In Re the Marriage of Robbins

No. 8 5 - 1 9 0

TN THE SUPREME COURT OF THE STATE OF MONTANA
1985

IN RE THE MARRIAGE OF
STEPHANIE JOANNE ROBBINS,
Petitioner and. Respondent,

and
JOSEPH E . ROBBINS, JR.,
Respondent and Appellant.

APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Park,
The Honorable Byron Robb, Judge presiding.

COUNSEL OF RECORD:

For Appell-a.nt
:

Joseph E. Robbins, pro se, Kalispell, Montana

For Respondent:
Phillip W. Strope, Helena, Montana

Submitted on Briefs: Sept. 12, 1 9 8 5
Decided: December 18, 1985
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

Joseph E. Robbins appeals pro se from the judgment and
decree of the District Court, Sixth Judicial District, County
of Park, finding Joseph delinquent in child support payments
owed to Stephanie J. Robbins in the sum of $3,625.00; leaving
the care, custody and control of the minor child, Ashley
Ca1.dwell Robbins, in Stephanie; modifying Joseph's visitation
rights to reasonable times and places upon a t least five days
written notice and then only under supervised conditions
established by Stephanie; ordering Joseph to pay monthly
child support to Stephanie in the sum of $125.00 and to pay
all necessary medical, hospital-, dental and optical care for
Ashley until she is of legal age; and fining Joseph $500.00
as well as sentencing him to five days in jail for his
contempt of the District Court's previous orders for child
support payments. Fle affirm ir, part and remand in part.
The Robbins' marriage was dissolved on May 12, 1981.
One child was born as issue of the marriage, Ashley Caldwell
Robbins. Among other things, the decree of the court at the
time of dissolution provided that the best interest of the
minor child dictated custody to be with Stephanie, with
reasonable rights of visitation to Joseph, and required him
to pay $125.00 per month child support, commencing February
1, 1981.
A related proceeding, Cause No. 81-266, was instigated
by Joseph on October 2, 1981, seeking to hold Stephanie in
contempt for failing to comply with the terms of visitation
in the parties' decree of dissolution. On November 5, 1981,
the District Court found both parties in contempt, and
ordered Stephanie to permit visitation and Joseph to make the
child support payments previously ordered.
On January 17, 1983, Joseph filed a petition for
modification of custody, requesting joint custody of the
child, with physical custody to be with Joseph nine months
and Stephanie three months each year. On April 8, 1983, a
motion to dismiss Joseph's petition was filed by Stephanie.
Attached to the motion were Stephanie's affidavits averring
that Joseph had not paid the required child support or kept
her informed as to medical insurance for the child as
previously decreed by the court; that he had not kept her
informed of his address or residence; and that she had
refused Joseph his visitation rights because Joseph's life

style involved use of dangerous drugs and because he had.
previously physically assaulted Stephanie. On April 8, 1983,
the District Court denied Stephanie's motion to dismiss.
On April 29, 1983, Stephanie filed consolidated motions

to hold Joseph in contempt for failure to make child support
payments, to deny his petition for modification, to amend the
child visitation portions of the decree, and to award her
costs and attorney fees. Stephanie's motions and Joseph's

petition were set for hearing on December 2, 1983, continued
to December 5, 1983, by stipulation of counsel, and then
vacated and continued without time at- request of Joseph's
attorney.
On July 23, 1984, Joseph's attorney filed a consent to

withdraw as counsel, executed by Joseph, together with an
appropriate motion, and the court so ordered. Thereafter,
Stephanie's attorney noticed up her consol-idated motions for
hearing and had Joseph personally served.
 Shortly before the hearing, Joseph telephoned a Bozeman
attorney, McKinley Anderson, about representing him at the
hearing, but did not retain him. Anderson, however, did call
Stephanie's attorney to seek agreement to a continuance, hut
the request was refused. Anderson then attempted to notify
Joseph, but Joseph's phone had been disconnected. As a
result, Anderson notified the clerk of court by phone, and
District Judge Byron L. Robb by letter which was received on
the day of the hearing.
Joseph called Judge Robb on March 15, 1985, about 20 to
30 minutes before the 2:00 p.m. hearing, spoke of calling Mr.
Anderson, and was told the hearing would be held as scheduled
as Joseph had been personally served with notice six weeks
before.
Joseph was not represented at the hearing by himself or
through counsel. Stephanie, however, was present and did
testify. Stephanie's testimony essentially restated the
facts alleged in her affidavits, referred to above.
Joseph raises five issues for our review:
1. P7hether it was in the child's best interest to
change her custody from sole custody in Stephanie, with
restricted visitation, to joint custody, with her school year
spent in her father's residence;
2. Whether it was proper for the District Court to find
Joseph in contempt of court and whether S 3-1-523, MCA, is
constitutional in that it denies Joseph his constitutional
right to appeal a jail term that was imposed upon him;
3. Whether it was proper for the District Court to
order Joseph to pay child support for the period the child
was absent from Montana;
 4. Whether it was proper for the District Court,
knowing that Joseph was being denied h i right to appear with
effective counsel and to confront the witnesses against him,
to overturn a previous contempt order against Stephanie and
hold Joseph in contempt; and
5. Whether it was proper for the court to accept the
fraudulent statements of Stephanie and to allow Stephanie and
her attorney to testify concerning Joseph's actions while
Joseph was being denied his right to appear and confront the
witness.
The first issue raised by Joseph raises two questions:
whether the District Court properly denied Joseph's petition
for modification of custody and whether it properly amended
the child visitation portion of the dissolution decree.
Modification of a custody decree is governed. by S

40-4-219, MCA, which provides in part:
(1) The court may in its di-scretion modify a prior
custody decree if 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 custodian and
that the modification is necessary to serve the
best interest of the child a.nd if it further finds
that:
(a) the custodian agrees to the modification;
(b) the child has been integrated into the family
of the petitioner with consent of the custodian;
(c) the child's present environment endangers
seriously his physica.1, mental, moral, or emotional
health and the harm likely to be caused by a change
of environment is outweighed by its advantages to
him; or
(d) the child is 14 years of age or older and
desires the modification.
This Court is mindful. that the primary duty of deciding
the proper custody of children is the task of the District
Court. As a result, all reasonable presumptions as to the
correctness of the determination by the District Court will
be made. In re Gore (1977), 174 Mont. 321, 325, 570 P.2d
1110, 1112; Foss v. Leifer (1976), 170 Mont. 97, 100, 550
P.2d 1309, 1311. Due to this presumption of correctness, the
District Court's findings will not be disturbed unless there
is a mistake of law or a finding of fact not supported by
credible evidence that would amount to a clear abuse of
discretion. Solie v. Solie (1977), 172 Mont. 132, 137, 561
P. 2d 443, 446. The finding must be clearly erroneous. Rule
52 (a), M.R.Civ.P. The District Court concluded that no
material change of circumstances existed to warrant
consideration of a change of custody of Ashley to Joseph, and
that to the contrary, to change custody to Joseph even part
time would endanger the physical, mental, moral and emotional
health and well being of the child. We find that the record
of this case supports the determination of the District
Court. It did not abuse it's discretion in denying Joseph's
petition for modification.
The District Court, however, did modify Joseph's
visitation rights. The dissolution decree provided
reasonable rights of visitation to the father, with various
holidays and other days enumerated for Joseph. In the
instant proceeding, the District Court modifie8 Joseph's
visitation to reasonable times and places only upon at least
five d-ays written notice to Stephanie and then only under
supervised conditions so as to protect and guard the safety
and return of the child. The court also gave Stephanie the
power to establish the terms of the supervised visitations.
Modification of visitation rights is governed by 5
40-4-217(3), MCA, which provides:
 The court may modify an order granting or denying
visitation rights whenever modification would serve
the best interest of the child; but the court shall
not restrict a parent's visitation rights unless it
finds that the visitation would endanger seriously
the child's physical, mental, moral, or emotional
health.
Clearly, District Court has the discretion modify

the noncustodial parent's rights whenever such modification
would he in th.e best interest of the child. By the express
terms of the controlling statute, however, the District Court
cannot restrict such rights unless it first finds that the
existing visitation arrangement seriously endangers the
child's physical, mental, moral or emotional hea1.t.h. Matter
of Custody of R.L.S. (Mont. 1981), 632 P.2d. 703, 705, 38
St.F.ep. 1328, 1333; Firman v. Firman (1980), 187 Kont 465,
468, 610 P.2d 178, 180. The record contains no such finding.
We, therefore, remand for the District Court to make such a
finding for the purpose of a complete record in the District
Court. We also hold that the record would support such a
finding.
The next two issues raised by Joseph concern the
District Court's fin.ding him in contempt for his fa-ilure to
pay child support in accordance with previous court orders
and the constitutionality of S 3-1-523, MCA.
We will first address the District Court's finding
Joseph in contempt. As Joseph himself points out, S 3-1-523,
MCA, provides that the judgment and orders of the District
Court in contempt cases are "final and conclusive,'' and no
appeal may be taken from them. The proper avenue to use to
gain review of a contempt order, by this Court, is a writ of
certiorari. This Court, in the past, has refused to consider
matters of contempt on direct appeal based on § 3-1-523, MCA,
and will again do so in this case. Milanovich v. Milanovich
(Mont. 1982), 655 P.2d 959, 961, 39 St.Rep. 1554, 1557;
Katter of Estate of Gordon (Mont. 1981), 628 P.2d 1117, 1119,
38 St.Rep. 887, 890; O'Niel v. O'Niel (1979), 184 Mont. 415,
416, 603 P.2d 257, 258.
Joseph next contends that 3-1-523, MCA, is
unconstitutional in that it denies him his constitutional
right to appeal a jail term. This issue, however, was not
initially raised in the District Court nor was a notice of
constitutional challenge ever filed as required by Rule 38,
M.R.App.Civ.P. It is fundamental- that on appeal a
constitutional challenge to a statute cannot be determined,
where it was not initially raised in the District Court.
Englund v. Englund (1976), 169 Mont. 418, 421, 547 P.2d 841,
842; Spencer v. Robertson (1968), 151 Mont. 507, 511, 445
P.2d 48, 50-1; Clark v. Worall (1965), 146 Mont. 374, 380,
406 P.2d 822, 825. An issue is also not properly before this
Court when a notice of constitutional challenge is not
properly filed as required by Rule 38, M.R.App.Civ.P.
Eschenburg v. Eschenburg (1976), 171 Mont. 247, 253, 557 P.2d
1014, 1017. Clearly, this issue is not properly before this
Court and we therefore decline to consider it.
Related to Joseph's contempt arguments is his assertion
that the District Court improperly reversed a previous
contempt order against Stephanie. The previous contempt
order to which Joseph refers is the order of the District
Court on October 2, 1981, holding Stephanie in contempt for
failing to comply with the terms of visitation in the parties
decree of dissolution and holding Joseph in contempt for
failing to make the child support payments. As a result,
both parties were apparently required to post $500.00 bonds.
On November 23, 1982, Joseph moved the court to return his
bond and the court so ordered. In the instant action, the
District Court ordered that Stephanie's $500.00 bond be
returned to her. It is this action by the District Court
which Joseph now attaches error. We find this argument
unavailing.
Joseph also contends that he should be "absolved" from
child support payments for the period the child was absent
from Montana due to Stephanie's concealment. It is true that
the original dissolution decree prohibited Stephanie from
moving more than 400 miles away. In contravention of the May
1981, dissolution decree, however, Stephanie moved to
Rosemont, California, shortly after the dissolution
proceeding. Joseph apparently did not know Stephanie's
whereabouts until March of 1983, approximately a year and a
half later. In finding of fact no. 12, the District Court
found that although Stephanie moved more than 400 miles away
in contravention of the court's decree, she was prompted to
do so by Joseph's failure to support their minor child and by
his harassment, threats and improper conduct toward
Stephanie.
In support of his argument Joseph cites a number of
cases from other jurisdictions that stand for the proposition
that a noncustodial parent may not be held in contempt for
failure to pay child support during periods the child is
improperly removed from the state. See, Wick v. Wick (Ill.
1960), 167 N.E.2d 207; Hasse v. Hasse (Minn. 1950), 45 N.W.2d
383; and Olson v. Olson (N.D. 1949), 38 N.W.2d 32. We find
none of these cases controlling.
The flaw in Joseph's argument is that the dissolution
decree did not and could not condition the support obligation
on the requirement that Stephanie not move more than 400
miles away. On several occasions this Court has spoken out
an the moral obligations of parents, and particularly
fathers, to support their children. It is the legal as well
as the moral duty of a parent to support his minor child and
the father is not absolved from the duty by a marriage
dissolution. Thus, one's obligation to pay the required
money for the support of his infant daughter is not simply an
outgrowth of the dissolution nor is it a mere incident
thereto, but it is a social and a parental obligation imposed
by law. Fitzgerald v. Fitzgerald (Mont. 1980), 618 P.2d 867,
868, 37 St.Rep. 1350, 1352; Woolverton v. Woolverton (19761,
169 Mont. 490, 492, 549 P.2d 458, 459; State ex rel. Lay v.
District Court (1948), 122 Mont. 61, 71-2, 198 P.2d 761, 767;
Refer v. Refer (1936), 102 Mont. 121, 129, 56 P.2d 750, 753.
We agree with Joseph's contentions that a noncustodial
parent should not be held in contempt for nonpayment of child
support when payments are made directly to the custodial
parent and when the location of the custodial parent is
concealed. We, however, do not find those to be the
circumstances in the instant case. It is true that there was
a period of time in which Joseph was unaware of the location
of Stephanie and was therefore unable to make his support
payments. Joseph's failure to make support payments,
however, was not just confined to that period of time. The
record indicates he failed to make the payments both before
Stephanie left for California and after he learned of her
whereabouts, all the way to the time of the March 1985,
hearing.
We also disagree with the assertion that these

circumstances absolve one of the duty to pay the support. We
therefore hold that the District Court properly ordered
Joseph to make child support payments for the period the
whereabouts of Stephanie and Ashley were unknown to Joseph.
The final issue raised by Joseph is whether it was
proper for the District Court to accept the fraudulent
statements of Stephanie and to allow Stephanie and her
attorney to testify concerning Joseph's actions while Joseph
was being denied his right to appear and confront the witness
by the court's failure to continue the hearing. Joseph
places great reliance on the argument that he was somehow
prejudiced by the District Court's failure to continue the
hearing upon learning 20 to 30 minutes before the hearing
that Joseph would not be present. It, however, has long been
the law of this state that the matter of granting or denying
a continuance is a matter addressed to the sound discretion
of the District Court. Section 25-4-503, MCA; Bolich v.
Bolich (1982), 199 Mont. 45, 49, 647 P.2d 844, 847; Dean v.
Carter (1957), 131 Mont. 304, 308, 309 P.2d 1032, 1034. The
District Court informed Joseph in response to his telephone
call just prior to the hearing that the hearing would be held
as scheduled as Joseph had been personally served with notice
six weeks before. We find the District Court did not abuse
its discretion by not continuing the hearing.
Joseph also implies that his due process rights were
violated by the District Court because it held the hearing in
Joseph's absence. The essential elements of due process,
however, are notice and the opportunity to be heard. Byrd v.
Columbia Falls Lions Club (1979), 183 Mont. 330, 332, 599
P.2d 366, 367. Both of the above elements were satisfied in
the instant case. Joseph was given notice of the hearing six
weeks in advance and the hearinq was held, thus providing him

with an opportunity to be heard even though he did not avail
himself of the opportunity. We hold that Joseph was accorded
his due process rights.
We affirm the judgment and decree of the District Court
but remand for an additional finding with regard to
modification of Joseph's visitation rights consistent with
this opinion. Stephanie will bear her own attorney fees on
appeal..

Justice

We Concur:

I