MARRIAGE OF WINN
Annotate this Case
Download PDF
No. 79-8 I N THE SUPREME COURT O THE STATE O MONTANA F F 1980 I N RE THE MARRIAGE O F CAMDEN ELAINE W I N N , P e t i t i o n e r and R e s p o n d e n t , -vsLESLIE NiND W I N N , Respondent a n d , A p p e l l a n t . The D i s t r i c t C o u r t o f t h e N i n e t e e n t h J u d i c i a l D i s t r i c t , I n and f o r t h e County o f L i n c o l n , The H o n o r a b l e R o b e r t C. H o l t e r , J u d g e p r e s i d i n g . Appeal from: Counsel o f Record: For A p p e l l a n t : Murphy, Robinson, H e c k a t h o r n and P h i l l i p s , K a l i s p e l l , Montana For Respondent: Fennessy, Montana C r o c k e r , Harmon and B o s t o c k , L i b b y , S u b m i t t e d on B r i e f s : J u n e 5 , 1980 z2 Decided:OC~ Filed: J&1 A h c , JJCJ <.. . J;50$ Mr. J u s t i c e D a n i e l J . S h e a d e l i v e r e d t h e O p i n i o n o f t h e C o u r t . The f a t h e r , L e s l i e Rand Winn, a p p e a l s from a judgment of t h e L i n c o l n County D i s t r i c t C o u r t d e n y i n g h i s p e t i t i o n t o m o d i f y W affirm the District Court, e a custody decree. t h e r e q u e s t of t h e w i f e t h a t s h e be awarded b u t a l s o deny attorney fees for expenses incurred i n defending t h i s appeal. Camden E l a i n e Winn married on J u l y 2 7 , 1 9 7 3 i n T r o y , Montana, and d i v o r c e d on May 2 6 , 1 9 7 6 . A daughter was born and L e s l i e Rand Winn w e r e during the marriage D i s t r i c t Court decree gave custody t o and the Lincoln t h e mother. County The f a t h e r received reasonable v i s i t a t i o n r i g h t s . On January m o d i f i c a t i o n of custody of 19, 1979, the father the custody decree, t h e minor daughter. filed a petition for and a s k e d t h a t h e b e g i v e n Shortly before, t h e m o t h e r had moved t o N o r t h C a r o l i n a w i t h t h e d a u g h t e r t o be w i t h a man whom she was to provided marry that the in May mother of that first year. obtain The original permission decree from the D i s t r i c t Court i f she intended t o e s t a b l i s h residence i n another state. The m o t h e r f a i l e d t o do t h i s . The e s s e n t i a l c o n t e n t i o n o f request for custody, r e s i d e n c e many was that the father the mother i n s u p p o r t of had changed his her times w h i l e l i v i n g i n t h e L i n c o l n C o u n t y a r e a , t h u s a d v e r s e l y a f f e c t i n g t h e c h i l d , and t h a t t h e m o t h e r had l i v e d with other remarriage. men or had other men living with her before her The t r i a l c o u r t a c c e p t e d n e i t h e r o f t h e s e a r g u m e n t s ; nor do we. Although t h e mother had moved many times in the general v i c i n i t y o f L i b b y and K a l i s p e l l a f t e r t h e d i v o r c e and b e f o r e h e r move t o N o r t h C a r o l i n a , adversely affected the i t was n o t e s t a b l i s h e d t h a t t h e s e moves physical, mental, moral or h e a l t h o f t h e c h i l d a s r e q u i r e d by s e c t i o n 4 0 - 4 - 2 1 9 ( 1 ) , emotional MCA. The f a t h e r was n o t p r e v e n t e d f r o m v i s i t i n g h i s c h i l d b e c a u s e o f t h e s e many moves. The father did not prove that the mother's living with o t h e r men b e f o r e h e r r e m a r r i a g e a d v e r s e l y a f f e c t e d t h e h e a l t h o f the child so a s t o 40-4-219. 1309, require See Foss v. 1312. a change custody under ( 1 9 7 6 ) , 1 7 0 Mont. Leifer The e v i d e n c e , in a t best, shows t h a t 97, section 550 P.2d t h e mother may h a v e t e m p o r a r i l y l i v e d w i t h o n e man o t h e r t h a n t h e man s h e i s now married to. The e v i d e n c e e s t a b l i s h e s t h a t t h e m o t h e r ' s p r e s e n t husband i n t e r a c t s w e l l with clean. I t a p p e a r s t h a t h e i s employed. trial court t h e c h i l d and t h a t h e i s n e a t and its discretion abused in W cannot say t h a t the e finding that the child's w e l f a r e was n o t a d v e r s e l y a f f e c t e d w i t h i n t h e meaning o f s e c t i o n 40-4-219. N o n e t h e l e s s , t h i s c a s e i l l u s t r a t e s a p r o b l e m w h i c h may v e r y w e l l g e t worse. removing the ex-husband to By n o t child take seeking t h e c o u r t ' s permission from some the state, action in the court mother to before forced her reestablish his relationship with h i s daughter. The original decree allowed the father to visit his d a u g h t e r upon r e a s o n a b l e n o t i c e a s o f t e n a s h e w i s h e d a s l o n g a s t h e v i s i t s did n o t unreasonably p o r t i o n of i n t e r f e r e with t h e wife. That t h e d e c r e e was e f f e c t i v e l y n u l l i f i e d when t h e m o t h e r moved t o North C a r o l i n a with her with a visitation decree which child. was The f a t h e r was l e f t virtually meaningless. U n d o u b t e d l y i t was t o p r e v e n t t h i s k i n d o f s i t u a t i o n w h i c h c a u s e d t h e t r i a l c o u r t i n t h e o r i g i n a l o r d e r t o r e q u i r e t h e mother to g e t permission to another s t a t e . could, f r o m t h e c o u r t b e f o r e moving w i t h t h e c h i l d A l t h o u g h w e do n o t s u g g e s t t h a t t h e t r i a l c o u r t a b s e n t some p e r s u a s i v e e v i d e n c e , p r e v e n t t h e m o t h e r moving t o a n o t h e r s t a t e with her child, from it goes without saying t h a t had t h e m o t h e r g i v e n a d v a n c e n o t i c e , t h e f a t h e r ' s v i s i t a t i o n p r i v i l e g e s c o u l d have been a c c o r d i n g l y m o d i f i e d . B u t when the mother left without first getting the decree modified visitation, she forced the father's hand. as to The only meaningful option he had was to force the issue by seeking a change in custody. Although he was not successful, he at least obtained a change in visitation to reflect the changed geographical distance between himself and his daughter. the father alternate have custody Christmas and for The trial court ordered that six weeks Easter every holidays and summer, during at other times convenient to the father and which would not interfere with the schooling or other activities of the child. District courts have the means to compel compliance with their orders concerning removal of children from the state. A trial court may assert continued power over domestic matters by requiring a bond conditioned upon a party's compliance with the See Grimditch v. Grimditch (1951), 71 Ariz. 237, court order. 226 P.2d 142 (permitting, under the facts, removal without bond); Wallace v. Wallace (1932), 92 Mont. 489, 15 P.2d 915, 918 (security can be required to enforce an alimony decree). The trial court may also hold in contempt a parent who violates an order to secure court approval before removing a child from the state. Benson Ex Parte Sellers (1948), 250 Ala. v. Benson (1948), 121 Mont. 87, 33 So.2d 439, 193 P.2d 349; 827, 829 (dictum); see also Kramer v. Kramer (1978), 176 Mont. 362, 578 P.2d 317, 318. We suggest that the trial court, in appropriate cases, employ these alternatives. The mother contends that this appeal is frivolous and asks us to assess a penalty against the father pursuant to Rule 32, M.R.App.Civ.P., or, alternatively, to award her attorney fees pursuant to section 40-4-110, MCA, because she cannot afford to pay her own attorney. She did not make this request at the trial level, and we are not inclined to act favorably on this request here. We cannot ignore the fact that it was the mother who moved to North Carolina without first getting a change in the visitation privileges, and thus forced the father to initiate the present litigation. Essentially, he had no other choice. Under the circumstances, the mother is not in an equitable position to argue that the father should pay her attorney fees. The order refusing to grant custody to the father affirmed. y& d & J We Concur : C h b f Justice t e is
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
