In Re the Marriage of Njos

No. 94-329
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
IN RE THE MARRIAGE OF
TAMARA KAY NJOS, formerly
known as Tamara Kay Allard,
Plaintiff and Respondent,
and
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Edmund F. Sheehy, Jr.; Cannon & Sheehy,
Helena, Montana
For Respondent:
John L. Hollow, Attorney at Law, Helena,
Montana
Submitted on Briefs: December 8, 1994
Decided: February 15, 1995
Filed:
Justice Karla M. Gray delivered the Opinion of the Court
Robert Dale Allard (Robert) appeals from orders of the First
Judicial District Court, Lewis and Clark County, temporarily
modifying his visitation rights with his daughter and requiring him
to undergo a sex offender evaluation. We affirm.
Robert married Tamara Njos (Tamara) in 1982. Their marriage
was dissolved by a North Dakota court in 1987 and Tamara was
awarded sole custody of the couple's two minor children: a son,
Dustin Allard, born February 4, 1983, and a daughter, Bobbi Allard,
born September 30, 1986. Robert was granted weekly and alternating
holiday visitation.
The decree was modified in 1988 to provide for visitation by
Robert every other weekend, one full month in the summer, and
scheduled holidays determined by court order. The North Dakota
court allowed Tamara to move to Montana with the children in 1989,
and again modified Robert's visitation to provide for two months of
summer visitation and alternating Christmas and spring vacations.
On March 16, 1994, Tamara filed a petition in the First
Judicial District Court seeking recognition of the North Dakota
dissolution decree. Seven days later, she moved to modify
visitation, to object to visitation pursuant to 5 40-4-217 (6), MCA,
and for an ex parte order, under § 40-4-220(2) (a) (ii), MCA,
requiring that Robert's visitation with his daughter Bobbi be
supervised. Tamara supported the motion with her own affidavit;
counseling notes pertaining to alleged sexual assaults by Robert
2
against Tamara's sister, Tracy; transcripts of sworn testimony from
two women who allegedly had been sexually assaulted by Robert while
he was a junior high school teacher in the 1980s; and a copy of the
criminal complaint arising out of the incidents with Robert's
students. The District Court issued an ex parte order temporarily
modifying Robert's visitation rights by requiring supervised
visitation with Bobbi.
The parties subsequently appeared before the District Court
for a show cause hearing. Tracy Njos testified that, unbeknownst
to her sister Tamara, Robert had sexually assaulted her on various
occasions between 1984 and 1985, when she 14 to 15 years old. When
the hearing continued several weeks later, Tamara's other sister,
Cindy Hayden, testified that Robert had sexually assaulted her in
1985, when she was 12 years old. Tamara, Robert, and Robert's
mother, Linda Allard, also testified, as did Ron Silvers (Silvers),
a licensed therapist specializing in the psychological treatment of
sexual assault offenders and victims. Following the hearing, the
District Court ordered that the temporary modification of Robert's
visitation rights continue and that he undergo a sex offender
evaluation. Robert appeals from the District Court's ex parte and
post-hearing orders
1. Did the District Court err by proceeding under 40-4-
220, MCA, rather than § 40-4-217(3), MCA, in ruling on
the motion for temporary supervised visitation?
The District Court predicated its ex parte order modifying
Robert's visitation on § 40-4-220(2) (a), MCA, which provides for
temporary modification of custody ex parte when the moving party
3
shows by affidavit that the child's physical or emotional health is
endangered and an immediate change would protect the child's
physical or emotional health. Robert asserts that § 40-4-217, MCA,
applies and that the court was not authorized to proceed pursuant
to 5 40-4-220, MCA. We review a district court ' s legal
determinations to ascertain whether they are correct. In re
Marriage of Barnard (1994), 264 Mont. 103, 106, 870 P.2d 91, 93.
We address first the underlying question of whether 5 40-4-
220(Z), MCA, which refers by its plain language to an ex parte
request for temporary "custody" or modification thereof, is
applicable to Tamara's ex parte request for temporary modification
of "visitation." We previously have determined that visitation is
an inherent part of child custody and that the district courts have
broad powers to determine all problems concerning custody and
visitation. In re Marriage of Hunt (19941, 264 Mont. 159, 164, 870
P.2d 720, 723 (citation omitted). Under that rationale, and given
our primary responsibility of focusing on the well-being of the
children (see In re Marriage of Hickey (1984), 213 Mont. 38, 44,
689 P.2d 1222, 1225), it is clear that the statutorily-authorized
ex parte practice regarding a temporary custody request must
necessarily extend to ex parte practice regarding temporary
visitation issues. A contrary determination would prevent a
district court from acting expeditiously and on a temporary basis,
in appropriate cases, to protect the interests of minor children
whose physical or emotional health may be at risk.
In this case, Tamara's ex parte request for temporary
4
modification of Robert's visitation was supported by materials
sufficient to raise the issue of whether Bobbi's visitation
environment with Robert might endanger her physical or emotional
health. We conclude that § 40-4-220(2), MCA, authorizes a district
court to address ex parte requests for temporary modifications of
visitation arrangements, as well as requests for temporary custody
or modification thereof.
Robert argues that the court's temporary order for supervised
visitation in this case constitutes a "restriction" on his
visitation rights pursuant to § 40-4-217(3), MCA. On that basis,
he asserts that compliance with the procedural requisites of § 40-
4-217, MCA, was necessary before the District Court could order
supervised visitation with Bobbi.
Section 40-4-217(l), MCA, provides that a noncustodial parent
is entitled to reasonable visitation rights unless, after a
hearing, the court finds that visitation would seriously endanger
the child's physical, mental, moral or emotional health. Section
40-4-217(3), MCA, specifically provides that visitation cannot be
restricted absent such a serious endangerment finding by the court.
Robert relies on a Commissioners' Note to § 40-4-217, MCA, in
asserting that he is entitled to a hearing and a serious
endangerment finding prior to entry of an order "restricting" his
visitation to supervised visitation. The Note states that a court
cannot deprive the noncustodial parent of all visitation rights
without meeting the hearing and serious endangerment standards of
the statute. Neither the language of the Note nor our case law
5
interpreting § 40-4-217, MCA, support Robert's position.
The Note clearly states that the hearing and serious
endangerment requirements of 5 40-4-217, MCA, apply where a court
"deprive[sl the noncustodial parent of all visitation rights."
Here, the court did not totally deprive Robert of his visitation
rights. Indeed, it did not reduce Robert's visitation time in any
way. The court simply, and temporarily, required that Robert's
visitation with Bobbi be supervised.
Moreover, we previously have rejected a similar argument
attempting to impose the requirements of § 40-4-217, MCA, on an
order for supervised visitation. In Marriaqe of Hickev, 689 P.2d
1222, the father appealed from an order granting custody of the
children to the mother and providing him with reasonable and
supervised visitation. Relying on Firman v. Firman (1980), 187
Mont. 465, 610 P.2d 178, Hickey argued that the limitation of his
visitation rights was erroneous absent a finding that unrestricted
visitation would seriously endanger the physical or emotional
health of the child as set forth in § 40-4-217, MCA. We concluded
that Firman was distinguishable in that both the statute and that
case referred to a reduction in the amount of visitation time
granted, whereas Hickey's visitation time was merely to be
supervised. Marriaqe of Hickev, 689 P.2d at 1225.
We reach the same conclusion here. Section 40-4-217, MCA,
applies when visitation time is reduced or, as indicated in the
Commissioners' Note, totally eliminated. A requirement that
visitation be supervised is not a restriction of visitation rights
6
under 5 40-4-217(3), MCA.
Robert argues in this regard that our recent decisions in Rome
v. Hickok (Mont. 1994), 871 P.Zd 894, 51 St.Rep. 320, and In re
Marriage of Reininghaus (1991), 250 Mont. 86, 817 P.2d 1159,
support the opposite conclusion; namely, that supervised visitation
is a restriction of visitation rights under 5 40-4-217, MCA, which
requires a serious endangerment finding. While language in those
decisions may have inadvertently clouded the question, neither
reached a conclusion different from Marriase of Hickev.
As discussed above, we concluded in Marriage of Hickev that
either a reduction in the amount of time for visitation or a total
elimination of visitation constituted a "restriction" bringing §
40-4-217, MCA, into play. Marriaqe of Hickev, 689 P.2d at 1225.
We did not deviate in any way from that conclusion through 1987,
when we reiterated affirmatively in State ex rel. Sorenson v. Roske
(1987), 229 Mont. 151, 156-157, 745 P.2d 365, 369, the distinction
between reduction in visitation and supervision of visitation vis-
a-vis § 40-4-217, MCA. St. ex rel. Sorenson, 745 P.2d at 369;
citing Marriage of Hickev, 689 P.2d at 1225 and In re Marriage of
Jacobson (1987), 228 Mont. 458, 463, 743 P.2d 1025, 1027.
We decided Marriaqe of Reininshaus in 1991. There, the mother
was granted sole custody of the minor children and the father was
awarded reasonable visitation. The father argued on appeal that
the district court's order for supervised visitation was not
supported by a serious endangerment finding as required by § 40-4-
217, MCA. We noted factually that the district court had not
7
ordered supervised visitation, but had ordered reasonable
visitation. We stated--in passing and without explanation--that s
40-4-217(l), MCA, which refers to a noncustodial parent's right to
reasonable visitation, "requires a showing of endangerment."
Marriage of Reininshaus, 817 P.2d at 1161. We did not analyze,
interpret or app:Ly the 5 40-4-217(3), MCA, "restriction" language
argued by Robert here.
In ROrnOI
- decided in 1994, the district court ordered
supervised visitation upon release from prison of an incarcerated
father. The father's parents argued that his visitation should not
be restricted. Citing to the Commissioners' Note to § 40-4-217,
MCA, we stated that l'[tlhe proper standard to apply where the
custodial parent seeks restriction of the noncustodial parent's
visitation is the serious endangerment standard." -,
Romo 871 P.2d
at 896. We did not define "restriction" as utilized in the statute
in any way; as a result, we certainly did not revise the
interpretation of "restriction" set forth in Marriaqe of Hickey and
continued thereafter. See Marriaqe of Hickev, 689 P.2d at 1225;
Marriaqe of Sorenson, 745 P.2d at 369.
We conclude again that a requirement for supervised visitation
is not a "restriction" of visitation rights under § 40-4-217(3),
MCA, which imposes upon a district court the hearing and serious
endangerment requirements of § 40-4-217, MCA. We hold, therefore,
that the District Court did not err in proceeding pursuant to § 40-
4-220(2), MCA, rather than § 40-4-217(3), MCA, on Tamara's motion
for temporary supervised visitation.
8
2. Did the District Court abuse its discretion
by continuing the order to supervise
visitation following the show cause hearing?
Robert next argues that, under the circumstances, the
continuing order requiring supervised visitation was an abuse of
the District Court's discretion. This Court's standard of review
for custody and visitation is whether substantial credible evidence
supports the District Court's judgment. Marriaqe of Hunt, 870 P.2d
at 723. We will overturn a court's custody or visitation decision
only when the court's findings and conclusions clearly demonstrate
an abuse of discretion. Marriase of Hunt, 870 P.2d at 723.
During the show cause hearing, Tracy Njos testified that
Robert had assaulted and forced her to have intercourse with him
when she was 14 years old. Cindy Hayden, another younger sister of
Tamara's, also testified that Robert had sexually assaulted her at
age 12.
Based on this and other testimony at the show cause hearing,
the District Court determined that a question existed as to whether
Robert ttposes a risk to the children during their visitation." It
is clear that substantial evidence supports the court's
determination. We hold, therefore, that the District Court did not
abuse its discretion in continuing the temporary order requiring
supervised visitation following the show cause hearing.
3. Did the District Court abuse its discretion in
requiring Robert to undergo a sex offender evaluation?
Robert's final contention is that the District Court abused
9
its discretion in ordering him to undergo a sex offender
evaluation. We review a district court's discretionary ruling to
determine whether the court abused its discretion. In re Marriage
of Bonamarte (1994), 263 Mont. 170, 172, 866 P.2d 1132, 1133
(citation omitted).
Robert does not challenge the court's authority to order the
evaluation under 5 40-4-215, MCA. He argues that ordering the
evaluation was an abuse of the court's discretion because the
results would not constitute relevant and admissible evidence.
Relevant evidence assists in establishing the existence of any
fact which is of consequence to resolution of the action. Rule
401, M.R.Evid. The determination of the admissibility of evidence
is within the discretion of the trial court; the court is not
guided by fixed rules, but must consider the nature of the evidence
and the circumstances of a particular case. In re Marriage of
Starks (19931, 259 Mont. 138, 145, 855 P.2d 527, 531-532.
In essence, Robert's argument requests evidentiary rulings
regarding sex offender evaluation results which do not yet exist.
For the most part, the relevance and admissibility of this evidence
cannot be determined by any court until the evaluation is
performed.
Robert is correct, however, with regard to the admissibility
of one aspect of the as-yet-unperformed sex offender evaluation.
Relying on State v. Staat (1991), 248 Mont. 291, 811 P.2d 1261, he
argues that the results of any polygraph examination performed as
part of the sex offender evaluation are inadmissible. In Staat,
10
which involved use of the results of a court-ordered polygraph
examination in revoking an appeal bond, we quoted § 37-62-302, MCA,
which prohibits the introduction or admission of polygraph results
as evidence in a court of law. Staat, 811 P.2d at 1261. We went
on to state as a rule of law that N [plolygraph evidence shall not
be allowed in any proceeding in a court of law in Montana." Staat,
811 P.2d at 1262. We quoted and applied that rule of law in State
v. Hensley (19911, 250 Mont. 478, 483, 821 P.2d 1029, 1032, in
reversing a district court's consideration of polygraph results in
sentencing a criminal defendant.
Here, we apply the Staat rule in a proceeding involving
custody and visitation of children. We conclude that the results
of any polygraph examination performed during the court-ordered sex
offender evaluation are not, and will not be, admissible evidence
in subsequent proceedings in this action.
Robert also argues that the District Court, having refused to
consider Silvers' testimony recommending the sex offender
evaluation because Silvers was not properly qualified as an expert,
abused its discretion by ordering the evaluation. He cites no
authority requiring expert testimony before a court can order a sex
offender evaluation or any other investigation or report authorized
by § 40-4-215, MCA. Moreover, the testimony presented at the
hearing from persons other than Silvers clearly alerted the court
to the potential risk Robert posed to his minor daughter. We
conclude, therefore, that the District Court did not abuse its
discretion in ordering Robert to undergo a sex offender evaluation.
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Affirmed.
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February 15, 199.5
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid,
to the following named:
Edmund F. Sheehy, Jr.
Cannon & Sheehy
P.O. Box 5717
Helena, MT 59604-5717
John L. Hollow
Attorney At Law
318 East Sixth Avenue
Helena MT 59601
ED SMITH
CLERK OF THE! SUPREME COURT
STATE OF MONTANA