In Re the Marriage of B.H.J.

No. 88-232
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
IN RE THE MARRIAGE OF
B.H. J.,
Petitioner and Respondent,
and
D.J.,
Respondent and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert W Holmstrom, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Bruce E. Lee, Billings, Montana
For Respondent:
Fred E. Work, Jr., Work Law Firm, Billings, Montana
Submitted on Briefs: Aug. 4, 1988
Decided: August 30, 1988
A U 3 0 1988'
~
Filed:
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
Husband appeals the decision of the District Court of
the Thirteenth Judicial District, Yellowstone County, denying
his request for extended and overnight visitation with his
minor children. We affirm.
The sole issue presented on appeal is whether the
District Court abused its discretion by denying husband
extended and overnight visitation with the children of the
marriage.
The parties in this case married on August 16, 1980 in
Billings, Montana. The three children born of the marriage
are now ages seven years, six years and eighteen months.
After marital difficulties, the parties separated in February
1986 and the wife petitioned for a dissolution of the
marriage in March 1987. The parties primary dispute centers
around husband's visitation of the children.
The District Court ordered joint custody to both parents
with wife designated as the primary residential custodian.
Husband sought liberal visitation with the two older
children, specifically every other weekend beginning on
Friday at 5:00 p.m. and ending on Sunday at 8:00 p.m.;
alternating major holidays including Christmas, Thanksgiving,
Easter, July 4th, Labor Day and Memorial Day; and eight
continuous weeks each summer. Husband also requested that
the infant, after he reached a suitable age, be included in
the visitation schedule of the older children. Until such
time, however, he requested reasonable visitation with the
infant after consideration of the child's age. Wife sought
to restrict husband's visitation schedule with the older
children to alternate Saturdays from 9:00 a.m. to 8:00 p.m.
The District Court limited husband's visitation to every
Saturday from 9:00 a.m. to 8:00 p.m. Husband appeals,
arguing that the District Court abused its discretion by
basing its denial of his request for overnight visitation
with the older children on its suspicion that he is
sustaining himself through distribution of illegal drugs, yet
the record does not contain any credible evidence to suggest
that he was, at the time of trial or within a substantial
time proceeding trial, involved in using, dealing or selling
illegal drugs.
Husband also notes that 5 40-4-224(1), MCA, states that
"the court shall presume joint custody is in the best
interest of a minor child ... ," and then argues that the
District Court's order, although labeled a "joint custody, I'
in reality vests wife with sole custody while severely
restricting his visitation with the children. Husband then
argues that the court did not follow the serious endangerment
standard specified by the visitation statute, S 40-4-217,
MCA, when determining his visitation rights.
This statute addressing visitation rights of a parent, 5
40-4-217, MCA, states in pertinent part that "[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." Section
40-4-217(1), MCA. This statute implies that the visitation
schedule be consistent with the best interests of the child.
Jones v. Jones (Mont. 1980), 620 P.2d 850, 851, 37 St.Rep.
1973, 1975. On appeal, this Court will not disturb a
visitation schedule ordered by the District Court when it is
supported by substantial credible evidence. In Re the
Marriage of J . A . M . and D.A.M. (Mont. 1988), 750 P.2d 1097,
1098, 45 St.Rep. 437, 438; In Re the Support of Rockman
(Mont. 1985), 705 P.2d 590, 593, 42 St.Rep. 1323, 1327.
We hold that substantial credible evidence does exist to
support the District Court's order limiting husband's
visitation with his minor children to every Saturday from
9:00 a.m. to 8:00 p.m. In ordering the visitation schedule,
the court took note of husband's past but extensive
involvement as a user and distributor of illegal drugs.
While husband claims he no longer engages in such activities,
the court noted that he has maintained a comparatively
affluent lifestyle with only the help of his live-in friend
who works part-time as a waitress earning minimum wages.
Exposure to such illegal activities would certainly meet the
serious endangerment standard outlined in S 40-4-217, MCA.
The record also contains a report by Court Services,
recommending that the husband be denied overnight visitation
rights. This recommendation was based upon the children's
desire not to spend the night with their father and the "very
strong indication that [husband] is chemically dependent and
should successfully complete inpatient treatment for his
dependency." The court also took note of the clinical report
stating that husband did not successfully complete the
chemical dependency program in which he was enrolled.
Based upon the above circumstances, the court deemed it
in the best interests of the children that husband not have
overnight visitation rights. The court then stated that it
would reconsider overnight visitation when husband could
demonstrate that he has obtained employment and can meet his
expenses from his own efforts rather than creating a
suspicion that he is meeting them through illegal means.
The district courts are in the superior positions to
determine the best interests of a child in a custody dispute,
In l e Marriage of Rolfe (Mont. 1985), 699 P.2d 79, 82, 42
?
St.Rep. 623, 626, likewise, the same is true regarding a
parent's visitation rights. Consequently, the district
courts' decisions are presumed correct and will be upheld
unless a clear abuse of discretion is shown. Rolfe, 699 P.2d
at 82, 42 St.Rep. at 626. Husband has failed to show by
clear error that the record does not support the District
Court's order.
We affirm.
Justice