No. 79-15 

IN THE SUPIZEME COURT OF THE STATE OF MONTANA 

1980 

IN RE THE MARRIAGE OF: 

SZCZEPAN KOROL, 

Petitioner and Appellant, 

vs . 

GWENDOLYN LOCKE KOROL, 

Respondent and Respondent. 

Appeal from: District Court of the Eighth Judicial District, 

In and For the County of Cascade. 

Honorable Joel G. Roth, Judge presiding. 

Counsel of Record: 

For Appellant: 

Cameron Ferguson argued, Great Falls,Montana 

For Respondent : 

Barry T. Olson argued, Great Falls, Montana 

Filed: 

Submitted: April 17, 1980 

Decided: July 22, 1980 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. 

Appellant Szczepan Korol sought the return of his son to 

his custody through a petition for habeas corpus. The Cascade 

County District Court denied his petition and he appeals. 

Szczepan and Gwen Korol, the natural parents, obtained a 

divorce in Cascade County in October, 1976. Mr. Korol was 

awarded the custody of their child, Stephen, who was born in May, 

1977. In March, 1978, Gwen Korol and her mother, Verna Locke, 

went to Pennsylvania and brought the child back to Great Falls. 

There is conflicting testimony as to whether the parties had 

agreed to transfer custody or whether a mere visit was intended. 

Gwen Korol gave Mr. Korol a stipulation to modify the custody 

provisions of the divorce decree, but he did not sign it at that 

time and has not signed it to this date. 

It appears that the child resided with Gwen Korol for a 

short period of time and when she became ill and lost her job in 

April 1978, Richard and Verna Locke, Gwen's parents, took physical custody. Szczepan Korol requested the return of Stephen 

after learning in early September, 1978, that the child was in 

the physical custody of the grandparents. 

On September 22, 1978, the Lockes petitioned the District 

Court for custody of the child. The District Court awarded temporary custody to the Lockes and issued a temporary restraining 

order which restrained Szczepan Korol from removing the child or 

disturbing the Lockes. On October 24, 1978, Mr. Korol filed a 

motion to quash the temporary restraining order and petitioned 

for a writ of habeas corpus. A hearing was held upon the petition on November 14, 1978. The temporary custody order was 

dismissed because of the grandparent's failure to cornp1,y with 

the affidavit practice provisions of section 48-340, R.C.M. 1947, 

now codified in amended form in section 40-4-220, MCA. 
The only issue presented with regard to the habeas corpus petition was who was entitled to custody of Stephen as between the 

natural father Szczepan Korol and the maternal grandparents. 

Following the hearing, the District Court issued an order 

on November 15, 1978, which quashed the temporary restraining 

order, but the grandparents were once again given temporary 

custody of Stephen. The petition for habeas corpus relief was 

taken under advisement. On July 9, 1979, the District Court entered an 

order which found: that a habeas corpus proceeding is 

appropriate to determine whether custody of a minor should be 

changed; that the father agreed to surrender custody of the 

child to the mother in March, 1978; that the father agreed to 

a modification to change the custody from the custodian to the 

noncustodian, the mother; that the minor child's present 

environment will better serve his welfare and best interest; 

that the custody of the minor child should be "assigned" to the 

mother until further order; and that the father is financially able to contribute $100 per month in support until the 

child reaches majority. The petition for habeas corpus was 

dismissed and custody assigned to the mother. 

The following issues have been considered on appeal: 

(1) Whether the denial of the natural father's petition 

for habeas corpus is appealable; and 

(2) Whether the District Court abused its discretion in 

awarding custody to the natural mother, a nonpetitioning party. 

The respondent strenuously contends that the District 

Court's order denying a writ of habeas corpus is not appealable. 

The basis of this contention is that the court merely awarded 

temporary relief and that another remedy exists since the 

grandparents' petition for modification is still pending. 

Respondent also analogizes the present situation to the seeking 

of a writ of habeas corpus in a criminal case in stating that the 

sole issue is the legality of restraint, and it is therefor not 

appealable. 

In reviewing the District Court's findings and 

conclusions we find that the court purported to make a final 
determination of custody. In addition, no petition is pending as 

a result of section 48-339, R.C.M. 1947. Although this section 

was amended by the 1979 legislature it was in effect in the 

following form throughout the District Court proceedings. 

"(1) No motion to modify a custody decree may be 

made earlier than two (2) years after its date, 

unless the court permits it to be made on the 

basis of affidavits that there is reason - to 

believe the child's present environment may 

endanger seriously his physical, mental, moral, 

or emotional health." (~m~hasis added.) 

This provision is jurisdictional and requires the 

District Court to find that the child is seriously endangered if 

a motion for a change of custody is brought within two years of 

the entry of a divorce decree. Strouf v. Strouf (19781, 

Mont. -8 578 P.2d 746, 35 St.Rep. 626; Olson v. Olson (1978), 

Mont. , 574 P.2d 1004; 35 St.Rep. 175; Schiele v. Sager 

(19771, 174 Mont. 533, 571 P.2d 1142; Gianotti v. McCracken 

(1977), 174 Mont. 209, 569 P.2d 929. Olson also reveals that the 

exception to the two-year limitation is not to be liberally 

applied. 

In our present case the motion to modify custody was 

brought within the two-year limitation, and the District Court 

failed to find that the child's health was seriously endangered. 

Neither does the record reveal any evidence that the child would 

be endangered in the custody of his father. As a result, there 

is no jurisdictional basis for the District Court to consider the 

grandparents' petition for a change of custody. 

Since the District Court's order is expressed in terms of 

a final determination of child custody, this Court is entitled to 

review the District Court's denial of the father's petition. In 

addition, a distinction exists concerning appealability between 

who is entitled to custody in a habeas corpus proceeding and the 
typical criminal habeas corpus issue of whether the restraint 

exercised is legal. See State ex rel. Graveley v. District Court 

(1978), Mont. -9 582 P.2d 775, 35 St.Rep. 1049. 

Turning to the standard of review from habeas corpus, we 

have held on numerous occasions that the District Court is given 

wide discretion in habeas corpus proceedings and we will not 

interfere unless there is a clear abuse of discretion. In re 

Thompson (19261, 77 Mont. 466, 251 P. 163; Veach v. Veach (19481, 

122 Mont. 47, 195 P.2d 697. In the present case we find a clear 

abuse of discretion. 

The sole issue before the District Court was who was 

entitled to custody as between the natural father and the child's 

maternal grandparents. This was the issue expressly presented to 

the court by the parties. The court refused to hear any testimony concerning the best interest of the child. However in its 

order the District Court, without any evidence before it on the 

subject, purported to consider the best interests of the child 

and gave custody to the mother, who had never sought custody. 

This constitutes an abuse of discretion. The District Court is 

without authority to award custody to a nonpetitioning party 

under ordinary circumstances. 

As between the natural father and the grandparents, the 

natural father was entitled to prevail on the basis of his 

superior rights as a parent as well as his custodial rights under 

the divorce decree. Absent a finding of abuse, neglect, or unfitness as a parent, a natural parent is entitled to the custody of 

his child. In the Matter of Doney (19771, 174 Mont. 282, 570 

P.2d 575. In addition, the custody provisions of the Uniform 

Marriage and Divorce Act, sections 40-4-211 through 40-4-221, 

MCA, are designed to favor custodial continuity over the rights 

of the competing custodians. This Court has stated that 

the following policy reasons underlie the changes created by the 

Act in the child custody area: (1) to preserve the basic policy of 

custodial continuity; (2) to maximize finality of the custody 

provisions of the divorce decree; (3) to prevent "ping-pong" 

custody litigation; and (4) to implement the principle that 
finality of the custody decree is of greater importance to the 

best interest of the child than the determination of which parent 

should have custody. See Schiele v. Sager, supra; Holm v. Holm 

(19771, 172 Mont. 81, 560 P.2d 905; Groves v. Groves (19771, 173 

Mont. 291, 567 P.2d 459; Easton v. Easton (19781, Mont. 

574 P.2d 989, 35 St.Rep. 123. On the basis of this authority, 

we find that the natural father is entitled to the return of 

his son. 

Although we find several inconsistencies in the District 

Court's findings and conclusions, we have deemed it unnecessary to 

address them, since we have held that the custodial parent has 

superior rights than a nonparent and no jurisdiction to change 

custody was invoked. 

We therefore reverse the District Court's order 

dismissing the petition and direct the District Court to grant 

the father's petition for habeas corpus. Nothing in this opinion 

is to be construed as preventing the mother from bringing a subsequent 

motion for modification pursuant to section 40-4-219, MCA. 

\ Chief Justice 

JU'S ices 

L *' f' I 

7