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: CarolJ. Everly,Attorney atLaw,Missoula,Montana. For Respondent: F. R. Randy Harrison, Attorney at Law, Missoula, Montana.

Filed: Submitted on Briefs: February 13, 1992 ~~~id~d: March 24, 1992Justice 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 withMrs. Cogar as primary caretaker. Subsequently, Mr. Cogarmoved formodification 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. Cogarmoved to quash the temporary order, The District Court granted hermotion and ordered a custody evaluation and a chemical dependency evaluationof 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 itsdiscretion when it denied the motion for sole custody but modified the existing visitation schedule? The marriage of Sharie and Nickey Cogarwas dissolved on June 2, 1989. The parties agreed to share joint custody of their two minor childrenwith Mrs. Cogar as theprimary caretaker. Aminimum visitation schedule was agreed to and incorporated into the decree of dissolution. Mr. Cogargsvisitation was to include as a minimum: (1)

### twoconsecutivedays and 

### one

### over nightvisit eachandeveryweek; (2) alternating weekends commencingat 5:00p.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, ~hanksgivingand 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. 

### InOctober of 1989,Mr. Cogarmoved the court to modify child custody 

### andname

### him asprimary custodian. He based

### hismotions on allegations that changed circumstances would make it in the children's best interests to resideprimarily 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 shehadmoved 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 

### hearingwas held onApril 5, 

### 1991. At the hearing, Judge McLean questioned the children in his chambers

as to custody and visitation. The court granted Mrs. Cogartsmotion to quash the temporary custody order. However, it ordered a new custody evaluation and orderedMrs. Cogar toundergo 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 hearingwas held onAugust 21, 

### 1991, inwhich 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 reductionof 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 theirparents, the childrens' relationshipto each parent, and the childrensfcurrent adjustment to home, school,and community. Indeed,reviewing all data presented above, thisexaminer findsthat theawarding 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 thevisitation 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 impactupon the children. (Emphasisadded). After considering the Bornsteinslevaluation, 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 knownas 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 towhere Nick has the children tendays out of the fourteenand 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 summermonths 

## -- 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.Theway thiswill endup is Shariewill wind upwith the childrenapproximately twentydays moreperyear than Nick will have,when it all comes out in the wash. This plan ismeant to address the jumpingback and forthwhere 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 DistrictCourt abuse itsdiscretion when itdenied the motion for sole custody but modified the existing visitation schedule? In hismotion tomodify custodydated 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 spentwith their children. Mrs. Cogar maintains that since

a change invisitation time was not the issuebefore the court, it erred in modifying it. Shemaintains that the District Courtwould have had tohave shown serious endangerment to the childrenbefore it could modify visitation. Mr. Cogar maintains that a change invisitation time does not amount to a change in "custodywunder § 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 circumstancesof 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 6health and the harm likely tobe caused by a change of environment is outweighedby its advantages to him, After consideringcustody 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 

### samething. 

### Under 40-4-218, MCA,the

### custodianhas 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 rightsunless it findsthat the visitationwould endanger seriously the child'sphysical, mental, moral, or emotional health". TheDistrict Courthere concludedthat jointcustodywas 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 thechildren'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 themodification 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 requestedmodificationof visitation and no evidence on the record supports the court's action. Themajority correctly notes that the District Court imposed the ltAckerman Plan" subsequent to an August 21, 1991,hearing and thatthecourt statesthat it considered the results of thecustody evaluationdoneby 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 ismy 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,thecitedportions relating to continued contact with both parents and continued joint custody being in thebest interests

### of the childrenhavenothingwhatsoever to do with the matter of substantially revising the visitation schedule. Next, the majority quotes, but does not highlight the Bornsteinstconclusion that "there is little reason 

### to change 

### the visitation schedule

### as originally prescribed. 

## .

# . .Ir Themajority goes on to quote the Bornsteinstrecommendation that holiday and 

### vacation time should be shared "as equal as possible." It is important to note the limited scope of this recommendation; no recommendationis made that all of the childrenFstimebe shared as 9equally as possible (which is the ultimate result of the court's imposition of the "AckermanPlan*'),but only that

### vacation timesbe

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, andnot to revisingthevisitation schedule. Absolutely nothing in the Bornsteins' report supports the court's imposition of the "Ackerman Plan. Themajority 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." 

### Amore "jumpingback 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 canmodify visitation rights when it "would serve the best interest of the child[ren] .It Nothing on the recordbefore 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. Iwould hold that the District Court abused its discretion.