### 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 theFourth 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 

### :

## MAY2

## 31975Mr. 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 districtcourt, Missoula County, denying her petition formodification of custody.The parties, Carole Sedillo and Carl W. Haywood, were married in 1966 inFlagstaff, Arizona. Two children 

### were born of thismarriage, Carl David, born August 15, 1968, and Charles Willard, born June 2, 1970. Marital difficultiesarose between the parties and they separated inJanuary 1973, while residing inMissoula, Montana. Carole moved toFlagstaff 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, leftthe children with her parents, and began living with her present husband, Rudy Sedillo. Carl then brought the children back toMissoula. Carl commenced divorce proceedings inMissoula on June 18, 1973. Although Carole was personally served inArizona 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 toMissoula 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 stealthand 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 leftthem with when he went towork 

## * * 

## *."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 tocall Carl. Carl then brought the children back toMontana. Carolemarried her present husband on April 19, 1974. Shortly thereafter, Carole returned toMissoula. The instant petition tomodify custody was filedMay 3, 1974. Two separate hearings were held before the districtcourt. The first, held May 14, 1974, atwhich Carol and her husband testified, was continued inorder topermit Carl 

### timetotake depositions of persons inArizona. The second, atwhich Carl presented his evidence, was held July 8, 1974. This Court has been provided with a transcript of the firsthearing and a statement of the evidence, pursuant to Rule 9(c),M.R.App.Civ.P., of the second hearing.Atthe close of the evidence atthe second hearing, the district court ruled from the bench in the presence of counsel for both parties thathe was denying Carole's petition. The order was reduced towriting 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 districtcourt's order on September 6, 1974. Three issues arepresented 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 isentitled 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 isbest served by granting custody toCarl?Asa preliminarymatter, we must firstdetermine whether thisCourt has jurisdiction tohear 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 shallbe 30 days from the entry thereof, except that incases where service of notice of entryof judgment 

### isrequired by Rule 77(d) of the Montana Rules of Civil Procedure the time shallbe 30 days from the service of notice of entry of judgment 

## * * 

## *." Rule 77(d),M.R.Civ.P., reads: "Within 10days after entry of judgment inan action inwhich 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 towriting and filed. Carlargues that sinceboth counsel had actual notice of the court's ruling and since the law does not require idle acts, thatno notice of entry of judgment was necessary and the 

### timefor appeal lapsed. Service of notice of the entry of judgment is not an idle act. In order toprovide certainty inthe law, some arbitrary point must be chosen from which the time toappeal may run. Th,atpoint by the Montana Rules 

### isthe date of service of the notice of entry of judgment. No notice of entry of judgment having been served upon Carole, thisCourt has jurisdiction tohear this appeal. In summary, Carole's contentions are that she has, since the divorce, remarried and settled down; that she now has the 

### timetobe a full-time mother; that the children want tolive with her; and, that outbursts of violence on the part of Carl show he isunfit tohave custody. We shall examine the evidence presented tothe district court:The earning capacities of both Rudy and Carl were thoroughly explored. Rudy is finishing his college education with a major inbusiness accounting. He isworking for the post office asa mail clerk, full-time, at $4.73 per hour, while attending night school part-time. Hereceives benefits under the G.I. Billof $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 towork for an accounting firm for two years and then attend law school. Carl 

### is a forester by occupation, earning $1,200 a month. Atthe time of the second hearing, he had a new job with Potlatch Corporation in Idaho, scheduled to startthe following August, paying $1,500

a month. Much was made of the fact that Rudy 

### is inthe 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 districtcourt 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 tobe a full-time mother and give the children a normal family relationship. The evidence showed that Carl leaves the children with baby-sitters while atwork. At firstthe children were leftatthe baby-sitter's residence, later Carl obtained a liveinbaby-sitter so that theboys could be intheir own home. With his oldjob, Carlwas away from the boys twelve nights a month. Although he admits his new job will

### require some traveling, it 

### willbe forone day only and he 

### will have to stay overnight only occasionally. However, the only evidence inthe record astoany activities Carole had with the children was during the two days in July 1973, when Carole and Rudy played a 

### littlesoftball with them, took them tobowling practice and took them tothe DairyQueen. During the period from July 1973, toMay 1974, Carole made no attempt to see the children and did not send them cards

or giftson their birthdays, atChristmas, 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 

### timewith 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 lifeappears toinvolve the children. Carole contends the children want to livewith her, rather than their father. In support of this she and Rudy testified the boys, on severaloccasions told them they wanted togo with her. The evidence also showed that inthe two weeks prior tothe firsthearing, Carole visited the boys nearly everyday and

on each occasion brought candy or small presents inan attempt toinfluence the children. The baby-sitter overheard Carole telling the boys that if anyone asked them who they wanted togo with

or be with, they should be sure and say they wanted tobe with theirmother, but not torepeat this conversation toanyone, as it was tobe "their secret". Many witnesses testified the children rarely spoke of theirmother and were indifferent toward her when she was gone. The witnesses related that when Carole was intown the boys became nervous, excitable, irritable and easilyupset, the symptoms diminishing once Carole had gone. Much testimony was introduced bearing on themutual love and affection between Carl and the boys. Diana Danielson testified the boys constantly talk about their father and discuss ingreat 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 isunfit tohave custody. 

### Inher testimony she aileged two instances in 1967 and 1970, where Carl struck her and two instancesMay 18, 1973 and May 11, 1974, where Carl had her around the neck. Carl gave a differentperspective on the latter incidents. The credibility of such allegations

### was for the district court. Even if believed, the incidentsdid not relate to the children. The witnesses testified that Carl is a firmdisciplinarian, but loving. Carole herself testified that Carlhad never mistreated the children. No purpose would be served inreciting further the evidence before the districtcourt, 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 districtcourt was required to award custody tothe mother pursuant to section 91-4515, R.C.M. 1947. There was substantial evidence tosupport the award of custody when that evidence 

### isviewed in the lightmost 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, 151Mont. 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, inaddition to the testimony itself, is ina better position than thisCourt todecide questions of credibility of witnesses and the weight tobe given their testimony.

## " The order of the districtcourt is a firmed. 

# f

chief JusticeWe concur:



## ................................. Justices