97-597

No. 97-597

IN THE SUPREME COURT OF THE STATE OF MONTANA

 

1998 MT 96N

IN RE THE MARRIAGE OF

PEGGY C. G. SCHAPLOW,

n/k/a PEGGY C. GANDER,

Petitioner and Respondent,

and

TERRY F. SCHAPLOW,

Respondent and Appellant.

APPEAL FROM: District Court of the Eighteenth Judicial District,

 In and for the County of Gallatin,

 The Honorable Roy C. Rodeghiero, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Edmund P. Sedivy, Jr.; Sedivy, Bennett & White, Bozeman,

Montana

For Respondent:

Marcelle C. Quist; Quist Law Office, Southern Pines, North

Carolina; Todd Hillier, Attorney at Law, Bozeman, Montana

Submitted on Briefs: March 26, 1998

Decided: April 30, 1998

Filed:

 __________________________________________

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-597%20Opinion.htm (1 of 4)4/12/2007 12:42:10 PM
97-597

 Clerk

 MEMORANDUM

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996

Internal Operating Rules, the following decision shall not be cited as precedent

but shall be filed as a public document with the Clerk of the Supreme Court

and shall be reported by case title, Supreme Court cause number, and result to

the State Reporter Publishing Company and to West Group in the quarterly

table of noncitable cases issued by this Court.

¶2 Terry F. Schaplow (Terry) and Peggy C. G. Schaplow (Peggy)

dissolved their marriage on May 6, 1991. At the time of dissolution, the

parties agreed to a joint custody arrangement for their two sons, Jay and Jesse. 

Since that date, the parties have continually involved the courts in their

day-to-day disagreements as to the interests of Jay and Jesse, most of which involve

the boys' sports activities. On February 3, 1997, Terry moved for modification

of custody, requesting sole custody of the boys as a result of Peggy's refusal

to deliver the boys to sports practices. The District Court issued an order to

show cause and set a hearing for April 29-30, 1997. Thereafter, the parties

flooded the court with various motions and briefs. The District Court

responded by appointing a guardian ad litem and attorney for the children and

holding the modification matter in abeyance. 

¶3 On June 13, 1997 and July 25, 1997, Terry filed renewed requests for

a hearing on his motion for modification and requested that certain summer

visitation and seasonal sporting matters be heard. On August 21, 1997, after

receiving the report of the guardian ad litem, the District Court held a hearing

for the purpose of determining three limited issues: 1) Which school should

Jay Schaplow attend in the fall of 1997, Sacajawea Middle School or Chief

Joseph Middle School? 2) Should Terry be allowed to petition the Montana

High School Association on Jesse Schaplow's behalf for a "waiver" to allow

Jesse to compete in basketball as a sophomore rather than a junior? 3) Should

Jay Schaplow play fall soccer? The District Court ruled on the three issues,

then, in its Memorandum, stated "though not an issue before the Court on the

August 21, 1997 hearing, it is the Court's distinct impression after speaking

with the children that the children prefer the present custody arrangement to

any sole custody arrangement with either parent and the Court agrees that the

present arrangement is in the children's best interests." It is from this

statement that Terry appeals.

¶4 Terry presents two issues on appeal: 

¶5 1) Did the District Court violate Terry's procedural due process rights

by denying his motion for sole custody without holding a hearing or reviewing

any evidence?

¶6 2) Did the District Court err by disregarding the law of the case? 

We dismiss the first issue for lack of jurisdiction and affirm the second issue.

 Discussion

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-597%20Opinion.htm (2 of 4)4/12/2007 12:42:10 PM
97-597

 I

¶7 1) Did the District Court violate Terry's procedural due process rights

by denying his motion for sole custody without holding a hearing or reviewing

any evidence?

¶8 Terry asserts that the above ruling is a final order denying his motion

for modification. Terry further asserts that the District Court violated his due

process rights by ruling on his motion without conducting a hearing. Peggy

asserts that the order is interlocutory, issued for the sole purpose of

determining the three stated issues and is not a final appealable order on

Terry's motion. As a result, Peggy asserts that this appeal should be dismissed

for lack of jurisdiction. We agree.

¶9 Terry requests that this Court reverse the decision of the District Court

and remand the matter for a hearing on his motion for modification. Terry

asserts that the failure of the District Court to hold a hearing regarding his

motion for modification deprived him of due process rights. However, we

determine that the District Court's Order and Memorandum was issued as a

final judgment as to the three limited issues, and was not a final order as to

Terry's motion for modification. 

¶10 The Montana Rules of Appellate Procedure provide that appeal can be

taken only from a final judgment. Rule 1, M.R.App.P. "A final judgment is

one in which there has been a final determination of the rights of the parties,

and any decree which leaves matters undetermined is interlocutory in nature

and is not a final judgment for purposes of appeal." Kirchner v. Western

Montana Mental Health Center (1995), 272 Mont.110, 112, 899 P.2d 1102,

1104. We determine that the District Court's Order and Memorandum, despite

mentioning its "impression" regarding custody, was not a final judgment on

Terry's motion for modification. Terry's due process argument assumes that the

District Court issued a final judgment on his motion. Since there was no such

final judgment, the present appeal is premature and must be dismissed for lack

of jurisdiction.

 II

¶11 2) Did the District Court err by disregarding the law of the case?

¶12 The District Court, in December 1994, issued a "final" determination

of visitation rights. The visitation schedule ordered that "[w]hen the boys are

with [Peggy], she shall insure that the boys attend the sports activities they

participate in." Terry has since interpreted this portion of the District Court

Order as "the Sports Participation Clause." This Court, in its prior opinion in

this case, upheld the District Court's 1994 order regarding visitation and the

court's subsequent contempt orders against Peggy for failing to deliver the

boys to their sports activities. Terry argues that the Sports Participation

Clause, as upheld by this Court, is the law of the case. Furthermore, Terry

argues that the District Court, in its most recent Order and Memorandum,

holding that Jay was not required to participate in soccer, violated the law of

the case. Peggy's response asserts only that Terry's argument is illogical and

that the District Court has continuing jurisdiction to amend custody matters. 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-597%20Opinion.htm (3 of 4)4/12/2007 12:42:10 PM
97-597

This Court reviews the district court's conclusions of law to determine whether

the court's interpretation of the law is correct. Carbon County v. Union

Reserve Coal Co., Inc. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686. 

¶13 As a preliminary matter, we determine that the issue of whether the law

of the case doctrine requires that Jay play soccer is moot because the 1997

soccer season has passed. However, we address the issue of whether the

Sports Participation Clause is the law of the case to avoid future confusion as

to the law of the case doctrine and its application to this case. We explained

in Doting v. Trunk (1993), 259 Mont. 343, 347-48, 856 P.2d 536, 539, that

"[w]hen this Court states in an opinion a principle or rule of law necessary to

the decision, such statement becomes the law of the case and controls

throughout its subsequent progress, both in the trial court and upon subsequent

appeal." This Court, by upholding the District Court's contempt orders, did

not create a "law of the case" requiring that the boys participate in sports. 

Rather, this Court upheld the District Court's holding that if the boys

participate in a particular sports activity, Peggy must insure that the boys

attend the activity. Terry misinterprets this Court's Opinion as requiring Jay

to participate in soccer. We determine that the District Court's refusal to apply

the Sports Participation Clause, as interpreted by Terry, as the law of the case

was correct.

¶14 We further determine that the District Court did not err in determining

that Jay is not required to participate in soccer. We note that in ordering that

Jay did not have to play, the District Court considered the report of the

guardian ad litem, the testimony at the August 21, 1997 hearing and the

personal interview the court conducted with the boys. As a result, the District

Court had a firm impression that Jay did not want to play soccer and that it

was not in Jay's best interest to force him to participate in sporting activities

to which he was opposed. 

¶15 In determining the best interests of the child, § 40-4-212, MCA, allows

the District Court to consider the wishes of the child. Given his age and

maturity, Jay is in a better position than either parent to decide which

extracurricular activities suit him. We determine that the District Court's

reliance on the wishes of Jay is not erroneous. Affirmed in part and dismissed

in part.

/S/ W. WILLIAM LEAPHART

/S/ JAMES C. NELSON

/S/ KARLA M. GRAY

/S/ JIM REGNIER 

/S/ TERRY N. TRIEWEILER

 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-597%20Opinion.htm (4 of 4)4/12/2007 12:42:10 PM