In Re the Marriage of Prevost , 225 Mont. 116 ( 1987 )

No. 8 6 - 3 5 9
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
IN RE THE MARRIAGE OF
JAMES EERNAPD PREVOST,
Petitioner and Respondent,
and
DENA KAY PREVOST,
Respondent and Appellant.
APPEAL FROM: District Court of the Seventh Judicial District,
In and for the County of Richland,
The Honorable H. R. Obert, Judge presid-ing.
COUNSEL OF RECORD:
For Appellant:
T. R. Halvorson, Sidney, Montana
For Respondent:
Phillip N. Carter, Sidney, Montana
Submitted on Briefs: Oct. 20, 1 9 8 6
i
Decided: January 13, 1987
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
This is an appeal from an order of the District Court,
Seventh Judicial District, Richland. County, modifying
visitation between two parents and their children. The
mother appeals the order. We affirm.
The issues raised are as follows:
1. Does the absence of a verbatim record necessitate
reversal and remand?
2. Does the absence of findings of fact showing how the
order is in the best interests of the children necessitate
reversal and remand?
3. Is weekend visitation between the father and
daughter without weekend visitation between the mother and
son in the best interests of the children?
4. Is summer visitation between the father and daughter
in 1986 without the possibility of summer visitation between
the mother and son in the same year in the best interests of
the children?
The parties were divorced in 1985. They had two
daughters and a son. The mother was granted custody of the
two daughters and the father was granted custody of the son.
Each was granted "reasonable" visitation with the child or
children not in their custody. In June, 1986, the father
filed a motion to modify visitation privileges. The court
held a hearing and heard testimony from the mother and the
father on visitation. No transcript of this hearing was
made. The court issued an order granting the father
visitation with one daughter as follows:
a. Two weekends per month, beginning at 7:00
o'clock P.M. on Friday and ending at 7:00 o'clock
P.M. on Sunday night. This particular visitation
shall be modified if the petitioner is not at the
home of the respondent by 9:00 o'clock P.M. on the
Friday night. If he is not, his visitation will
not start until 9: 00 olcl.ock on Saturday morning.
b. On alternating holidays, which, for this
purpose, shall be defined as New Year's Day, Easter
Sunday, Memorial Day, July 4th, Labor Day,
Thanksgiving Day, and Christmas ~ve/Christmas Day.
c. For six continuous weeks in the summer. This
period of time shall be the six weeks at the end of
the summer and just prior to the child beginning
school.
He was granted visitation with the other daughter at all
times and places that she desires. The mother was granted
visitation with her son as follows:
a. Six weeks in the summer. This period shall be
during the beginning of the summer vacation period,
just after school has let out.
b. Alternating holidays, which are defined as the
same as those a.bove.
The order modifying visitation was signed by the judge,
then there was a notation "APPROVED as to content and form:"
and the order was signed by the attorney for petitioner and
the attorney for respondent.
The issue on appeal is actually whether the order in
question was truly an order which may be appealed or whether
it is a stipulation by both parties that was adopted by the
court. Since both parties, through their attorneys signed
the order, we hold that the document was a stipulation which
was adopted by the court. "It is improper to raise an issue
upon appeal as to a question of law or fact after the parties
have entered into a stipulation as to that law or fact.''
Penn v. Burlington Northern, Inc. (1980), 185 Mont. 223, 228,
605 P.2d 600, 604. We hold the first three issues on appeal
have not been properly raised because appellant agreed to the
term of the modified visitation order. We hold the last
issue is moot because the visitation for the summer of 1986
has already occurred.
Affirmed.
We Concur: l