No. 12795 INTHE SUPREME COURT OF THE STATE OF MONTANA 1974

DOROTHY ARLEEN LOVE,Plaintiff and Appellant,

-vs

# - ERNEST LOVE, Defendant and Respondent.

Appeal from: District Court of the Fifth Judicial District, Honorable Frank E. Blair, Judge presiding. Counsel of Record: For Appellant: Schulz and Davis, Dillon, Montana CarlM. Davis appeared and John Warren, argued,

Dillon, Montana For Respondent: NeilHaight argued, Helena, Montana W. G. Gilbert, 111, appeared, Dillon, Montana

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### 7q4t Filed: Submitted: November 21, 1974

Clerk

### Mr. JusticeJohn Conway Harrison delivered the Opinion of the Court.
This 

### isa divorce and child custody case. The district court of the fifthjudicial district, county of Beaverhead, granted plaintiff mother Dorothy Arleen Love a divorcebut granted custody of two minor children to defendant father Ernest Love. Plaintiff moved toalter and amend the trialcourt's findings of fact and conclusions of law and for a new trial, which motions
were denied and appeal was taken. Two issues arepresented for consideration: 

### 1. Whether the trialcourt abused 

### its discretionby awarding custody of the ~arties' two minor children to the fatherwhere there was no evidence showing the mother was not 

### a fitand proper person tobe entrustedwith the custody of her children? 2. Whether the 

### trial court erred by refusing to grant the plaintiff's motion for a new trial? Plaintiff mother and defendant father had been married previously, not only to each other, but topersons not parties to this action. The mother married a Iqr. Vezina in 1945 and had three children by him. The three children of thismarriage areRobert, age 27; Linda, age 25; and Steven, age 14. This marriage terminated with 

### Mr. Vezina's death in 1959. The father

### was married previously and has five childrenby other
women. These children areDanny, age 21; Dennis, age 18; Dale, age 14; Marie Suzette, age 13; and Robert age 5. None of these children has
ever been inhis custody after a divorce, nor has he ever contributed totheir support. The children of thepresent marriage are John aged 11; and Jeffrey aged 

### 4. The children of ~orothy's marriage toMr. Vezina have been in her custody throughout their lives and have been raised with the Love children as siblings, notwithstanding theirbiological halfblood relationship. Particularly 

### is this truewith respect to the younger ones who have been raised together asbrothers.Defendant Ernest 

### isunable towork due to disabilities and lives on approximately $330 per month from social security and Veterans Disability benefit payments. He occasionally supplements his income with odd job work. Atthe timeof the divorce, he had
an equity of over $1,000 ina small home valued 

### at approximately $6,000. Plaintiff Dorothy's income was 

### $352 monthly, consisting of $164 representing Social Securitybenefits forher son Steven Vezina, $108 Social Securitybenefits forherself and the parties1 two children; and approximately $80 inwages for a cleaningjob. Due to the divorce and the giving of custody of the two children to defendant fatherher income from social security for the benefit of those children terminated. According to the testimony one problem of the marriage concerned Dorothy's oldest son, Robert. Dorothy testified that Ernest was jealous of allher childrenby Vezina but particularly Robert whom Ernest testifiedwsan alcoholic and used drugs. Robert 

### isa Viet Nam veteran who receives treatment 

### at Fort Harrison Veterans hospital inHelena. 

### His disabilitieswere not designated. Whatever Robert Vezina's responsibility for the parties' marital difficulities, itwas confused by the 

### trial court with the roleplayed by Steven the 14year old. The 

### trial court ascribed Robert's character to Steven, even though Robert had not lived 

### at the family home for several years, although he visited there and 

### was in Dillon 

### at the 

### timeDorothy was either ordered out of thehome, as she testified, or left of her own free

### will, as 

### Ernest testified. Both parties agree that the 14year old Steven never caused any problems and infactwas a fine influence on his younger brothers. Dorothy argues that the trialcourt based its decision on a desire to separate the parties1children from Robert, who seldom visits hismother, and a reading of the court's findings indicates that this 

### is the problem. The court found in

### itsmodification order of 

### a previous finding:!?hat plaintiff and defendant have had muchtrouble over the visits of Robert Vezina, a son of the plaintiff by a previous marriage. The court's disposition of the custody of the Love children

### will correct the situation so that 14rs. Love can entertain her son, Robert, inher home from time to

### time as occasion requires and enjoy every other week-end with the two boys involved in this action." Here, the principal issue 

### is to determinewhether, under the facts, the trial court abused its discretion in awarding the custody of the two minor children to the father, rather than to the mother. No evidence contested or disputed the fitnessof the mother to have custody of the children. The 

### trial court noted in 

### itsmemorandum that while he made no ruling on her fitness tohave custody, that:
II

There was no occasion to do so since the principal care and custody

### was placed in their father. The law neither does nor requires idle acts. See section 49-124, R.C.M. 1947.

Ul" "Complaint 

### ismade because we found it was for the best interests of these two boys tobe raised by their father. We did not want to separate theseboys. We interviewed the olderboy and found no reason in the interview, to award them to the mother. In fact, the Court observed Plaintiff and Defendant very carefully while testifying and based upon his trialpractice of 

### 50 years involving such matters, arrived atthe conclusion that these two boys would be much better cared forby their father. The hatred by the Plaintiff for their father, 

### was quite apparent and her refusal to permit him to see them prior to the trialwas indefensible. 

# * Jc *.I1 This perhaps was the basis upon which the trialjudge made his decision not tomake a finding of fitness for the mother for the record isbare of any evidence that shewas not a good mother. R.ecognizing that the trialjudge has well over 

### 50 years of trial experience, we cannot but help observe that inmost divorces, and especially caseswhere the custody of children 

### isbeing determined, that dislike orhatred evidenced by the contestants isnot novel
nor unusual. In custody cases, as here, the court should determine the fitness of both parties and it was error not to so rulehere, where we are considering children of tender years. Against the trial court's observation that the mother evidenced hatred for the father, we have a record made in the trial court of
a total failure on the part of that father tomake any effort to support children of other marriages even though in one instance hewas taken to court to enforce the payments to some of those children and found guilty of contempt. The controlling statutory law 

### is section 91-4515, R.C.M. 1947, and the cases arising thereunder. The pertinent parts of this statuteare: "Rules of awarding custody of minors. In awarding the custody of a minor, or in appointing a general guardian, the court or officer 

### is tobe guided by the following considerations: "1. By what appears tobe for thebest interests of the child inrespect to 

### its temporal and 

### itsmental and moral welfare, and if the childbe of sufficient age to form an intelligent preference, the court may consider that preference in determining the question. "2. Asbetween parents adversely claiming the custody or guardianship, neither parent 

### is entitled to it as of right; but other things being equal, if the childbe of tender years, it should be given to the mother; if it be of an age torequire education and preparation for labor or business, then to the father." The trialjudge inhis memorandum quoted from Damm v. Damrn, 82 Mont. 239, 247, 266 P. 410, noted: 

### "*

# ** and it 

### isonly on a showing of manifest abuse of such discretion that the award made by the trial court

### willbe disturbed." We agree that this 

### isa controlling factor on review, but in looking at~ontana's statutory law section 91-4515(2), R.C.M. 1947, we note that this Court has initsrecent applications of the statute laid considerable import tothe position of themother in the case of children of tender years. Here, 

### we have two young boys John Michael, age 

### 11, and Jeffery, age 

### 4. They have grown up with their half-brother Stephen, age 14, who everyone agrees 

### is
a fineyoung man and who has much good influence over his younger brothers. We can seeno benefit in taking the two boys away from the influence of a good mother and an exemplary olderbrother and awarding them to a fatherbecause the court did not want to separate the blood brothers. This Court in a recent case, McCullough v. McCullough, 159Mont. 419, 498 P.2d 1189, where custody had been given the father due tothe emotional difficulties of the mother atthe time of the divorce, awarded her custody after a hearing that showed themotherhad. remarried, had overcome her emotional difficulties and had quit a job in order toraise her child. The Court found that it
.was in thebest interests of the child tobe raised by the mother. This Court inHoppe v. Hoppe, 138 Mont. 239, 241, 356 P.2d 44, citingFreeland v. Freeland, 99 Wash. 482, 159 P. 699, speaking to the logic of our statutory provisions noted:
111Mother love 

### isa dominant trait ineven theweakest of women, and as a general thing surpasses the paternel affection for the common offspring, and, moreover, a child needs a mother's care even more than a father's. For these reasons courts are loathe todeprive the mother of the custody of her children, and 

### willnot do sounless it 

### is shown clearly that she 

### is so far an unfit and improper person tobe intrusted with such custody as to endanger thewelfare of the children! " See also: Trudgen v. Trudgen, 134Mont. 

### 174, 176, 329 P.2d

In an earlier case, but in linewith the philosophy of this Court, inconsidering the custody of children of tender years, Ex parte Bourquin, 88 Mont. 118, 124, 290 P. 250, this Court said: 

# ** We conceive the law tobe that it 

### is our duty toaward the infant child to the mother, unless she has by her conduct forfeited that right, that 

### is, that it be made to appear that the mother isunfit or incompetent to take charge of it, orunless thewelfare of the child for some special or extraordinaryreason demands a different disposition.II In the instant case there isno evidence that the plaintiff mother was unfit to have custody of these children, neither was any evidence introduced suggesting a "special or extraordinary reason" for not findingher a fitperson tohave custody. The judgment of the district court is reversed with directions to award the custody of the two minor children toplaintiff mother, subject to such visitation rights for the father as the court may
see as fitand proper. 4 

# 4-* -

/f Justice 

# _ r7- 

### iWe Concur:

Chi* Justice

--------------------------em------- 

### Justices.Mr. Justice Haswell specially concurring. I concur inthe result but not inallthat is said in the foregoing opinion. Specifically I do not agree with the statement that the trialcourt inallcases should rule on the fitness of both parents for custody of children of tender years. Inmany cases, the mother's claim to custody of a small child willprevail irrespective of the fitnessor unfitness of the father. To require a finding of unfitness of the father in such a case adversely affects payment of child support, exercise of visitation rights, and related conflicts--all without purpose.

Justice