NO. 95-108 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

IN RE MARRIAGE OF 

PATRICIA ANN ROBERTS, 

Petitioner and Respondent, 

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. 

COUNSEL OF RECORD: 

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 

Cl 
Justice 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 be published by its filing as a public 

document with the Clerk of the Supreme Court and by a report 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 a two-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. 

We restate the issues on appeal 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? 

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FACTUAL BACKGROUND 

David and Patricia were married on March 13, 1958. They have 

eight children, three of whom are minors: Brian Keith Roberts, 

age 16; Raina Christina Roberts, age 11; and Kyla Ann Roberts, 

age 8. 

On August 31, 1994, Patricia filed a petition 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 same time. Patricia's affidavit stated that she 

fled the family home on August 25, 1994, and did not disclose her 

whereabouts because she feared for her life and the lives of her 

minor children. The affidavit stated that she was concerned 

because David experienced mood swings and made repeated threats to 

her and her adult children, which included threats of suicide, and 

assault, and threats to kill them. 

On the same day, the court issued a temporary restraining 

order prohibiting David from molesting or disturbing the peace of 

Patricia and the minor children. It also granted temporary custody 

of the minor children to Patricia and set September 8, 1994, as the 

date on which David could show cause why further relief should not 

be granted. 

The show cause hearing was actually held on September 12, 

1994. On September 15, 1994, the parties stipulated to a temporary 

restraining order and other temporary relief to remain in effect 

until September 27, 1994. 

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On September 27, 1994, a second show cause hearing led to a 

second stipulation regarding temporary custody, visitation, child 

support, and maintenance. The parties agreed that Patricia would 

have sole custody of the minor children until further order of the 

court; David would have supervised visitation until further order 

of the court; and the parties would submit to an evaluation by a 

family therapist and a psychologist who would make a recommendation 

regarding appropriate visitation. The stipulation also enjoined 

David from molesting or disturbing the peace of the petitioner and 

the minor children and Patricia 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. 

On October 24, 1994, Patricia filed another exparte motion for 

temporary restraining order. She requested exclusion of David from 

the community of Melstone, Montana. She based her motion on her 

own affidavit and the affidavits of Sam Damon and John Emigh, whom 

she had hired as bodyguards. In her affidavit, Patricia noted 

numerous occasions on which David had violated the stipulation and 

order dated September 30, 1994. 

On November 14, David made several motions. He moved to have 

Patricia held in contempt for violating the visitation order, to 

have the children interviewed in chambers regarding custody, to 

have the court seek advice from a professional person pursuant to 

§ 40-4-214(2), MCA, for an investigation and report concerning the 

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custody of the minor children pursuant to $Z 40-4-215, MCA, for an 

order requiring family law mediation pursuant to § 40-4-301, MCA, 

and for the appointment of an attorney 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. 

On December 6 and December 7, 1994, the court held a hearing 

to consider evidence pertaining to the parties' motions. Following 

the hearing, the court issued its findings of fact, conclusions of 

law, and order 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 deemed the 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. 

ISSUE 1 

Did the District Court abuse its discretion when it modified 

the temporary visitation arrangement? 

We review a district court's findings of fact related to 

visitation modification to determine whether those findings are 

clearly erroneous. In re MarriageofElser (Mont. 1995), 895 P.2d 619, 

622, 52 St. Rep. 434, 436 (citing MarriageofJohnson (1994), 266 Mont. 

5 
158, 166, 879 P.2d 689, 694). When a district court's underlying 

findings are not clearly erroneous, this Court will overturn a 

district court's modification of visitation rights only when an 

abuse of discretion is clearly demonstrated. Elser, 895 P.2d at 622. 

Section 40-4-217(3), MCA, governs modification of visitation 

rights and provides: 

The court may modify an order granting or denying 

visitation rights whenever modification would serve the 

best interest of the child; however, the court may not 

restrict a parent'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 and the minor children would seriously endanger the physical, 

mental and emotional health of the children." On appeal, David 

contends that serious endangerment was not proven. 

However, after a review of the record, we conclude that 

serious endangerment was proven. The District Court set forth the 

following facts in its order. It found that David made comments to 

the Deputy Sheriff, Floyd Fisher, which could be interpreted as 

threats to take the life of Patricia and others; that David may be 

a very violent and dangerous person; that Patricia had hired 

bodyguards to protect her because of her fear of David; and that 

the three adult children who testified at the trial all feared 

their father and thought he dealt inappropriately with them or 

other siblings when they were growing up. 

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A review 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 as a violent 

man and testified that he saw David place a knife to the throat of 

a man and then was asked by David to obtain a gun for him so he 

could kill the man. Christopher Roberts, the couple's 19-year-old 

son, testified that he had 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. 

We conclude 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 

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agreed to the alternate custody arrangement, and therefore, Babcock 

is not on point. 

ISSUE 2 

Did the District Court violate David's right to due process 

when it amended the pleadings to include David's right to 

visitation? 

The District Court deemed the pleadings amended and modified 

the existing order related to custody and visitation, although none 

of the motions directly sought denial of all visitation. David 

asserts that the court's amendment of the pleadings violated his 

right to due process because he was not given notice of the issue 

which would be considered and an opportunity to respond. 

Rule 15(b), M.R.Civ.P., permits the amendment of pleadings to 

conform to the evidence. The evidence presented did concern child 

custody issues in general and whether 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 she was afraid that visitation by 

David would have placed the children in danger. Third, the 

affidavit of Patricia's bodyguards stated that David made direct 

threats against the safety and health of Patricia and other family 

members. 

Finally, the court, on several occasions, made statements 

which indicated that the question of visitation was at issue. For 

example, when the hearing began the court stated that "I was told 

in chambers that the major issue that is pending before the court 

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is related to the visitation of the respondent with his children." 

And, in response to an objection, the court stated that "I think an 

issue in this case would be whether the children may or 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[ w 1 e're in custody disputes and problems that we 

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, and therefore, we conclude 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 

5 45-8-213, 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 

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(1) Objection. In case the ruling is one admitting 

evidence, a timely 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.) We have stated that we will only consider on 

appeal objections made at trial that are timely, specific, and 

based on the correct grounds. Guertin v. Moody’s Market, Inc. ( 19 94 ) , 2 6 5 

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 a quick review of the transcript 

of the tapes (admitted at the same time) revealed that the 

conversation was actually a negotiation 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. We also 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? 

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The District Court prohibited David from entering the small 

community of Melstone, Montana, in order to effectively enjoin him 

from disturbing the peace of Patricia and his minor children. 

Section 40-4-121, MCA, provides in part that: 

(2) As a part of a motion for temporary maintenance 

or support or by independent motion accompanied by 

affidavit, either party may request the court to issue a 

temporary injunction for any of the following relief: 

. . . 

(b) enjoining a party from molesting or disturbing 

the peace of the other party or of any family member 

. . . . 

We conclude that the District Court did not restrict David's 

right to travel but merely placed reasonable restrictions on the 

distance David must keep from his estranged family until the issues 

raised in the parties' pleadings are finally resolved. The Melstone 

community simply happened to be the 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 on David's activities. The town of Melstone is very 

small and Patricia's residence can be seen from most of the 

businesses. At the time of the hearing, Patricia had a temporary 

restraining order which barred David from coming into the town of 

Melstone and she testified 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 be afraid. I don't have to be afraid to let the kids 

walk back and forth from school and do their normal things." She 

also testified that she needed an additional restraining order 

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keeping him out of Melstone "because it takes a lot of stress off 

me and takes a lot of stress off of the kids. We can move around 

freely and not live with this constant fear all the time." 

We conclude that David's constitutional right to travel is 

neither implicated nor infringed upon by the court's order which 

prohibits him from entering Melstone. For these reasons we affirm 

the court's order which modified the parties' temporary custody and 

visitation agreement. 

We concur: 

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