NO. 92-294 IN THE SUPREME COURT OF THE STATE OF MONTANA

IN RE THE MATTER OF OF C.J.K., a minor. CUSTODY

In and for the County of Toole, The Honorable R. D. McPhillips, Judge presiding.

COUNSEL OF RECORD: For Appellant: Robert G. Olson, Frisbee, Moore & Olson, Cut Bank, Montana For Respondent: Susan L. Weber, Miller & Cook, Great Falls, Montana

Filed: Submitted on Briefs: March 4, 1993 Decided: 

### June 8, 1993

### Justice William E. 

### Hunt, Sr., delivered the opinion of the Court. This is an appeal from the Ninth Judicial District Court, Toole County, Montana. The appellant mother appeals the District Court's award of joint custody with the respondent father inwhich respondent was designated primary residential custodian of the minor child, C.J.K. We reverse and remand. The following issue is dispositive of this case: Was the issue of primary physical custody of C.J.K. properly before the District Court? On July 24, 1990,C.J.K. was born to appellant and respondent after a one-year relationship inwhich theparties residedtogether but were never married. Prior to the birth of C.J.K., there were four other childrenborn to appellant from apreviousmarriage, and

one child from a previous relationship. C.J.K. is respondent's only son. Several months after the birth of C.J.K., the parties separated and have since lived apart. Because of this separation, itwas necessary to determine custodyand support issues for C.J.K. Appellant filed a petition for custody and support on March 12, 1991, which requested that there be "joint care, custody and control"; that shebe the custodial parent; and that respondentbe granted reasonable rights of visitation. Respondent filed a response and counterpetition on June 27, 1991, which requested split custody until C.J.K. reached the age of five, at which time respondent would be granted primary physical custody. On February 21, 1992, the parties went to trial on the issues of

2

### custody and support of C.J.K. ~uring trial, respondentmoved for

an order that he be granted immediate primary custody of C.J.K. Counsel for appellant immediatelymade amotion to stay or continue the proceedings on the basis of surprise. Was the issue of primary physical custody of C.J.K. properly before the court? In his response and counterpetition, respondent specifically requested that appellant be designated primary physical custodian for eight months of the year, and that he be designated primary physical custodian for only four months of the year until C.J.K. reaches age five. No mention was made of respondent being designatedprimaryphysical custodian before C.J.K. reachedtheage of five. After the conclusionof appellant's case-in-chief,respondent unexpectedly requested immediate primary physical custody. This

was the first time appellant was put on notice that respondent sought immediate custody and that she might lose her right to custody. The purpose of a pleading is toprovide notice before trial to the opposingparty of the specific reliefbeing sought so thatboth parties have an opportunity to present evidence on the issues in dispute. GallatinTrust Bankv. Darrah (1968), 152Mont. 256, 261, 448 P.2d 734, 737. The requirement that all issues to be tried must be raised in the pleadings is extended to child custody disputes by In re Custody of C.S.F. (l988),232Mont. 204, 209, 755 P.2d 578, 581.

### An exception to the requirement that all issues to be tried must be raised in the pleadings, is set out in Old Fashion Baptist Church v. Department of Revenue (l983), 206 Mont. 451, 457, 671 P.2d 625, 628: A District Courtdoesnothave jurisdictiontogrant relief outside of the issues presented by the pleadings unless the parties stipulate that other questions be considered or thepleadings areamended to conformto the proof. The parties may "stipulatew or consent to consideration of issues outside of the pleadings expressly or impliedly. Butte Teachers' Union v. Board of Trustees '(1982), 201 Mont. 482, 486, 655 P.2d 146, 148. In the case at bar, respondent argues that sinceappellant raised the issue ofprimaryphysical custody inher petition and he specifically contested the issue, in essence, appellant expressly consented to trial on this issue. We disagree. Respondent, inhis responsivepleading, set out theparameters of the dispute which did not include a request that he be granted primary physical custody at the present time. Appellant never expressly consented to trial on any issue except that which was discussed in the responsive pleading. Concerning the issue of implied consent,we have stated that "pleadings will not be deemed amended to conform to the evidence because of 'limpliedconsent" where the circumstances were such that the other party was not put on notice that a new issue was being raised." Darrah, 448 P.2d at 737. In the case at bar, appellant did not receive adequate noticebefore trial, and therefore, could not impliedly consent to consideration of the new issue of whetheror not respondent be granted immediate primary physical custody. Appellant's adamant objection to the consideration of this issue, and her claim that 

### she was "caught 

### off-guardm by 

### this ''eleventh-hourchange in attack" 

### is inno

### way indicative of implied consent. 

### Because of lack of notice, possible prejudice to appellant must be considered. Respondent's unexpected request denied appellant adequate opportunity to prepare her case thereby denying her due process of law. We conclude

### thatthedeterminationof primaryphysical custody

was not properly before the District Court. Reversed and remanded for further proceedings in accordance with this opinion.

Justices

5Justice John Conway Harrison dissenting.

I dissent. I would hold that the determination of primary physical custody of the minor child was properly before the District Court, and I would affirm the District Court's award of joint custody and the court's designation of the respondent father

as the primary residential custodian of the minor child. The record is clear. The minor, C.J.K., was born on July 24, 1990, to the mother and father after a one-year relationship in which the mother and father resided together but never married. C.J.K. is the youngest of six children born to the mother; four other children were born to the mother from a previous marriage, and she had one other child from a previous relationship. C.J.K. is the father's only child. Nearly eight months after the birth of C.J.K. and after the parties' relationship failed, the mother filed with the District Court a "Petition for Custody and Support'' wherein she asked the court to award joint custody of C.J.K. to the parties with herself

as the primary custodial parent, and to require the father to pay child supportaccording to theUniform Guidelines. 

### Inhis response and counter-petition, the father prayed that joint custody be awarded the parties with the mother as primary custodian until C.J.K. reached the age of five, when the father would be granted primary physical custody. The father's counter-petition also provided for liberal visitation for the noncustodial parent. It also provided that the father would pay child support during eachmonth that C.J.K. was in the mother s care; that the income tax exemption could be claimed by the primary physical custodian; that the father would provide C.J.K1smedical insurance; that any uncovered medical expenseswould be shared equally by theparties; and that each party would be responsible for his or her individual attorney's fees and costs incurred in this matter. Atthehearing inFebruary, 1992, the father requested for the first time that he, not the mother, be designated as the primary custodial parent. The mother filed a legal memorandum setting forth her objections to this unanticipated oral request. The District Court properly took the position that in Montana it is clear that the court's duty is to look to the I1bestinterest of the child1' regardless of the custodial arrangements sought 

### by the parties. Custody of C.J.K. and the parties1 concerns for his best interestwere thoroughlydiscussed at the February, 1992,hearing. Again, the record is clear. It indicates, at length, a severe problem in the mothergshome as to the care of 

### her six children, including her failure to supervise the children; and that C.J .K.

was 

### Left in the custody of her oldest daughter, who 

### was fifteen at the time of the District Court hearing. Often during the week the mother did not return home until 2:00 or 3:00 a.m., leaving the fifteen-year-old to care fox the younger children. The court's findings of fact indicate that the Family Services Department had investigated five complaints relating to the filthy and unhealthy condition of themother's home. The record also indicatesthat themother refused to cooperate with the father in several areas concerning C.J.K. 

### I find that the first issue,whether primary physical custody 

### of C.J.K. was properly before the District Court, 

### is thekey to the resolution of this matter, 

### The mother alleges that the issue of primary physical custody was not before the court, as the father had requested split custody in his response and counter-petition. 

### Idisagree. This issue was placed before the court by the mother herself in her "Petition for Custody and Supp~rt,~~ in which she prayed that C.J.K. be placed in the joint care,custodyand control of the mother and father,with the mother as "custodiaf parent. This request 

### in itself raises the question of primary physical custody. In response to the mother's petition, the father denied that making the mother the custodial parent was in C.J.K. s best interest and requested a split custody arrangement until C.J.K. reached the age of five,at which time the father requested that he be granted primary physical custody. Primary physical custody of C.J.K. was the central issue 

### of the entire testimony before the District Court. Both parties presented evidence on the issue and the District Court properly applied the best interest test 

### in designating the father theprimary residential custodian of C.J.R. This Court has held that under 40-4-212, MCA, the best interest of the child factor 

### is controlling regardless of any requestsby either party, and that the court's failure to consider its elements could result in reversible error, even 

### if the partiesthemselves have entered into an agreement regarding the issue of custody. In re Marriage of Mager (1990)

### , 241 Mont. 78, 785 P.2d 198; In reMarriage of Converse (l992), 252 Mont. 67, 826 P.2d 937. Here, the record indicates that the ~istrict Court considered 

### all of the statutory criteria for determining the child's best interest, and that its findings and conclusions are supported by substantial credible evidence. I would hold that the determination of primary physical custody

### was properly before the District Court and that the court did not err 

### in making its determination under 5 40-4-212,MCA. 1 would affirm.June

### 8. 

### 1993 CERTIFICATEOFSERVICE IherebycertifythatthefollowingorderwassentbyUnited Statesmail,prepaid,tothefollowing named:

RobertG.Olson, Esq. Frisbee,Moore&Olson P.O.Box547 CutBank, MT 

### 59427 SusanWeber Attorneyat

### Law P.O.Box1258 GreatFalls,MT 59403

EDSMITH CLERKOFTHESUPREMECOURT STATEOFMONTANA 

### BY: Depu