McDonald v. McDonald

MR. JUSTICE ANGSTMAN:

The question involved on this appeal is whether the trial court erred in awarding the custody of Marsha Ann, the minor child of the parties, to plaintiff, the mother.

The parties were divorced on July 28, 1947. Marsha was then two years old and living with defendant’s mother. Before the divorce was granted plaintiff and defendant agreed that the child could remain with defendant’s mother until she reached school age after which plaintiff was to have her during the school months and defendant during the vacation period. Plaintiff testified to this arrangement and defendant failed to appear at the trial.

The court however declined to give full effect to the agreement with respect to custody and awarded the custody to plaintiff, the mother, with the right in her to leave the child with defendant’s mother so long as she saw fit to do so. The court further ordered that while the child is in the actual care and custody of the mother, defendant shall pay her $45 per month.

Shortly after the divorce, upon request of plaintiff, defendant took the child for a visit to the home of plaintiff’s parents in Glacier Park where plaintiff was then living. Plaintiff never returned the child.

Plaintiff, shortly after the divorce from defendant, married Jack Cochran. He was an oil field worker and lived in the oil fields out of Cut Bank. To this union a child was born on July 2, 1948. During the confinement of plaintiff, Marsha was left by her with plaintiff’s mother at Glacier Park.

On July 21, 1948, defendant filed a petition to modify the decree of divorce so far as it awarded the custody of Marsha. Plaintiff hearing of the filing of the petition left Montana with her husband and Marsha and went to California.

Since personal service of the order to show cause could not be made upon her, defendant procured an order for its publication and it was published. After hearing defendant’s application, the court on September 27, 1948, modified the decree by awarding the custody to defendant. Plaintiff did not appear at the hearing either in person or by counsel.

On March 5, 1949, plaintiff, having returned to Montana with Marsha, filed application to vacate the judgment awarding custody to defendant and asked that the custody be awarded to her.

After hearing, whereat both parties were present and introduced testimony, the court found in favor of plaintiff and against the defendant and awarded the custody of Marsha to plaintiff.

The court made findings which may be summarized as follows: Plaintiff was 17 years of age when married and defendant 22. She is of the white race while defendant is a member of the Flathead Indian Tribe; defendant lives with his mother and brothers on a ranch about eight miles north of Lonepine in Sanders county; defendant owns and controls land and cattle about four miles from the home of his mother where he proposes to establish a home for himself and his present wife, he having since remarried; much unpleasantness resulted in the home when plaintiff and defendant lived together at the home of defendant’s mother and because thereof plaintiff was away working a good part of the time after Marsha was born; though the decree of divorce provided that defendant should pay $45 per month for the support of Marsha, he made no payments though well able to do so from July 28, 1947, to September 27, 1948, but he paid $585 on March 1, 1949, when faced with contempt proceedings; that Marsha is a healthy baby of normal size and weight and behaved well in court, showing great devotion to her mother and stepfather; that plaintiff and her present husband have an appropriate home in a suitable neighborhood in California where Mr. Cochran has an opportunity to go into business; that the home is almost across the street from the grade school, with a church nearby; that Mr. Cochran is devoted to Marsha and she to him and to her mother; that the defendant’s present home at his mother’s place is eight miles from school and that if defendant established the home which he intends to do it would be where school would be one-half mile away; that conditions in Montana are such as to cause continual and serious emotional disturbance in the child that would destroy her happiness and impair her future growth and welfare; that the McDonalds by the demeanor in court and otherwise displayed hatred of plaintiff and that the best interests and welfare of the child require that she have a fixed place to live and that there be no double custody as between her mother and stepfather, and her father and stepmother and that she should go to California with her mother; that plaintiff is fairly well educated and neat appearing and kind and considerate and that the child needs her care.

The record contains substantial evidence supporting the conclusion of the trial court in awarding the custody of Marsha to plaintiff, her mother.

There was of course evidence from which a contrary conclusion might have been reached but the responsibility of resolving these conflicts was on the trial judge who had the opportunity, denied to us, of observing the conduct and demeanor of the parties involved.

This court is committed to the view that the welfare of the child is the paramount consideration in awarding its custody and that this must of necessity be left largely in the discretion of the trial judge with whose discretion we will not interfere except on a showing of manifest abuse of that discretion. Damm v. Damm, 82 Mont. 239, 266 Pac. 410; Boles v. Boles, 60 Mont. 411, 199 Pac. 912; Jewett v. Jewett, 73 Mont. 591, 237 Pac. 702. And see, Talbot v. Talbot, 120 Mont. 167, 181 Pac. (2d) 148 and Benson v. Benson, 121 Mont. 439, 193 Pac. (2d) 827.

Finding substantial evidence in the record sustaining the trial judge’s order awarding the custody of Marsha to plaintiff, we cannot interfere with the order.

The only other point raised is that the court erred in allowing attorney’s fees to plaintiff.

B. C. M. 1947, sec. 21-137, provides: “While an action for divorce is pending the court or judge may, in its or his discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself or her children, or to prosecute or defend the action.- When the husband wilfully deserts the wife, she may, without applying for a divorce, maintain in the district court an action against him for permanent support and maintenance of herself or of herself and children. During the pendency of such action, the court or judge may, in its or his discretion, require the husband to pay as alimony any money necessary for the prosecution of the action and for support and maintenance, and executions may issue therefor in the discretion of the court or judge. The final judgment in such action may be enforced by the court by such order or orders as in its discretion it may from time to time deem necessary, and such order or orders may be varied, altered, or revoked at the discretion of the court. ’ ’

Section 21-138 reads: “In an action for divorce the court or judge 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.”

Defendant contends that there is no státutory authority for attorney’s fees after the divorce action is ended and after the relationship of husband and wife has terminated.

There is respectable authority supporting that view. See Hayton v. Hayton, 122 Wash. 594, 211 Pac. 745; Wallace v. Wallace, 273 Mass. 62, 172 N. E. 914; Nelson v. Nelson, 146 Ark. 362, 225 S. W. 619; Davis v. Davis, 143 Fla. 282, 196 So. 614; Bishop v. Bishop, 210 App. Div. 3, 205 N. Y. S. 542.

We think however that the weight of authority and the better reasoned cases under statutes such as ours hold otherwise. Among such eases are the following: Crooks v. Crooks, Mo. App., 197 S. W. (2d) 686; Parker v. Parker, 269 App. Div. 717, 54 N. Y. S. (2d) 172; Anderson v. Anderson, 110 Utah 300, 172 Pac. (2d) 132; Marks v. Marks, 98 Utah 400, 100 Pac. (2d) 207; (Resisting alimony and change of custody of children, Hipple v. Hipple, 128 Kan. 406, 278 Pac. 33); Tinker v. Tinker, 144 Okl. 94, 290 Pac. 187; Thomas v. Thomas, 233 Ill. App. 488; Spratt v. Spratt, 151 Minn. 458, 185 N. W. 509, 187 N. W. 227; Novotny v. Novotny, 152 Minn. 420, 189 N. W. 258.

The reason for such holding was well stated in the Crooks case as follows: “ It is true that the decree of divorce had become final so far as concerned its determination of the issue of the further status of the parties. Its consequence had been to convert their status from coverture to that of single persons, and defendant was unquestionably no longer plaintiff’s wife. However the action for divorce, under the circumstances of the case, had invested the court with a jurisdiction which did not end with the mere determination of the further status of the parties themselves. There being minor children within plaintiff’s physical control; it had acquired jurisdiction to adjudicate with respect to their custody; and this jurisdiction was a continuing one during the minority of the children. For the purpose of the exercise of such jurisdiction, the action remained pending during the minority of the children; and in this proceeding on plaintiff’s motion to modify the decree, which was a continuation of the original action, the court had the power to make an allowance to defendant of an attorney’s fee and suit money so as to enable her to resist the motion.” [197 S. W. (2d) 687.]

"We allowed an attorney’s fee in State ex rel. Graveley v. District Court, 119 Mont. 276, 174 Pac. (2d) 565, in such a proceeding.

Defendant relies upon the case of Grimstad v. Johnson, 61 Mont. 18, 201 Pac. 314, 25 A. L. R. 351. But that case is not comparable to this since in that case the divorce action was dismissed and there was no continuing jurisdiction left in the court over any phase of the subject matter of the action.

It is our view that section 21-137, supra, is broad enough to warrant the court in awarding to plaintiff expenses with which to prosecute the proceedings seeking a modification of the award of custody of the minor child.

Also, even though the statute does not specifically authorize such fees after the divorce is granted, the court has inherent equitable power incidental to its major jurisdiction to make such an award. This court has so held in State ex rel. Wooten v. District Court, 57 Mont. 517, 189 Pac. 233, 9 A. L. R. 1212, and in State ex rel. La Point v. District Court, 69 Mont. 29, 220 Pac. 88. This is the rule also in California. Galland v. Galland, 38 Cal. 265; Livingston v. Superior Court, 117 Cal. 633, 49 Pac. 836, 38 L. R. A. 175, and see, 34 Cal. Law Rev. 191 at p. 196.

It is true that these two eases from this court are not cases involving the custody of children as is the case before us, but the legal principle is the same.

The Wooten case was one brought for the annulment of a marriage. The court pointed out that there was no statute allowing attorney’s fees in such a case but then proceeded to hold that even without such statute the court had “fundamental jurisdiction to grant * * * suit money and attorney’s fees to the wife * * * as a power incidental to the major jurisdiction.” [57 Mont. 517, 189 Pac. 239.]

The La Point ease was one for separate maintenance. The statute allows attorney’s fees to the wife for such a suit when based upon wilful desertion of the husband. It does not allow a fee when the action is based on wilful neglect of the husband. The action was for his wilful neglect and the court held that it had inherent jurisdiction to grant attorney’s fees and suit money and no statute was necessary to confer such jurisdiction. To hold that the wife is not entitled to suit money and attorney’s fees in such a case places her at a decided disadvantage when trying to protect her right of custody to her minor children.

The fact that the order directs the payment to plaintiff’s at- torney rather than to plaintiff is an irregularity merely which does not affect any substantial right of defendant.

The court made an award of $150 and expressly found that “plaintiff was unable to pay her attorney for such services.” Certainly that is not an exorbitant fee. The fact that defendant paid plaintiff $585 a few days before the trial is of no moment. That was money due for the past support of the child and defendant should not be heard to say that it should be used to pay plaintiff’s counsel.

Nor is it of importance that both parties have married since the decree of divorce was granted. Defendant is still the father of the child and plaintiff is the mother of the child.

The father should not be permitted to precipitate litigation over the child’s custody as between himself and the child’s mother without being obliged to furnish suit money to enable the mother to bear the expense of such litigation. Her present husband though perfectly willing to support the child may not be willing to stand the expense of litigation to retain the custody.

The court did not exceed its power or abuse its discretion in making the award of $150 attorney’s fees.

The order appealed from is affirmed.

ASSOCIATE JUSTICES FREEBOURN and METCALF concur.