No. 12170 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 73 

ROGER L. ROEBUCK, 

Plaintiff and Appellant, 

-vs - 

CAROL L. ROEBUCK now CMdL &. BAILES, 

Defendant and Respondent. 

Appeal from: District Court of the First Judicial District, 

Honorable Gordon R. Bennett, Judge presiding. 

Counsel of Record: 

For Appellant : 

William Dee Morris a tgued , Helena, Montana 

For Respondent : 

Charles Smith argued, Helena, Montana 

Submitted: March 1, 1973 

Decided : APR 8 - 19~ - 

Filed: flR 3 - fm 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

The father of three minor children was awarded their 

custody following a divorce in the circuit court of Deschutes 

County, Oregon. The children lived with their father in Oregon 

pursuant to the Oregon decree, with minor modifications, for about 

three years. During a summer visitation with their mother in 

Montana pursuant to the Oregon decree, the mother sought modification in Montana of the Oregon Custody award based on changed 

circumstances, The district court of Lewis and Clark County, 

Montana, modified the Oregon decree, awarding exclusive custody 

of the three minor children to the mother and enjoining the father 

from interfering with her custody. The father appeals from this 

custody order of the Montana court. 

The sole issue for review upon appeal is the jurisdiction 

of the Montana d2strict court to modify the Oregon custody award. 

Appellant is Roger L. Roebuck, the father of the three minor 

children whose custody is in dispute. Respondent is Carol L. 

Roebuck, now Carol L. Bailes, the mother. The three minor children 

are a girl now age 13, and two boys now ages 11 and 9. 

The father and mother were married in Oregon in 1960. The 

three minor children were issue of this marriage. On July 31, 1968, 

the father and mother were divorced by decree of the circuit court 

of Deschutes County, Oregon. Under the terms of the divorce decree, 

the fhther was awarded custody of the three minor children with 

specified visitation rights in the mother. On July 31, 1970, the 

circuit court of Deschutes County, Oregon, modified the visitation 

rights granting the mother the right to have the children with her 

in Montana for a four week period each summer, but retaining custody 

in the father. 

The mother remarried in 1969 and lives in Montana. On 

July 19, 1971, during the children's summer visitation with their 

mother in Montana pursuant to the terms of the Oregon custody award, 
the mother filed a petition to modify the Oregon custody award 

in the district court of Lewis and Clark County, Montana. She 

sought to have the Oregon custody award to the father set aside 

and custody awarded to her, based on changed circumstances. On 

the same day the Montana district court issued a temporary custody 

order awarding exclusive custody to the mother pending hearing, 

and restraining the father from interfering with that custody 

pending hearing, A copy of the order and petition was personally 

served upon the father in Deschutes County, Oregon on July 28. 

In the meantime before the hearing was held in the Montana 

district court on the mother's petition for modification, the 

father commenced contempt proceedings against the mother in the 

Oregon court for willful violation of the Oregon custody award 

requiring her to return the children to him in Oregon* in July. 

These proceedings were commenced on August 11, but the mother could 

not be served although copies of the last Oregon custody award of 

July 1970, the father's affidavit alleging contempt by the mother, 

and the court's order setting the contempt charge for hearing 

were delivered to the mother's Montana attorney, 

On September 7 the Oregon court held a hearing on the contempt 

charges against the mother at which she did not appear, but as 

shown above she had never been personally served. Nonetheless the 

Oregon court entered the mother's default in the contempt proceedings 

and proceeded to hold the hearing. 

Following this hearing, the Oregon court issued a warrant 

of arrest for contempt against the mother and specifically made 

the following findings: (1) That the father maintains an exemplary 

home life and facilities for the care of the children, (2) that 

there exists no change in circumstances requiring modification 

of its custody orders, (3) that the temporary absence of the children 

from Oregon does not deprive the Oregon court of its jurisdiction 

over their custody, and (4) terminating its previous summer visitation order, 
We note that these proceedings and orders of the Oregon 

court on September 7 were not in evidence before the Montana court 

when it held its hearing on the mother's petition for modification, 

but were furnished this Court at the time of oral argument of 

this appeal. However, we relate them here in the chronology of 

events leading to this appeal in the interests of completeness 

although we do not consider them germane to determination of this 

appea 1, 

On September 15, the district court of Lewis and Clark 

County, Montana held a hearing on the mother's petition for modification of the Oregon custody award. On September 21, the 

Honorable Gordon R. Bennett, district judge, entered findings of 

fact, conclusions of law, and a custody order. Briefly, he found 

that since the divorce and the last custody order of the Oregon 

court "there has been a substantial and material, if not drastic, 

change of conditions affecting the welfare and custody of said 

children, which change of conditi~ns has been conclusively proved 

by the testimony of the father himself." Specific findings related 

to the failure of the father to provide two of the children with 

It proper medical care exposing them to grave danger and risk of 

serious and permanent physical harm and damage." Generally the 

findings encompassed the conclusion that the welfare of the children 

and their emotional, spiritual and physical development by reason 

of changed circumstances since the last Oregon custody award 

required a change in their custody from the father to the mother. 

The Montana court ordered: (1) That the Oregon decree be modified 

to place exclusive custody in the mother, (2) enjoined the father 

from interfering with the mother's custody, and (3) required the 

father to pay the mother $150 per month child support and maintenance. 

The father now appeals from this custody order of the 

Montana district court, As heretofore stated, the sole issue on 

appeal is the jurisdiction of the Montana district court to enter 

this order. 
The father mounts a three-pronged attack on the jurisdiction of the Montana district court, contending: (1) The 

Oregon court has exclusive jurisdiction over the custody of the 

children by virtue of its cantinuing jurisdiction as the court 

of original award and the Oregon domicle of the children. (2) 

The Montana court has no jurisdiction over the custody of the 

children as they are not domiciliaries of Montana and were physically present in Montana only temporarily under the terms of the 

Oregon decree. (3) The Montana court denied "full faith and credit" 

to the Oregon custody award by adjudicating the same issues as 

were previously adjudicated to the contrary by the Oregon court. 

Directing our attention to the father's first contention, 

it is clear the Oregon court had continuing jurisdiction over the 

custody of the children both as the court of original award and 

as the court of the children's domicile. It is admitted that the 

Oregon court had jurisdiction in the first instance over the 

divorce proceeding and custody of the minor children of the marriage. The Oregon courtp~ssessedcontinuing jurisdiction to modify 

its original custody award by the express provisions of statute. 

11 ORS 107,135(1)(a), provides the court has the power to Set aside, 

alter or modify so much of the decree as may provide * * * for 

the custody, support and welfare of the minor children * * *,I1 

Godfrey v. Godfrey, 228 Or. 228, 364 P.2d 620. Montana has a 

similar statute and recognizes such jurisdiction. Section 21-138, 

R.C.M, 1947; Corkill v. Cloninger, 153 Mont. 142, 454 P.2d 911; 

Brandner v. Brandner, 154 Mont. 373, 464 P.2d 508. The Oregon ' 

court likewise has the jurisdiction to determine the custody of 

minor children who, as here, are domiciled in Qregon. Allen v, 

Allen, 200 Or, 678, 268 P.2d 358. 

However, the jurisdiction of the Oregon court in such cases 

is not necessarily exclusive, It is widely, if not universally, 

recognized that physical presence of a minor child within the 

borders of a state invests the courts of that state with jurisdiction to determine custody where the welfare of the child is 
concerned, In re Clay, 96 Ariz. 160, 393 P.2d 257; Fenner v, 

Bassett, (Alaska 19661, 412 P.2d 318; Stout v, Pate, 120 C.A.2d 

699, 261 P,2d 788; Heilman v, Heilman, 122 C.A.2d 771, 266 P.2d 

148; Sampsell v. Superior Court, 32 C.2d 763, 197 P.2d 739; Eddy 

v. Staufer, 160 Fla, 944, 37 S.2d 417; Application of Anderson, 

79 Ida. 68, 310 P.2d 783; Oleen v. Oleen, 15 Utah 2d 326, 392 

P.2d 792. Under material facts identical to the instant case, the 

Texas Supreme Court found jurisdiction based on temporary presence 

of a minor child within the state. Goldsmith v. Salkey, 131 Tex. 

139, 112 S.W.2d 165, 116 A.L.R. 1293. 

The origin and fountainhead of such jurisdiction lies 

in the power of a state as parens patriae to protect the innocent 

and helpless found within its borders without regard to their 

legal domicile, Finlay v. Finlay, 240 N.Y. 429, 148 N.E. 624, 

40 A.L.R. 937; In re Clay, supra; McMillin v. McMillin, 114 Colo, 

247, 158 P.2d 444, 160 A.L.R. 396; Starr v, Starr, 121 C.A.2d 633, 

263 P.2d 675; Bassett v. Bassett, 56 N.M. 739, 250 P.2d 487, Anno. 

4 ALR2d 41, 5 24. Such jurisdiction exists notwithstanding a valid 

existing custody award by a court of a sister state. Goldsmith 

v, Salkey, supra; Bassett v. Bassett, supra; Stout v. Pate, supra; 

Heilman v, Heilman, supra; In re ~ee's Guardianship, 123 C.A.2d 

882, 267 P.2d 847; Sampsell v. Superior Court, supra; Oleen v, 

Oleen, supra. 

While the foregoing authorities are not binding precedent 

in Montana, the basic rationale indicated in the two preceding 

paragraphs is persuasive. Under the circumstances of the instant 

case, such rationale is compelling. We hold therefore that where, 

as here, the circumstances of the case warrant the intervention 

of the state of Montana as parens patriae for the protection and 

welfare of minor children physically present within its borders, 

the jurisdiction of the Montana court cannot be denied solely by 

reason of an outstanding valid custody award by a court of the 

children's domicile. 
The final issue is whether the Montana court denied 'ffulf 

faith and creditff to the Oregon custody award by adjudicating the 

same issues previously decided to the contrary by the Oregon court. 

A brief review of the applicable law pertinent to this 

issue will furnish the necessary background for its determination. 

The United States Constitution requires that full faith and credit 

must be given by each state to the judicial proceedings of every 

other state. Art. IV, Sec. 1, United States Constitution. sup: 

plementary legislation enacted by Congress provides in pertinent 

part : 

"Such * * * judicial proceedings * * * shall 

have the same full faith and credit in every 

court within the United States * * * as they 

have by law or usage in the courts of such 

State * * * from which they are taken." 

Act of June 25, 1948, Ch. 646, 62 Stat. 947; 

28 U.S.C.A. 5 1738. 

The essence of these requirements as they apply to subsequent 

custody orders by the court of a sister state is summarized 

in 24 Am Jur 2d, Divorce and Separation 5 1000, p. 1140: 

If* * * The full faith and credit clause does 

not prevent other states from changing custody 

under the same circumstances. While the judgment of a divorce court concerning custody is 

res judicata of the issue as of the time of the 

adjudication, another state may make a new order 

where the circumstances have changed and the 

welfare of the child will be promoted by the 

modification. 

" * * * it is usually held that a new order for 

custody can be made in another state only where there 

has been a substantial change in circumstances since 

the entry of the decree. If the circumstances are 

unchanged, the foreign decree, if rendered by a court 

having jurisdiction to award custody, should be given 

full fcrce and effect," 

The Montana Supreme Court held to the same effect in 

Corkill v, Cloninger, 153 Mont. 142, 150, 454 P.2d 911: 

"Thus the courts of either state may possess jurisdiction to make a subsequent custody award, but 

such subsequent awards must be based on changed conditions affecting custody since entry of the existing 

valid custody award. In this manner, the constitutional requirement that full faith and credit be given 

to valid judgments and orders of the courts of a 

sister state is satisfied." 
In the instant case, at the time of the hearing in the 

Montana court the Oregon custody order of July 1970 was the 

existing valid custody award, The purported findings and custody 

order of the Oregon court on September 7, 1971, in the contempt 

hearing was void as it exceeded the scope of the notice and 

issues of that hearing and no personal service was made on the 

mother. In any event, that hearing was limited to the issue of 

whether the mother was in contempt of court by reason of willful 

violation of the terms of the custody order of July 31, 1970. 

The issues of the fitness of the father for custody or changed 

circumstances since July 1970 were foreign to the notice of 

hearing on the issue of contempt properly before the Oregon court. 

As such the issues of fitness and changed circumstances were 

beyond the jurisdiction of the Oregon court to hear and determine 

in that proceeding, the determination of such issues was and is of 

no effect even in the state of Oregon. Accordingly, the determination of such issues is not entitled to any faith and credit 

in Montana. 

Appellant's contention that the Montana court readjudicated 

the same issues previously decided by the Oregon court to the 

contrary is not borne out by the record, As we have no record I 

of the testimony or the specific conditions affecting custody 

before the Oregon court, we must necessarily rely on such times 

and dates as were established in the evidence before the Montana 

court in determining whether a given condition predated or antedated the Oregon custody award. While such evidence discloses 

to some extent an overlap of conditions adversely affecting the 

children's welfare, both before and after the Oregon decree of 

July 31, 1970, it is manifest that these conditions had rapidly 

deteriorated subsequent to that date and had become acute, 

damaging, and demanded immediate attention at the time the Montana 

court assumed jurisdiction. Such circumstances constitute a 

substantial and material change in conditions affecting custody 

and the district court so found. Thus appellant's contention is 

contrary to the evidence. 
What were the material changes in circumstances since the 

Oregon custody award? It is unnecessary and inadvisable to detail 

the facts as they stand largely undisputed and no issue is presented in this appeal concerning the sufficiency of the evidence 

to support the findings. Suffice it to note that they concern 

immediate and acute physical, medical, dental, educational and 

emotional problems of the minor children directly related to the 

father's care, custody and control. The findings of the Montana 

court concerning substantial and material changes affecting the 

welfare and custody of the children are not in issue in this 

appeal and fully support the conclusion of law: 

11 That the changed circumstances hereinabove 

mentioned render it essential that said minor 

children's custody, care and control be changed 

from the father to the mother and the best interests of said children and their welfare will 

be served thereby. 11 

Both the findings and conclusions of the Montana district court 

support its order changing custody to the mother, 

Appellant principally relies on Carroll v. White, 151 

Mont. 332, 443 P.2d 13, to sustain his contention that the 

Montana court has no jurisdiction to determine custody in the 

instant case, Carroll is entirely consistent with our holding 

in the instant case, being distinguishable on both the facts 

and the law. In Carroll, a mother domicled in Washington who 

had custody of her two minor children, also domiciliaries of 

Washington, under a Washington custody order permitted them to 

visit their father, who was domiciled in Montana, for a month 

during the summer, When the father did not return them to 

Washington, the mother brought an action in a Montana district 

court to have the children returned to her, relying on the 

Washington decree for custody, The father counterclaimed on the 

basis the mother had transferred their custody to him and had 

consented to their remaining with him during the next school year. 

The Montana district court found that no such agreement existed 

and ordered the return of the children to their mother in Washington. On appeal we held that the Washington decree granting 
custody to the mother was entitled to full faith and credit. 

There was no issue before the Montana court concerning 

the mother's fitness for custody. Subsequently in Corkill, 

we expressly indicated our disapproval of the rule denying 

jurisdiction to determine custody to any court outside the state 

of the child's then existing domicile, overruling Application 

of Enke, 129 Mont. 353, 287 P.2d 19, to the contrary. 

Carroll is consistent with our ruling in the instant 

case. There, as here, the court of a sister state had made a 

valid existing custody award concerning minor children domiciled 

in the sister state, The custody award was res judicata of the 

issues as of the time of the adjudication and accordingly entitled to full faith and credit in Montana. But in Carroll, 

unlike the instant case, there was no subsequent change in 

conditions and circumstances affecting custody and therefore 

no basis for the readjudication thereof by the Montana court. 

For the foregoing reasons we hold that under the circumstances af the instant case, the Montana court had jurisdiction 

to readjudicate the custody of the minor children here involved, 

The judgment of the district court is affirmed. 

Associate Justice 

MR. JUSTICE JOHN CONWAYmdissenting: 

I dissent, 1 

Asza ciate Justic