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No. 95-070 IN THE SUPREME COURT OF THE STATE OF MONTANA 1995

IN RE THE MARRIAGE OF KATHLEEN A. KOVASH, Petitioner and Respondent, and MYRON J. KOVASH, Respondent and Appellant.

APPEAL FROM: District Court of the EighteenthJudicial District, In and for the County of Gallatin, The Honorable Thomas A. Olson, Judge presiding.

COUNSEL OF RECORD: For Appellant: Mark P. Yeshe, Attorney at Law, Helena, Montana For Respondent: Derik Pomeroy, Attorney at Law, Bozeman, Montana K. Amy Pfeifer, Attorney at Law, Department of Social andRehabilitationServices, Helena, Montana (Attorney for Child Support Enforcement Division) Todd R. Hillier, Attorney at Law, Bozeman, Montana (Attorney for Guardian Ad Litem) Bruce E. Becker, Attorney at Law, Livingston, Montana (Attorney for Jeffrey Kovash)

Submitted on Briefs: June 20, 1995 Decided: July 25, 1995Justice William E. Hunt, Sr., delivered the opinion of the Court. Appellant MyronKovash appeals thevisitation schedule issued
sua sponte by the Eighteenth Judicial District Court, Gallatin County. We affirm. The sole issue on appeal is: Did the District Court err when it issued a visitation schedule sua sponte? The parties were divorced in 1992. They have four minor children. Myron resides in Livingston, Montana, and respondent, KathleenKovash, resides inKellogg, Idaho. Inthe divorce decree, Kathleenwas granted sole custody. Myron's visitation rights were tobe terminated if he failed to complywith certain conditions in the decree. The first visitation schedule issued by the District Court covered the period from August 31, 1992, through July 31, 1993. In September 1993, the two older children began residing with Myron in Montana, while the two younger children stayed with Kathleenin Idaho. The subsequentvisitationschedules concernthe two younger children. The second visitation schedule covered the period from December 26, 1993, throughJanuary 2, 1994. The third visitation schedule covered theperiod fromApril 1, 1994, through August 19, 1994. Inthe fall of 1994, theDistrict CourtrequestedtheGuardian Ad Litem to submit a recommendation concerning visitation. After she submitted her recommended visitation schedule to the District Court, it issued an order containing the current visitation schedule. The current visitation schedule covers the period of
2December 16, 1994, throughAugust 26, 1995. Myronbases his appeal
on this last visitation schedule. ISSUE Did the District Court err when it issued a visitation schedule sua sponte? Our standard of review for a district court's decision concerning visitation is whether it abused its discretion. In re Marriage of Hunt (1994), 264 Mont. 159, 164, 870 P.2d 720, 723, (citing In re Marriage ofAnderson (1993), 260 Mont. 246, 252, 859 P.2d 451, 454). Myron argues that the District Court violated § 40-4-217(1), MCA, when itdeniedhisproposedvisitation schedule and issuedits
own without a hearing. The proper statute governing a district court's continuing jurisdiction over visitation is § 40-6-118, MeA. Thecourthascontinuingjurisdictiontomodifyorrevoke a judgment or order: (2) with respect to matters listed in 40-6-116(3)
Relevant portions of § 40-6-116, MCA, state that: (1) The judgment or order of the court determining the existence or nonexistence of the parent child relationship is determinative for all purposes. (3) (a) Thejudgment or ordermay contain anyother provision directed against the appropriate party to the proceedingconcerningthecustodyandguardianshipofthe child, visitationprivileges with the child

. . . or any other matter in the best interest of the child. (Emphasis added.)

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In the instant situation, Myron had the hearing required by § 40-4-217, MCA, before his visitation rights were terminated in the decree of dissolution. The District Court suspended that termination of visitation pursuant to Myron's compliance with certainconditions. TheDistrictCourthascontinuingjurisdiction to monitor Myron's compliance with those conditions and to grant visitation accordingly. The visitationthat Myron has enjoyed did not change his status. He is still a parent with terminated visitation rights. That status has merely been suspended by the District Court based on Myron's compliance with the conditions in the decree of dissolution. Pursuant to §§ 40-6-118 and -116(3) (a), MCA, the District Court has continuing jurisdiction to issue visitation schedules in conjunction with Myron's compliance with those conditions. We hold that the District Court did not abuse its discretion when it issued the current visitation schedule sua sponte. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1988 Internal OperatingRules, this decision shall not be cited as precedent and shallbepublishedbyits filing as a publicdocument with the Clerk of the Supreme Court and by a report of its result to Montana Law Week, State Reporter andWest Publishing Company.

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We concur: 

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Justice James C. Nelson specially concurs. I concur in the result of our opinion, but not in its rationale. I would hold that the District Court erred ln not holding a hearing on modification of the custody order, but would also hold that the errorwas harmless given that the order entered by the court substantially complied with the proposed visitation requested by Myron and in view of the recommendation of the guardian ad litem. More importantly, we do not cite any authority for our applicationof §§ 40-6-118 and40-6-116, MCA, which arepart of the Uniform Parentage Act, Title 40, Chapter 6, part 1, MCA, to the modification of custody issue in this marriage and divorce case. In that respect, I note that neither party has argued the application of those statutes to this dispute, and I have strong reservations about whether either statute is appropriatelyapplied here. Underthe circumstances, I wouldnot decide this case onthe basis of those statutes.

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