No. 12202 INTHE SUPREME COURT OF THE STATE OF MONTANA 1972

The State of Montana ex rel., ROBERT DUANE SHELHAMER

## , Relator,

THE DISTRICT COURT OF THE FOURTEENTH imarcuLDISTRICT 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.

- --- Submitted: February 14, 1972 Decided: 

### MAR 6

# -1972Mr. Chief JusticeJames T. Harrison delivered the Opinion of theCourt. This is an original proceeding wherein relator sought

an appropriate writtorequiremodification 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 inthe districtcourt of Musselshell County, wherein a decree of divorce was enteredon 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, ifany he had, why he should not be held incontempt of court, and alsopay plaintiff's attorney's fees for the proceeding. The respondent court issued an order to show cause under dateof September 24, 1971, requiring defendant to appear before it on October 8, 1971. The hearing 

### was continued to October 18, 1971, atwhich timethe parties appeared incourt and testimony was taken from each side 

### as tothe delinquencies insupport payments and excuses fornonpayment thereof. Respondent court during the hearing expressed its dissatisfactionwith the custody provisions contained inthe original decree, found defendant guiltyof contempt for failure tosupportthe children, fined him, and over the objections of his counsel directed a change be made inthe 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 ornot the courtwas in error inunilaterally 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 atissue. The district court has continuing jurisdiction in child custody matters and has the continuing power tomodify orders and change custody, all asprovided in section 21-138, R.C.M. 1947, which reads: "Orders respecting custody of children. In an action for divorce the court orjudge may, before or afterjudgment, give such direction f~r the custody, care, and education of the children of the marriage as may seem necessary orproper, and may at any timevacate or modify the same." Aswe stated inBarbour v. Barbour, 134 Mont. 317, 324,

"The effect of R.C.M. 1947, section 21-138, is tomake all child custody orders interlocutory innature, discretionarywith the district court, and conditioned by what the district court in its sound discretionbelieves tobe 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 inthe pleadings toindicate a change in custody was sought.The language used by the Supreme Court of Maine in Remick v. Rollins, 141Me. 65, 38 A.2d 883, 884, appears particularly appropriate: "There was no prayer inthe petition tochange any provision of the original decree as to custody and visitationof the children, but the new decree makes an alteration inthat respect. Established practice gives parties a right to assume thatno change willbe made on an issue which is not formally presented tothe Court by the petition orpleadings." To the same effect is the statement contained in Scottv. 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 tothe custody of the child, 

### was without authority. This order was entered atthe termfollowing that atwhich the decree was entered, and therefore could not properly have been made on the court's own motion or without notice to the plaintiff." InWelch v. Welch, 256 Iowa 1020, 129 N.W.2d 642, 643, the Iowa court inruling inthe same vein, stated: "Nothing inthe applicationor 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 forthe proposition that the court on its own motion may inquire intothe facts respecting child custody and make an appropriate order. Wemust bear inmind that inPearce both parties were before the court and the issue raised by the pleadings was that a change of custodyof theminor 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 inthe first instance, it may and should remedy the same, upon a proper showing, as soon thereafter as possible; and the law, initsbeneficence, 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, citingPearce as authority, stated: 

### " 

## * * * Under section 3678 the courtmay, in any case, before 

### or afterjudgment, make such provision for the child as the circumstances require; for though under the decree the husband may be relieved entirely from any obligation toprovide forthe wife, the courtmay nevertheless, under section 3678, upon proper application, make such order for their custody and maintenance as the circumstancesjustify. 

## * * *" (Emphasis ours.) No such proper application had been made tothe court inthe cause here being considered. We are not here dealingwith complaints made tothe courtwith respect tolack of care and maintenance by public authorities; certainly in such instances the court upon such showing may make any and allorders necessary and proper to

see that the child's custody is temporarily placed where it can be cared for; thereafter givingnotice 

### to the parents as provided by law, and if a permanent change in custody appears to the court tobe necessary then due process requires that an applicationbe made for thatpurpose and proper notice of such application be given.We hold that the court here erred inchanging the custody provisions inthe nonsupport contemptproceeding and that portion of the court's order of November 5, 1971, is annulled and held for naugh

We concur: 

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*". kudg6,.'sit<ihtji~'~lace of Mr. Justice Wesley castles.