NO. 90-311 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

IN RE THE MARRIAGE OF: 

ELVIN FITZHUGH, 

Petitioner and Appellant, 

-vsTENLEY FITZHUGH, 

Respondent and Respondent. 

CLERK OF SUPREME COURT 

STATE OF MONTANA 

APPEAL FROM: District Court of the Second ~udicial District, 

In and for the County of Silver Bow, 

The Honorable Mark P. ~ullivan, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Leonard J. Haxby, Attorney at Law, Butte, Montana. 

For Respondent: 

Brad L. Belke, Attorney at Law, Butte, Montana. 

Filed: 

Submitted on Briefs: April 18, 1991 

Decided: May 20, 1991 

I ' Clerk 
r 1 # I 

Justice John Conway Harrison delivered the Opinion of the Court. 

Petitioner, Elvin Fitzhugh, appeals the District Court's 

determination of visitation rights as decreed by the Second 

Judicial District Court, Silver Bow County. We affirm. 

The sole issue presented for review is whether the District 

Court's grant of visitation rights to Mr. Fitzhugh was reasonable. 

Elvin Fitzhugh and Tenley Fitzhugh were married on June 23, 

1979, in Billings, Montana. They have one child, Lauren Ann, born 

April 20, 1986. The parties separated in November of 1988. 

Thereafter, Mrs. Fitzhugh moved, with Lauren, to Billings where 

they lived with her parents. Mr. Fitzhugh remained in Butte. On 

January 31, 1989, Mr. Fitzhugh filed a petition for dissolution of 

marriage in the District Court of the Second Judicial District. 

The initial temporary custody hearing was held by the District 

Court on March 27, 1989. At that time the court awarded, on a 

temporary basis, the physical custody of Lauren to Mrs. Fitzhugh. 

The second and final hearing was held on February 22, 1990. 

The testimony heard at trial conflicted. Each party testified 

as to his or her superior parental skills and ability and each 

introduced character witnesses to support his or her claims. After 

hearing testimony, the District Court entered its findings of fact, 

conclusions of law and decree on April 18, 1990. Finding of fact 

no. 6 reads, in part, as follows: 

The Court heard evidence from all of the parties that the 

child is healthy and bright with a positive and 
affectionate attitude. The child has lived with the 

Respondent [Mrs. Fitzhugh] during the past year . . . and 

the child has appeared to do very well in this environment. The child's involvement with her grandparents, her 

church, her other family members in Billings and her 

extracurricular activities are clear and convincing 

evidence that she is prospering in her present 

environment and has adjusted extremely well to her 

present custodial environment. 

The evidence presented by the Petitioner [Mr. 

Fitzhugh] is not persuasive because the social worker had 

no contact with the Respondent or the child's 

grandparents. It was also clear to the Court from the 

testimony of the social worker that certain information 

which was supplied to him by the Petitioner was 

inaccurate. 

Based on its findings and conclusions, the District Court granted 

the parties joint custody their minor daughter and granted Mr. 

Fitzhugh reasonable visitation rights. From this decree, regarding 

visitation rights, Mr. Fitzhugh appeals. 

On appeal, Mr. Fitzhugh contends that the District Court erred 

by restricting visitation, arguing that there is no evidence to 

establish that such visitation would endanger his child's health. 

Mr. Fitzhugh grounds his argument on § 40-4-217(1), MCA' which 

provides: 

A parent not granted custody of the child is 

entitled to reasonable visitation rights unless the court 

finds, after a hearing, that visitation would endanger 

seriously the child's physical, mental, moral, or 

emotional health. 

From this statute, Mr. Fitzhugh concludes that the ~istrict Court 

erred by restricting his visitation rights with his minor daughter 

'~echnicall~, this statute does not apply to these facts since 

the District Court awarded joint custody. 
because the trial transcript is devoid of testimony tending to 

establish that visitation would endanger the child's physical, 

mental, moral, or emotional health. Following this line of 

reasoning, Mr. Fitzhugh argues that 5 40-4-217 (1) , MCA, entitles 

him to unrestricted visitation rights. To the contrary, upon a 

showing that visitation will not endanger the child's health, § 40- 

4-217(1), MCA, requires that the court grant the non-custodial 

parent reasonable visitation rights. In the case of In re the 

Marriage of Tonne (1987), 226 Mont. 1, 8, 733 P.2d 1280, 1285, this 

Court affirmed the lower court's decree which awarded joint custody 

to the parents while limiting the father's visitation rights to 

alternate weekends and holidays, an alternate week night, Father's 

Day, and three nonconsecutive weeks in the summer. See also In Re 

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

at bar the District Court did not find, nor did any evidence tend 

to suggest, that visitation with Mr. Fitzhugh would endanger the 

child's health in any way. Therefore, the test is whether Mr. 

Fitzhugh was granted reasonable visitation rights. 

The District Court granted Mr. Fitzhugh visitation as follows: 

A. From the date of this decree until the child 

enters pre-school in the Fall of 1990 the 

Petitioner shall have [the] following 

visitation rights: 

(i) one (1) seven day period of visitation 

each month; 

B. From the date the child enters pre-school the 

petitioner shall have the following visitation 

schedule: 
(i) the second and fourth weekends of each 

month, from 5:00 p.m. on Friday until 

6:00 p.m. on Sunday; 

(ii) thirty (30) days summer visitation, 

beginning in the summer of 1991; 

(iii) alternate holiday visitation as follows: 

(a) during odd numbered years 

Christmas, Memorial Day, July 

4th, and Labor Day; 

(b) during even numbered years 

Christmas Eve, New Years, 

Easter and Thanksgiving. 

The record clearly shows that under the provisions of 5 40- 

4-212, MCA, the District Court considered the wishes of the child; 

the wishes of the parents; the interaction and interrelationship 

of the child with her parents; the child's adjustment to her home, 

school, and community; and the child's adjustment to her 

grandparents1 home in determining the best interests of the child 

concerning custody and visitation. The court also considered the 

fact that Lauren is a young child, and she might react adversely 

to long and regular trips from Billings to Butte. Therefore, 

pursuant to the above schedule, the decree essentially provides 

Mr. Fitzhugh with liberal visitation comprised of alternating 

weekends and holidays and one month in the summer. 

In light of the findings, we conclude that the court's 

visitation schedule is reasonable. Furthermore, the court's 

visitation schedule accords with In Re Marriage of Alt (1985) , 218 

Mont. 327, 332, 708 P.2d 258, 261, where we held that visitation 
on alternate weekends, alternate holidays, one evening per week, 

and two weeks in the summer was reasonable. We find no error. 

The District Court is hereby affirmed. 

We concur: