Marriage of Roberts ( 1995 )

NO. 95-108
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
IN RE MARRIAGE OF
PATRICIA ANN ROBERTS,
Petitioner and Respondent,
and
DAVID ROBERTS,
Respondent
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Maurice R. Colberg, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Mark D. Parker, Parker Law Firm,
Billings, Montana
For Respondent:
Allen Beck, Attorney at Law,
Billings, Montana
Submitted on Briefs: October 19, 1995
Decided: December 5, 1995
Filed:
Cl
Justice Terry N. Trieweiler delivered the opinion of the Court.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1995 Internal Operating Rules, the following 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 State Reporter Publishing Company and West Publishing
Company.
Patricia Roberts filed a petition in the District Court for
the Thirteenth Judicial District in Yellowstone County for
dissolution of her marriage to David Roberts. Following a two-day
hearing at which the parties presented evidence in support of and
in opposition to various pre-dissolution motions, the court entered
an order in which it disallowed any visitation by David until
further order of the court and ordered that he not enter Melstone,
Montana. David appeals from the order of the District Court.
We restate the issues on appeal as follows:
1. Did the District Court abuse its discretion when it
modified the temporary visitation arrangement?
2. Did the District Court violate David's right to due
process when it amended the pleadings to include David's right to
visitation?
3. Did the District Court abuse its discretion when it
admitted tapes of conversations recorded without David's knowledge?
4. Did the District Court violate David's constitutional
right to travel when it ordered that he not enter Melstone,
Montana?
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FACTUAL BACKGROUND
David and Patricia were married on March 13, 1958. They have
eight children, three of whom are minors: Brian Keith Roberts,
age 16; Raina Christina Roberts, age 11; and Kyla Ann Roberts,
age 8.
On August 31, 1994, Patricia filed a petition for dissolution
of her marriage to David. She filed an exparte motion for a
temporary restraining order and temporary injunction, and an
affidavit at the same time. Patricia's affidavit stated that she
fled the family home on August 25, 1994, and did not disclose her
whereabouts because she feared for her life and the lives of her
minor children. The affidavit stated that she was concerned
because David experienced mood swings and made repeated threats to
her and her adult children, which included threats of suicide, and
assault, and threats to kill them.
On the same day, the court issued a temporary restraining
order prohibiting David from molesting or disturbing the peace of
Patricia and the minor children. It also granted temporary custody
of the minor children to Patricia and set September 8, 1994, as the
date on which David could show cause why further relief should not
be granted.
The show cause hearing was actually held on September 12,
1994. On September 15, 1994, the parties stipulated to a temporary
restraining order and other temporary relief to remain in effect
until September 27, 1994.
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On September 27, 1994, a second show cause hearing led to a
second stipulation regarding temporary custody, visitation, child
support, and maintenance. The parties agreed that Patricia would
have sole custody of the minor children until further order of the
court; David would have supervised visitation until further order
of the court; and the parties would submit to an evaluation by a
family therapist and a psychologist who would make a recommendation
regarding appropriate visitation. The stipulation also enjoined
David from molesting or disturbing the peace of the petitioner and
the minor children and Patricia from doing the same to David. The
stipulation also forbade David from having any contact with
Patricia or the minor children at Patricia's residence or any
school that the minor children attend, and from removing the
children from the State of Montana.
On October 24, 1994, Patricia filed another exparte motion for
temporary restraining order. She requested exclusion of David from
the community of Melstone, Montana. She based her motion on her
own affidavit and the affidavits of Sam Damon and John Emigh, whom
she had hired as bodyguards. In her affidavit, Patricia noted
numerous occasions on which David had violated the stipulation and
order dated September 30, 1994.
On November 14, David made several motions. He moved to have
Patricia held in contempt for violating the visitation order, to
have the children interviewed in chambers regarding custody, to
have the court seek advice from a professional person pursuant to
§ 40-4-214(2), MCA, for an investigation and report concerning the
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custody of the minor children pursuant to $Z40-4-215, MCA, for an
order requiring family law mediation pursuant to § 40-4-301, MCA,
and for the appointment of an attorney to represent the interests
of the children pursuant to § 40-4-205, MCA. David's motion to
have Patricia held in contempt was based on his unsuccessful
efforts to exercise visitation.
On December 6 and December 7, 1994, the court held a hearing
to consider evidence pertaining to the parties' motions. Following
the hearing, the court issued its findings of fact, conclusions of
law, and order in which it granted all of David's motions except
the motion to have Patricia held in contempt and the motion for
family law mediation. The court deemed the pleadings amended
pursuant to Rule 15(b), M.R.Civ.P., to include the issue of
temporary custody and visitation and modified the temporary
custody, visitation, and restraining order dated September 30,
1994, to prohibit visitation by David until further order of the
court. It also ordered that David not enter the town of Melstone,
Montana.
ISSUE 1
Did the District Court abuse its discretion when it modified
the temporary visitation arrangement?
We review a district court's findings of fact related to
visitation modification to determine whether those findings are
clearly erroneous. In re MarriageofElser (Mont. 1995), 895 P.2d 619,
622, 52 St. Rep. 434, 436 (citing MarriageofJohnson (1994), 266 Mont.
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158, 166, 879 P.2d 689, 694). When a district court's underlying
findings are not clearly erroneous, this Court will overturn a
district court's modification of visitation rights only when an
abuse of discretion is clearly demonstrated. Elser, 895 P.2d at 622.
Section 40-4-217(3), MCA, governs modification of visitation
rights and provides:
The court may modify an order granting or denying
visitation rights whenever modification would serve the
best interest of the child; however, the court may not
restrict a parent's visitation rights unless it finds
that the visitation would endanger seriously the child's
physical, mental, moral or emotional health.
In its order, which temporarily prohibited David from visiting
his minor children, the court concluded that " [vlisitation between
David and the minor children would seriously endanger the physical,
mental and emotional health of the children." On appeal, David
contends that serious endangerment was not proven.
However, after a review of the record, we conclude that
serious endangerment was proven. The District Court set forth the
following facts in its order. It found that David made comments to
the Deputy Sheriff, Floyd Fisher, which could be interpreted as
threats to take the life of Patricia and others; that David may be
a very violent and dangerous person; that Patricia had hired
bodyguards to protect her because of her fear of David; and that
the three adult children who testified at the trial all feared
their father and thought he dealt inappropriately with them or
other siblings when they were growing up.
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A review of the record demonstrates that the court's findings
were supported by substantial evidence. Specifically, Kevin
Roberts, the couple's 24-year-old son, described David as a violent
man and testified that he saw David place a knife to the throat of
a man and then was asked by David to obtain a gun for him so he
could kill the man. Christopher Roberts, the couple's 19-year-old
son, testified that he had been afraid of his father for as long as
he could remember. Patricia testified that David threatened to
commit suicide and take the family with him and threatened to take
the minor children to a foreign country. The Deputy Sheriff
testified that David Roberts had threatened to "kill that bitch"
when his minor children refused to visit him at a scheduled
visitation time.
We conclude that the District Court's findings of fact are not
clearly erroneous, and that the court did not abuse its discretion
when it modified the parties' temporary visitation agreement to
prohibit visitation by David.
Furthermore, David's contention that the District Court's
custody order deprives him of parental rights in violation of the
rule set forth in Babcockv. Wonnacott (1994), 268 Mont. 149, 885 P.2d
522, is without merit. The parties' September 27, 1994, stipula-
tion gave temporary custody of the children to Patricia and
provided that "in the event of her absence . . . Kevin Roberts
shall be the custodian to supervise the children in her place and
stead." The court's order preserved the alternate custody
agreement and merely changed the visitation arrangement. David
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agreed to the alternate custody arrangement, and therefore, Babcock
is not on point.
ISSUE 2
Did the District Court violate David's right to due process
when it amended the pleadings to include David's right to
visitation?
The District Court deemed the pleadings amended and modified
the existing order related to custody and visitation, although none
of the motions directly sought denial of all visitation. David
asserts that the court's amendment of the pleadings violated his
right to due process because he was not given notice of the issue
which would be considered and an opportunity to respond.
Rule 15(b), M.R.Civ.P., permits the amendment of pleadings to
conform to the evidence. The evidence presented did concern child
custody issues in general and whether visitation by David would
endanger the children. First, David's own motions related to
custody which involves the subject of visitation. Second,
Patricia's affidavit stated that she was afraid that visitation by
David would have placed the children in danger. Third, the
affidavit of Patricia's bodyguards stated that David made direct
threats against the safety and health of Patricia and other family
members.
Finally, the court, on several occasions, made statements
which indicated that the question of visitation was at issue. For
example, when the hearing began the court stated that "I was told
in chambers that the major issue that is pending before the court
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is related to the visitation of the respondent with his children."
And, in response to an objection, the court stated that "I think an
issue in this case would be whether the children may or may not be
endangered by the presence of Mr. Roberts, and I want to hear the
evidence about that." In another response to an objection, the
court stated that 'I[ w 1 e're in custody disputes and problems that we
have to endanger kids." David failed to object to the presentation
of evidence of serious endangerment--the statutory standard to
modify visitation--and failed to take issue with the court's
characterization of the issues.
David's effort to prove Patricia's violation of the temporary
visitation agreement required testimony which concerned the
visitation agreement, and therefore, we conclude that David's right
to due process was not violated when it modified the pleadings to
conform to the evidence.
ISSUE 3
Did the District Court abuse its discretion when it admitted
tapes of conversations recorded without David's knowledge?
David contends that the tapes of conversations between his son
Dino and him were admitted over objection in violation of
5 45-8-213, MCA, which prohibits the taping of conversations
without the consent of all parties.
Rule 103, M.R.Evid., provides that:
(a) Effect of erroneous ruling. Error may not be
predicated upon a ruling which admits or excludes
evidence unless a substantial right of the party is
affected, and
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(1) Objection. In case the ruling is one admitting
evidence, a timely objection or motion to strike appears
of record, statincr the suecific ground of obiection, if
the specific ground was not apparent from the context
. . . .
(Emphasis added.) We have stated that we will only consider on
appeal objections made at trial that are timely, specific, and
based on the correct grounds. Guertin v. Moody’s Market, Inc. ( 19 94 ) , 2 6 5
Mont. 61, 67, 874 P.2d 710, 714; Bachev.Gilden (1992), 252 Mont. 178,
182, 827 P.2d 817, 820.
At the hearing, David objected to the admission of the tapes
because they had just been handed to his attorney and he had no
idea what they said, and because a quick review of the transcript
of the tapes (admitted at the same time) revealed that the
conversation was actually a negotiation between Dino, negotiating
for Patricia, and David, and negotiations are not admissible. Now,
on appeal, David contends that the tapes should have been excluded
because they were recorded in violation of § 45-8-213, MCA. David
did not object on this basis at the hearing. Therefore, we hold
that the court did not abuse its discretion when it admitted the
tapes. We also note that we reached our conclusion under Issue 1
without consideration of the tapes at issue.
ISSUE 4
Did the District Court violate David's constitutional right to
travel when it ordered that he not enter Melstone, Montana?
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The District Court prohibited David from entering the small
community of Melstone, Montana, in order to effectively enjoin him
from disturbing the peace of Patricia and his minor children.
Section 40-4-121, MCA, provides in part that:
(2) As a part of a motion for temporary maintenance
or support or by independent motion accompanied by
affidavit, either party may request the court to issue a
temporary injunction for any of the following relief:
. . .
(b) enjoining a party from molesting or disturbing
the peace of the other party or of any family member
. . . .
We conclude that the District Court did not restrict David's
right to travel but merely placed reasonable restrictions on the
distance David must keep from his estranged family until the issues
raised in the parties' pleadings are finally resolved. The Melstone
community simply happened to be the frame of reference chosen by
the court. Considering its size, this restriction should not
unreasonably interfere with David's right to travel.
Neither did the court abuse its discretion by imposing this
restriction on David's activities. The town of Melstone is very
small and Patricia's residence can be seen from most of the
businesses. At the time of the hearing, Patricia had a temporary
restraining order which barred David from coming into the town of
Melstone and she testified that the order assisted her because she
did not "have to worry all day about what he's doing or if I see
his truck, to be afraid. I don't have to be afraid to let the kids
walk back and forth from school and do their normal things." She
also testified that she needed an additional restraining order
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keeping him out of Melstone "because it takes a lot of stress off
me and takes a lot of stress off of the kids. We can move around
freely and not live with this constant fear all the time."
We conclude that David's constitutional right to travel is
neither implicated nor infringed upon by the court's order which
prohibits him from entering Melstone. For these reasons we affirm
the court's order which modified the parties' temporary custody and
visitation agreement.
We concur:
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