State Ex Rel. Graveley v. District Court of Third Judicial District Ex Rel. Powell County

MR. JUSTICE ANGSTMAN delivered the opinion of the Court. This proceeding invokes the supervisory power of this court to annul and vacate an order made by respondent court modifying a decree of divorce. The salient facts are these: Relator and Alice Myrle Graveley were formerly husband and wife; on October 7, 1942, a decree of divorce was rendered in the district court of Powell county in an action brought by the wife and based upon charges of cruelty; the defendant in the divorce action, relator here, appeared in the action by demurrer but declined to further plead after the demurrer was overruled; the decree awarded the care and custody of Charles Russell Graveley, a child of the marriage, born July 14, 1941, to the mother; required the husband to pay $75 a month alimony and to deliver certain personal property to the wife. The decree recited that “it is expected that there will be another baby born, the issue of such marriage" and ordered that the hospital and medical expense attendant upon the birth of the expected child be paid by the husband. It provided that the mother “shall not, without an order by this court made after reasonable notice to defendant, remove such child from the state of Montana, nor shall she, without a like order from this court made after due notice to the defendant, place such child in the care or custody of some person other than herself.” The decree allowed the husband to take the child into his own home and into his care and custody for one week during each calendar month, and in case defendant be inducted into the military service then the privilege of the custody of the child each calendar month was extended to Rhoda Graveley, the mother of relator. *279 On June 15, 1946, Alice Myrle Graveley filed her petition for modification of the decree in the following respects: First, that the provision for the payment of $75 per month alimony to petitioner be changed to read as being for the maintenance of the minor children. Second, that she be awarded the custody of Dan Marvin Graveley, Jr., born on February 27, 1943, and after the decree of divorce was rendered. Third, that she be awarded temporary alimony for two years at $50 per month. Fourth, that she be permitted to remove the children to the state of' California where she desires to take a two-year course in a beautician’s school. Fifth, that during the hours while she is attending school for the two years, a nursery school in California supervised by a fit and proper person, or some other fit and proper person, may have the temporary custody and control of the children, and after the two-year period of schooling she intended to seek employment in California as a beautician and sought the right to then place the children in the temporary custody of some proper and responsible person while she was working. The court, after a hearing on the petition, granted petitioner the permission to remove to California with her children and ordered relator to pay $125 per month instead of $75 as originally ordered, and ordered relator to pay to petitioner $100 as attorneys’ fee and awarded to petitioner the custody of the child born after the decree of divorce was entered. Is this a proper case for the exercise of the supervisory powers of this Court to review the action of the district court? The order complained of, it is true, is reviewable by an appeal. However, relator contends that the remedy by appeal is inadequate because of the difficulty attendant upon having the children returned to Montana in case the order should be reversed on appeal and in case the mother should decline to abide by the result of the appeal. The mere fact that the ruling might be reviewed on appeal is no ground for withholding the remedy by supervisory control, if the remedy by appeal be inadequate. State ex rel. *280 Regis v. District Court, 102 Mont. 74, 55 Pac. (2d) 1295; State ex rel. State Bank of Townsend v. District Court, 94 Mont. 551, 25 Pac. (2d) 396; In re Weston, 28 Mont. 207, 72 Pac. 512. The ease is one warranting review by this court of the order complained of. It is the contention of relator that the court erred in granting petitioner permission to take the children from the state of Montana. He contends that the petition and the evidence was insufficient to warrant modification of the decree. He contends that in view of the case of State ex rel. Cash v. District Court, 58 Mont. 316, 195 Pac. 549, it is not proper in any case to permit the children to be removed from the state of Montana. That case presented a different question from the one here presented. There it was sought to remove the children from the state before an order was made regarding their custody. Their absence from the state might have deprived the court of power to make an effective order regarding their custody. That ease does not hold that it is improper in any case to permit the children to be taken without the state. The rule throughout the country is to permit the removal when it is to the best interest of the children. In 27 C. J. S., Divorce, sec. 313, p. 1179, it is said: “It is against the policy of the law to permit the removal of the child from the jurisdiction unless its welfare would be better subserved thereby and ordinarily custody should not be awarded to a nonresident or. to one contemplating immediate removal from the state.” Would the welfare of these children be better subserved by their removal from the state of Montana to the state of California ? We shall first consider the case from the standpoint of the allegations in the petition, so far as they have to do with the necessity or advisability of taking the children out of the state of Montana, The petition for modification alleges that petitioner has no trade or profession but has an opportunity to take a two-year course of schooling to become a beautician in the state of *281 California where she may reside alone or with her sister dur-. ing the two-year period and where she may have the children under her personal supervision and control except the hours when she would be attending school, during which time the children would be placed in a nursery school; that after she completes the beautician’s course she will be able to make large sums of money at her profession and will be able to pay for her own care and support and for a portion of the care and maintenance of the children. The petition sets forth the petitioner would agree that even though she and the children are without the state of Montana, the court would have jurisdiction over the children and that she would be willing to arrange that relator might see and visit the children at his own expense, under such arrangement as the court might consider fair and just. It is noted that the petition contains nothing to indicate that the best interests of the children require their removal to' California. The petition is based solely upon the personal desires of the mother to first take a two-year course in school and thereafter to embark upon a career in which she hopes to make large sums of' money. The welfare of the children is not the inducement for the contemplated change but their welfare is affected only by the fact that, as now, they would have the personal supervision and care of the mother when the mother is not in school or attending to the work involved in the business after the two years of schooling. Defendant objected to the introduction of any evidence upon the ground that the petition failed to allege grounds for the modification of the decree. The objection being overruled, evidence was introduced by petitioner which in some particulars amplified the petition. From the evidence it appears that petitioner had been working for the railroad company in Deer Lodge until the time of the hearing when she had been laid off because the company was reducing its force. She had received $175 per month for some months and as much as $214 per month when she was dis *282 charged.. Before she secured employment with the railroad company she worked in the registry office for $115 per month. She lives with her mother and pays rent and pays her for taking care of the children. Her mother is 65 years of age and, according to plaintiff’s testimony, is unable to take care of the children. She said her mother is “heavy and she isn’t able to, chase after them.” In addition to petitioner and her children living with petitioner’s mother, five children of a. deceased sister of petitioner for the past four months have been living with her and their father pays $20 per week for their care. Relator had been in the armed forces from the time of the decree until the latter part of August, 1945. Petitioner received regular allotments of $92 per month which included the $75 per month alimony while relator was overseas. Relator also sent her $100 with which to buy something for herself. Since his discharge he has paid the alimony regularly. Relator is a native of Powell county where his parents still reside. Petitioner allowed the children to visit relator’s folks practically every month while he was in the armed forces. While he was in the armed forces petitioner and her mother went to California with the two children where they remained about one year. She worked during that time and her mother looked after the children. When relator returned from the service she permitted the children to visit him at the G-raveley home for about two weeks but he has never called at her home to see the children. Petitioner testified that there is a beautician’s school in Missoula, Montana, but it would cost her more to take the course there. She was asked whether her sister in California had an apartment for her when she arrives in California and she replied: “She says she has a place — two places. One is a good place and has a very nice apartment, but we will take the one with the business.” She said the arrangement for the nursery school is still to be made. She said: “I still feel it would be best for both of us and even for the children. As they get older — we can’t even speak to each other — they will reflect on it and they will realize.’ ’ Her *283 reason for wanting to go to California and take the two-year course in schooling was so she would have some security in case something should happen to her former husband. The husband offered no testimony at the hearing, but he appeared by counsel who cross-examined petitioner. Petitioner testified that the reason she did not start the beautician’s course while in California and during the time relator was in the armed forces, was because she had hoped for a reconciliation with her divorced husband. As above noted courts will permit minor children to be removed from the jurisdiction of the court awarding their custody when it is to their best interests to do so. If we assume that the record shows sufficient facts to justify a change of residence of these children, there is nothing to indicate that the objectional features of the present residence, if any, may not be obviated by moving to some other point in Montana. The record does not indicate wherein the welfare of the children would be promoted by moving to California. This case is not comparable to those wherein the mother is obligated to move to another state because of her subsequent marriage to another who has a home in another state, as in White v. White, 68 Cal. App. (2d) 650, 157 Pac. (2d) 415; Goade v Goade, 20 Wash. (2d) 19, 145 Pac. (2d) 886, and Kirby v. Kirby, 126 Wash. 530, 219 Pac. 27. Likewise, there is no showing that the health of the children is such that they must be taken to another state. The fact that the children would, for all practical purposes, be denied the companionship and advice of their father is a circumstance to be taken into consideration in weighing the question as to what is best for them. “The family relation and love between a child and its parents constitutes one of the holiest impulses toward good conduct and correct living. It is more than wealth, honors, or power, and we believe that courts should be loath to take any steps, or make any orders, which will prevent the play of this powerful impulse to good *284 action, on the part of the parents for their offspring.” Futch v. Futch, Tex. Civ. App, 299 S W. 289, 292. This is not only an important right of the father but a right which affects the welfare of his boys and should not be taken away except for reasons touching the welfare of the boys. Turner v. Turner, 86 N. H. 463, 169 A. 873. The case of Duncan v. Duncan, 293 Ky. 762, 170 S. W. (2d) 22, 154 A. L. R. 549, permitted the mother to remove children from Kentucky to Pennsylvania. There it appeared that the mother was born and reared in Pennsylvania where her mother, brother, uncle and other near relatives resided. Her relatives had made arrangements to give her financial aid to the extent of $400 a month if she brought the children to Pennsylvania. The appellate court held that it was proper to allow the mother to remove the children to Pennsylvania under the circumstances there involved. Also, in Arnold v. Arnold, 67 Ohio App. 282, 36 N. E. (2d) 430, an order was upheld authorizing the mother who had been awarded the custody of a child to take her from Ohio to Florida because of the fact that she had secured a more remunerative position in Florida, which the court felt would affect the welfare of the child. Here we have no assurance that petitioner will better her financial condition by removing to California. Certainly it will not be bettered for the first two years. Her sister will not be able to give her much help with her children beause she has minor children of her own to look after, her husband being now deceased. The showing here made was not sufficient to warrant removal of the children to California. Courts and judges can never be absolutely certain as to what is best for the future happiness and welfare of minor children. But when it is sought to take them without the state and doubt exists concerning the advisability of so doing, we think those doubts should be resolved against the venture, particularly in the light of the indefinite and uncertain conditions to be encountered with respect to the means of having the children properly cared for in the neighboring state and when *285 the same advantages looked for in the neighboring state are available in Montana. We realize that in a proper ease the. question of whether children should be removed from the state is one that rests in the discretion of the judge of the trial court and with his discretion this court will not ordinarily interfere. However, before a trial judge’s discretion may properly be invoked, there must be some evidence tending to support the conclusion that the welfare of the children would be better promoted by removal from the state. There being no evidence to support this conclusion the order cannot stand. We do not hold that petitioner is forever barred from taking the children without the state but only that the showing here made is insufficient. Nor do we take issue with the sentiments expressed in the dissenting opinion of the enobling influence of a mother’s love and care for her offspring. There is no attempt here to deprive the mother of the care or custody of her children. The only issue here is, has a sufficient showing been made to warrant removal of the children from the state of Montana ? Neither do we attempt to compare the loyalty and devotion of the father with that of the mother toward the children, nor attempt to justify the father’s course of conduct in resisting the mother’s, efforts at reconciliation or his conduct in other respects. The question here is not whether our sympathies are with the mother or with the father, but our sole interest is in the question of what is best for the welfare of the children as shown by the evidence. Were we to allow ourselves to become prejudiced against Mr. Graveley for not taking the stand and testifying or for any other reason it would not follow that we should say that the best interests of the children would be promoted by allowing them to be removed from familiar surroundings and from their playmates in the wide open spaces of Montana and taken to the congested area of southern California there to be placed for the larger part of their waking moments among strangers.' That is an issue separate and apart from the eon- *286 duct of Mr. Graveley or our feeling of sympathy for Mrs. Graveley. Furthermore, as to Mr. Graveley’s failure to testify, we know that lawyers conduct proceedings in behalf of their clients. Lawyers as a rule make the decision as to whether it is necessary or advisable for their client to take the witness stand. Where, as here, applicant failed to produce evidence sufficient to move the discretion of the court, Mr. Graveley’s counsel evidently took the position that there was no evidence requiring refutation on the precise issue as to how the welfare of the children would be promoted by taking them to California. Let it be noted, to, that the suggestion in the dissenting opinion that their removal is but a temporary matter is not borne out by the record. The record reveals that the contemplated migration to California is a permanent affair. The plan is to learn the profession and then practice it in California. The precise testimony on the point was given by Mrs. Graveley-as follows: ”Q. It would be a permanent removal to California? A. Yes, I imagine.” The writ applied for will issue to annul the order so far as it grants plaintiff permission to remove the children from the state. Was the court warranted in modifying the decree so far as it fixes the amount of alimony or maintenance money? The original decree took into consideration the fact that the second child of the marriage would be born after the decree was entered and made an order compelling the father to pay for the hospital expense attendant upon the birth of the child. The decree did not provide for the custody of the child and did not make provision for its support. The additional $50 award now made was sought on the theory that it would be needed in the event that petitioner moved to California. However it is our view that the evidence justifies the award now made since it is shown that petitioner is now un *287 employed and without property or other means of support. Likewise, the award of $100 attorneys’ fees was justified. The writ will issue to the end that the order complained of may be modified to conform to the views herein stated. Relator shall not be entitled 'to costs in this proceeding. Mr. Chief Justice Lindquist and Associate Justices Morris and Cheadle concur.