*1 ANDER- BOTTOMLY, ANGSTMAN, MR. JUSTICES SON, concur. concurring). (specially
MR. ADAIR: CHIEF JUSTICE public the laws of this No school official or board above All arbitrary state. None are answerable powers. is clothed with Gladys people teacher, to the and their laws. The dismissal of the Hovland, the dis- express was in violation of her contract with arbitrary brought trict. It action of the school about superintendent. noth-
Arbitrary any theory. There is action un-American on supports arbitrary in the which dismissal of a teach- law superintendent er. Neither the trustees nor the ca- school priciously arbitrary powers dismissal in exercise violation rights. a teacher’s contract wronged
Here teacher exhausted the remedies available justice her under the school took Failing code. to obtain she next her controversy jury district heard courts. There a controversy gave the entire and then her a verdict judgment. money judgment were was entered verdict just proper under the facts in this case and I concur in their affirmance. WILSON, ANDREW
ALICE I. Respondent, Plaintiff Appellant. WILSON, D. Defendant No. 9310. May 27, 1954. Decided December
Submitted January Rehearing 11, 1955. Denied (2d) 219. *2 Wuerthner, Messrs. Murch & Mr. Wuerthner, John J. Great Falls, appellant.
Mr. Robert Nelson, J. Mr. Conklin, Richard B. Joseph Mr. R. Marra, Mr. N. J. Thelen, Falls, respondent. Great
Mr. Julius P. argued orally. Wuerthner and Mr. Nelson MR. CHIEF JUSTICE ADAIR:
Appeal from an order modifying the custodial of a decree awarding custody of three minor children.
By complaint September 11, 1950, filed in the district court *3 of County, Montana, Cascade plaintiff sought the Alice I. Wilson an absolute divorce from her husband, defendant, the Andrew Wilson, D. grounds on cruelty the of extreme also and she sought permanent the custody of mar- the three children of the riage, daughter viz: Irene Wilson, aged years, Lois a then three Ridley Wilson, Maral daughter aged years a five Errol then and David Wilson, aged eight years. son then
The defendant denying charges cruelty filed an answer the of and cross-complaint sought marriage dissolution of and the custody of the children. cross-complaint
Plaintiff reply being- filed a to the and issue joined the cause was sitting jury. tried to the court without a
Following the the court on December made and findings conclusions fact, filed written of law and decree. findings its court found: of fact the That defendant had guilty cruelty plaintiff charged
been of extreme toward complaint; plaintiff that the neither nor the then defendant proper a fit place keep children; had which to the three that the aunt, Wilson, being a sister of the children’s Alice Miss she custody of the defendant, requested that she awarded be children; that aunt had home and furnish good said could aunt then place children with a fit to live and that such proper care, custody a fit and control person was to have children. findings plaintiff court concluded From such Alice I. Wilson was entitled to a decree of absolute divorce care, custody and control of all the children should aunt, subject to their however reasonable visitation awarded privileges the father.
Judgment. findings its the trial court concluded From marriage where- plaintiff to have dissolved entitled it ad- wherein upon made caused to be entered judged : * * * plaintiff granted “1. a decree That the be and she is of absolute divorce from the defendant. minor care, custody
“2. That of the three control hereto, Errol Irene, Ridley Maral Lois children of Wilson, aunt, subject Miss how- are awarded to Alice David periods the defendant herein. ever reasonable visitation taking with her plaintiff to have the children Sunday on from ten home of said Miss Alice Wilson from the how- day, provided, six of said m., p. a. until m. o’clock o’clock kept by the said Alice ever, day said on that that the children are and in a fit and surveillance and control I. Wilson under her ' proper place. plain- $60.00 sum to the pay “3. That the defendant January 1, 1, 1950 to from December period tiff herein for the dur- 1951 as and for and maintenance time.” period defendant satis- plaintiff and the were both the Apparently *4 asked for a decree of judgment rendered. Each had with the fied judgment the the of en- was character such absolute tered. six months the above decree within taken from appeal was
No entry thereof, after the R. M. subd. Sec. 1, or at all and the decree and is final so far as concerns became the complete marriage. and absolute M. dissolution of the R. C. 93-8706; McVay State ex Court, rel. v. District Mont. (2d) 840, 845, Pac. Rep. 169, 176, 177; 8 St. Mc Vay McVay, Rep. 11 St. relations, aunt, severed all martial Miss Alice —the Wilson, given was and she custody assumed care, the and control three children, paid the defendant the speci- —the fied sum and amount as ordered in the he decree and did and performed things required all acts and himof such decree.
On 21, 1952, November being long decree had become final years entry almost two thereof, plaintiff, after the appearing by other counsel represented than had her in her ac- tion for divorce, filed in district County court of Cascade petition seeking modify provisions the custodial so to award custody, to her the care and control of the three children. petition plaintiff represented for modifications the aunt, children’s Wilson, Miss Alice at time filing such
petition, poor health that she was no longer physical- ly able to children Upon care or attention. the filing petition an against order to show cause directed the de- fendant was issued and served him to he which inter- posed a quash motion to which motion Hearings was disallowed. judge, were held before sitting jury, without a at which numerous witnesses on the respective parties testified behalf of appeared and it there testimony from uncontradicted that subse- quent to filing plaintiff’s Miss petition Wilson, Alice aunt whom of the children had un- been awarded original decree, der had died from the illness from she was suffering plaintiff’s at petition the time was filed. hearing testimony considering
After the various witnesses, trial court on February made and enter- modifying original ed order custodial *5 custody the of her by plaintiff to tbe mother awarding custody minor son awarding the of the daughters, by minor two — her father, by allowing plaintiff to the defendant — instituting with in connection fees for services rendered provisions governing proceeding modify to the prosecuting the support by ordering custody the of the children and certain father payments by made defendant to the clerk to be daughters, trial two minor for the of defendant’s court Lois Wilson. Ridley Maral Wilson and Irene order so from the aforesaid by is the defendant appeal This an made. to motion
At trial defendant’s hearing court denied testi- plaintiff’s proceedings at close of dismiss the made rulings disal- mony. court’s assigns Defendant here as error the and disallow- quash his show cause lowing motion to order in We find no merit proceedings. his motion to dismiss the specification. either evi- petition and her urges plaintiff’s next
Defendant subsequent any change in status or condition dence fail to show decree; prop- personal as making original to the judicata plaintiff matter has become res erty by claimed ac- plaintiff and that if has been refused and denied children, reasonably her visit her the decree to corded contempt proceeding remedy citation resort to custody change apply award hot for modification of the children. is am- is in the there conflict evidence
While there considerable which, believed, if will substantial the record pie evidence awarding the sustain the trial court’s order to his father. The the son daughters to their mother and judge discretion expressly invest trial with much statutes that dis in the exercise of we find no these matters and abuse 21-137, 21- judge. sections trial See cretion Barham. 138, 21-139, and Barham v.
(2d) 805. it was error for asserts that also
Defendant to allow witnesses acquainted plaintiff who had been with periods respective considerable io their opinions time to whether was a fit proper person to have the custody of her minor children. find assign We no merit in the ment. applicable complained rule ap evidence
pearing Evidence, S., 455, page J. where “Opinion ordinary stated: given evidence observ *6 er. The ordinary qualified is if it appears presid observer to the ing judge that he opportunities drawing has had sufficient for proposes inference which he possesses capaci to state and ty necessary make and it.” Citing among to state other cases Knapp, 101, 103, case of Cash v. 112 (2d) Mont. 113 Pac. 343. Again: qualifications ‘‘Whether or not the aof witness to state
his opinion resting is sufficiently established a matter largely court, in the discretion of the trial its there ruling on, as appears Appeal Error, 1604, ordinarily sec. will not be appeal disturbed on unless showing there is a clear abuse. If the qualifications, witness has per some he should be testify.” S., mitted to 32 458(b), C. J. Evidence, page sec. 99. also, 22 J., Evidence, 605, See page 518, citing sec. 65, note Furey, v. 32 Osmers Mont. 81 Pac. and cases from 29 some other states.
Defendant further contends that was error for the trial court to pay order him to former his wife the sum of $150 for for employed represent counsel whom she in petitioning modify for an original order to decree ab- solute divorce such final. decree become ordinarily
It is a fundamental principle party to a one may suit pay not upon litigation expenses be called except adversary of his when and to the extent that some statute may clearly provide indemnity to the winning party by way in the suit. taxable costs that proceedings
It is well settled for purely divorce are statu- tory power only exercises Docotovich, the statute. conferred Docotovich v. 973; Shaw, 122 Mont. (2d) 971, Shaw v. (2d) ; Emery Emery, 525 122 Mont. Pac.
Pac. provide a legislative assembly The state fit to make and saw general specific exception fundamental and to the above make principle by empowering in actions for divorce courts to fees, allowances counsel but while therein to the for 21-137. pending.” “is M. sec. action for divorce R. C. the adver exception general principle to the above sary’s except expressly are allowable in eases counsel fees not supra, rests provided statute sec. for some such as for the martial relation fundamentally upon the existence of ac final and the after a of absolute divorce become no implied then longer tion for divorce is there exists no arising out obligation his former wife former husband to an absolute becomes of their former married state. When ability to thereafter bind her final it of the former wife ends his supplied for former husband necessaries even spouse. erstwhile extending justification
For these reasons there can be no 21-137, supra, situations which exception provided provisions of such clearly do not fall within reasons *7 statute. stautory authority jurisdiction only granted
In this attorneys’ ac money an allowing court for suit or 21-137, 1947, see. tion R. C. M. for divorce is contained 60, 56, page at supra. Docotovich, supra, Docotovich v. page at 21-137, pertinent, pro- is 1947, M. as far here R. sec. as C. judge is the court or pending : “While an action divorce vides for alimony pay to as discretion, require the husband in its or his her or money necessary support wife to herself to enable the * * * During prosecute or action. children, to or defend its his judge may, or or action, pendency of any money alimony pay to as discretion, require the husband necessary prosecution for action and ” * ** Emphasis supplied. maintenance .
It will 21-137, be supra, observed that in the of see. enactment legislative the state assembly phrases “While used the an action pending” pendency is ac “During divorce of such phrases tion”. That such be neither misunderstood nor miscon legislature precaution sep strued took the extra to enact a statute, 1947, 93-8706, R. M. arate sec. wherein it defined and precisely pending. an stated when action deemed be 93-8706,
R. C. provides: M. sec. “Actions—when deemed pending. An pending action is deemed to from the its be time of commencement its upon appeal, until final determination or un til the appeal time for passed judgment unless the is sooner ’’ satisfied.
“Civil in the courts actions of record of this state are com- complaint.” menced filing a R. M.C. see. 93-3001. her on September commenced action for divorce
11,1950, by filing complaint herein and on December the final granting an decree absolute divorce was When entered. six passed months December appeal had with no entered, taken from the 93-8004, decree so sec. subd. the action for divorce ceased and such became, was and is final determination so far as con cerns the provisions action for under specific divorce of R. C. M. 93-8706, supra. Compare McVay ex State rel. v. Court, District supra, McVay McVay, supra. Apparently satisfied were with the the’decree originally given and entered and neither deemed himself or her aggrieved self thereby until long statutory after the time for taking appeal therefrom passed.
It is “while an action for is pending” and “dur- pendency of such action” the court authorized empowered require (not husband) husband the former pay (not wife) money to the wife the former to “enable * * * prosecute expressly or defend the action” as is provided supra. see. *8 11, September
Plaintiff’s action for divorce from passed 1950, entry until six months after decree appeal parties permitted with no In taken. other words when the pass six entry months decree on December to after any therefrom, thereupon without taking appeal the decree a for became final determination and the action divorce ceased pending. be sec. 93-8706. it S., 216, pages *9 by enacted statutes other and different than were legislature. guard judicial leg- To against legislation usurpation of and the legislative assembly islative functions the R. C. M. state enacted 1947, 93-401-15, see. of a provides-. “In the construction * * * judge statute simply the office of the to ascertain therein, not declare what is in terms or in substance contained omitted, to insert what has inserted been or omit what has been Johnson, Grimstad v. pages at 314, 315, 25 A. R. 351 page at requires this court said: “It L. reading supra but casual of section Codes [Rev.
now 21-137], object to ascertain that the Legislature enacting give in it was to the courts discretion- ary power, during pendency to be exercised the action proper by showing application in an for that purpose, compel provide necessary husband to the means prosecute to enable her to or defend the words, action. In other power in this by behalf only conferred the statute is an- cillary to, of, or an incident an action for divorce. This renders necessary conclusion power when the main conferred operative this section has ancillary ceased or incidental power operative also ceases to be cannot be invoked independent wife’s counsel an charge action to the husband. “Upon examination of the decided eases in other states which have provisions, the same similar stautory we find that their agree generally may courts only counsel be allowed pending.” while the divorce action is Emphasis supplied. 21-137, supra,
Under sec. counsel fees be allowed the wife while the divorce action is and not after the decree marriage dissolving the has become final for then the action longer pending, divorce is no sec. 93-8706. It follows that authority district court had no to award attorney’s instituting fees so incurred and prosecuting proceed- these modify ings original seeking long had be- come final. petition
Plaintiff’s and which filed November prompted not a allowance to her of her fee was complaint divorce, purely simply for or- for a but one custody der that It was would her the of the children. simple custody frequently presented that is issue corpus provision habeas is no for the allowance wherein there attorneys’ plaintiff’s petition change of fees. At the time father change of conditions the defendant because obligation his primary had been freed of to contribute to justifying a statute .former wife’s the absence of n it, authority power to lacking allow court was supplemental proceedings and the former wife her fees in these *10 error. making in the award constituted the court’s action by both the ma expressed the authorities cited views and McDonald, 124 in McDonald jority minority and of this court as (2d) 15 A. L. R. as well Pac. 21-137, 93-8706 1947, sections express provisions of R. C. M. the carefully been reviewed 93-401-15, again have supra, sec. 21-137 do not that the of opinion are of the we attorney’s fees of which the defendant award the authorize majority disapprove reason we of the complains for which here McDonald, supra, on holding in McDonald v. opinion and attorney’s to the allowance of former wife provisions of modify the custodial instituted to proceedings longer pending is action for divorce no when the final decree holding in majority opinion and expressly overrule Case, supra. McDonald given and entered order of modification portion That as at- allowing plaintiff and for her $150 February 6, aside, and ordered stricken and vacated torney’s fees is set the district court with directions amend remanded to is cause opinion by this with strik- modification conform its order designated paragraph “Seventh” thereof. all of ing therefrom modification is affirmed. It so order of is As so amended the ordered. FREEBOURN, concur.
MR. JUSTICES BOTTOMLY and dissent- part (concurring MR JUSTICE ANGSTMAN: part). so far foregoing opinion I concur in the result reached custody of it awarding as affirms the order of children. overrules opinion disagree portion
I with that McDonald, 124 Mont. majority opinion in McDonald v. (2d) 15 A. L. R. 1260. That the McDonald (2d) great weight authority is shown supported Case is (2d) seq. 15 L. the annotations in A. R. et As pointed out still pending there a divorce action is the decree of may entered so the court make changes in alimony being of children and that so, an award attorney’s fees for former wife be made under R. M. after the has divorce decree become final. most spoken Likewise courts that have on the sub- ject take majority opinion the view did the in the McDonald Case that the court power inherent to make such an award of fees even without reference to statute. Note L. (2d) See in A. R.
Hence the majority opinion in the McDonald Case is not supported by weight authority clear support- but is also ed the better reason. After a granted divorce has been true that longer are no husband and wife. But where *11 marriage there are children of the the husband and are not complete strangers to each other. The action is still pending un- statute, der our 21-138, sec. may, so the court judgment, make modification affecting custody, care of marriage, may and education the children of the and the court judgment modify respect likewise after its orders with to al- for the of the former lowances wife. R. C. M. sec. 21-139.
Hence under our statute divorce action "pending” with- meaning in the of R. C. M. long so the court authority modify judgment respect. it isn’t If contemplation law, process then what reason- subject it to modification? The upon narrow construction placed the statutes in the dis- opinion majority senting in the and which the McDonald Case opinion adopts, custody herein now the mother’s of chil- makes dependent employ attorney dren ability her financial rule, upon litigation. think, and embark This, I should not be under our statutes is not the rule. I think correct majority opinion in the McDonald Case is strength and that allowing the order fees on holding in that case should be affirmed. I disagree portion opinion Chief also with that acquainted with Justice who had been which holds witnesses opin their periods of time could considerable fit proper person ions' as she to have to whether was subjects agree proper custody of her minor children. I on ordinary J. may given by an observer. C. opinion evidence on the 455, page 94. But there are limitations S., Evidence, sec. give his ordinary observer subject with which an matter 463-471, inclusive, Evidence, sections S., J. conclusion. in review purpose be subserved 103-126. useful would pages No court before analogous questions. This on ing the authorities century question before present has answered turn us. Giroux, 19 Giroux v. rel. State ex ‘‘ following- saying: point by The disposed of the deposi- witnesses whose to several propounded was
interrogatory you the better namely: consider ‘Which do taken, tions were child, said minor of their have care qualified to age, re- years of Giroux, now about seven George L. —relator ground incompetent on the objected to as It was spondent?’ think the court was witnesses. We for a conclusion asked manifestly asked objection. question The sustaining fol- clearly incompetent. conclusion, therefore and was you propounded: ‘State whether also interrogatory lowing *12 525 consider respondent a fit proper person have the care child, George of the said minor Giroux, L. rea- your opinion.’ son for interrogatory While this last ob- less jectionable former, objection it, than the still it asked that ’’ conclusion, properly sustained.
I find ample there was in the record to sustain the evidence trial opinion evidence, court’s order without for that reception reason of this evidence was harmless error.
I think the order court should be sustained its entirety.
MR. JUSTICE ANDERSON:
I Granting right dissent. flexibility this court has the rendering decisions, its I rights nonetheless think that incurred by reason of a former decision cannot be divested we because change choose to our mind. ruling
Under McDonald, McDonald 124 v. 218 Mont. (2d) Pac. (2d) A. L. R. in- the former wife in the stant perfect right cause assume she could seek at- torney’s perfect fees. Likewise her counsel as- had a sume that he could follow the avenue announced in that decision for the fees which he It get. was to seems safe to assume that such was the upon litigant basis of contract which both the and the lawyer proceeded. being
Such I case do not that this can di- believe vest them of acquired ruling. the interest under former Com- pare: Railway Montana Horse Co. v. Products Great Northern Co., 194, 7 (2d) 919; Refining 91 Mont. Oil & Pac. Sunburst Railway Co., (2d) Co. Great Northern Pac. Supply Abell,
As was said Continental Co. v. 95 Mont. unnecessary “It Pac. shown actually placed by reliance was defendants the former de- ’ ’ presumed. cision. thereon will be Reliance changed apply only If those the rule is now to be should arising instant decision is matters and causes after the rendered. notes Divorce, C. J. expenses allowances for of suit is said: “Where are, statute, specifically provided by counsel fees of wife purely usually for it is that her such allowances held by court; al statutory hence such and cannot be extended in the terms of the lowances can be made accordance with statute; ordinary principles not obtain.” equitable do 83, 84, the Hensen, 238 N. W. In Hensen v. Iowa 21- Supreme Iowa, construing a statute similar to sec. Court of in authority is supra, “Unless, therefore, conferred said: attorney money fees statute to award suit court aof to secure a modification application one of child, none be custody of minor subsequent a decree ’’ allowed. E. 172 N. Wallace, Mass. In Wallace v. pay- power the court to make orders correctly that the held expenses pro- to a wife for her counsel fees ments former respect to divorce decree in ceedings for the modification expenses were incurred a fees and child which not does exist divorce had become absolute after decree for in the statutes. unless is found fit, could, if it saw enact legislative assembly While the former her coun- empowering the courts to allow statute modify seeking an order expenses incurred sel long final and long after has become divorce absolute re- pending, the fact ceased to action not enacted such this state have that law makers of mains enactment, the courts should of such and, absence statute into legislative writing functions attempt usurp not