Groves v. Groves

No. 13566

I N THE SUPREME COURT O THE STATE O MONTANA
F F

1977

OPAL LAUREEN GROVES,

P l a i n t i f f and A p p e l l a n t ,

-vs-
GERALD HARVEY GROVES

Defendant and Respondent.

Appeal from: D i s t r i c t C o u r t of t h e T h i r t e e n t h J u d i c i a l
District,
Honorable C h a r l e s Luedke, Judge p r e s i d i n g .

Counsel of Record:

For Appellant:

P e t e r s o n and Hunt, B i l l i n g s , Montana
Kenneth D. P e t e r s o n a r g u e d , B i l l i n g s , Montana

F o r Respondent :

B e r g e r , Anderson, S i n c l a i r and Murphy, B i l l i n g s ,
Montana
James J . S i n c l a i r a r g u e d , B i l l i n g s , Montana

Submitted: F e b r u a r y 1 6 , 1977

Decided: -AUG - 5 1977

Filed: AuG
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Mr. Justice John C. Harrison delivered the Opinion of the Court.

Plaintiff appeals from an order of the district court,
Yellowstone County, denying her petition for permanent custody
of her daughter, Renee, and granting permanent custody to de-
fendant, the father of the child.
This litigation began April 17, 1973, when plaintiff
filed for divorce in Billings, Montana. The parties were sep-
arated and defendant was living in Alberta, Canada at the time.
Defendant had physical custody of the child in accordance with
the wishes of both parties. On May 18, 1973, defendant obtained
an ex parte order from the Alberta court granting him legal cus-
tody. On June 4, 1973, plaintiff was awarded the divorce and
custody of the child by default in the Montana proceeding.
Thereafter, the parties agreed defendant should have
custody of Renee with liberal visitation rights granted to plain-
tiff. Pursuant to stipulation, decrees were entered in the Alberta
court on September 27, and in the Montana court on October 9,
granting custody to defendant. This arrangement lasted until
the summer of 1974, when plaintiff, who had the child in Montana
for visitation, filed an affidavit and petition for modification
of custody. This was filed on August 14, 1974, the day before
defendant was to arrive in Billings to pick up the child. The
affidavit stated plaintiff had remarried to Dr. Walter Francke
and that she and Dr. Francke would "provide a secure and loving
home" for Renee. On the basis of this affidavit, the court
granted temporary custody to plaintiff and ordered defendant to
appear on August 21 for a hearing to show cause why such custody
should not be made permanent. Defendant was served with this
order when he arrived in Billings to pick up the child.
The show cause hearing was held August 21 in chambers.
While there is no record of what transpired, apparently no
testimony was taken. The court was concerned about the parties1
tendencies to obtain ex parte orders in different jurisdictions
and desired that the parties agree to a single forum for an
adjudication binding in Montana and Canada. As a result of this
hearing the court ordered: (1) "that the hearing on the Order
to Show Cause shall be continued indefinitely to be reset at a
later date at a time convenient to Court and Counsel," and (2)
"that temporary custody of the minor child * * * shall remain
with Plaintiff * * * until further order of this Court."
This temporary arrangement was still in effect March 18,
1975, when plaintiff filed another affidavit and petition for
permanent custody. Defendant filed a similar affidavit and
petition February 4, 1976, alleging plaintiff and Dr. Francke
had exposed the child to constant fighting and violence arising
out of the excessive use of alcohol. Defendant further stated
he was remarried and in a position to offer the child an excel-
lent family situation.
A full hearing on the petitions of both parties was held
April 5, 1976. On May 3, at the direction of the district court,
the parties entered into a stipulation whereby they agreed to be
bound by the order of the district court and to apply to the
Canadian court for a consent order in conformity thereto. On May
19, 1976, the court ordered plaintiff's petition for custody be
denied and defendant's petition for custody be granted.
Four issues are presented on appeal:
1. Did plaintiff waive her right to appeal by stipula-
ting that she would be bound by the order of the district court?
2. Was defendant's petition for custody barred by
section 48-339, R.C.M. 1947, which prohibits, absent special
circumstances, any motion to modify a custody decree within two
years after its date?
3. Did the district court err in granting custody to
defendant in light of the evidence presented?
4. Did the court err in its refusal to admit the depo-
sition of one Mlora Smith MacKay into evidence at the April 5
hearing?
Issue 1.
Before the district court made its final order the parties
entered into a "STIPULATION FOR ENTRY OF A CONSENT ORDER". It
provided :
"The Parties hereto, OPAL LAUREEN FRANCKE, f/k/a
OPAL LAUREEN GROVES, individually, by and through
her attorney * * * and GERALD HARVEY GROVES, in-
dividually, by and through his attorney * * *
stipulate and agree that they shall be bound by
the Order, Judgment and Decree entered by this
Court in this matter, regardless of the juris-
diction in which they reside, and further, that
application shall be made to the trial division
of the Supreme Court of Alberta, Judicial District
of Calgary, for a Consent Order to conform all
legal proceedings therein involving the Parties
hereto and their child, RENEE ADELE GROVES, to the
Order, Judgment and Decree of this Court. The
Parties further stipulate and agree that they will
sign and execute any and all documents and papers
necessary to secure said Consent Order."
This stipulation was made at the direction of the district
judge, who was seeking to resolve the jurisdictional conflict.
While it is possible to waive any errors and give up any right
of appeal in Montana, the general rule is as stated in 4 Am Jur 2d,
Appeal and Error 5 2 3 6 p. 7 3 3 :
"Such an agreement should be very clear on its
terms, and leave no doubt of the intention of
the party to cut himself off from the right of
appeal. * * *"
Here the stipulation was made before the district court made
its decision and both parties agree the overriding purpose of
the stipulation was to end the jurisdictional problems which
had plagued this case since 1973.
Although the parties clearly agreed to be bound by the
order of the district court, it was not clear whether the order
referred to was before appeal, or after either an appeal was
taken or the time for appeal lapsed. Certainly, the language
of the stipulation does not amount to a clear showing the parties
intended to preclude any right of appeal. Accordingly, we hold
the stipulation did not prevent the parties from taking an
appeal-, but merely bound them by the final order of the district
court, as the case is finally resolved.
Issue 2.

Section 48-339, R.C.M. 1947, provides:
"(1) No motion to modify a custody decree
may be made earlier than two (2) years after
its date, unless the court permits it to be
made on the basis of affidavits that there is
reason to believe the child's present environ-
ment may endanger seriously his physical, mental,
moral, or emotional health.

"(2) The court shall not modify a prior custody
decree unless it finds, upon the basis of facts
that have arisen since the prior decree or that
were unknown to the court at the time of entry
of the prior decree, that a change has occurred
in the circumstances of the child or his cus-
todian, and that the modification is necessary
to serve the best interest of the child. In
applying these standards the court shall retain
the custodian appointed pursuant to the prior
decree unless:

"(a) the custodian agrees to the modification;
" (b) the child has been integrated into the
family of the petitioner with consent of the
custodian; or
" (c) The child's present environment endangers
seriously his physical, mental, moral, or
emotional health, and the harm likely to be
caused by a change of environment is outweighed
by its advantages to him.

" ( 3 ) Attorney fees and costs shall be assessed
against a party seeking modification if the court
finds that the modification action is vexatious
and constitutes harassment."
Plaintiff received temporary custody based on her August
14, 1974 affidavit and petition for change of custody. On
August 22, the district court held a hearing on the order to
show cause and ordered: (1) that temporary custody be left with
plaintiff; and (2) that the hearing be continued indefinitely.
 This order, plaintiff argues, amounted to a "custody decree"
within the meaning of section 48-339, thus leaving the court
without jurisdiction to change custody for two years, absent
a showing of special circumstances. Holm v. Holm, Mont.
, 560 P.2d 905, 34 St.Rep. 118. However, we do not agree
the August 22, 1974 order was ever intended to be a final
custody decree. It arose out of an in-chambers hearing at
which no testimony on the merits of the custody issue was
taken. In its memorandum with the final order of May 19, 1976,
the district court expressed its rationale for the August 22, 1974
order :

" * * * Because of the way the parties were
using the Montana and Alberta courts in ex
parte proceedings, the hearing was continued
pending resolution of which court the parties
could agree upon for jurisdiction since the
allegations before the Montana court stated
that an application for court action was also
pending in Calgary. As a consequence, the
child has remained with the mother * * *".
Clearly the August 22, 1974 order was intended to be interlocu-
tory in nature; express the court's continuing jurisdiction;
and hold the matter in abeyance until the jurisdictional diffi-
culties could be resolved. The custody issue was merely left
alone for the moment. A temporary custody order is not equiva-
lent to a custody decree within the meaning of section 48-339.
To hold otherwise would be to defeat the purpose of a temporary
order. Here, it is peculiar that the temporary custody order
remained in effect for one and one-half years, but this does
not change the fact it was granted ex parte and was never intended
to be a final custody decree. Thus defendant's petition for
custody was not barred by section 48-339. The last "custody
decree" was entered in Montana October 9, 1973, and that decree
granted custody to defendant. In reality, then, it is plaintiff
who is seeking modification of a custody decree under section
Issue 3.
Our reasoning in Issue 2 applies to the issue of
whether the district court erred in granting custody to de-
fendant. To modify the custody decree of October 9, 1973, it
is plaintiff who must meet the provisions of section 48-339.
It is plaintiff's responsibility to prove that modification is
necessary to serve the best interests of the child, and to do
so she must satisfy one of the conditions specified in sub-
sections (a), (b) and (c), section 48-339(2).
Subsection (a) does not apply because defendant never
agreed to a modification.
Subsection (b) does not apply because, while it is
arguable the child has been integrated into plaintiff's family
for one and one-half years, it was not with the consent of
defendant.
Therefore, in order to be entitled to a modification,
plaintiff must prove that under subsection (c):
"the child's present environment endangers
seriously his physical, mental, moral, or
emotional health, and the harm likely to be
caused by a change of environment is outweighed
by its advantage to him."
In the unique context of this case, in which the non-
custodial parent was awarded temporary custody, "present environ-
ment" must be taken to mean the environment of the child while
with the parent who held the child under the prior decree and
before custody was temporarily taken from him.
Generally, the evidence brought forth on plaintiff's
behalf was that the child was well cared for and has undergone
temporary
normal development while in plaintiffts/custody, and plaintiff
has shielded the child from much of the trouble encountered in
her stormy marriage with Dr. Francke. Plaintiff also attempted
to show that her lifestyle has changed since this marriage and
that she no longer drinks and is an active member of the Mormon
Church. There is, however, no evidence the child was any-

thing but well-adjusted while she lived with defendant, and
there is certainly no evidence her physical, mental, moral, or
emotional health was in danger. On the contrary, the evidence

shows defendant has provided and is in a position to continue
to provide an excellent home for the child. Matters of child

custody are within the discretion of the district court, and
under these circumstances we cannot say the district court
abused its discretion in awarding custody to defendant. Gilmore
v. Gilmore, 166 Mont. 47, 530 P.2d 480.
To prevent just the sort of ping-pong custody litigation
that has occurred in the instant case, section 48-339 places a
heavy burden on the person seeking to modify a prior custody
decree. Plaintiff has not met this burden and cannot shift it
to defendant by an ex parte, temporary order of custody.
Issue 4.
Plaintiff argues the court erred in refusing to admit
into evidence the deposition of Mlora Smith MacKay. The circum-
stances surrounding the taking of this deposition are:
The parties stipulated defense counsel would take plain-
tiff's deposition at a certain time. At the conclusion of this
deposition, counsel for plaintiff announced, for the first time,
that he planned to take the deposition of Mlora MacKay immediate-
ly, as she lived in Canada, was in Montana visiting her family,
and planned to return to Canada right away. Counsel asked if
counsel for defendant would stipulate this was a deposition for
the perpetuation of her testimony, but counsel for defendant
refused to so stipulate. The deposition was taken with counsel
for defendant present, who asked a few questions of MacKay re-
garding the notice she had that her deposition was going to be
taken. At the hearing, the district court refused to allow the
deposition into evidence.
Although there was no stipulation regarding the depo-
sition and no notice at all of its taking until the deposition
was about to be taken, plaintiff argues it should have been
admitted because defendant filed no written objection to the
lack of notice. Rule 32 (d)(1), M. R. Civ.P. , provides :
" As to notice. A11 errors and irregularities
in the notice for taking a deposition are waived
unless written objection is promptly served upon
the party giving the notice."
However, this is not a case of a technical error or irregularity
in notice, it is a case of no notice at all. We cite with
approval this statement from 4A Moore's Federal Practice, 1132.09:
"Depositions should not be admitted where they
are taken without giving the adverse party
reasonable notice of the taking and there is no
opportunity for a protective order."
Here there clearly was no notice of the deposition and no oppor-
tunity for counsel for the defendant to move the court for a
protective order; the deposition was going to be taken immediately.
It was impossible for defense counsel to prepare any effective
cross-examination of the witness, and the admission of such
deposition into evidence at the trial would be unfair and preju-
dicial to defendant. The district court did not commit reversible
error by excluding it.
The order of the district court granting custody of the
child to defendant is affirmed.

Justice

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Justices
Mr. J u s t i c e Frank I. H a s w e l l , s p e c i a l l y c o n c u r r i n g :

I concur i n t h e r e s u l t , b u t n o t i n a l l t h a t i s s a i d

i n t h e d i s c u s s i o n o f t h e second i s s u e i n t h e o p i n i o n .

Justice