No. 82-63 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

PJ3ILIP J. MILANOVICH, 

Plaintiff and Appellant, 

-vsROSEMARY J. MILANOVICH, 

Defendant and Respondent. 

leal from: District Court of the Second Judicial District, 

In and for the County of Silver Bow, The Honorable 

Arnold Olsen, Judge presiding. 

Counsel of Record: 

For Appellant: 

Hull & Sherlock; Jeffrey Sherlock, Helena, Montana 

For Respondent: 

Deirdre Caughlan, Butte, Montana 

Filed: 

Submitted on Briefs: June 3, 1982 

Decided: August 19, 1982 
Mr. Justice Gene B. Daly delivered the Opinion 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 main points. The first being whether the District Court 

holding that the father was guilty of contempt, and its imposition of sanctions on him is properly reviewable by this Court on 

appeal. The second point deals with whether the mother's visitation rights should have been modified or remained as they originally were. 

The parties to this action were divorced on November 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 

parties amended the property settlement and separation agreement, 

giving custody of the children to the father. This amendment 

also provided for visitation by the mother every summer for the 

month of July and on alternate holidays. 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 in October of 1979. At that time, the 

Court entered an Order granting the mother 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 children were visiting, an itinerary along with a phone 

number and address where the children could be reached was to be 

provided to the father. Apparently, despite this very specific 

court order, the children were not allowed to visit their mother 

for Christmas 1979. 

The parties again amended the property settlement in 1981. 

This amendment extinguished the father's alimony obligation. At 

the same time this amendment was filed, a letter, signed by both 
parties, was filed. It stated that the mother waived her July 

1981 visitation rights in return for being able to accompany the 

father and children on a two-week summer vacation to Canada. 

Written in the mother's handwriting immediately af ter the typed 

body of the letter was a sentence stating that the other two weeks 

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 in plans, but left on vacation 

early and failed to leave an address where she could meet he and 

the children. The father's story differs. He claims the mother 

was informed of the change in plans and the new itinerary several 

months in advance. He further stated that she called him one 

week prior to their departure saying that the 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 this was inappropriate 

as it was not in accord with the District Court 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 in contempt for not complying with the 

court order. 

Thereafter, the father, through his attorney, filed several 

motions. The first was a motion seeking mental examination of 

the mother. The next was a motion seeking to have her visitation 

rights modified, the third sought appointment of an attorney for 

the children, and finally the last requested the court to order 

production of the mother's psychiatric records, The basis for the 

majority of these motions was the mother's poor mental health 

over the last few years which resulted in her hospitalization 
several times. 

Hearing was held in the District Court on August 21, 1981, 

October 23, 1981, and October 28, 1981. At these 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. Welt also 

testified that the present visitation schedule caused the 

children anxiety that could result in psychological and emotional 

harm. The District Court issued its order 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 the District Court err when dealing with modification 

of respondent's visitation rights by failing to allow in evidence 

pertaining to her psychiatric condition? 

3. Did the District Court err in failing to make findings as 

to the children's wishes? 

4. Did the District Court err in failing to appoint an 

attorney for the 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), -- Mon t . , 628 P.2d 1117, 38 St.Rep. 

887 and will again do so in this case. 

In considering the visitation rights of 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 

visitation as are applicable to custody. 

In considering a modification of visitation rights, the court 

must consider the best interest of 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 in any proceeding concerning 

the relationship of a parent with their child . The concept of best interest is defined by section 40-4-212, 

MCA, which states: 

"The court shall determine custody in accordance with the best interest of the child. 

The court shall consider all relevant factors 

including: 

"(1) the wishes of the child's parent or 

parents as to his custodian; 

"(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 signif icantly affect the child's best interest; 

"(4) the child's adjustment to his home, 

school and 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 

decision on prior agreements and dealings between the parents, as 

is evidenced by its findings of fact and conclusions of law. 

In rendering its decision the court is obligated to consider 
the 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, in the form of certified hospital records from Las Vegas, 

Nevada, and the testimony of a psychiatrist who 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 section 40-4-212(2), 

MCA. Despite the court's in-chambers interview with these 

children, in which each child states they did not wish to visit 

with the mother, no findings were made as to their wishes or why 

they were not followed as is required under our prior decisions. 

Kaasa v. Kaasa (1979) , 181 Mont. 18, 591 P.2d 1110; Kramer v. 

Kramer (1978), 177 Mont. 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 children would 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 

decision based on the agreements of 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 in our 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 any 
attorney 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: 

" [TI he rule is that appointment of counsel is 

only necessary when the child needs an advocate to represent his position as to the 

issues in dispute or to insure the development 

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), 176 Mont. 202, 577 P.2d 378, 381. 

In this case the children did not need anyone to represent 

their position as to the issues in dispute, because the District 

Court's in-chambers interview adequately developed their 

position. But in adequately and completely developing a record, 

in regards to the best interest of the children, an attorney is 

necessary in the present situation. The parties to this proceeding are embittered against one another as the District Court 

so accurately points out in its findings of fact no. 10 where it 

states, " [TI his is the most difficult case of divorce this judge 

has experienced." This type of situation can cause each party to 

present a self-serving view of the children's best interest. In 

such a situation, independent counsel should be appointed for the 

children to ensure a full and fair development of what would be 

in their best interest. 

While this appeal was in progress, 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 by Philip. 

Exact performance of the visitation order cannot now be compelled because of the passage of time. However, the mother on 

this record should be considered fit to have temporary custody of 

her children without interference from Philip. We therefore deny 

the motion to compel performance by Philip, but we instruct the 

District Court, if the parties do not agree on 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 fees acd 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 this facet 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 its coctempt holdicg is reversed acd remacded for a 

Pew heari~g, to be cocducted ic accorda~ce with this opi~ior!. 

/ ,' 

/ 

Justice 

,' 

We concur: