NO. 80-129 INTHE SUPREME COURT OF THE STATE OF MONTANA 1980

IN THE MARRIAGE OF ELAINE KIEFFER QUINN,Petitioner and Appellant,-vsDANIEL J. QUINN, Respondent and Respondent.

Appeal from: DistrictCourt of the Fifth Judicial District, In and for the County of Beaverhead, The Honorable Frank Blair, Judge presiding. Qounselof Record: For Appellant: Morrow, Sedivy, Olson & Scully, Bozeman, Montana For Respondent: Cummins and Erb, Helena, Montana

Submitted on Briefs: November 26, 1980 Decided:

## JAN2

## 11981Mr. Justice John C. Sheehy delivering the Opinion of the Court. Copetitioner Elaine Quinn appeals from an order of contempt of court in the Fifth Judicial District Court, Beaverhead County and from the court order dismissing her petition formodification of the decree of dissolutionwhich ended her marriage to copetitioner DanielQuinn. On September 15, 1978,Elaine and Daniel Quinn filed a joint petition for dissolution of their marriage in the Beaverhead County District Court. One month later, the court entered a decree of dissolution. The court incorporated into its decree the terms of a written separation agreement made by the Quinns which divided their property and specified terms of custody regarding their children--Deirdre, Colby and Carson Quinn. The child custody provisions of the Quinn's separation agreement provide as follows: "6. It is hereby agreed that Husband and Wife are the fit and proper persons to be granted the joint care, custody and control of theminor children of the parties. It is understood and agreed that until the said children reach legal age or are otherwise emanicipated, Husband will most probably exercise the greater amount of care and control of said children, since the children will continue to residewith Husband at the family home near Dillon,Montana. This arrangement isnot to be construed againstWife in any way. "7. It is specifically agreed that neither Husband nor Wife shall remove the minor children from the State of Montana without the express written consent of the otherparty and upon such terms and conditions for visitation by the other party as may thereupon be agreed upon by amendment to this Agreement. "8. Notwithstanding anything set forthherein, it is fully understood and agreed that each of the parties may exercise their respective custody rights in any way, provided that such exercise of rights does not unduly inconvenience the other party, and ismutually satisfactory to the parties. The parties mutually agree that thewishes of the said minor children shall be the deciding factor in this regard."One year afterthe entryof this decree of dissolution and the execution of this custody agreement, Elaine Quinn fileda petition tomodify the child custody arrangement. She requested that the court terminate her husband's custody rights and that custody of the childrenbe placed with her alone. In an accompanying affidavit, she alleged that the best interests of the childrenwere not being served by the present custody arrangement. Atthe time Elaine Quinnfiledher modification petition, shewas living inBozeman, Montana, and attendingMontana StateUniversity. She had physical custody of Carson Quinn. Deirdre and Colby Quinnwere stayingwith their father at the family home near Dillon, Montana. Since the divorce, however, allthree childrenhave been passed back and forth between parents, a number of times. In response tothemodification petition and in an attempt torecover Carson from his ex-life, Daniel moved the District Court tohold a hearing requiring Elaine to show

causewhy she should not be held incontempt of court. Daniel claimed thatby the termsof the separation agreement, he was awarded sole custody of allthree children. He contended thathiswifewas violating their agreement and the court decreeby keeping Carson QuinninBozeman without hispermission. The District Court agreed with Daniel's interpretation of the agreement and found Elaine incontempt of court for not returning Carson toDillon. This contempt orderwas stayed by the courtpending its decision regarding Elaine's modification petition. On February 19, 1980, the Court held a hearing on the modification petition. Following thehearing, the court entered findings of fact, conclusions of law and a decree dismissing Elaine's request tochange theparties' childcustody arrangement. Findings of factnos. I11 and V made by the court include: "That the Agreement minor chi provisions of the child custody awarded custody of the three (3) ldren, Deirdre P. Quinn, Colby S. Quinn and Carson K. Quinn, to Daniel Quinn and allowed reasonable visitation to Elaine Quinn; "That Daniel Quinn has petitioned this Court for an Order holding Elaine Quinn in Contempt for failure to return the youngest child,Carson Quinn, as requiredby the Agreement incorporated in the Decree of Dissolution;" In her appeal following the entry of the court's decree, Elaine Quinn presents a number of issues for our review concerning both the contempt order and the dismissal order. We accept review of the court's dismissal of themodification petition as an appeal from the District Court, and we accept review of the court's contemptof court order as a request for reviewby writ of certiorari. We reverseboth the decree of the District Court and the contempt of court order. As we read the Quinn's separation agreement, Daniel and Elaine Quinn were awarded joint custody of their children. The District Court erred in finding that the agreement gave only Daniel Quinn the rights of legal and physical custody of the Quinn children. The agreement clearly reads that 

# ".

.

# . Husband and Wife are

# .. . to be granted the joint care, custody and control of the minor children 

# . .

# ." Montana courts are requiredby statute to interpretdissolution of marriage agreements by the law of contracts. Section 40-4- 201(5), MCA. If the language used in a contract is clear and explicit, it controls the contract's interpretation. Section 28-3-401,MCA. The DistrictCourt's finuings of fact nos. 111 and 

### V are clearly erroneous and must, be reversed. Rule 52(a),M.R.Civ.P. The District Court contempt -4-of court order must also be reversed because Elaine Quinn committed no act or omission contemptuousof the authority of the court by keeping her sonwith her pursuant to the joint custody agreement. See, section 3-1-501, MCA. We remand this case to the District Court for an additional hearing to determine whether the best interests of Deirdre, Colby and Carson Quinn are being served by the present joint custody arrangement. We recognize there are advantages in the joint custody alternative to the single parent custody/noncustodial parent visitation arrangement, but there are also important disadvantages to this alternative. In this case, for example, with the parents living a distance apart, the joint custody arrangement appears only to be fostering antagonismbetween Daniel and Elaine Quinn and instability in the childrens home environment. Reversed and remanded.

We Concur:

Chief Justice

/'-



## ............................. Justices This case was submitted prior to January 5, 1981.