*1 A.L.S., a minor OF CUSTODY child. re the No. 87-130. Sept. Submitted on Briefs Dec. Decided P.2d 192. *2 Chester, Seidlitz, Marble, appellant. &

Marble Donald R. Elshoff, Helena, respondent. D. James Court. Opinion of the MR. delivered the JUSTICE HARRISON A.L.S., J.S., six-year-old appeals an order the natural mother of Hill, County State of the Twelfth and for the Judicial marriage so as to Montana, of dissolution which modified a decree A.E.S., husband, who give primary custody of the to her former manner in the boy’s irregularities is the natural father. Various mo- the father’s and entertained which the District Court received mat- vacated and this modification be dictate that the order of tion for further consideration. ter be remanded ending of dissolution was entered On December a decree adopted by nearly years. parties’ marriage of four The decree property agreement, which also established reference a settlement agreement, the mother was joint one Under this of the son. months, father was boy during the school to have months, they to alter- custody during summer were to have this ar- holidays. fails to disclose how nate at The record rangement prior to summer of 1985. worked

By parents Washington. 1985 both had moved to the state of period pri- August year, presumably during rightful his of that mary custody, boy Eugene, Oregon, moved the father custody elapsed notifying period mother. When the father’s returned, felony and the was not the mother filed a custodial complaint against interference the father. The father and child were Oregon, with the aid of located the mother reassumed authorities, Oregon Washington. He and father was extradited to felony Washington was convicted of a custodial interference Su- perior April 10, extradition, Court on father has 1986. Since his only court-supervised seen the child once for two hours in visit felony his trial. *3 Rocky Boy’s Mother in and child returned 1986 to the Indian Res- ervation, Chip- where she and the are enrolled members of the Tribe, pewa boy’s heritage by Cree the the tribe to be calculated Indian, part The father roughly one-third Indian blood. 81/256th ancestry. custody sought has no Indian of sole Mother an award appear hearing. from The the tribal court. The father failed tribal court in the mother’s ordered that the child should remain custody charges the father investigated while it the mother’s jobs boy. had found abused the Mother her new husband both Havre, Montana, in apartment. and rented a modern December, The in He demanded to father located the mother request. On see his son refused the for Christmas but the mother 23, supported modify custody December the father filed motion to experienced affidavit. The affidavit stated that the father had problems” exercising in his visitation “numerous and continuous compan- rights, that mother and her male the child was afraid of his father, boy’s situation ions and wished to live with the and that the the changed significantly original had decree because since the He as- caring problems. mother was for the son’s various health strabismus, boy’s eyes serts that the in a condition which the do not together, eye focus is such that it could the his left if cost affidavit, attended to. On the basis of this the District Court issued compelling appear an order on December the mother to on Janu- 14, ary why granted 1987 and show cause the father should not be custody. sole

The father filed a second motion on requesting December contempt the District Court to hold the mother of court for refus- ing to abide the terms of the 1982 visitation dissolu- supporting tion decree. his affidavit father said he “knows of no why reason other than willful refusal” he should not be [mother’s] apprise allowed his rights. visitation and He did not felony Washington court of his conviction in interfer- custodial suggested ence. The father that this motion could be considered previously January January scheduled On hearing the District Court ordered a second be scheduled on January why 1987 for mother to show cause she should not be contempt. held in mailing

The record contains or no affidavits of of service on the receipt A part court’s two orders. entered of the record shows as something father mailed to the mother on December 24. acknowledges receiving hearing early Mother notice of first January. attorney But she not find an Havre that would could attorneys in handle her case since father had talked to the town. She lawyer. Judge called the District to tell him that she could not find a apparently say judge She misunderstood had been matter Consequently, January appear continued until she did not at the and testified The father attended that that since he his son’s health and had been was concerned about son, opportunities refused should be to see his the decree of transcript Again appears modified in his that the favor. it from notify father did not for custodial the court of his conviction interference. granting

The District Court issued an order on sole mother. to the father with reasonable visitation for the judgment concerning No notice of this order was mailed to mother. contempt proceeding against

The order modification and the *4 February 23, appeared with stayed mother were until 1987. Mother mo- counsel counsel’s at that The court refused to consider hearing to be petition, tion to dismiss father’s but considered one to set aside the court’s order of modification. Mother and her attending new husband was school on the res- testified that by physicians being psychologists. ervation and was attended They they working providing testified that were and were an ade- quate currently home on welfare. The and were not father admitted interference, in questioning that he had been convicted of custodial by welfare, daughter currently that he and a another union were on job and that he had no at that time. 4, 1987,

On March the District Court modified its 15 de- cree so that the father has the school custody during months and the mother has the summer months. Be- yond that, ap- mother’s motion was denied. Counsel for the mother plied stay argued of this new order on March 1987. He that providing child, mother is a suitable home for the that child is in Rocky Boy’s, school in that the father had not been able to provide address, the court with a home change and that child’s while being appealed the matter was would not inbe the child’s best interest. application The court denied that providing any reasons. The tribal temporary custody court then took of the child. He remains at the reservation. requests

Counsel for the mother that this Court reverse the Dis- trict Court and reinstate the decree of December urges Counsel the District irreparably Court’s actions were flawed since the father’s affidavit was insufficient to order a to consider argues modification. He further the court erred not affording the opportunity mother an responding to file affidavits ordering before argues lastly He that the District Court abused its discretion providing a new trial the matter even though it proper grounds was shown for a new trial.

This Court’s very standard of review on matters is a stringent one. Because the District Court considers all the evidence in such matters enjoys opportunity firsthand and to observe the witnesses all reasonable presumptions as to the correctness of Marriage Court’s determination will be made. Robbins 711 P.2d 1900, citing In re Gore (1977), 321, 325, 570 174 Mont. 1110, 1112; Foss v. (1976), P.2d 170 Mont. Leifer 1309, 1311. The District findings Court’s will not be disturbed unless there is a mistake of finding supported by law or a evi credible clearly dence and so erroneous as to constitute a clear abuse of dis Robbins, cretion. 711 P.2d at 1350. *5 disregarded District Court apparent in matter that the

It is this that must be satis- statutory jurisdictional prerequisites certain The first such custody be considered. of can fied before modification 40-4-220, MCA, pro- process. of Section lapse concerns the service made affidavit shall be that motion for modification vides a proceeding and be given notice of the party shall be that the adverse filed, opposing are Once affidavits opposing allowed to file affidavits. time, amount is filed within a reasonable opposing or no affidavit however, discretion, Section 40- is limited may Its the court act. MCA, 4-220(1), says part: which adequate that deny the motion unless it

“The court shall finds affidavits, by the hearing established the motion is cause for show cause hearing on an order to which case it shall set a date granted.” should not be why requested or modification the order added.) (Emphasis continuity of cus- preference for language

This restates the law’s Perry Mont. tody. See Proper must 1384, 1386, notice 41 opportunity party an party that has so that be served to adverse 275, 279, (1948), 191 Hoppins v. respond. Leonard If the District very practical one. rule is a P.2d 991-92. The less than the hearings anything permitted Court show cause evidence, affidavits of both having reviewed compelling after most litiga- merry-go-round such a parties, there could result Le- finally adjudicated. be rights never would litigants’ tion that the onard, 191 P.2d at 992. received the mother proof no case there is the instant cause custody petition or the show either of the father’s

notification order on says mailed the he early Father order until All he mailing. no affidavit but he offers us December December mailed letter receipt is for a certified can offer prove receipt does but that and received But more hearing was enclosed. cause the notice of the show have issued hearing should importantly of show cause the notice was not mother since filed his motion less than 24 hours after father of Section language The respond via affidavit. afforded a chance to be viewed custody is to 40-4-220, MCA, modify plain. A motion filed an has party Only the adverse cautiously by court. after amount reasonable affidavit, a do so within opposing or has failed to unless deny motion it must time, may And then the court act. adequate there is Mother did not receive the cause requirements. benefit of these

The cause District Court ordered a show opportunity benefit of all the facts since mother had no to file an affidavit with the court. The father’s affidavit does not show that he interference, had been convicted of custodial it does not state that welfare, he falsely was on and it claims that the mother was on wel fare and not in getting job interested mother when was indeed working. discrepancies Such support blatant the affidavit will not any the action in ensuing show cause The effect of original the March order was to reverse the father, mother, order of giving during not the year mother, the school and the not the father attempt summer. This swapping custody at schedules under *6 guise of Marriage In re the improper. the modification statute is of (Mont. 1984), Paradis 177,] 1263, 1264-65, Mont. 689 P.2d 41 [213 St.Rep. 40-4-224(3), MCA, 2043. Section joint states that a custody arrangement, here, may which we consider be modified 40-4-219, under MCA, Section only to rights terminate the custodial parents. Marriage Paradis, of one 689 P.2d at 1264-65. of The court also erred when it refused to vacate the 14 proceedings. 25-11-103, MCA, Sections 25-11-102 and establish three bases ordering a new trial a bench irreg trial. Those are ularity proceedings, of surprise accident, newly or discovered evidence. On the irregular alone, basis of proceedings this case should have been retried.

Lastly, both the request mother and the father an award of attorney’s appeal. fees on this 40-4-110, MCA, speaks Section to the applicability attorney’s of fees:

“The time, court from time to considering after the financial re- sources parties, of both may party order pay a reasonable amount for the cost to the party other of maintaining defending or any proceeding chapters under of this title and for attor- ney’s fees, including legal sums for services in- rendered and costs prior curred to the commencement of proceeding entry or after judgment. may The court directly order that paid the amount be attorney, to the may who enforce the order in his name.” This position Court is in no party to determine if either deserves attorney’s fees. specific We do not have findings before us on the parties’ respective financial resources. Where there substantial ev- party’s idence that other’s, one greater resources are far than Court, discretion, may attorney’s in its award fees. Wilson attorney’s question would be 900. The fees properly Court. directed to the District We

We vacate the court’s orders of 15 and March allow the mother to file an remand the case to the District Court to December, response 1986 and affidavit to the father’s motions light of that further consideration father’s motions affidavit.

Vacated and remanded. WEBER,

MR. and HUNT concur. JUSTICES GULBRANDSON SHEEHY, concurring: specially MR. JUSTICE here, appears to I in the result but I caution that this case concur be one for a tribal court.