NO. 95-108 IN THESUPREMECOURTOFTHESTATE OFMONTANA 1995

IN REMARRIAGE OF PATRICIA ANNROBERTS,and Respondent,

Petitioner and DAVID ROBERTS,

Respondent

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone, The Honorable Maurice R. Colberg, Judge presiding.

COUNSELOFRECORD:

For Appellant: Mark D. Parker, Parker Law Firm, Billings, Montana For Respondent: Allen Beck, Attorney at Law, Billings, Montana

Filed: Submitted on Briefs: October 19, 1995 Decided: December 5, 1995

ClJustice Terry N. Trieweiler delivered the opinion of the Court.

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1995 Internal Operating Rules, the following decision shall not be cited as precedent and shall bepublished by its filing asapublic document with the Clerk of the Supreme Court and by areport of its result to State Reporter Publishing Company and West Publishing Company. Patricia Roberts filed a petition in the District Court for the Thirteenth Judicial District in Yellowstone County for dissolution of her marriage to David Roberts. Following atwo-day hearing at which the parties presented evidence in support of and in opposition to various pre-dissolution motions, the court entered

an order in which it disallowed any visitation by David until further order of the court and ordered that he not enter Melstone, Montana. David appeals from the order of the District Court. Werestate the issues onappeal as follows: 1. Did the District Court abuse its discretion when it modified the temporary visitation arrangement? 2. Did the District Court violate David's right to due process when it amended the pleadings to include David's right to visitation? 3. Did the District Court abuse its discretion when it admitted tapes of conversations recorded without David's knowledge? 4. Did the District Court violate David's constitutional right to travel when it ordered that he not enter Melstone, Montana? 2FACTUALBACKGROUND

David andPatricia were married onMarch 13, 1958. Theyhave eight children, three of whomare minors: Brian Keith Roberts, age 16; Raina Christina Roberts, age 11; and Kyla Ann Roberts,

age 8.OnAugust 31, 1994, Patricia filed apetition for dissolution of her marriage to David. She filed an exparte motion for a temporary restraining order and temporary injunction, and an affidavit at the sametime. Patricia's affidavit stated that she fled the family homeonAugust 25, 1994, anddid not disclose her whereabouts because she feared for her life andthe lives of her minor children. The affidavit stated that she was concerned because David experienced moodswings andmaderepeated threats to her andher adult children, which included threats of suicide, and assault, andthreats to kill them. Onthe sameday, the court issued a temporary restraining order prohibiting David from molesting or disturbing the peace of Patricia andthe minor children. It also granted temporary custody of the minor children to Patricia andset September 8, 1994, asthe date onwhich David could showcausewhyfurther relief should not begranted. The show cause hearing was actually held on September 12, 1994. OnSeptember 15, 1994, the parties stipulated to atemporary restraining order andother temporary relief to remain in effect until September 27, 1994.

3OnSeptember 27, 1994, asecond showcause hearing led to a

second stipulation regarding temporary custody, visitation, child support, andmaintenance. Theparties agreed that Patricia would havesole custody of the minor children until further order of the court; David would have supervised visitation until further order of the court; andthe parties would submit to anevaluation by a family therapist andapsychologist whowould makearecommendation regarding appropriate visitation. Thestipulation also enjoined David from molesting ordisturbing the peace of the petitioner and the minor children andPatricia from doing the same to David. The stipulation also forbade David from having any contact with Patricia or the minor children at Patricia's residence or any school that the minor children attend, and from removing the children from the State of Montana. OnOctober 24, 1994, Patricia filed another exparte motion for temporary restraining order. Sherequested exclusion of David from the community of Melstone, Montana. Shebased her motion onher

ownaffidavit andthe affidavits of SamDamonandJohn Emigh, whom she had hired as bodyguards. In her affidavit, Patricia noted
numerous occasions onwhich David hadviolated the stipulation and order dated September 30, 1994. OnNovember 14, David madeseveral motions. Hemovedto have Patricia held in contempt for violating the visitation order, to have the children interviewed in chambers regarding custody, to havethe court seek advice from aprofessional person pursuant to §40-4-214(2), MCA,for aninvestigation andreport concerning the 4custody of the minor children pursuant to $Z 40-4-215, MCA,for an order requiring family law mediation pursuant to §40-4-301, MCA, andfor the appointment of anattorney to represent the interests of the children pursuant to §40-4-205, MCA. David's motion to have Patricia held in contempt was based on his unsuccessful efforts to exercise visitation. OnDecember 6andDecember 7, 1994, the court held ahearing to consider evidence pertaining to the parties' motions. Following the hearing, the court issued its findings of fact, conclusions of law, andorder in which it granted all of David's motions except the motion to have Patricia held in contempt and the motion for family law mediation. The court deemedthe pleadings amended pursuant to Rule 15(b), M.R.Civ.P., to include the issue of temporary custody and visitation and modified the temporary custody, visitation, and restraining order dated September 30, 1994, to prohibit visitation by David until further order of the court. It also ordered that David not enter the town of Melstone, Montana. ISSUE1 Did the District Court abuse its discretion whenit modified the temporary visitation arrangement? Wereview a district court's findings of fact related to visitation modification to determine whether those findings are clearly erroneous. InreMarriageofElser (Mont. 1995), 895P.2d 619, 622, 52St. Rep. 434, 436 (citing MarriageofJohnson (1994), 266Mont.

5158, 166, 879P.2d 689, 694). Whenadistrict court's underlying

findings are not clearly erroneous, this Court will overturn a district court's modification of visitation rights only when an abuseof discretion is clearly demonstrated. Elser, 895 P.2d at 622. Section 40-4-217(3), MCA,governs modification of visitation rights andprovides: The court may modify an order granting or denying visitation rights whenever modification would serve the best interest of the child; however, the court maynot restrict aparent's visitation rights unless it finds that the visitation would endanger seriously the child's physical, mental, moral or emotional health. In its order, which temporarily prohibited David from visiting his minor children, the court concluded that "[vlisitation between David andthe minor children would seriously endanger the physical, mental and emotional health of the children." Onappeal, David contends that serious endangerment wasnot proven. However, after a review of the record, we conclude that serious endangerment wasproven. TheDistrict Court set forth the following facts in its order. It found that David madecommentsto the Deputy Sheriff, Floyd Fisher, which could be interpreted as threats to take the life of Patricia andothers; that David maybe

a very violent and dangerous person; that Patricia had hired bodyguards to protect her because of her fear of David; andthat the three adult children whotestified at the trial all feared their father and thought hedealt inappropriately with them or other siblings whenthey were growing up.

6Areview of the record demonstrates that the court's findings

were supported by substantial evidence. Specifically, Kevin Roberts, the couple's 24-year-old son, described David asaviolent

manand testified that he saw David place aknife to the throat of

a man and then was asked by David to obtain agun for him so he could kill the man. Christopher Roberts, the couple's 19-year-old son, testified that hehad been afraid of his father for as long as he could remember. Patricia testified that David threatened to commit suicide and take the family with him and threatened to take the minor children to a foreign country. The Deputy Sheriff testified that David Roberts had threatened to "kill that bitch" when his minor children refused to visit him at a scheduled visitation time. Weconclude that the District Court's findings of fact are not clearly erroneous, and that the court did not abuse its discretion when it modified the parties' temporary visitation agreement to prohibit visitation by David. Furthermore, David's contention that the District Court's custody order deprives him of parental rights in violation of the rule set forth in Babcockv.Wonnacott(1994), 268 Mont. 149, 885 P.2d 522, is without merit. The parties' September 27, 1994, stipulation gave temporary custody of the children to Patricia and provided that "in the event of her absence

. . . Kevin Roberts shall be the custodian to supervise the children in her place and stead." The court's order preserved the alternate custody agreement and merely changed the visitation arrangement. David 7agreed to the alternate custody arrangement, andtherefore, Babcock

is not onpoint. ISSUE2 Did the District Court violate David's right to dueprocess when it amended the pleadings to include David's right to visitation? TheDistrict Court deemedthe pleadings amendedandmodified the existing order related to custody andvisitation, although none of the motions directly sought denial of all visitation. David asserts that the court's amendmentof the pleadings violated his right to dueprocess because hewasnot given notice of the issue which would beconsidered andanopportunity to respond. Rule 15(b), M.R.Civ.P., permits the amendmentof pleadings to conform to the evidence. Theevidence presented did concern child custody issues in general andwhether visitation by David would endanger the children. First, David's own motions related to custody which involves the subject of visitation. Second, Patricia's affidavit stated that shewasafraid that visitation by David would have placed the children in danger. Third, the affidavit of Patricia's bodyguards stated that David madedirect threats against the safety andhealth of Patricia andother family members. Finally, the court, on several occasions, made statements which indicated that the question of visitation wasat issue. For example, whenthe hearing began the court stated that "I wastold in chambers that the major issue that is pending before the court 8is related to the visitation of the respondent with his children."

And, in response to anobjection, the court stated that "I think an issue in this case would bewhether the children mayor may not be endangered by the presence of Mr. Roberts, and I want to hear the evidence about that." In another response to an objection, the court stated that 'I[we're in custody disputes and problems that we 1 have to endanger kids." David failed to object to the presentation of evidence of serious endangerment--the statutory standard to modify visitation--and failed to take issue with the court's characterization of the issues. David's effort to prove Patricia's violation of the temporary visitation agreement required testimony which concerned the visitation agreement, andtherefore, weconclude that David's right to due process was not violated when it modified the pleadings to conform to the evidence. ISSUE 3 Did the District Court abuse its discretion when it admitted tapes of conversations recorded without David's knowledge? David contends that the tapes of conversations between his son Dino and him were admitted over objection in violation of 545-8-213, MCA, which prohibits the taping of conversations without the consent of all parties. Rule 103, M.R.Evid., provides that: (a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

9(1) Objection. In case the ruling is oneadmitting

evidence, atimely objection or motion to strike appears of record, statincr the suecific ground of obiection, if the specific ground was not apparent from the context

. . . . (Emphasis added.) Wehave stated that we will only consider on appeal objections made at trial that are timely, specific, and based on the correct grounds. Guertinv.Moody’sMarket,Inc. (1994), 265 Mont. 61, 67, 874 P.2d 710, 714; Bachev.Gilden (1992), 252 Mont. 178, 182, 827 P.2d 817, 820. At the hearing, David objected to the admission of the tapes because they had just been handed to his attorney and he had no idea what they said, and because aquick review of the transcript of the tapes (admitted at the same time) revealed that the conversation was actually anegotiation between Dino, negotiating for Patricia, and David, and negotiations are not admissible. Now,

on appeal, David contends that the tapes should have been excluded because they were recorded in violation of §45-8-213, MCA. David did not object on this basis at the hearing. Therefore, we hold that the court did not abuse its discretion when it admitted the tapes. Wealso note that we reached our conclusion under Issue 1 without consideration of the tapes at issue. ISSUE 4 Did the District Court violate David's constitutional right to travel when it ordered that he not enter Melstone, Montana?

10TheDistrict Court prohibited David from entering the small

community of Melstone, Montana, in order to effectively enjoin him from disturbing the peace of Patricia andhis minor children. Section 40-4-121, MCA,provides in part that: (2) Asapart of amotion for temporary maintenance or support or by independent motion accompanied by affidavit, either party mayrequest the court to issue a temporary injunction for anyof the following relief:

. . . (b) enjoining aparty from molesting ordisturbing the peace of the other party or of any family member

. . . . Weconclude that the District Court did not restrict David's right to travel but merely placed reasonable restrictions onthe distance David must keepfrom his estranged family until the issues raised inthe parties' pleadings arefinally resolved. TheMelstone community simply happened to bethe frame of reference chosen by the court. Considering its size, this restriction should not unreasonably interfere with David's right to travel. Neither did the court abuse its discretion by imposing this restriction onDavid's activities. Thetown of Melstone is very small and Patricia's residence can be seen from most of the businesses. At the time of the hearing, Patricia hadatemporary restraining order which barred David from coming into the town of Melstone andshetestified that the order assisted her because she did not "have to worry all day about what he's doing or if I see his truck, to beafraid. Idon't haveto beafraid to let the kids walk back andforth from school anddotheir normal things." She also testified that she needed an additional restraining order

11keeping himout of Melstone "because it takes alot of stress off

meandtakes alot of stress off of the kids. Wecanmovearound freely andnot live with this constant fear all the time." Weconclude that David's constitutional right to travel is neither implicated nor infringed upon by the court's order which prohibits himfrom entering Melstone. For these reasons weaffirm the court's order which modified the parties' temporary custody and visitation agreement.

Weconcur:

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