No.
79-8
I N THE SUPREME COURT O THE STATE O MONTANA
F
F
1980
I N RE THE MARRIAGE O
F
CAMDEN ELAINE W I N N ,
P e t i t i o n e r and R e s p o n d e n t ,
-vsLESLIE NiND W I N N ,
Respondent a n d , A p p e l l a n t .
The D i s t r i c t C o u r t o f t h e N i n e t e e n t h J u d i c i a l
D i s t r i c t , I n and f o r t h e County o f L i n c o l n ,
The H o n o r a b l e R o b e r t C. H o l t e r , J u d g e p r e s i d i n g .
Appeal from:
Counsel o f Record:
For A p p e l l a n t :
Murphy, Robinson, H e c k a t h o r n and P h i l l i p s ,
K a l i s p e l l , Montana
For Respondent:
Fennessy,
Montana
C r o c k e r , Harmon and B o s t o c k , L i b b y ,
S u b m i t t e d on B r i e f s :
J u n e 5 , 1980
z2
Decided:OC~
Filed:
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,
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.
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Mr. J u s t i c e D a n i e l J . S h e a d e l i v e r e d t h e O p i n i o n o f t h e C o u r t .
The f a t h e r ,
L e s l i e Rand Winn,
a p p e a l s from a judgment
of
t h e L i n c o l n County D i s t r i c t C o u r t d e n y i n g h i s p e t i t i o n t o m o d i f y
W affirm the District Court,
e
a custody decree.
t h e r e q u e s t of
t h e w i f e t h a t s h e be awarded
b u t a l s o deny
attorney fees for
expenses incurred i n defending t h i s appeal.
Camden E l a i n e Winn
married
on
J u l y 2 7 , 1 9 7 3 i n T r o y , Montana, and d i v o r c e d on May 2 6 , 1 9 7 6 .
A
daughter
was
born
and L e s l i e Rand Winn w e r e
during
the
marriage
D i s t r i c t Court decree gave custody t o
and
the
Lincoln
t h e mother.
County
The f a t h e r
received reasonable v i s i t a t i o n r i g h t s .
On
January
m o d i f i c a t i o n of
custody of
19,
1979,
the
father
the custody decree,
t h e minor
daughter.
filed
a
petition
for
and a s k e d t h a t h e b e g i v e n
Shortly before,
t h e m o t h e r had
moved t o N o r t h C a r o l i n a w i t h t h e d a u g h t e r t o be w i t h a man whom
she
was
to
provided
marry
that
the
in
May
mother
of
that
first
year.
obtain
The
original
permission
decree
from
the
D i s t r i c t Court i f she intended t o e s t a b l i s h residence i n another
state.
The m o t h e r f a i l e d t o do t h i s .
The e s s e n t i a l c o n t e n t i o n o f
request
for
custody,
r e s i d e n c e many
was
that
the father
the
mother
i n s u p p o r t of
had
changed
his
her
times w h i l e l i v i n g i n t h e L i n c o l n C o u n t y a r e a ,
t h u s a d v e r s e l y a f f e c t i n g t h e c h i l d , and t h a t t h e m o t h e r had l i v e d
with
other
remarriage.
men
or
had
other
men
living
with
her
before
her
The t r i a l c o u r t a c c e p t e d n e i t h e r o f t h e s e a r g u m e n t s ;
nor do we.
Although t h e mother
had moved many
times
in
the
general
v i c i n i t y o f L i b b y and K a l i s p e l l a f t e r t h e d i v o r c e and b e f o r e h e r
move t o N o r t h C a r o l i n a ,
adversely
affected
the
i t was n o t e s t a b l i s h e d t h a t t h e s e moves
physical,
mental,
moral
or
h e a l t h o f t h e c h i l d a s r e q u i r e d by s e c t i o n 4 0 - 4 - 2 1 9 ( 1 ) ,
emotional
MCA.
The
f a t h e r was n o t p r e v e n t e d f r o m v i s i t i n g h i s c h i l d b e c a u s e o f t h e s e
many moves.
The
father
did
not
prove
that
the
mother's
living
with
o t h e r men b e f o r e h e r r e m a r r i a g e a d v e r s e l y a f f e c t e d t h e h e a l t h o f
the
child
so a s t o
40-4-219.
1309,
require
See Foss v.
1312.
a
change
custody
under
( 1 9 7 6 ) , 1 7 0 Mont.
Leifer
The e v i d e n c e ,
in
a t best,
shows t h a t
97,
section
550 P.2d
t h e mother
may
h a v e t e m p o r a r i l y l i v e d w i t h o n e man o t h e r t h a n t h e man s h e i s now
married to.
The e v i d e n c e e s t a b l i s h e s t h a t t h e m o t h e r ' s p r e s e n t
husband
i n t e r a c t s w e l l with
clean.
I t a p p e a r s t h a t h e i s employed.
trial
court
t h e c h i l d and t h a t h e i s n e a t and
its discretion
abused
in
W cannot say t h a t the
e
finding
that
the
child's
w e l f a r e was n o t a d v e r s e l y a f f e c t e d w i t h i n t h e meaning o f s e c t i o n
40-4-219.
N o n e t h e l e s s , t h i s c a s e i l l u s t r a t e s a p r o b l e m w h i c h may v e r y
w e l l g e t worse.
removing
the
ex-husband
to
By n o t
child
take
seeking t h e c o u r t ' s permission
from
some
the
state,
action
in
the
court
mother
to
before
forced
her
reestablish
his
relationship with h i s daughter.
The
original
decree
allowed
the
father
to
visit
his
d a u g h t e r upon r e a s o n a b l e n o t i c e a s o f t e n a s h e w i s h e d a s l o n g a s
t h e v i s i t s did n o t unreasonably
p o r t i o n of
i n t e r f e r e with t h e wife.
That
t h e d e c r e e was e f f e c t i v e l y n u l l i f i e d when t h e m o t h e r
moved
t o North C a r o l i n a with her
with
a
visitation
decree
which
child.
was
The f a t h e r was l e f t
virtually
meaningless.
U n d o u b t e d l y i t was t o p r e v e n t t h i s k i n d o f s i t u a t i o n w h i c h c a u s e d
t h e t r i a l c o u r t i n t h e o r i g i n a l o r d e r t o r e q u i r e t h e mother
to
g e t permission
to
another s t a t e .
could,
f r o m t h e c o u r t b e f o r e moving w i t h t h e c h i l d
A l t h o u g h w e do n o t s u g g e s t t h a t t h e t r i a l c o u r t
a b s e n t some p e r s u a s i v e e v i d e n c e , p r e v e n t t h e m o t h e r
moving t o a n o t h e r
s t a t e with her
child,
from
it goes without saying
t h a t had t h e m o t h e r g i v e n a d v a n c e n o t i c e , t h e f a t h e r ' s v i s i t a t i o n
p r i v i l e g e s c o u l d have been a c c o r d i n g l y m o d i f i e d .
B u t when
the
mother
left without
first getting
the decree modified
visitation, she forced the father's hand.
as to
The only meaningful
option he had was to force the issue by seeking a change in
custody.
Although he was not successful, he at least obtained a
change in visitation to reflect the changed geographical distance
between himself and his daughter.
the
father
alternate
have
custody
Christmas
and
for
The trial court ordered that
six weeks
Easter
every
holidays
and
summer, during
at
other
times
convenient to the father and which would not interfere with the
schooling or other activities of the child.
District courts have the means to compel compliance with
their orders concerning removal of children from the state.
A
trial court may assert continued power over domestic matters by
requiring a bond conditioned upon a party's compliance with the
See Grimditch v. Grimditch (1951), 71 Ariz. 237,
court order.
226 P.2d 142 (permitting, under the facts, removal without bond);
Wallace
v.
Wallace
(1932), 92 Mont.
489,
15 P.2d
915, 918
(security can be required to enforce an alimony decree).
The
trial court may also hold in contempt a parent who violates an
order to secure court approval before removing a child from the
state.
Benson
Ex Parte Sellers (1948), 250 Ala.
v.
Benson
(1948), 121 Mont.
87, 33 So.2d
439, 193 P.2d
349;
827, 829
(dictum); see also Kramer v. Kramer (1978), 176 Mont. 362, 578
P.2d 317, 318.
We suggest that the trial court, in appropriate
cases, employ these alternatives.
The mother contends that this appeal is frivolous and asks
us to assess a penalty against the father pursuant to Rule 32,
M.R.App.Civ.P.,
or, alternatively, to award her
attorney fees
pursuant to section 40-4-110, MCA, because she cannot afford to
pay her own attorney.
She did not make this request at the trial
level, and we are not inclined to act favorably on this request
here.
We cannot ignore the fact that it was the mother who moved
to North
Carolina without
first getting
a
change
in
the
visitation privileges, and thus forced the father to initiate the
present litigation.
Essentially, he had no other choice.
Under
the circumstances, the mother is not in an equitable position to
argue that the father should pay her attorney fees.
The
order
refusing
to grant custody
to
the
father
affirmed.
y&
d &
J
We Concur :
C h b f Justice
t
e
is
