No. 87-130 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

In Re th.e Custody of 

A. L. S., 

a minor child. 

APPEAL FROM: District Court of the Twelfth Judicial District, 

In and for the County of Hill, 

The Honorable Chan Ettien, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Marble & Seidlitz; Donald R. Marble, Chester, Montana 

For Respondent: 

James D. Elshoff, Helena, Montana 

Submitted on Briefs: Sept. 17, 1987 

Decided: December 3, 1987 

pr ;\ *. ;,-'!yr Filed: , , 

, -8 ..J 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

J.S., the natural mother of six-year-old A.L.S., 

appeals an order of the Twelfth Judicial District in and for 

the County of Hill, State of Montana, which modified a decree 

of dissolution of marriage so as to give primary custody of 

the boy to her former husband, A.E.S., who is the boy's 

natural father. Various irregularities in the manner by 

which the District Court received and entertained the 

father's motion dictate that the order of modification be 

vacated and this matter be remanded for further 

consideration. 

On December 6, 1382, a decree of dissolution was 

entered ending the parties' marriage of nearly four years. 

The decree adopted by reference a property settlement 

agreement, which also established joint custody of the one 

son. Under this agreement, the mother was to have custody of 

the boy during the school months, the father was to have 

custody during the summer months, and they were to alternate 

custody at holidays. The record fails to disclose how this 

arrangement worked prior to the summer of 1985. 

By 1985 both parents had moved to the state of 

Washington. In August of that year, presumably during his 

rightful period of primary custody, the father moved the boy 

to Eugene, Oregon, without notifying the mother. When the 

father's period of custody elapsed and the boy was not 

returned, the mother filed a felony custodial interference 

complaint against the father. The father and child were 

located in Oregon, the mother reassumed custody with the aid 

of Oregon authorities, and father was extradited to 
Washington. He was convicted of felony custodial 

interference in Washington Superior Court on April 10, 1986. 

Since his extradition, the father has seen the child only 

once for two hours in a court-supervised visit during his 

felony trial. 

Mother and child returned in 1986 to the Rocky Boy's 

Indian Reservation, where she and the boy are enrolled 

members of the Chippewa Cree tribe. The boy's heritage is 

calculated by the tribe to be 81/256th part Indian, roughly 

one-third Indian blood. The father has no Indian ancestry. 

Mother sought an award of sole custody from the tribal court. 

The father failed to appear for a hearing. The tribal court 

ordered that the child should remain in the mother's custody 

while it investigated the mother's charges that the father 

had abused the boy. Mother and her new husband both found 

jobs in Havre, Montana, and rented a modern apartment. 

The father located the mother in December, 1986. He 

demanded to see his son for Christmas but the mother refused 

the request. On December 23, father filed a motion to modify 

custody supported by affidavit. The affidavit stated that 

the father had experienced "numerous and continuous problems" 

in exercising his visitation rights, that the child was 

afraid of his mother and her male companions and wished to 

live with the father, and that the boy's situation had 

changed significantly since the original decree because the 

mother was not caring for the son's various health problems. 

He asserts that the boy's strabismus, a condition in which 

the eyes do not focus together, is such that it could cost 

the boy his left eye if not attended to. On the basis of 

this affidavit, the District Court issued an order on 

December 24 compelling the mother to appear on January 14, 
1987 and show cause why the father should not be granted sole 

custody . 

The father filed a second motion on December 31, 1986, 

requesting the District Court to hold the mother in contempt 

of court for refusing to abide by the custody and visitation 

terms of the 1982 dissolution decree. In his supporting 

affidavit father said he "knows of no reason other than 

[mother's] willful refusal" why he should not be allowed his 

visitation and custody rights. He did not apprise the court 

of his felony conviction in Washington for custodial 

interference. The father suggested that this motion could be 

considered during the previously scheduled January 14 

hearing. On January 7, 1987, the District Court ordered a 

second hearing be scheduled on January 29, 1987 for mother to 

show cause why she should not be held in contempt. 

The record contains no affidavits of mailing or of 

service on the court's two orders. A receipt entered as part 

of the record shows that father mailed something to the 

mother on December 24. Mother acknowledges receiving notice 

of the first hearing in early January. But she could not 

find an attorney in Havre that would handle her case since 

father had talked to the attorneys in town. She called the 

District Judge to tell him that she could not find a lawyer. 

She apparently misunderstood the judge to say the matter had 

been continued until January 29. Consequently, she did not 

appear at the January 14 hearing. The father attended that 

hearing and testified that since he was concerned about his 

son's health and had been refused opportunities to see his 

son, the decree of custody should be modified in his favor. 

Again it appears from the transcript that the father did not 
notify the court of his conviction for custodial 

interference. 

The District Court issued an order on January 15, 1987, 

granting sole custody to the father with reasonable 

visitation for the mother. No notice of judgment concerning 

this order was mailed to the mother. 

The order of modification and the contempt proceeding 

against the mother were stayed until February 23, 1987. 

Mother appeared with counsel at that hearing. The court 

refused to consider counsel's motion to dismiss father's 

petition, but considered the hearing to be one to set aside 

the court's order of modification. Mother and her new 

husband testified that the boy was attending school on the 

reservation and was being attended to by physicians and 

psychologists. They testified that they were working and 

were providing an adequate home and were not currently on 

welfare. The father admitted in questioning that he had been 

convicted of custodial interference, that he and a daughter 

by another union were currently on welfare, and that he had 

no job at that time. 

On March 4, 1987, the District Court modified its 

January 15 decree so that the father has custody of the boy 

during the school months and the mother has custody during 

the summer months. Beyond that, mother's motion was denied. 

Counsel for the mother applied for a stay of this new order 

on March 6, 1987. He argued that the mother is providing a 

suitable home for the child, that the child is in school in 

Rocky Boy's, that the father had not been able to provide the 

court with a home address, and that to change the child's 

custody while the matter was being appealed would not be in 

the child's best interest. The court denied that application 
without providing any reasons. The tribal court then took 

temporary custody of the child. He remains at the 

reservation. 

Counsel for the mother requests that this Court reverse 

the District Court and reinstate the custody decree of 

December 6, 1982. Counsel urges that the District Court's 

actions were irreparably flawed since the father's affidavit 

was insufficient to order a hearing to consider modification. 

He argues further that the court erred by not affording the 

mother an opportunity to file responding affidavits before 

ordering the hearing. He argues lastly that the District 

Court abused its discretion by not providing a new trial on 

the matter even though it was shown proper grounds for a new 

trial. 

This Court's standard of review on custody matters is a 

very stringent one. Because the District Court considers all 

the evidence in such matters firsthand and enjoys the 

opportunity to observe the witnesses all reasonable 

presumptions as to the correctness of the District Court's 

determination will be made. In re the Marriage of Robbins 

(Mont. 1985), 711 P.2d 1347, 1350, 42 St.Rep. 1897, 1900, 

citing In re Gore (1977), 174 Mont. 321, 325, 570 P.2d 1110, 

1112; Foss v. Leifer (1976), 170 Mont. 97, 100, 550 P.2d 

1309, 1311. The District Court's findings will not be 

disturbed unless there is a mistake of law or a finding not 

supported by credible evidence and so clearly erroneous as to 

constitute a clear abuse of discretion. Marriage of Robbins, 

711 P.2d at 1350. 

It is apparent in this matter that the District Court 

disregarded certain statutory and jurisdictional 

prerequisites that must be satisfied before modification of 
custody can be considered. The first such lapse concerns the 

service of process. Section 40-4-220, MCA, provides that a 

motion for modification shall be made by affidavit and that 

the adverse party shall be given notice of the proceeding and 

be allowed to file opposing affidavits. Once opposing 

affidavits are filed, or no opposing affidavit is filed 

within a reasonable amount of time, the court may act. Its 

discretion, however, is limited by 9 40-4-220(1), MCA, which 

says in part: 

The court shall deny the motion unless 

- it finds that adequate cause for hearing 

the motion is established by the 

affidavits, inwhich case it shali seG 

date for hearing on an order to show 

cause why the requested order or 

modification should not be granted. 

(Emphasis added.) 

This language restates the law's preference for continuity of 

custody. See In re the Marriage of Perry (Mont. 1984), 691 

P.2d 1384, 1386, 41 St.Rep. 2269, 2271. Proper notice must 

be served to the adverse party so that that party has an 

opportunity to respond. Leonard v. Hoppins (1948), 121 Mont. 

275, 279, 191 P.2d 990, 991-92. The rule is a very practical 

one. If the District Court permitted show cause hearings for 

anything less than the most compelling evidence, after having 

reviewed affidavits of both parties, there could result such 

a merry-go-round of custody litigation that the litigants' 

rights never would be finally adjudicated. Leonard, 191 P.2d 

Ln the instant case there is no proof that the mother 

received notification either of the father's custody petition 

or the show cause order until early January 1987. Father 

says he mailed the order on December 24, 1986 but he offers 
us no affidavit of mailing. All he can offer is the receipt 

for a certified letter mailed December 24, 1986 and received 

January 2, 1987, but that receipt does not prove that the 

notice of the show cause hearing was enclosed. But more 

importantly the notice of show cause hearing should not have 

issued less than 24 hours after father filed his motion since 

mother was not afforded a chance to respond via affidavit. 

The language of S 40-4-220, MCA, is plain. A motion to 

modify custody is to be viewed cautiously by the court. Onl~7 

after the adverse party has filed an opposing affidavit, or 

has failed to do so within a reasonable amount of time, may 

the court act. And then it must deny the motion unless there 

is adequate cause for a hearing. Mother did not receive the 

benefit of these requirements. 

The District Court ordered a show cause hearing without 

the benefit of all the facts since mother had no opportunity 

to file an affidavit with the court. The father's affidavit 

does not show that he had been convicted of custodial 

interference, it does not state that he was on welfare, and 

it falsely claims that the mother was on welfare and not 

interested in getting a job when mother was indeed working. 

Such blatant discrepancies in the affidavit will not support 

the action in any ensuing show cause hearing. 

The effect of the March 4 order was to reverse the 

original order of custody giving the father, not the mother, 

custody during the school year and the mother, not the 

father, custody during the summer. This attempt at swapping 

custody schedules under the guise of the modification statute 

is improper. In re the Marriage of Paradis (Mont. 1984), 689 

P.2d 1263, 1264-65, 41 St.Rep. 2041, 2043. Section 

40-4-224(3), MCA, states that. a joint custody arrangement, 
which we consider here, may be modified under 5 40-4-219, 

MCA, only to terminate the custodial rights of one of the 

parents. Marriage of Paradis, 689 P.2d at 1264-65. 

The court also erred when it refused to vacate the 

January 14 proceedings. Sections 25-11-102 and 25-11-103, 

MCA, establish three bases for ordering a new trial in a 

bench trial. Those are irregularity of proceedings, surprise 

or accident, and newly discovered evidence. On the basis of 

irregular proceedings alone, this case should have been 

retried. 

Lastly, both the mother and the father request an award 

of attorney's fees on this appeal. Section 40-4-110, MCA, 

speaks to the applicability of attorney's fees: 

The court from time to time, after 

considering the financial resources of 

both parties, may order a party to pay a 

reasonable amount for the cost to the 

other party of maintaining or defending 

any proceeding under chapters 1 and 4 of 

this title and for attorney's fees, 

including sums for legal services 

rendered and costs incurred prior to the 

commencement of the proceeding or after 

entry of judgment. The court may order 

that the amount be paid directly to the 

attorney, who may enforce the order in 

his name. 

This Court is in no position to determine if either party 

deserves attorney's fees. We do not have specific findings 

before us on the parties' respective financial resources. 

Where there is substantial evidence that one party's 

resources are far greater than the other's, the District 

Court, in its discretion, may award attorney's fees. In re 

the Marriage of Wilson (Mont. 19851, 701 P.2d 1372, 1377, 42 
St.Rep. 894, 900. The question of attorney's fees would be 

properly directed to the District Court. 

We vacate the court's orders of January 15 and March 4, 

1987. We remand the case to the District Court to allow the 

mother to file an affidavit in response to the father's 

motions of December, 1986 and for further consideration of 

father's motions in light of that affidavit. 

Vacated and remanded. 

We concur: 

Mr. Justice John C. Sheehy, s2ecially concurring: 

I concur in the result here, but I caution that this case 

appears to be one for a tribal court.