IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN RE THE MARRIAGE OF 

KATHRYN L40UISE CHASE, a/k/a 

KATHRYN LOUISE WISE, 

Petitioner and Respondent, 

1 

and 1 ORDER 

1 

STEVEN ELL CHASE, 

Respondent and Appellant. 

The initial opinion in this cause was decided and file& 

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with the Clerk of this Court on March 30, 1989. As a ~esul'~~ 

of the petition for rehearing on the part of the appe31*antz; - w. 3 the Court has concluded that the original opinion should be: -- < (' ! ? 

withdrawn and a revised opinion substituted. --u FJ 

c--. 

IT IS ORDERED: ---2 

i - - 

:;.I rJ 

1. That the original opinion in this cause showglas i- c? 

having been submitted on briefs February 23, 1989, and dec&d- @ 

ed March 30, 1989, is withdrawn. 3 

2. That the revised opinion in this cause, which is 

shown to have submitted on briefs February 23, 1.989, and 

decided April dz% 1989, is substituted as the final opinion 

in the above cause. 

d DAmED this 27-day of April, 1989. 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Steven Chase appeals from an order granted by the District Court for the Eleventh Judicial District, Flathead 

County, modifying certain portions of a divorce decree and a 

subsequent order relating to visitation of the Chase's four 

children. The issue presented for our review is whether the 

District Court erred in granting respondent's motion to 

modify. Steven argues that the motion should have been 

denied because it had no foundation in statute. He also 

argues that the motion should have been denied on several 

procedural grounds. We affirm the granting of the modification order. 

Steven and Kathryn Chase were granted a Decree of Dissolution on February 19, 1987. Kathryn was granted sole custody of the parties' four minor children, with visitation and 

other matters set forth in the decree. In July, 1987, Steven 

moved to modify the decree, requesting a reduction in child 

support and modified terms of visitation. Following a hearing, the parties stipulated to certain modifications, including a joint custody arrangement. At the time of that 

arrangement, Kathryn lived in Kalispell, Montana, and Steven 

lived in Thousand Oaks, California. 

Pursuant to the court's order, Kathryn was to remain 

primary residential custodian, with reasonable rights of 

visitation granted to St.even in accordance with the original 

decree and as modified. In the original decree, Steven was 

entitled to visit every other weekend, every other major 

holidav, and for 30 days each summer, with 48 hours notice 

required prior to any visitation. The modification order 

increased Steven's summer visitation period to 45 days each 

year, allowed him one-half the Christmas vacation period each 

year, and required a 30 day written notice to Kathryn with a 
48 hour confirmation prior to any visitation. The court 

ordered that the parties share equally in the costs of transporting the children. 

Tn June 1988, Kathryn moved for an order to modify or 

clarify the decree and its subsequent modification. Briefs 

were submitted and a hearing was held. The parties waived 

the making of a record at that hearing. In granting the 

motion, the court identified the splitting of transportation 

costs as the particular provision requiring modification or 

cl-arification. The court did not alter the number of visitation days granted to Steven. Finding Steven in a better 

position to meet the burden of covering transport-ation costs, 

the court ordered that: 

1. Respondent should he entitled to visitation on 

alternating weekends provided; 

a. thzt. such visitation occur in Flathead 

County, Montana or such other county as 

the Petitioner may reside at the time of 

visitation, and 

b. that notice of such visitation shall he 

given I0 days in advance of such visitation, i.n writing, hy Respondent to 

Petitioner. 

2. Respondent shall he entitled to visitation on 

alternating holidays as provided in the original decree, provided, however, that Respondent 

shall pay all costs of transportation for such 

visitation and, further, that notice of such 

visitation shall be given at least 20 days in 

advance of such visj-tation, in writing, by 

Respondent to Petitioner. 

-. 2 The Respondent shall be entitled t.o a visitation for a total period of 45 days during the 

summer between June 10 and Auqust 20 of each 

year provided: 
a. that the parties shall equally share the 

cost of transportation of the children 

for that visitation with the Respondent 

paying the cost of having the children 

transported from the Petitioner's residence to his residence and the Petitioner 

paying the cost of having the children 

re-transported from the Respondent's 

residence to her residence, and 

b. that notice of such visitation shall be 

given no later than April 15 of each year 

for which visitation is to be exercised, 

in writing, by Respondent to Petitioner. 

It-. is from this order that Steven appeals. He argues 

that Kathryn's motion to modify or clarify has nc foundation 

in the statute because she failed to allege how modification 

would serve the "best interests of the children" as required 

by S 40-4-217, MCA, nor did the District Court make any 

flndings in that regard. The record before us is incomplete. 

We cannot determine from the record if there was a hearing 

held on Kathryn's motion. No transcript was made. Steven 

argues that the matter was submitted on briefs without. a 

hearing. The court's order dated September 15, 1988, indicated that a hearing on the motiolz had been held and the 

court had been advised. We therefore consider the issue 

without the benefit of findings of fact or transcript. 

The argument on the part of the Steven that the matter 

should be returned for further consj.derati.on of the best 

interests of the children disregards the essence of the order 

of September 15, 1988. The visitation rights on the part of 

both Steven and. Kathryn were not modified by that order. As 

appears above, the primary purpose of the modification was to 

estahlishe$ the manner of sharing the costs of: transportation. The aim on the part of the District Court was to 

clarify a previous custody order so as to make the visitation 

more workable. The partjes had heen before the court a 
number of times requesting the court to judicially resol~7~ 

various issues upon which they could not reach agreement. We 

conc1ud.e there is no adequate record from which this Court 

may review the issue of the best interests of the children. 

V?e further conclude thzt the present record does not disclose 

that the modification affected the best interests of the 

children. We hold that Steven has failed to demonstrate a 

basis for reversal of the crdex of September 15, 1988. 

Steven next makes a number of procedural arguments for 

setting aside the order of the District Court. First, Steven 

contenCs that Kathryn's motion to modify or clarify was not 

timeIy. fle argues that because no "changed circumstances" 

were all-eyed, the motion was actually one to alter or amend 

the judgment u~der Rule 59(g), M.R.Civ.P., which must be made 

within 10 days. Alternatively, he proposes that the motion 

is one to modify because of a mistake of fact under Rule 60, 

M.R.Civ.P., which must be made within 60 days after entry of 

judgment. Rule 60 (b) , K. R.Civ.P. Since Kathryn's motion was 

made 120 days after the District Court's order, Steven argues 

that It should have been dismissed as untimely under either 

of the above stated rules. 

Kathryn's motion was brought pursuant to S 40-4-217, 

FCA, which allows the court to modify a visitation order 

whenever modification would serve the best interest of the 

child. Section 40-4-217 (3) , MCA. There is no requirement 

that the movant show changed circumstances under this statute, although the court "shall not restrict a parent's visitation rights unless it finds that the visitation would 

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

emotional health. " Section 40-4-217 (3), MCA. This standard 

has been held to he the same standard used to judge the 

modification of custody decrees in S 40-4-219, MCA, which 

requires a showing ol: "changed circumstances." PTatter of 
P..r,.S. v. Barkhoff (1983), 207 Mont. 199, 209-10, 674 P.2d 

1082, 1087. In this case, however, the District Court was 

not restricting either parent's visitation rights. The 

number of days which Steven was entitled to visit the children remained the same, and only the required notice and 

transportation costs were altered by the court. We conclude 

that there is no reason to ignore the form in which Kathryn's 

motion was presentee? to the court. Since S 40-4-217, MCA, 

contains no time limitations, we hold that Steven's claim 

under Rules 59 and 60, M.R.Civ.P. fails. 

Steven also argues that the District Court's ruling on 

motions under either Rules 59 or 60, M.R.Cjv.P., must be made 

within 45 days, and since it was not. so made in this case, 

the motion should be deemed denied. Kathryn's motion to 

modify was not made pursuant to Rule 59 or Rule 60, 

K.P..C~TT.P. This argument is therefore without merit. 

Steven argues that Kathryn's failure to file a brief in 

support o= her motion until 45 days after the motion was 

filed should. result in a summary denial under Rule 2, Uniform 

District Court Rules, which states in pertinent part: 

(b) Failure to file briefs may subject the 

motion to summary ruling. Failure to file a brief 

within five days by the moving party shall be 

deemed an admission that the motion is without 

merit. Failure to file an answer brief by the 

adverse party within ten days shall be deemed an 

admission that the motion is well taken. Reply 

briefs by movant are optional, and failure to file 

will not subject a motion to summary ruling. 

We note that Steven obtained an extension of time by stipulation of the parties under which his answer brief was filed 

nearly 60 days after Kathryn's brief was filed. 

The District Court did not specifically rule on the Rule 

2 ohjection. Clearly the District Court did not deem the 
failure to comply with the filing of the briefs as an admission that the motion was without merit. It considered the 

matter on the merits. Under subparagraph (d) of Rule 2, the 

District Court is given the discretion to enlarge the time 

allowed in which a motion is to be deemed submitted. While 

the court did not specifically enlarge the time by order, it 

accepted the briefs on the part of both parties withoutregard to the time constraints of Rule 2(b). In the absence 

of any showing by the record that the District Court committed an abuse of discretion, we will not overturn the decision 

of the lower court. We hold t.here is no reversible error on 

the procedures before the District Court. 

Affirmed. 

We Concur: