Marriage of Kovash ( 1995 )

f
No. 95-070
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
IN RE THE MARRIAGE OF
KATHLEEN A. KOVASH,
Petitioner and Respondent,
and
MYRON J. KOVASH,
Respondent and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Mark P. Yeshe, Attorney at Law, Helena, Montana
For Respondent:
Derik Pomeroy, Attorney at Law, Bozeman, Montana
K. Amy Pfeifer, Attorney at Law, Department of
Social and Rehabilitation Services, Helena, Montana
(Attorney for Child Support Enforcement Division)
Todd R. Hillier, Attorney at Law, Bozeman, Montana
(Attorney for Guardian Ad Litem)
Bruce E. Becker, Attorney at Law, Livingston,
Montana (Attorney for Jeffrey Kovash)
Submitted on Briefs: June 20, 1995
Decided: July 25, 1995
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Appellant Myron Kovash appeals the visitation schedule issued
sua sponte by the Eighteenth Judicial District Court, Gallatin
County. We affirm.
The sole issue on appeal is:
Did the District Court err when it issued a visitation
schedule sua sponte?
The parties were divorced in 1992. They have four minor
children. Myron resides in Livingston, Montana, and respondent,
Kathleen Kovash, resides in Kellogg, Idaho. In the divorce decree,
Kathleen was granted sole custody. Myron's visitation rights were
to be terminated if he failed to comply with certain conditions in
the decree. The first visitation schedule issued by the District
Court covered the period from August 31, 1992, through July 31,
1993. In September 1993, the two older children began residing
with Myron in Montana, while the two younger children stayed with
Kathleen in Idaho. The subsequent visitation schedules concern the
two younger children. The second visitation schedule covered the
period from December 26, 1993, through January 2, 1994. The third
visitation schedule covered the period from April 1, 1994, through
August 19, 1994.
In the fall of 1994, the District Court requested the Guardian
Ad Litem to submit a recommendation concerning visitation. After
she submitted her recommended visitation schedule to the District
Court, it issued an order containing the current visitation
schedule. The current visitation schedule covers the period of
2
December 16, 1994, through August 26, 1995. Myron bases his appeal
on this last visitation schedule.
ISSUE
Did the District Court err when it issued a visitation
schedule sua sponte?
Our standard of review for a district court's decision
concerning visitation is whether it abused its discretion. In re
Marriage of Hunt (1994), 264 Mont. 159, 164, 870 P.2d 720, 723,
(citing In re Marriage of Anderson (1993), 260 Mont. 246, 252, 859
P.2d 451, 454).
Myron argues that the District Court violated § 40-4-217(1),
MCA, when it denied his proposed visitation schedule and issued its
own without a hearing.
The proper statute governing a district court's continuing
jurisdiction over visitation is § 40-6-118, MeA.
The court has continuing jurisdiction to modify or revoke
a judgment or order:
(2) with respect to matters listed in 40-6-116(3)
Relevant portions of § 40-6-116, MCA, state that:
(1) The judgment or order of the court determining the
existence or nonexistence of the parent child
relationship is determinative for all purposes.
(3) (a) The judgment or order may contain any other
provision directed against the appropriate party to the
proceeding concerning the custody and guardianship of the
child, visitation privileges with the child . . . or any
other matter in the best interest of the child.
(Emphasis added.)
3
..
In the instant situation, Myron had the hearing required by
§ 40-4-217, MCA, before his visitation rights were terminated in
the decree of dissolution. The District Court suspended that
termination of visitation pursuant to Myron's compliance with
certain conditions. The District Court has continuing jurisdiction
to monitor Myron's compliance with those conditions and to grant
visitation accordingly. The visitation that Myron has enjoyed did
not change his status. He is still a parent with terminated
visitation rights. That status has merely been suspended by the
District Court based on Myron's compliance with the conditions in
the decree of dissolution. Pursuant to §§ 40-6-118 and -116 (3) (a) ,
MCA, the District Court has continuing jurisdiction to issue
visitation schedules in conjunction with Myron's compliance with
those conditions.
We hold that the District Court did not abuse its discretion
when it issued the current visitation schedule sua sponte.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company.
'-.,. --
(i, ( r (', Y i /i'~/-'! I,! ·'-it:l~·/ /
Justice
4
'" "
We concur:
<-' -'
) Chief Justice
Nf~L
5
... .. , ,
Justice James C. Nelson specially concurs.
I concur in the result of our opinion, but not in its
rationale. I would hold that the District Court erred ln not
holding a hearing on modification of the custody order, but would
also hold that the error was harmless given that the order entered
by the court substantially complied with the proposed visitation
requested by Myron and in view of the recommendation of the
guardian ad litem.
More importantly, we do not cite any authority for our
application of §§ 40-6-118 and 40-6-116, MCA, which are part of the
Uniform Parentage Act, Title 40, Chapter 6, part 1, MCA, to the
modification of custody issue in this marriage and divorce case.
In that respect, I note that neither party has argued the
application of those statutes to this dispute, and I have strong
reservations about whether either statute is appropriately applied
here. Under the circumstances, I would not decide this case on the
basis of those statutes.
6