### No. 79-15 INTHE SUPIZEME COURTOF THE STATEOF MONTANA 1980

IN

### RE THEMARRIAGE OF: SZCZEPANKOROL, PetitionerandAppellant,
vs

# . GWENDOLYN LOCKE KOROL, Respondent and Respondent.

Appeal from: District Court of the Eighth Judicial District, Inand For the County of Cascade. HonorableJoelG. Roth,Judgepresiding. Counsel of Record: ForAppellant: Cameron Ferguson argued,Great Falls,Montana For Respondent: 

### Barry T. Olson argued,Great Falls,Montana

Filed: Submitted: April 17,1980 Decided: July 22,1980Mr. Chief JusticeFrank 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 inCascade County inOctober, 1976. 

### Mr. Korol was awarded the custody of their child, Stephen, who was born inMay, 1977. InMarch, 1978, Gwen Korol and her mother, Verna Locke, went toPennsylvania and brought the child back toGreat Falls. There 

### is conflicting testimony as towhether the parties had agreed totransfer custody orwhether a mere visit was intended. Gwen Korol gave Mr. Korol a stipulation tomodify 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 losther job in April 1978, Richard and Verna Locke, Gwen's parents, took physicalcustody. Szczepan Korol requested the return of Stephen after learning inearly September, 1978, that the child was in the physical custody of the grandparents. On September 22, 1978, theLockes petitioned the District Court for custody of the child. The District Court awarded temporary custody to theLockes and issued a temporary restraining order which restrained SzczepanKorol from removing the child or disturbing theLockes. On October 24, 1978, 

### Mr. Korol filed a motion toquash the temporary restraining order and petitioned for a 

### writ of habeas corpus. A hearing was held upon the petition onNovember 14, 1978. The temporary custody order was dismissedbecause of the grandparent's failure to cornp1,y with the affidavit practice provisions of section48-340, R.C.M. 1947,

now codified inamended form insection40-4-220, 

### MCA.The only issue presented with regard to the habeas corpus petitionwas who was entitled to custody of Stephen as between the natural father Szczepan Korol and the maternal grandparents. Following thehearing, the District Court issued an order

onNovember 15, 1978, which quashed the temporary restraining order, but the grandparents were once again given temporary custody of Stephen. The petition forhabeas corpus relief was taken under advisement. On July9, 1979, the District Court entered an order which found: that a habeas corpus proceeding 

### is appropriate todetermine whether custody of 

### a minor should be changed; that the father agreed to surrender custody of the child tothemother inMarch, 

### 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 

### willbetter servehis 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 forhabeas 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 forhabeas corpus 

### is appealable; and 

### (2) Whether the District Court abused 

### its discretion in awarding custody to the naturalmother, 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 formodification is stillpending. Respondent alsoanalogizes the present situationto the seeking of a 

### writ of habeas corpus ina criminal case in stating that the sole issue is the legality of restraint, and 

### it 

### is therefor not appealable. Inreviewing the District Court's findings and conclusions we find that the court purported tomake a final

### determination of custody. Inaddition, no petition is pending as
a result of section48-339, R.C.M. 

### 1947. Although this section

was amended by the 1979 legislature it was in effect in the following form throughout theDistrict Court proceedings. "(1) No motion tomodify a custody decreemay be made earlier than two (2) years after itsdate, unless the court permits 

### it tobe made on the basis of affidavits that there isreason

## - to believe the child's present environment

### may endanger seriously

# his physical, mental, moral, oremotional health." (~m~hasis added.) This provision isjurisdictional 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 entryof 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, 174Mont. 533, 571 P.2d 1142; Gianottiv. McCracken (1977), 174Mont. 209, 569 P.2d 929. Olson alsoreveals that the exception tothe two-year limitation isnot tobe liberally applied.Inour present case themotion tomodify 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 inthe custody of his father. As a result, there 

### is no jurisdictional basis for the District Court toconsider 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 theDistrict Court's denial of the father's petition. In addition, a distinction exists concerning appealabilitybetween who 

### is entitled tocustody ina habeas corpus proceeding and thetypical criminal habeas corpus issue of whether the restraint exercised is legal. See Stateex 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 inhabeas corpus proceedings and we 

### willnot interfereunless there is a clear abuse of discretion. Inre Thompson (19261, 77 Mont. 466, 251 P. 163; Veach v. Veach (19481, 122Mont. 47, 195 P.2d 697. Inthe present casewe find a clear abuse of discretion. The sole issue before the District Court was who was entitled tocustody 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 tohear any testimony concerning the best interest of the child. However in its order theDistrict 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 fatherwas entitled toprevail 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. IntheMatter of Doney (19771, 174Mont. 282, 570 P.2d 575. Inaddition, the custody provisions of the Uniform Marriage and Divorce Act, sections40-4-211 through 40-4-221, MCA, aredesigned 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 inthe child custody area: (1) topreserve the basic policy of custodial continuity; (2) tomaximize finality of the custody provisions of the divorce decree; 

### (3) toprevent "ping-pong" custody litigation; and (4) toimplement the principle thatfinality 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, sincewe 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 istobe construed as preventing the mother from bringing a subsequent motion formodification pursuant to section40-4-219, MCA.

\ Chief Justice

JU'Sices

L*'

# 7 f' I