Kelly v. Kelly , 117 Mont. 239 ( 1945 )

I dissent.

As I read the record the majority opinion does not present the full picture of the problem confronting Judge Besancon when he made the order modifying the decree. His duty was to do what appeared to him to be best for the welfare of the children. State ex rel. Floch v. District Court, 107 Mont. 185, 81 P.2d 692; Haynes v. Fillner, 106 Mont. 59, 75 P.2d 802. Judge Besancon found there was fault on the part of both the father and the mother. The father of course was at fault for not supporting the children as required by the decree. On the part of the mother the court found that she has since married and at the time of the hearing had two children, born of the subsequent marriage; that at the time of the hearing she had not seen the children here involved for three years. The mother did not appear at the hearing and neither did her present husband.

The court had no way of knowing what the attitude of plaintiff's present husband toward the children would be or whether he desired to take them into his home. Mrs. David testified that it is plaintiff's intention to take the children into her own home after the war, but whether her present husband so desired the record does not show.

The chaplain of the United States Coast Guard Academy, where her husband is serving, wrote a letter to plaintiff's attorney about the time of the hearing, explaining that since her residence is temporary and due to housing conditions it was then difficult for plaintiff to have the children live with her. The mother, it is true, contributed as much as she could to the support of the children, while she was working, but there is nothing in the record to indicate that she has displayed any interest in the children or contributed anything to their support since she has remarried. Mrs. David was asked this question, "Yon folks have managed to take care of them without any help from their folks?" To which she replied, "We had to, the kids would be dead if they had to wait for them."

Mr. and Mrs. David, it is true, had taken good care of the children, they having sought and obtained aid from the Public Welfare Department which allowed them $20 per month which Mrs. David said they had received during the entire period when they cared for them excepting for a few months. Had they been petitioning the court for their custody the court would have had before it a different question. They were not asking for the privilege of retaining the custody in their own right.

The policy of the law is that the father and the mother are entitled to the custody of minor children. Sec. 5834, Revised Codes. This is to assure them parental direction and guidance so far as possible. This rule will be departed from only for the most cogent reasons. 27 C.J.S. Divorce, Sec. 308, pp. 1168 and 1169. The trial court, it should be remembered, was in a better situation to determine what is best for the children than are we. The district judge saw Mr. Kelly and his present wife and the other witnesses, and heard them testify. The Kellys promised to give the children a good home and parental care. The present Mrs. Kelly said she will care for them personally but in the event her husband is drafted she can return to her former employment and her mother, who lives near her, will care for the children during working hours. To the credit of Mr. Kelly it should be said that he has visited the children three times since going to Seattle and before that he visited them "every couple of months" but was not permitted by Mrs. David to take the children to town or off the place.

I am not prepared to say that Judge Besancon abused his discretion in awarding the custody of these boys to Mr. Kelly. But if he did abuse his discretion we have before us this situation. The children have now been with their father for more than thirteen months. Will it be to their best interests to now order them returned to Mr. and Mrs. David? I realize that ordinarily we must either affirm or reverse the trial court on the record that was before it. But I think that rule should be relaxed when the interests of children are involved. Our duty to safeguard the interests of minor children is just as imperative as that of the trial judge.

Since my associates think the district court abused its discretion on the evidence before it, I believe the cause should be remanded with directions that the court hear further evidence on the point as to whether the best interests of the children will now be served by restoring them into the custody of the mother or Mr. and Mrs. David. The children are now of sufficient age to furnish evidence of their own as to the kind of care and attention given them.

It is entirely possible that conditions may have so changed since March 1, 1944, that Mr. and Mrs. David are not now able to care for the children. On the other hand, they may now be given such good care that it would be unjust to them to again change their custody. We should be careful not to permit our disgust for the conduct of the father in the past to work to the permanent detriment of the children. I should say in passing that the fact that the divorce was granted for fault of the husband does not necessarily bar him from the right to the custody of the children. Boles v. Boles, 60 Mont. 411, 199 P. 912.

I think also the court should indicate clearly whether Mr. Kelly is barred for all time from asserting the right to the custody of his two sons or whether the payment of the past due installments is all that stands in his way. As to whether Mr. Kelly is still obligated to pay the past due installments ordered paid, that question is not before us in this case. The trial court's order recites that the decree providing for the $25 per month be modified "by eliminating said provision from said decree, so that such payments shall henceforth be not required."

Since Judge Besancon modified the decree so as to place the children in the custody of Mr. Kelly, it was proper to strike out the clause requiring payments in the future and that is all the order does. It does not purport to affect past due installments. Certainly Mr. Kelly should not be obliged to pay the installments for the past 13 months when he himself has provided a home for his boys. It was to guard against such double payment that the district judge eliminated that provision from the decree. On the assumption that past due installments must still be paid, I express no opinion as to who is entitled to receive them under the peculiar circumstances of this case.