No. 92-611 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

IN RE THE MARRIAGE OF 

KATHLEEN A. KOVASH, 

Petitioner and Respondent, 

and 

MYRON J. KOVASH, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas A. Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Mark P. Yeshe, Donahoe & Yeshe, 

Helena, Montana 

For Respondent: 

Robert F. Alsobrook, Attorney at Law, 

Bozeman, Montana 

Submitted on Briefs: May 27, 1993 

Decided: August 17, 1993 

Filed: 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

Respondent Kathleen A. Kovash petitioned the Eighteenth 

Judicial District Court, Gallatin County, for dissolution of her 

marriage to appellant Myron J. Kovash. After a four-day trial, the 

District Court issued temporary orders and granted appellant 

unsupervised visitation with the parties' four children. On 

August 31, 1992, the District Court issued its Findings of Fact and 

Conclusions of Law which terminated all contact between the 

children and appellant, but allowed conditional visitation. 

Appeliant appeals from tne order. 

We affirm in part and modify the District Court's order. 

Appellant presents seven issues for this Court's 

consideration. 

1. Did the District Court err by modifying its December 13, 

1991, temporary custody order? 

2. Did the District Court err by failing to consider the 

wishes of the children? 

3. Did the District Court err when it terminated appellant's 

visitation rights? 

4. Did the District Court abuse its discretion by ordering 

the two older children to protect the two younger children? 

5. Did the District Court err by not allowing grandparent 

visitation? 

6. Did the District Court violate appellant's constitutional 

rights by ordering him not to go to Coeur D'Alene, Idaho? 
7. Did the District Court abuse its discretion when it 

granted respondent custody of the children? 

Myron and Kathleen Kovash were married on October 16, 1976, in 

Livingston. Four boys were born into the marriage. The parties 

separated on June 4, 1990. 

The marriage was marred with abuse by Myron against Kathleen 

and the oldest child, J.K. The first incidence of abuse occurred 

within six months after the marriage. Kathleen testified that 

Myron would strike her at least three to four times a year. The 

most severe incidents occurred in the last year of the marriage. 

In April 1989, Kathleen testified that while on a boat Myron 

struck her in the face and almost knocked her into the water, 

knowing that she could not swim. Following a confrontation over 

marital problems, in December 1989, Myron assaulted Kathleen over 

a two-day period and pointed a pistol at her, causing her to fear 

for her life. Myron again assaulted Kathleen after further 

problems of the same nature arose. The oldest child, J.K., had to 

run for aid on both occasions. During the second incident, a 

police officer had to use force to pull Myron off Kathleen. There 

are many instances of abuse testified to by Kathleen which Myron 

denies. The parties sought marriage counseling in Montana. 

Kathleen left Myron on June 4, 1990, and resided in a 

battered women's shelter in Coeur D'Alene, Idaho, for a month. 

Kathleen obtained temporary restraining orders in both Montana and 

Idaho, but according to the District Court they have not been 

satisfactory. The Idaho orders permitted Myron to be with the 

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children, if not Kathleen. The District Court entered a series of 

orders to keep Kathleen and the children safe, and instituted 

visits by Myron and his extended family. Upon the recommendation 

of the supervising social worker, the guardian ad litem, and the 

child's counsellors, the court suspended visitation and limited 

telephone contact. 

Kathleen testified that during telephone calls Myron usually 

focused on adult issues, which agitated the children. Myron has 

told one child on four occasions that he disowned him but later 

apologized. Rayhieen has had difficulty getting the children to 

accompany her to the Woman's Center for the calls. The children 

often acted out after the calls, such as by shoving their mother, 

and one of the children had anxiety attacks. 

Dr. Jack Oakwright, a licensed psychologist in Coeur D'Alene, 

testified that he met with Kathleen and the children following a 

referral from the battered women's shelter in Coeur DSAlene. 

Because Kathleen had insufficient funds, the bulk of the therapy 

was done by Jill Crocker, a master level assistant. Dr. Oakwright 

testified that the oldest child was damaged the most by physical 

and emotional abuse inflicted by Myron. He also testified that the 

child's development in therapy was delayed. Dr. Oakwright 

expressed concern about reports from a hospital describing Myron as 

suicidal or homicidal after the incident in December 1989 involving 

the firearm. Viewing all the medical and psychological reports, 

Dr. Oakwright saw a consistent pattern where Myron would only 

submit to treatment as a way of manipulating the return of his 
wife. Dr. Oakwright also found a consistent pattern diagnosis that 

Myron was dangerous, suicidal, or homicidal. Dr. Oakwright 

expressed the opinion, based upon the review of the records and 

interviews with family members, that Myron represented a danger to 

the children and needed treatment before having anything other than 

professionally supervised and monitored visitation. Dr. Oakwright 

did not interview Myron. 

Rob Marchetti, a child protective officer with the Department 

of Family Services, supervised two telephone visits between Myron 

and the children. He testified that the telephone visits harmed 

the children and the abuse was getting worse. He recommended that 

all contacts by telephone and in person be held in a therapist's 

office and supervised by the therapist. 

Jeannine Newville, the court-appointed guardian ad litem, also 

testified that the telephone visits were getting worse. She stated 

that shared custody was not in the best interest of the children. 

She recommended grandparent visitation. 

On June 4, 1990, Kathleen filed her petition for dissolution. 

A four-day trial was held December 9 through 12, 1991. After the 

trial, the court issued a temporary order concerning custody, 

visitation, and restraint of the parties. The court granted 

unlimited visitation. On August 31, 1992, the District Court 

issued its findings of fact and conclusions of law and terminated 

all visitation and contact between Myron and the children, but 

suspended the termination upon certain conditions. Myron appeals 

the order. 
I. 

Did the District Court err by modifying its December 13, 1991, 

temporary custody order? 

Myron argues tinat the District Court's modification of its 

December 13, 1991, order violated his right to due process and was 

an abuse of discretion. He contends that the District Court needed 

to find a change in circumstances when issuing a final custody 

order which differed from the temporary order. We disagree. 

In its temporary order, the District Court granted Myron 

unsupervised visitation. On July 30, i992, the guardian ad litem 

wrote an addendum which stated that Myron's behavior was not 

improving because of his regular visits with his sons, and was, in 

fact, getting worse. The guardian ad litem also stated that Myron 

was dangerous. When the District Court issued its findings of fact 

and conclusions of law, it terminated all visitation and contact 

between the children and Myron. The court did, however, suspend 

the ternination with certain conditions. Myron contends that the 

court's consideration of the guardian ad litem's report without a 

hearing to allow Myron to present his arguments was a violation of 

due process and amounted to an abuse of discretion. 

Nothing in the District Court's findings of fact and 

conclusions of law suggests that the court considered the July 30, 

1992, report of the guardian ad litem. The court made extensive 

findings relating to the guardian ad litem's testimony at trial. 

A tape recorded conversation of October 21, 1991, between the 

children and Myron convinced the guardian ad litem that matters 

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were getting worse. The District Court heard this taped 

conversation and agreed. The guardian ad litem testified that 

shared custody was not in the best interest of the children, and 

recommended that Myron have only professionally supervised 

visitation. We hold that the District Court did not violate 

Myron's due process rights. 

Myron also contends that the District Court needed to find a 

change of circumstances when issuing its final custody order which 

differed from the temporary order. We decided a similar issue in 

In re Harriage of Allen (1989j, 237 Hont. 64, 771 P.2d 578. In 

Allen, the mother had temporary custody of the children for two and 

one-half years before the District Court awarded custody to the 

father. We explained in Allen that: 

As expressed in § 40-4-213, MCA, the best interest 

test is the standard used by the court to award temporary 

custody. However, the court, upon motion for temporary 

custody, is only determining the best interest of the 

child with regard to temporary custody pending resolution 

of the action. 

Temporary child custody is merely an 

initial determination made to ascertain which 

of [the] parents will keep children until such 

time as full hearing on custody can be made. 

27C C.J.S. Divorce, 642, footnote 30. While district 

courts must consider the stability of the child's home 

when it [sic] determines custody, it would nevertheless 

be inherently unfair to require the temporary noncustodial parent to make a higher threshold showing of 

changed circumstances before a custody order may deviate 

from the temporary order. 

In Allen, we quoted the following commissionerls note to 

§ 40-4-213, MCA: 
[This action] encourages trial courts to issue 

temporary custody orders without formal hearing whenever 

possible. Since the hearing itself may be a traumatic 

event for both parents (and therefore for their children, 

indirectly), the trial court is authorized to make 

temporary orders on the basis of affidavits alone unless 

one of the parties files formal objection to that 

procedure. In most cases, it is expected that trial 

judges will award temporary custody to the existing 

custodian so as to minimize disruption for the child. 

Allen, 771 P.2d at 581. 

If changed circumstances are required to be proven before 

modifying temporary custody orders, parents would be forced to 

litigate temporary custody. This result would be contrary to the 

purpose of the statute. Therefore, we hold that the District Court 

was not required to find a change in circumstances before modifying 

the temporary custody order. 

11. 

Did the District Court err by failing to consider the wishes 

of the children? 

Section 40-4-212(1) (a) and (b), MCA, requires the court to 

consider the wishes of the children when determining custody. The 

District Court interviewed the children before the December 1991 

hearing. The court also interviewed the second child during the 

March 5, 1992, hearing. All the children testified that they 

wanted to visit their father, but that they did not like the 

telephone calls because of Myron's behavior. 

The guardian ad litem, the children's counselor, and the 

children's social worker recommended that Myron only have 

supervised visitation. The court did not order supervised 
visitation. Instead, it gave Myron conditional visitation with his 

children for Christmas 1992 and for the month of July 1993. The 

court ordered weekly telephone visitation and restricted it so that 

the children would not have to discuss "adult issues." The court 

granted the children the authorityto terminate the telephone calls 

after 15 minutes. 

The district court need not make a specific finding on each 

statutory element. In re Marriage of Arrotta (1990) , 244 Mont. 508, 

513, 797 P.2d 940, 943. The court must show that it has considered 

each element by making specific findings regarding the best 

interests of the children. Arrotta, 797 P.2d at 943. The district 

court is not required to award custody or visitation based upon the 

child's preferences. Arrotta, 797 P.2d at 943. The order 

attempted to balance the children's wishes against what was in 

their best interest. We conclude from reading the record, and from 

the District Court's extensive findings, that the children's wishes 

were properly considered when conditional visitation was granted. 

111. 

Did the District Court err when it terminated Myron's 

visitation rights? 

As stated previously, Myron's contact with his children was 

suspended with conditions. Myron was still allowed visitation with 

his children but was required to meet specific conditions relating 

to the weekly telephone calls. If he complied with these 

conditions, he was given the opportunity to visit the children 

during the Christmas holidays. If the Christmas visitation 
proceeded without incident, then Myron was allowed to have one 

month's worth of visitation during the summer. If Myron did not 

meet these guidelines, the court would terminate his visitation 

rights. The court" use of the carrot and stick approach was an 

effort to curb Myron's behavior toward his children and foster a 

more healthy relationship. It does not amount to a termination of 

visitation rights. We hold that the District Court did not abuse 

its discretion in placing conditions on Myron's visitation. 

IV. 

Did the District Court abuse its discretion by ordering the 

two older children to protect the two younger children? 

In view of the testimony and evidence produced during the 

proceedings, the court was concerned about the safety of the 

children. The court interviewed the boys and felt that it was 

appropriate to have the older children supervising visitation and 

protecting the younger ones. Dr. Oakwright testified that it would 

be in the best interests of the children to allow them to initiate 

the telephone contacts and to terminate the telephone calls with 

their father. We hold that the District Court did not abuse its 

discretion. 

v. 

Did the District Court err by not allowing grandparent 

visitation? 

Section 40-4-217(2), MCA, allows the district court to grant 

grandparent visitation if it finds that it is in the best interests 

of the children. In this instance, the District Court granted 

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grandparent visitation, but they could only exercise their rights 

simultaneously with Myron. We hold that the District Court did not 

abuse its discretion in granting the grandparents visitation. 

VI . 

Did the District Court violate Myron's constitutional rights 

by ordering him not to go to Coeur DIAlene, Idaho? 

Myron contends that the court's order restraining him from 

going to Coeur D1Alene is too broad and infringes on his 

constitutional right to travel. We agree. The order is overly 

broad in tne sense that it does not consider that Myron may have 

other business in Coeur DIAlene or that he may be travelling 

through the city. 

There is substantial evidence in the record to support the 

conclusion that when Myron travels to Coeur D'Alene, Kathleen and 

the children are subjected to harassment. The intent of the order 

is to keep Myron away from Kathleen and the children until the 

court finds it appropriate to lift the restraining order. We hold 

that the portion of the court's order preventing Myron from 

traveling to Coeur D'Alene is too broad and should be stricken. We 

affirm those portions of the order that intend to keep Myron away 

from Kathleen and the children. 

VII. 

Did the District Court abuse its discretion when it granted 

Kathleen custody of the children? 

Our standard of review in custody matters is whether 

substantial credible evidence supports the court's determination. 
In re Marriage of Fesolowitz (Mont. 1993), 852 P.2d 658, 662, 50 

St. Rep. 575, 578. The law presumes that joint custody is in the 

best interest of the child. Courts award joint custody to assure 

the child frequent and continuing contact with both parents. 

Section 40-4-223, MCA. Physical custody should be arranged as 

equally as possible between the parents, with the child's best 

interest as the primary consideration. Fesolowitz, 852 P.2d at 

662. The District Court must consider the factors set forth in 

40-4-212, MCA, when determining which parent receives custody. 

Here the court granted custody of the children to Kathleen. 

During trial, Dr. Oakwright testified that Myron was "dangerous to 

the welfare of his children and needs treatment before he should be 

allowed anything butthe most closely and professionally supervised 

visitation." He recommended that Kathleen have sole custody. Mr. 

Marchetti recommended that Myron have physical visitation only in 

a therapist's office with an emphasis on therapy helping Myron in 

not being abusive. The guardian ad litem recommended that Kathleen 

have custody of the children. We hold there is substantial 

credible evidence to support the Court's conclusion that it is in 

the best interest of the children that Kathleen be granted custody. 

We affirm all issues except as to the modification of the 

portion of the order that prohibits Myron from traveling to Coeur 

D'Alene, Idaho. 
concur : 
August 17, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Mark P. Yeshe 

DONAHOE & YESHE 

P.O. Box 413 

Helena, MT 59624 

ROBERTALSOBROOK 

Attorney at Law 

225 E. Mendenhail 

Bozeman, MT 59715 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OFMONTANA