No. 12202 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 

The State of Montana ex rel., 

ROBERT DUANE SHELHAMER , 

Relator, 

THE DISTRICT COURT OF THE FOURTEENTH 

imarcuL DISTRICT OF THE COUNTY OF 

MUSSELSHELL and THE HON. NAT ALLEN, 

presiding judge, 

Respondents. 

ORIGINAL PROCEEDING : 

Counsel of Record: 

For Relator : 

Robert L. Stephens, Jr. argued, Billings, Montana. 

For Respondents : 

Ask and Brower, Roundup, Montana. 

John L. Prate argued, Roundup, Montana. 

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Submitted : February 14, 1972 

Decided: MAR 6 - 1972 
Mr. Chief Justice James T. Harrison delivered the Opinion of 

the Court. 

This is an original proceeding wherein relator sought 

an appropriate writ to require modification of an order entered by the respondent court in a contempt proceeding. 

From the record it appears that in a divorce proceeding 

entitled Phyllis A, Shelhamer, Plaintiff, v. Robert Duane Shelhamer, Defendant, pending in the district court of Musselshell 

County, wherein a decree of divorce was entered on October 7, 

1968, the plaintiff executed an affidavit in re contempt. It was 

alleged therein that the defendant had not paid certain support 

money as required by the aforementioned decree, and prayed that 

an order to show cause be issued requiring the defendant to appear 

and show cause, if any he had, why he should not be held in contempt of court, and also pay plaintiff's attorney's fees for the 

proceeding. 

The respondent court issued an order to show cause under 

date of September 24, 1971, requiring defendant to appear before 

it on October 8, 1971. 

The hearing was continued to October 18, 1971, at which 

time the parties appeared in court and testimony was taken from 

each side as to the delinquencies in support payments and excuses 

for nonpayment thereof. 

Respondent court during the hearing expressed its dissatisfaction with the custody provisions contained in the original 

decree, found defendant guilty of contempt for failure to support 
the children, fined him, and over the objections of his counsel 

directed a change be made in the custody of the children. A 

formal order was thereafter entered on November 5, 1971. 

It is conceded by the parties that the issue here is 

whether or not the court was in error in unilaterally terminating relator's partial custody rights granted by a prior divorce 

decree at a contempt hearing for nonsupport without request by 

the adverse party for the relief granted and without notice to 

the relator that his right of partial custody would be at issue. 

The district court has continuing jurisdiction in child 

custody matters and has the continuing power to modify orders 

and change custody, all as provided in section 21-138, R.C.M. 

1947, which reads : 

"Orders respecting custody of children. In 

an action for divorce the court or judge may, 

before or after judgment, give such direction 

f~r thecustody, care, and education of the 

children of the marriage as may seem necessary or proper, and may at any time vacate or 

modify the same." 

As we stated in Barbour v. Barbour, 134 Mont. 317, 324, 

"The effect of R.C.M. 1947, section 21-138, is 

to make all child custody orders interlocutory 

in nature, discretionary with the district court, 

and conditioned by what the district court in 

its sound discretion believes to be for the 

well-being of the child concerned. * * *" 

This does not contemplate, however, that due process 

should not be observed. Here we have a show cause order for 

nonsupport, no request for a change of custody; nothing in the 

pleadings to indicate a change in custody was sought. 
The language used by the Supreme Court of Maine in 

Remick v. Rollins, 141 Me. 65, 38 A.2d 883, 884, appears particularly appropriate: 

"There was no prayer in the petition to change 

any provision of the original decree as to 

custody and visitation of the children, but the 

new decree makes an alteration in that respect. 

Established practice gives parties a right to 

assume that no change will be made on an issue 

which is not formally presented to the Court 

by the petition or pleadings." 

To the same effect is the statement contained in Scott v. Scott, 

174 Iowa 740, 156 N.W. 834, 836, wherein the Iowa court held: 

"The modification of the decree, by striking 

therefrom the provision rebating to the custody of the child, was without authority. 

This order was entered at the term following that at which the decree was entered, 

and therefore could not properly have been 

made on the court's own motion or without 

notice to the plaintiff." 

In Welch v. Welch, 256 Iowa 1020, 129 N.W.2d 642, 643, the Iowa 

court in ruling in the same vein, stated: 

"Nothing in the application or amendment 

thereto sets out any change of circumstances 

since the divorce decree was entered that 

supports a change in its custody provisions 

nor indicates a desire therefor. The issue 

of custody was not raised. * * *" 

Respondent cites the case of Pearce v. Pearce, (1904) 

30 Mont. 269, 76 P. 289, as authority for the proposition that 

the court on its own motion may inquire into the facts respecting child custody and make an appropriate order. We must bear 

in mind that in Pearce both parties were before the court and 

the issue raised by the pleadings was that a change of custody 
of the minor child should be made to the father, and such prayer 

was granted and the ex-wife appealed. In the course of its 

opinion this Court stated: 

" * * * If it makes a mistake in the first 

instance, it may and should remedy the same, 

upon a proper showing, as soon thereafter as 

possible; and the law, in its beneficence, 

and with a tender care for the infants, has 

provided the means * * * .I1 (Emphasis ours.) 

In Brice v. Brice (1915), 50 Mont. 388, 147 P. 164, this 

Court, citing Pearce as authority, stated: 

" * * * Under section 3678 the court may, in 

any case, before or after judgment, make 

such provision for the child as the circumstances require; for though under the decree 

the husband may be relieved entirely from 

any obligation to provide for the wife, the 

court may nevertheless, under section 3678, 

upon proper application, make such order for 

their custody and maintenance as the circumstances justify. * * *" (Emphasis ours.) 

No such proper application had been made to the court 

in the cause here being considered. 

We are not here dealing with complaints made to the 

court with respect to lack of care and maintenance by public 

authorities; certainly in such instances the court upon such 

showing may make any and all orders necessary and proper to 

see that the child's custody is temporarily placed where it can 

be cared for; thereafter giving notice to the parents as provided by law, and if a permanent change in custody appears to 

the court to be necessary then due process requires that an application be made for that purpose and proper notice of such 

application be given. 
We hold that the court here erred in changing the 

custody provisions in the nonsupport contemptproceeding and 

that portion of the court's order of November 5, 1971, is annulled and held for naugh 

We concur: 

n A,' 

f 

*". 

kudg6, .'sit<ihtj i~'~lace of Mr. 

Justice Wesley castles.