In Re the Marriage of Chase

IN THE SUPREME COURT OF THE STATE OF MONTANA
IN RE THE MARRIAGE OF
KATHRYN L40UISECHASE, a/k/a
KATHRYN LOUISE WISE,
Petitioner and Respondent,
1
and 1 O R D E R
1
STEVEN ELL CHASE,
Respondent and Appellant.
--
The initial opinion in this cause was decided and file&
with the Clerk of this Court on March 30, 1989. As a ~ e s u l ' ~ ~
C:
:
of the petition for rehearing on the part of the appe31*antz;
- w.
the Court has concluded that the original opinion should b e : 3 --
< (
'
! ?
withdrawn and a revised opinion substituted. --u FJ
c -
- .
IT IS ORDERED: -- i
:;.I
---2
rJ
1. That the original opinion in this cause showglas
i- c
?
having been submitted on briefs February 23, 1989, and dec&d- @
ed March 30, 1989, is withdrawn. 3
2. That the revised opinion in this cause, which is
shown to have submitted on briefs February 23, 1.989, and
decided April dz% 1989, is substituted as the final opinion
in the above cause.
d
DAmED this 2 7 - d a y of April, 1989.
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Steven Chase appeals from an order granted by the Dis-
trict Court for the Eleventh Judicial District, Flathead
County, modifying certain portions of a divorce decree and a
subsequent order relating to visitation of the Chase's four
children. The issue presented for our review is whether the
District Court erred in granting respondent's motion to
modify. Steven argues that the motion should have been
denied because it had no foundation in statute. He also
argues that the motion should have been denied on several
procedural grounds. We affirm the granting of the modifica-
tion order.
Steven and Kathryn Chase were granted a Decree of Disso-
lution on February 19, 1987. Kathryn was granted sole custo-
dy of the parties' four minor children, with visitation and
other matters set forth in the decree. In July, 1987, Steven
moved to modify the decree, requesting a reduction in child
support and modified terms of visitation. Following a hear-
ing, the parties stipulated to certain modifications, includ-
ing a joint custody arrangement. At the time of that
arrangement, Kathryn lived in Kalispell, Montana, and Steven
lived in Thousand Oaks, California.
Pursuant to the court's order, Kathryn was to remain
primary residential custodian, with reasonable rights of
visitation granted to St.even in accordance with the original
decree and as modified. In the original decree, Steven was
entitled to visit every other weekend, every other major
holidav, and for 30 days each summer, with 48 hours notice
required prior to any visitation. The modification order
increased Steven's summer visitation period to 45 days each
year, allowed him one-half the Christmas vacation period each
year, and required a 30 day written notice to Kathryn with a
48 hour confirmation prior to any visitation. The court
ordered that the parties share equally in the costs of trans-
porting the children.
Tn June 1988, Kathryn moved for an order to modify or
clarify the decree and its subsequent modification. Briefs
were submitted and a hearing w a s held. The parties waived
the making of a record at that hearing. In granting the
motion, the court identified the splitting of transportation
costs as the particular provision requiring modification or
cl-arification. The court did not alter the number of visita-
tion days granted to Steven. Finding Steven in a better
position to meet the burden of covering transport-ationcosts,
the court ordered that:
1. Respondent should he entitled to visitation on
alternating weekends provided;
a. t h z t . such visitation occur in Flathead
County, Montana or such other county as
the Petitioner may reside at the time of
visitation, and
b. that notice of such visitation shall he
given I 0 days in advance of such visita-
tion, i.n writing, hy Respondent to
Petitioner.
2. Respondent shall he entitled to visitation on
alternating holidays as provided in the origi-
nal decree, provided, however, that Respondent
shall pay all costs of transportation for such
visitation and, further, that notice of such
visitation shall be given at least 20 days in
advance of such visj-tation, in writing, by
Respondent to Petitioner.
-.
2 The Respondent shall be entitled t.o a visita-
tion for a total period of 45 days during the
summer between June 10 and Auqust 20 of each
year provided:
a. that the parties shall equally share the
cost of transportation of the children
for that visitation with the Respondent
paying the cost of having the children
transported from the Petitioner's resi-
dence to his residence and the Petitioner
paying the cost of having the children
re-transported from the Respondent's
residence to her residence, and
b. that notice of such visitation shall be
given no later than April 15 of each year
for which visitation is to be exercised,
in writing, by Respondent to Petitioner.
It-.is from this order that Steven appeals. He argues
that Kathryn's motion to modify or clarify has nc foundation
in the statute because she failed to allege how modification
would serve the "best interests of the children" as required
by S 40-4-217, MCA, nor did the District Court make any
flndings in that regard. The record before us is incomplete.
We cannot determine from the record if there was a hearing
held on Kathryn's motion. No transcript was made. Steven
argues that the matter was submitted on briefs without. a
hearing. The court's order dated September 15, 1988, indi-
cated that a hearing on the motiolz had been held and the
court had been advised. We therefore consider the issue
without the benefit of findings of fact or transcript.
The argument on the part of the Steven that the matter
should be returned for further consj.derati.on of the best
interests of the children disregards the essence of the order
of September 15, 1988. The visitation rights on the part of
both Steven and. Kathryn were not modified by that order. As
appears above, the primary purpose of the modification was to
estahlishe$ the manner of sharing the costs of: transporta-
tion. The aim on the part of the District Court was to
clarify a previous custody order so as to make the visitation
more workable. The partjes had heen before the court a
number of times requesting the court to judicially resol~7~
various issues upon which they could not reach agreement. We
conc1ud.e there is no adequate record from which this Court
may review the issue of the best interests of the children.
V e further conclude thzt the present record does not disclose
?
that the modification affected the best interests of the
children. We hold that Steven has failed to demonstrate a
basis for reversal of the crdex of September 15, 1988.
Steven next makes a number of procedural arguments for
setting aside the order of the District Court. First, Steven
contenCs that Kathryn's motion to modify or clarify was not
timeIy. fle argues that because no "changed circumstances"
were all-eyed, the motion was actually one to alter or amend
the judgment u ~ d e rRule 5 9 ( g ) , M.R.Civ.P., which must be made
within 10 days. Alternatively, he proposes that the motion
is one to modify because of a mistake of fact under Rule 60,
M.R.Civ.P., which must be made within 60 days after entry of
judgment. Rule 60 (b), K. R.Civ.P. Since Kathryn's motion was
made 120 days after the District Court's order, Steven argues
that It should have been dismissed as untimely under either
of the above stated rules.
Kathryn's motion was brought pursuant to S 40-4-217,
FCA, which allows the court to modify a visitation order
whenever modification would serve the best interest of the
child. Section 40-4-217 (3) , MCA. There is no requirement
that the movant show changed circumstances under this stat-
ute, although the court "shall not restrict a parent's visi-
tation rights unless it finds that the visitation would
endanger seriously the child's physical-, mental, moral, or
emotional health. " Section 40-4-217 ( 3 ) , MCA. This standard
has been held to he the same standard used to judge the
modification of custody decrees in S 40-4-219, MCA, which
requires a showing ol: "changed circumstances." PTatter of
P..r,.S. Barkhoff (1983), 207 Mont. 199, 209-10, 674 P.2d
v.
1082, 1087. In this case, however, the District Court was
not restricting either parent's visitation rights. The
number of days which Steven was entitled to visit the chil-
dren remained the same, and only the required notice and
transportation costs were altered by the court. We conclude
that there is no reason to ignore the form in which Kathryn's
motion was presentee? to the court. Since S 40-4-217, MCA,
contains no time limitations, we hold that Steven's claim
under Rules 59 and 60, M.R.Civ.P. fails.
Steven also argues that the District Court's ruling on
motions under either Rules 59 or 60, M.R.Cjv.P., must be made
within 45 days, and since it was not. so made in this case,
the motion should be deemed denied. Kathryn's motion to
modify was not made pursuant to Rule 59 or Rule 60,
K.P..C~TT.P. This argument is therefore without merit.
Steven argues that Kathryn's failure to file a brief in
support o= her motion until 45 days after the motion was
filed should. result in a summary denial under Rule 2, Uniform
District Court Rules, which states in pertinent part:
(b) Failure to file briefs may subject the
motion to summary ruling. Failure to file a brief
within five days by the moving party shall be
deemed an admission that the motion is without
merit. Failure to file an answer brief by the
adverse party within ten days shall be deemed an
admission that the motion is well taken. Reply
briefs by movant are optional, and failure to file
will not subject a motion to summary ruling.
We note that Steven obtained an extension of time by stipula-
tion of the parties under which his answer brief was filed
nearly 60 days after Kathryn's brief was filed.
The District Court did not specifically rule on the Rule
2 ohjection. Clearly the District Court did not deem the
failure to comply with the filing of the briefs as an admis-
sion that the motion was without merit. It considered the
matter on the merits. Under subparagraph ( d ) of Rule 2, the
District Court is given the discretion to enlarge the time
allowed in which a motion is to be deemed submitted. While
the court did not specifically enlarge the time by order, it
accepted the briefs on the part of both parties without-
regard to the time constraints of Rule 2(b). In the absence
of any showing by the record that the District Court commit-
ted an abuse of discretion, we will not overturn the decision
of the lower court. We hold t.here is no reversible error on
the procedures before the District Court.
Affirmed.
We Concur: