*1 ' HARRISON, MR. MR. CHIEF JUSTICES JUSTICE ADAIR, CASTLES, ANG-STMAN and concur. TRUDGEN,
SHARON Respondent, KAY Plaintiff Appellant. TRUDGEN, DALE Defendant 9678. No. 225. July 1958. Jan. Decided Submitted *2 Raymond Missoula, F. Gray, appellant.
Doyle Heinz, & P. Richard Heinz and J. Turnage, A. Poi- son, argued orally, respondent. P. Heinz Richard MR. JUSTICE CASTLES: appeal by defendant, father,
This is an a divorced hereafter father, referred as the from the last of a series of child cus- tody judicial of the orders made the district court fourth County; appealed order district in and for Lake from hav- ing Poison, been entered at January 17, on mother, 1956. The plaintiff in the action, granted custody was sole of the respondent children and is Interim here. orders divided cus- tody. Sole custody to her appealed restored order from. parties
Two children involved, Cheryl Lynn of the girl, are Trudgen, born October boy, and a Leslie Kent Trudgen, February 25, born 1955. It is with their welfare court is primarily Thus, things being concerned. other equal, custody in mother preferred because these children such years. 2; are of tender section subd. Bayers Bayers, safeguard
To children, welfare of but neither to reward punish parents, nor child orders are interlocu tory good shown, nature cause are modifiable the sound discretion district court. R.C.M.
21-138. In strong showing absence of a abuse discretion, custody orders appeal. should not be on disturbed *3 Pearce, v. 289; Kane, Pearce Mont. Kane 76 Pac. 53 Mont. 457; 165 Pac. Ex parte Bourquin, 88 Mont. 250; Oberosler, Oberosler v. (2d) 1005. that,
The record exceptions longer material, indicates with parents appeared hearings. and their counsel The all parents questioned. Nothing moral fitness of the is not before either us indicates has remarried. County Lake original
The of divorce was entered in decree May 17, time, parties At all grandpar- on that 1955. were ents resided near Poison. The children then about nine- age, respectively. Custody three months of teen months and subject limitation, to the mother without to was decreed attorney’s in the father. An right of reasonable visitation fee divorce, securing support money costs and were allowed money since been to Support $90 to mother. has increased per month. granted by Albert divorce was Honorable Besan-
The judicial the fourth judges for con, of the two resident then one district, resident court that rules of district. Under half days during County specified week in Lake on judges sit July 1st. January 2nd and alternately year, beginning of each divorce action heard the consequence, Judge Besancon As a custody of the children. mother sole granted motions, in- intervening E. Comer heard the Honorable C. custody of the older support money and ordered creased subsequent order parents. divided between the child be custody children to restored sole of both Judge Besancon mother. decree, mother moved after the divorce
About two months father Spokane, Washington. The with her two children his making with County, reside in Lake his home continued to child was. exercised parents. later of the older His grandparents’ these home. there within modifying 8, 1955, the first the divorce
On order November authorized the specifically entered. decree was That order Washing- have her with her in the State of mother to children required that residing. was then order ton, where she Such County months the older child Lake at three she return father, period custody by the the first intervals for one week of February 8, begin on 1955-56 effect, during Christ- While this order was to visit returned with children holidays, the mother mas morning During the near Poison. parents home of her father, for the motion of counsel on of December par- the father’s made statements to the court supported by objections mother and over the notice to the ents, but with no protested present was record who of her counsel of modified November notice, the decree the lack of custody of the older immediate give further modified *4 this order the sheriff Under father for one week. the child to during mother from its County took older child the of Lake The child brought into court. the child period and its lunch age. sheriff described the The yet fifteen months of was not scene at the grandparents’ maternal “quite home as a commo- tion.”
Later day the same the after mother her counsel and of rec- ord, joined by during associate counsel retained noon hour, protested judge had in chambers that the older had by child been terrified what had occurred and that both by had children to be returned December 29th for booster im- shots, Spokane, munization Washington, a distance of some requiring 250 miles by and about twelve pub- hours traveltime lic transportation, period the court shortened father’s custody day. immediate the older child However, to one ordered mother to return the older child to Lake County during February 1956 for custody the maternal grandfather. grandfather The maternal was ordered to deliver that older child at time to the court that such so order granting custody the father period a child for of one beginning February 8, 1956, together days week six with addi- time, might tional be carried out. Much was made in oral argument stipulation agreement so-called as to cus- tody during the period, 1955-56 Christmas but none of this problems is relevant to the at hand. January 10, 1956, effect,
On while above order was in citation issued to father him requiring appear why show cause the mother should custody sole have children, expense both reimbursement for of travel to a hear- ing January 17, 1956, set for of a fee for allowance addi- represent supported tional counsel to her. Citation was mother’s affidavit. The father traversed counter-affidavit. stipulation, charges with so-called As recital of and counter- charges purpose. here would serve no January hearing
At 17th the court allowed the mother time, Spokane $100 travel from loss $50 for her fees, restored sole of both additional counsel chil- been originally modifying had decreed. dren to her as would specifically mother have the order recited *5 may residing wherever she select” “right of privilege father. subject the to reasonable visitation aof support modification order within three weeks To a than seven prior been ordered less modification which had modification, counsel for the mother following previous a weeks by changes in older argued that nervousness induced the child to custody change in a of condition sufficient of itself hearing January modifying 17th order warrant of returning sole to the mother. Counsel there made objected period fol- father that within the three-week effect, of the order modification then in lowing the date of in change parties of the there had been circumstances sufficiently justify argued further material modification. He granted taking the privilege mother, that children him state, right out nullified the of visitation accorded original divorce, in decree of and would have same effect He repeated being sought. if in the order of modification findings proposed fact asked time to file and conclusions objections His law, supporting with a brief. were summar- ily instructing your overruled; the court the mother to “take go Spokane, you back children and or wherever want live.” January 17, 1956, that is appeal
It this order of is from in the court’s hold- specifies father error appellant taken. The place; denying in re- his change had taken ing material that findings; directing the proposed file quest for time to jurisdiction; out of the court’s to take the children mother counsel fees. allowing additional and in change in conditions? there a material Was ree “a jurisdiction that while dec It rule is the upon the conditions children is final fixing custody these conditions have it existing, then when shown modify authority has judge then changed, the court * * '* proceedings respect to them. original decree paramount the children' is the welfare of óf this nature consideration.” Jewett, 73 Jewett v.
702, 703.
This rule was stated the full quarter court more a than
century ago Bayers Bayers, and was reiterated supra, 129 page Mont. at page 509, where pointed out that parent “otherwise either child or children could constantly litigation harass the other with none ’’ of which would be conducive best the child. interests of *6 Welfare of children is given paramount as the likewise con sideration in 22, Wolz v. Wolz, Mont. so that in principle ruling case, in the Jewett the dicta case, opinion the Wolz Bayers and the in the case are in accord. The present appeal facts themselves confirm the wisdom of rule. Furthermore, “Bach must case be de peculiar cided on its own Haynes facts and circumstances.” Fillner, (2d) 802, 806. * * * “There must be a substantial change of circumstances * * * There is no fixed standard to determine such * * * change substantial the welfare and best interests of * * * primary the child are the substantiality concern change respect of circumstances is tested with parents’ child’s welfare rather than the welfare.” 17A Am. Jur., Separation, Divorce page 32. See also Divorce, S. b, C. J. page section 317
When the spouse questioned custodial of neither fitness exceptions bill judgment reflecting
a a roll four weeks, modifications of orders in nine matter how well sought ordered, undisputed intended or whom with testimony follows, prima such as is clear record of sub facie change stantial affecting This is the children. confirmed the record: * * * “Q. What effect did respondent mother] [to * * * after child have the time? coming the sheriff Graham kicked Mr. A. screamed. She She [the sheriff]. * * * cling go. She tried to to me. The didn’t want to She cried, her for a week she [appellant he had time father] [after] night. potty trained alone at She was go wouldn’t to bed and she her little screamed, and she resented quit she that. She got fight After about month she him. a brother and would [appellant parents] his they it. The next time when over day, way approximately that she for had after back.” sick both times she came week. She was one change all this of circumstances It is true that reflects no parties may brush aside such parents, in the and contentious solely inconvenience; life retrogressions infant but they spell child, yet years age, may tragedy. of a two parties, all “Better for these chil- As the court admonished * ** and the grandparents from the con- away dren to be going and turmoil on here.” tinued strife specification The first of error is without merit. findings mandatory?
2. Were of fact and conclusions of law denying specification The second is that court erred request findings appellant father’s and conclusions. January On the father had filed a verified answer
controverting mother’s affidavit on which citation hearing January respondent 17th was issued. mother pleading objection subterfuge, treats this as a but need matters, may us. In these not detain affidavit be countered *7 93-1701-1; 1947, affidavit. section ex See State 1107; Court, 77, 81, rel. Merrell v. District 72 Mont. 231 Pac. Remedies, 5786, 7 Bancroft’s Code Practice sections 5789. appellant’s orally re- hearing, At the counsel close of the “permission quested to submit” “time submit” and asked brief, law, proposed findings of fact with a and conclusions appellant entitled to a “reasonable time and stated he believed peremptorily them. court denied prepare” in which to just go “These cannot over. Cer- request saying: matters this findings proposed have tainly the court is not anxious to ’’ Except jour- here. conclusions, a brief is not needed colloquy, we find other entry summarizes this nal which findings. No request in written any record to reference by appellant. was filed findings and conclusions motion 182
It is general a procedure rule of that “In the absence of
statute, the court need not findings make formal of fact in of its modifying order” provisions divorce decrees. See 27 Divorce, 317(6), C. J. S. pages section citations; Jur., Trial, see also 53 Am. section 1135, page 790. In this state we are R. controlled C. M. 1947, 93-505,providing, part: judgment in “No shall be * * * reversed findings any want of at the instance of party who, at the argument close of the evidence and in the cause, shall requested findings not have writing, and had * * *” request such (Emphasis entered minutes supplied.)
As early 1875 it was said this court: “There is no error of appellant which the complain. can If he had made his ** * part motion a record, ruling plain. would This held, court has and the numerous, decisions are that where judgment a given it will be presumed, contrary unless the appears, that the court that judgment every entered the found material fact at party issue in favor of gave for which it judgment.” 2 Swan, Morse v. 306, 308. See Mont. also Bor- deaux v. Bordeaux, 159, Mont. 6, 7; Mil- Pac. waukee Ruesink, Land Co. v. Mont. and cases cited at page 489, 148 396, 398; Perry Pac. Luding, v. 123 Mont. 570, 217 Pac. 207. quote
Without further comment we three decisions of this carry applicable present appeal court which rule as down to date: “* * * upon party, it is a incumbent at the conclusion argument cause, request of the -evidence and to make writing-for findings, request and to have entered in the done, judgment may'not If minutes of the court. this is ’’ findings. Quintin be reversed for want of State ex rel. Ed wards, complaint that the trial failed spe- “There court to make * * * findings Bordeaux, In Bordeaux v. 43 Mont.
cial party ‘A failing said: to make such
183 obey tbe allege because tbe omission request error cannot necessary finding Every statute. command Farwell, 47 implied’.” Farwell v. tben be judgment tbe will 958, 959. Mont. compliance find whatever
“In before us we no tbe record mandatory statutes.” of tbe above plain provisions with tbe 270. 198, (2d) 264, 284 Bissell, 187, 129 Mont. Pac. Bissell v. modify hearings motions to procedure, Montana on Under findings custody orders, parties desiring written child writing conclusions of law must move them of facts and tben, requires. evidence, tbe as statute Even at tbe tbe close conclusion, findings justifies tbe but one formal if evidence unnecessary. Luding, supra. Perry are v. merit.
Appellant’s specification second of error without beyond tbe 3. Was error to send children court’s tbe jurisdiction ? Statutes, child
From tbe time of tbe Bannack Territorial custody orders have been made and modified “as parties, tbe nature tbe case shall circumstances of tbe Alimony, fit, just.” 6, reasonable Section Divorce approved February orders are now controlled Such 21-138, reading: R. “In an action C. M. give may, judgment, after judge divorce tbe court or before or custody, chil care, and education of tbe such direction for tbe marriage may necessary proper, and dren seem modify per may any at same.” Whether time vacate or tbe granted tbe sound dis mission shall be or denied rests within Aiken, cretion of the trial court. Aiken v. (2d) 294, and citations. Pugh length in tbe case of discussed at matters are
These 901, 905, 15 A. L. R. (2d) Va. S.E. Pugh, W. v. beginning page annotation an extensive Vir supra. West Aiken, Aiken include which citations tbe parties that if exercise point tbe “both makes ginia child no granted tbe court the will have right tbe environment or asso- permanent home and real or settled *9 * * * during eiation much of period infancy. Such an arrangement wholly detrimental welfare child and for reason, that in the case, circumstances of this the court should not have awarded the of the child to ’’ either of parties any separate part-time basis. The on. point well-taken, particularly here. following
We find the respondent’s uncontrad icted testimony.
“Q. any Is why there you reason couldn’t live State of Montana? A. there $75 Yes is. With a month money [presently increased to I cannot feed and clothe $90] myself rent and heat my I two children. If work I pay baby have to sitters. Spokane. Therefore I went to I expenses share with my sister. I do some her work and we make out. I could not help do alone without from some- one else.
“Q. living your You were parents with first? A. I was. I figure don’t my duty parents help my it’s the raise * >:i * children. I job When file a I tell them I have They to be in three say, back months I’m sorry, [in Montana]. you. yet anyone we can’t use I have to find will hire person under such conditions.” above,
As stated limitations on residence of children are to by be conditioned appears what best for the children. We re- ‘‘ peat : The statutes expressly invest trial judge with much discretion in these matters and we find no abuse in the exercise of that judge.” Wilson, discretion the trial Wilson v. (2d) 219, Pac. 222. See also Barham v. Barham, 127 Mont. (2d) Pac. 805. specification third of error is without merit.
Appellant’s fees 4. Was to allow additional for counsel? it error hearing afternoon chambers on Decem- Beginning with the attorney joined of record was respondent’s ber attorneys’ them $100 The court allowed associate counsel. January on order to show cause heard fees in the citation and assigns Appellant this as error. hardship on respondent argues mother that the worked her by prior January 17th, father’s and the actions created, justify situation such an attor- actions allowance of ney McDonald, fee. She 124 Mont. cites McDonald v. (2d) 1260, begin- 15 A. L. R. with annotations
ning page past on 1270. In been the position such has rule of this court. opposition, appellant father relies on Wilson v. Wil-
son, supra, majority opinion which overrules the of this court McDonald, supra. McDonald v. carefully
We have reexamined the McDonald and Wilson opinions. appeals These two three were resolved to two decisions, justice majority one concurring opinions in both *10 although his in later his concurrence the overruled concur- in rence the earlier opinion.
The opinion McDonald [124 932] allowed counsel grounds, first, fees on two that the court had jurisdiction continuing modify alimony pro- to award for its or respecting custody children, visions the after the divorce final, decree had become second, that “the court has in- equitable herent power major jurisdiction its incidental to to * * * make such an award This rule also in is the Cali- years fornia.” Four later, opinion the Wilson denied counsel grounds fees on “proceedings purely the for are divorce statutory” and, except purposes appeal, for no “action for ” pending’ divorce entry ‘is after decree. 21-137, R.
Both decisions are based on C. M. pending for part: which reads in “While an action may, discretion, require his judge or in its or the court necessary any money alimony as to enable husband to children, prosecute de- support to or her or to or wife herself * * * judgment in The final such action fend action. orders as in its may be the court such order or enforced necessary, may it time deem and such discretion from time to may altered, or at the dis- varied, revoked order or orders cretion of the court.” depends 93-8706, decision also Wilson on section R.C.M.
1947, which reads: “An action pending is deemed to be from the time of its commencement until final determination its unless-, upon appeal, or appeal until time passed, has judgment is sooner satisfied.” But while recognizing continuing the court’s discretion under provisions of sections 21-137, 21-138 and decision, the Wilson differing from the McDonald deci- sion, does not take juris- account of constitutional basis diction emphasize continuing divorce matters nor does it ‘‘ * * * authority in give the court to such order orders seem, may necessary” may time to time deem or “as necessary or proper” and “to make such suitable to- allowance ** * support the -wife during for her as the court life ** * may just deem may, and the court from time to * * modify time its respects Emphasis orders these supplied. The immediate effect therefore of the Wilson deci- pendency sion is to primarily relate procedure, conclude pendency with appeal, settlement or and to infer lack of con- jurisdiction stitutional basis divorce.
However, together, when read general with or without procedural provisions 93-8706, supra, of section sections 21- 137, 21-138, specifically and 21-139 referring expenses “as alimony” pendente lite, modification of child orders, and separation the wife after granted, clearly jurisdiction continue and discretion *11 court until the children parents of divorced attained have majority and until the divorced has wife remarried or has died. necessarily pending, for,
To this as the extent, the action Sims, 307, Alabama court in 253 Ala. observed Sims v. (2d) 25, (2d) 1246, 1252, So. “the 29, Amiotation, 15 A.L.R. may provide having power allowance to alter the attorney’s power. for an fee as a feature of the “* * * gave rise to a The relation of husband wife ter- has although the relation power which is not terminated minated.” * “* * Brantly, Mr. Justice
In the words of Chief marriage.” Franklin v. every party :state makes itself a A., S.,N. 26 R. 354, L. 353, Pac. Franklin, 40 Mont. McDonald, v. of McDonald purport 490. is the clear Such 1270. Annotation, (2d) 15 A. L. R. supra. See 32-704), the (I. section Under a statute similar to ours C. custody modifica- in rule fees to counsel Idaho likewise allows 485; (2d) Wright 7, 276 Pac. Wenzel, tions. Wenzel 76 Idaho v. Wright, Idaho v. 39, 91 Rumping, 36 Mont. Rumping
While as
in
stated
A.,
N.
as reiterated
S.,
12 L. R.
Pac.
(2d) 971,
Docotovich,
in
125 Mont.
Docotovich v.
for divorce
Wilson, supra, “proceedings
and also Wilson v.
jurisdictional power Montana
purely statutory,”
are
VIII of
State Con
generally
courts
derives
Article
VIII,
specifically
stitution
from article
and,
matters,
in divorce
original
(cid:127)section
shall
providing that “district courts
have
* * *
jurisdiction in
for annul
all
actions of divorce and
pro
marriage,
ment of
special
and for all such
actions
ceedings
V,
provided
not
for.” Article
are
otherwise
granting
specifically
special
local or
laws for
interdicts
Proceedings
undoubtedly
statutory,
divorces.
divorce
are
jurisdiction
may
but
matters of
constitutional
Black,
abridged.
It
Black v.
equity.
sounds
15,
We restore the McDonald decision. To extent are order rule the case. to counsel allowed. Wilson Fees is affirmed. HARRISON, JUSTICE
MR. and MR. CHIEF JUSTICE ALLEN, THE GEORGE J. ANGSTMAN and HONORABLE BOTTOMLY, Judge, sitting place District MR. JUSTICE concur.
MR. JUSTICE (dissenting). ADAIR:
I dissent. Kay
Sharon Trudgen and Dale at Trudgen were married Poison, County, They Montana, September 21, Lake on 1952. together lived husbaud and until wife Poison March born There was on daughter, them October a Cheryl and, Lynn February 25, 1955, son, on Leslie Kent. a 17, 1955, couple date,
On March separated on which Sharon left the home and, taking of her husband the two chil- her, dren with went at the her parents to live home of near Poison.
Upon leaving her home, Sharon, through husband’s counsel, A. Turnage, Esq., J. commenced in the district court County, for Lake a suit Montana, against seeking Dale a decree judgment of absolute divorce. through Dale, Raymond Gray, The defendant his counsel, F. Esq., appeared in by filing general action a demurrer complaint. County Sharon’s Thus did district court Lake acquire jurisdiction subject over the matter of the action for persons parties divorce and the plaintiff and defendant. April On the district made an order dis- allowing complaint, Dale’s whereupon demurrer to Sharon’s plead Dale declined to his further and suffered default to be entered. Besancon, May judge
On the Honorable Albert County, presiding the district court Lake heard the plaintiff Sharon, by and on behalf of the evidence submitted allegations plain- that such evidence sustained —found complaint tiff’s made caused to be entered a decree Kay plaintiff, Trudgen, an granting Sharon absolute di- defendant, Trudgen. vorce from Dale entered, Decree Divorce. The decree of so omit- ting parts, its formal reads: Therefore, Ordered, Adjudged By
“It Is and Decreed Court:
“1. matrimony That the bonds heretofore and now exist- ing plaintiff between the be, and the defendant and the same *13 hereby dissolved, parties are and the and each them of freed obligations thereunder, all and restored to the status from of single persons, and that plaintiff herein and be she hereby granted an absolute decree of divorce the defend- ant.
“2. plaintiff That the care, custody herein be awarded and children, Lynn control of her minor Cheryl Trudgen and Trudgen, subject Leslie right Kent to the reasonable visita+ of tion herein. defendant
“3. That the defendant be, hereby herein and he is re- quired pay plaintiff herein, sum per $75 of month for the maintenance and children, Cheryl of her minor Lynn Trudgen and Trudgen, Leslie Kent payments said to be made into the office of the Clerk Court, pay- of this said ments to continue until the said children age eigh- reach the of (18) years, teen or until the further order of this Court. Said * * * payments are to commence on the $75 on or before July 1st, monthly thereafter, paid and are to be into the office of the Clerk of Court not day later than the 1st of each and every month long thereafter as required. as is herein
“4. That the defendant herein hereby required be and he is into the of Court, office the Clerk of this to the credit of J. A. Turnage, Poison, Montana, attoney $75 the sum of as fees, together costs, with the sum of as $8.50 which sums are to paid not later than day Oct., the 1st 1955. open day May, this 17th
“Done in 1955. Besancon
“Albert “Judge District Court.”
(Emphasis supplied.)
any
trial
appeal
There was no motion for new
nor was
taken
entry
from the decree within six months after the
thereof or
all, and,
became,
on November
the decree
was and
complete
is final and
so far
conclusive
concerns the
marriage.
McVay
absolute dissolution of the
State ex rel.
v.
Court,
McVay
(2d) 840, 845;
District
251 Pac.
McVay,
By
The defendant driver Dale a truck Bottling Company days Hess at Poison. He works five per day. week and At the $12.80 earns time of the dissolu- $1,200 tion marriage, owing $1,000 Dale was between doctor, hospital, gas bills, owing and oil and balances on purchase store contracts and on the his contract for the and, wages paid bottling from the him his com- automobile pany employer, regular monthly payments he made on such debts. Obeyed
Dale paid Decree. The defendant Dale also each *14 specified and all of the sums at time in the manner the paid ordered the decree. mainten- He for the children; attorney plaintiff’s ance of his minor fees for counsel, Turnage, Esq., A. dis- J. and for Sharon’s costs and bringing prosecuting bursements in for divorce. action short, fully performed In all the defendant Dale did and the things required acts and He of him the decree of divorce. obeyed every the court’s mandate. controversy visitation.” The now be-
“Bight reasonable of paragraph num- provisions the of fore this court stems from decree, above-quoted wherein the district court bered of the custody and Sharon, care, the control plaintiff to the awarded right “subject reasonable minor the of the two children visitation the defendm-t.” just “right reasonable visita- simple, sensible and
This Dale, as not the husband or tion” allowed the defendant was solely parent, namely, Sharon, as a but as the ex-husband important right an This is the father of the children. his chil- a the welfare of father, right of the but which affects except the father right dren. should not be denied Such Gravely rel. touching the children’s welfare. State ex reasons 283, 284, (2d) 565. Court, 276, 119 Mont. District that from represented district court father Dale to the 17, 1955, day home to June March the she left his plaintiff the home of her kept both children at Sharon Mon- parents, Fuhrmann, County, Mr. and Mrs. in Lake John right tana, during time he denied the of visitation which of either child. plaintiff accompanied his
On June Dale children, mother Fuhrmann home to but went to the see plaintiff’s father, Fuhrmann and the outset the John argument which defendant’s mother became an involved off his mother to leave causing “broke the visit” Dale and seeing without the children. 15, 1955, being day
On June after Dale’s unsuccess- the third Sharon, ful attempt children, plaintiff to see his without consulting obtaining with or either the district the consent of father, court or the children’s them from the home removed Montana, City parents County, Spo- of her in Lake kane, in Washington, the State of where she established and permanent has since maintained her residence. July
On Sharon returned to Lake and the children County, Montana, day for a and on visit of about so Dale his first time since March occasion saw phildren Dale’s day Sharon the children left whereon home and went to live the Fuhrmanns. with Í955, represented to district Dale the fall children, the removal of County of Lake district jurisdiction Montana and from State of *15 for him exercise impossible County, Lake made court of granted original him the right visitation” “the of reasonable petitioned that such 17, 1955, and he May order and decree of mother to con- plaintiff the so as to allow order be modified children, care, custody and control tinue to have ordering but required that she be child, deliver the older Cheryl Lynn, to the Dale, defendant County, Montana, Lake regular specified specific intervals and for periods brief of time to the end that the defendant father longer be no denied “right of granted reasonable visitation” so him in the original decree.
Although plaintiff mother and both children were then beyond jurisdiction without and of the district Lake County, plaintiff voluntarily mother returned State of Montana and jurisdiction submitted to the of such court, district where, on November hearing on the defendant petition father’s for modification was had before Judge District E. Comer, C. the defendant appearing father person counsel, Raymond his Gray, Esq., F. and the plaintiff mother appearing person counsel, A. J. Turnage, Esq.
Order No. 1. Following hearing, such of Modification plaintiff mother Spokane returned to and, on November 1955, Judge Comer filed Ms first order of modification wherein plaintiff mother was “authorized to take the children to Washington” the State of where some five months before she had taken them without the knowledge permission of either the defendant father or the court. The court’s order of modi- provided fication also the mother return older child County, Montana, Lake at three month intervals one custody by week of the father commencing February 8, on 1956; that pay the father expenses mother all the trips Spokane such to Poison and return, and that father care, for the education, support and maintenance of the two children the sum per $90 month. See section Revised Codes of Montana 1947. Complied
Dale with Order The defendant Modification. faithfully fully performed father and did all the acts things required modification, of him the above order of payments required he made each and all him at the time and in the manner ordered. *16 the two 24, 1955,
On the Sharon and evening of December Spokane for a visit at children arrived Poison from holiday season. during home parents of Sharon’s the Christmas counsel, morning 27, 1955, defendant’s On the of December Gray, Turnage, appeared Mr. Mr. plaintiff’s counsel, Comer, at County Judge the district Lake which court of before Gray Attorney requested time that the father be allowed to have child, Cheryl Lynn, the older time the mother and during the this visiting granting the children were in Poison. To the request counsel, Turnage, protested Mr. and ob- mother’s jected given notice, ground on the that the mother had been hearing either thereon. application of the father’s or of the Judge Order 2. Comer No. overruled Modification protest objection morning, thereupon, on the same modifi- December made and filed his second order of cation wherein was ordered that “the defendant Dale Trud- Trudgen (1) gen custody Cheryl Lynn have the for one week commencing return with date and the defendant will expiration (1) said child the mother after the of one week” Montana, custody County, and that “the Sheriff of take Lake of the said and deliver her child to the defendant.” 27, 1955, Judge December day,
At that same about noon on in the hands of the order placed above modification Comer his upon plain- Montana, for service County, sheriff of Lake immediately proceeded to the John mother, the sheriff tiff plaintiff upon order home, he served the Fuhrmann where Cheryl Lynn. custody the older child took into his Sharon and Immediately following Counsel. Sharon Retains Additional p.m. 12:35 on her the hour of upon and at about such service and retained 27, 1955, plaintiff mother consulted December original her Doyle, to associate with Stanley Esq., M. of Poison agreed Turnage, Esq., A. at which time she counsel, J. Doyle attorney assisting fee for $150 the sum of as his
Mr. involving temporary representing proceedings her in the right Cheryl Lynn, and “the reason- daughter able visitation father him in accorded defendant” original May 17, decree of
At 1:10 in day, about the afternoon of that same December plaintiff mother, accompanied by Attorneys Turnage Doyle, appeared Judge Poison, before Comer at parte hearing, Judge where after an ex decided that he modify would his court order of that morning require so as to child, Cheryl the defendant Dale and his father to return the Lynn Trudgen, to the home of John Fuhrmann 12:00 noon *17 following day. of the
Following hearing upon reaching such and his to decision modify forenoon, his earlier order that of modification made judge, by long telephone, the district distance called defend- counsel, Gray, Ronan, Montana, ant’s Mr. where said coun- sel office, then resided and his maintained law and informed of modify counsel the court’s intention to its most so recent order.
Order 3. Thereupon, No. on the afternoon Modification of 27, 1955, Judge of December Comer made and filed in said custody proceeding child his third order of modification where- in Trudgen it was that “the defendant Dale ordered have custody Cheryl Lynn Trudgen noon, until twelve Wednes- day, 28, 1955, at date and hour December which the said child Cheryl Lynn Trudgen parent will be delivered to the of the plaintiff, contiguous John D. Fuhrmann at his Poi- home son, Montana, plaintiff Spo- and the will then take the child to ” * * * kane, Washington grand- and that the “maternal child, Lynn Cheryl Trudgen, father of the said infant will have minor and control said child and will deliver February conformity the said child to court with made, heretofore and that the defendant Dale Trud- order gen period will entitled to of one the child for week February.” days six month in excess thereof January 10, proceeding there was filed in said On County, Lake an of the clerk of the district court of office Kay Trudgen plaintiff, made Sharon “for affidavit * * * her to nullifying any requiring order purpose of * * * Washing- Spokane, bring daughter her infant purpose ton, Poison, County, Lake Montana” and “for the Fifty Hundred and obtaining from the defendant One attorney’s fees ($150) as and reasonable which Dollars Doyle, Esq., and for plaintiff agreed Stanley has M. Fifty ($250) Dollars sum of Hundred and further Two difficulty personal loss, expense for the she has incurred * * * and his as the result of the acts of the defendant Twenty sum Five Dollars counsel and the of One Hundred and February 1, ($125) per month, beginning for the an order and maintenance of the said minor children * * * county jail Lake remanding defend,ant to the * * * County, Montana, in the event said sums decide, paid on mentioned, or such sums Court are not as this February 15, supplied. 1956.” Emphasis before January 10, 1956, on in the Also there was filed said district Attor- court and cause a “Notice of Motion for Allowance of ney’s signed by Turnage, Esq., Modification” A. Fees and J. M. Stanley Doyle, Esq., attorneys plaintiff for the Trudgen, attorney, Dale his addressed to defendant and to Raymond alia-, Gray, Esq., notice, F. inter that on Tues- giving *18 day, January 17, 1956, plaintiff apply for would to the court requiring an order pay per $120 defendant month for the support and children; plaintiff’s $200 maintenance of the time, expenses loss of fees $150 and “as additional counsel presentation in the plaintiff. of this action on behalf of the January 17, 1956, No. 4. On Order Modification of application modify theretofore made plaintiff’s orders Besancon, Judge was heard said district court before plaintiff person their appearing and defendant and respective following counsel which the court made fourth order of modification wherein it was ordered: signing original
That all orders of the made after the de- cree May 17, 1955, cancelled, of divorce on and revoked
nullified; and original that the decree of divorce be modified particulars: these
(1) That pay February defendant plantiff, beginning 1, 1956, and until the further court, per order of the month $90 children; maintenance of the two infant
(2) That pay plaintiff defendant the sum $50 on or 15, before February 1956, as and for travel expenses loss of time incurred in hearing day, January 17, said that 1956;
(3) That the attorneys defendant Dale for the plaintiff, Turnage J. A. Stanley Doyle, M. sum $100 attorney fees in custody proceedings; such child
(4) plaintiff That shall right privilege have the residing select; may where ever she
(5) plaintiff That care, will have the sole and exclusive possession children; minor two (6) That right the defendant shall have the of reasonable visitation; and
(7) plaintiff The any shall change advise the defendant of of address in the change event such a occurs.
From Judge Besancon’s above order of modification the de- fendant, Trudgen Dale appeals.
The Law.
“It is well powers established that of courts in matri- monial entirely matters are to upon be determined terms conferring jurisdiction.” Emery the statutes Emery, 201, (2d) Pac. 264.
“Proceedings purely statutory for divorce are power and the which the upon exercises is conferred statute.” Docotovich, Docotovich v. 125 Mont. general attorney rule is that fees are not recoverable an statute specifically provided agreement action unless of the parties. general of Montana is a Section Bevised Codes n provides:
statute which *19 compensation attorneys “The measure and mode of agreement, express implied, left counselors-at-law is or parties, except probate may proceedings that in the court fix compensation attorneys representing and allow the ad- ministrators, executors, guardians, trustees, agents appointed by parties proceedings But the court. to actions or ’’ are entitled provided. to costs and as hereinafter disbursements 21-137, 1947, special
Section Revised Codes of Montana is a statute applicable two kinds of actions. It reads:
“While an action pending judge divorce is or court may, in its discretion, require or his pay the husband to as alimony any money necessary support to enable the wife herself or her children, prosecute or to or the action. defend When the wilfully wife, may, husband deserts the she without applying divorce, for a maintain in the district an action against permanent support him and maintenance of herself or of herself and During pendency action, children. of such the court judge may, discretion, or in its require the husband as alimony any money necessary prosecution for the action and for maintenance, and executions may issue therefor in the discretion of judge. the court or judgment final may such action be enforced the court by such order or may orders discretion it its from time necessary, to time deem may varied, and such order or orders altered, or revoked at Emphasis the discretion of the court.” supplied.
“This only statutory R. C. M. is the [section 1947] authority giving power grant alimony to a court to and ex- penses Bordeaux, to wife.” 478, Bordeaux v. 29 Mont. 360. only statutory authority
“The allowing money suit attorney’s fees is that contained in R. M. 21- C. * * *” Docotovich, supra, Docotovich v. at page 60, page
Section 21-137 consists separate of four sentences. The stat- *20 action Each kinds of action.
ute is concerned with two distinct separately statute. treated apply 21-137 sentence section provisions The of the first of “While reads: first sentence an action divorce. Such' for may, in its judge pending an action the court divorce for alimony any pay as discretion, require or his the husband to herself or her money necessary to enable the wife to (Emphasis action.” children, prosecute or defend the or to supplied.) 21-137, au- supra, that section
It was this first sentence of May 17, on Judge Besancon, empowered thorized and and re- pending, to order and while the action divorce was $75 of the sum quire the defendant husband Dale counsel, Turnage, Mr. who had attorney plaintiff’s fees for plain- judgment for prosecuted the action to commenced and tiff. 21-137, supra, begins with
The first sentence of section pending.” With these “While divorce is words, an action for very outset, just at the quoted, Legislature, seven words by the limit exercise expressly placed definite time on the a plaintiff a power award to judge granted court or prosecute her action money her to necessary wife to enable lawyer attorney her fee for divorce, including a reasonable necessary outlay her for court costs. pending? may said to be an action for divorce be When ques- this anticipated and it has answered Legislature has Codes of 93-8706, Revised by the enactment of section tion provides: Montana which to be is deemed pending. An action deemed
“Actions—when final until its its commencement time of from the pending appeal time has or until upon appeal, determination satisfied.” is sooner judgment unless the passed, Montana reads: Codes of 93-3001, Revised Section courts rec- of actions Civil commenced. “Actions—how complaint.” by filing state are commenced ord of the final decree from appeal taken stated, no' As before of May 17, absolute time divorce entered The maximum of six taking appeal months allowed statute for the an of after entry judgment passed expired of the decree and on 93-8004, November 1955. R.C.M. section subd. 1.
It statutory follows as a matter plain plaintiff’s law action for pending divorce was time she filed complaint in early her action for in the spring including day November, 1955, longer, the 17th and no and that from November, plain- and after said day 17th tiff’s action for pending marriage by divorce ceased to be —the then had fully, finally become permanently dissolved, plaintiff and the Sharon defendant Dale became and were restored to the state un- *21 persons. 1947, married section 21-102.
The 21-137, second sentence of supra, appli- section has no cation whatever an to action for divorce. Such second sen- applies only tence permanent support to an action main- and for brought tenance by against a wilfully wife husband has who her, deserted wherein applying such deserted wife “without a judgment divorce” seeks a permanent support for for or, maintenance of of both herself herself and children. 21-137, third supra, sentence section likewise has no
application an only action for divorce but to “such action” as provided is mentioned immediately for in the preceding second supra, sentence of section 21-137, being an action for permanent support and maintenance for a deserted or her wife both, children or brought and maintained such deserted wife “without applying a divorce.” for
Finally employed “in the words such action” fourth perma- sentence 21-137 refer of section back the action for brought by nent and maintenance deserted a wife “with- being applying out a divorce” the one and action men- immediately contemplated preceding tioned and in the third 21-137, sentence of section and also in the second sentence immediately precedes 21-137 section which the third sen- Clearly, second, tence. and fourth third sentences of the
statute, 21-137, application an have no whatever to action for divorce. The fourth final sentence of section 21-137 applies only provided by procedure the means and enforcing judgment statute for “in as the final such action” immediately preceding is referred to and mentioned in the apply only third and second sentences of the statute which an brought by who, applying action a deserted wife “without applies permanent support divorce” and maintenance of herself or her children or both. 21-138, provisions an action for of sections
and 21-139 and of the first sentence section 21-137 of the 1947, govern pro- Revised Codes Montana of and not the second, visions of third and fourth sentences of section 21-137. any
In this state there common law in case where the no law is declared statute. Section R.C.M. 1947. The Black, 15, 317, case of Black v. 5 Mont. Pac. cited re- upon authority by majority lied opinion herein was Supreme Territory decided long Court of Montana prior adoption above, 12-104 first of section which was part 1895, enacted as of the Civil Code of and what is said therein, early like what was said in Edgerton case of Edgerton, 94, 12 Mont. 16 L.R.A. 33 Am. St. Rep. 557, application Decker, has here. See Decker v. pages page at It historically say inaccurate to that at this time and in this jurisdiction an in equity.” action for divorce “sounds *22 Court, 1920,
In State ex Wooten 57 522- rel. v. District 525, 1212, 9 A.L.R. this said: power, state inherent either
“That courts this have no the of marriage, and that the equity, to dissolve courts law or as of purely stahitory, has been power divorce is deter- decree a 91 Rumping Rumping, 39, 36 Mont. by mined court. 1197, 12 Ann. 1090. N.S., 12 Cas. This so 1057, L.R.A., that, brought time forefathers at the our of the fact because England, neither courts law of of law with them the common
201 they matters; being handled equity jurisdiction or in such had Marriage exclusively Bishop' 2 on by the courts. ecclesiastical assembly terri- Divorce, legislative 431. of the and The first tory, therefore, provided divorce, grounds on for actions pro- recognized applying only are to annulment which now as ceedings, proper, provided as well as those for divorce granting alimony, permanent temporary, of both page Montana, 65, all such Laws First actions. of Sess. 1864— provisions These carried forward to the Acts of were Session, 1871-72, 457, were page Seventh later included pages 513-514, the Revised Statutes of and thereafter incorporated as Compiled Statutes sections of inclusive.
“Although it appears up thus successive legislative state recognize fact, assemblies of this did not there a clear distinction between actions for the annulment marriage a on grounds of pre-existing and those for the dis solution of such contract for acts after committed its solem * * # nization. codifying “In the state the laws of Legislature recognized separated the error made theretofore and the two of classes of causes action. Codes sections 110 to in- clusive. sections found in chapter These are title * * * (191) Civil Code. Section [now article 4 chapter provides: 1947] ‘While an pending action divorce is judge the court may, or in its discretion, or require his pay the husband to alimony any as money necessary to enable the support wife to herself or her children, prosecute or to or defend pro- the action.’ It also and that n —‘Dur- vides for for support and maintenance, actions ing pendency court, such action the judge, may, in its discretion, require or his the husband to alimony any money necessary prosecution for the action and for maintenance,’ etc. It will be noted that fore- going provisions— they provisions are in the Codes
202 on alimony the subject no for reference to actions —make the annulment of a marriage. that,
“While it true is from 1865 to the laws of this state empowered specifically grant temporary to ali- the court mony divorce, by cases, this class of as well as actions for including section, both classes of actions in one as we have seen, adoption heretofore on the its of the Codes with new subjects, these all the the sub- classification of two laws on ject (sections 999-1006, Comp. 1887) then in effect were Stats. specifically repealed by section of the Codes of still re- And, now section 6235 of the Codes. if there Revised any mained doubt as to such sections remained in whether force, provided Code, it further that —‘The establishes the subjects relates.’ respecting law of state which this statute, law, rule, or 6214, Rev. Codes. And: ‘No is Section provisions continued in force because it is consistent with provided subject; this same but all eases Code on the statutes, Code, laws, all and rules heretofore in for this pro- or state, not with force in whether consistent this by it, Code, in force expressly visions unless continued of this abrogated.’ repealed Section Rev. Codes. are authority statutory whatever “It evident that therefore alimony must said awarding has in the court now found 21-137, R.C.M. Codes section 1947]. section Revised [now authorizes section R.C.M. 1947] “Section [now alimony in classes of temporary but two grant the court pending,’ divorce is ‘While an action cases, wit: and maintenance. actions ‘during pendency of’ that there the conclusion therefore, to impelled, areWe making such an authority in this state statutory (Emphasis supplied.) complained of.” award 478, 482-484, 1903, 29 Mont. Bordeaux, In Bordeaux of sec- the first sentence court, quoting after 21-137, Civil Code 1947] [now tion said: provis above-quoted that under the opinion
“We are of the pow jurisdiction statute the district court had ions of the any prior the de time er, judgment, at notwithstanding the prior judgment, or appeal on termination the action *24 require the husband expiration appeal, to the time of of support her any necessary pay money to to enable the towife parte Ex the action. prosecute self to or defend further 330, 630; Larkin, Larkin 71 Cal. Winter, 291, 70 11 v. Cal. Pac. 27 428, 732; 227; Bohnert, 12 91 Pac. Pac. Bohnert v. Cal. 550; McCarthy McCarthy, 500, 137 33 N.E. McBride v. v. N.Y. Watkins, 519, 1065; 23 v. McBride, 119 N.Y. N.E. Watkins 468; of App. 66 Mo. State ex rel. Clarkson v. St. Louis Court Seddon, 93 Appeals, 135; 88 Mo. State ex rel. Gerck v. Mo. 520, It is 6 well settled that the court below has S.W.
power-, judgment case, compel to trial and in the the hus after provide money pay past band to the to services at wife for of expenses in torneys, case; or the the incurred trial that of necessity in prosecuting the mentioned the statute to refers defending Therefore, the action in the future. after the tried, judgment case has been the entered, has been no such necessity Lacey Lacey, 45, 1056; can exist. v. 108 Cal. 87; Loveren, McCarthy Loveren v. Cal. Pac. v. Mc Carthy, 550; 137 N.Y. 33 N.E. Newman, Newman * * * evidently Ill. 167. The court refused to below make the allowance, mentioned, further than the retainer above on the theory that he unable to tell the what reasonable value of case, such fees would be until after the trial of the and that right grant he would the such until reserve to fees that time. But, payment if the law did not allow him to order their after entry judgment, the trial and he could not make the reserva tion effective. clearly opinion authorities we are the
“Under the above
showing,
bring
not
applica-
did
her
defendant,
that the
exception recognized, and that the court below
tion within the
attorney’s
past
allowing
services,
in
therefore erred
fees
(Emphasis supplied.)
judgment had been entered.”
after
Johnson,
Grimstad v.
pages 22, 23,
61 Mont.
at page 315,
“Upon examination statutory provisions, similar we find same or the which have may be al agree that counsel generally that their courts fees pending. action Loveren v. only the divorce lowed while 87; Tizard, Burnham v. 31 493, 35 Pac. Neb. 100 Loveren, Cal. Burke, 359, 22, 65 Wis. 27 N.W. 823; N.W. Clarke v. 781, 48 Weiss, App. 54; Am. 60 Mo. Meaher 631; v. Rep. Isbell 56 St. 492; 1917A, 688; Ann. Hum 416, 92 A. Cas. Mitchell, 112 Me. v. 376, Rep. 133 606, 55 Wash. Am. St. Cooper, 104 Pac. phries v. 402, 735; Beadleston, 103 N.Y. 8 N.E. 1036; Beadleston v. 578, 557, 16 S.W. 26 Am. St. Merriman, 54 Ark. Kinchloe v. 1088, 13 Sullivan, 47 Wash. 60; Rep. Zent v. * * * Ann. im- rule was The L.R.A., N.S., 244, Cas. Bor- Bordeaux v. in the case of by this court pliedly recognized rehearing, 32 Mont. 359; s. Pac. c. on 29 Mont. deaux, it that a held district In that case was Pac. 6. past counsel to allow power under the statute has no fees for proceedings; the divorce during pendency the services, even of the being, perhaps, where exception to this only possible the necessary to enable past would be such service allowance for the or prosecution of action the future the wife to continue fees cannot allow counsel her defense. If the court make cannot, after necessarily it that it services, follows past independ- an terminated, has entertain proceeding the divorce rendered against husband for services ent counsel the action (Emphasis the during pendency of action.” for the wife supplied.) 146 Cal. Court, Superior Grannis right is said: “The Rep. Am. it 896, 106 St. only will and exists legislative subject divorce is by this the method made change in
legislative grant. The parties right only the procedure law affects jurisdiction divorce, take and does not to an immediate being inherent or constitu right The to a divorce the court. law, statutory, repeal the amd Legislature could tional, but any divorces, or it gramting effectually prevent thus of years of after any number suspend right could jurisdiction affecting of beginning action, without complete sub Legislature control The has the court. delays pleases, may impose restrictions or ject, and whatever action, beginning the regard time either in begun. procedure the action method order after rights di such limited jurisdiction means grant *26 cognizable superior in the provides are Legislature vorce as the subject such re system procedure of under such court (Em established.” may to time be time strictions as phasis supplied.)
206
In Loeb, 1948, Loeb v. App. (2d) 84 141, (2d) Cal. 246, 248, the court said:
“A proper evaluation of the merit of appellant’s second contention, that a sufficient showing necessity pendente of lite allowances of money and suit made, was not calls general for a statement of the governing law such allowances and of the facts upon by respondent. relied These allowances are not a matter right. They of absolute may granted in the sound court, discretion the trial but section 137 does not empower the court temporary support to award and suit money except upon a finding necessity.
“Appellant contends that section governs 137 exclusively. Respondent replies that the awards were made under gen- equitable powers eral of the court in pro- accordance with the specified cedure in section as well Civil powers Code. The in the court matters divorce to which these therefrom, sections relate are derived and are not withim general equity powers. Grannis Superior Court, v. 146 245, 255, Cal. 79 Pac. 106 Am. Rep. St. 23.” (Emphasis supplied.) Bluhm, 1954, Bluhm v. App. (2d) Cal. 546, 277 Pac.
(2d) 421, 423, it is said: contemplated
“The discretion by sections 137.2 and 137.3 respect the Civil Code with pendente lite awards and attorneys’ legal fees is a discretion controlled established legal principles.” (Emphasis supplied.) Spreckles
To same see Spreckles, effect App. (2d) v. Cal. (2d) Pac. Gossman, and Gossman v. Cal. (2d) App. their the time of enactment the Codes of 1895
From down difficulty experienced by year 1948 little the courts understanding, complying applying with and of this state imposed upon authority and limitations provisions actions for divorce sections 21-137 power of Montana of il- Revised Codes and is decisions Bordeaux Bordeaux; court’s lustrated *27 Court; and v. John- Grimstad ex rel. Wooten v. District State son, cited all above. McDonald, 1950, 124 McDonald case. McDonald District (2d) 1260, 15 A.L.R. (2d) 929, for district court presiding Besaneon
Judge Albert rendered and caused County, Montana, July on Lake L. Geraldine plaintiff, granting entered a decree be defendant, McDonald, an absolute decree of divorce alia, adjudged: McDonald, wherein, inter was Thomas matrimony existing be- (a) That theretofore the bonds fully dissolved; plaintiff and the be tween the defendant custody marriage, Marsha (b) That the of the child of the McDonald, July 9, 1945, plaintiff to the Ann born awarded Geraldine;
(c) father, McDonald, pay Thomas That the defendant plaintiff per $45 month for the Geraldine child; and
(d) right That father “shall have the the defendant privilege visiting proper said minor child at and reasonable places custody is in the of the times while said child ’’ plaintiff. Immediately decree, entry after the Geraldine married employed an in the Cochran, one Jack oil field worker then July Bank, Montana, fields, Cochrans, and to Cut oil on bom. a child was child, During confinement, Geraldine left Marsha parents were McDonald, Ann with Geraldine’s who then liv- Park. ing Glacier taken from the decree of so entered appeal was divorce
No by statute the tak- allowed 1947, and time July on expired January on appeal passed therefrom an ing of whereupon the 1), action (section subd. (section 93-8706) mar- pending and the to be ceased and her hus- existing between Geraldine first riage theretofore McDonald, completely became dissolved and band, Thomas 21-101), party and each McDonald (section terminated action for divorce was restored to the an state of unmarried concerned, person far so marriage Geraldine’s first (section 21-102). July 22, 1948, long
On after an taking ap- the time for peal from the entered, decree of absolute petition divorce so on father, the defendant McDonald, representing Thomas the care daughter, furnished his Ann, Marsha by her mother Geraldine and im- Geraldine’s mother was proper, unwholesome and child, the best interests of the *28 Judge District Besancon issued an order to directed Geraldine requiring that she show cause before the district on a day why original custody certain order should be modi- fied so as to award to the custody defendant father the of the child, Marsha However, Ann McDonald. having Geraldine heard filing of the the defendant petition father’s immediate- ly left husband, State of Montana with her then Jack Cochran, Ann, and the child Marsha for some desti- unknown Coast, nation on the all knowledge Pacific without the or con- sent of either the district court or defendant father. escape this manner personal did Geraldine pro- service ceedings custody so by instituted the defendant father.
Service proceeding publication and, made on September 27, 1948, hearing had, after the district court made custody an order modifying original its awarding order custody of Marsha Ann defendant father.
After considerable search the father ascertained that Ger- child, Ann, living aldine and Artesia, Marsha were then California, being Angeles, a suburb of Los whereupon, in Janu- ary 1949, journeyed sought he prevail upon there and Ger- aldine to deliver the him Judge child to as directed in Besan- of September con’s order him,
Upon refusal to surrender the Geraldine’s child to Angeles Los County father from the defendant obtained Court matter, jurisdiction writ of habeas having corpus of the re- child, Ann, bring Marsha before that quiring Geraldine obey day certain, but refused the writ court on a Geraldine immediately taking Marsha Ann with her left California Montana, applica- and returned to the State of where on her therefor, Judge Besancon, 29, 1949, tion March made an on order of modification wherein he:
(1) Marsha Ann custody Awarded the full to Geraldine granted leave for Geraldine and the child to reside California;
(2) may any that the Directed defendant visit the child at place; reasonable time and
(3) September Ordered that his former order of aside; be set (4) pay Ordered that the defendant father direct to the plaintiff attorney, represent- Geraldine’s a fee of $150 ing custody proceeding; her in the child
(5) Ordered that father the defendant to the clerk court $45 district each month to be remitted to Geraldine Ann; for the care and of Marsha (6) Adjudged plaintiff that judgment Geraldine have her costs and disbursements incurred in proceedings; such
(7) original July Ordered decree of re- except main in full force as modified last order. *29 appeal order,
On his from defendant, the Thomas above McDonald, alia, inter statutory contended there is no au- thority plaintiff’s in Montana for attorney allowance to counsel fees after the divorce pending action had ceased to be and at a when marriage existing time theretofore had been absolutely permanently and dissolved. Rumping, 1907, 39, 36 Rumping page 43, Mont. at 1058, L.R.A., N.S., 1057, page 1197, this at court said: elementary, course, that neither or equity
“It is courts law any power marriage. power have mherent to dissolve The statutory.” purely (Emphasis supplied.) decree a divorce Again Docotovich, in the more recent ease Docotovich v. 1951, 56, page 60, 971, page 973, 229 Pac. at at court, opinion, “Proceedings held for in a unanimous di- purely statutory power voree are which and upon by statute. exercises is that conferred only statutory money or authority allowing “The suit attorneys’ 1947, 21-137, is that contained in R.C.M. section fees * * *” (Emphasis supplied.) McDonald, 124 Mont. majority opinion in McDonald v. 26, wholly fails (2d) 929, (2d) 1260, supra, A.L.R. quote, apply 93-8706, R.C.M. even refer section supra. That the companion 21-137, which is a to section statute opening 21-137, namely, “While an action phrase of section pending” nor divorce be neither misunderstood miscon- wisely cautiously took the Legislature very strued and 93-8706, precaution separate statute, extra to enact a section precisely only measure and wherein it set forth the one and guide definitely ascertaining determining when and during period an action is deemed and de- what exact of time pending. appeal was taken from clared law to No July 28, 1947, in McDonald case decree of entered 93-8004, maximum six months allowed section expired taking appeal, of an subd. for the date, January 28, 1948, on after last mentioned which appeal having passed, action for divorce ceased the time for 93-8706, provisions of section pending plain to be under the existing L. Mc- marriage and the therefore between Geraldine completely was Donald and Thomas McDonald became and party and each terminated, dissolved and persons, section 21-102. restored to the state of unmarried being year, two months March one not until It was for divorce in the McDonald day after the action and one Judge made that District Besancon pending to be case ceased defendant, Thomas which the modification from his order the district to this court wherein McDonald, appealed Marsha of the child alia, (a) court, inter awarded Ann that the defendant mother; (b) provided plaintiff place; time any reasonable his may child father visit July 28, of divorce of final decree that the (c) provided *30 211 order, modified the last be- except remain in full force (d) that the defendant father ing appealed; the one ordered plaintiff attorney a fee of $150 direct to the mother’s custody (e) representing proceedings; her in the child judgment her costs plaintiff ordered that the mother have long proceedings, and disbursements in the all had and done taking appeal portion after from that the time for an of granting a final absolute had plaintiff decree decree of passed. 93-8706. Section majority opinion case, supra, the McDonald page 31, page 931,
Mont. at at it is said: statutory is authority “Defendant contends that there attorney’s fees after the divorce action is ended and after relationship of husband and wife terminated. has respectable authority supporting
“There is that view. [Cit- ing Washington, Massachusetts, decisions from the courts of Ar- kansas, Florida and New York.] weight authority
“We think however that better under reasoned cases statutes such as ours hold other- Among wise. following*: [Citing such cases are the decisions Missouri, (Resist- courts Utah and also New York.] ing alimony change children). [Citing de- ” Kansas, Oklahoma, cisions from Illinois and Minnesota.] 21-137, supra, statutory only authority giv
Section “is ing power grant alimony expenses to a court to to a wife.” Bordeaux, supra, page 481, Bordeaux v. 29 Mont. at Pac. at page 360. given power to a court the above so exercise expressly period limited and restricted to that is
statute pending”, 21- for divorce section time “While” the “action may agree fees be al- generally counsel The “courts pending”, Grimstad the divorce action lowed while Mont, at page page Johnson, supra, statute, undisputed and the which, under the only that period “from McDonald case covers facts *31 * * * the time of its commencement until appeal the time for passed.” has Section nothing 1947. There is vague, indefinite or uncertain in provisions the either of sec- tion 21-137 or section 93-8706, supra. Bach section means precisely says and, what it consistently each had been so con- by strued prior this court appeal to the in the McDonald case. Wallace, Wallace v. 62, 273 Mass. 172 N.E. it is said: power jurisdiction “The of the court in granting di * * * entirely
vorces are
statutory.
power
The
of the court to
make
payments
orders for
to the libelee for counsel fees and
expenses in proceedings for modification of the decree in re
spect
custody
to
of a child incurred after the decree for di
vorce has become absolute does not exist unless it
is found
statutory provisions.
the
208,
G.L.
provides:
c.
section 17
may require
‘The court
the
pay
husband to
into court for the
use of
during
pendency
the wife
the
the libel an amount to
of
libel,
enable her to maintain or defend the
and to
the
to
alimony
wife
during
pendency
the
of the libel.’ This section
by
express
its
terms assumes
relationship
that the
of husband
has
legally
payment
wife
not been
terminated.
is to
be made
the husband to the wife. The words ‘during the
pendency
the libel’ are used twice in this section of the
statute.
1851,
82,
Before St.
c.
was enacted
court had no
authority
pendente
to award
fees
counsel
lite. Coffin Dun
404, 405],
8
405
34
ham,
404,
769;
Mass.
Am.
Cush.
Dec.
[62
Baldwin, Gray 341,
6
342
341, 342],
Mass.
Baldwin v.
Be
[72
6,
passed
pow
c.
section was
the court had no
fore St.
alimony
period
before
grant
er
the decree for di
Shannon,
In v. 21 Super, 522, N.J. 91 A. 418, 420, is said: ‘‘ asks that the fee of her counsel in charged, part Defendant ground least, against plaintiff, at on the that this is suit in the parties nature of a ‘matrimonial action’. While the hus- were time, at relation band and wife one was severed in 1946 years has been wife and defendant for some of another man. practice charging a husband with the “The reasonable wife, legal expenses parties when the engaged his are in at all litigation, personal common arose because law the wife’s passed husband, from her lands to her estate and income liable, wife, many cases, go and if he not must were with- justice. legal expenses out Here were considered ‘necessaries’ law, just sue her husband at and her solicitor could as could 214 [Citing supplied merchant who wife with food. cases.] practice allowing a counsel fee has continued wife fact, Jersey is,
in New in most families the still because wife dependent financially [Citing her husband. Clear- on cases.] ly, policy liability apply on does not which fixes the husband Nooney.” Turney to an action between and the wife of 543, 205 Bishop Bishop, App. 542, In Div. v. N.Y.S. it is said: judgment
“We have here a case where a final
of divorce has
entered, dissolving
parties
of hus-
been
the relation between
effect,
is in
no
judgment
band and wife. The
full force and
appeal
therefrom,
relationship-
taken
marital
has been
and the
longer
Lake,
page
exists.
Lake v.
N.Y.
Judge
N.E.
Chase said:
“
why
‘There
another reason
the order for counsel fees
primarily
should not
been made. Such an
must
rest
have
order
upon
and wife.
the existence of the relation
husband
Unless
for the
parties,
that relation is sustained
there is no basis
brought
order. Even in an action
the wife to annul a mar-
upon
legality,
marriage
riage
goes
a cause which
allegations
against her
originally, the
of the wife will be taken
true,
an
to her to maintain the action will be
allowance
Brinsmade,
v.
“And *33 (the divorce action between these same N.Y.S. 954, 150 that: parties), “ grant fee after a final power no counsel had ‘The court marriage’ citing Lake, supra. Lake dissolving the v. judgment — it has been held that counsel in which of cases “The class appeal an from to take defend to a wife be allowed fees will question not relevant to now divorce are judgment of consideration, for obvious reasons.” under 811, 132 N.Y.S. Kraushar, App. Div. In Krauskar v. (2d) 6, 7, is said: individually and wife, former
“Application respondent’s children, their infant for a tem- guardian ad litem for two as restraining respondent molesting porary injunction injunction restraining children; permanent for a so or said and, also, restricting children, him his visits with the and agree- modifying separation terms of the an order visitation declaring pro- appellant respondent and ment between void remarriage custody vision therein that in case of her option; him at his and for counsel children should revert * * * attorneys. appellant’s fees for parties being wife, not a matri- “The husband and is statutory authority granting and monial action there requested. [Citing fees counsel cases.]” Coldiron, (2d) 294, In Haakenson v. Wash. 296, the court said:
so “Attorney’s provides. * [*] fees may [*] After a divorce is be allowed in granted cases where a statute and the prop- erty rights parties and the are children cannot, garnishment proceeding, settled, require the court in a attorney’s di- payment money of suit fees to aid the prosecution garnishment proceedings, vorced wife money authorizing statute the allowance suit we have no attorney’s fees to divorced wife such actions.” case, majority opinion supra, overlooked
The McDonald’s facts, viz.: these authority
(1) question power court’s attorneys plaintiff in an fees to wife action award jurisdiction; new nor novel in this is neither fully governed (2) question answered Such 1947; 21-137 provisions of sections applicable question and the law thereto had been (3) Such upon this court Bor- considered and ruled theretofore Rumping Rumping, Bordeaux, 1903, supra; v. deaux Court, 1920, supra; rel. Wooten v. District supra; ex State *34 216
Grimstad v. Johnson, 1921, supra; and
Albrecht,
Albrecht v.
1928, 83
37,
Mont.
(4) “There are well reasoned juris cases cited from other dictions on either question, side of the but think we at case bar must be determined the construction of our stat own utes.” In Fligman’s re Estate, 1942, 113 505, Mont. at page (2d) 129 Pac. page at 629, quoted approval with the recent case of In re Estate, Hammerstrom’s Mont. (2d) 699, 700; Pac. page at
(5) year In the 1921 this court “Upon found and held: examination of the decided cases in other states which have the same or similar statutory provisions, we find that their courts generally agree that may counsel be allowed while fees pending.” divorce action (Emphasis supplied.) Grimstad Johnson, Mont. page at page 315, A.L.R. 351. majority opinion case, supra the McDonald [124 932], also states: “It is our view sec 21-137,
tion supra, enough is broad to warrant the court awarding plaintiff expenses with prosecute which to proceedings seeking a modification of the award of the minor child.”
How broad is section 21-137? far pertinent
So as here section provides: 21-137 pending “While an action the court or pidge * * * may require alimony any the husband to as * n * * money necessary prosecute to enable the or wife (Emphasis supplied.) defend the action.” 1947, is not as Section broad as it : would be (1) opening phrase If the seven word were omitted or section; stricken from
(2) opening phrase If the of the section were completely nullified; ignored place inserted for and
(3) “In” were If the word if the the section and opening “While” word of word or strick- omitted, discarded deleted, “is pending” words were read: simply phrase to amending opening en, thereby ** *”; may judge *35 “In the court or an action divorce for inserting after the word (4) by If the section were amended additional thereof seven “pending” opening phrase in the an read: “While opening phrase as to make the words so any upon is or action pending, action for divorce modifica- for * *” * House printed may tion See thereof, judge the court or Legislature; Bill in the 1955 No. introduced inserting, adding (5) If the would be amended section wholly paragraph incorporating at the thereof a new end compel any proceeding instituted to which would read: “In court, respect- any compliance decree, with the or order of alimony attorney fees, the court ing payment costs, of proceedings, includ- may, discretion, in its such allow costs of ing attorney Bill 289 introduced printed See House No. fees.” Legislature; in into the
(6) not enacted Legislature If the 1895 State had law of this state section 1895 the Montana Codes precisely when 1947, setting forth now section 93-8706 R.C.M. pend- “An deemed to be period and for what of time action is ing” under the codes of Montana. McDonald, majority opinions in
The of this court the case as- Trudgen Trudgen, has supra, and in the v. instant case of and amendments changes, sumed to effect all of the alterations accomplished in 21-137 section that would have been they so without procedure and have done above methods and Depart- Legislative any aid or assistance whatever from government. ment of our changed or altered has not been 21-137 wording of section
The any time since Legislature by any any particular action pre 1895, hence, is the section statute in enactment of such Bor this court decided the time it was at cisely as broad as Rumping, supra; Deck Bordeaux, Rumping supra; deaux v. Decker, er v. supra; Court, ex rel. State Wooten v. District supra; Johnson, supra. Grimstad v.
Clearly the opening phrase seven word of section 21-137 ex- pressly authority limits the and power judge of the court or require pay money husband the wife the with which pay her attorney “While period fees to of time an action pending” “pending” is the term is de- for fined Legislature 93-8706, supra. in section judge office of not to omit from 21-137 am, limiting phrase pending,T “While action divorce is and not to omit or Legislature’s overlook the declaration sec tion 93-8706 as to period action, when time what an including an action divorce, pending. shall be deemed to be See sections 93-401-15 93-401-16, R.C.M. 1947.
If section 21-137 enough broad to warrant the court awarding plaintiff, McDonald, money Geraldine L. with which to attorney represent the fees of an a child proceeding brought long taking after the time for *36 appeal an from the passed, final decree of absolute divorce had it by has achieved such only omitting deleting breadth or there- from limiting phrase, pend- the “While action an divorce is ing” or omitting refusing accept Legislature’s to the declaration as to pending. when an action is Ob- deemed to viously provisions of sections 21-137 and 93-8706 admit of interpretation attempted. no such as above majority The opinion case, supra, in then the McDonald says: “Also, though specifically even au- statute does not in- granted, thorize such fees after the is the court has divorce jurisdiction equitable power major herent to incidental to its make it implied though such an award.” Here is even that statute, 21-137, specifically section not the court does authorize require to the former to former pay husband to wife rendered, attorney long fees of her his after the services long decree of absolute after divorce had been entered and taking passed, time for an appeal decree had never- such power incidental the court still in sufficient theless has reserve major jurisdiction an to its to make such award. parti-
The above and numerous decisions of this cited court cularly Bordeaux, Bumping, Wooten those in the cases of Nrimstad fail to the contention so advanced. pro- this Wilson case. On December Wilson, 128 Mont. in
nounced its decision the case of Wilson v. the court’s (2d) 219, 224, wherein became 21-137, duty apply provisions to and construe the declare “to Codes of ascertain Revised Montana of therein, to insert what not is terms or substance contained inserted omitted, what has been to omit what has been * * *” gee perform- 93-401-15, Section R.C.M. plain duty, ance court, part, of this said: ordinarily party “It a principle fundamental that one suit may expenses a not upon litigation be called adversary his except that some statute when and to the extent may clearly by way provide indemnity winning party * ®* costs in the taxable suit. provide assembly fit to make and legislative state saw
“The general specific fundamental and exception to the above empowering the courts principle actions for divorce fees, counsel but make the wife for allowances therein to pending’. 1947, section ‘is while such action for divorce exception general principle 21-137. The to the above except ex- in cases adversary’s fees are counsel allowable such as section pressly provided for statute some marital existence of the supra, fundamentally upon the rests has final become after a absolute divorce relation for decree of then exists pending no there longer action for former wife obligation of former husband his implied an di- state. When absolute arising out of their former married *37 former wife to ability of the vorce becomes final it ends necessaries husband even for thereafter bind former may supplied spouse. his erstwhile be to justification for extend-
“For these reasons there can be ing exception provided 21-137, supra, section situa- tions do clearly which not fall pro- within the reasons for the * * * visions such statute. 21-137,
“It will be observed that in the enactment of section supra, legislative the state assembly phrases the. used ‘While an action for pending’ pendency divorce is ‘During such action’. That phrases such be neither misunderstood nor legislature misconstrued took precaution the extra to enact separate statute, 93-8706, section wherein it de- fined precisely when an stated action is deemed to be pending. 93-8706,
“R.C.M. provides: ‘Actions—when pending. An pending deemed action is deemed to be from the time of its commencement until its final upon determination appeal, appeal or until passed the time for has unless the judg- ** * ment is sooner satisfied.’ * * *
“It only pending’ is ‘while an action for divorce is that the is or empowered require court authorized the hus- (not husband) band (not former to the wife * * * former wife) money prosecute to ‘enable the wife provided 21-137, defend the action’ expressly as is in section * * * supra.
“In 27 C.J.S. pages Divorce section notes 81- 83, it expenses is said: ‘WTiereallowances for of suit and coun- are, statute, sel fees by specifically provided of the wife usually held that her right purely to such allowances statutory court; and cannot be extended hence such be allowances can made the terms accordance with ’ statute; ordinary eqtiitable principles do obtain. N.W. Hensen, “In Iowa Hensen construing similar Supreme Iowa, a statute to sec- Court authority supra, ‘Unless, therefore, tion said: is con- money upon ferred to award suit and attor- statute ney application parties an one of the to secure a fees subsequent of a of a minor modification decree as to ’ child, may none allowed.
221 Wallace, “In 172 N.E. the Wallace v. 273 Mass. correctly power court held that to make orders the of the court ex- payments a former for her fees and to wife counsel penses proceedings in for the of the divorce de- modification respect custody cree in fees and ex- of a child which penses had become were incurred after the decree for divorce * * * the absolute does not exist unless it is in statutes. found may supra,
“Under section counsel fees allowed be. pending the is and not after while divorce action wife dissolving marriage the decree final for then has become the action for 93-8706. longer pending, divorce is no It authority follows that had district court to award plaintiff attorney’s instituting her in fees so incurred prosecuting modify original these proceedings seeking to long decree after it had become final. petition 21, 1952,
“Plaintiff’s filed and which November prompted attorney’s the allowance to her her fee of was complaint a divorce, purely simply but one for an order that give custody would simple of the children. It was right custody by issue of the to frequently presented corpus habeas provision wherein there is no for the allowance of attorney’s plaintiff’s petition change fees. At the time change because of conditions defendant father had been primary obligation freed of the his contribute to justify- former wife’s and in the absence a statute ing it, the trial lacking authority power court was in allow the supplemental proceed- former wife her fees these ings and the court’s in making action the award constituted ’’ error. App. 389, 235 Murphy Murphy, Cal. Pac. v. judgment dependent an for maintenance of a action to renew a judgment upon lien daughter to declare such to be a cer- standing judgment property tain the name of wife of ‘‘ debtor, appellate said, part: This is not an action attorney’s authorized statute to allow which the court is attorney.’s specifically Except fees. fees are allowed where statute, they or by parties, contract of the are not recover- able litigant a successful as costs otherwise. Jur. Cal. compensation attorneys is left agreement parties. Section Code Civ. Proc. This an action judgment. renew a It is not an action for under maintenance section 206 of the Civil Code.”
The case of Hendrix Hendrix, App. Cal. (2d) 58, by Perry an action Hen- commenced drix, plaintiff, against Evelyn Hen- defendant, Irene *39 drix, to custody obtain the minor of two children.
Perry Evelyn Hendrix and Hendrix had hus- Irene been band They parents wife. were the of the two minor chil- By dren involved. the King County decree entered in in Washington, the Perry State of the father and the mother Evelyn custody were divorced and the aforesaid two minor Evelyn. children was there the mother There- awarded to after, Evelyn in July left the mother with children Perry County their father in in the Riverside State of Cali- fornia Washington. and returned to the State of 27, 1953, Evelyn County,
About November came to Riverside California, purpose regaining custody for the of the two children so with father, left their and on that con- date she attorney sulted an in advised her that then Riverside who he quite during was busy, but that he able to see her would be part first next week. Perry, as plaintiff, father commenced the meantime the County, in the Superior
in Court for Riverside State Evelyn mother California, against the defendant an action custody him of said granting two minor obtain an order in attorney’s return visit to the office upon.her children and pro- a restraining there served order Riverside she was with jurisdiction out of the taking children hibiting her from County. Superior for Riverside Court subsequently Superior her in said filed In an affidavit California, Evelyn that County, set forth Riverside Court for upon her she con- the order served became upon considering so she then had the cus- vinced that such order was in error since returned tody children, whereupon she possession of both there- and that Seattle, "Washington, with the two children Evelyn after, 15, 1953, on or about December both Evelyn Seattle; children in that con- were taken into she need not attorneys sulted her that Seattle who advised physically return to California and that she then was since present Washington children, her cus- the State of with the notwithstanding tody disturbed; of them such could not be given advice the children taken her in Seattle and were plaintiff father, Perry Hendrix, returned who to River- side, California with them. did for cus- Evelyn appear defendant in the action
tody County, so filed in Superior Court for Riverside Cali- fornia, Evelyn’s and on December default was entered day had, following and that same hear- hearing a which ing Perry said cus- plaintiff court awarded the exclusive tody and control of the two children involved. February 15, Evelyn Superior
On filed Court for Riverside County set her default and motions to aside against vacate and set judgment aside the default entered together with her above-mentioned affidavit of such Evelyn’s motions. Following motions, aforesaid hearing on *40 why on an order to show cause she should be allowed fees for attorney action, Superior her in Riverside the the Evelyn’s Court on denying March an order entered aside, granting awarding motions to vacate and set but attorney’s $75, plain- fees in the action in the sum of which the the trial Perry pay. tiff ordered to Thereafter California by order and an order dated court reconsidered its aforesaid Evelyn void, granting May 4, 1954, set aside as its earlier order the attorney’s most recent order defend- $75 fees of which affirming order and action Evelyn appeal. ant took an the App. (2d) 379, (130 Cal. court, appellate of the trial the court appealed then (2d) 58, page 60) said: “Defendant setting granting the order May 4, 1954, aside from the order attorney’s fees in the $75, sum contending the court abused its denying discretion in attorney’s allowance fees to defendant. This contention is likewise without merit. The instant brought action was to obtain the of two of the minor children parties. of the It is not one of the actions specified in sections 137.3 137.5 of the Civil in Code which attorney’s fees statutory are allowed. provi Since there sion for the attorney’s present action, allowance of fees compensation the mode of agreement, is left to the express or implied, parties. Section Code Civ. Proc. As was Murphy said in Murphy, v. App. 389, 392, 71 Cal. 235 Pac. 653, 654: ‘Except attorney’s specifically where fees are allowed by statute, byor parties, they contract of the are not recover litigant able a successful as costs or otherwise.’ trial court order May 4, 1954, its its prior declared order of March granting attorney’s properly fees to be void and set it aside since the order was void on its face.”
Following pronouncement by this court of its decision (Wilson Wilson case Wilson), 128 Mont. (2d) 219, 224, appellant, Wilson, timely peti Alice a filed tion for rehearing therein, which after careful consideration on January Thirty- denied at which time the (1955) fourth Legislative Assembly State was in session. In opinion case, supra, its the Wilson this court further said: legislative assembly “While could, fit, if it saw enact a empowering statute the courts to allow a former wife her coun expenses sel fees and seeking incurred in an modify order to long decree of absolute divorce after it has become final and long after the action for divorce has pending, ceased to be fact remains that law of this makers state have not enacted any and, such statute enactment, of such absence attempt usurp courts should not legislative such functions by writing into the provisions statutes other and different than legislature. were enacted guard against judicial legislation usurpation and
“To. assembly legislative legislative' state enacted functions the
225 1947, ‘In the 93-401-15, provides: R.C.M. section which con- * * * judge simply struction of statute office of the what terms ascertain declare is in or in substance con- therein, omitted, tained to insert what has been or to omit * * what has been inserted construction, This case, provi- court’s in the Wilson of the 21-137, 1947, sions of section R.C.M. its conforms with earlier pronouncements (Bordeaux Bordeaux), in the Bordeaux v. case 478, 29 359, (Grimstad Mont. Pac. and in the Grimstad case Johnson), A.L.R. that such Legisla- construction carries out the intent that it ture and with approval Legislature meets rejection by evidenced Montana’s lawmakers of two most persistent vigorous attempts amend the statute as to so nullify imposed by the time the first seven words of limitation 21-137, upon authority power of the court require money order and the husband to wife with to pay attorney which her action for his fees after such action had pending. ceased to be
Thirty-fourth Legislative Assembly to Amend Statute. Refuses Within three weeks appellant after denial this court petition Alice rehearing case, Wilson’s supra, the Wilson to-wit, the 30th day Thirty-fourth on Legislative Assem- bly (1955) of Montana, Representative Ralph the State of J. Conrad Lewis County, by and Clark request, introduced Bill House No. entitled:
“A Bill For An Act Entitled: ‘An Act To Amend Section 21-137, Montana, Relating Expenses Revised Codes of To Alimony; Providing Of That A Be Required Husband Action— Pay Attorney To For Fees While An Action Divorce Is Pend- ing Any As Thereof, Judge Or Modification The Court Or May, His Discretion, Require In It Or The Husband To [sic] Action; Pay Repealing To Prosecute Or Defend The And All Acts And Parts Of Acts Conflict Herewith’.” stated, As before while section contains applies four it is the first sentence that sentences to an *42 No; H. divorce, proponents the B. action for as and authors sought only Bill recognized, such as introduced to 329-well inserting the first section 21-137 after the amend sentence of ’’ ‘‘ section, pending, being the word of fol- word seventh the the any words, upon “or lowing seven italicized viz.: action for change as the first sentence so to of sec- modification thereof” pending, tion 21-137 to “While an is read: action any upon thereof, the or judge or action court modification discretion, require may, pay in its or his the husband to ali- as mony any money necessary to enable the wife to her- children, prosecute self or her or to defend action.” or Clearly above-proposed designed nullify amendment to upon destroy express placed definite limitation and and authority granted by Legislature judge the court or to to attorney prosecute the wife to her to or allow fees to enable specific period defend the action to that of time while and .pending” namely, “from the while “action for divorce its upon time of its commencement until final determination appeal passed, until appeal, or the time for has unless the judgment 93-8706, satisfied.” R.C.M. 1947. sooner Section sought Bill 329 it was printing
After the of House No. to eight eliminate the “thereof” insert additional word remaining originally to the six amendatory pro- words words proposed fourteen posed so as make the amendment contain amendatory first words all be inserted in the sentence of in italics, 21-137 here set forth malee the section section and to is pending, amended read: “While an for divorce as so action any any proceeding topon action or order or for modification of therein; judge his may, or or decree its discre- * * tion, require the *.” husband to provided for the reenactment of 329, supra, Bill No. House 21-137, pre- section second, third fourth sentences of read, however, as now they read, they cisely as then Senate, the measure died and section pass in the Bill failed to change, originally as enacted on without continued 21-137 Amend Statute. On Thirty-fifth Legislature Refused Assembly (1957) Legislative day Thirty 25th fifth Yel- Representative Anderson of Montana, the State of Jerome Bill No. entitled: County lowstone introduced House “A Bill For Amend Section An Act Entitled: ‘An Act To Relating Montana, 1947, 21-137 The To Of Revised Codes Of Expenses By Providing For Allow- Alimony, Of Action And- Attorney Proceedings ance Of And Instituted Costs Fees Compel Compliance Respecting Ali- To With Decree Or Order mony Attorney And Fees’.” entire four sought above bill to reenact sentences
comprising they 1947, precisely section have all original read at times their enactment in since then to 21- constituting add to the four sentences now *43 137 a fifth reading: sentence any
“In proceeding compel compliance with instituted to decree, any court, respecting payment or order costs, alimony attorney fees, may, the court its dis- cretion, including attorney allow proceedings, costs such fees.” by adding
Thus 21-137, at the of section itali- end the above paragraph, proponents introduced, cized did the House of the bill Bill 289, No. seek to nullify eliminate force and effect opening phrase the seven word of section 21-137 which ex- pressly limits by judge authority the exercise the court or of his power attorney fees, to award the plaintiff wife her period pend- of time “While an action divorce is ing.” Thirty- Bill 289 same fate in
However, House No. met the Bill Legislative Assembly (1957) fifth State as had House No. Thirty-fourth Legislative Assembly 329 previous in the State rejected by nothing (1955), for it was the Senate so that came proposed passage. of the measure. Thus have two It failed of by rejection their Legislative successive Assemblies above acquiescence approval Bills their in and- of the House evidenced interpretation 21-137 and construction and awarded sections 228 1947, Wilson by opinion this court its in the
case.
Clearly, lawfully this court construction what cannot do Legislature refused do enactment. Murray 101, pages In 115- Hospital Angrove, v. 92 Mont. at 116, 10 (2d) 577, page 583, Pac. at said: “It this court duty ascertain, of the intention of the possible, court to if Legislature in passing an act and give effect thereto, [*] [*] [*]
“Also, when an bill and pending amendment is offered to a rejected, Legislature the intention is manifest that the law shall not read as it been ac- would if the amendment had cepted, legis- ‘by and the courts what the cannot do construction lature refused do & enactment.’ McDonald Johnson 288; Express Co., C.C., Southern 134 States v. F. United Machinery Co., D.C., United Shoe 264 F. affirmed U.S. S. Ct. Ed. 708.” L. 379, 118 Byars, pages 378, at Converse v. through Mr. speaking (2d) 144, page this court Pac. the Fratt Angstman said: “We are asked to overrule Justice as un- Estate, 60 Mont. case re Fratt’s 711] [In time, us for first questions presented to sound. Were the from that an- might we reached a different conclusion have Estate, 64 Mont. in the Fratt Hash re Hash’s nounced [In Fratt decision was rendered 118, 208 Pac. cases. The 605] in the acquiesced legislature 1921. The ever since then has proclaimed, there and we think we construction of the statute differently. any change If is de- should it not now construe particularly ap- legislature, sired should come from *44 plied after the Fratt decision.” to wills made 96, 103, 69 Reardon, 1937, 105 Mont. Pac.
In McBride v. through' Mr. Justice (2d) 975, 979, again speaking this court ‘‘ Attorney by Gen Angstman The act was construed said: Attorney (vol. 16, it 1935 as here construed eral in we have though meet 135), Legislature, Reports, page General This any change. is at least see to make ing since, did not fit interpretation.” that satisfied persuasive that it was with
229 by this same rule This has been followed construction in Es court its determination In re of the cases of Coleman’s tate, re Ham ......Mont.......1957, (2d) 880, 883; In 317 Pac. (2d) Estate, 699, merstrom’s and In re Mont....... Pac. O’Grady’s Estate, Mont....... 705. Pac.
In ...... Estate, of In re Mont....... 317 case Coleman’s (2d) 880, Pac. 882, part, in this court said: appellant suggests “Counsel for the should that the statute read, says, putting implications, he as follows: the omitted appears suggested statute additional [Here with thirteen words inserted therein.] liberty passed by
“We are to so amend statute as a legislature approved governor. must deter- We mine plain meaning liberty the words used are not at to add in the statute what 1947, has been omitted. R.C.M. * * * section 93-401-15. “* * * However, appellant this would have court reverse its holding in Fligman’s Estate, In 505, re 113 Mont. 129 Pac. (2d) 627, annuity wherein it was proceeds held that ex were empt 1947, under R.C.M. That section 91-4406. case was de Eight legislative cided sessions have been held since the decision and legislature has not seen fit to amend the stat ute. and property Estates planned have been and settled on the basis case, Fligman necessary decision and if decision, this court opinion this would treat as stare decisis.” Hayton
In Hayton, v. Wash.
is said: Dolby Dolby,
“In Wash. decided in a that, has granted, held after divorce been payment money attorney’s order can be made for suit wife defend a motion made fees to aid divorced original former for the modification of the decree of husband custody. 1921 the respecting Legislature, the child’s four chapter added new sections the law upon divorce, providing proceedings change actions *45 the modify decrees, the law
or that there is now in divorce so following provisions: “ said power party ‘The have either to court shall to cause records and proceeding action or to so much or all of the file the original proceeding in as court files the divorce action or and all nec- necessary proper; shall deem or to make enter and essary proper bearing or orders for a full determination petition.’ of said that the order upon
“It the final in this section clause justified. This in attempted made instant case is to be the authority an to however, clearly indicate language, does not appealed the our minds it can- from, make order here to correctly give authority. Legis- The interpreted be to such presumed knowledge in law be have its the lature must had Dolby case, in had it been its intention as laid down the law, a it seem overcoming statute that rule of would enact doing. explicit language have used in so that would clear chap- in section language appears Such was available and Legislature dealing with the ter where the Laws expenses defending provision for the the wife to made Legislature following used the words: the divorce action. “ judge or thereof ‘Pending action for divorce * * * expenses of such may make such orders relative to the preparation as insure to the wife an efficient action will and a fair and reasonable trial thereof.’ case Legislature explicit provision made this “The fact that argument us persuasive that wife’s defense defending language provision for the omission of such- intentional, and of the decree was of the action for modification Dolby Legislature the law as laid down in that the desired continue in effect.” ease to Trudgen case, majority instant opinion its supra, case, Wilson does in the court’s decision that this
asserts juris- for the court’s basis of the constitutional not take account emphasize it does not matters and diction provisions of section authority under continuing court’s 21-138, supra, “give care, such custody, discretion for the marriage may education of the children of the seem nec- essary proper,” provisions or under the of section supra, to “make such suitable allowance to the wife for her *46 hey. support during life, period, a shorter as the court may having just, deem regard the the to circumstances of parties respectively, may, time, and court from the time to modify its orders in respects; provided, however, these that upon proof of the remarriage wife, of a divorced after the judgment final in a action, the court must order a judgment modification of the by annulling provisions the of judgment the directing payment money the of for the of the wife.” majority
Here the overlook the facts that neither section 21- 138 nor section 21-139 supply authority any whatever to the court in an divorce, action for money to allow wife the necessary lawyer to his attorney It is only fee. section 21-137 grants such authority, correctly and this court so in held case, Bordeaux in supra, and case, Docotovieh supra.
However, grant power subject under section 21-137 is express limitation and restriction on its exercise to that period only “While” pending.” the “action divorce is
“Ordinarily it is held that allowances for counsel fees and money suit cannot be made in proceedings modify collateral a divorce decree far so as it awards of children.” Divorce, C.J.S. section page 914. This was the rule in Montana from the time of the enactment, in of sections 21-137, 21-138, 21-139 pronounce- ment, majority opinion in the case. McDonald
Apparently being being somewhat fearful of able sustain position its herein under the written law contained the Con- majority stitution and Montana, opinion finally statutes of power” to the unwritten and unseen “inherent claimed resorts (cid:127)to omnipotent judge reside within breast of an for its au- thority power case, to rule as it has in the McDonald 31, 218 finally said majority opinion therein [124 : 932] author- specifically
“Also, though even the statute does inherent has granted, after is the court ize such fees the divorce jurisdiction make such equitable power major its incidental to (Emphasis supplied.) an award.” jurisdiction has in a only power which a court power. inherent power opposed to divorce action is derivative through people from the power Such derivative is derived appears in the Con- law either the written law as such written or, in of the state. stitution the statutes Montana, Ill, provides: art. The Constitution people; political “All in and derived power vested is founded originates people; government right all with only, solely good for the upon will and is instituted their (Emphasis supplied.) whole.” supreme jurisdiction powers of
The source of the
VIII of the Con
3 Article
in sections
found
*47
Bordeaux, 26
Montana. Bordeaux v.
stitution of
535,
Limitations on Power. The regulations limitations may be exercised “under such ’’ Const, VIII, art. sections may prescribed by as law. Mont. be (Emphasis supplied.) and 3. VIII of the phrase of of article concluding section regulations and Montana, namely, “under such of Constitution prescribed as may prescribed by law” means limitations as be Court, v. District legislature. State ex rel. Middlemas by the Cook, (2d) 233; Howard v. 130 Mont. (2d) 208, Idaho and creat- providing this state of Constitution Under the pos- such court only power which court, supreme ing the by people it granted has been is such as sesses regu- “under such lawfully exercised may power granted so by There law.” prescribed may be as limitations lations and any recognizes such state law of this nothing in right “the “the thing power judges” inherent or divine of kings.” entirely of different belonged These doctrines to an system government government of to correct the evils which de- under a written constitution and under written laws signed adopted. power granted by supreme
To ascertain the it people court must iook to the this for a written constitution of state grant written power. Finding grant no such written supreme may any not then resort to nor reach out for indefinite, uncertain, such unrecognized, un- uncontrolled and authority written power or as is concealed such doctrines as “the power judges” inherent right kings” “the divine justify any attempt powers the court to exercise not granted possessed. and therefore not
A power court has no anything to do which is not author- ized law. judicial
The constitutional department is an in- American vention. It government was devised to goes see that fur- ther its authority judicial than department extends. The must granted exceed the authority people. Its deci- must be sions the voice of law partisan and not echo faction.
The Constitution of IY, pro- Montana article vides for departments distinct three of government, namely, the Legislative, Executive and Judicial and directs that “no person or persons charged collection of with the exercise of powers properly belonging departments to one of these shall any powers exercise properly belonging either others, ’’ except inas expressly constitution permitted. directed or What meaning provisions? is the of these you? they What do mean *48 they
What mean this do to court? * * * provisions mandatory “The are prohibitory, and they express by words are declared unless to otherwise.” says Ill, Constitution, art. section So 29. 2, 1954, pronounced court December
Since this on its deci- 234
sion in the ease, supra, construing- Wilson applying and provisions of 21-137, separate regular section two Legislative gone Assemblies have come each Assem- bly rejected has attempts change, and all therein any made to alter or say amend section 21-137 as make so such section provide precisely majority opinion in in- what stant case now 21-137 already provided holds with- necessity out the making any amendments additions or whatever therein.
Surely Legislative 1957 well the 1955 and Assemblies as as Assembly Bill No. proponents of House pro- Assembly 289 in viewed the and House Bill No. legislation entirely light. in an different However the posed legislative approval both manifests by taken Assemblies action it read at all times reads and as has now of section interpretation applica- also of court’s since 1895 and opinion in this court’s provisions of such section tion the Wilson case. course, that neither of law or elementary, of courts
“It is marriage. power power dissolve The inherent any have equity statutory.” Emphasis supplied. purely a divorce decree Pac. Rumping, 36 Mont. v. Rumping N.S., L.R.A., 1197. marriage have a hut courts may dissolve alone
“The courts only power decree power so. to do inherent no granted either It is III, 1. art. sec. Const. derivative. (Emphasis statute.” 11, or Constitution, VIII, see. art. 190, 215, 182 120 Mont. Crenshaw, v. Crenshaw supplied.) 490. in this coun- law of divorce of the general principle is a “It equity, possess powers law courts, either of try that the author- statute; and therefore are conferred except such as must he in that class of cases ity the actioh. looked elsewhere.” it cannot he statute, found 39 Wis. Hopkins, Hopkins (Emphasis supplied.) *49 Court, Wooten v. District To same effect see State ex rel. supra, page at 234. page 57 Mont. 189 Pac. judicial possess this state powers
It is courts of they expressly exercising powers prohibited are properly department govern- belonging legislative ment. Montana, Constitution of art. IV. amend-
If sections 21-137 and axe to be R.C.M. by judicial by legislative ed let it be done enactment —not 93-401-16, 1947. construction. Sections 93-401-15 and Respondent MONTANA, STATE OF Plaintiff v. F. C. Appellant. BOOTH, Defendant No. 9878. 1104. May 27, Aug. Submitted 1958. Decided