No. 91-560 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

IN RE THE MARRIAGE OF 

SHARIE MARIE COGAR, 

Petitioner 

and 

NICKEY EUGENE COGAR, 

Respondent 

and Appellant, 

and Respondent. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Ed Mc Lean, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Carol J. Everly, Attorney at Law, Missoula, Montana. 

For Respondent: 

F. R. Randy Harrison, Attorney at Law, Missoula, 

Montana. 

Filed: 

Submitted on Briefs: February 13, 1992 

~~~id~d: March 24, 1992 
Justice Fsed J. Weber delivered the Opinion of the Court. 

Pursuant to their decree of dissolution, Sharie Marie Cogar 

and Nickey Eugene Cogar were awarded joint custody of their two 

minor children with Mrs. Cogar as primary caretaker. Subsequently, 

Mr. Cogar moved for modification of joint custody of the children 

to sole custody in his care. The District Court for the Fourth 

Judicial District, Missoula County, entered a temporary custody 

order granting Mr. Cogar temporary sale custody. The next day, 

Mrs. Cogar moved to quash the temporary order, The District Court 

granted her motion and ordered a custody evaluation and a chemical 

dependency evaluation of Mrs. Cogar. After considering the results 

of those evaluations and interviewing the children, the District 

Court issued an order continuing joint custody with Mrs. Cogar as 

the primary custodian but amending the visitation schedule. Mrs. 

Cogar appeals from the District Court's order amending the 

visitation schedule. We affirm. 

We restate the issue as follows: 

Did the District Court abuse its discretion when it denied the 

motion for sole custody but modified the existing visitation 

schedule? 

The marriage of Sharie and Nickey Cogar was dissolved on June 

2, 1989. The parties agreed to share joint custody of their two 

minor children with Mrs. Cogar as the primary caretaker. A minimum 

visitation schedule was agreed to and incorporated into the decree 

of dissolution. Mr. Cogargs visitation was to include as a 

minimum: (1) two consecutive days and one over night visit each and 
every week; (2) alternating weekends commencing at 5:00 p.m. Friday 

evening and ending at 6: 00 p.m. Sunday evening; (3) alternating 

visitation on the holidays of Memorial Day, Labor Day, Fourth of 

July, ~hanksgiving and Easter. Mrs. Cogar was to have every 

Christmas and Mr. Cogar was to have every Christmas eve; and (4) 

Mr. Cogar was to have the children six weeks of the summer 

beginning one week after school recessed for the summer. 

In October of 1989, Mr. Cogar moved the court to modify child 

custody and name him as primary custodian. He based his motions on 

allegations that changed circumstances would make it in the 

children's best interests to reside primarily with him. The court 

authorized the appointment of a guardian ad litem for the children 

and ordered that the children undergo an evaluation by counselors 

at the Mental Health Center. 

The children were evaluated by Dr. Sandra Rahrer. Dr. Rahrer 

recommended that the visitation arrangement then in effect be 

maintained. 

On April 2, 1991, Mr. Cogar filed another motion for sole 

custody in which he alleged that Mrs. Cogar had been arrested for 

driving under the influence; that she had no valid driver's 

license, vehicle license or liability insurance; that she had moved 

the children five times in a two year period; that she had been 

treated for alcoholism; and that their son had been retained in 

kindergarten due to excessive absences. 

The District Court issued an ex parte order of temporary 

custody. The next day, Mrs. Cogar moved the court to quash the 
temporary custody order. A hearing was held on April 5, 1991. At 

the hearing, Judge McLean questioned the children in his chambers 

as to custody and visitation. 

The court granted Mrs. Cogarts motion to quash the temporary 

custody order. However, it ordered a new custody evaluation and 

ordered Mrs. Cogar to undergo a chemical dependency evaluation. It 

further ordered that the parties share the physical custody of 

their children on a weekly basis -- one parent would keep the 

children for one week and then alternate so that the other parent 

would keep the children for one week. 

A follow-up hearing was held on August 21, 1991, in which the 

court considered the results of the custody evaluation done by Dr. 

Philip Bornstein and Dr. Marcy Bornstein. Some of the Bornsteinsf 

conclusions follow: 

4. Emotionally, [the children] are in need of 

nurturance, affection, understanding, and a reduction of 

interparental judgmental attitudes. To best accomplish 

this, they must be assured of continuing contact with 

both parents. 

As evaluators, we have considered the best interests of 

the minor children by evaluating their desires, the 

desires of their parents, the childrens' relationship to 

each parent, and the childrensf current adjustment to 

home, school, and community. Indeed, reviewing all data 

presented above, this examiner finds that the awarding of 

joint custody continues to be in the best interests of 

[the children]. 

6. Thus, given the above findings, this examiner 

believes there is little reason to change the visitation 

schedule as originally prescribed in the June 2, 1989 

Decree of Dissolution. . . . 
8. Mr. and Mrs. Cogar should agree upon the 

following: 

A. The sharing of time with children during 

holidays, vacations, etc., should be as ewal 

as possible. 

B. Once a schedule is put into effect, that 

schedule should be followed as closely as 

possible. 

Reqardless of residential plan, the principle of joint 

custody provides assurance that both parents can remain 

siqnificantlv involved in all substantive matters that 

have impact upon the children. (Emphasis added). 

After considering the Bornsteinsl evaluation, the District Court 

decided to have the parties follow the residential plan known as 

the ilAckerman PlanH. The court described the plan as follows: 

THE COURT: It is known as the 9/4 (sic), 10/5 (sic) 

Plan, Sharie will have the children during the school 

year on a 9/5 basis. During the summer, Nick will have 

the summer on a 10/4 basis. You can take a look at this 

plan and draw it up. 

The 9/5 plan during the school year means that 

Sharie will have the children nine out of fourteen days 

and Nick will have them five out of the fourteen days. 

During the summertime that changes to where Nick has the 

children ten days out of the fourteen and Sharie has them 

four days out of the fourteen. 

The way it works is on the 9/5 plan, he will have 

theme, like, three days one week and two days the next, 

or four days one week and one week the next. He will 

have them Thursday, Friday, Saturday, and Sunday of one 

week. The following week he will have them on a 

Saturday. 

Sharie will have them the remainder of the time. 

During Christmas vacation he will have them for two 

weeks; during Thanksgiving and Easter vacation he will 

have them one week. ~uring the summer months -- summer 

means it begins the day after school gets out and ends 

the day before school starts -- Nick will have the 

children ten out of every fourteen days, with Sharie 

having the children for a three-day weekend one week and 

overnight the alternate week. 
The way this will end up is Sharie will wind up with 

the children approximately twenty days more per year than 

Nick will have, when it all comes out in the wash. This 

plan is meant to address the jumping back and forth where 

we are talking about the stability for the child's 

benefit. 

Mrs. Cogar appeals from the District Court's imposition of the 

Ackerman plan. 

Did the District Court abuse its discretion when it denied the 

motion for sole custody but modified the existing visitation 

schedule? 

In his motion to modify custody dated April 2, 1991, Mr. Cogar 

sought to be awarded the sole custody of his children pursuant to 

5 40-4-219, MCA. That motion was denied by the District Court. 

Instead, the District Court modified the visitation time that the 

parents spent with their children. Mrs. Cogar maintains that since 

a change in visitation time was not the issue before the court, it 

erred in modifying it. She maintains that the District Court would 

have had to have shown serious endangerment to the children before 

it could modify visitation. 

Mr. Cogar maintains that a change in visitation time does not 

amount to a change in "custodyw under § 40-4-219, MCA, when the 

parties retained joint custody. We agree. 

Section 40-4-219, MCA, provides that the court may in its 

discretion modify a prior custody decree if it finds (1) that a 

change has occurred in the circumstances of the child and that the 

modification is necessary to serve the best interest of the child; 

and (2) if it further finds that the child's present environment 

endangers seriously his physical, mental, moral, or emotional 

6 
health and the harm likely to be caused by a change of environment 

is outweighed by its advantages to him, After considering custody 

evaluations, the children's wishes and a chemical dependency 

evaluation, the ~istrict Court determined that it was in the best 

interest of the children to continue joint custody. In the same 

order, the District Court modified the visitation schedule by 

instigating the Ackeman Plan of visitation. 

As evidenced by the statutes, custody and visitation are not 

the same thing. Under 40-4-218, MCA, the custodian has the right 

to determine the child's upbringing, including his education, 

health care and religious training, unless there is a specific 

limitation on his authority. We are not dealing with an issue of 

custody here but rather an issue of visitation. Under the 

provisions of 5 40-4-217, MCA, a parent not granted custody of a 

child is entitled to reasonable visitation rights and the district 

court may modify Wisitation rights whenever modification would 

serve the best interest of the ~hild[ren]~~. The statute further 

provides that "the court may 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". 

The District Court here concluded that joint custody was still 

appropriate and continued the original joint custody provision. 

The court did not restrict either parent's visitation, The court 

stated that the Ackerman Plan was meant to "address the jumping 

back and forth where we are talking about the stability for the 

child's benefit." The court further stated: "1 have read the 
children's feelings. I'm doing what I think is in the best 

interests of the children." Acting under the specific provisions 

of § 40-4-217, MCA, the District Court modified the visitation 

plan. We hold that the District Court did not abuse its 

discretion in the modification of the visitation plan. 

L 

Justices 
Justice Karla M. Gray, dissenting. 

I respectfully dissent from the majority opinion. It is my 

view that the District Court abused its discretion in imposing a 

significantly revised visitation schedule where neither party 

requested modification of visitation and no evidence on the record 

supports the court's action. 

The majority correctly notes that the District Court imposed 

the ltAckerman Plan" subsequent to an August 21, 1991, hearing and 

that the court states that it considered the results of the custody 

evaluation done by Drs. Bornstein. The District Court did not cite 

to the Bornstein report, however, in support of its imposition of 

the new visitation schedule; the majority attempts to do so to 

avoid finding an abuse of discretion. 

It is my view that the majority's efforts in this regard are 

in error, as a clear reading of the report and the majority's 

quotations from it indicate. First, the cited portions relating to 

continued contact with both parents and continued joint custody 

being in the best interests of the children have nothing whatsoever 

to do with the matter of substantially revising the visitation 

schedule. Next, the majority quotes, but does not highlight the 

Bornsteinst conclusion that "there is little reason to change the 

visitation schedule as originally prescribed. . . .Ir The majority 

goes on to quote the Bornsteinst recommendation that holiday and 

vacation time should be shared "as equal as possible." It is 

important to note the limited scope of this recommendation; no 

recommendation is made that all of the childrenFs time be shared as 

9 
equally as possible (which is the ultimate result of the court's 

imposition of the "Ackerman Plan*'), but only that vacation times be 

so shared. Finally, the majority highlights a statement from the 

Bornsteins' report relating only to the importance of continuing 

joint custody, which was the question before the District Court, 

and not to revising the visitation schedule. Absolutely nothing in 

the Bornsteins' report supports the court's imposition of the 

"Ackerman Plan. 

The majority then goes on to quote from the District Court's 

explanation of that Plan, including the notion that the "plan is 

meant to address the jumping back and forth where we are talking 

about the stability for the child's benefit." A more "jumping back 

and forthM schedule disruptive to the children's stability, 

particularly in light of the recommendations from the Bornsteins, 

hardly can be imagined. 

I agree with the majority that, pursuant to 5 40-4-217(3), 

MCA, a court can modify visitation rights when it "would serve the 

best interest of the child[ren] .It Nothing on the record before the 

District Court or this Court supports the notion that the imposed 

visitation plan is in the children's best interest; nor does the 

District Court make any findings regarding the children's best 

interests insofar as this visitation plan is concerned. 

I would hold that the District Court abused its discretion.