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 in which 

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 in which the parties residedtogether 

but were never married. Prior to the birth of C.J.K., there were 

four other children born to appellant from a previous marriage, 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, 

it was necessary to determine custody and 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 she be the custodial parent; and that respondent be 

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, respondent moved for 

an order that he be granted immediate primary custody of C.J.K. 

Counsel for appellant immediately made a motion 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 

designated primary physical custodian before C.J.K. reachedthe age 

of five. 

After the conclusion of 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 to provide notice before trial to 

the opposing party of the specific relief being sought so that both 

parties have an opportunity to present evidence on the issues in 

dispute. Gallatin Trust Bank v. Darrah (1968), 152 Mont. 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), 232 Mont. 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 Court does not have jurisdiction to grant 

relief outside of the issues presented by the pleadings 

unless the parties stipulate that other questions be 

considered or the pleadings are amended to conform to 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 

since appellant raised the issue of primary physical custody in her 

petition and he specifically contested the issue, in essence, 

appellant expressly consented to trial on this issue. We disagree. 

Respondent, in his responsive pleading, set out the parameters 

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 'limplied consent" 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 notice before trial, and therefore, could 

not impliedly consent to consideration of the new issue of whether 
or 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-hour change in attack" is in no 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 that the determination of primary physical custody 

was not properly before the District Court. 

Reversed and remanded for further proceedings in accordance 

with this opinion. 

Justices 

5 
Justice 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 support according to the Uniform Guidelines. In his 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 each 
month 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.K1s medical insurance; that any 

uncovered medical expenses would be shared equally by the parties; 

and that each party would be responsible for his or her individual 

attorney's fees and costs incurred in this matter. 

At the hearing in February, 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 I1best interest of the 

child1' regardless of the custodial arrangements sought by the 

parties. 

Custody of C.J.K. and the parties1 concerns for his best 

interest were thoroughly discussed at the February, 1992, hearing. 

Again, the record is clear. It indicates, at length, a severe 

problem in the mothergs home 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 the mother's home. The record also indicates that the 
mother 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 the key 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. 

I disagree. 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, custody and 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 the primary 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 

requests by either party, and that the court's failure to consider 

its elements could result in reversible error, even if the parties 
themselves have entered into an agreement regarding the issue of 

custody. In re Marriage of Mager (1990) , 241 Mont. 78, 785 P. 2d 

198; In re Marriage 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 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Robert G. Olson, Esq. 

Frisbee, Moore & Olson 

P.O. Box 547 

Cut Bank, MT 59427 

Susan Weber 

Attorney at Law 

P.O. Box 1258 

Great Falls, MT 59403 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA 

BY: 

Depu