MR. JUSTICE CASTLES:
This is an appeal by defendant, a divorced father, hereafter referred to as the father, from the last of a series of child custody orders made by the district court of the fourth judicial district in and for Lake County; the order appealed from hav[176]*176ing been entered at Poison, on January 17, 1956. The mother, plaintiff in the divorce action, was granted sole custody of the children and is respondent here. Interim orders divided custody. Sole custody was restored to her by the order appealed from.
Two children of the parties are involved, a girl, Cheryl Lynn Trudgen, born October 9, 1953, and a boy, Leslie Kent Trudgen, born February 25, 1955. It is with their welfare this court is primarily concerned. Thus, other things being equal, custody in the mother is to be preferred because these children are of such tender years. R.C.M. 1947, section 91-4515, subd. 2; Bayers v. Bayers, 129 Mont. 1, 281 Pac. (2d) 506.
To safeguard the welfare of children, but neither to reward nor punish parents, child custody orders are interlocutory in nature and for good cause shown, are modifiable in the sound discretion of the district court. R.C.M. 1947, section 21-138. In the absence of a strong showing of abuse of that discretion, custody orders should not be disturbed on appeal. Pearce v. Pearce, 30 Mont. 269, 76 Pac. 289; Kane v. Kane, 53 Mont. 519, 165 Pac. 457; Ex parte Bourquin, 88 Mont. 118, 290 Pac. 250; Oberosler v. Oberosler, 128 Mont. 140, 272 Pac. (2d) 1005.
The record indicates that, with exceptions no longer material, the parents and their counsel appeared at all hearings. The moral fitness of the parents is not questioned. Nothing before us indicates either has remarried.
The original decree of divorce was entered in Lake County on May 17, 1955. At that time, the parties and all grandparents resided near Poison. The children were then about nineteen months and three months of age, respectively. Custody was decreed to the mother without limitation, subject only to right of reasonable visitation in the father. An attorney’s fee for securing the divorce, costs and support money were allowed to the mother. Support money has since been increased to $90 per month.
The divorce was granted by the Honorable Albert Besan[177]*177con, then one of the two resident judges for the fourth judicial district. Under rules of court for that district, resident judges sit in Lake County on specified week days during half of each year, alternately beginning January 2nd and July 1st. As a consequence, Judge Besancon heard the divorce action and granted the mother sole custody of the children. The Honorable C. E. Comer heard the intervening motions, increased support money and ordered that custody of the older child be divided between the parents. In a subsequent order Judge Besancon restored sole custody of both children to the mother.
About two months after the divorce decree, the mother moved with her two children to Spokane, Washington. The father continued to reside in Lake County, making his home with his parents. His later custody of the older child was. exercised there within these grandparents’ home.
On November 8, 1955, the first order modifying the divorce decree was entered. That order specifically authorized the mother to have her children with her in the State of Washington, where she was then residing. Such order required that she return the older child to Lake County at three months intervals for one week of custody by the father, the first period to begin on February 8, 1956.
While this order was in effect, and during the 1955-56 Christmas holidays, the mother returned with her children to visit in the home of her parents near Poison. During the morning of December 27, 1955, on motion of counsel for the father, supported by statements to the court made by the father’s parents, but with no notice to the mother and over the objections of her counsel of record who was present in court and protested the lack of notice, the decree as modified November 8, 1955, was further modified to give immediate custody of the older child to the father for one week. Under this order the sheriff of Lake County took the older child from its mother during its lunch period and brought the child into court. The child was not yet fifteen months of age. The sheriff described the [178]*178scene at the maternal grandparents’ home as “quite a commotion.”
Later the same day after the mother and her counsel of record, joined by associate counsel retained during the noon hour, had protested to the judge in chambers that the older child had been terrified by what had occurred and that both children had to be returned by December 29th for booster immunization shots, to Spokane, Washington, a distance of some 250 miles and requiring about twelve hours traveltime by public transportation, the court shortened the father’s period of immediate custody of the older child to one day. However, the court ordered the mother to return the older child to Lake County during February 1956 for custody by the maternal grandfather. The maternal grandfather was ordered to deliver the older child at that time to the court so that such order granting the father custody of the child for a period of one week beginning February 8, 1956, together with six days additional time, might be carried out. Much was made in oral argument of a so-called stipulation and agreement as to custody during the 1955-56 Christmas period, but none of this is relevant to the problems at hand.
On January 10, 1956, while the above order was in effect, citation was issued to the father requiring him to appear and show cause why the mother should not have sole custody of both children, reimbursement for expense of travel to a hearing set for January 17, 1956, and allowance of a fee for additional counsel to represent her. Citation was supported by the mother’s affidavit. The father traversed by counter-affidavit. As with the so-called stipulation, recital of charges and counter-charges here would serve no purpose.
At the January 17th hearing the court allowed the mother $50 for her travel from Spokane and loss of time, $100 for additional counsel fees, and restored sole custody of both children to her as originally had been decreed. The modifying order specifically recited that the mother would have the [179]*179“right and privilege of residing wherever she may select” subject to reasonable visitation by the father.
To support a modification order within three weeks of a prior modification which had been ordered less than seven weeks following a previous modification, counsel for the mother argued that nervousness induced in the older child by changes of custody was in itself a change of condition sufficient to warrant the hearing of January 17th and the modifying order there made returning sole custody to the mother. Counsel for the father objected that within the three-week period following the date of the order of modification then in effect, there had been no change in the circumstances of the parties sufficiently material to justify further modification. He argued that the privilege granted the mother, of taking the children out of the state, nullified the right of visitation accorded him in the original decree of divorce, and would have the same effect if repeated in the order of modification being sought. He asked time to file proposed findings of fact and conclusions of law, with a supporting brief. His objections were summarily overruled; the court instructing the mother to “take your children and go back to Spokane, or wherever you want to live.”
It is from this order of January 17, 1956, that appeal is taken. The appellant father specifies error in the court’s holding that material change had taken place; in his denying request for time to file proposed findings; in directing the mother to take the children out of the court’s jurisdiction; and in allowing additional counsel fees.
1, Was there a material change in conditions?
It is the rule in this jurisdiction that while “a decree fixing the custody of children is final upon the conditions then existing, when it is shown that these conditions have changed, the court or judge then has authority to modify the original decree in respect to them. * * '* In proceedings óf this nature the welfare of the children' is the paramount [180]*180consideration.” Jewett v. Jewett, 73 Mont. 591, 595, 237 Pac. 702, 703.
This rule was stated for the full court more than a quarter century ago and was reiterated in Bayers v. Bayers, supra, 129 Mont. at page 6, 281 Pac. (2d) at page 509, where it is pointed out that “otherwise either parent of a child or children could constantly harass the other with litigation none of which would be conducive to the best interests of the child. ’ ’ Welfare of children is likewise given as the paramount consideration in Wolz v. Wolz, 110 Mont. 458, 102 Pac. (2d) 22, so that in principle the ruling in the Jewett case, the dicta in the Wolz case, and the opinion in the Bayers case are in accord. The facts of the present appeal in themselves confirm the wisdom of the rule. Furthermore, “Bach case must be decided on its own peculiar facts and circumstances.” Haynes v. Fillner, 106 Mont. 59, 71, 75 Pac. (2d) 802, 806.
“There must be a substantial change of circumstances * * * There is no fixed standard to determine * * * such substantial change * * * the welfare and best interests of the child are the primary concern * * * the substantiality of the change of circumstances is tested with respect to the child’s welfare rather than the parents’ welfare.” 17A Am. Jur., Divorce and Separation, section 839, page 32. See also 27 C. J. S. Divorce, section 317 b, page 1188.
When the custodial fitness of neither spouse is questioned a bill of exceptions and a judgment roll reflecting four modifications of custody orders in nine weeks, no matter how well intended or by whom sought or ordered, with undisputed testimony such as follows, is clear prima facie record of substantial change affecting the children. This is confirmed by the record:
“Q. [to respondent mother] What effect did * * * the sheriff coming after the child * * * have at the time? A. She screamed. She kicked Mr. Graham [the sheriff]. She didn’t want to go. She tried to cling to me. * * * The time [after] he [appellant father] had her for a week she cried, [181]*181and she wouldn’t go to bed alone at night. She was potty trained and she quit that. She screamed, and she resented her little brother and would fight him. After about a month she got over it. The next time when they [appellant and his parents] only had her for a day, she was that way for approximately one week. She was sick both times after she came back.”
It is true that all this reflects no change of circumstances in the parents, and contentious parties may brush aside such infant retrogressions solely as inconvenience; but in the life of a child, not yet two years of age, they may spell tragedy. As the court admonished all parties, “Better for these children to be away from the grandparents * * * and the continued strife and turmoil that is going on here.”
The first specification of error is without merit.
2. Were findings of fact and conclusions of law mandatory?
The second specification is that the court erred in denying the appellant father’s request for findings and conclusions.
On January 10, 1956, the father had filed a verified answer controverting the mother’s affidavit on which citation for hearing January 17th was issued. The respondent mother treats this pleading as a subterfuge, but this objection need not detain us. In these matters, affidavit may be countered by affidavit. See R.C.M. 1947, section 93-1701-1; State ex rel. Merrell v. District Court, 72 Mont. 77, 81, 231 Pac. 1107; 7 Bancroft’s Code Practice and Remedies, sections 5786, 5789.
At the close of the hearing, appellant’s counsel orally requested “time to submit” and asked “permission to submit” proposed findings of fact and conclusions of law, with a brief, and stated he believed appellant entitled to a “reasonable time in which to prepare” them. The court peremptorily denied this request saying: “These matters just cannot go over. Certainly the court is not anxious to have proposed findings and conclusions, and a brief is not needed here. ’ ’ Except the journal entry which summarizes this colloquy, we find no other reference in the record to any request for findings. No written motion for findings and conclusions was filed by appellant.
[182]*182It is a general rule of procedure that “In the absence of statute, the court need not make formal findings of fact in support of its order” modifying the custody provisions of divorce decrees. See 27 C. J. S. Divorce, section 317(6), pages 1195, 1197, and citations; see also 53 Am. Jur., Trial, section 1135, page 790. In this state we are controlled by R. C. M. 1947, section 93-505, providing, in part: “No judgment shall be reversed * * * for want of findings at the instance of any party who, at the close of the evidence and argument in the cause, shall not have requested findings in writing, and had such request entered in the minutes * * *” (Emphasis supplied.)
As early as 1875 it was said by this court: “There is no error of which the appellant can complain. If he had made his motion a part of the record, the ruling would be plain. * * * This court has held, and the decisions are numerous, that where a judgment is given it will be presumed, unless the contrary appears, that the court that entered the judgment found every material fact at issue in favor of the party for which it gave judgment.” Morse v. Swan, 2 Mont. 306, 308. See also Bordeaux v. Bordeaux, 32 Mont. 159, 163-164, 80 Pac. 6, 7; Milwaukee Land Co. v. Ruesink, 50 Mont. 489, and cases cited at page 489, 148 Pac. 396, 398; and Perry v. Luding, 123 Mont. 570, 217 Pac. (2d) 207.
Without further comment we quote three decisions of this court which carry the rule as applicable to the present appeal down to date:
“* * * it is incumbent upon a party, at the conclusion of the -evidence and argument in the cause, to make request in writing-for findings, and to have the request entered in the minutes of the court. If this is not done, a judgment may'not be reversed for want of findings. ’ ’ State ex rel. Quintin v. Edwards, 40 Mont. 287, 299, 106 Pac. 695, 698.
“There is complaint that the trial court failed to make special findings * * * In Bordeaux v. Bordeaux, 43 Mont. 102, 115 Pac. 25, this court said: ‘A party failing to make such [183]*183request cannot allege error because of tbe omission to obey tbe command of the statute. Every finding necessary to support tbe judgment will tben be implied’.” Farwell v. Farwell, 47 Mont. 574, 578, 133 Pac. 958, 959.
“In tbe record before us we find no compliance whatever with tbe plain provisions of tbe above mandatory statutes.” Bissell v. Bissell, 129 Mont. 187, 198, 284 Pac. (2d) 264, 270.
Under Montana procedure, in hearings on motions to modify child custody orders, parties desiring written findings of facts and conclusions of law must move for them in writing at tbe close of tbe evidence, as tbe statute requires. Even tben, if tbe evidence justifies but one conclusion, formal findings are unnecessary. Perry v. Luding, supra.
Appellant’s second specification of error is without merit.
3. Was it error to send tbe children beyond tbe court’s jurisdiction ?
From tbe time of tbe Bannack Territorial Statutes, child custody orders have been made and modified “as from tbe circumstances of tbe parties, and nature of tbe case shall be fit, reasonable and just.” Section 6, Divorce and Alimony, approved February 7, 1865. Such orders are now controlled by R. C. M. 1947, section 21-138, reading: “In an action for divorce tbe court or judge may, before or after judgment, give such direction for tbe custody, care, and education of tbe children of the marriage as may seem necessary or proper, and may at any time vacate or modify tbe same.” Whether permission shall be granted or denied rests within tbe sound discretion of the trial court. Aiken v. Aiken, 120 Mont. 344, 185 Pac. (2d) 294, and citations.
These matters are discussed at length in tbe case of Pugh v. Pugh, 133 W. Va. 501, 56 S.E. (2d) 901, 905, 15 A. L. R. (2d) 424, and an extensive annotation beginning at page 432, which citations include Aiken v. Aiken, supra. The West Virginia court makes tbe point that if “both parties exercise tbe right to tbe custody granted by tbe court the child will have no real or settled home and no permanent environment or asso[184]*184eiation during much of the period of * * * infancy. Such an arrangement is wholly detrimental to the welfare of the child and for that reason, in the circumstances of this case, the court should not have awarded the custody of the child to either of the parties on. any separate part-time basis. ’ ’ The point is well-taken, particularly here.
We find the following in respondent’s uncontradicted testimony.
“Q. Is there any reason why you couldn’t live in the State of Montana? A. Yes there is. With $75 a month support money [presently increased to $90] I cannot feed and clothe and pay rent and heat for myself and my two children. If I work I have to pay baby sitters. Therefore I went to Spokane. I share expenses with my sister. I do some of her work and we make out. I could not do it alone without help from someone else.
“Q. You were living with your parents first? A. I was. I don’t figure it’s the duty of my parents to help raise my children. * >:i * When I file for a job I tell them I have to be back in three months [in Montana]. They say, I’m sorry, we can’t use you. I have yet to find anyone that will hire a person under such conditions.”
As stated above, limitations on residence of children are to be conditioned by what appears best for the children. We repeat : ‘ ‘ The statutes expressly invest the trial judge with much discretion in these matters and we find no abuse in the exercise of that discretion by the trial judge.” Wilson v. Wilson, 128 Mont. 511, 516, 278 Pac. (2d) 219, 222. See also Barham v. Barham, 127 Mont. 216, 259 Pac. (2d) 805.
Appellant’s third specification of error is without merit.
4. Was it error to allow additional fees for counsel?
Beginning with the afternoon hearing in chambers on December 27, 1955, respondent’s attorney of record was joined by associate counsel. The court allowed them $100 for attorneys’ fees in the citation and order to show cause heard on January 17, 1956. Appellant assigns this as error.
[185]*185The respondent mother argues that the hardship worked on her by the father’s actions prior to January 17th, and the situation such actions created, justify allowance of an attorney fee. She cites McDonald v. McDonald, 124 Mont. 26, 218 Pac. (2d) 929, 15 A. L. R. (2d) 1260, with annotations beginning on page 1270. In the past such position has been the rule of this court.
In opposition, the appellant father relies on Wilson v. Wilson, supra, which overrules the majority opinion of this court in McDonald v. McDonald, supra.
We have carefully reexamined the McDonald and Wilson opinions. These two appeals were resolved by three to two decisions, one justice concurring in both majority opinions although his concurrence in the later overruled his concurrence in the earlier opinion.
The McDonald opinion [124 Mont. 26, 218 Pac. (2d) 932] allowed counsel fees on two grounds, first, that the court had continuing jurisdiction to modify its award for alimony or provisions respecting the custody of children, after the divorce decree had become final, and second, that “the court has inherent equitable power incidental to its major jurisdiction to make such an award * * * This is the rule also in California.” Four years later, the Wilson opinion denied counsel fees on the grounds that “proceedings for divorce are purely statutory” and, except for purposes of appeal, no “action for divorce ‘is pending’ ” after entry of decree.
Both decisions are based on R. C. M. 1947, section 21-137, which reads in part: “While an action for divorce is pending the court or judge may, in its or his discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself or her children, or to prosecute or defend the action. * * * The final judgment in such action may be enforced by the court by such order or orders as in its discretion it may from time to time deem necessary, and such order or orders may be varied, altered, or revoked at the discretion of the court.”
[186]*186The Wilson decision also depends on section 93-8706, R.C.M. 1947, which reads: “An action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless-, the judgment is sooner satisfied.”
But while recognizing the court’s continuing discretion under the provisions of sections 21-137, 21-138 and 21-139, R.C.M. 1947, the Wilson decision, differing from the McDonald decision, does not take account of the constitutional basis for jurisdiction in divorce matters nor does it emphasize the continuing authority in the court to give ‘ ‘ such order or orders as * * * it may from time to time deem necessary” or “as may seem, necessary or proper” and “to make such suitable allowance to-the -wife for her support during her life * * * as the court may deem just * * * and the court may, from time to time modify its orders in these respects * * Emphasis supplied. The immediate effect therefore of the Wilson decision is to relate pendency primarily to procedure, to conclude pendency with settlement or appeal, and to infer lack of constitutional basis for jurisdiction in divorce.
However, when read together, with or without the general procedural provisions of section 93-8706, supra, sections 21-137, 21-138, and 21-139 specifically referring to expenses “as alimony” pendente lite, to the modification of child custody orders, and to the support of the wife after separation is granted, clearly continue jurisdiction and discretion in the court until the children of divorced parents have attained majority and until the divorced wife has remarried or has died.
To this extent, the action necessarily is pending, for, as the Alabama court observed in Sims v. Sims, 253 Ala. 307, 45 So. (2d) 25, 29, Amiotation, 15 A.L.R. (2d) 1246, 1252, “the court having the power to alter the allowance may provide for an attorney’s fee as a feature of the power.
“* * * The relation of husband and wife gave rise to a [187]*187power which is not terminated although the relation has terminated.”
In the words of Mr. Chief Justice Brantly, “* * * 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. Such is the clear purport of McDonald v. McDonald, supra. See Annotation, 15 A. L. R. (2d) 1270.
Under a statute similar to ours (I. C. section 32-704), the Idaho rule likewise allows fees to counsel in custody modifications. Wenzel v. Wenzel, 76 Idaho 7, 276 Pac. (2d) 485; Wright v. Wright, 76 Idaho 393, 283 Pac. (2d) 1101.
While as stated in Rumping v. Rumping, 36 Mont. 39, 91 Pac. 1057, 12 L. R. A., N. S., 1197, and as reiterated in Docotovich v. Docotovich, 125 Mont. 56, 229, Pac. (2d) 971, and also in Wilson v. Wilson, supra, “proceedings for divorce are purely statutory,” the jurisdictional power of Montana courts derives generally from Article VIII of the State Constitution and, in divorce matters, specifically from article VIII, •section 11, providing that “district courts shall have original jurisdiction in all * * * actions of divorce and for annulment of marriage, and for all such special actions and proceedings as are not otherwise provided for.” Article V, section 26, specifically interdicts local or special laws for granting divorces. Proceedings for divorce undoubtedly are statutory, but jurisdiction in matters of divorce is constitutional and may not be abridged. It sounds in equity. Black v. Black, 5 Mont. 15, 2 Pac. 317.
We restore the McDonald decision. To that extent we overrule the Wilson case. Fees to counsel are allowed. The order is affirmed.
MR. CHIEF JUSTICE HARRISON, and MR. JUSTICE ANGSTMAN and THE HONORABLE GEORGE J. ALLEN, District Judge, sitting in place of MR. JUSTICE BOTTOMLY, concur.