No. 12920 

IN THE SUPRm COURT OF THE STATE OF MONTANA 

1975 

CARL W. HAYWOOD, 

Plaintiff and Respondent, 

-vs - 

CAROLE L. HAYWOOD SEDILLO, 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Jack L. Green, Judge presiding. 

Counsel of Record : 

For Appellant : 

Julio K. Morales argued, Missoula , Montana 

For Respondent : 

Jordan, Cummings, Sullivan & Baldassin, Missoula, 

Montana 

Lee A. Jordan argued, Missoula, Montana 

Submitted: April 10, 1975 

Decided : MAY 2 3 1975 
Mr. Chief Justice James T. Harrison delivered the Opinion of 

the Court. 

This is an appeal by defendant, Carole L. Sedillo, 

formerly Carole Haywood, from an order of the district court, 

Missoula County, denying her petition for modification of 

custody. 

The parties, Carole Sedillo and Carl W. Haywood, were 

married in 1966 in Flagstaff, Arizona. Two children were born 

of this marriage, Carl David, born August 15, 1968, and Charles 

Willard, born June 2, 1970. Marital difficulties arose between 

the parties and they separated in January 1973, while residing 

in Missoula, Montana. Carole moved to Flagstaff with the children and lived there with her parents until May 18, 1973. On 

May 18, 1973, an argument arose between Carole, Carl and Carole's 

parents. As a result of this argument, Carole ceased living 

with her parents, left the children with her parents, and began 

living with her present husband, Rudy Sedillo. Carl then brought 

the children back to Missoula. 

Carl commenced divorce proceedings in Missoula on June 

18, 1973. Although Carole was personally served in Arizona with 

the complaint and summons, a default decree was entered on July 

23, 1973, granting Carl an absolute divorce, custody of the 

children, and settling their property rights. 

After having been served with the complaint and summons 

and prior to the entry of default, Carole returned to Missoula 

and on the morning of July 17, 1973, in the words of the district 

court she : 

"surreptitiously, and without the knowledge or 

consent of the plaintiff did, against the will 

of the plaintiff, and by stealth and force take 

the minor children of the parties hereto from 

the plaintiff's custody and control and forcefully remove them from the baby-sitter's care 

which plaintiff had left them with when he went 

to work * * *." 
Carole removed the children from the State of Montana. 

Carl did not learn the children's whereabouts until two weeks 

later when, upon learning of the custody award, Carole left 

the children with her parents and asked them to call Carl. 

Carl then brought the children back to Montana. 

Carole married her present husband on April 19, 1974. 

Shortly thereafter, Carole returned to Missoula. The instant 

petition to modify custody was filed May 3, 1974. Two separate 

hearings were held before the district court. The first, held 

May 14, 1974, at which Carol and her husband testified, was 

continued in order to permit Carl time to take depositions of 

persons in Arizona. The second, at which Carl presented his 

evidence, was held July 8, 1974. This Court has been provided 

with a transcript of the first hearing and a statement of the 

evidence, pursuant to Rule 9(c), M.R.App.Civ.P., of the second 

hearing. 

At the close of the evidence at the second hearing, the 

district court ruled from the bench in the presence of counsel 

for both parties that he was denying Carole's petition. The 

order was reduced to writing and filed two days later. However, 

no notice of entry of judgment, as required by Rule 77(d), M.R. 

Civ.P., was ever served upon Carole. Carole filed notice of 

appeal from the district court's order on September 6, 1974. 

Three issues are presented on appeal: 

(1) Whether the notice of appeal was filed within the 

time permitted by Rule 5, M.R.App.Civ.P.? 

(2) Whether Carole is entitled to custody as a matter 

of law based upon the "tender years" presumption of section 

91-4515, R.C.M. 1947? 

(3) Whether the welfare of the children is best served 

by granting custody to Carl? 
As a preliminary matter, we must first determine whether 

this Court has jurisdiction to hear this appeal. Rule 5, M.R. 

App.Civ.P. reads: 

"The time within which an appeal from a judgment or an order must be taken shall be 30 days 

from the entry thereof, except that in cases where 

service of notice of entry of judgment is required 

by Rule 77 (d) of the Montana Rules of Civil Procedure the time shall be 30 days from the service 

of notice of entry of judgment * * *." 

Rule 77(d), M.R.Civ.P., reads: 

"Within 10 days after entry of judgment in an action in which an appearance has been made, notice 

of such entry, together with a copy of such judgment or a general description of the nature and 

amount of relief and damages thereby granted, 

shall be served by the prevailing party upon the 

adverse party." 

The notice of appeal was filed 60 days after the district 

court ruled from the bench and 58 days after the order was reduced to writing and filed. Carl argues that since both counsel 

had actual notice of the court's ruling and since the law does 

not require idle acts, that no notice of entry of judgment was 

necessary and the time for appeal lapsed. Service of notice of 

the entry of judgment is not an idle act. In order to provide 

certainty in the law, some arbitrary point must be chosen from 

which the time to appeal may run. Th,at point by the Montana 

Rules is the date of service of the notice of entry of judgment. 

No notice of entry of judgment having been served upon Carole, 

this Court has jurisdiction to hear this appeal. 

In summary, Carole's contentions are that she has, since 

the divorce, remarried and settled down; that she now has the 

time to be a full-time mother; that the children want to live 

with her; and, that outbursts of violence on the part of Carl 

show he is unfit to have custody. 

We shall examine the evidence presented to the district 

court : 
The earning capacities of both Rudy and Carl were 

thoroughly explored. Rudy is finishing his college education 

with a major in business accounting. He is working for the 

post office as a mail clerk, full-time, at $4.73 per hour, while 

attending night school part-time. He receives benefits under 

the G.I. Bill of $261 a month while attending school, for which 

he has 12 months left, and a disability compensation from the 

Navy of $77 a month. Upon graduation, he intends to work for an 

accounting firm for two years and then attend law school. Carl 

is a forester by occupation, earning $1,200 a month. At the time 

of the second hearing, he had a new job with Potlatch Corporation 

in Idaho, scheduled to start the following August, paying $1,500 

a month. Much was made of the fact that Rudy is in the process 

of buying his own three bedroom home. Oral testimony and photographs were introduced bearing on the neighborhoods of the homes 

of both Rudy and Carl. The district court was in a position to 

determine which was the better environment for the children. 

Carole contends that, being remarried and settled down, 

she now has the time to be a full-time mother and give the 

children a normal family relationship. The evidence showed that 

Carl leaves the children with baby-sitters while at work. At 

first the children were left at the baby-sitter's residence, later 

Carl obtained a live in baby-sitter so that the boys could be 

in their own home. With his old job, Carl was away from the boys 

twelve nights a month. Although he admits his new job will require some traveling, it will be for one day only and he will 

have to stay overnight only occasionally. 

However, the only evidence in the record as to any activities Carole had with the children was during the two days in 

July 1973, when Carole and Rudy played a little softball with 

them, took them to bowling practice and took them to the Dairy 
Queen. During the period from July 1973, to May 1974, Carole 

made no attempt to see the children and did not send them cards 

or gifts on their birthdays, at Christmas, or any other time. 

On the other hand, the record is replete with evidence of the 

activities that Carl and the boys pursued together. Christina 

Frankenfield testified Carl spends more time with his children 

than any father she has ever known; that they go everywhere with 

their father; and, that there is good communication between the 

children and their father. Diane Sailer testified Carl does 

everything with the boys and that his whole life appears to involve the children. 

Carole contends the children want to live with her, 

rather than their father. In support of this she and Rudy testified the boys, on several occasions told them they wanted to go 

with her. The evidence also showed that in the two weeks prior 

to the first hearing, Carole visited the boys nearly everyday and 

on each occasion brought candy or small presents in an attempt 

to influence the children. The baby-sitter overheard Carole telling the boys that if anyone asked them who they wanted to go with 

or be with, they should be sure and say they wanted to be with 

their mother, but not to repeat this conversation to anyone, as 

it was to be "their secret". 

Many witnesses testified the children rarely spoke of 

their mother and were indifferent toward her when she was gone. 

The witnesses related that when Carole was in town the boys became nervous, excitable, irritable and easily upset, the symptoms 

diminishing once Carole had gone. Much testimony was introduced 

bearing on the mutual love and affection between Carl and the boys. 

Diana Danielson testified the boys constantly talk about their 

father and discuss in great detail the activities they engage in 

with him and grow excited when Carl is due home from work. 
Carole alleges Carl's outbursts of temper and physical 

abuse show that he is unfit to have custody. In her testimony 

she aileged two instances in 1967 and 1970, where Carl struck 

her and two instances May 18, 1973 and May 11, 1974, where Carl 

had her around the neck. Carl gave a different perspective on 

the latter incidents. The credibility of such allegations was 

for the district court. Even if believed, the incidents did not 

relate to the children. The witnesses testified that Carl is a 

firm disciplinarian, but loving. Carole herself testified that 

Carl had never mistreated the children. 

No purpose would be served in reciting further the evidence before the district court, some of which favored Carl, 

some of which favored Carole. As can be seen from the evidence 

heretofore recited, the evidence was not so equal that the district court was required to award custody to the mother pursuant 

to section 91-4515, R.C.M. 1947. There was substantial evidence 

to support the award of custody when that evidence is viewed in 

the light most favorable to Carl, the prevailing party. This 

Court will sustain such determination by the district court based 

upon substantial conflicting evidence. In Eliason v. Eliason, 

151 Mont. 409, 416, 443 P.2d 884, this Court said: 

"The trial court, having observed and considered 

the appearance of the witnesses upon the witness 

stand, their manner of testifying, their apparent 

candor or want of candor, in addition to the 

testimony itself, is in a better position than 

this Court to decide questions of credibility of 

witnesses and the weight to be given their testimony. " 

The order of the district court is a firmed. f 

chief Justice 
We concur: 

................................. 

Justices