No. 85-580 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

IN RE THE MARRIAGE OF 

YARK WAYNE VINECKE, 

Petitioner and Respondent, 

and 

JUDY ANN VINECKE, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Charles Luedke, Jud-ge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Jones Law Firm; Blair Jones, Billings, Montana 

For Respond.ent : 

Berger Law Firm; Chris J. Nelson, Bil.lings, Eontana 

Submitted on Briefs: March 6, 1986 

Decided: April 17, 1986 

Filed: BPR 1 '; 1986 

@ 

- Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

Respondent, Judy Vinecke, appeals the September 5, 1985, 

order of the Thirteenth Judicial District Court granting a 

fixed visitation schedule to Petitioner, Mark Vinecke. We 

affirm. 

Mark filed a petition for dissolution on July 28, 1984. 

At that time, Mark, Judy and their two minor children lived 

in Billings. During the pendency of the dissolution proceedings, Judy and the children moved to Butte; Mark continued to 

reside in Billings. The parties' marriage was dissolved on 

December 3, 1984. Judy was granted custody of the two minor 

children, Keith and Kristen, with reasonable right of visitation awarded to Mark. At the time of dissolution, Keith was 

nearly three years of age and Kristen was one and a half. 

In the ensuing months, Mark was permitted to visit the 

children once, on February 14, 1985, while he wa.s in Butte on 

business. Following further unsuccessful attempts to arrange 

visitation, Mark filed a petition on May 21, 1985, requesting 

the court to grant a fixed visitation schedule. 

The matter came on for hearing August 1, 1985. Mark 

testified that the court's assistance was necessary to determine the question of reasonable visitation. He further 

testified that he made numerous attempts to arrange visits.- 

tion, but that Judy did not have a phone and would not respond to his messages. Judy testified that Keith was a 

behavioral problem when he returned home followi.ng a month's 

stay with Mark during August 1984, and that both Keith and 

Kristen had shown fear of Mark when he visited them in Butte. 

The next witness was Dr. George Swaggerty, a clinical 

psychologist hired by Judy to determine whether the children 

had experienced trauma from Mark's visit and the on-going 

conflict between Mark and Judy. Dr. Swaggerty testified that 

he believed the children were traumatized by inconsistent and 

collective visitation, and that visitation should he arranged 

on a graduated basis, with Mark seeing the children on1.y for 
periods of severa.1 hours the first six months. Dr. Swaggerty 

felt that if things went well the first six months, then 

overnight visitation should follow. 

By order dated September 5, 1985, the District Court 

granted Mark's petition allowing fixed visitation, with 

visitation to occur for one month during the summer and on 

alternating holidays. The order contained the following 

findings and conclusions: 

The parties have been unable to implement 

visitation under a "reasonable times and 

places" standard, with the result that 

petitioner seeks the adoption of a fixed 

visitation schedule, while respondent 

supports the suggestions of her clinical 

psychologist for a gradually-commencing 

and consistently-enlarging visitation 

program, as tolerances of the children 

allow. 

After consideration., it is concluded: 

That neither request is ideal from the 

standpoint of the best interests of the 

children, but respondent's request suffers the additional disadvantage of being 

impractical both because of the geographical distance involved and the fact that 

the psychologist's program requires 

reasoning and reasonableness by the 

parties, being ingredients which are not 

available in the circumstances of the 

attitudes and motivations of the parties. 

Judy appeals the order and raises the following issues: 

1. Whether the District Court erred in failing to set 

forth specific findings of fact upon which the court concluded that Mark's fixed visitation sched.ule was in the best 

interests of the minor children of the parties. 

2. Whether the adoption by the District Court of Mark's 

fixed visitation schedule constitutes an abuse of discretion 

in that it is not supported by the evidence and the visitation schedule does not serve the best interests of the minor 

children of the parties. 

Judy asserts the District Court erred by failing tc 

enter specific findings of fact and conclusions of law pursuant to Rule 52, M.R.Civ.P. We disagree. The last sentence 

of Rule 52(a), M.R.Civ.P., reads: "Findings of fact a.nd. 

conclusions of law are unnecessary on decisions of motions 
under F.ules 12 or 56 or any other motion except as provid.ed 

in Rule 41 (b) . " Rule 41 (b) concerns invnlunta-ry dismissal of 

actions and does not apply in this instance. In Raker TT. 

Baker (Mont. 1982), 646 P.2d 522, 39 St.Rep. 1031, we held 

that the District Court did not err by failing to include 

specific findings and conclusions in its order specifying the 

husband's visitation rights. 

In the case at bar, although the district judge was not 

obligated to enter findings of fact and conclusions of law, 

the order does contain findings and conclusions. The findings of fact are: 1) the parties have been unable to implement reasonable visitation; 2) petitioner seeks a fixed 

visitation schedule; and 3) respondent desires a slowly 

enlarging visitation schedule as recommended by the clinical 

psychologist. The conclusions of law are: 1) neither 

request is ideal for the best interests of the children; 

2) respondent's request is impractical because of the 

geographical distance involved and that the clinical psychologist's recommendation requires reasonableness by the parties 

which is lacking in both parties. These findings and 

conclusions are supported by substantial, credible evidence 

in the record. 

Recently, in In Re The Custody and Support of B.T.S. 

(Mont. 1986), P. 2d , 43 St.Rep. 37, this Court 

remanded the case to the District Court for its failure to 

include sufficient findings in making an a.ward of joint 

custody. In that case, we noted that $S 40-4-223, MCA, requires the District Court to consider the factors listed 

under 5 40-4-212, MCA, as well as other relevant criteria 

raised by the facts in evidence, such as the parents' cooperation with each other and the distance between their residences. 43 St.Rep. 40, 41. 

- In - P.e B.T.S. is not controlling in this case for the 

issue is visitation, not joint custody, but we do note that 

in the present case, the district judge gave consideration to 
the childrens' best interests, the parties' attitudes toward 

each other, and the distance between the parties' residences. 

Judy argues that the granting of a fixed visitation 

schedule does not serve the best interests of the children, 

was not supported by the evidence and was an abuse of discretion by the District Court. We disagree. The record reveals 

Mark was granted a right to reasonable visitation under the 

dissolution judgment, but Jud-y did not have a phone and would 

not respond to his messages to allow him to arrange visits.- 

tion. Mark visited the children once during the five months 

following the dissolution. As we said in Baker, supra, "As 

in so many cases where the word 'reasonable' visitation 

rights are put into the decree, the interpretation of the 

word 'reasonable' is left to two unreasonable parties." 646 

P.2d 524, 39 St.Rep. 1034. As in Baker, in this case the 

court's aid was necessary to clarify the meaning of "reasonable." The record shows the parties did not deal with each 

other reasonably. We find no abuse of discretion in the 

district judge ' s conclusion tha.t the lack of cooperation 

between Mark and Judy would prohibit implementation of graduated basis visitation. 

Affirmed.