No. 92-056 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

IN RE THE MARRIAGE OF 

DIANNE K. REMICK, 

n/k/a DIANNE K. BITNEY, 

Petitioner and Respondent, 

and 

DOUGLAS B. REMICK, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Leif B. Erickson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Douglas B. Remick, Helena, Montana, Pro Se 

For Respondent: 

Randy K. Schwickert, Attorney at Law, Whitefish, 

Montana 

Submitted on Briefs: December 10, 1992 

Decided: March 2, 1993 
Justice John Conway Harrison delivered the Opinion of the Court. 

This is an appeal from an order of the Eleventh Judicial 

District Court, Flathead County, temporarily terminating 

appellant's visitation with the two children of this marriage. We 

affirm. 

Douglas and Dianne were married in Lincoln County on July 4, 

1980. Their sons, Kyle and Cory, were born in 1982 and 1984 

respectively. At the time she filed her petition for dissolution 

in March 1989, Dianne was 35 years old and employed as a medical 

secretary in Columbia Falls, Montana. Douglas was 48 years old, 

unemployed and receiving disability benefits from the National 

Guard for injuries sustained in the line of duty. He had been a 

bank president until he was "involuntarily terminated" in 1987. 

Since 1989, Douglas has been living in Helena, Montana. 

In July 1989, Douglas and Dianne and their attorneys signed a 

settlement agreement in which the parties stipulated to temporary 

joint custody with Dianne as the residential parent; visitation by 

Douglas on alternate weekends and Wednesday evenings; and $200 a 

month as child support, paid through Dianne's attorney. 

At an attorneys' conference on September 6, 1989, the parties' 

attorneys agreed to a hearing before a special master, pursuant to 

Rule 53, M.R.Civ.P. This hearing eventually was scheduled for 

February 27, 1990. 

At the hearing on February 27, both parties were present and 

represented by counsel. The special master filed a report on April 

13, 1990. She found that Dianne's fulltime salary was $13,184, 

2 
which represented the top of her earning capacity, and that Douglas 

was earning $600 a month from insurance sales and $539 a month from 

the National Guard, for a current annual income of $13,668. The 

master noted also that Douglas has children from a previous 

marriage, for whom the Montana Child Support Enforcement Division 

was then withholding $199 a month from his income. She reported 

that the parties had agreed to joint custody, with Dianne as the 

residential parent, and to visitation for one weekend per month 

plus thirty days each summer. This agreement was incorporated in 

the master's order, which also required Douglas to pay child 

support at $186.84 per month, subject to adjustment if his income 

increased, and to pay half the cost of health insurance for the 

children and half the cost of day care. Finding that the 

stipulated property division was llconscionable and equitable," she 

also ordered the parties to transfer property and execute documents 

as necessary to comply with the terms of their agreement. 

Both parties moved to modify the masterf s report. Dianne 

claimed that Douglas could return to work in the banking industry 

at a salary in excess of $40,000 annually but had chosen to remain 

"underemployed," and that under the Montana Child Support 

Guidelines the master should impute an annual income of $45,000 to 

Douglas. 

Douglas also filed objections to the master's report, after 

his attorney, Michael McCabe, withdrew on April 26, 1990. He 

claimed that Mr. McCabe had agreed to the property division without 

his consent and that the couple's debts had not been divided 
fairly. He also stated that he would not pay child support because 

Dianne was living with her boyfriend, that he wanted the children 

to live with him, and that he would expect child support from 

Dianne in the amount of $200 a month. 

After a hearing on May 17, 1900, the District Court entered a 

decree of dissolution, adopting the master's report except that 

Douglas was ordered to pay $203.80 per month for child support 

through automatic withholding. 

On November 21, 1990, Dianne filed a motion for contempt and 

order to show cause, stating that Douglas had not reimbursed her 

for his share of the children's health insurance premium and day 

care expenses. The court entered its order to show cause on the 

same day, requiring Douglas to appear on January 2, 1991. Douglas 

failed to appear on that date, but his new lawyer, Patrick 

Springer, appeared to request a continuance. The court denied the 

continuance on the ground that Douglas had not shown good cause for 

his absence. 

In its order of January 2, 1991, the District Court found 

Douglas guilty of three counts of contempt of the court's decree of 

May 17, 1990, sentenced him to fifteen days in the Flathead County 

jail, and imposed a fine of $1,500. The order provided that 

Douglas could purge himself of contempt by paying Dianne the 

amounts he owed her for day care and health insurance premiums, 

plus her attorney's fees, before January 25. Douglas failed to 

make these payments, and the court issued a warrant for his arrest 

on February 20, 1991. 
Douglas posted bond, and on March 22, 1991, his attorney filed 

a petition for modification of the decree of dissolution, arguing 

that fraud upon the court authorized the court to set aside its 

prior judgment and that the time limit in Rule 60(b), M.R.Civ.P., 

does not apply. In his supporting affidavit, Douglas stated that 

the settlement agreement incorporated in the decree was "a 

falsehood and represents a fraud perpetrated upon the court,IF that 

he had not been "a part of the negotiations," and that he had not 

understood that the agreement made him responsible for all marital 

indebtedness. 

The District Court considered Douglas1 petition for 

modification on March 28, 1991, the date set for his appearance on 

the contempt charges. Both parties were present, accompanied by 

their attorneys. In its subsequent order, signed on May 2, 1991, 

the court denied Douglas' petition on the basis that he had failed 

to establish any of the grounds authorizing the court to set aside 

a property agreement pursuant to 5 40-4-208(3), MCA. It also 

suspended its previous sentence for contempt, to "provide another 

opportunity for Mr. Remick to purge himself of the Court's finding 

of ~ontempt~~ by paying the $1,201.95 in arrearages determined in 

the court's January 2 order and remaining current in his 

obligations for health insurance and day care. The court ordered 

monthly installments of $200 for five months, plus a final payment 

of $201.95. 

On May 28, 1991, Douglas, through his attorney, filed an 

emergency petition for enforcement of visitation, stating that he 
had advised Dianne in January that he wished to take the children 

for his thirty-day summer visit on June 15, 1991 and that he 

proposed to take them to his family reunion in Wisconsin at that 

time, but Dianne insisted that all visitation was to occur in 

Flathead County. In her response, Dianne said that she did not 

object to contact between Douglas and the children but was 

concerned that his proposed visitation was unreasonable "based upon 

his historic patterns and irresponsibility." A letter from her 

attorney to Douglast attorney, dated April 8, 1991, was attached to 

the response. It stated that Douglas in the past had driven with 

the children in the car while he was drinking; that he had allowed 

their half-brother, Ryan, then age thirteen, to drive with the 

children in the car; and that he had not visited the children since 

December 27, 1989, on which occasion he failed to bathe them for a 

week and let them stay up past midnight. 

On June 14, 1991, after a hearing attended by both parties and 

their attorneys, the court issued an order listing conditions under 

which Douglas could exercise his visitation right that summer, 

including, among other things, that Douglas was not to consume 

alcohol while driving or within two hours before driving; that he 

was not to speak negatively to the children about Dianne; that he 

was not to allow an unlicensed driver to operate a motor vehicle 

while the children were in it; and that "the children shall be 

supervised at all times by a responsible adult." The order also 

provided that the children were to be returned to Dianne 

immediately if any violation occurred or if the children wished to 
terminate the visit for any reason. 

On July 9, 1991, Dianne moved for termination of visitation, 

based on Douglas' alleged violations of the court's order of June 

14, 1991 and his refusal to return the children to Dianne. 

Douglas1 fifteen-year-old son Ryan had told Dianne's attorney that 

on several occasions during the visit, Douglas had consumed alcohol 

within two hours of driving, that Douglas had often spoken ill of 

Dianne in the presence of the children, and that Douglas had left 

the children unsupervised by anyone older than Ryan for several 

hours each day. Ryan's observations were partially confirmed by 

Tom Best, Director of Family Court Services for the Eleventh 

Judicial District, who had interviewed Douglas and Cory, the 

younger child, at Douglas1 parents' home in Kalispell the previous 

day. 

On the same day, July 9, the court issued an order terminating 

the current visit and authorizing Montana law enforcement personnel 

to assist Dianne in picking up the children. 

On October 11, 1991, Dianne moved for an order requiring 

Douglas to show why he should not be held in contempt for his 

willful disregard of the court's orders of May 2 and June 14, 1991, 

and for an order terminating Douglas' visitation rights on the 

grounds that visits would seriously endanger the physical, mental, 

and emotional health of the children. On the same day the court 

issued an order setting both requests for hearing on November 7, 

1991. This order was served on Douglas on October 17, 1991. The 

hearing subsequently was postponed until November 19. 
On November 12, 1991, Douglas filed a motion to "dismiss and 

postpone" the hearing because he had filed a bankruptcy petition 

and expected hearings on that petition to show that Dianne "from 

day one has committed contempt, provided false records, and 

misrepresented statements to this court." Douglas wrote this 

motion himself, his attorney having withdrawn earlier in November. 

The court then issued a minute order announcing that the 

"hearing on Petitioner Motion for Contempt is hereby reset for 

December 2, 1991 . . . . In response, Douglas filed a second 

motion to dismiss, on November 27, stating that "there is no 

Contempt intended whatsoevern and "there just weren't sufficient 

funds available to pay." Further, he asked that "the hearing on 

the visitation rights be postponed until such time as I am able to 

obtain Counsel," and that a guardian ad litem be appointed for the 

children. 

Douglas appeared at the hearing on December 2 without counsel. 

He told the court that because the minute order did not mention the 

visitation issue, he was prepared only to discuss the contempt 

charges. He asked again that the hearing be postponed, but the 

court denied his request on the ground that it had no reason to 

grant a further continuance. 

On Dianne's motion, the court interviewed the two children 

camera during the hearing. Based on the record and on the 

children's testimony, the court found that continued visitation 

between the children and Douglas would seriously endanger their 

physical, mental, and emotional health. It issued an order 
terminating Douglas1 visitation rights temporarily, until Douglas 

had obtained a mental health evaluation, had participated in any 

recommended counseling and therapy, and had completed a chemical 

dependency evaluation. If the termination order were rescinded, 

Douglas could visit the children only with supervision. 

The court also found Douglas in contempt for willful violation 

of the court's order of May 2, 1991, sentenced him to thirty days 

in the Flathead County jail, and imposed a fine of $3,000. Douglas 

avoided the sentence and fine by paying the $1,202.95 previously 

ordered, plus $1,930 in attorney's fees and costs, in April 1992. 

He appeals the order terminating visitation. 

The issues on appeal are (1) whether the District Court failed 

to give proper notice of the issues to be addressed at the hearing 

of December 2, 1991, and (2) whether the District Court abused its 

discretion in denying Douglas' second request for a continuance of 

that hearing. 

I 

Douglas argues that he was denied due process of law because 

the District Court failed to give him notice that termination of 

his visitation rights would be considered at the hearing of 

December 2, 1991. His argument is based on the fact that the 

court's order of November 20, 1991, postponing the hearing until 

December 2, referred only to Dianne's "motion for contempt." 

This argument cannot be taken seriously, in view of Douglas' 

request, in his November 27 motion to dismiss, that "the hearing on 

visitation rights" be postponed. Moreover, if he had any doubt as 
to the scope of the December 2 hearing, he had a duty to inquire to 

resolve that doubt. Section 1-1-217(2), MCA, provides that: 

Every person who has actual notice of circumstances 

sufficient to put a prudent man upon inquiry as to a 

particular fact has constructive notice of the fact 

itself in all cases in which, by prosecuting such 

inquiry, he might have learned such facts. 

The essential elements of due process are notice and the 

opportunity to be heard. In re Marriage of Robbins (1985), 219 

Mont. 130, 138, 711 P.2d 1347, 1352. In Robbins, we held that both 

elements were satisfied when the appellant husband was given six 

weeks notice before the hearing, and the hearing actually was held, 

giving him an opportunity to be heard. Here, Douglas was served on 

October 17, 1991, with an order requiring his appearance on 

November 7 to show cause why he should not be found guilty of 

contempt and for a hearing on Dianne's motion to terminate his 

visitation rights. By the time the hearing actually was held, he 

had had six weeks notice. 

We hold that the District Court did not deprive Douglas of his 

right to due process. 

I I 

A district court may, in its discretion, postpone a trial or 

proceeding upon good cause shown and in furtherance of justice. 

Section 25-4-503, MCA. "The denial of a motion for a continuance 

is within the sound discretion of the District Court and it is not 

error to deny such a motion unless a clear abuse of discretion is 

shown." Bolich v. Bolich (1982), 199 Mont. 45, 49, 647 P.2d 844, 

847. See also In re Marriage of Concepcion (1984), 212 Mont. 191, 
687 P.2d 718; Fields v. Wells (l989), 239 Mont. 392, 780 P.2d 1141. 

Here, as in Bolich and ~oncepcion, the record does not 

disclose any good cause for postponement. The court already had 

continued the hearing at Douglas1 request. Douglas' request for 

time in which to obtain counsel is not persuasive, as it was 

written two weeks after he had accepted Mr. Springer's request to 

withdraw and had filed a separate motion concurring in that 

request. Further, the court had given Douglas great latitude over 

a period of more than two years, particularly in allowing him 

extended time in which to pay his share of his children's health 

insurance and day care expenses. 

Douglas had been found guilty of contempt for nonpayment 

eleven months before the December 2, 1991 hearing but had avoided 

payment without penalty. Moreover, the court found, based on 

substantial evidence, that further visits with Douglas would 

endanger the children. Prompt action to protect the children and 

give Douglas an incentive to undergo treatment for alcoholism was 

clearly indicated. 

We hold that the District Court did not abuse its discretion 

in denying Douglas' motion to postpone the hearing of December 2, 

1991. 

AFFIRMED. 

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

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of the Supreme Court and by a report of its result 
to Montana Law Week, State Reporter, and West Publishing Company. 

We concur: LY