No. 95-014 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

IN RE THE MARRIAGE OF 

ROBERTA DIRE SCHMIDT, 

Petitioner and Respondent, 

and 

TIMOTHY ALLEN SCHMIDT, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Jefferson, 

The Honorable Frank M. Davis, Judge presiding. 

COUNSEL OF RECORD: 

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 on Briefs: May 11, 1995 

Decided: June 6, 1995 

Clerk 
Justice 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. We affirm. 

The sole issue on appeal is whether the District Court abused 

its discretion in establishing a visitation schedule for the 

Schmidt children. 

The marriage of Timothy Allen (Tim) and Roberta 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. The court observed that, due to the 

close proximity of the parents' residences, visitation should not 

be a problem, and directed Tim and Roberta to implement liberal and 

reasonable visitation schedules. In the event the parents were 

unable to agree on such a schedule, the District Court set forth 

Tim's specific visitation rights. 

For a period of approximately sixteen months after the 

dissolution, the parties implemented a schedule giving Tim somewhat 

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; by March 1994, Tim was visiting with 

the children only every other weekend. 

Tim filed a Motion to Modify Order for Custody and Visitation 

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on 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 and also 

moved for modification. The District 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 a discussion meeting than a 

hearing and that no court reporter was present. It also appears 

that no one objected to proceeding in such a fashion. 

Having received no memoranda, the District Court entered its 

findings and order on August 31, 1994, retaining joint custody of 

the children with physical custody in Roberta. Tim's visitation 

was modified to alternate weekends, alternate holidays and special 

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. He pointed out that no testimony was given, and no evidence 

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 as establishing that the existing custody arrangement 

had proved harmful to the children. The court granted Tim's motion 

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to reconsider and directed counsel to pursue any necessary 

discovery and advise when the matter was ready for hearing. 

The District Court held an evidentiary hearing on Tim's motion 

to reconsider on December 14, 1994. The parties testified and 

introduced exhibits. On December 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 

on such visitation, the court directed that Tim have visitation as 

follows: 

1. Two weekends 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 30 days' summer visitation. 

No appeal was taken from the visitation, or any other, portion of 

the decree. 

The District Court did modify visitation from that provided in 

the original decree in response to Tim's and Roberta's motions. In 

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doing so, the court did not adopt either parent's modification 

proposal in its entirety. The visitation schedule ultimately 

ordered on December 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 30 days' summer visitation; and 

5. after school visitation on alternate Wednesdays until 8:30 

p.m. 

We will overturn a district court's visitation decision only 

when the court's findings and conclusions clearly demonstrate an 

abuse of discretion. In re Marriage of Hunt (1994), 264 Mont. 159, 

164, 870 P.2d 720, 723. The record before us reflects no such 

abuse of discretion. 

The District Court's December 28, 1994, visitation schedule is 

more expansive than that originally set forth in the decree. While 

the weekend visits now end 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 now expanded to result in an equal division of the 

Christmas/New Year's holiday "season," rather than a mere division 

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of the two holidays. Moreover, alternating "special occasion 

visitations," presumably such events as the children's and parents' 

birthdays, have been added where only alternating holiday 

visitations existed in the decree. Alternate Wednesday visitations 

from after school until 8:30 p.m. also are added. 

We previously have held that a visitation schedule providing 

visitation on alternating weekends, alternate holidays, one evening 

per week and two weeks in the summer is reasonable. In re Marriage 

of Tahija (1992), 253 Mont. 505, 509, 833 P.2d 1095, 1097; citing 

In re Marriage of Alt (1985), 218 Mont. 327, 708 P.2d 258. Here, 

the District Court's visitation schedule is more generous than that 

approved as reasonable in Marriacre of Tahiia and Marriage of Alt 

and Tim 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 a faulty premise. First, Tim argues 

that under a joint custody arrangement, 5 40-4-224(2), MCA, 

requires that the allotment of time between the parents be as equal 

as possible. While this argument may or may not have been 

appropriate in an appeal from the original decree, it is not 

available now. No appeal having been taken from the joint custody, 

physical custody and visitation provisions in the decree, we will 

not consider this argument in relation to subsequent visitation 

provisions more advantageous to Tim than those originally set forth 

by the court in the decree. 

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Tin'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 on an alleged right by Tin to the 

visitation he and 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. 

We hold 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 be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of the Supreme Court and by a report of its result 

to Montana Law Week, State Reporter and West Publishing Company. 

We concur: 
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Justices