No. 79-58 

IN THE SURPEME COURT OF THE STATE OF MONTANA 

1980 

CARRIE M. MORRELL, previously known 

as CARRIE M. GIESICK, 

Petitioner and Appellant, 

ROBERT LEE GIESICK, 

Respondent and Respondent. 

Appeal from: District Court of the Sixteenth Judicial District, 

In and for the County of Rosebud. 

Honorable A. B. Martin, Judge presiding. 

Counsel of Record: 

For Appellant: 

Phyllis A. Bock, argued, Montana Legal Services, Miles 

City, Montana 

For Respondent : 

John S Forsythe argued, Forsyth, Montana 

Submitted: April 15, 1980 

Decided: MY14 

Filed: -- hffiy 1 4 13m 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

Carrie M. Morrell appeals from a summary judgment 

entered in favor of Robert Lee Giesick. The judgment, 

entered by the ~istrict Court, Sixteenth Judicial District, 

Rosebud County, precluded Morrell from challenging Giesick's 

custody of Morrell's child, Sandy Joe Giesick. 

Sandy Joe was born on July 21, 1974. Morrell is listed 

on Sandy Joe's birth certificate as the mother but no father 

is named. Sandy Joe's surname on the birth certificate was 

Baertsch, Morrell's maiden name. According to Giesick, he 

and Morrell were living together and having sexual intercourse at the time Sandy Joe was conceived. Morrell, however, maintains she had not even met Giesick at the time 

Sandy Joe was conceived and Morrell was dating and having 

sexual intercourse exclusively with Darrell Canfield. 

Canfield did contribute $360 towards the medical expenses 

associated with Sandy Joe's delivery. 

On Thanksgiving 1974, Morrell told Giesick he was not 

Sandy Joe's natural father. Morrell told Giesick this again 

in July 1975 and repeated it numerous times thereafter. 

In December 1974, Morrell and Giesick were married in 

Sheridan, Wyoming. Giesick took Sandy Joe into his home, 

openly held her out as his natural child and allowed her to 

use his surnane. 

At some point, Morrell signed a "Consent To Custody And 

Guardianship" transferring Sandy Joe's custody and control 

to Morrell's parents, George and Dorothy Baertsch. In 

November 1975, Morrell and Giesick jointly petitioned for a 

writ of habeas corpus to secure Sandy Joe's return from 

Morrell's parents. The petition recited that Morrell and 
~iesick were Sandy Joe's natural parents. Subsequently, 

Morrell's parents voluntarily returned Sandy Joe, and the 

petition was dismissed. 

Morrell and Giesick separated several times during 

their marriage. The last separation occurred in May 1976, 

when Morrell took the children, Sandy Joe and Amy Marie 

Giesick, to Oklahoma. In late December 1976, the children 

were returned to Montana and put into Giesick's custody. 

The children have lived in Montana with Giesick and his 

second wife since that time. 

On March 24, 1977, Giesick obtained a dissolution of 

his marriage with Morrell in the District Court, Rosebud 

County. Morrell was served by publication. Giesick was 

given custody of Sandy Joe and Amy Marie under the default 

judgment entered by the District Court. No issue has been 

raised here regarding the propriety of the marriage dissolution itself. 

On March 29, 1979, Morrell filed this petition to set 

aside the child custody provision in the default marriage 

dissolution decree. The petition alleged Giesick possibly 

committed a fraud upon the District Court by alleging in the 

dissolution petition that Sandy Joe was "born of the marriage." The petition also alleged the District Court lacked 

jurisdiction to award Giesick custody of Sandy Joe since 

Morrell was served by publication. 

Giesick moved for summary judgment which was granted on 

September 26, 1979. The District Court held the dissolution 

court had jurisdiction to award Giesick custody of the 

children since the children were in Montana at the time the 

dissolution petition was filed and there was no irregularity 

in service of process. Next, the District Court held Morrell 
was barred by estoppel, laches and res judicata from challenging the dissolution decree's custody provision. 

Upon appeal, Morrell challenges the propriety of the 

summary judgment itself as well as the jurisdiction of the 

District Court to determine Sandy Joe's custody. We affirm 

the District Court. 

According to Morrell, genuine issdrs of material fact 

remain unresolved, and Giesick was not entitled to a judgment as a matter of law. The contention is without merit. 

Morrell admits Giesick took Sandy Joe into his home, openly 

held her out as his natural child, and allowed her to use 

his surname. Morrell also admits her representation in the 

1975 petition for a writ of habeas corpus that Giesick is 

Sandy Joe's natural father. Moreover, Morrell admits she 

has acquiesced for almost five years in Giesick's being 

Sandy Joe's natural father. Certainly, Giestck. has changed 

his position in reliance on Morrell's representations and 

long acquiescence. Therefore, having admitted the necessary 

elements, Morrell is estopped from asserting Giesick is not 

Sandy Joe's natural father. 

Morrell is also barred by laches from asserting Giesick 

is not Sandy Joe's natural father. Morrell claims to have 

known for over five years that Giesick is not Sandy Joe's 

natural father. Yet, Morrell waited for over three years 

after Giesick was awarded Sandy Joe's custody to bring a 

petition for modification. During this period, Sandy Joe 

has undoubtedly become an integral part of the ~iesick 

family. 

Finally, Morrell is barred by res judicata from asserting that Giesick is not Sandy Joe's natural parent. The 

record demonstrates Morrell was validly served by publica- 
tion and in fact had notice of the proceedings. Thus, 

Morrell had her opportunity to challenge Giesick's paternity 

of Sandy Joe, yet she failed to appear. 

Morrell next contends Sandy Joe's custody could not 

constitutionally be determined without personal jurisdiction 

over Morrell. Morrell asserts her due process rights have 

been violated. This contention also has no merit. 

Morrell's contentions are based on a misreading of May 

v. Anderson (1953), 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 

1221. While the language of this opinion is very broad, 

most courts interpreting the decision have limited the 

holding to where both the child and the defending parent are 

not in the rendering state at the time of the custody proceeding. See, e-g., Worland v. Worland (N.M. 1976), 551 

P.2d 981, and Bush v. Bush (Okl. 1956), 299 P.2d 155. The 

Supreme Court decision itself indicates this is the proper 

interpretation. May v. Anderson, supra, 345 U.S. at 534 n. 8. 

Limiting the effect of the May decision in this manner 

also makes good sense. Otherwise, the convenience of a 

leave-taking parent is placed above the welfare of the 

child. The situation becomes such that one state cannot 

bind the father and another state cannot bind the mother. 

Possession becomes not merely nine-tenths of the law but all 

of the law. Self-help becomes the ultimate remedy, and the 

law of custody is reduced to a rule of seize and run. 

Batchelor v. Fulcher (Ky. 1967), 415 S.W.2d 828, 832-33 

(Osborne, J., dissenting) . 

Morrell finally contends the custody provision in the 

dissolution decree is void since Sandy Joe is not Giesick's 

natural child and there has not been a proper showing of 

child abuse, neglect or dependency. As noted above, ~orrell 
is barred by estoppel, laches and res judicata from asserting Giesick is not Sandy Joe's natural parent. 

Having found no error, the judgment of the District 

Court is affirmed. 

We concur: 

7!~& 

Chief $, Justice 

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Justices 0