No. 14328 

### IN

### THE SUPREME 

### cm OF THE STATE OF MONTANA

1978

STATE

### ex rel., RIcHAFCl K. JENNXS, Relator,

THE DISTRICT COUET OF THE 

### THIRDJUDICIAL DISTRICT etal., Respondents.

Counsel of Record: For Relator: Jack Scanlon argued, Anaconda, Montana For Respondents: Knight, Dahocd, mckay 

### adIWLean, Anaconda, Montana CondeMackay argued, Anaconda, Wntana

Suhnitted: July 21, 1978

j. Filed: && - -Y wMr. Justice John Conway Harrison delivered the Opinion of the Court. Relator, ~ichard K. Jennings, has applied to this Court for a 

### writof supervisory control tobe directed to the DistrictCourt of the Third Judicial District, Deer Lodge County, and toHonorable Robert J. Boyd and Honorable Arnold Olsen. The application concerns jurisdiction over child custody proceedings initiated inMontana by relator's former 

### wife, Sandra Jennings, as a response to 

### similarproceedings brought by relator inIowa. Richard and Sandra Jennings were married inIowa on July 25, 1976. Itwas Sandra Jennings' second marriage. Some two months later, they were separated. The husband, as petitioner, was granted a decree of dissolutionof marriage on February 24, 1977, three days after the birth of the couple's daughter. The decree awarded custody of the child to the wife. Atthat 

### time, she alsohad custody of her son under a decree of dissolution from her previous marriage. During the ensuing months, a number of problems arose with respect to the husband's visitation rights and the parties returned tothe Iowa court on two occasions for further clarification of these rights. On October 3, 1977, thewifemoved toAnaconda, Nontana, toescape what she has termed the husband's "abuse and harassment". After she moved, the husband returned to the Iowa court and received
an order terminating his child support payments and granting him custody of the couple's daughter. A short timelater, thewife's firsthusband returned tothe Iowa court from his home inNebraska and received a similarorder with respect tothe child of the wife's marriage tohim. The wife did not attend either of these hearings.On ~pril 21, 1978, relator filed the Iowa order modifying custody with the Clerk of the District Court, Deer Lodge County, Montana, so that it might be enforced inthis statepursuant to section 61-416, R.C.M. 1947 (Supp. 1977). On the husband's motion, the Honorable Arnold Olsen, sitting inthe absence of Honorable Robert J. Boyd, issued an order giving fullfaithand credit to the Iowa proceedings and directing the wife to surrender custody of the daughter to the husband. The wife 

### was never served with this order. On May 3, 1978, thewife petitioned the District Court for a hearing challenging the jurisdiction of the Iowa district court tomodify the decree of dissolution as to custody. That sameday, Judge Olsen again ordered the wife torelinquish custody of her daughter. However, Judge Boyd, having returned to the bench, issued a temporary restraining order prohibiting the husband from taking custody of the daughter until a hearing could be held concerning the matter. On May 9, thewife petitioned the court tomodify the Iowa decree of dissolution and return legal custody of her daughter toher. That same day, counsel for relator filed a motion seeking fullfaith and credit for the Iowa order obtained by the wife's firsthusband with respect tothe wife's son. The firsthusband later obtained custody of the son through habeas corpus proceedings inthe State of Washington where thewife had taken the son formedical treatment. On May 30, relator moved that the temporary restraining order be quashed, the petition for modification dismissed, and theApril 21 order enforced. Judge Boyd denied the husband's motion and ordered him to seek a 

### writof supervisory control inthis Court todetermine the question of jurisdiction. Wehold that supervisory control is not a necessary remedy under these facts todetermine the relief sought by relator.This Court, in State ex rel. Woodahl v. District Court (1975), 166 Mont. 31, 38, 530 P.2d 780, 785, held: 

## "** 

## * when the facts clearly show that a party has no plain, speedy or adequate remedy atlaw, and when there is no right of appeal from a district court's order, a 

### writof supervisory control may issue so that the decision of the lower courtmay be reviewed by the Montana Supreme Court

# ." Further, this Court, inPetition of Charles Waite, Jr. (1964), 143Mont. 321, 322, 389 P.2d 407, 408, stated: "It

### is incumbent further upon petitioners seeking original jurisdiction 

### in this court tomake a showing of the inadequacy or unavailability of any other remedy, either in the district court or by way of appeal to this court

# . " Relator has a plain and speedy remedy atlaw available to him by appeal from any action of the DistrictCourt. Therefore, the application of relator is dismissed without prejudice and this

### matter isremanded to the District Court of the Third Judicial District for such further proceedings
as itmay deem appropriate.

We Concur: 

# %,-Jw WdWeq Chief Justice

. - 

## - 

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# ,/Justices L/ 

## 0 L'INTHE SUPREME COURT OF THE STATE OF MONTANA No. 14328

STATE ex rel., RICHARD K. JENNINGS, Relator,

THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT, et al., Respondents.

ORDER
Through inadvertence, the Opinion in the above entitled
cause was signed by Justice Gene B. Daly instead of the Honorable Peter G. Meloy, DistrictJudge, sitting for Justice Daly

# . We hereby issue a correction order substituting Judge Meloy for Justice Daly. DATED this

# lsd-, day of September, 1978. 

# s-,ap4%4 #Chief Justice

trict Judge, concu J