MR. JUSTICE CASTLES:
This is an appeal by defendant, a divorced father, brought to reverse an order refusing to limit the residence of his children to Helena, Montana. The order continues custody of children in the plaintiff mother, without residence limitation, allows her costs and counsel fees, and conditions the father’s right to visit the children upon his payment of $80 monthly for their support, promptly in the future as it shall fall due.
The father is appellant, the mother respondent. They insist that their concern is solely for the welfare of their children. The record proclaims their discord, but to some extent discounts [319]*319their interest. The sanctity of their marriage and the security of their children have been all but spent in bickering and dispute. It is too late for proper solution. The court must do the best it can. Although the “state makes itself a party to every marriage” (Franklin v. Franklin, 40 Mont. 348, 106 Pac. 353, 354, 26 L.R.A., N.S., 490) the state’s interest as parens patriae is but cold comfort to children.
The children are four, one born July 5, 1946, one September 30, 1948, one December 12, 1949, and one January 18, 1952. Beginning with the divorce when the oldest child was eight years of age, although custody was decreed to the mother, residing in Helena, these children were first cared for by the paternal grandmother, in Nevada, then were taken to Texas and elsewhere by their father as he went about the west following construction work. How he cared for them during the time is not shown. Finally they were returned to Helena, Montana, and watched over by a kindly baby sitter while their mother worked. For the last four years they have known only a broken home. The record indicates that neither parent has remarried, that the children are still in Helena, Montana, and that reduced support money has been paid.
The parents of these four children were married in Par-won, Utah, December 23, 1944, moved to Helena during the year 1949, and were divorced in Lewis and Clark County, Montana in 1954. The father is a carpenter, the mother is a secretarial worker. The mother filed for divorce, alleging mental cruelty. She asked no alimony. The record implies that the mother was planning another marriage, never completed. The father was personally served, but did not appear. The mother was awarded custody of the four children, subject to “the right in the defendant to visit said children at any and all reasonable times which are agreeable to the plaintiff and which will not, in plaintiff’s opinion, be detrimental to the children”, $150 monthly payable through her for child support, costs and counsel fees. She -was her only witness. The decree was given and entered by George ~W. Padbury, Jr., [320]*320then a judge of the first judicial district. It is dated June 23, 1954.
Two days after the decree was entered, through counsel he then retained but no longer in the case, the father moved to set aside the default, alleging inadvertence and swearing, through his then attorney’s affidavit, that he had been misled by his wife’s then counsel. On hearing, he was not sustained. Eventually the wife’s then attorney withdrew from the case and waived the fee decreed to him. This proceeding was heard by the Honorable William R. Taylor, called in from the third judicial district. Judge Taylor found that the wife’s then attorney had attempted to reconcile the parties but that the husband had refused reconciliation and had written the wife to proceed with the divorce. Judge Taylor’s order is dated August 28, 1954. From it no appeal was taken.
As stated, the decree was awarded to the mother and was entered June 23, 1954. With the exception of $125.76, paid into court on September 19, 1955, to purge himself of contempt, the father contributed nothing to the mother toward the support of the children until after the child support money had been reduced on September 30, 1955, from $150 to $80 per month. This reduction was ordered by the Honorable Jack R. Loucks, judge of the fifteenth judicial district, called in to hear further proceedings between the parties. Judge Loucks also ordered that “the Defendant’s right of reasonable visitation is made contingent upon the payment of $80 per month to said Plaintiff for the support, care and maintenance of said minor children. In the event the Defendant does not comply with the payment as herein set forth he is without right to visit said children at any time or place.”
Present counsel for the respondent wife argue that the time has passed to appeal this order conditioning visitation upon prompt payment of child support money. This is irrelevant. Generally the court’s jurisdiction is continuing in child custody matters (R.C.M. 1947, sections 21-137, 21-138) and, [321]*321specifically, the present appeal is taken from a later order entered by Judge Loueks on February 4, 1956.
The foregoing will suffice for review of a weary record of legal moves, accusations, charges and countercharges reflecting little credit upon the parents and even less solicitude for the welfare of their children. We have read it all.
On December 9, 1955, the divorced husband filed the motion for modification out of which this appeal has developed. He charged that the mother contemplated taking the children to reside with her in California. On this allegation he moved for an order restricting the residence of the children to the City of Helena, because, so he said, he could not visit them in California while conducting a construction business he said he proposed to commence in Bast Helena, with the earnings of which he said he intended to support himself. He concluded that any change in the residence of the children would prejudice their welfare. We are convinced neither by the father’s logic nor by his conclusion. Primarily he urges his own convenience.
The mother countered with a demand that the father’s visits to the children at her residence in Helena be limited to a day and time certain, and preferably not at mealtime. She suggested that the construction plans were phonies, claimed the frequency of the father’s visits was in itself unreasonable, and pointed out that if the father was as anxious to work as he alleged he could more easily secure employment in California where he was complaining she intended taking the children. The mother added that as to her moving anywhere out of Helena, she did not know what she intended to do. The record supports her.
In other testimony the mother charged that once during the interim between the divorce and the permanent return of the children to Montana, the father suddenly appeared one night in Helena at the mother’s residence, told her the older children were outside in his car, thrust the youngest child into her arms, struck her with a homemade sap, took the child [322]*322back and as suddenly departed. Countering, the father attacked the mother’s moral fitness for custody of children and testified she once kicked him in the back.
Charged with the well-being of four children, faced with the dilemma implicit in a record for which the foregoing samples will more than suffice, and struggling for a proper solution no longer to be found, the court continued custody in the mother who, in any event, then had an established abode and a kindly baby sitter, refused to restrict residence of the children and limited visitation by the father in an order obviously as unsatisfactory to the district judge who felt compelled to issue it in such detail as to the father who brings this appeal.
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MR. JUSTICE CASTLES:
This is an appeal by defendant, a divorced father, brought to reverse an order refusing to limit the residence of his children to Helena, Montana. The order continues custody of children in the plaintiff mother, without residence limitation, allows her costs and counsel fees, and conditions the father’s right to visit the children upon his payment of $80 monthly for their support, promptly in the future as it shall fall due.
The father is appellant, the mother respondent. They insist that their concern is solely for the welfare of their children. The record proclaims their discord, but to some extent discounts [319]*319their interest. The sanctity of their marriage and the security of their children have been all but spent in bickering and dispute. It is too late for proper solution. The court must do the best it can. Although the “state makes itself a party to every marriage” (Franklin v. Franklin, 40 Mont. 348, 106 Pac. 353, 354, 26 L.R.A., N.S., 490) the state’s interest as parens patriae is but cold comfort to children.
The children are four, one born July 5, 1946, one September 30, 1948, one December 12, 1949, and one January 18, 1952. Beginning with the divorce when the oldest child was eight years of age, although custody was decreed to the mother, residing in Helena, these children were first cared for by the paternal grandmother, in Nevada, then were taken to Texas and elsewhere by their father as he went about the west following construction work. How he cared for them during the time is not shown. Finally they were returned to Helena, Montana, and watched over by a kindly baby sitter while their mother worked. For the last four years they have known only a broken home. The record indicates that neither parent has remarried, that the children are still in Helena, Montana, and that reduced support money has been paid.
The parents of these four children were married in Par-won, Utah, December 23, 1944, moved to Helena during the year 1949, and were divorced in Lewis and Clark County, Montana in 1954. The father is a carpenter, the mother is a secretarial worker. The mother filed for divorce, alleging mental cruelty. She asked no alimony. The record implies that the mother was planning another marriage, never completed. The father was personally served, but did not appear. The mother was awarded custody of the four children, subject to “the right in the defendant to visit said children at any and all reasonable times which are agreeable to the plaintiff and which will not, in plaintiff’s opinion, be detrimental to the children”, $150 monthly payable through her for child support, costs and counsel fees. She -was her only witness. The decree was given and entered by George ~W. Padbury, Jr., [320]*320then a judge of the first judicial district. It is dated June 23, 1954.
Two days after the decree was entered, through counsel he then retained but no longer in the case, the father moved to set aside the default, alleging inadvertence and swearing, through his then attorney’s affidavit, that he had been misled by his wife’s then counsel. On hearing, he was not sustained. Eventually the wife’s then attorney withdrew from the case and waived the fee decreed to him. This proceeding was heard by the Honorable William R. Taylor, called in from the third judicial district. Judge Taylor found that the wife’s then attorney had attempted to reconcile the parties but that the husband had refused reconciliation and had written the wife to proceed with the divorce. Judge Taylor’s order is dated August 28, 1954. From it no appeal was taken.
As stated, the decree was awarded to the mother and was entered June 23, 1954. With the exception of $125.76, paid into court on September 19, 1955, to purge himself of contempt, the father contributed nothing to the mother toward the support of the children until after the child support money had been reduced on September 30, 1955, from $150 to $80 per month. This reduction was ordered by the Honorable Jack R. Loucks, judge of the fifteenth judicial district, called in to hear further proceedings between the parties. Judge Loucks also ordered that “the Defendant’s right of reasonable visitation is made contingent upon the payment of $80 per month to said Plaintiff for the support, care and maintenance of said minor children. In the event the Defendant does not comply with the payment as herein set forth he is without right to visit said children at any time or place.”
Present counsel for the respondent wife argue that the time has passed to appeal this order conditioning visitation upon prompt payment of child support money. This is irrelevant. Generally the court’s jurisdiction is continuing in child custody matters (R.C.M. 1947, sections 21-137, 21-138) and, [321]*321specifically, the present appeal is taken from a later order entered by Judge Loueks on February 4, 1956.
The foregoing will suffice for review of a weary record of legal moves, accusations, charges and countercharges reflecting little credit upon the parents and even less solicitude for the welfare of their children. We have read it all.
On December 9, 1955, the divorced husband filed the motion for modification out of which this appeal has developed. He charged that the mother contemplated taking the children to reside with her in California. On this allegation he moved for an order restricting the residence of the children to the City of Helena, because, so he said, he could not visit them in California while conducting a construction business he said he proposed to commence in Bast Helena, with the earnings of which he said he intended to support himself. He concluded that any change in the residence of the children would prejudice their welfare. We are convinced neither by the father’s logic nor by his conclusion. Primarily he urges his own convenience.
The mother countered with a demand that the father’s visits to the children at her residence in Helena be limited to a day and time certain, and preferably not at mealtime. She suggested that the construction plans were phonies, claimed the frequency of the father’s visits was in itself unreasonable, and pointed out that if the father was as anxious to work as he alleged he could more easily secure employment in California where he was complaining she intended taking the children. The mother added that as to her moving anywhere out of Helena, she did not know what she intended to do. The record supports her.
In other testimony the mother charged that once during the interim between the divorce and the permanent return of the children to Montana, the father suddenly appeared one night in Helena at the mother’s residence, told her the older children were outside in his car, thrust the youngest child into her arms, struck her with a homemade sap, took the child [322]*322back and as suddenly departed. Countering, the father attacked the mother’s moral fitness for custody of children and testified she once kicked him in the back.
Charged with the well-being of four children, faced with the dilemma implicit in a record for which the foregoing samples will more than suffice, and struggling for a proper solution no longer to be found, the court continued custody in the mother who, in any event, then had an established abode and a kindly baby sitter, refused to restrict residence of the children and limited visitation by the father in an order obviously as unsatisfactory to the district judge who felt compelled to issue it in such detail as to the father who brings this appeal. This order is dated February 2, 1956.
The order concludes:
“2. That the plaintiff be awarded the care, custody and control of the minor children * * with the right in the defendant to visit said children in the custody of plaintiff on Saturday of each week for as long as he wishes between the hours of 1:00 o’clock p. m. and 8:00 o’clock p. m., and, also on the birthdays of each of said children and on Christmas when such days do not fall on Saturday, except when defendant is prevented from making such visits by the illness or absence of the children from their place of residence, in which events defendant shall have the right to make up such lost visits by a second visit in subsequent week or weeks on a day of his selection, on notice to plaintiff, to the end that defendant shall have the right to visit said children in plaintiff’s custody fifty-two (52) times each year and on their birthdays and on Christmas when such days do not fall on Saturday; provided, however, that defendant’s right of visitation is made contingent upon the payment of $80 per month to plaintiff for the support, care and maintenance of said minor children. In the event that Defendant does not comply with this Court’s order * * * he is without right to visit said children at any time or place. ’ ’
Three specifications of error are raised: (1) The allowance [323]*323by the court of respondent’s costs and counsel fees in an order modifying child custody; (2) the refusal of the court to restrict. residence of the children to its jurisdiction; and, (3) the order of the court conditioning appellant’s right of visitation upon his prompt payment of money decreed for the support of his children. The first two of the three specifications are controlled by a recent decision of this court; the third is controlled by two earlier decisions for this state. We discuss the specifications seriatim.
(1) Allowing costs and counsel fees on motion to modify child custody.
Appellant objects to paying respondent’s costs and counsel fees. This specification of error would have been controlled by McDonald v. McDonald, 124 Mont. 26, 218 Pac. (2d) 929, 15 A.L.R. (2d) 1260, with annotation at page 1270, until that decision was overruled by Wilson v. Wilson, 128 Mont. 511, 278 Pac. (2d) 219. The McDonald decision allowed costs and counsel fees in child custody modifications under the continuing jurisdiction of the court in aid of the welfare of the ° children and under its inherent equitable power. (See cited opinion for authorities.) The Wilson decision denied costs and counsel fees in similar circumstances on the theory that the divorce was no longer pending, citing R.C.M. 1947, sections 21-137, 93-8706; McVay v. McVay, 128 Mont. 31, 270 Pac. (2d) 393. Briefs of counsel recognize the opposed position of the two decisions.
The opinion we have now rendered in Trudgen v. Trudgen, 134 Mont. 174, 329 Pac. (2d) 225, overruling Wilson v. Wilson, supra, and reinstating McDonald v. McDonald, supra, is authority for sustaining the order of the district court allowing costs and counsel fees to the respondent mother. This opinion should be consulted for citation of authorities equally applicable here. No further discussion is presently required. The record reflects no change in the circumstances of the children. The circumstances of the parents, their personal intentions and their bickering, remain about the same. In any event, [324]*324these are relevant only as they affect the children. Nothing before us suggests that the lot of these children would be in any manner improved by any change in their custody. We find no error.
(2) Restricting residence of children in custodia legis.
The immediate proceedings, in which this appeal is taken, originate with appellant’s application for an order requiring that the respondent mother “shall not remove said children from the City of Helena, Montana, or from the jurisdiction of this [first judicial district] court or from the State of Montana.” This application was denied.
The effect of R.C.M. 1947, section 21-138, is to make all child custody orders interlocutory in nature, discretionary with the district court, and conditioned by what the district court in its sound discretion believes to be for the well-being of the children concerned. Limitations on residence of children are to be imposed only in furtherance of the best interests of the children; inconvenience to parents is irrelevant. This is an elementary principle, repeated in the recent decision of Trudgen v. Trudgen, supra, and controlling here. See" authorities there cited, including State ex rel. Graveley v. District Court, 119 Mont. 276, 174 Pac. (2d) 565; Aiken v. Aiken, 120 Mont. 344, 185 Pac. (2d) 294; and Barham v. Barham, 127 Mont. 216, 259 Pac. (2d) 805.
• We find no abuse in the discretion exercised by the district court in refusing to restrict the residence of the children. Their well-being is not so much dependent upon continuance or change of their present residence as upon change in their parents’ hearts. It is the children of broken homes who suffer most. “Each case must be decided upon its own peculiar facts and circumstances.” Haynes v. Fillner, 106 Mont. 59, 71, 75 Pac. (2d) 802, 806. As this court observed during argument on the present appeal, “sometimes there is no proper solution — you just do the hest you can.” We find no error.
(3) Conditioning right of visitation upon prompt payment of money decreed for support of children.
[325]*325We consider tlie provisions we have quoted from the original divorce decree which subjected the father’s right of visitation to the mother’s decision as to what was not reasonable, a ready-made source of dispute. We quote with approval from 2 Nelson on Divorce and Annulment, section 15-26, pages 206, 208, (2d ed.) : “* * * the order [of visitation] should not make the right of visitation contingent upon an invitation from the party having the custody of the child, or require the consent of one parent for the other to visit the child, or provide that the parent shall have the right of visitation only at such times as may be convenient to the * * * [other parent], thereby leaving the privilege of visitation entirely to the discretion of the party having the child in custody.” Fortunately visitation provisions of the original decree have been superceded by a modifying order.
We cannot, however, entirely concur that “Neither should a father’s right of visitation be made conditional upon his payment of periodical installments of alimony # * * irrespective of however effective it might prove to be as a collection agency.” 2 Nelson op. cit. supra at 208. But see Sweat v. Sweat, 238 Iowa 999, 1009, 29 N.W. (2d) 180, 185, at least to the extent that “alimony” is decreed for support of children.
Although R.C.M. 1947, section 21-137, uses the term “alimony” generically to mean “any money necessary to enable the wife to support herself or her children,” the distinction we here intend is that made in R.C.M. 1947, section 21-139, which provides that “upon proof of the remarriage of a divorced wife, * * * the court must order a modification of the judgment by annulling the provisions of the judgment directing the payment of money for the support of Jhe wife.” It is customary in this state to refer to the payments which are terminated by the wife’s remarriage as “alimony” and the payments for support of children, not terminated by the wife’s remarriage, as “maintenance money,” “support money” or as “money for child support,” etc. The distinction is practical and readily understood.
[326]*326Recognizing this distinction, and referring here only to money intended for child support, we take the view that, subject to honest inability to pay, if a parent cares too little for the children to support them, that parent cares too little for the children to see them. However, the law, the children must eat. He who seeks equity must do equity.
With or without decrees, modifying orders, prosecutions for non-support, undertakings, contempt citations and.uniform reciprocal statutes for child support, as a practical matter the necessities of life must be provided. Where inability to support is honest fact and neither fault nor subterfuge, nonsupport is seldom brought to the attention of the courts. Animus is lacking, inability is genuine and citation is futile.
To the extent they are able, parents must provide necessaries for their children. R.C.M. 1947, section 61-115. Failure to do so renders parents liable under long standing civil and criminal statutes (R.C.M. 1947, section 61-125, 61-126), and subject to the provisions of the uniform act for Reciprocal Enforcement of Support, approved in this state March 5, 1951, and appearing as R.C.M! 1947, sections 94-901-1 through 94-901-18. Clearly the law intends that parents shall support their children, as the law likewise intends that children shall support their indigent parents. R.C.M. 1947, section 61-124. The state is a parent by proxy. It can only do the best it can.
The foregoing are ancient principles worded in modern statutory form stemming from the Decalogue and the Christian gospels fundamental to the court’s continuing jurisdiction and inherent equitable power in matters involving the well-being of children of parents divorced. Such principles are what Mr. Justice Brewer termed “organic utterances. They speak the voice of the entire people.” Church of the Holy Trinity v. United States, 143 U. S. 457, 470, 12 S. Ct. 511, 516, 36 L. Ed. 226 decided February 29, 1892.
“Thus defendant’s obligation to pay the required money [child support] is not simply an outgrowth of the divorce suit * * it is a social and parental obligation imposed by law. [327]*327The infant became a ward of the respondent court when its parents submitted themselves to the jurisdiction of the respondent court for an adjudication of their domestic difficulties * * *” State ex rel. Lay v. District Court, 122 Mont. 61, 72, 198 Pac. (2d) 761, 767. (Emphasis supplied.)
We find no abuse of discretion in that portion of the district court’s order of February 2, 1956, conditioning appellant’s right of visitation upon his prompt payment of money for the support of his children. We have held, and we repeat, that where, as here, certainly up to the time support money was reduced from $150 to $80 monthly (an amount the testimony shows is approximately the monthly wage of the baby sitter), defendant “has deliberately, wilfully and continuously refused to make the payments required by the decree, * * '* he is not entitled to petition for modification of the decree * * * unless the best interests and welfare of the children require the modification.” Kelly v. Kelly, 117 Mont. 239, 244, 157 Pac. (2d) 780, 782. (Emphasis supplied.) This ruling certainly was applicable to appellant from the date of the divorce decree until the children were returned to Montana, and under comparable circumstances will be equally applicable again.
There is another decision even more in point. Some forty years ago this court, speaking through Mr. Justice Holloway, announced as law for this state that “conditions under which the father’s visits may be made, the time, place, and duration of them, his conduct during such visits * * * are all proper subjects for regulation by the court. * * * When he submitted to the jurisdiction of this court, he was there for any proper order the court might make, and if the court requires * * * as a condition precedent to his right to visit his child, that he make further reasonable contributions to its support [the dispute was over payments under a separation agreement; ability or inability to make the payments was not an issue in the case], he will not be in any position to complain.” Kane v. Kane, 53 Mont. 519, 525, 165 Pac. 457, 459.
[328]*328On the third specification of error, under the circumstances of this case, and so long as the father continues able to make the reduced $80 monthly payment ordered by Judge Loucks for the support of the children, we find no impropriety in the ruling of the district court.
The order is affirmed.
MR. CHIEF JUSTICE HARRISON, and THE HONORABLE GEORGE J. ALLEN, District Judge, sitting in place of MR. JUSTICE BOTTOMLY, concur.