No. 12795 

IN THE 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 

Carl M. Davis appeared and John Warren, argued, 

Dillon, Montana 

For Respondent : 

Neil Haight argued, Helena, Montana 

W. G. Gilbert, 111, appeared, Dillon, Montana 

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Filed : 

Submitted: November 21, 1974 

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

Court. 

This is a divorce and child custody case. The district court 

of the fifth judicial district, county of Beaverhead, granted 

plaintiff mother Dorothy Arleen Love a divorce but granted 

custody of two minor children to defendant father Ernest Love. 

Plaintiff moved to alter and amend the trial court's findings of 

fact and conclusions of law and for a new trial, which motions 

were denied and appeal was taken. 

Two issues are presented for consideration: 

1. Whether the trial court abused its discretion by awarding 

custody of the ~arties' two minor children to the father where 

there was no evidence showing the mother was not a fit and proper 

person to be entrusted with 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 to persons not parties to this action. 

The mother married a Iqr. Vezina in 1945 and had three children by 

him. The three children of this marriage are Robert, 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 children by other 

women. These children are Danny, age 21; Dennis, age 18; Dale, age 14; 

Marie Suzette, age 13; and Robert age 5. None of these children has 

ever been in his custody after a divorce, nor has he ever contributed 

to their support. 

The children of the present marriage are John aged 11; and 

Jeffrey aged 4. 

The children of ~orothy's marriage to Mr. Vezina have been in 

her custody throughout their lives and have been raised with the 

Love children as siblings, notwithstanding their biological halfblood relationship. Particularly is this true with respect to the 

younger ones who have been raised together as brothers. 
Defendant Ernest is unable to work 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. At the time of the divorce, he had 

an equity of over $1,000 in a small home valued at approximately 

$6,000. 

Plaintiff Dorothy's income was $352 monthly, consisting of 

$164 representing Social Security benefits for her son Steven 

Vezina, $108 Social Security benefits for herself and the parties1 

two children; and approximately $80 in wages for a cleaning job. 

Due to the divorce and the giving of custody of the two children 

to defendant father her 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 all her children by Vezina but particularly Robert whom 

Ernest testifiedws an alcoholic and used drugs. Robert is a Viet 

Nam veteran who receives treatment at Fort Harrison Veterans 

hospital in Helena. His disabilities were not designated. 

Whatever Robert Vezina's responsibility for the parties' 

marital difficulities, it was confused by the trial court with 

the role played by Steven the 14 year 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 time Dorothy was either ordered out 

of the home, as she testified, or left of her own free will, as 

Ernest testified. 

Both parties agree that the 14 year old Steven never caused 

any problems and in fact was a fine influence on his younger brothers. 

Dorothy argues that the trial court based its decision on a desire 

to separate the parties1 children from Robert, who seldom visits 

his mother, and a reading of the court's findings indicates that this 

is the problem. The court found in its modification order of a 

previous finding: 
!?hat plaintiff and defendant have had much trouble 

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, in her 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 determine whether, 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 fitness of the mother to 

have custody of the children. The trial court noted in its memorandum 

that while he made no ruling on her fitness to have 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 is made because we found it was for the 

best interests of these two boys to be raised by their 

father. We did not want to separate these boys. We 

interviewed the older boy 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 trial practice of 

50 years involving such matters, arrived at the conclusion that these two boys would be much better cared 

for by 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 trial was indefensible. * Jc *.I1 

This perhaps was the basis upon which the trial judge made his 

decision not to make a finding of fitness for the mother for the 

record is bare of any evidence that she was not a good mother. 

R.ecognizing that the trial judge has well over 50 years of trial 

experience, we cannot but help observe that in most divorces, and 

especially cases where the custody of children is being determined, 

that dislike or hatred evidenced by the contestants is not novel 

nor unusual. In custody cases, as here, the court should determine 

the fitness of both parties and it was error not to so rule here, 

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 to make any effort to 

support children of other marriages even though in one instance he 
was 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 

statute are: 

"Rules of awarding custody of minors. In awarding the custody 

of a minor, or in appointing a general guardian, the court 

or officer is to be guided by the following considerations: 

"1. By what appears to be for the best interests of 

the child in respect to its temporal and its mental and 

moral welfare, and if the child be of sufficient age to 

form an intelligent preference, the court may consider 

that preference in determining the question. 

"2. As between parents adversely claiming the custody 

or guardianship, neither parent is entitled to it as of 

right; but other things being equal, if the child be of 

tender years, it should be given to the mother; if it be of 

an age to require education and preparation for labor or 

business, then to the father." 

The trial judge in his memorandum quoted from Damm v. Damrn, 

82 Mont. 239, 247, 266 P. 410, noted: 

"* * * and it is only on a showing of manifest abuse 

of such discretion that the award made by the trial 

court will be disturbed." 

We agree that this is a 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 in its recent applications of 

the statute laid considerable import to the position of the mother 

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 fine young man and who has much good influence over his younger 

brothers. We can see no benefit in taking the two boys away from 

the influence of a good mother and an exemplary older brother and 

awarding them to a father because the court did not want to separate 

the blood brothers. 

This Court in a recent case, McCullough v. McCullough, 159 Mont. 

419, 498 P.2d 1189, where custody had been given the father due 

to the emotional difficulties of the mother at the time of the 

divorce, awarded her custody after a hearing that showed the mother 
had. remarried, had overcome her emotional difficulties and had 

quit a job in order to raise her child. The Court found that it 

.was in the best interests of the child to be raised by the mother. 

This Court in Hoppe v. Hoppe, 138 Mont. 239, 241, 356 P.2d 

44, citing Freeland v. Freeland, 99 Wash. 482, 159 P. 699, speaking 

to the logic of our statutory provisions noted: 

11 1 Mother love is a dominant trait in even the weakest 

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 to deprive the mother 

of the custody of her children, and will not do so unless 

it is shown clearly that she is so far an unfit and improper person to be intrusted with such custody as to endanger the welfare of the children! " 

See also: Trudgen v. Trudgen, 134 Mont. 174, 176, 329 P.2d 

In an earlier case, but in line with the philosophy of this 

Court, in considering the custody of children of tender years, 

Ex parte Bourquin, 88 Mont. 118, 124, 290 P. 250, this Court said: 

* * We conceive the law to be that it is our duty 

to award 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 is unfit or incompetent to take charge of it, or unless the welfare 

of the child for some special or extraordinary reason 

demands a different disposition. I I 

In the instant case there is no 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 finding her a fit person to have custody. 

The judgment of the district court is reversed with directions 

to award the custody of the two minor children to plaintiff mother, 

subject to such visitation rights for the father as the court may 

see as fit and proper. 

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/f Justice _ r 

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We Concur: 

Chi* Justice 

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Justices. 
Mr. Justice Haswell specially concurring. 

I concur in the result but not in all that is said in 

the foregoing opinion. 

Specifically I do not agree with the statement that the 

trial court in all cases should rule on the fitness of both 

parents for custody of children of tender years. In many cases, 

the mother's claim to custody of a small child will prevail 

irrespective of the fitness or 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