IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

JON CONTWAY, 

Plaintiff and Appellant, 

SHERIFF MIKE CAMP, Sheriff of Phillips 

Countv; DEPUTY SHERIFF JIM MAXI, a Deputy 

Sheriff of Phillips County; SHERIFF BARRY 

MICHELOTTI , Sheriff of Cascade County; 

ANTONIA MARRA, a former Deputy County 

Attorney of Cascade Countv; CASCADE COUNTY; 

and PHILLIPS COUNTY, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Chan Ettien, Judqe presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Thomas P. Meissner, Lewistown, Montana 

For Respondent : 

John C. McKeon, County Attorney, Malta, Montana 

Patrick L. Paul, County Attorney; Steven M. Hudspeth, 

Deputy County Attorney, Great Falls, Montana 

Submitted on Briefs: Dec. 16, 1988 

Decided: February 16, 1989 

0 

Filed: 
Mr. Justi-ce John C. Sheehv delivered the Opinion of the 

Court. 

Appellant, Jon Contway, appeals from an order of dismissal under Rule 12(b)(6), M.R.Civ.P., of the District Court 

of the Eighth Judicial District, Count~y of Cascade, dismissing, with prejudice, his amended complaint against all 

respondents. 

Jon Contway was married to Patricia Contway on January 

6, 1978. On August 8, 1986, while going through dissolution 

proceedings, Contway signed a separation agreement with 

Patricia awarding her custody of their three minor children, 

subject to plaintiff's right of visitation. The separation 

agreement was integrated into the final divorce decree of 

October 14, 1986. 

On August 27, 1986, appellant took the children from 

the State of Montana, in violation of their separation agreement. On September 10, 1986, the State filed a criminal 

information against appellant on the ground of custodial 

interference, a felony. A warrant for his arrest was issued 

by the district iudge and bail on the warrant was set at. 

$10,000. 

Approximately five months later, on January 15, 1987, 

appellant returned to Malta, Montana, and left the children 

at the local office of Family Services there. On that same 

day, defendant Sheriff Jim Maxie of Phillips County arrested 

the appellant pursuant to the outstanding warrant. Prior to 

and subsequent to arresting appellant, Sheriff Maxie 

consulted with Cascade County Sheriff's Department to verify 

that a valid warrant was still in existence there. Sheriff 

Maxie made these inquiries to insure that his arrest of 

Contway was lawful. Contway had informed the sheriff that 
the arrest would be improper because he had transferred 

custody of his children to the Montana Department of Family 

Services. Cascade County refused to cancel the valid arrest 

warrant and appellant was arrested by Phillips County officials and placed in custodv on January 15, 1987. On Zanuar~7 

16, 1987, Cascade County officials went to Malta, picked up 

the appellant, and brought him into custody in Cascade County. The appellant remained in custody there until Januarv 

22, 1987, when the criminal information against Contway was 

dismissed after the children had been returned to the lawful 

custody of their mother and appellant had written and signed 

a stipulation stating that the children had been "returned to 

the custody of Patricia Contway in accordance with 45-5-304 

(1985) . " Rased on that stipulation and appellant's motion 

to dismiss dated January 21, 1987, the felonv charge was 

dismissed on January 22, 1987, and Conkway was released from 

custody. 

Contway then brought an action against the respondents 

alleging that his "arrest and false imprisonment were contrary to law." In his amended complaint, appellant alleged 

that at the time of arrest and imprisonment, he was a 

candidate for legislative office for the State of Montana; 

and appellant alleged in his original complaint that such 

wrongful arrest and false imprisonment damaged his reputation 

and, as a consequence, damaged his political race. In addition, at the time of his arrest and imprisonment, appellant 

was starting a consultinq business in Great Falls, Montana, 

and he alleged that due to the wrongful arrest and 

imprisonment his business opportunities were curtailed and 

the business never got started. 

That action was dismissed at the District Court level 

on a Rule 12 (b) (6) , M.R.ci~7.p. motion and he now appeals to 

this Court. 
The issue on appeal is whether the District Court 

properly dismissed the plaintiff's amended complaint. 

Section 45-5-304, MCA, states: 

Custodial Interference. (1) A person 

commits the offense of custodial interference if, knowing that he has no leqal 

right to do so: 

(a) he takes, entices, or withholds from 

lawful custody any child, incompetent. 

person, or other person entrusted by 

authority of law to the custody of 

another person or institution; 

(b) prior to the entry of a court order 

determining custodial rights, he takes, 

entices or withholds any child from the 

other parent where the action manifests 

a purpose to substantially deprive that 

parent of parental rights; or 

(c) he is one of two persons who has 

joint custody of a child under a court 

order and he takes, entices, or withholds the child from the other where the 

action manifests a purpose to substantially deprive the other parent of 

parental rights. 

(2) A person convicted of the offense 

of custodial interference shall be 

imprisoned in the state prison for any 

term not to exceed 10 years or be fined 

an amount not to exceed $50,000, or 

both. 

(3) A person who has not left the state 

does not commit an offense under this 

section if he voluntarily returns such 

person to lawful custody prior to arraignment. A person ---- who has left the 

state -- does not commit an offense under 

this section - if - he volntarily -- returns 

such person - to lawful custody -- prior - to 

-- 

the arrest. [Emphasis added.1 
Appellant asserts that as a consequence of the language 

of $$ 45-5-304(3), MCA, he should not have been arrested after 

he returned the children to "lawful custody" of Family Services. Respondents insist that his arrest was valid under 

the statute because returning the children to the local 

office of Family Services (then SRS) was not a return to 

"lawful custody" as called for by the statute. They assert 

that "lawful custody" is custody awarded by the decree and 

Contway could only have avoided arrest by returning the 

children to the custody of their mother, to whom custody was 

awarded by the court. 

Appellant argues that whether or not the warrant was 

legally and validly issued is irrelevant and that the validity of the warrant "makes no difference" because of the 

language found in S 45-5-304, MCA: "[a] person who has left 

the state does not commit an offense under this section 

[custodial interference] if he voluntarily returns such 

person to lawful custody prior to arrest." Appellant argues 

that even if it is presumed that the warrant was validly 

issued, the respondents1 action in serving the warrant and 

arresting him constituted a basis for an action against the 

respondents because Contway had obeyed the statute by 

returning the children to the custody of Family Services. 

Contway argues that returning the children to Family Services 

is returning them to "lawful custody" before arrest as 

required by the statute. 

The respondents argue that 5 45-5-304(3), MCA, is a 

defense to a conviction for custodial interference if a 

criminal defendant raises and proves the defense as in any 

other affirmative defense. Respondents recognize that the 

statute does not state that subsection (3) is a defense to an 

arrest, as opposed to a conviction, but posit that "the 

Legislature could have stated as such," and that the more 
reasonable construction of subsection (3) is that it is like 

any other affirmative defense which imposes a burden of proof 

upon the defendant and not upon the state. 

The words of this statute prohibit the taking of a 

child from "lawful custody" and permit a noncustodial parent 

who has left the state to be free of committing custodial 

interference if he voluntarily returns the child to "lawful 

custody" prior to arrest. The words "lawful custody" are of 

common usage and are sufficiently plain and precise to put 

any reasonable person on notice concerning what conduct is 

prohibited. Appellant attempted to thwart the court decree 

by turning the children over to Family Services which was not 

the lawful custodian named in the decree. 

We hold that lawful custody in marital dissolution 

proceedings is that custody awarded by the court. A district 

court in the circumstances of this case has jurisdiction to 

make a child custody determination. Section 40-4-211, MCA; 

Wilson v. Wilson (1980), 186 Mont. 290, 607 P.2d 539. An 

individual cannot return children to the custody of a legalentity of his choice. He must return them to the entity 

granted lawful custody by the court in dissolution 

proceedings. 

The legislature was cautious in providing a means by 

which a noncustodial parent may return children to the custo-- 

dial parent and avoid penal sanctions. This statute was 

enacted to maintain parental custody against all unlawful 

interruption, even if a child is a willing, undeceived participant in the attack on the parental interest. Section 

45-5-304, MCA, Criminal Law Commission Comments. 

As to the state's argument that section (3) is a defense to a conviction rather than an arrest, we note that the 

statute formerly allowed the conduct to be excused if the 

person taken was returned before trial for the offense 
commenced. In 1979 the legislature amended the statute and 

added subsection (3) which provides that a person does not 

commit the offense of custodial interference if he returns 

the individual taken to lawful custody prior to arraignment 

or, in the case of a person who has left the state, prior to 

arrest. 

The district court judge properly applied the law in 

response to the respondents' motion to dismiss under Rule 

12 (b) (6) , M.R.Civ.P. On a motion to dismiss the court takes 

the allegations of the plaintiff to he true and construes the 

allegation in a light most favorable to the plaintiff. Mogan 

v. City of Harlem (Mont. 1987), 739 P.2d 491, 44 St.Rep. 

1212; Willson v. Taylor (Mont. 1981), 634 P.2d 1180, 38 

St.Rep. 1040. The court will then grant the motion only if 

it appears beyond any doubt that the plaintiff can prove no 

set of facts which would entitle him to relief. Fraunhofer 

v. Price (1979), 182 Mont. 7, 594 P.2d 324; Kinion v. Design 

Systems, Inc. (1982), 197 Mont. 177, 641 P.2d 472. 

The respondents' arrest of Contwav was a valid arrest 

under a valid warrant as a result of Contway's attempt to 

frustrate the directive of the divorce decree by releasing 

the children to custody of a state agency rather than to the 

custody decreed by the court. 

For the foregoing reasons, the District Court's decision is affirmed as to all respondents. 

Justice Y