### 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: PhyllisA. Bock, argued,Montana Legal Services, Miles

City, Montana For Respondent: 

### John S 

### Forsythe argued, Forsyth,Montana

Submitted: April 

### 15, 1980 Decided: 

# MY14 Filed: 

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# 413mMr. Justice John Conway Harrison delivered the Opinion of the Court. CarrieM. Morrell appeals from a summary judgment entered infavor 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 

### isnamed. Sandy Joe's surname on the birth certificatewas Baertsch, Morrell's maiden name. According to Giesick, he and Morrell were living together and having sexual intercourse atthe 

### timeSandy Joe was conceived. Morrell, however, maintains she had not even 

### metGiesick atthe 

### 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 inJuly 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 ashis 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 toMorrell's parents, George and Dorothy Baertsch. In November 1975, Morrell and Giesick jointly petitioned for a 

### writof habeas corpus to secure Sandy Joe's return from Morrell's parents. The petition recited thatMorrell 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 inMay 1976, when Morrell took the children, Sandy Joe and Amy Marie Giesick, toOklahoma. In 

### lateDecember 1976, the children



### were returned toMontana and put intoGiesick's custody. The children have lived inMontana with Giesick and his second wife since that 

### time. On March 24, 1977, Giesick obtained a dissolution of hismarriage with Morrell inthe DistrictCourt, Rosebud County. Morrell was served by publication. Giesick was given custody of Sandy Joe and Amy Marie under the default judgment entered by the DistrictCourt. No issuehas been raised here regarding the propriety of the marriage dissolution itself. On March 29, 1979, Morrell filed thispetition to 

### set aside the child custody provision inthe defaultmarriage dissolution decree. The petition alleged Giesick possibly committed 

### a fraud upon the 

### District Court by alleging in the dissolution petition that Sandy Joewas "born of the 

### marriage." The petition also alleged the DistrictCourt 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 DistrictCourt held the dissolution court had jurisdiction to award Giesick custody of the children since the children were inMontana atthe 

### 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 aswell

### as the jurisdiction of the District

### Court to determine Sandy Joe's custody. We 

### affirm the District

### Court. According toMorrell, genuine issdrs 

### of material fact remain unresolved, and Giesick was not entitled to 

### a judgment as

### a matter of law. The contention iswithout

### merit. Morrell admits Giesick took Sandy Joe intohis home, openly held her outas his natural child, and allowed her touse his surname. Morrell also admits her representation inthe 1975petition for a writof habeas corpus thatGiesick is Sandy Joe's natural father. Moreover, Morrell admits she has acquiesced for almost fiveyears inGiesick's being Sandy Joe's natural father. Certainly, Giestck. 

### has changed hisposition inreliance on Morrell's representations and long acquiescence. Therefore, having admitted the necessary elements, Morrell is

### estopped from asserting Giesick isnot Sandy Joe's natural father. Morrell is

### alsobarred by laches from asserting Giesick isnot Sandy Joe's natural father. Morrell claims tohave known for over fiveyears thatGiesick 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 formodification. During thisperiod, Sandy Joe has undoubtedly become an integralpart of the ~iesick family. Finally, Morrell is

### barred by res 

### judicata from asserting that Giesick isnot Sandy Joe's natural parent. The record demonstrates Morrell was validly served by publica-tion and infacthad notice of the proceedings. Thus, Morrell had her opportunity tochallenge 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 assertsher due process rights have been violated. This contention alsohas no 

### merit. Morrell's contentions arebased 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 

### isvery broad, most courts interpreting the decision have limited the holding towhere both the child and the defending parent are not in the rendering stateatthe 

### timeof 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 effectof the Maydecision inthismanner alsomakes good sense. Otherwise, the convenience of 

### a leave-taking parent 

### isplaced above the welfare of the child. The situationbecomes such that one statecannot bind the father and another statecannot 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 

### lawof custody 

### isreduced 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 isvoid since Sandy Joe 

### isnot Giesick's natural child and there has not been 

### a proper showing of child abuse, neglect or dependency. As noted above, ~orrellis 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.

Weconcur: 

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# w9 4 Chief Justice



# ~!@'9dwu, Justices 

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