Annotate this Case
Download PDF
95-108 NO. IN THE SUPREME COURT OF THE STATE OF MONTANA 1995 IN RE MARRIAGE OF PATRICIA ANN ROBERTS, Petitioner and Respondent, and DAVID ROBERTS, Respondent APPEAL FROM: District Court of the Thirteenth Judicial In and for the County of Yellowstone, The Honorable Maurice R. Colberg, Judge District, presiding. COUNSEL OF RECORD: For Appellant: Mark D. Billings, For Parker Parker, Montana Law Firm, Respondent: Allen Beck, Attorney Billings, Montana Submitted at Law, on Briefs: Decided: Filed: Cl October 19, 1995 December 5, 1995 Justice N. Trieweiler Pursuant to Section Internal 1995 Terry Operating cited as precedent document with result to delivered the I, Paragraph 3(c), Rules, the and shall the Clerk State Reporter Supreme the Court. Supreme decision shall by its Court Publishing of Montana following be published of the opinion filing Court not as a public and by a report Company and be West of its Publishing Company. Patricia the Roberts Thirteenth dissolution hearing order further her which in opposition an in which of David We restate modified the process when it David court District visitation amended that on appeal Court District enter of the entered David District and until Melstone, Court. as follows: abuse its discretion when it to due right to it arrangement? Court the by order of court visitation for a two-day support the he not for County in motions, and ordered issues Court Following evidence any the District Yellowstone presented from the Roberts. disallowed temporary the in pre-dissolution appeals the Did 2. the to parties it the Did 1. marriage the in District to various order Montana. a petition Judicial of at filed violate pleadings to David's include right David's visitation? 3. Did admitted tapes Did 4. right to travel the District Court of conversations the District when abuse recorded Court it violate ordered that Montana? 2 its discretion when without David's knowledge? David's he not constitutional enter Melstone, FACTUAL BACKGROUND David and Patricia eight age of whom are minors: Brian Christina Raina Roberts, age 11; and Kyla They have Keith Roberts, Ann Roberts, 8. On August of on March 13, 1958. three children, age 16; were married her marriage temporary David. family whereabouts order children. her and her adult assault, On the prohibiting Patricia date which to kill the David children that she lives threats she her of her was concerned threats of suicide, to and them. court from issued It a temporary restraining or disturbing molesting to Patricia on which David could an not disclose and the that included and the minor children. of the minor life a and stated and did stated for motion mood swings and made repeated children, same day, her dissolution injunction, affidavit 25, 1994, for for an exparte temporary The affidavit and threats a petition Patricia's she feared because David experienced order and home on August because filed She filed at the same time. the minor to restraining affidavit fled 31, 1994, Patricia also granted temporary and set September show cause why further the peace of custody 8, 1994, as the relief should not on September 12, be granted. The show cause 1994. On September restraining until order September hearing was actually 15, 1994, the parties and other temporary 27, 1994. 3 held stipulated relief to a temporary to remain in effect On September 27, second stipulation support, court; a second show cause hearing regarding and maintenance. have sole of 1994, custody temporary The parties of the minor family and the parties therapist regarding David the minor children stipulation also Patricia or school temporary David from at minor children attend, Patricia order. of Melstone, own affidavit Montana. as bodyguards. held have the children from The with or removing another exparte exclusion any the motion for of David from She based her motion on her of Sam Damon and John Emigh, whom In her affidavit, Patricia noted the stipulation and 30, 1994. On November 14, David made several Patricia and contact residence on which David had violated September enjoined to David. any and filed and the affidavits dated also same Patricia's She requested the community order by a of Montana. 24, 1994, numerous occasions order to an evaluation having the she had hired further until from doing the children restraining of the the peace of the petitioner minor On October order The stipulation and Patricia from the State would who would make a recommendation or disturbing forbade child Patricia further submit the that children would visitation. from molesting that visitation and a psychologist appropriate until to a visitation, agreed children David would have supervised the court; custody, led in contempt for interviewed have the court seek advice § 40-4-214(2), MCA, for violating in motions. the visitation chambers from a professional an investigation 4 He moved to have order, custody, regarding person and report to to pursuant to concerning the custody order of the minor requiring and for of family children efforts held in to exercise to $Z40-4-215, pursuant of an attorney pursuant Patricia pursuant law mediation the appointment the have children to MCA. was based evidence the hearing, law, the motion family temporary 1994, Rule to prohibit court. it granted all It also held in The court 15(b), and visitation, the court findings in which custody custody, its mediation. to on his MCA, interests David's to the parties' issued to have Patricia law pursuant pertaining the court and order the an motion to unsuccessful visitation. On December 6 and December 7, 1994, to consider § 40-4-301, to represent § 40-4-205, contempt to MCA, for to and ordered that conclusions motions pleadings include the modified dated until further David not enter of except for amended issue the order by David Following and the motion deemed the and restraining visitation of fact, of David's M.R.Civ.P., a hearing motions. contempt visitation held of temporary September order 30, of the the town of Melstone, Montana. ISSUE 1 Did the District the temporary visitation We review visitation clearly 622, erroneous. abuse its discretion when it modified arrangement? a district modification 52 St. Court court's to findings determine In re MarriageofElser Rep. 434, 436 (citing of whether (Mont. those 1995), MarriageofJohnson 5 fact related to findings are 895 P.2d 619, (1994), 266 Mont. 158, 879 P.2d 689, 166, findings are not district court's clearly rights When a district erroneous, modification abuse of discretion Section 694). Court of visitation is clearly 40-4-217(3), this court's MCA, governs will rights demonstrated. underlying Elser, overturn only when an P.2d at 622. 895 modification a of visitation and provides: The court may modify an order granting or denying visitation rights whenever modification would serve the best interest of the child; however, the court may not restrict a parent's visitation rights unless it finds that the visitation would endanger seriously the child's physical, mental, moral or emotional health. In its his minor order, which temporarily children, the court David and the minor mental and emotional contends that after serious endangerment following facts Deputy threats to take a very violent the adult the father and thought other siblings when they On appeal, David we conclude record, found that which Fisher, that Court could that of her who testified he dealt were growing be interpreted that the had of David; the inappropriately trial as David may be Patricia fear at up. set forth David made comments to and others; person; 6 between endanger the physical, The District her because their " [vlisitation children." of Patricia children David from visiting was not proven. of It order. and dangerous to protect the was proven. the life bodyguards three of a review Floyd that would seriously endangerment in its Sheriff, concluded health serious However, the children prohibited hired and that all with feared them or A review were of the by supported Roberts, the record substantial couple's man and testified then could the kill son, he man. testified could commit the minor and take that when his visitation Roberts that his him him for "kill a take Sheriff that at to to Deputy him as threatened The visit so he as long and threatened to of 19-year-old David threatened to for father throat couple's country. refused the a gun that with had it modified the visitation bitch" scheduled order rule set 522, is without gave provided merit. "in The agreement and did not temporary of abuse fact its visitation contention of him that rights parental The parties' custody the custodian stead." court findings Babcockv. Wonnacott (1994), temporary be the the David's in that Court's parties' deprives forth District are not discretion agreement to by David. Furthermore, custody the and that erroneous, prohibit shall foreign to the of as a violent time. clearly tion a children We conclude when family findings Kevin David obtain testified the to David minor to court's a knife Roberts, Patricia children testified described he had been afraid remember. the Specifically, place by David Christopher that suicide son, he saw David was asked that evidence. 24-year-old that a man and demonstrates court's merely event to of her supervise order changed the visitation 7 children the 149, 27, children absence 1994, to . Court's violation 268 Mont. preserved the District in September the of the . her alternate arrangement. the 885 P.2d stipula- Patricia . Kevin in of and Roberts place and custody David agreed to the alternate custody arrangement, and therefore, Babcock is not on point. ISSUE 2 Did the District it amended when Court the violate David's pleadings to right include to due process David's right to visitation? The District the existing of the Court order motions asserts that deemed the pleadings related directly to custody sought the court's right to due process which would conform custody issues custody the Patricia's David general would First, affidavit of threats against the stated have all placed Patricia's although visitation. the subject the safety violated notice his of the issue to respond. did concern visitation by David own motions of children child would to Second, that visitation by danger. in stated to related visitation. she was afraid bodyguards David presented David's that none the amendment of pleadings and whether involves affidavit permits The evidence children. which of and an opportunity to the evidence. endanger denial because he was not given M.R.Civ.P., in and visitation, amendment of the pleadings be considered Rule 15(b), amended and modified Third, the that and health of Patricia on several occasions, David made direct and other family members. the Finally, which indicated example, court, that the question when the hearing in chambers that the major of visitation began the court issue that 8 stated is pending made statements was at issue. that before For "I was told the court is related And, in issue to response in this endangered of about presence the effort visitation visitation conform to the tapes the violated District of Court conversations contends and him 5 45-8-213, without the Rule that abuse were the the the that we presentation the of to court's which modified the temporary concerned that the David's the right pleadings to consent of M.R.Evid., Effect upon unless and discretion without David's when it over objection the taping admitted knowledge? of conversations prohibits all 3 its tapes admitted which (a) predicated evidence affected, hear be standard with we conclude when it recorded MCA, 103, an evidence. David Dino to the issue testimony ISSUE Did to and problems violation Patricia's and therefore, was not think an objection, statutory take "I issues. required agreement, due process to to prove agreement to to object endangerment--the children." may or may not and I want disputes failed his that children response custody failed with stated Roberts, another David visitation--and of court the Mr. in serious characterization to In kids." respondent the of 'I[ w 1 e're of David's the be whether that." to endanger modify would that evidence of to an objection, case stated have visitation by the evidence court the between his in violation of conversations parties. provides that: of erroneous ruling. Error may not be a ruling which admits or excludes a substantial right of the party is 9 son of Objection. In case the ruling is one admitting (1) evidence, a timely objection or motion to strike appears of record, statincr the suecific ground of obiection, if the specific ground was not apparent from the context . . . . (Emphasis appeal added.) We have objections made based on the correct Mont. 61, 874 P.2d 827 P.2d 182, At the because idea of 67, 817, what had they the for they did the David just objected been to handed and because at contends were to the the that recorded in did abuse ( 19 94 ) , 2 6 5 178, not note consideration that of the tapes our at he had no transcript that Dino, negotiating the Now, admissible. have been § 45-8-213, discretion we reached the tapes revealed should hearing. the and are not of the of of between tapes its without and 252 Mont. attorney time) violation at We also (1992), review same the basis tapes. on specific, admission his a quick on this court consider timely, Bachev.Gilden and negotiations object that 714; a negotiation David because are only Guertin v. Moody s Market, Inc. and David, on appeal, we will that was actually Patricia, not trial 710, (admitted conversation that 820. said, tapes at grounds. hearing, they stated excluded MCA. Therefore, when it David we hold admitted conclusion under Issue the 1 issue. ISSUE 4 Did the travel when District it ordered Court that violate David's he not 10 enter constitutional Melstone, right Montana? to The District community Court of Melstone, from disturbing Section prohibited Montana, David in order the peace of Patricia 40-4-121, from entering to effectively and his minor MCA, provides the in part small enjoin him children. that: As a part of a motion for temporary maintenance (2) or support or by independent motion accompanied by affidavit, either party may request the court to issue a temporary injunction for any of the following relief: . . . (b) enjoining a party from molesting or disturbing the peace of the other party or of any family member . . . . We conclude right to travel distance but merely in the parties' community simply did not restrict reasonable restrictions did restriction his truck, order to be afraid. walk back and forth testified this David's right that chosen abuse its discretion that from school by imposing The town of Melstone can David be seen from Patricia assisted what he's she needed an additional 11 this is very most of the the town of her because she doing have to be afraid and do their not had a temporary from coming into the order day about I don't should by to travel. of the hearing, all the issues The Melstone restriction which barred "have to worry on the of reference size, residence and she testified David's until resolved. frame activities. At the time restraining not the court Patricia's businesses. did with on David's and Melstone its family are finally happened to be the interfere Neither small Court placed pleadings Considering court. unreasonably also the District David must keep from his estranged raised the that or if to let normal the kids things." restraining I see She order keeping him out of Melstone me and takes freely a lot of stress and not live We conclude neither implicated prohibits "because with that nor this David's order visitation constant fear constitutional a lot the all right agreement. For these the parties' We concur: 12 of stress off We can move around upon by the court's Melstone. which modified takes of the kids. infringed him from entering the court's off it time." to order reasons temporary travel is which we affirm custody and