Overman v. Overman ( 1981 )

BAKES, Justice.

Plaintiff appellant Lillian Overman obtained a default judgment of divorce from defendant respondent Steven Over-man in January, 1978, in the district court of the Third Judicial District. The divorce decree awarded appellant Lillian Overman custody of the couple’s five minor children, ordered respondent Steven Overman to pay $75 per month per child in child support, and divided the couple’s property.

On September 26, 1978, respondent Steven Overman moved for modification of the divorce decree to enable him to obtain permanent custody of the couple’s children. Respondent sought immediate temporary custody of the five children and a hearing on his motion to modify the divorce decree to grant him permanent custody.

In support of his motion, respondent submitted an affidavit of a social worker employed by the Idaho Department of Health & Welfare. The affidavit was based on the files of the department and alleged that the department had received numerous reports and complaints indicating that appellant was improperly caring for the couple’s children. Among the allegations made by affiant, based upon the department’s files, were that the two school age children were not regularly attending school; the children were often left without proper supervision; the children were in need of clothing and shoes; the appellant mother had attempted to place the children in a foster home; and that the affiant feared that the appellant mother would soon be leaving the state with the children.

On September 26, 1978, prior to notice to appellant of the proceedings and without a hearing, the district court granted the respondent father immediate temporary custody of the children pending a plenary hearing on respondent’s motion for modification of the divorce decree. The district court’s temporary order stated that it was entered to enable the court to maintain jurisdiction over the children until a hearing could be held. Hearing on the respondent father’s motion was set for October 6,1978, ten days after entry of the court’s ex parte order granting respondent temporary custody of the children.

On October 6,1978, both parents stipulated to a continuance of the matter until November 2, 1978, and agreed that the district court’s order granting the respondent father temporary custody of the children should remain in effect until a full hearing in the matter could be held. On October 31, 1978, the district court granted the appellant mother’s attorney leave to withdraw from the case on the grounds that appellant had not heeded his advice and had failed to maintain her financial commitments to him. This order extended the effect of the September 26, 1978, order until a hearing on respondent’s motion for modification could be held. The November 2, 1978, hearing was vacated and reset for December 8, 1978. On December 8, 1978, the appellant mother again moved for a continuance to allow her new attorney to prepare. The plenary hearing was finally held on February 20, 1979, with both parents present and represented by counsel. Testimony by several witnesses was heard and, by agreement of the parties, the court visited with each child in chambers.

Following the plenary hearing, the district court entered an order modifying the parties’ decree of divorce to grant the respondent father permanent care, custody and control of the parties’ five children. The district court concluded that appellant had neglected the needs of the children and that the best interests of the children would be served by modifying the original decree to grant the children’s father permanent custody of the children subject to visitation rights of the mother. In its findings of fact made following the hearing, the court noted that while in their mother’s custody the two school age children’s school attendance had been extremely sporadic and that, despite several conferences between the mother and school authorities on the problem, the children’s attendance did not improve. Neither child was promoted with her class at the end of the 1977-78 school year. Both children had continued to miss substantial amounts of school time when 1978-79 school year commenced until custody was obtained by their father on September 26, 1978. The court found that while in their father’s custody the children had regularly attended school and had received assistance with their school work at home. The court found, as a result of its interviews with the children, that the children understood the nature of the court proceeding and that they expressed satisfaction with the home environment created by their natural father and new stepmother. As a result of the evidence received at the hearing and the visits with the children, the district court granted permanent custody of the children to the respondent father and granted the appellant mother specified visitation rights.

Appellant on appeal challenges the propriety of the district court’s entry on September 26,1978, of an ex parte order granting respondent temporary custody of the children pending a hearing on respondent’s motion for modification of the divorce decree’s child custody provisions. Appellant contends that consideration of the Department of Health & Welfare’s affidavit and entry of the ex parte order deprived her of her right to custody of the children, granted by the divorce decree, without due process of law. She also argues that the district court’s procedure was in violation of I.R. C.P. 6(cX3) which requires that the court shall hear the testimony of interested parties in proceedings to modify child custody provisions of a divorce decree unless the parties have stipulated to modification of the decree.

The question presented by this appeal is a narrow one, i. e., whether the district court, on the non-custodial parent’s motion to modify the child custody decree, erred in entering an order granting temporary custody of the minor children to the non-custodial parent upon a properly supported ex parte motion pending a full hearing, to be held within ten days. It is our opinion that I.C. § 32-705¹ and I.R.C.P. 65(g), read together, permit the district court to enter an ex parte order granting temporary custody to a non-custodial parent if the record before him indicates that such an order was necessary in the case, would be in the best interests of the children, and is followed within ten days by a full hearing on the merits of the non-eustodial parent’s motion. We further hold that if adequate justification for an ex parte order temporarily transferring custody to a non-custodial parent is shown and if a full hearing on the question of which parent should maintain custody pending a motion to modify a custody decree is provided within ten days, no due process violation appears.²

Due process is not a fixed concept requiring a specific procedural course in every situation. “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). Determination of the specific dictates of due process requires comparing the private interest which will be affected and the probable value of additional or alternative procedural safeguards with the risk of erroneous deprivation of the private interest through the procedures actually used and the governmental interest in the procedural safeguards utilized. E. g., Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). Although central to procedural due process is the right to notice and an opportunity to be heard at a meaningful time and in a meaningful manner, see e. g., Goldberg v. Kelly, supra, prehearing judicial intervention in a matter is not per se violative of state or federal due process requirements. For example, seizure of a debtor’s property without notice to the debtor or opportunity for a preseizure hearing, upon application to a judicial officer by a creditor and submission of an affidavit setting out facts entitling the creditor to sequestration when state law provided for an immediate post seizure hearing, has been approved by the Supreme Court of the United States. Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974); see also Mathews v. Eldridge, supra (non-need based social welfare benefits may be terminated prior to hearing when recipient has opportunity for a post termination hearing on his or her right to receive benefits).

Questions regarding custody of minor children are directed in the first instance to the discretion of the trial court and unless such discretion is abused the court’s judgment in respect to custody will not be disturbed on appeal. Blakely v. Blakely, 100 Idaho 107, 594 P.2d 145 (1979); Koester v. Koester, 99 Idaho 654, 586 P.2d 1370 (1978); Strain v. Strain, 95 Idaho 904, 523 P.2d 36 (1974); Tomlinson v. Tomlinson, 93 Idaho 42, 454 P.2d 756 (1969). Where the district court exercises its discretion to award temporary custody to a non-custodial parent pending an immediate plenary hearing on a motion for modification of a child custody decree, our appellate review will be limited to determining whether the district court abused its discretion in entering the ex parte temporary order.

Provisions of a court order governing child custody are not final judgments and are not res judicata as to the issues determined. The district court maintains continuing jurisdiction to modify custody provisions whenever required by changed circumstances to insure the best interests and welfare of the children. E. g., Prescott v. Prescott, 97 Idaho 257, 542 P.2d 1176 (1975); Dey v. Cunningham, 93 Idaho 684, 471 P.2d 71 (1970). I.C. § 32-705 provides that:

“32-705. CUSTODY OF CHILDREN.— In an action for divorce the court may, before or after judgment, give such direction for the custody, care and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same.”

I.R.C.P. 65(g) provides that

“[i]n suits for divorce, annulment, alimony, separate maintenance or custody of children, the court may make prohibitive or mandatory orders, with or without notice or bond as may be just.”

Our examination of the record indicates that the district court did not abuse its discretion in awarding, on the basis of the respondent father’s motion and the affidavit submitted in support thereof, temporary custody of the parties’ five minor children to the respondent father pending a full hearing of the matter in ten days. Although an ex parte order may properly be entered only under compelling circumstances, the affidavit submitted to the district court in support of respondent’s motion for temporary custody supports the district court’s decision to enter the temporary custody order prior to the hearing. The affidavit alleged that there was a possibility that the appellant mother would leave the jurisdiction of the Idaho courts if she were allowed to retain custody of the five children. Faced with the possibility that the appellant mother would remove the children from the state, the court’s decision to award temporary custody to the children’s father for a period not to exceed ten days did not impose a burden upon the mother’s interests sufficient to constitute a due process violation of constitutional dimensions. See, e. g., Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). In view of the district court’s plenary authority over child custody matters embodied in I.C. § 32-705, the authority of the district court under I.R.C.P. 65(g) to enter orders in child custody disputes without notice if required by the circumstances of the case, and the fact that the ex parte order merely shifted custody of the children from one natural parent to the other for a period not to exceed ten days, we cannot say that the district court abused its discretion in awarding temporary custody of the children to the respondent father. The district court’s ex parte order contemplated a full hearing in the matter within ten days. The appellant mother had the right under I.R.C.P. 65(b)³ to obtain a full hearing on the propriety of the temporary ex parte order on two days’ notice to respondent or on such shorter notice as the court may have prescribed. The fact that the temporary ex parte order did remain in effect from September 26,1978, to February 20,1979, was a result of a stipulation entered by the parties on October 6,1978, and motions for continuance made by the appellant wife on November 2, 1978, and December 8, 1978.

Appellant argues that I.R.C.P. 6(c)(3)⁴ prohibits modification of a decree of divorce as to the custody of children absent testimony of the interested parties unless the parties have stipulated to modification of the decree. I.R.C.P. 6(c)(3), however, governs the procedure to be followed in the plenary hearing on a modification of the child custody provisions of a divorce decree. I.R.C.P. 65(g) specifically provides that the court may preliminarily enter ex parte orders in child custody matters if necessary to assure just resolution of a dispute. Read in conjunction with I.R.C.P. 65(g), I.R.C.P. 6(c)(3) does not preclude the manner of disposition utilized by the district court below.

The appellant mother also contends that the district court erred in modifying the child custody decree to award permanent custody to respondent. However, the district court’s findings of fact entered following the plenary hearing, at which both parties were present and represented by counsel, on February 20, 1979, support the district court’s decision to modify the decree and grant the respondent father permanent custody of the children subject to appellant wife’s reasonable visitation rights.⁵ The findings specify that the two older children, while in their mother’s custody, were absent from school a substantial amount of time. The findings reflect that despite several parent-teacher conferences with appellant wife the children’s school attendance did not improve. Their attendance was sporadic enough to preclude the children from making normal advancement with their classmates. The court found that respondent husband had remarried since the parties’ divorce and was able to provide the children with a home environment which would foster regular school attendance and improved educational achievement.

The record on appeal supports the conclusion that a material, permanent and substantial change of circumstances had occurred following the default divorce decree awarding custody to the appellant such that the best interests of the children would be served by granting respondent permanent custody of the children. See, e. g., Poesy v. Bunney, 98 Idaho 258, 561 P.2d 400 (1977). The appellant wife makes no contentions that the district court’s findings of fact were not supported by evidence produced at the hearing on respondent’s motion to modify the divorce decree. The district court’s decision to modify the divorce decree to award the respondent father permanent custody of his five minor children and to grant the appellant wife reasonable visitation rights is affirmed.

Affirmed. Costs to respondent.

DONALDSON, C. J., and SHEPARD and McFADDEN, JJ., concur.

1 . Subsequent to the district court’s decision in this case, the legislature recodified and substantially amended I.C. § 32-705. 1980 Idaho Sess.Laws ch. 378, § 3. The amended statute is now found at I.C. § 32-717. Former I.C. § 32-705, however, controls the disposition of this case. I.C. § 73-101.

2 . It must be kept in mind that the ex parte order in this case granted temporary custody of the children to their natural father who, in the January, 1978, decree of divorce, was awarded “the right of visitation with the said children at all normal and reasonable times and places.”

3 . “RULE 65(b). TEMPORARY RESTRAINING ORDER — NOTICE—HEARING—DURATION. —... On 2 days’ notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.”

4 . “RULE 6(c)(3). SHOW CAUSE HEARINGS IN DIVORCE AND CUSTODY PROCEEDINGS. — ... In proceedings for the modification of a decree of divorce as to the custody of children, the court shall hear the testimony of the interested parties unless the parties have stipulated to the modification of the decree and the court finds good cause therefor and that it is to the best interest of the child or children to determine the proceeding upon affidavits and the file of the action without hearing testimony and evidence in open court.”

5 . Although respondent contends that the district court’s decision following the plenary hearing makes moot appellant’s arguments concerning the prehearing temporary custody order, the fact is that such an argument will nearly always be present in cases where a short term ex parte order is followed by a plenary hearing. Hence, we have addressed the merits of appellant’s due process contentions.