to the birth of C.J.K., there were
four other children born to appellant from a previous marriage, and
one child from a previous relationship. C.J.K. is respondent's
only son.
Several months after the birth of C.J.K., the parties
separated and have since lived apart. Because of this separation,
it was necessary to determine custody and support issues for C.J.K.
Appellant filed a petition for custody and support on March 12,
1991, which requested that there be "joint care, custody and
control"; that she be the custodial parent; and that respondent be
granted reasonable rights of visitation. Respondent filed a
response and counterpetition on June 27, 1991, which requested
split custody until C.J.K. reached the age of five, at which time
respondent would be granted primary physical custody. On
February 21, 1992, the parties went to trial on the issues of
2
custody and support of C.J.K. ~uringtrial, respondent moved for
an order that he be granted immediate primary custody of C.J.K.
Counsel for appellant immediately made a motion to stay or continue
the proceedings on the basis of surprise.
Was the issue of primary physical custody of C.J.K. properly
before the court?
In his response and counterpetition, respondent specifically
requested that appellant be designated primary physical custodian
for eight months of the year, and that he be designated primary
physical custodian for only four months of the year until C.J.K.
reaches age five. No mention was made of respondent being
designated primary physical custodian before C.J.K. reachedthe age
of five.
After the conclusion of appellant's case-in-chief, respondent
unexpectedly requested immediate primary physical custody. This
was the first time appellant was put on notice that respondent
sought immediate custody and that she might lose her right to
custody.
The purpose of a pleading is to provide notice before trial to
the opposing party of the specific relief being sought so that both
parties have an opportunity to present evidence on the issues in
dispute. Gallatin Trust Bank v. Darrah (1968), 152 Mont. 256, 261,
448 P. 2d 734, 737. The requirement that all issues to be tried
must be raised in the pleadings is extended to child custody
disputes by In re Custody of C.S.F. (l988), 232 Mont. 204, 209, 755
P.2d 578, 581.
An exception to the requirement that all issues to be tried
must be raised in the pleadings, is set out in Old Fashion Baptist
Church v. Department of Revenue (l983), 206 Mont. 451, 457, 671
P.2d 625, 628:
A District Court does not have jurisdiction to grant
relief outside of the issues presented by the pleadings
unless the parties stipulate that other questions be
considered or the pleadings are amended to conform to the
proof.
The parties may "stipulatew or consent to consideration of
issues outside of the pleadings expressly or impliedly. Butte
Teachers' Union v. Board of Trustees '(1982), 201 Mont. 482, 486,
655 P.2d 146, 148. In the case at bar, respondent argues that
since appellant raised the issue of primary physical custody in her
petition and he specifically contested the issue, in essence,
appellant expressly consented to trial on this issue. We disagree.
Respondent, in his responsive pleading, set out the parameters
of the dispute which did not include a request that he be granted
primary physical custody at the present time. Appellant never
expressly consented to trial on any issue except that which was
discussed in the responsive pleading.
Concerning the issue of implied consent, we have stated that
"pleadings will not be deemed amended to conform to the evidence
because of 'limplied consent" where the circumstances were such that
the other party was not put on notice that a new issue was being
raised." Darrah, 448 P.2d at 737. In the case at bar, appellant
did not receive adequate notice before trial, and therefore, could
not impliedly consent to consideration of the new issue of whether
or not respondent be granted immediate primary physical custody.
Appellant's adamant objection to the consideration of this issue,
and her claim that she was "caught off-guardm by this
''eleventh-hour change in attack" is in no way indicative of implied
consent.
Because of lack of notice, possible prejudice to appellant
must be considered. Respondent's unexpected request denied
appellant adequate opportunity to prepare her case thereby denying
her due process of law.
We conclude that the determination of primary physical custody
was not properly before the District Court.
Reversed and remanded for further proceedings in accordance
with this opinion.
Justices
5
Justice John Conway Harrison dissenting.
I dissent. I would hold that the determination of primary
physical custody of the minor child was properly before the
District Court, and I would affirm the District Court's award of
joint custody and the court's designation of the respondent father
as the primary residential custodian of the minor child.
The record is clear. The minor, C.J.K., was born on July 24,
1990, to the mother and father after a one-year relationship in
which the mother and father resided together but never married.
C.J.K. is the youngest of six children born to the mother; four
other children were born to the mother from a previous marriage,
and she had one other child from a previous relationship. C.J.K.
is the father's only child.
Nearly eight months after the birth of C.J.K. and after the
parties' relationship failed, the mother filed with the District
Court a "Petition for Custody and Support'' wherein she asked the
court to award joint custody of C.J.K. to the parties with herself
as the primary custodial parent, and to require the father to pay
child support according to the Uniform Guidelines. In his response
and counter-petition, the father prayed that joint custody be
awarded the parties with the mother as primary custodian until
C.J.K. reached the age of five, when the father would be granted
primary physical custody. The father's counter-petition also
provided for liberal visitation for the noncustodial parent. It
also provided that the father would pay child support during each
month that C.J. K. was in the mother s care; that the income t a x
exemption could be claimed by the primary physical custodian; that
the father would provide C.J.K1s medical insurance; that any
uncovered medical expenses would be shared equally by the parties;
and that each party would be responsible for his or her individual
attorney's fees and costs incurred in this matter.
A t the hearing i n February, 1 9 9 2 , the father requested for the
first time that he, not the mother, be designated as the primary
custodial parent. The mother filed a legal memorandum setting
forth her objections to this unanticipated oral request. The
District Court properly took the position that in Montana it is
clear that the court's duty is to look to the I1bestinterest of the
child1' regardless of the custodial arrangements sought by the
parties.
Custody of C.J.K. and the parties1 concerns for his best
interest were thoroughly discussed at the February, 1992, hearing.
Again, the record is clear. It indicates, at length, a severe
problem in the mothergs home as to the care of her six children,
i n c l u d i n g her f a i l u r e t o supervise t h e children; and that C.J .K.
was Left in the custody of her oldest daughter, who was fifteen at
the time of the District Court hearing. Often during the week the
mother did not return home until 2 :00 or 3 :00 a.m., leaving the
fifteen-year-old to care fox the younger children. The court's
findings of fact indicate that the Family Services Department had
investigated five complaints relating to the filthy and unhealthy
condition of the mother's home. The record also indicates that the
mother refused to cooperate with the father in several areas
concerning C.J.K.
I find that the first issue, whether primary physical custody
of C.J.K. was properly before the District Court, is the key to the
resolution of this matter, The mother alleges that the issue of
primary physical custody was not before the court, as the father
had requested split custody in his response and counter-petition.
I disagree. This issue was placed before the court by the mother
herself in her "Petition for Custody and S u p p ~ r t , ~ ~which she
in
prayed that C. J.K. be placed in the joint care, custody and control
of the mother and father, with the mother as "custodiaf parent.
This request in itself raises the question of primary physical
custody.
In response to the mother's petition, the father denied that
making the mother the custodial parent was in C.J.K. s best
interest and requested a split custody arrangement until C.J.K.
reached the age of five, at which time the father requested that he
be granted primary physical custody. Primary physical custody of
C.J.K. was the central issue of the entire testimony before the
District Court. Both parties presented evidence on the issue and
the District Court properly applied the best interest test in
designating the father the primary residential custodian of C.J.R.
This Court has held that under 40-4-212, MCA, the best
interest of the child factor is controlling regardless of any
requests by either party, and that the court's failure to consider
its elements could result in reversible error, even if the parties
themselves have entered into an agreement regarding the issue of
custody. In re Marriage of Mager (1990), 241 Mont. 7 8 , 785 P.2d
198; In re Marriage of Converse (l992), 252 Mont. 67, 826 P.2d 937.
Here, the record indicates that the ~istrictCourt considered
all of the statutory c r i t e r i a f o r determining the child's best
interest, and that its findings and conclusions are supported by
substantial credible evidence.
I would hold that the determination of primary physical
custody was properly before the District Court and that the court
did not err in making its determination under 5 40-4-212, MCA. 1
would affirm.
June 8. 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Robert G. Olson, Esq.
Frisbee, Moore & Olson
P.O. Box 547
Cut Bank, MT 59427
Susan Weber
Attorney at Law
P.O. Box 1258
Great Falls, MT 59403
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
BY:
Depu