No. 95-014 IN THESUPREME

COURTOFTHESTATEOFMONTANA 1995

IN RETHEMARRIAGEOF ROBERTADIRE SCHMIDT,

Petitioner and Respondent, and TIMOTHYALLENSCHMIDT,

Respondent andAppellant.

APPEALFROM: District Court of the Fifth Judicial District,

In and for the County of Jefferson, TheHonorable Frank M. Davis, Judge presiding.

COUNSELOFRECORD:

For Appellant: Linda M. Deola; Reynolds, Motl, Sherwood &Wright, Helena, Montana For Respondent: Bernard "Ben" Everett; Knight, Dahood, McLean, Everett &Dayton, Anaconda, Montana

Filed: Submitted onBriefs: May11, 1995 Decided: June 6, 1995

ClerkJustice Karla M. Gray delivered the Opinion of the Court.

Timothy Allen Schmidt appeals from the findings of fact and modification order dated August 29, 1994, and the supplemental modification order dated December 27, 1994, entered by the Fifth Judicial District Court, Jefferson County. Weaffirm. Thesole issue onappeal is whether the District Court abused its discretion in establishing a visitation schedule for the Schmidt children. Themarriage of Timothy Allen (Tim) andRoberta Dire (Roberta) Schmidt was dissolved by the District Court via findings, conclusions and decree filed October 14, 1992. Tim and Roberta
were awarded joint custody of their minor children Peter William, age 6, and Janna DiRe, age 4. Roberta was designated the children's physical custodian. Thecourt observed that, dueto the close proximity of the parents' residences, visitation should not beaproblem, anddirected TimandRoberta to implement liberal and reasonable visitation schedules. In the event the parents were unable to agree on such aschedule, the District Court set forth Tim's specific visitation rights. For a period of approximately sixteen months after the dissolution, the parties implemented aschedule giving Timsomewhat
more liberal visitation with the children than that set forth by the court in the decree. In February 1994, Roberta decreased those
more liberal visitation terms; byMarch 1994, Timwasvisiting with the children only every other weekend. Timfiled aMotion to Modify Order for Custody andVisitation 2on April 1, 1994, which requested a change in the visitation

schedule and in the designation of physical custodian based on changed circumstances. Roberta responded to Tim's motion andalso movedfor modification. TheDistrict Court scheduled the motions for hearing on July 27, 1994; the Minute Entry of that date indicates that the cause was heard in chambers with both parties present and represented. The court directed counsel to submit memoranda "confirming their respective views." It appears that the proceeding was more in the nature of adiscussion meeting than a hearing and that no court reporter was present. It also appears that no oneobjected to proceeding in such afashion. Having received no memoranda, the District Court entered its findings and order onAugust 31, 1994, retaining joint custody of the children with physical custody in Roberta. Tim's visitation
wasmodified to alternate weekends, alternate holidays andspecial occasions, and an equal division of the Christmas/New Year's holiday season each year. Tim moved for reconsideration of the court's findings and order. Hepointed out that notestimony wasgiven, andnoevidence
was presented, during the July 27 proceeding in chambers; he asserted that the parties had not been dilatory in responding to the court's directive and were planning to--and, indeed, had a right to--submit their written documentation and positions before
a decision was made. Tim attached an affidavit which he characterized asestablishing that the existing custody arrangement hadproved harmful to the children. Thecourt granted Tim's motion
3to reconsider and directed counsel to pursue any necessary

discovery and advise whenthe matter wasready for hearing. TheDistrict Court held anevidentiary hearing onTim's motion to reconsider on December 14, 1994. The parties testified and introduced exhibits. OnDecember 28, 1994, the court entered its supplemental order of modification. Insofar as is relevant here, that order modified the visitation schedule ordered in August by adding visitation on alternate Wednesdays and confirming the extended summer visitation set forth in the dissolution decree. Tim appeals from both post-decree orders relating to visitation. Did the District Court abuse its discretion in establishing the visitation schedule ultimately ordered on December 28, 1994? As set forth above, the original decree awarded Tim and Roberta joint custody of the children with liberal and reasonable visitation in Tim. In the event the parties were unable to agree
onsuch visitation, the court directed that Timhave visitation as follows: 1. Twoweekends each month from 5:00 p.m. Friday until 7:00
a.m. Monday; 2. equal division of the Christmas/New Year's holiday; 3. other holidays alternating; and 4. at least 30days' summervisitation. Noappeal wastaken from the visitation, or any other, portion of the decree. TheDistrict Court did modify visitation from that provided in the original decree in response to Tim's andRoberta's motions. In
4doing so, the court did not adopt either parent's modification

proposal in its entirety. The visitation schedule ultimately ordered onDecember 28, 1994, is as follows: 1. Alternating weekends from 5:00 p.m. Friday until 7:00 p.m. Sunday; 2. equal division of the Christmas/New Year's holiday season, with a parent having the children for both Christmas Eve and Christmas Day in alternating years; 3. other holiday and special occasion visitations alternating; 4. at least 30days' summervisitation; and 5. after school visitation onalternate Wednesdays until 8:30 p.m. Wewill overturn adistrict court's visitation decision only when the court's findings and conclusions clearly demonstrate an abuse of discretion. In re Marriage of Hunt (1994), 264Mont. 159, 164, 870 P.2d 720, 723. The record before us reflects no such abuse of discretion. TheDistrict Court's December28, 1994, visitation schedule is
moreexpansive than that originally set forth in the decree. While the weekend visits nowend on Sunday evenings instead of Monday mornings, Tim is entitled to two additional weekend visits each year by virtue of the "alternating weekends" versus "two weekends each month" provision. In addition, the December holiday visitation is nowexpanded to result in anequal division of the Christmas/New Year's holiday "season," rather than amere division
5of the two holidays. Moreover, alternating "special occasion

visitations," presumably suchevents asthe children's andparents' birthdays, have been added where only alternating holiday visitations existed in the decree. Alternate Wednesdayvisitations from after school until 8:30 p.m. also are added. Wepreviously have held that avisitation schedule providing visitation onalternating weekends, alternate holidays, oneevening per weekandtwo weeks in the summeris reasonable. In re Marriage of Tahija (1992), 253Mont. 505, 509, 833 P.2d 1095, 1097; citing In re Marriage of Alt (1985), 218Mont. 327, 708 P.2d 258. Here, the District Court's visitation schedule is moregenerous than that approved as reasonable in Marriacre of Tahiia and Marriage of Alt andTim has failed to establish that the schedule is unreasonable. Nor does he cite any authority under which the visitation granted is unreasonable. Tim argues that the District Court erred in establishing the final visitation in several ways; both of his arguments, however, begin from afaulty premise. First, Timargues that under a joint custody arrangement, 5 40-4-224(2), MCA, requires that the allotment of time between the parents beasequal
as possible. While this argument may or may not have been appropriate in an appeal from the original decree, it is not available now. Noappeal having beentaken from the joint custody, physical custody andvisitation provisions in the decree, wewill not consider this argument in relation to subsequent visitation provisions moreadvantageous to Timthan those originally set forth by the court in the decree.
6Tin's second argument is that the District Court's modified

visitation schedule did not take into account the best interests of the children in spending more tine with their father. This argument apparently is premised onanalleged right by Tin to the visitation heand Roberta originally implemented, rather than that ordered by the court. Under the facts of this case, we cannot agree; the court-ordered schedule was established to meet the precise eventuality upon which it was premised--the parents' inability to agree on a reasonable visitation schedule. Wehold that the District Court did not abuse its discretion and, further, that the visitation schedule established for the Schmidt children is not unreasonable. Affirmed. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1988 Internal Operating Rules, this decision shall not becited as precedent andshall bepublished byits filing asapublic document with the Clerk of the Supreme Court and by areport of its result to Montana LawWeek, State Reporter andWest Publishing Company.

Weconcur:i

Justices