                                            No. 87-130
                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                1987




In Re th.e Custody of
A. L. S.,
a minor child.




APPEAL FROM:           District Court of the Twelfth Judicial District,
                       In and for the County of Hill,
                       The Honorable Chan Ettien, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                       Marble      &   Seidlitz; Donald R. Marble, Chester, Montana
         For Respondent:
                       James D. Elshoff, Helena, Montana



                                               Submitted on Briefs:   Sept. 17, 1987
                                                 Decided:   December 3, 1987

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                                               Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

      J.S., the natural mother of six-year-old A.L.S.,
appeals an order of the Twelfth Judicial District in and for
the County of Hill, State of Montana, which modified a decree
of dissolution of marriage so as to give primary custody of
the boy to her former husband, A.E.S., who is the boy's
natural father.    Various irregularities in the manner by
which the District Court received and entertained the
father's motion dictate that the order of modification be
vacated   and   this   matter   be   remanded   for    further
consideration.
      On December 6, 1382, a decree of dissolution was
entered ending the parties' marriage of nearly four years.
The decree adopted by reference a property settlement
agreement, which also established joint custody of the one
son. Under this agreement, the mother was to have custody of
the boy during the school months, the father was to have
custody during the summer months, and they were to alternate
custody at holidays. The record fails to disclose how this
arrangement worked prior to the summer of 1985.
      By 1985 both parents had moved to the state of
Washington.   In August of that year, presumably during his
rightful period of primary custody, the father moved the boy
to Eugene, Oregon, without notifying the mother.     When the
father's period of custody elapsed and the boy was not
returned, the mother filed a felony custodial interference
complaint against the father.     The father and child were
located in Oregon, the mother reassumed custody with the aid
of Oregon authorities, and father was extradited to
Washington.     He was     convicted of    felony custodial
interference in Washington Superior Court on April 10, 1986.
Since his extradition, the father has seen the child only
once for two hours in a court-supervised visit during his
felony trial.
      Mother and child returned in 1986 to the Rocky Boy's
Indian Reservation, where she and the boy are enrolled
members of the Chippewa Cree tribe. The boy's heritage is
calculated by the tribe to be 81/256th part Indian, roughly
one-third Indian blood.   The father has no Indian ancestry.
Mother sought an award of sole custody from the tribal court.
The father failed to appear for a hearing. The tribal court
ordered that the child should remain in the mother's custody
while it investigated the mother's charges that the father
had abused the boy. Mother and her new husband both found
jobs in Havre, Montana, and rented a modern apartment.
      The father located the mother in December, 1986.     He
demanded to see his son for Christmas but the mother refused
the request. On December 23, father filed a motion to modify
custody supported by affidavit.    The affidavit stated that
the father had experienced "numerous and continuous problems"
in exercising his visitation rights, that the child was
afraid of his mother and her male companions and wished to
live with the father, and that the boy's situation had
changed significantly since the original decree because the
mother was not caring for the son's various health problems.
He asserts that the boy's strabismus, a condition in which
the eyes do not focus together, is such that it could cost
the boy his left eye if not attended to. On the basis of
this affidavit, the District Court issued an order on
December 2 4 compelling the mother to appear on January 14,
1987 and show cause why the father should not be granted sole
custody.
      The father filed a second motion on December 31, 1986,
requesting the District Court to hold the mother in contempt
of court for refusing to abide by the custody and visitation
terms of the 1982 dissolution decree.      In his supporting
affidavit father said he "knows of no reason other than
[mother's] willful refusal" why he should not be allowed his
visitation and custody rights. He did not apprise the court
of his felony conviction in Washington for custodial
interference. The father suggested that this motion could be
considered during the previously scheduled January 14
hearing.   On January 7, 1987, the District Court ordered a
second hearing be scheduled on January 29, 1987 for mother to
show cause why she should not be held in contempt.
      The record contains no affidavits of mailing or of
service on the court's two orders. A receipt entered as part
of the record shows that father mailed something to the
mother on December 24. Mother acknowledges receiving notice
of the first hearing in early January.     But she could not
find an attorney in Havre that would handle her case since
father had talked to the attorneys in town. She called the
District Judge to tell him that she could not find a lawyer.
She apparently misunderstood the judge to say the matter had
been continued until January 29. Consequently, she did not
appear at the January 14 hearing. The father attended that
hearing and testified that since he was concerned about his
son's health and had been refused opportunities to see his
son, the decree of custody should be modified in his favor.
Again it appears from the transcript that the father did not
notify   the   court   of  his    conviction   for   custodial
interference.
      The District Court issued an order on January 15, 1987,
granting sole custody to the father with reasonable
visitation for the mother. No notice of judgment concerning
this order was mailed to the mother.
      The order of modification and the contempt proceeding
against the mother were stayed until February 23, 1987.
Mother appeared with counsel at that hearing.       The court
refused to consider counsel's motion to dismiss father's
petition, but considered the hearing to be one to set aside
the court's order of modification.       Mother and her new
husband testified that the boy was attending school on the
reservation and was being attended to by physicians and
psychologists.   They testified that they were working and
were providing an adequate home and were not currently on
welfare. The father admitted in questioning that he had been
convicted of custodial interference, that he and a daughter
by another union were currently on welfare, and that he had
no job at that time.
      On March 4, 1987, the District Court modified its
January 15 decree so that the father has custody of the boy
during the school months and the mother has custody during
the summer months. Beyond that, mother's motion was denied.
Counsel for the mother applied for a stay of this new order
on March 6, 1987. He argued that the mother is providing a
suitable home for the child, that the child is in school in
Rocky Boy's, that the father had not been able to provide the
court with a home address, and that to change the child's
custody while the matter was being appealed would not be in
the child's best interest. The court denied that application
without providing any reasons.    The tribal court then took
temporary custody of the child.         He remains at the
reservation.
      Counsel for the mother requests that this Court reverse
the District Court and reinstate the custody decree of
December 6, 1982.    Counsel urges that the District Court's
actions were irreparably flawed since the father's affidavit
was insufficient to order a hearing to consider modification.
He argues further that the court erred by not affording the
mother an opportunity to file responding affidavits before
ordering the hearing.     He argues lastly that the District
Court abused its discretion by not providing a new trial on
the matter even though it was shown proper grounds for a new
trial.
       This Court's standard of review on custody matters is a
very stringent one. Because the District Court considers all
the evidence in such matters firsthand and enjoys the
opportunity to observe the witnesses          all reasonable
presumptions as to the correctness of the District Court's
determination will be made.     In re the Marriage of Robbins
(Mont. 1985), 711 P.2d 1347, 1350, 42 St.Rep. 1897, 1900,
citing In re Gore (1977), 174 Mont. 321, 325, 570 P.2d 1110,
1112; Foss v. Leifer (1976), 170 Mont. 97, 100, 550 P.2d
1309, 1311.      The District Court's findings will not be
disturbed unless there is a mistake of law or a finding not
supported by credible evidence and so clearly erroneous as to
constitute a clear abuse of discretion. Marriage of Robbins,
711 P.2d at 1350.
       It is apparent in this matter that the District Court
disregarded     certain     statutory    and    jurisdictional
prerequisites that must be satisfied before modification of
custody can be considered. The first such lapse concerns the
service of process.    Section 40-4-220, MCA, provides that a
motion for modification shall be made by affidavit and that
the adverse party shall be given notice of the proceeding and
be allowed to file opposing affidavits.        Once opposing
affidavits are filed, or no opposing affidavit is filed
within a reasonable amount of time, the court may act. Its
discretion, however, is limited by 9 40-4-220(1), MCA, which
says in part:
           The court shall deny the motion unless
           - finds that adequate cause for hearing
           it
           the motion      is established by    the
           affidavits, inwhich case it shali s e G
           date for hearing on an order to show
           cause why     the requested order or
           modification should not be granted.
            (Emphasis added.)
This language restates the law's preference for continuity of
custody. See In re the Marriage of Perry (Mont. 1984), 691
P.2d 1384, 1386, 41 St.Rep. 2269, 2271. Proper notice must
be served to the adverse party so that that party has an
opportunity to respond. Leonard v. Hoppins (1948), 121 Mont.
275, 279, 191 P.2d 990, 991-92. The rule is a very practical
one. If the District Court permitted show cause hearings for
anything less than the most compelling evidence, after having
reviewed affidavits of both parties, there could result such
a merry-go-round of custody litigation that the litigants'
rights never would be finally adjudicated. Leonard, 191 P.2d

      Ln the instant case there is no proof that the mother
received notification either of the father's custody petition
or the show cause order until early January 1987.      Father
says he mailed the order on December 24, 1986 but he offers
us no affidavit of mailing. All he can offer is the receipt
for a certified letter mailed December 24, 1986 and received
January 2, 1987, but that receipt does not prove that the
notice of the show cause hearing was enclosed.       But more
importantly the notice of show cause hearing should not have
issued less than 24 hours after father filed his motion since
mother was not afforded a chance to respond via affidavit.
The language of S 40-4-220, MCA, is plain.       A motion to
modify custody is to be viewed cautiously by the court. Onl~7
after the adverse party has filed an opposing affidavit, or
has failed to do so within a reasonable amount of time, may
the court act. And then it must deny the motion unless there
is adequate cause for a hearing. Mother did not receive the
benefit of these requirements.
      The District Court ordered a show cause hearing without
the benefit of all the facts since mother had no opportunity
to file an affidavit with the court. The father's affidavit
does not show that he had been convicted of custodial
interference, it does not state that he was on welfare, and
it falsely claims that the mother was on welfare and not
interested in getting a job when mother was indeed working.
Such blatant discrepancies in the affidavit will not support
the action in any ensuing show cause hearing.
      The effect of the March 4 order was to reverse the
original order of custody giving the father, not the mother,
custody during the school year and the mother, not the
father, custody during the summer. This attempt at swapping
custody schedules under the guise of the modification statute
is improper. In re the Marriage of Paradis (Mont. 1984), 689
P.2d  1263, 1264-65, 41 St.Rep.      2041, 2043.      Section
40-4-224(3), MCA, states that. a joint custody arrangement,
which we consider here, may be modified under 5 40-4-219,
MCA, only to terminate the custodial rights of one of the
parents. Marriage of Paradis, 689 P.2d at 1264-65.
      The court also erred when it refused to vacate the
January 14 proceedings.    Sections 25-11-102 and 25-11-103,
MCA, establish three bases for ordering a new trial in a
bench trial. Those are irregularity of proceedings, surprise
or accident, and newly discovered evidence. On the basis of
irregular proceedings alone, this case should have been
retried.
      Lastly, both the mother and the father request an award
of attorney's fees on this appeal.    Section 40-4-110, MCA,
speaks to the applicability of attorney's fees:
           The court from time to time, after
           considering the financial resources of
           both parties, may order a party to pay a
           reasonable amount for the cost to the
           other party of maintaining or defending
           any proceeding under chapters 1 and 4 of
           this title and for attorney's fees,
           including   sums   for   legal   services
           rendered and costs incurred prior to the
           commencement of the proceeding or after
           entry of judgment. The court may order
           that the amount be paid directly to the
           attorney, who may enforce the order in
           his name.
This Court is in no position to determine if either party
deserves attorney's fees. We do not have specific findings
before us on the parties' respective financial resources.
Where there is substantial evidence that one party's
resources are far greater than the other's, the District
Court, in its discretion, may award attorney's fees. In re
the Marriage of Wilson (Mont. 19851, 701 P.2d 1372, 1377, 42
 St.Rep.   894, 900.   The question of attorney's fees would be
properly directed to the District Court.
      We vacate the court's orders of January 15 and March 4,
1987. We remand the case to the District Court to allow the
mother to file an affidavit in response to the father's
motions of December, 1986 and for further consideration of
father's motions in light of that affidavit.
      Vacated and remanded.




 We concur:




Mr. Justice John C. Sheehy, s2ecially concurring:
      I concur in the result here, but I caution that this case

appears to be one for a tribal court.
