NO. 80-129 

IN THE 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: District Court of the Fifth Judicial District, 

In and for the County of Beaverhead, The Honorable Frank Blair, Judge presiding. 

Qounsel of Record: 

For Appellant: 

Morrow, Sedivy, Olson & Scully, Bozeman, Montana 

For Respondent: 

Cummins and Erb, Helena, Montana 

Submitted on Briefs: November 26, 1980 

Decided: JAN 2 1 1981 
Mr. 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 for modification of the decree of dissolution which 

ended her marriage to copetitioner Daniel Quinn. 

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 the minor 

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 reside with Husband 

at the family home near Dillon, Montana. This 

arrangement is not to be construed against Wife 

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 other party 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 forth herein, 

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 

is mutually satisfactory to the parties. The parties 

mutually agree that the wishes of the said minor 

children shall be the deciding factor in this regard." 
One year after the entry of this decree of dissolution 

and the execution of this custody agreement, Elaine Quinn 

filed a petition to modify the child custody arrangement. She 

requested that the court terminate her husband's custody rights 

and that custody of the children be placed with her alone. In an 

accompanying affidavit, she alleged that the best interests 

of the children were not being served by the present custody 

arrangement. 

At the time Elaine Quinn filed her modification petition, 

she was living in Bozeman, Montana, and attending Montana 

State University. She had physical custody of Carson Quinn. 

Deirdre and Colby Quinn were staying with their father at 

the family home near Dillon, Montana. Since the divorce, 

however, all three children have been passed back and forth 

between parents, a number of times. 

In response to the modification petition and in an 

attempt to recover Carson from his ex-life, Daniel moved the 

District Court to hold a hearing requiring Elaine to show 

cause why she should not be held in contempt of court. 

Daniel claimed that by the terms of the separation agreement, 

he was awarded sole custody of all three children. He 

contended that his wife was violating their agreement and 

the court decree by keeping Carson Quinn in Bozeman without 

his permission. The District Court agreed with Daniel's 

interpretation of the agreement and found Elaine in contempt 

of court for not returning Carson to Dillon. This contempt 

order was stayed by the court pending its decision regarding 

Elaine's modification petition. 

On February 19, 1980, the Court held a hearing on the 

modification petition. Following the hearing, the court 

entered findings of fact, conclusions of law and a decree 

dismissing Elaine's request to change the parties' child 
custody arrangement. Findings of fact nos. 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 required by 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 the modification 

petition as an appeal from the District Court, and we accept 

review of the court's contempt of court order as a request 

for review by writ of certiorari. We reverse both 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 required by statute to interpret dissolution 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 District Court'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 contemptuous of the authority 

of the court by keeping her son with 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 

antagonism between 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.