No. 94-329

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

IN RE THE MARRIAGE OF

TAMARA KAY NJOS, formerly

known as Tamara Kay Allard,

Plaintiff and Respondent,

and

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis and Clark,

The Honorable Dorothy McCarter, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Edmund F. Sheehy, Jr.; Cannon & Sheehy,

Helena, Montana

For Respondent:

John L. Hollow, Attorney at Law, Helena,

Montana

Filed:

Submitted on Briefs: December 8, 1994

Decided: February 15, 1995
Justice Karla M. Gray delivered the Opinion of the Court

Robert Dale Allard (Robert) appeals from orders of the First

Judicial District Court, Lewis and Clark County, temporarily

modifying his visitation rights with his daughter and requiring him

to undergo a sex offender evaluation. We affirm.

Robert married Tamara Njos (Tamara) in 1982. Their marriage

was dissolved by a North Dakota court in 1987 and Tamara was

awarded sole custody of the couple's two minor children: a son,

Dustin Allard, born February 4, 1983, and a daughter, Bobbi Allard,

born September 30, 1986. Robert was granted weekly and alternating

holiday visitation.

The decree was modified in 1988 to provide for visitation by

Robert every other weekend, one full month in the summer, and

scheduled holidays determined by court order. The North Dakota

court allowed Tamara to move to Montana with the children in 1989,

and again modified Robert's visitation to provide for two months of

summer visitation and alternating Christmas and spring vacations.

On March 16, 1994, Tamara filed a petition in the First

Judicial District Court seeking recognition of the North Dakota

dissolution decree. Seven days later, she moved to modify

visitation, to object to visitation pursuant to 5 40-4-217 (6), MCA,

and for an ex parte order, under § 40-4-220(2) (a) (ii), MCA,

requiring that Robert's visitation with his daughter Bobbi be

supervised. Tamara supported the motion with her own affidavit;

counseling notes pertaining to alleged sexual assaults by Robert

2
against Tamara's sister, Tracy; transcripts of sworn testimony from

two women who allegedly had been sexually assaulted by Robert while

he was a junior high school teacher in the 1980s; and a copy of the

criminal complaint arising out of the incidents with Robert's

students. The District Court issued an ex parte order temporarily

modifying Robert's visitation rights by requiring supervised

visitation with Bobbi.

The parties subsequently appeared before the District Court

for a show cause hearing. Tracy Njos testified that, unbeknownst

to her sister Tamara, Robert had sexually assaulted her on various

occasions between 1984 and 1985, when she 14 to 15 years old. When

the hearing continued several weeks later, Tamara's other sister,

Cindy Hayden, testified that Robert had sexually assaulted her in

1985, when she was 12 years old. Tamara, Robert, and Robert's

mother, Linda Allard, also testified, as did Ron Silvers (Silvers),

a licensed therapist specializing in the psychological treatment of

sexual assault offenders and victims. Following the hearing, the

District Court ordered that the temporary modification of Robert's

visitation rights continue and that he undergo a sex offender

evaluation. Robert appeals from the District Court's ex parte and

post-hearing orders

1. Did the District Court err by proceeding under 40-4-

220, MCA, rather than § 40-4-217(3), MCA, in ruling on

the motion for temporary supervised visitation?

The District Court predicated its ex parte order modifying

Robert's visitation on § 40-4-220(2) (a), MCA, which provides for

temporary modification of custody ex parte when the moving party

3
shows by affidavit that the child's physical or emotional health is

endangered and an immediate change would protect the child's

physical or emotional health. Robert asserts that § 40-4-217, MCA,

applies and that the court was not authorized to proceed pursuant

to 5 40-4-220, MCA. W e review a district court ' s legal

determinations to ascertain whether they are correct. In re

Marriage of Barnard (1994), 264 Mont. 103, 106, 870 P.2d 91, 93.

We address first the underlying question of whether 5 40-4-

220(Z), MCA, which refers by its plain language to an ex parte

request for temporary "custody" or modification thereof, is

applicable to Tamara's ex parte request for temporary modification

of "visitation." We previously have determined that visitation is

an inherent part of child custody and that the district courts have

broad powers to determine all problems concerning custody and

visitation. In re Marriage of Hunt (19941, 264 Mont. 159, 164, 870

P.2d 720, 723 (citation omitted). Under that rationale, and given

our primary responsibility of focusing on the well-being of the

children (see In re Marriage of Hickey (1984), 213 Mont. 38, 44,

689 P.2d 1222, 1225), it is clear that the statutorily-authorized

ex parte practice regarding a temporary custody request must

necessarily extend to ex parte practice regarding temporary

visitation issues. A contrary determination would prevent a

district court from acting expeditiously and on a temporary basis,

in appropriate cases, to protect the interests of minor children

whose physical or emotional health may be at risk.

In this case, Tamara's ex parte request for temporary

4
modification of Robert's visitation was supported by materials

sufficient to raise the issue of whether Bobbi's visitation

environment with Robert might endanger her physical or emotional

health. We conclude that § 40-4-220(2), MCA, authorizes a district

court to address ex parte requests for temporary modifications of

visitation arrangements, as well as requests for temporary custody

or modification thereof.

Robert argues that the court's temporary order for supervised

visitation in this case constitutes a "restriction" on his

visitation rights pursuant to § 40-4-217(3), MCA. On that basis,

he asserts that compliance with the procedural requisites of § 40-

4-217, MCA, was necessary before the District Court could order

supervised visitation with Bobbi.

Section 40-4-217(l), MCA, provides that a noncustodial parent

is entitled to reasonable visitation rights unless, after a

hearing, the court finds that visitation would seriously endanger

the child's physical, mental, moral or emotional health. Section

40-4-217(3), MCA, specifically provides that visitation cannot be

restricted absent such a serious endangerment finding by the court.

Robert relies on a Commissioners' Note to § 40-4-217, MCA, in

asserting that he is entitled to a hearing and a serious

endangerment finding prior to entry of an order "restricting" his

visitation to supervised visitation. The Note states that a court

cannot deprive the noncustodial parent of all visitation rights

without meeting the hearing and serious endangerment standards of

the statute. Neither the language of the Note nor our case law

5
interpreting § 40-4-217, MCA, support Robert's position.

The Note clearly states that the hearing and serious

endangerment requirements of 5 40-4-217, MCA, apply where a court

"deprive[sl the noncustodial parent of all visitation rights."

Here, the court did not totally deprive Robert of his visitation

rights. Indeed, it did not reduce Robert's visitation time in any

way. The court simply, and temporarily, required that Robert's

visitation with Bobbi be supervised.

Moreover, we previously have rejected a similar argument

attempting to impose the requirements of § 40-4-217, MCA, on an

order for supervised visitation. In Marriaqe of Hickev, 689 P.2d

1222, the father appealed from an order granting custody of the

children to the mother and providing him with reasonable and

supervised visitation. Relying on Firman v. Firman (1980), 187

Mont. 465, 610 P.2d 178, Hickey argued that the limitation of his

visitation rights was erroneous absent a finding that unrestricted

visitation would seriously endanger the physical or emotional

health of the child as set forth in § 40-4-217, MCA. We concluded

that Firman was distinguishable in that both the statute and that

case referred to a reduction in the amount of visitation time

granted, whereas Hickey's visitation time was merely to be

supervised. Marriaqe of Hickev, 689 P.2d at 1225.

We reach the same conclusion here. Section 40-4-217, MCA,

applies when visitation time is reduced or, as indicated in the

Commissioners' Note, totally eliminated. A requirement that

visitation be supervised is not a restriction of visitation rights

6
under 5 40-4-217(3), MCA.

Robert argues in this regard that our recent decisions in Rome

v. Hickok (Mont. 1994), 871 P.Zd 894, 51 St.Rep. 320, and In re

Marriage of Reininghaus (1991), 250 Mont. 86, 817 P.2d 1159,

support the opposite conclusion; namely, that supervised visitation

is a restriction of visitation rights under 5 40-4-217, MCA, which

requires a serious endangerment finding. While language in those

decisions may have inadvertently clouded the question, neither

reached a conclusion different from Marriase of Hickev.

As discussed above, we concluded in Marriage of Hickev that

either a reduction in the amount of time for visitation or a total

elimination of visitation constituted a "restriction" bringing §

40-4-217, MCA, into play. Marriaqe of Hickev, 689 P.2d at 1225.

We did not deviate in any way from that conclusion through 1987,

when we reiterated affirmatively in State ex rel. Sorenson v. Roske

(1987), 229 Mont. 151, 156-157, 745 P.2d 365, 369, the distinction

between reduction in visitation and supervision of visitation visa-vis § 40-4-217, MCA. St. ex rel. Sorenson, 745 P.2d at 369;

citing Marriage of Hickev, 689 P.2d at 1225 and In re Marriage of

Jacobson (1987), 228 Mont. 458, 463, 743 P.2d 1025, 1027.

We decided Marriaqe of Reininshaus in 1991. There, the mother

was granted sole custody of the minor children and the father was

awarded reasonable visitation. The father argued on appeal that

the district court's order for supervised visitation was not

supported by a serious endangerment finding as required by § 40-4-

217, MCA. We noted factually that the district court had not

7
ordered supervised visitation, but had ordered reasonable

visitation. We stated--in passing and without explanation--that s

40-4-217(l), MCA, which refers to a noncustodial parent's right to

reasonable visitation, "requires a showing of endangerment."

Marriage of Reininshaus, 817 P.2d at 1161. We did not analyze,

interpret or app:Ly the 5 40-4-217(3), MCA, "restriction" language

argued by Robert here.

In - I ROrnO decided in 1994, the district court ordered

supervised visitation upon release from prison of an incarcerated

father. The father's parents argued that his visitation should not

be restricted. Citing to the Commissioners' Note to § 40-4-217,

MCA, we stated that l'[tlhe proper standard to apply where the

custodial parent seeks restriction of the noncustodial parent's

visitation is the serious endangerment standard." -,Romo 871 P.2d

at 896. We did not define "restriction" as utilized in the statute

i n any way; as a result, we certainly did not revise the

interpretation of "restriction" set forth in Marriaqe of Hickey and

continued thereafter. See Marriaqe of Hickev, 689 P.2d at 1225;

Marriaqe of Sorenson, 745 P.2d at 369.

We conclude again that a requirement for supervised visitation

is not a "restriction" of visitation rights under § 40-4-217(3),

MCA, which imposes upon a district court the hearing and serious

endangerment requirements of § 40-4-217, MCA. We hold, therefore,

that the District Court did not err in proceeding pursuant to § 40-

4-220(2), MCA, rather than § 40-4-217(3), MCA, on Tamara's motion

for temporary supervised visitation.

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2. Did the District Court abuse its discretion

by continuing the order to supervise

visitation following the show cause hearing?

Robert next argues that, under the circumstances, the

continuing order requiring supervised visitation was an abuse of

the District Court's discretion. This Court's standard of review

for custody and visitation is whether substantial credible evidence

supports the District Court's judgment. Marriaqe of Hunt, 870 P.2d

at 723. We will overturn a court's custody or visitation decision

only when the court's findings and conclusions clearly demonstrate

an abuse of discretion. Marriase of Hunt, 870 P.2d at 723.

During the show cause hearing, Tracy Njos testified that

Robert had assaulted and forced her to have intercourse with him

when she was 14 years old. Cindy Hayden, another younger sister of

Tamara's, also testified that Robert had sexually assaulted her at

age 12.

Based on this and other testimony at the show cause hearing,

the District Court determined that a question existed as to whether

Robert ttposes a risk to the children during their visitation." It

is clear that substantial evidence supports the court's

determination. We hold, therefore, that the District Court did not

abuse its discretion in continuing the temporary order requiring

supervised visitation following the show cause hearing.

3. Did the District Court abuse its discretion in

requiring Robert to undergo a sex offender evaluation?

Robert's final contention is that the District Court abused

9
its discretion in ordering him to undergo a sex offender

evaluation. We review a district court's discretionary ruling to

determine whether the court abused its discretion. In re Marriage

of Bonamarte (1994), 263 Mont. 170, 172, 866 P.2d 1132, 1133

(citation omitted).

Robert does not challenge the court's authority to order the

evaluation under 5 40-4-215, MCA. He argues that ordering the

evaluation was an abuse of the court's discretion because the

results would not constitute relevant and admissible evidence.

Relevant evidence assists in establishing the existence of any

fact which is of consequence to resolution of the action. Rule

401, M.R.Evid. The determination of the admissibility of evidence

is within the discretion of the trial court; the court is not

guided by fixed rules, but must consider the nature of the evidence

and the circumstances of a particular case. In re Marriage of

Starks (19931, 259 Mont. 138, 145, 855 P.2d 527, 531-532.

In essence, Robert's argument requests evidentiary rulings

regarding sex offender evaluation results which do not yet exist.

For the most part, the relevance and admissibility of this evidence

cannot be determined by any court until the evaluation is

performed.

Robert is correct, however, with regard to the admissibility

of one aspect of the as-yet-unperformed sex offender evaluation.

Relying on State v. Staat (1991), 248 Mont. 291, 811 P.2d 1261, he

argues that the results of any polygraph examination performed as

part of the sex offender evaluation are inadmissible. In Staat,

10
which involved use of the results of a court-ordered polygraph

examination in revoking an appeal bond, we quoted § 37-62-302, MCA,

which prohibits the introduction or admission of polygraph results

as evidence in a court of law. Staat, 811 P.2d at 1261. We went

on to state as a rule of law that N [plolygraph evidence shall not

be allowed in any proceeding in a court of law in Montana." Staat,

811 P.2d at 1262. We quoted and applied that rule of law in State

v. Hensley (19911, 250 Mont. 478, 483, 821 P.2d 1029, 1032, in

reversing a district court's consideration of polygraph results in

sentencing a criminal defendant.

Here, we apply the Staat rule in a proceeding involving

custody and visitation of children. We conclude that the results

of any polygraph examination performed during the court-ordered sex

offender evaluation are not, and will not be, admissible evidence

in subsequent proceedings in this action.

Robert also argues that the District Court, having refused to

consider Silvers' testimony recommending the sex offender

evaluation because Silvers was not properly qualified as an expert,

abused its discretion by ordering the evaluation. He cites no

authority requiring expert testimony before a court can order a sex

offender evaluation or any other investigation or report authorized

by § 40-4-215, MCA. Moreover, the testimony presented at the

hearing from persons other than Silvers clearly alerted the court

to the potential risk Robert posed to his minor daughter. We

conclude, therefore, that the District Court did not abuse its

discretion in ordering Robert to undergo a sex offender evaluation.

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Affirmed.

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February 15, 199.5

CERTIFICATE OF SERVICE

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

to the following named:

Edmund F. Sheehy, Jr.

Cannon & Sheehy

P.O. Box 5717

Helena, MT 59604-5717

John L. Hollow

Attorney At Law

318 East Sixth Avenue

Helena MT 59601

ED SMITH

CLERK OF THE! SUPREME

STATE OF MONTANA

COURT