ROEBUCK v BAILES

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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. 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 . Appeal from: Counsel of Record: For Appellant : William Dee Morris a tgued , Helena, Montana For Respondent : Charles Smith argued, Helena, Montana Submitted: Decided : Filed: flR 3 - fm March 1, 1973 APR 8 - 1 9 ~ - 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 modific 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. 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. The 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 modif 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 proper medical c a r e exposing them It 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 maintenance. 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 physic 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 marriage. 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 . O S 107,135(1)(a), provides the court has the power t o R 11 Set a s i d e , *** children * * 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 *,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 . R.C.M, Section 21-138, 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. 139, 112 S.W.2d 165, 116 A.L.R. Goldsmith v. Salkey, 131 Tex. 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 A r t . I V , Sec. 1, United S t a t e s Constitution. other s t a t e . 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 a s they court within t h e United S t a t e s have by law o r usage i n the c o u r t s of such from which they a r e taken." State Act of June 25, 1948, Ch. 646, 62 S t a t . 947; 5 1738. 28 U.S.C.A. *** 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 judgment 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 cond 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 contrary i s not borne out by t h e record, A s we have no record I 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 antedated 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. contrary t o the evidence. Thus a p p e l l a n t ' s contention i s 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 presented 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 interests 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 Washington. 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 entitled 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 circumstances 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 : 1 I dissent, Asza ciate Justic

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