In Re the Marriage of Vinecke , 221 Mont. 58 ( 1986 )


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  •                                     No. 85-580
    IN THE SUPREME COURT OF THE STATE OF MONTANA
    1986
    IN RE THE MARRIAGE OF
    YARK WAYNE VINECKE,
    Petitioner and Respondent,
    and
    JUDY ANN VINECKE,
    Respondent and Appellant.
    APPEAL FROM:         District Court of the Thirteenth Judicial District,
    In and for the County of Yellowstone,
    The Honorable Charles Luedke, Jud-ge presiding.
    COUNSEL OF RECORD:
    For Appellant:
    Jones Law Firm; Blair Jones, Billings, Montana
    For Respond.ent:
    Berger Law Firm; Chris J. Nelson, Bil.lings, Eontana
    Submitted on Briefs:   March 6, 1986
    Decided: April 17, 1986
    Filed:    BPR 1 1986
    ;'
    @
    -
    Clerk
    Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
    the Court.
    Respondent, Judy Vinecke, appeals the September 5, 1985,
    order of the Thirteenth Judicial District Court granting a
    fixed visitation schedule to Petitioner, Mark Vinecke.      We
    affirm.
    Mark filed a petition for dissolution on July 28, 1984.
    At that time, Mark, Judy and their two minor children lived
    in Billings.   During the pendency of the dissolution proceed-
    ings, Judy and the children moved to Butte; Mark continued to
    reside in Billings.     The parties' marriage was dissolved on
    December 3, 1984.    Judy was granted custody of the two minor
    children, Keith and Kristen, with reasonable right of visita-
    tion awarded to Mark.    At the time of dissolution, Keith was
    nearly three years of age and Kristen was one and a half.
    In the ensuing months, Mark was permitted to visit the
    children once, on February 14, 1985, while he wa.s in Butte on
    business.   Following further unsuccessful attempts to arrange
    visitation, Mark filed a petition on May 21, 1985, requesting
    the court to grant a fixed visitation schedule.
    The matter came on for hearing August 1, 1985.     Mark
    testified that the court's assistance was necessary to deter-
    mine   the question of reasonable visitation.      He   further
    testified that he made numerous attempts to arrange visits.-
    tion, but that Judy did not have a phone and would not re-
    spond to his messages.      Judy testified that Keith was a
    behavioral problem when he returned home followi.ng a month's
    stay with Mark during August 1984, and that both Keith and
    Kristen had shown fear of Mark when he visited them in Butte.
    The next witness was Dr. George Swaggerty, a clinical
    psychologist hired by Judy to determine whether the children
    had experienced trauma from Mark's visit and the on-going
    conflict between Mark and Judy.   Dr. Swaggerty testified that
    he believed the children were traumatized by inconsistent and
    collective visitation, and that visitation should he arranged
    on a graduated basis, with Mark seeing the children on1.y for
    periods of severa.1 hours the first six months.           Dr. Swaggerty
    felt that if things went well the first six months, then
    overnight visitation should follow.
    By order dated September 5, 1985, the District Court
    granted     Mark's   petition    allowing    fixed   visitation,   with
    visitation to occur for one month during the summer and on
    alternating holidays.           The order contained the following
    findings and conclusions:
    The parties have been unable to implement
    visitation under a "reasonable times and
    places" standard, with the result that
    petitioner seeks the adoption of a fixed
    visitation schedule, while respondent
    supports the suggestions of her clinical
    psychologist for a gradually-commencing
    and    consistently-enlarging visitation
    program, as tolerances of the children
    allow.
    After   consideration., it    is   concluded:
    That neither request is ideal from the
    standpoint of the best interests of the
    children, but respondent's request suf-
    fers the additional disadvantage of being
    impractical both because of the geograph-
    ical distance involved and the fact that
    the   psychologist's   program   requires
    reasoning and reasonableness by the
    parties, being ingredients which are not
    available in the circumstances of the
    attitudes and motivations of the parties.
    Judy appeals the order and raises the following issues:
    1.    Whether the District Court erred in failing to set
    forth specific findings of fact upon which the court conclud-
    ed that Mark's       fixed visitation sched.ule was in the best
    interests of the minor children of the parties.
    2.    Whether the adoption by the District Court of Mark's
    fixed visitation schedule constitutes an abuse of discretion
    in that it is not supported by the evidence and the visita-
    tion schedule does not serve the best interests of the minor
    children of the parties.
    Judy asserts the District Court erred by               failing tc
    enter specific findings of fact and conclusions of law pursu-
    ant to Rule 52, M.R.Civ.P.         We disagree.      The last sentence
    of Rule 52(a), M.R.Civ.P.,         reads:     "Findings of fact a.nd.
    conclusions of law are unnecessary on decisions of motions
    under F.ules 12 or 56 or any other motion except as provid.ed
    in Rule 41 (b) "     .   Rule 41 (b) concerns invnlunta-ry dismissal of
    actions and does not apply in this instance.                     In Raker      TT.
    Baker (Mont. 1982), 
    646 P.2d 522
    , 39 St.Rep. 1031, we held
    that the District Court did not err by failing to include
    specific findings and conclusions in its order specifying the
    husband's visitation rights.
    In the case at bar, although the district judge was not
    obligated to enter findings of fact and conclusions of law,
    the order does contain findings and conclusions.                       The find-
    ings of fact are:          1)    the parties have been unable to imple-
    ment    reasonable visitation;             2)   petitioner    seeks a        fixed
    visitation       schedule; and       3)    respondent desires a           slowly
    enlarging visitation schedule as recommended by the clinical
    psychologist.            The conclusions of          law are:     1)     neither
    request is ideal for the best interests of the children;
    2)     respondent's       request    is     impractical      because    of    the
    geographical distance involved and that the clinical psychol-
    ogist's recommendation requires reasonableness by the parties
    which     is    lacking     in   both     parties.      These   findings and
    conclusions are supported by substantial, credible evidence
    in the record.
    Recently, in In Re The Custody and Support of B.T.S.
    (Mont. 1 9 8 6 ) ,           P. 2d         ,    43 St.Rep.    37, this Court
    remanded the case to the District Court for its failure to
    include sufficient findings in making                   an a.ward of         joint
    custody.        In that case, we noted that $ 40-4-223, MCA, re-
    S
    quires the District Court to consider the factors listed
    under 5 40-4-212, MCA, as well as other relevant criteria
    raised by the facts in evidence, such as the parents' cooper-
    ation with each other and the distance between their resi-
    dences.        43 St.Rep. 40, 41.
    - - B.T.S.
    In P e
    .               is not controlling in this case for the
    issue is visitation, not joint custody, but we do note that
    in the present case, the district judge gave consideration to
    the childrens' best interests, the parties' attitudes toward
    each other, and the distance between the parties' residences.
    Judy argues that the granting of a fixed visitation
    schedule does not serve the best interests of the children,
    was not supported by the evidence and was an abuse of discre-
    tion by the District Court.   We disagree.   The record reveals
    Mark was granted a right to reasonable visitation under the
    dissolution judgment, but Jud-y did not have a phone and would
    not respond to his messages to allow him to arrange visits.-
    tion.    Mark visited the children once during the five months
    following the dissolution.    As we said in Baker, supra, "As
    in so many     cases where   the word   'reasonable' visitation
    rights are put into the decree, the interpretation of the
    word 'reasonable' is left to two unreasonable parties."     
    646 P.2d 524
    , 39 St.Rep. 1034.     As in Baker, in this case the
    court's aid was necessary to clarify the meaning of "reason-
    able."     The record shows the parties did not deal with each
    other reasonably.     We find no abuse of discretion in the
    district    judge ' s conclusion tha.t the lack of cooperation
    between Mark and Judy would prohibit implementation of gradu-
    ated basis visitation.
    Affirmed.
    

Document Info

Docket Number: 85-580

Citation Numbers: 221 Mont. 58, 716 P.2d 638

Judges: Gulbrandson, Harrison, Morrison, Sheehy, Turnage

Filed Date: 4/16/1986

Precedential Status: Precedential

Modified Date: 8/6/2023