Marriage of Fitzhugh , 248 Mont. 306 ( 1991 )

NO. 90-311
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
IN RE THE MARRIAGE OF:
ELVIN FITZHUGH,
Petitioner and Appellant,
-vs-
CLERK OF SUPREME COURT
TENLEY FITZHUGH, STATE OF MONTANA
Respondent and Respondent.
APPEAL FROM: District Court of the Second ~udicialDistrict,
In and for the County of Silver Bow,
The Honorable Mark P. ~ullivan, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Leonard J. Haxby, Attorney at Law, Butte, Montana.
For Respondent:
Brad L. Belke, Attorney at Law, Butte, Montana.
Submitted on Briefs: April 18, 1991
Decided: May 20, 1991
Filed:
' Clerk
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Justice John Conway Harrison delivered the Opinion of the Court.
Petitioner, Elvin Fitzhugh, appeals the District Court's
determination of visitation rights as decreed by the Second
Judicial District Court, Silver Bow County. We affirm.
The sole issue presented for review is whether the District
Court's grant of visitation rights to Mr. Fitzhugh was reasonable.
Elvin Fitzhugh and Tenley Fitzhugh were married on June 23,
1979, in Billings, Montana. They have one child, Lauren Ann, born
April 20, 1986. The parties separated in November of 1988.
Thereafter, Mrs. Fitzhugh moved, with Lauren, to Billings where
they lived with her parents. Mr. Fitzhugh remained in Butte. On
January 31, 1989, Mr. Fitzhugh filed a petition for dissolution of
marriage in the District Court of the Second Judicial District.
The initial temporary custody hearing was held by the District
Court on March 27, 1989. At that time the court awarded, on a
temporary basis, the physical custody of Lauren to Mrs. Fitzhugh.
The second and final hearing was held on February 22, 1990.
The testimony heard at trial conflicted. Each party testified
as to his or her superior parental skills and ability and each
introduced character witnesses to support his or her claims. After
hearing testimony, the District Court entered its findings of fact,
conclusions of law and decree on April 18, 1990. Finding of fact
no. 6 reads, in part, as follows:
The Court heard evidence from all of the parties that the
child is healthy and bright with a positive and
affectionate attitude. The child has lived with the
Respondent [Mrs. Fitzhugh] during the past year . . . and
the child has appeared to do very well in this environ-
ment. The child's involvement with her grandparents, her
church, her other family members in Billings and her
extracurricular activities are clear and convincing
evidence that she is prospering in her present
environment and has adjusted extremely well to her
present custodial environment.
The evidence presented by the Petitioner [Mr.
Fitzhugh] is not persuasive because the social worker had
no contact with the Respondent or the child's
grandparents. It was also clear to the Court from the
testimony of the social worker that certain information
which was supplied to him by the Petitioner was
inaccurate.
Based on its findings and conclusions, the District Court granted
the parties joint custody their minor daughter and granted Mr.
Fitzhugh reasonable visitation rights. From this decree, regarding
visitation rights, Mr. Fitzhugh appeals.
On appeal, Mr. Fitzhugh contends that the District Court erred
by restricting visitation, arguing that there is no evidence to
establish that such visitation would endanger his child's health.
Mr. Fitzhugh grounds his argument on § 40-4-217(1), MCA' which
provides:
A parent not granted custody of the child is
entitled to reasonable visitation rights unless the court
finds, after a hearing, that visitation would endanger
seriously the child's physical, mental, moral, or
emotional health.
From this statute, Mr. Fitzhugh concludes that the ~istrictCourt
erred by restricting his visitation rights with his minor daughter
'~echnicall~,this statute does not apply to these facts since
the District Court awarded joint custody.
because the trial transcript is devoid of testimony tending to
establish that visitation would endanger the child's physical,
mental, moral, or emotional health. Following this line of
reasoning, Mr. Fitzhugh argues that 5 40-4-217 (1), MCA, entitles
him to unrestricted visitation rights. To the contrary, upon a
showing that visitation will not endanger the child's health, § 40-
4-217(1), MCA, requires that the court grant the non-custodial
parent reasonable visitation rights. In the case of In re the
Marriage of Tonne (1987), 226 Mont. 1, 8, 733 P.2d 1280, 1285, this
Court affirmed the lower court's decree which awarded joint custody
to the parents while limiting the father's visitation rights to
alternate weekends and holidays, an alternate week night, Father's
Day, and three nonconsecutive weeks in the summer. See also In Re
Marriage of Alt (1985), 218 Mont. 327, 708 P.2d 258. Inthecase
at bar the District Court did not find, nor did any evidence tend
to suggest, that visitation with Mr. Fitzhugh would endanger the
child's health in any way. Therefore, the test is whether Mr.
Fitzhugh was granted reasonable visitation rights.
The District Court granted Mr. Fitzhugh visitation as follows:
A. From the date of this decree until the child
enters pre-school in the Fall of 1990 the
Petitioner shall have [the] following
visitation rights:
(i) one (1) seven day period of visitation
each month;
B. From the date the child enters pre-school the
petitioner shall have the following visitation
schedule:
(i) the second and fourth weekends of each
month, from 5:00 p.m. on Friday until
6:00 p.m. on Sunday;
(ii) thirty (30) days summer visitation,
beginning in the summer of 1991;
(iii) alternate holiday visitation as follows:
(a) during odd numbered years
Christmas, Memorial Day, July
4th, and Labor Day;
(b) during even numbered years
Christmas Eve, New Years,
Easter and Thanksgiving.
The record clearly shows that under the provisions of 5 40-
4-212, MCA, the District Court considered the wishes of the child;
the wishes of the parents; the interaction and interrelationship
of the child with her parents; the child's adjustment to her home,
school, and community; and the child's adjustment to her
grandparents1 home in determining the best interests of the child
concerning custody and visitation. The court also considered the
fact that Lauren is a young child, and she might react adversely
to long and regular trips from Billings to Butte. Therefore,
pursuant to the above schedule, the decree essentially provides
Mr. Fitzhugh with liberal visitation comprised of alternating
weekends and holidays and one month in the summer.
In light of the findings, we conclude that the court's
visitation schedule is reasonable. Furthermore, the court's
visitation schedule accords with In Re Marriage of Alt (1985), 218
Mont. 327, 332, 708 P.2d 258, 261, where we held that visitation
on alternate weekends, alternate holidays, one evening per week,
and two weeks in the summer was reasonable. We find no error.
The District Court is hereby affirmed.
We concur: