Kane v. Kane

165 P. 457, 53 Mont. 519, 1917 Mont. LEXIS 53

• Court: Montana Supreme Court
• Decided: May 15, 1917
• Docket: No. 3,767
• Status: Published

Opinion

MB. JUSTICE HOLLOWAY

delivered the opinion of the court.

On April 10, 1915, Bichard H. Kane and Margaret Kane, his wife, entered into a separation agreement which, among other things, provided that the wife, in consideration of $1,500 paid to her, relinquished all claims against the husband and his property, and agreed to support, maintain and educate the minor child, the issue of the marriage, at her own proper expense and without further cost or expense to the father. On the same day the wife was awarded a decree of divorce on the ground of extreme cruelty, but no mention whatever was made of the child. The father undertook to visit the child, but was prevented by the mother, and on May 20, 1915, he petitioned the court to modify the decree so as to permit him to see the child under such regulation as the court might impose, and to prohibit the mother from removing the child from Glasgow, where both parents then resided. In response to an order to show cause the mother answered, pleading the settlement agreement and alleging that it was understood by both parties to it that the mother was to have the exclusive custody of the child, and that the father was not to enjoy the privilege of visiting it; that the father’s visits are intended to and do annoy and vex the mother, and that the father is not a fit or proper person to associate with a child of such tender years. The answer concludes with a prayer that the father’s petition be denied, that the decree be modified so as to require the father to contribute to the support of the mother and child, and that the father be compelled to pay an attorney fee on account of the supplemental proceedings. At a hearing had, the father and mother testified at length. The court denied the father’s petition, but made no order upon the counterpetition of the mother. Prom the order made, this appeal is prosecuted.

There is not any controversy over the rules of law applicable, and practically no dispute as to the facts developed at the hearing. While there is some evidence which reflects unfavorably upon the father, it seems reasonably certain that it could not have been deemed sufficiently prejudicial of itself to warrant the order which, in effect, denies the father the right to see or communicate with his child altogether. As we understand the testimony, the mother’s objection to the father’s visits is not grounded upon the latter’s moral unfitness to associate with the child, but rather upon the fact that such visits annoy her and interfere with her work, and particularly upon the theory that, since under the separation agreement she is compelled to support the child, the father has no right to visit it so long as he does not contribute to its maintenance, and it must have been this theory which found favor with the court.

We are unable to agree with counsel for respondent as to the character of the proceeding instituted by the father in filing his

[1] petition in the court below. Whatever may have been his intention in the premises, what he actually did was to invoke the jurisdiction of the court to modify the divorce decree so as to provide for the custody, control and education of the child (subjects omitted altogether from the decree as originally rendered), as authorized by section 3678, Revised Codes. It would be difficult to conceive of a legal proceeding to regulate the father’s visits to the child, independently of an order providing for its custody and control. Likewise the counterpetition of the mother, in legal effect, had the like purpose in view. It invoked the jurisdiction of the court to modify the decree so as to provide for the support and maintenance of the child. Under these circumstances, the welfare of the child should have been the paramount consideration with the court. (Brice v. Brice, 50 Mont. 388, 147 Pac. 164.)

[2] Though the separation agreement is binding upon the parties to it and regulates their rights and obligations inter sese, it is not binding- upon either the child or the court. If its provisions for the care of the child are inadequate or become inadequate, the father may be called upon to supplement them by further contributions, notwithstanding the agreement by the mother releasing him from further costs or expenses. The child is the ward of the court, and, even if the parents agreed that the father should not enjoy the privilege of seeing his offspring, the court may nevertheless authorize him to visit it if the interests of the child will be thereby promoted.

The evidence does not support the mother’s contention that the father relinquished his right to see the child, or that she understood that he agreed to do so, and that such understanding on her part was a substantial inducement to her to enter into the separation agreement. She testified that though the terms of the agreement were discussed fully beforehand, she did not know that she was to have the custody of the child until the agreement was finally submitted for her signature.

[3] The conditions under which the father’s visits may be made, the time, place and duration of them, his conduct during such visits, and the extent to which he may have the child in his custody, are all proper subjects for regulation by the court. It cannot be said that by the modification sought, the father gains a distinct advantage without any concomitant burden. When he submitted to the jurisdiction of the court, he was there for any proper order the court might make, and if the court requires him, as a condition precedent to his right to visit his child, that he make further reasonable contributions to its support, he will not be in any position to complain.

[4] Since both father and mother applied for such modification of the decree as would provide for the child’s welfare as well as secure them in the rights to which they deem themselves entitled, and since it is apparent that the provisions of the contract are inadequate for either purpose, we think the court was called upon to make some appropriate order to meet those ends. Unless it can be said with reasonable certainty that the father is morally unfit to associate with the child, the dictates of humanity call for such regulations as will permit him to see his own offspring. “It must be borne in mind that the tie between parent and child is one of the most binding in human life, one which the law of nature itself has established. No legislation, no judicial interpretation of legislation, should lightly disregard the reciprocal duties of this relationship.” (State ex rel. Giroux v. Giroux, 19 Mont. 149, 47 Pac. 798.)

In our judgment, this record presents a case wherein the court failed to exercise its discretion when it should have done so, rather than a case wherein it abused its discretion.

[5] While the court might, with propriety, forbid the mother to remove the child from the jurisdiction of the court, there was no such showing made, if indeed there could be, which would justify the court in compelling the mother to reside permanently in the same city as the father may choose as his place of residence.

The order is reversed and the cause is remanded, with directions to the trial court to take such further proceedings as will result in a proper modification of the decree, in conformity with the views herein expressed. Reversed and remanded. .

Mr. Chief Justice Beantly and Mr. Justice Sanner concur.