No. 12170 INTHE 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 FirstJudicial District, Honorable Gordon R. Bennett, Judge presiding. Counsel of Record: For Appellant: William Dee Morris atgued

## ,Helena, Montana For Respondent : Charles Smith argued, Helena, Montana

Submitted: March 1, 1973

Decided :

# APR8

# -19~
- Filed: 

# flR 3

# -fmMr. JusticeFrank I. Haswell delivered the Opinion of the Court.

The father of three minor childrenwas awarded their custody following a divorce in the circuit court of Deschutes County, Oregon. The children livedwith their father inOregon pursuant tothe Oregon decree, with minor modifications,for about three years. During a summer visitationwith their mother in Montana pursuant to the Oregon decree, the mother sought modification inMontana 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 tothe mother and enjoining the father from interferingwith her custody. The father appeals from this custody order of the Montana court. The sole issue for review upon appeal 

### isthejurisdiction of the Montana d2strict court tomodify the Oregon custody award. Appellant isRoger L. Roebuck, the father of the three minor childrenwhose custody 

### is in dispute. Respondent isCarol L. Roebuck, now Carol L. Bailes, the mother. The three minor children

area girlnow age 13, and two boys now ages 

### 11and 9. The father and mother were married inOregon in 1960. The three minor children

### were issue of thismarriage. 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 fhtherwas awarded custody of the three minor childrenwith specified visitationrights in the mother. On July 31, 1970, the circuit court of Deschutes County, Oregon, modified the visitation rights granting the mother theright tohave the childrenwith her inMontana for a fourweek period each summer, but retaining custody in the father. The mother remarried in 1969 and lives inMontana. On July 19, 1971, during the children's summer visitationwith their mother inMontana pursuant to the 

### terms of the Oregon custody award,the mother filed a petition tomodify the Oregon custody award in the district court of Lewis and Clark County, Montana. She sought tohave the Oregon custody award to the father set aside and custody awarded toher, 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 interferingwith 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 forwillful violation of the Oregon custody award requiring her toreturn the children tohim inOregon* in July. These proceedings 

### werecommenced 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 forhearing

were delivered to the mother's Montana attorney, On September 

### 7 the Oregon court held a hearing on the contempt charges against the mother atwhich she didnot 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 tohold the hearing. Following thishearing, the Oregon court issued a warrant of arrest forcontempt against the mother and specificallymade the following findings: (1) That the father maintains an exemplary home lifeand facilities for the care of the children, (2) that there existsno change incircumstances requiring modification of 

### itscustody orders, 

### (3) that the temporary absence of the children from Oregon does not deprive the Oregon court of 

### itsjurisdiction

over their custody, and 

### (4) terminating 

### itsprevious summer visitation order,We note that these proceedings and orders of the Oregon court on September 

### 7 were not inevidence before the Montana court when itheld 

### itshearing on the mother's petition formodification, but were furnished this Court atthe time of oralargument of this appeal. However, we relate them here in the chronology of events leading to this appeal in the interests of completeness althoughwe do not consider them germane todetermination 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, districtjudge, 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, ifnot drastic, change of conditions affectingthe 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 tograve 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 tothe mother. The Montana court ordered: (1) That the Oregon decree be modified to place exclusive custody inthe mother, (2) enjoined the father from interferingwith the mother's custody, and (3) required the father topay 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 isthejurisdiction of the Montana district court toenter this order.The father mounts a three-pronged attack on thejurisdiction of the Montana district court, contending: (1) The Oregon court has exclusivejurisdiction over the custody of the childrenby virtue of 

### itscantinuingjurisdiction 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 arenot domiciliaries of Montana and were physically present inMontana only temporarily under the terms of the Oregon decree. 

### (3) The Montana court denied "full faith and credit" tothe Oregon custody award by adjudicating the same issues as

were previously adjudicated to the contraryby the Oregon court. Directing our attention to the father's firstcontention, it 

### isclear the Oregon court had continuingjurisdiction over the custody of the children both as the court of original award and



### as the court of the children's domicile. It 

### isadmitted 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 tomodify 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, alterormodify 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 suchjurisdiction. Section 21-138, R.C.M, 1947; Corkill

### v. Cloninger, 153Mont. 142, 454 P.2d 911; Brandner 

### v. Brandner, 154Mont. 373, 464 P.2d 508. The Oregon ' court likewise has thejurisdiction to determine the custody of minor children who, ashere, aredomiciled in Qregon. Allen v, Allen, 200 Or, 678, 268 P.2d 358. However, thejurisdiction of the Oregon court in such cases 

### isnot necessarily exclusive, It 

### iswidely, ifnot universally, recognized that physical presence of a minor childwithin the borders of a stateinvests the courts of that statewith jurisdiction to determine custody where the welfare of the child 

### is

### concerned, In re Clay, 96Ariz. 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; Heilmanv, Heilman, 122C.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 ofAnderson, 79 Ida. 68, 310 P.2d 783; Oleenv. Oleen, 15 Utah 2d 326, 392 P.2d 792. Under material facts identical to the instant case, the Texas Supreme Court found jurisdictionbased on temporary presence of a minor childwithin the state. Goldsmithv. 

### Salkey, 131Tex. 139, 112 S.W.2d 165, 116A.L.R. 1293. The origin and fountainheadof such jurisdiction lies in the power of a state as parens patriae to protect the innocent and helpless foundwithin itsborders without regard to their legal domicile, Finlayv. Finlay, 240

### N.Y. 429, 148 

### N.E. 624, 

### 40A.L.R. 937;In re Clay, supra;McMillin v. McMillin, 114Colo, 247, 158 P.2d 444, 160A.L.R. 396; Starrv, Starr, 121 C.A.2d 633, 263 P.2d 675;Bassett v. Bassett, 56 N.M. 

### 739, 250 P.2d 487,Anno. 

### 4ALR2d 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; Heilmanv, 

### Heilman, supra; In re ~ee'sGuardianship, 123 C.A.2d 882, 267 P.2d 847; Sampsellv. Superior Court, supra;Oleen v, 

### Oleen, supra. While the foregoing authorities are not binding precedent inMontana, 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 childrenphysically present within its borders, the jurisdiction of the Montana court cannot be denied solelyby

reason of an outstanding valid custody award by a court of the children's domicile.The final issue 

### iswhether the Montana court denied 'ffulf faith and creditfftothe 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 issuewillfurnish the necessary background for 

### itsdetermination. The United States Constitution requires that full faith and credit must be given by each state to thejudicial proceedings of every other state. Art. IV, Sec. 

### 1, United States Constitution. sup: plementary legislation enacted by Congress provides inpertinent part: "Such

# *

# **judicial proceedings

# **

# * shall have the same full faith and credit inevery 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 resjudicata of the issue 

### as of the time of the adjudication, another statemay make a new order where the circumstances have changed and the welfare of the childwillbe promoted by the modification. 

## "

# ** * it 

### isusually held that a new order for custody can be made in another stateonly where there has been a substantial change incircumstances since the entry of the decree. If the circumstances are unchanged, the foreign decree, ifrendered by a court havingjurisdiction to award custody, should be given full fcrce and effect," The Montana Supreme Court held to the same effect in Corkill v, Cloninger, 153Mont. 142, 150, 454 P.2d 911: "Thus the courts of either statemay possess jurisdiction tomake 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 thismanner, the constitutional requirement that full faith and credit be given to validjudgments and orders of the courts of a sister state

### is satisfied."

### Inthe instant case, 

### at the time of the hearing in the Montana court the Oregon custody order of July 1970was the existingvalid custody award, The purported findings and custody order of the Oregon court on September 

### 7, 1971, inthe contempt hearing was void as it 

### exceeded the scope of thenotice and issues of thathearing and no personal servicewas made on the mother. In any event, that hearing was limited to the issue of whether the mother was incontempt 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 1970were foreign tothe notice of hearing on the issue of contempt properly before the Oregon court. As 

### such the issues of fitnessand changed circumstances were beyond thejurisdiction of the Oregon court tohear and determine inthat proceeding, the determination of such issueswas and 

### isof

no effect even inthe state of Oregon. Accordingly, the determination of such issues isnot entitled to any faithand credit inMontana. Appellant's contention that the Montana court readjudicated the same issues previously decided by the Oregon court to the contrary isnot 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 aswere established in the evidencebefore the Montana court indetermining 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 conditionshad rapidly deteriorated subsequent to that date and had become acute, damaging, and demanded immediate attention atthe time the Montana court assumedjurisdiction. Such circumstances constitute a substantial and material change 

### in conditions affectingcustody and the districtcourt so found. Thus appellant's contention is contrary tothe 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 emotionalproblems of the minor children directly related to the father's care, custody and control. 

### The findings of the Montana court concerning substantialand 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 saidminor 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 sustainhis contention that the Montana courthas no jurisdiction to determine custody in the instant case, Carroll is entirely consistent with our holding in the instant case,being distinguishable onboth the facts and the law. In Carroll, a mother domicled inWashingtonwho 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 counterclaimedon the basis the mother had transferred their custody to him and had consented to their remaining with him during the next schoolyear. The Montana district court found that no such agreement existed and ordered the return of the children to their mother inWashington. On 

### appealwe held that the Washington decree granting

### custody to the mother was entitled to full faith and credit. Therewas 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 statehad made a valid existing custody award concerningminor childrendomiciled in the sister state, The custody awardwas 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, therewas no subsequent change in conditions and circumstances affecting custody and therefore

no basis for the readjudication thereof by the Montana court. For the foregoing reasonswe hold that under the circumstances af the instant case, the Montana court had jurisdiction to readjudicate the custody of the minor childrenhere involved, The judgment of the district court is affirmed.

Associate Justice



### MR. JUSTICE JOHN CONWAYmdissenting: 

### Idissent, 1



### Aszaciate Justic