No. 12170
I N T E SUPREME COURT O THE STATE O M N A A
H F F OTN
1973
ROGER L. ROEBUCK,
P l a i n t i f f and A p p e l l a n t ,
-vs -
C R L L. ROEBUCK now CMdL &. BAILES,
AO
Defendant and Respondent.
Appeal from: D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t ,
Honorable Gordon R. Bennett, Judge p r e s i d i n g .
Counsel of Record:
For Appellant :
William Dee Morris a tgued , Helena, Montana
For Respondent :
Charles Smith argued, Helena, Montana
Submitted: March 1, 1973
APR 8 - 1 9 ~
Decided :
-
Filed: flR 3 - fm
M r . J u s t i c e Frank I. Haswell d e l i v e r e d t h e Opinion of t h e Court.
The f a t h e r of t h r e e minor c h i l d r e n was awarded t h e i r
custody following a divorce i n t h e c i r c u i t c o u r t of Deschutes
County, Oregon. The c h i l d r e n l i v e d with t h e i r f a t h e r i n Oregon
pursuant t o t h e Oregon decree, with minor modifications, f o r about
t h r e e years. During a summer v i s i t a t i o n with t h e i r mother i n
Montana pursuant t o t h e Oregon decree, t h e mother sought modifi-
c a t i o n i n Montana of t h e Oregon Custody award based on changed
circumstances, The d i s t r i c t c o u r t of L e w i s and Clark County,
Montana, modified t h e Oregon decree, awarding exclusive custody
of t h e t h r e e minor c h i l d r e n t o t h e mother and enjoining t h e f a t h e r
from i n t e r f e r i n g with h e r custody. The f a t h e r appeals from t h i s
custody o r d e r of t h e Montana court.
The s o l e i s s u e f o r review upon appeal i s t h e j u r i s d i c t i o n
of t h e Montana d 2 s t r i c t c o u r t t o modify t h e Oregon custody award.
Appellant i s Roger L. Roebuck, t h e f a t h e r of t h e t h r e e minor
c h i l d r e n whose custody i s i n d i s p u t e . Respondent i s Carol L.
Roebuck, now Carol L. B a i l e s , the mother. The t h r e e minor c h i l d r e n
a r e a g i r l now age 13, and two boys now ages 1 and 9.
1
The f a t h e r and mother were married i n Oregon i n 1960. The
t h r e e minor c h i l d r e n were i s s u e of t h i s marriage. On J u l y 31, 1968,
t h e f a t h e r and mother were divorced by decree of t h e c i r c u i t c o u r t
of Deschutes County, Oregon. Under t h e terms of t h e divorce decree,
the f h t h e r was awarded custody of t h e t h r e e minor c h i l d r e n w i t h
s p e c i f i e d v i s i t a t i o n r i g h t s i n t h e mother. On J u l y 31, 1970, t h e
c i r c u i t c o u r t of Deschutes County, Oregon, modified t h e v i s i t a t i o n
r i g h t s g r a n t i n g t h e mother t h e r i g h t t o have t h e c h i l d r e n with h e r
i n Montana f o r a f o u r week period each summer, but r e t a i n i n g custody
i n the father.
The mother remarried i n 1969 and l i v e s i n Montana. On
J u l y 19, 1971, during t h e c h i l d r e n ' s summer v i s i t a t i o n w i t h t h e i r
mother i n Montana pursuant t o t h e terms of t h e Oregon custody award,
t h e mother f i l e d a p e t i t i o n t o modify the Oregon custody award
i n the d i s t r i c t court of Lewis and Clark County, Montana. She
sought t o have the Oregon custody award t o the f a t h e r s e t a s i d e
and custody awarded t o h e r , based on changed circumstances. On
t h e same day the Montana d i s t r i c t court issued a temporary custody
order awarding exclusive custody t o the mother pending hearing,
and r e s t r a i n i n g the f a t h e r from i n t e r f e r i n g with t h a t custody
pending hearing, A copy of the order and p e t i t i o n was personally
served upon the f a t h e r i n Deschutes County, Oregon on July 28.
I n t h e meantime before the hearing was held i n the Montana
d i s t r i c t court on the mother's p e t i t i o n f o r modification, the
f a t h e r commenced contempt proceedings a g a i n s t the mother i n t h e
Oregon court f o r w i l l f u l v i o l a t i o n of the Oregon custody award
requiring h e r t o r e t u r n t h e children t o him i n Oregon* i n July.
These proceedings w e r e commenced on August 11, but the mother could
not be served although copies of t h e l a s t Oregon custody award of
July 1970, the f a t h e r ' s a f f i d a v i t a l l e g i n g contempt by t h e mother,
and the c o u r t ' s order s e t t i n g the contempt charge f o r hearing
were delivered t o the mother's Montana a t t o r n e y ,
On September 7 the Oregon court held a hearing on t h e contempt
charges against t h e mother a t which she did n o t appear, but a s
shown above she had never been personally served. Nonetheless the
Oregon court entered the mother's d e f a u l t i n the contempt proceedings
and proceeded t o hold t h e hearing.
Following t h i s hearing, the Oregon court issued a warrant
of a r r e s t f o r contempt a g a i n s t the mother and s p e c i f i c a l l y made
t h e following findings: (1) That the f a t h e r maintains an exemplary
home l i f e and f a c i l i t i e s f o r the care of t h e children, (2) t h a t
t h e r e e x i s t s no change i n circumstances requiring modification
of i t s custody orders, (3) t h a t t h e temporary absence of the children
from Oregon does not deprive the Oregon c o u r t of i t s j u r i s d i c t i o n
over t h e i r custody, and (4) terminating i t s previous summer v i s i t a -
t i o n order,
W note t h a t these proceedings and orders of t h e Oregon
e
court on September 7 were not i n evidence before the Montana court
when i t held i t s hearing on the mother's p e t i t i o n f o r modification,
but were furnished t h i s Court a t the time of o r a l argument of
t h i s appeal. However, we r e l a t e them here i n the chronology of
events leading t o t h i s appeal i n the i n t e r e s t s of completeness
although we do not consider them germane t o determination of t h i s
appea 1,
On September 15, the d i s t r i c t court of L e w i s and Clark
County, Montana held a hearing on the mother's p e t i t i o n f o r modi-
f i c a t i o n of the Oregon custody award. On September 21, t h e
Honorable Gordon R. Bennett, d i s t r i c t judge, entered findings of
f a c t , conclusions of law, and a custody order. B r i e f l y , he found
t h a t since t h e divorce and the l a s t custody order of the Oregon
court "there has been a s u b s t a n t i a l and material, i f not d r a s t i c ,
change of conditions a f f e c t i n g the welfare and custody of s a i d
c h i l d r e n , which change of c o n d i t i ~ n s
has been conclusively proved
by the testimony of t h e f a t h e r himself." Specific findings r e l a t e d
t o t h e f a i l u r e of the f a t h e r t o provide two of the children with
It
proper medical c a r e exposing them t o grave danger and r i s k of
serious and permanent physical harm and damage." Generally t h e
findings encompassed the conclusion t h a t t h e welfare of the children
and t h e i r emotional, s p i r i t u a l and physical development by reason
of changed circumstances since the l a s t Oregon custody award
required a change i n t h e i r custody from the f a t h e r t o t h e mother.
The Montana court ordered: (1) That t h e Oregon decree be modified
t o place exclusive custody i n t h e mother, (2) enjoined the f a t h e r
from i n t e r f e r i n g with t h e mother's custody, and (3) required the
f a t h e r t o pay t h e mother $150 per month c h i l d support and mainten-
ance.
The f a t h e r now appeals from t h i s custody order of t h e
Montana d i s t r i c t court, A s heretofore s t a t e d , the s o l e i s s u e on
appeal i s the j u r i s d i c t i o n of the Montana d i s t r i c t court t o e n t e r
t h i s order.
The f a t h e r mounts a three-pronged a t t a c k on the j u r i s -
d i c t i o n of the Montana d i s t r i c t c o u r t , contending: (1) The
Oregon court has exclusive j u r i s d i c t i o n over the custody of the
c h i l d r e n by v i r t u e of i t s cantinuing j u r i s d i c t i o n a s t h e court
of o r i g i n a l award and the Oregon domicle of t h e children. (2)
The Montana court has no j u r i s d i c t i o n over the custody of the
children a s they a r e not d o m i c i l i a r i e s of Montana and were physi-
c a l l y present i n Montana only temporarily under the terms of the
Oregon decree. (3) The Montana court denied " f u l l f a i t h and c r e d i t "
t o t h e Oregon custody award by adjudicating the same i s s u e s a s
were previously adjudicated t o the contrary by t h e Oregon court.
Directing our a t t e n t i o n t o the f a t h e r ' s f i r s t contention,
i t i s c l e a r the Oregon court had continuing j u r i s d i c t i o n over the
custody of the children both a s the court of o r i g i n a l award and
as t h e court of t h e c h i l d r e n ' s domicile. It i s admitted t h a t t h e
Oregon court had j u r i s d i c t i o n i n the f i r s t instance over the
divorce proceeding and custody of the minor children of t h e marri-
age. The Oregon courtp~ssessedcontinuingj u r i s d i c t i o n t o modify
i t s o r i g i n a l custody award by the express provisions of s t a t u t e .
11
O S 107,135(1)(a), provides the court has the power t o
R Set a s i d e ,
a l t e r o r modify so much of t h e decree a s may provide *** for
the custody, support and welfare of the minor children * * *,I1
Godfrey v. Godfrey, 228 O r . 228, 364 P.2d 620. Montana has a
s i m i l a r s t a t u t e and recognizes such j u r i s d i c t i o n . Section 21-138,
R.C.M, 1947; C o r k i l l v. Cloninger, 153 Mont. 142, 454 P.2d 911;
Brandner v. Brandner, 154 Mont. 373, 464 P.2d 508. The Oregon '
court likewise has the j u r i s d i c t i o n t o determine the custody of
minor children who, a s here, a r e domiciled i n Qregon. Allen v,
Allen, 200 O r , 678, 268 P.2d 358.
However, the j u r i s d i c t i o n of t h e Oregon court i n such cases
i s not n e c e s s a r i l y exclusive, It i s widely, i f not u n i v e r s a l l y ,
recognized t h a t physical presence of a minor c h i l d within t h e
borders of a s t a t e i n v e s t s the c o u r t s of t h a t s t a t e with j u r i s -
d i c t i o n t o determine custody where the welfare of the c h i l d i s
concerned, In re Clay, 96 Ariz. 160, 393 P.2d 257; Fenner v,
Bassett, (Alaska 19661, 412 P.2d 318; Stout v, Pate, 120 C.A.2d
699, 261 P,2d 788; Heilman v, Heilman, 122 C.A.2d 771, 266 P.2d
148; Sampsell v. Superior Court, 32 C.2d 763, 197 P.2d 739; Eddy
v. Staufer, 160 Fla, 944, 37 S.2d 417; Application of Anderson,
79 Ida. 68, 310 P.2d 783; Oleen v. Oleen, 15 Utah 2d 326, 392
P.2d 792. Under material facts identical to the instant case, the
Texas Supreme Court found jurisdiction based on temporary presence
of a minor child within the state. Goldsmith v. Salkey, 131 Tex.
139, 112 S.W.2d 165, 116 A.L.R. 1293.
The origin and fountainhead of such jurisdiction lies
in the power of a state as parens patriae to protect the innocent
and helpless found within its borders without regard to their
legal domicile, Finlay v. Finlay, 240 N.Y. 429, 148 N.E. 624,
4 ALR
0 ... 937; In re Clay, supra; McMillin v. McMillin, 114 Colo,
247, 158 P.2d 444, 160 A.L.R. 396; Starr v, Starr, 121 C.A.2d 633,
263 P.2d 675; Bassett v. Bassett, 56 N.M. 739, 250 P.2d 487, Anno.
4 ALR2d 41, 5 24. Such jurisdiction exists notwithstanding a valid
existing custody award by a court of a sister state. Goldsmith
v, Salkey, supra; Bassett v. Bassett, supra; Stout v. Pate, supra;
Heilman v, Heilman, supra; In re ~ee's Guardianship, 123 C.A.2d
882, 267 P.2d 847; Sampsell v. Superior Court, supra; Oleen v,
Oleen, supra.
While the foregoing authorities are not binding precedent
in Montana, the basic rationale indicated in the two preceding
paragraphs is persuasive. Under the circumstances of the instant
case, such rationale is compelling. We hold therefore that where,
as here, the circumstances of the case warrant the intervention
of the state of Montana as parens patriae for the protection and
welfare of minor children physically present within its borders,
the jurisdiction of the Montana court cannot be denied solely by
reason of an outstanding valid custody award by a court of the
children's domicile.
The f i n a l i s s u e i s whether the Montana court denied 'ffulf
f a i t h and c r e d i t f f t o the Oregon custody award by adjudicating the
same i s s u e s previously decided t o the contrary by the Oregon court.
A b r i e f review of t h e applicable law p e r t i n e n t t o t h i s
i s s u e w i l l furnish the necessary background f o r i t s determination.
The United S t a t e s Constitution r e q u i r e s t h a t f u l l f a i t h and c r e d i t
must be given by each s t a t e t o t h e j u d i c i a l proceedings of every
other s t a t e . A r t . I V , Sec. 1, United S t a t e s Constitution. sup:
plementary l e g i s l a t i o n enacted by Congress provides i n p e r t i n e n t
part :
"Such ***
j u d i c i a l proceedings *** shall
have the same f u l l f a i t h and c r e d i t i n every
court within t h e United S t a t e s ***
a s they
have by law o r usage i n the c o u r t s of such
State ***
from which they a r e taken."
Act of June 25, 1948, Ch. 646, 62 S t a t . 947;
28 U.S.C.A. 5 1738.
The essence of these requirements a s they apply t o subsequent
custody orders by t h e court of a s i s t e r s t a t e i s summarized
i n 24 Am J u r 2d, Divorce and Separation 5 1000, p. 1140:
If* ** The f u l l f a i t h and c r e d i t clause does
not prevent other s t a t e s from changing custody
under t h e same circumstances. While the judg-
ment of a divorce court concerning custody i s
r e s judicata of the i s s u e as of the time of t h e
adjudication, another s t a t e may make a new order
where the circumstances have changed and the
welfare of the c h i l d w i l l be promoted by the
modification.
" *** i t i s usually held t h a t a new order f o r
custody can be made i n another s t a t e only where t h e r e
has been a s u b s t a n t i a l change i n circumstances s i n c e
t h e e n t r y of the decree. I f the circumstances a r e
unchanged, the foreign decree, i f rendered by a court
having j u r i s d i c t i o n t o award custody, should be given
f u l l f c r c e and e f f e c t , "
The Montana Supreme Court held t o the same e f f e c t i n
C o r k i l l v, Cloninger, 153 Mont. 142, 150, 454 P.2d 911:
"Thus the c o u r t s of e i t h e r s t a t e may possess j u r i s -
d i c t i o n t o make a subsequent custody award, but
such subsequent awards must be based on changed con-
d i t i o n s a f f e c t i n g custody s i n c e e n t r y of t h e e x i s t i n g
v a l i d custody award. In t h i s manner, the c o n s t i t u -
t i o n a l requirement t h a t f u l l f a i t h and c r e d i t be given
t o v a l i d judgments and orders of the courts of a
s i s t e r s t a t e i s satisfied."
I n the i n s t a n t case, a t t h e time of the hearing i n the
Montana court t h e Oregon custody order of July 1970 was t h e
e x i s t i n g v a l i d custody award, The purported findings and custody
order of t h e Oregon court on September 7, 1971, i n the contempt
hearing was void a s i t exceeded the scope of the n o t i c e and
i s s u e s of t h a t hearing and no personal s e r v i c e was made on t h e
mother. I n any event, t h a t hearing was limited t o the i s s u e of
whether the mother was i n contempt of court by reason of w i l l f u l
v i o l a t i o n of t h e terms of t h e custody order of July 31, 1970.
The i s s u e s of the f i t n e s s of the f a t h e r f o r custody o r changed
circumstances s i n c e J u l y 1970 were foreign t o the n o t i c e of
hearing on the i s s u e of contempt properly before the Oregon court.
As such the i s s u e s of f i t n e s s and changed circumstances were
beyond the j u r i s d i c t i o n of the Oregon court t o hear and determine
i n t h a t proceeding, t h e determination of such i s s u e s was and i s of
no e f f e c t even i n t h e s t a t e of Oregon. Accordingly, the d e t e r -
mination of such i s s u e s i s not e n t i t l e d t o any f a i t h and c r e d i t
i n Montana.
Appellant's contention t h a t t h e Montana court readjudicated
the same i s s u e s previously decided by the Oregon court t o t h e
I
contrary i s not borne out by t h e record, A s we have no record
of the testimony o r the s p e c i f i c conditions a f f e c t i n g custody
before the Oregon c o u r t , we must n e c e s s a r i l y r e l y on such times
and d a t e s a s were established i n t h e evidence before t h e Montana
court i n determining whether a given condition predated o r ante-
dated t h e Oregon custody award. While such evidence d i s c l o s e s
t o some extent an overlap of conditions adversely a f f e c t i n g the
c h i l d r e n ' s welfare, both before and a f t e r the Oregon decree of
J u l y 31, 1970, i t i s manifest t h a t these conditions had r a p i d l y
d e t e r i o r a t e d subsequent t o t h a t d a t e and had become acute,
damaging, and demanded immediate a t t e n t i o n a t the time the Montana
court assumed j u r i s d i c t i o n . Such circumstances c o n s t i t u t e a
s u b s t a n t i a l and material change in conditions a f f e c t i n g custody
and the d i s t r i c t court s o found. Thus a p p e l l a n t ' s contention i s
contrary t o the evidence.
What were the material changes in circumstances since the
Oregon custody award? It is unnecessary and inadvisable to detail
the facts as they stand largely undisputed and no issue is pre-
sented in this appeal concerning the sufficiency of the evidence
to support the findings. Suffice it to note that they concern
immediate and acute physical, medical, dental, educational and
emotional problems of the minor children directly related to the
father's care, custody and control. The findings of the Montana
court concerning substantial and material changes affecting the
welfare and custody of the children are not in issue in this
appeal and fully support the conclusion of law:
11
That the changed circumstances hereinabove
mentioned render it essential that said minor
children's custody, care and control be changed
from the father to the mother and the best in-
terests of said children and their welfare will
be served thereby.11
Both the findings and conclusions of the Montana district court
support its order changing custody to the mother,
Appellant principally relies on Carroll v. White, 151
Mont. 332, 443 P.2d 13, to sustain his contention that the
Montana court has no jurisdiction to determine custody in the
instant case, Carroll is entirely consistent with our holding
in the instant case, being distinguishable on both the facts
and the law. In Carroll, a mother domicled in Washington who
had custody of her two minor children, also domiciliaries of
Washington, under a Washington custody order permitted them to
visit their father, who was domiciled in Montana, for a month
during the summer, When the father did not return them to
Washington, the mother brought an action in a Montana district
court to have the children returned to her, relying on the
Washington decree for custody, The father counterclaimed on the
basis the mother had transferred their custody to him and had
consented to their remaining with him during the next school year.
The Montana district court found that no such agreement existed
and ordered the return of the children to their mother in Washing-
ton. On appeal we held that the Washington decree granting
custody to the mother was entitled to full faith and credit.
There was no issue before the Montana court concerning
the mother's fitness for custody. Subsequently in Corkill,
we expressly indicated our disapproval of the rule denying
jurisdiction to determine custody to any court outside the state
of the child's then existing domicile, overruling Application
of Enke, 129 Mont. 353, 287 P.2d 19, to the contrary.
Carroll is consistent with our ruling in the instant
case. There, as here, the court of a sister state had made a
valid existing custody award concerning minor children domiciled
in the sister state, The custody award was res judicata of the
issues as of the time of the adjudication and accordingly en-
titled to full faith and credit in Montana. But in Carroll,
unlike the instant case, there was no subsequent change in
conditions and circumstances affecting custody and therefore
no basis for the readjudication thereof by the Montana court.
For the foregoing reasons we hold that under the circum-
stances af the instant case, the Montana court had jurisdiction
to readjudicate the custody of the minor children here involved,
The judgment of the district court is affirmed.
Associate Justice
MR. JUSTICE JOHN C O N W A Y m d i s s e n t i n g :
I dissent, 1
Asza ciate Justic