No. 82-63 INTHE SUPREME COURT OF THE STATE OF MONTANA 1982

PJ3ILIP J. MILANOVICH, Plaintiff andAppellant,

-vsROSEMARY J. MILANOVICH, Defendant and Respondent.

leal from: DistrictCourt of the Second Judicial District, Inand fortheCounty of SilverBow, The Honorable Arnold Olsen, Judgepresiding.

Counsel of Record: ForAppellant: Hull & Sherlock; Jeffrey Sherlock, Helena, Montana

For Respondent: Deirdre Caughlan, Butte, Montana

Filed: Submittedon Briefs: June 3, 1982 Decided: August 19, 1982Mr. Justice Gene B. Dalydelivered theOpinion of the Court.

This is an appeal by the father and appellant, Philip J. Milanovich, from a judgment entered by the District Court of the Second Judicial District, Silver Bow County. This appeal deals with two mainpoints. The firstbeing whether theDistrictCourt holding that the father 

### was guilty of contempt, and its imposition of sanctions on him is properly reviewable by thisCourt on appeal. The second point dealswithwhether the mother's visitation rights should have been modified 

### or remained as they originally

### were. The partiesto thisaction

### were divorced onNovember 7

## ,1975. The mother 

### was originally granted custody of the four minor children only three of whom are subject 

### to this action, as the oldest has reached the age of majority. On May 26, 1976, the partiesamended theproperty settlementand separationagreement, giving custody of the children to the father. This amendment alsoprovided for visitation by the mother every summer for the month of Julyand on alternateholidays. Later on it 

### was agreed by the parties that the mother would be required to give thirty days notice prior to all visitation. The parties were again before the District Court inOctober of 1979. Atthat 

### time, the Court entered anOrdergranting themother one-month's visitation and setting out her future right to have the children for the month of July each summer. This order also provided that she could have the children one weekend per month with thirty days notice and on the Christmas holiday. It further required that when the childrenwere visiting, an itinerary along with a phone number and address where the childrencould be reached was to be provided to the father. Apparently, despite thisvery specific court order, the childrenwere not allowed to visittheirmother forChristmas 1979. The parties again amended the property settlement in 1981. This amendment extinguished the father's alimony obligation. At the 

### same time thisamendment 

### was filed, a 

### letter, signed by bothparties, 

### was filed. It stated that the mother waived herJuly 1981visitation rights in return forbeing able 

### to accompany the father and children on a two-week summer vacation to Canada. Written in the mother's handwriting immediately after the typed bodyof the letter

### was a sentencestatingthattheother

### twoweeks visitation in July 

### were deemed optional, and depended on her decision. This agreed joint visitation fell through. There is conflicting testimony as to why. The mother 

### claims that the father notified her of a change inplans, but lefton vacation early and failed to leave an addresswhere she could meet he and the children. The father's storydiffers. He 

### claims the mother



### was informed of the change inplans and the new itinerary several months in advance. He further stated that she called him one week prior to theirdeparture saying thatthe vacation plans 

### were unacceptable and wanting to change the vistation to August. After this joint visitation fell through, the mother's attorney, in a letter dated July 

### 2, 1981, indicated that she would exercise her visitation rights from August 3 to September 3, 1981. The father's response 

### was that thiswas inappropriate

as it 

### was not inaccord with the DistrictCourt order fixing her

summer rights of vistation from July 1 to July 31. On August 15, 1981, the mother's attorney filed two motions. The first

### was a motion 

### to compel visitation and the other

### was a motion to hold the father incontempt fornot complying with the courtorder. Thereafter, the father, through his attorney, filed several motions. The first was a motion seeking mental examination of themother. The next

### was a motion seeking 

### to have hervisitation rightsmodified, the third sought appointmentof an attorney for the children, and finally the last requested the court 

### to order productionof themother's psychiatric records, The basis forthe majority of these motions was the mother's poor mental health

over the last few years which resulted in her hospitalizationseveral times. Hearing 

### was held in the District Court on August 21, 1981, October 23, 1981, and October 28, 1981. Atthese 

### times the court heard the testimony of both parties, interviewed the children in chambers, and heard the testimony of psychologist Dr. Kenneth Welt. During the court's conversations with the children they all expressed the view that visits with their mother disrupted their lives and they would prefer not to see her. Dr. Weltalso testified that the present visitation schedule caused the children anxiety thatcould result inpsychological and emotional harm. The District Court issued 

### itsorder on February 16, 1982. In that order the District Court denied all of the father's motions, found him in contempt of court, and based on that finding fined him $500 and imposed a five-day suspended sentence upon him. The District Court 

### also awarded the mother attorney fees and $736 in costs, for 

### lost wages and traveling and 

### accmmodation expenses incurred during the course of this action. Several issues have been raised on appeal that require this Court's attention: 1. May this Court review the lower court's finding of contempt on appeal? 2. Did theDistrict Court

### errwhen dealing with modification of respondent's visitation rightsby failing to 

### allow inevidence pertaining toher psychiatric condition? 3. Did theDistrict Court

### err in failingto make findingsas tothe children's wishes? 4. Did the District Court err in failing to appoint an attorneyforthe children? The first issue is the simplest to deal with and shall be disposed of first. Section 3-1-523, MCA, provides that the judgment and orders of the District Court in contempt cases 

### are "final and conclusive," and no appeal may be taken from them. The proper avenue to use to gain review of a contempt order, by this Court, is a 

### writ of certiorari. This Court, in the past,has refused to consider matters of contempt on direct appeal based on section 3-1-523, MCA. O'Neill v. O'Neill (1979)f Mont

# . ,603 P.2d 257, 36 St.Rep. 2154; In the Matter of Gordons Estate (1981), -- Mont

# . ,628 P.2d 1117, 38 St.Rep. 887and willagaindo 

### so in this

### case. In considering the visitation rightsof parents and children it must be remembered that such rights 

### are merely incidents of custody orders, In Re the Marriage of Adamson (1981),-- Colo.



## , 626 P.2d 739, and therefore the 

### same principles apply to visitationas are applicable tocustody. Inconsidering a modificationof visitationrights, the court must considerthebest interestof the child according 

### to section 40-4-217(3) MCA. This Court in Firman v. ~irman(198O)r ---- Mont

# . ----

## , 610 P.2d 178, 37 St.Rep. 888, held that the best interest of the child is paramount inany proceeding concerning the relationship of a parent with their child

# . The concept of best interest is defined by section40-4-212, MCA, which states: "The court shall determine custody in accordance with the best interest of the child. The court shall consider 

### allrelevant factors including: "(1) the wishes of the child's parent 

### or parents

### as to hiscustodian; "(2) the wishes of the child as 

### to his custodian; 

### "(3) the interaction and interrelationship of the child with his parent 

### or parents, his siblings, and any other person who may significantlyaffectthe child's best interest; "(4) the child's adjustment to his home, schooland community; and, "(5) the mental and physical health of all individuals involved." The District Court in making its decision in this case appears to have ignored certain of the factors. It based its decisionon prior agreementsand dealingsbetween the parents, as is evidenced by its findings of fact and conclusions of law. In rendering 

### its decision the court 

### is obligated 

### to considerthe mental health of all the parties involved under section 40-4-212(5), MCA, but in the present case it did not do so as it refused to allow in psychiatric evidence pertaining to the mother, inthe formof certified hospital records from LasVegas, Nevada, and the testimony of a psychiatristwho had examined the mother in 1979. A prior decision of this Court reflects this position 

### also. In Schiele v, Sager (1977), 174 Mont. 533, 571 P.2d 1142, the Court held that evidence which would be relevant in affecting the relationship of a child with the custodian is admissible. The District Court 

### also failed to consider the wishes of the children as is mandated under section40-4-212(2), MCA. Despite the court's in-chambers interview with these children, inwhich each child 

### states they did not wish to visit with the mother, no findings

### were made 

### as 

### to theirwishes 

### or why they 

### were not followed as is required under our priordecisions. Kaasa v. Kaasa (1979)

## , 181Mont. 18, 591 P.2d 1110; Kramer v. Kramer (1978), 177Mont. 61, 580 P.2d 439. The District Court 

### also failed to consider the only professional testimony offered by either side regarding what was in the children's best interest. Dr. Kenneth Welt, a clinical psychologist in Butte, testified that the present visitation schedule could be harmful 

### to the children's mental health due to the higher-than-normal degree of anxiety the visits caused. He recommended that visitation be modified so that it would take place in a safe environment where the childrenwould feel close to their father and with which they had 

### some familiarity. The court made no reference to this testimony or why it did not accept it in its judgment. It merely proceeded to render its decisionbased on the agreementsof the parents, which is not the proper standard where children 

### are concerned. The child's best interest is paramount in those type of 

### cases and should be the basis for any decision, as pointed out inour discussion above. The fourth and final issue 

### to be addressed at this 

### time 

### is the District Court's denial of a motion for appointment of anyattorney for the children, in this situation, despite specific statutory authorization to do 

### so under section 40-4-205, MCA. The Court has 

### set down the rule regarding court-appointed attorneys for children in a prior case where 

### we stated: 

### "[TIhe rule 

### is that appointment of counsel is only necessary when the child needs an advocate 

### to represent his position 

### as to the issues indispute

### or to insure thedevelopment of an adequately complete record concerning the best interest of the child." In the Matter of Inquiry into JJS Youth In Need of Care (1979), 176Mont. 202, 577 P.2d 378, 381. In this case the children did not need anyone 

### to represent their position as to the issues indispute, because the District Court's in-chambers interview adequately developed their position. But inadequatelyand completely developing a record, in regards to the best interestof the children, an attorney is necessary in the present situation. The parties to this proceeding are embittered againstone another 

### as the District Court

soaccurately points out in its findings of fact no. 10where it states, 

### "[TIhis is the 

### most difficult case of divorce thisjudge hasexperienced." This type of situationcan cause each party to present a self-serving view of the children's best interest. In such a situation, independent counsel should be appointed forthe children to ensure a full and fair development of what would be intheirbest interest. While thisappeal 

### was inprogress, Rosemary filed through her attorney a motion in this Court 

### to compel Philip to perform a visitation order of the District Court dated February 16, 1982. Rosemary 

### was 

### to have temporary custody of the minor children beginning July 1, 1982. Rosemary alleges the visitation was denied byPhilip. Exact performance of the visitationorder cannot now be compelled because of the passage of time. However, the mother on thisrecord shouldbe considered fit

### to have temporary custodyof herchildrenwithout interference fromPhilip. We thereforedeny the motion to compel performance by Philip, but 

### we instruct the District Court, if the partiesdonot agreeon immediate visita-tioc for the mother upoc remittitur from this Court to so provide. We further direct the District Court to fix acd allow attorcey feesacd costs to be paid by Philip to Rosemary i~curred ic coccectior! with her motior!, ic additioc to whatever other relief or order the ~istrict Court may make ie thisfacet of the

case. Based or? our holdi~gs or? the above issues, PO other issues raised by coucsel for the respective parties peed be co~sidered at this time. The judgmert of the District Court, with the exceptioc of 

### itscoctempt holdicg 

### is reversed acd remacded for a Pew heari~g,to be cocducted ic accorda~cewith this opi~ior!.

/ ,' / Justice ,' We concur: