No. 85-190 

TN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

IN RE THE MARRIAGE OF 

STEPHANIE JOANNE ROBBINS, 

Petitioner and. Respondent, 

and 

JOSEPH E. ROBBINS, JR., 

Respondent and Appellant. 

APPEAL FROM: District Court of the Sixth Judicial District, 

In and for the County of Park, 

The Honorable Byron Robb, Judge presiding. 

COUNSEL OF RECORD: 

For Appell-a.nt : 

Joseph E. Robbins, pro se, Kalispell, Montana 

For Respondent: 

Phillip W. Strope, Helena, Montana 

Submitted on Briefs: Sept. 12, 1985 

Decided: December 18, 1985 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Joseph E. Robbins appeals pro se from the judgment and 

decree of the District Court, Sixth Judicial District, County 

of Park, finding Joseph delinquent in child support payments 

owed to Stephanie J. Robbins in the sum of $3,625.00; leaving 

the care, custody and control of the minor child, Ashley 

Ca1.dwell Robbins, in Stephanie; modifying Joseph's visitation 

rights to reasonable times and places upon at least five days 

written notice and then only under supervised conditions 

established by Stephanie; ordering Joseph to pay monthly 

child support to Stephanie in the sum of $125.00 and to pay 

all necessary medical, hospital-, dental and optical care for 

Ashley until she is of legal age; and fining Joseph $500.00 

as well as sentencing him to five days in jail for his 

contempt of the District Court's previous orders for child 

support payments. Fle affirm ir, part and remand in part. 

The Robbins' marriage was dissolved on May 12, 1981. 

One child was born as issue of the marriage, Ashley Caldwell 

Robbins. Among other things, the decree of the court at the 

time of dissolution provided that the best interest of the 

minor child dictated custody to be with Stephanie, with 

reasonable rights of visitation to Joseph, and required him 

to pay $125.00 per month child support, commencing February 

1, 1981. 

A related proceeding, Cause No. 81-266, was instigated 

by Joseph on October 2, 1981, seeking to hold Stephanie in 

contempt for failing to comply with the terms of visitation 

in the parties' decree of dissolution. On November 5, 1981, 

the District Court found both parties in contempt, and 
ordered Stephanie to permit visitation and Joseph to make the 

child support payments previously ordered. 

On January 17, 1983, Joseph filed a petition for 

modification of custody, requesting joint custody of the 

child, with physical custody to be with Joseph nine months 

and Stephanie three months each year. On April 8, 1983, a 

motion to dismiss Joseph's petition was filed by Stephanie. 

Attached to the motion were Stephanie's affidavits averring 

that Joseph had not paid the required child support or kept 

her informed as to medical insurance for the child as 

previously decreed by the court; that he had not kept her 

informed of his address or residence; and that she had 

refused Joseph his visitation rights because Joseph's life 

style involved use of dangerous drugs and because he had. 

previously physically assaulted Stephanie. On April 8, 1983, 

the District Court denied Stephanie's motion to dismiss. 

On April 29, 1983, Stephanie filed consolidated motions 

to hold Joseph in contempt for failure to make child support 

payments, to deny his petition for modification, to amend the 

child visitation portions of the decree, and to award her 

costs and attorney fees. Stephanie's motions and Joseph's 

petition were set for hearing on December 2, 1983, continued 

to December 5, 1983, by stipulation of counsel, and then 

vacated and continued without time at- request of Joseph's 

attorney. 

On July 23, 1984, Joseph's attorney filed a consent to 

withdraw as counsel, executed by Joseph, together with an 

appropriate motion, and the court so ordered. Thereafter, 

Stephanie's attorney noticed up her consol-idated motions for 

hearing and had Joseph personally served. 
Shortly before the hearing, Joseph telephoned a Bozeman 

attorney, McKinley Anderson, about representing him at the 

hearing, but did not retain him. Anderson, however, did call 

Stephanie's attorney to seek agreement to a continuance, hut 

the request was refused. Anderson then attempted to notify 

Joseph, but Joseph's phone had been disconnected. As a 

result, Anderson notified the clerk of court by phone, and 

District Judge Byron L. Robb by letter which was received on 

the day of the hearing. 

Joseph called Judge Robb on March 15, 1985, about 20 to 

30 minutes before the 2:00 p.m. hearing, spoke of calling Mr. 

Anderson, and was told the hearing would be held as scheduled 

as Joseph had been personally served with notice six weeks 

before. 

Joseph was not represented at the hearing by himself or 

through counsel. Stephanie, however, was present and did 

testify. Stephanie's testimony essentially restated the 

facts alleged in her affidavits, referred to above. 

Joseph raises five issues for our review: 

1. P7hether it was in the child's best interest to 

change her custody from sole custody in Stephanie, with 

restricted visitation, to joint custody, with her school year 

spent in her father's residence; 

2. Whether it was proper for the District Court to find 

Joseph in contempt of court and whether S 3-1-523, MCA, is 

constitutional in that it denies Joseph his constitutional 

right to appeal a jail term that was imposed upon him; 

3. Whether it was proper for the District Court to 

order Joseph to pay child support for the period the child 

was absent from Montana; 
4. Whether it was proper for the District Court, 

knowing that Joseph was being denied hi right to appear with 

effective counsel and to confront the witnesses against him, 

to overturn a previous contempt order against Stephanie and 

hold Joseph in contempt; and 

5. Whether it was proper for the court to accept the 

fraudulent statements of Stephanie and to allow Stephanie and 

her attorney to testify concerning Joseph's actions while 

Joseph was being denied his right to appear and confront the 

witness. 

The first issue raised by Joseph raises two questions: 

whether the District Court properly denied Joseph's petition 

for modification of custody and whether it properly amended 

the child visitation portion of the dissolution decree. 

Modification of a custody decree is governed. by S 

40-4-219, MCA, which provides in part: 

(1) The court may in its di-scretion modify a prior 

custody decree if it finds, upon the basis of facts 

that have arisen since the prior decree or that 

were unknown to the court at the time of entry of 

the prior decree, that a change has occurred in the 

circumstances of the child or his custodian and 

that the modification is necessary to serve the 

best interest of the child a.nd if it further finds 

that: 

(a) the custodian agrees to the modification; 

(b) the child has been integrated into the family 

of the petitioner with consent of the custodian; 

(c) the child's present environment endangers 

seriously his physica.1, mental, moral, or emotional 

health and the harm likely to be caused by a change 

of environment is outweighed by its advantages to 

him; or 

(d) the child is 14 years of age or older and 

desires the modification. 

This Court is mindful. that the primary duty of deciding 

the proper custody of children is the task of the District 

Court. As a result, all reasonable presumptions as to the 
correctness of the determination by the District Court will 

be made. In re Gore (1977), 174 Mont. 321, 325, 570 P.2d 

1110, 1112; Foss v. Leifer (1976), 170 Mont. 97, 100, 550 

P.2d 1309, 1311. Due to this presumption of correctness, the 

District Court's findings will not be disturbed unless there 

is a mistake of law or a finding of fact not supported by 

credible evidence that would amount to a clear abuse of 

discretion. Solie v. Solie (1977), 172 Mont. 132, 137, 561 

P. 2d 443, 446. The finding must be clearly erroneous. Rule 

52 (a), M.R.Civ.P. The District Court concluded that no 

material change of circumstances existed to warrant 

consideration of a change of custody of Ashley to Joseph, and 

that to the contrary, to change custody to Joseph even part 

time would endanger the physical, mental, moral and emotional 

health and well being of the child. We find that the record 

of this case supports the determination of the District 

Court. It did not abuse it's discretion in denying Joseph's 

petition for modification. 

The District Court, however, did modify Joseph's 

visitation rights. The dissolution decree provided 

reasonable rights of visitation to the father, with various 

holidays and other days enumerated for Joseph. In the 

instant proceeding, the District Court modifie8 Joseph's 

visitation to reasonable times and places only upon at least 

five d-ays written notice to Stephanie and then only under 

supervised conditions so as to protect and guard the safety 

and return of the child. The court also gave Stephanie the 

power to establish the terms of the supervised visitations. 

Modification of visitation rights is governed by 5 

40-4-217(3), MCA, which provides: 
The court may modify an order granting or denying 

visitation rights whenever modification would serve 

the best interest of the child; but the court shall 

not restrict a parent's visitation rights unless it 

finds that the visitation would endanger seriously 

the child's physical, mental, moral, or emotional 

health. 

Clearly, District Court has the discretion modify 

the noncustodial parent's rights whenever such modification 

would he in th.e best interest of the child. By the express 

terms of the controlling statute, however, the District Court 

cannot restrict such rights unless it first finds that the 

existing visitation arrangement seriously endangers the 

child's physical, mental, moral or emotional hea1.t.h. Matter 

of Custody of R.L.S. (Mont. 1981), 632 P.2d. 703, 705, 38 

St.F.ep. 1328, 1333; Firman v. Firman (1980), 187 Kont 465, 

468, 610 P.2d 178, 180. The record contains no such finding. 

We, therefore, remand for the District Court to make such a 

finding for the purpose of a complete record in the District 

Court. We also hold that the record would support such a 

finding. 

The next two issues raised by Joseph concern the 

District Court's fin.ding him in contempt for his fa-ilure to 

pay child support in accordance with previous court orders 

and the constitutionality of S 3-1-523, MCA. 

We will first address the District Court's finding 

Joseph in contempt. As Joseph himself points out, S 3-1-523, 

MCA, provides that the judgment and orders of the District 

Court in contempt cases are "final and conclusive,'' and no 

appeal may be taken from them. The proper avenue to use to 

gain review of a contempt order, by this Court, is a writ of 

certiorari. This Court, in the past, has refused to consider 

matters of contempt on direct appeal based on § 3-1-523, MCA, 

and will again do so in this case. Milanovich v. Milanovich 
(Mont. 1982), 655 P.2d 959, 961, 39 St.Rep. 1554, 1557; 

Katter of Estate of Gordon (Mont. 1981), 628 P.2d 1117, 1119, 

38 St.Rep. 887, 890; O'Niel v. O'Niel (1979), 184 Mont. 415, 

416, 603 P.2d 257, 258. 

Joseph next contends that 3-1-523, MCA, is 

unconstitutional in that it denies him his constitutional 

right to appeal a jail term. This issue, however, was not 

initially raised in the District Court nor was a notice of 

constitutional challenge ever filed as required by Rule 38, 

M.R.App.Civ.P. It is fundamental- that on appeal a 

constitutional challenge to a statute cannot be determined, 

where it was not initially raised in the District Court. 

Englund v. Englund (1976), 169 Mont. 418, 421, 547 P.2d 841, 

842; Spencer v. Robertson (1968), 151 Mont. 507, 511, 445 

P.2d 48, 50-1; Clark v. Worall (1965), 146 Mont. 374, 380, 

406 P.2d 822, 825. An issue is also not properly before this 

Court when a notice of constitutional challenge is not 

properly filed as required by Rule 38, M.R.App.Civ.P. 

Eschenburg v. Eschenburg (1976), 171 Mont. 247, 253, 557 P.2d 

1014, 1017. Clearly, this issue is not properly before this 

Court and we therefore decline to consider it. 

Related to Joseph's contempt arguments is his assertion 

that the District Court improperly reversed a previous 

contempt order against Stephanie. The previous contempt 

order to which Joseph refers is the order of the District 

Court on October 2, 1981, holding Stephanie in contempt for 

failing to comply with the terms of visitation in the parties 

decree of dissolution and holding Joseph in contempt for 

failing to make the child support payments. As a result, 

both parties were apparently required to post $500.00 bonds. 

On November 23, 1982, Joseph moved the court to return his 
bond and the court so ordered. In the instant action, the 

District Court ordered that Stephanie's $500.00 bond be 

returned to her. It is this action by the District Court 

which Joseph now attaches error. We find this argument 

unavailing. 

Joseph also contends that he should be "absolved" from 

child support payments for the period the child was absent 

from Montana due to Stephanie's concealment. It is true that 

the original dissolution decree prohibited Stephanie from 

moving more than 400 miles away. In contravention of the May 

1981, dissolution decree, however, Stephanie moved to 

Rosemont, California, shortly after the dissolution 

proceeding. Joseph apparently did not know Stephanie's 

whereabouts until March of 1983, approximately a year and a 

half later. In finding of fact no. 12, the District Court 

found that although Stephanie moved more than 400 miles away 

in contravention of the court's decree, she was prompted to 

do so by Joseph's failure to support their minor child and by 

his harassment, threats and improper conduct toward 

Stephanie. 

In support of his argument Joseph cites a number of 

cases from other jurisdictions that stand for the proposition 

that a noncustodial parent may not be held in contempt for 

failure to pay child support during periods the child is 

improperly removed from the state. See, Wick v. Wick (Ill. 

1960), 167 N.E.2d 207; Hasse v. Hasse (Minn. 1950), 45 N.W.2d 

383; and Olson v. Olson (N.D. 1949), 38 N.W.2d 32. We find 

none of these cases controlling. 

The flaw in Joseph's argument is that the dissolution 

decree did not and could not condition the support obligation 

on the requirement that Stephanie not move more than 400 
miles away. On several occasions this Court has spoken out 

an the moral obligations of parents, and particularly 

fathers, to support their children. It is the legal as well 

as the moral duty of a parent to support his minor child and 

the father is not absolved from the duty by a marriage 

dissolution. Thus, one's obligation to pay the required 

money for the support of his infant daughter is not simply an 

outgrowth of the dissolution nor is it a mere incident 

thereto, but it is a social and a parental obligation imposed 

by law. Fitzgerald v. Fitzgerald (Mont. 1980), 618 P.2d 867, 

868, 37 St.Rep. 1350, 1352; Woolverton v. Woolverton (19761, 

169 Mont. 490, 492, 549 P.2d 458, 459; State ex rel. Lay v. 

District Court (1948), 122 Mont. 61, 71-2, 198 P.2d 761, 767; 

Refer v. Refer (1936), 102 Mont. 121, 129, 56 P.2d 750, 753. 

We agree with Joseph's contentions that a noncustodial 

parent should not be held in contempt for nonpayment of child 

support when payments are made directly to the custodial 

parent and when the location of the custodial parent is 

concealed. We, however, do not find those to be the 

circumstances in the instant case. It is true that there was 

a period of time in which Joseph was unaware of the location 

of Stephanie and was therefore unable to make his support 

payments. Joseph's failure to make support payments, 

however, was not just confined to that period of time. The 

record indicates he failed to make the payments both before 

Stephanie left for California and after he learned of her 

whereabouts, all the way to the time of the March 1985, 

hearing. 

We also disagree with the assertion that these 

circumstances absolve one of the duty to pay the support. We 

therefore hold that the District Court properly ordered 
Joseph to make child support payments for the period the 

whereabouts of Stephanie and Ashley were unknown to Joseph. 

The final issue raised by Joseph is whether it was 

proper for the District Court to accept the fraudulent 

statements of Stephanie and to allow Stephanie and her 

attorney to testify concerning Joseph's actions while Joseph 

was being denied his right to appear and confront the witness 

by the court's failure to continue the hearing. Joseph 

places great reliance on the argument that he was somehow 

prejudiced by the District Court's failure to continue the 

hearing upon learning 20 to 30 minutes before the hearing 

that Joseph would not be present. It, however, has long been 

the law of this state that the matter of granting or denying 

a continuance is a matter addressed to the sound discretion 

of the District Court. Section 25-4-503, MCA; Bolich v. 

Bolich (1982), 199 Mont. 45, 49, 647 P.2d 844, 847; Dean v. 

Carter (1957), 131 Mont. 304, 308, 309 P.2d 1032, 1034. The 

District Court informed Joseph in response to his telephone 

call just prior to the hearing that the hearing would be held 

as scheduled as Joseph had been personally served with notice 

six weeks before. We find the District Court did not abuse 

its discretion by not continuing the hearing. 

Joseph also implies that his due process rights were 

violated by the District Court because it held the hearing in 

Joseph's absence. The essential elements of due process, 

however, are notice and the opportunity to be heard. Byrd v. 

Columbia Falls Lions Club (1979), 183 Mont. 330, 332, 599 

P.2d 366, 367. Both of the above elements were satisfied in 

the instant case. Joseph was given notice of the hearing six 

weeks in advance and the hearinq was held, thus providing him 

with an opportunity to be heard even though he did not avail 
himself of the opportunity. We hold that Joseph was accorded 

his due process rights. 

We affirm the judgment and decree of the District Court 

but remand for an additional finding with regard to 

modification of Joseph's visitation rights consistent with 

this opinion. Stephanie will bear her own attorney fees on 

appeal.. 

Justice 

We Concur: 

I