No. 85-580 IN THE SUPREME COURT OF THE STATE OF MONTANA 1986

IN RE THEMARRIAGE OF YARK WAYNEVINECKE, Petitioner and Respondent, and JUDY ANN VINECKE, Respondent and Appellant.

APPEAL FROM: District Court of the Thirteenth JudicialDistrict, In and for the County of Yellowstone, The Honorable CharlesLuedke,Jud-gepresiding.

COUNSEL OF RECORD:

ForAppellant: 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: 

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- ClerkMr. 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 thependency of the dissolution proceedings, Judy and the childrenmoved to Butte;Mark continued to reside in Billings. The parties' marriage was dissolved on December 3, 1984. Judywas granted custody of the twominor children,Keith and Kristen, with reasonable right ofvisitation 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 hewa.sin Butte on business. Following furtherunsuccessful attempts to arrange visitation,Mark filed a petition onMay 21, 1985,requesting the court togrant a fixed visitation schedule. The matter came on for hearing August 1, 1985. Mark testified that the court's assistancewas 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.ngamonth's stay with Mark during August 1984, and that both Keith and Kristenhad shown fear ofMark 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 conflictbetween Mark and Judy. Dr. Swaggerty testified that he believed the children were traumatized by inconsistentand collective visitation,and that visitation shouldhe arranged

on a graduated basis,with Mark seeing the children on1.y forperiods of severa.1hours the first sixmonths. Dr. Swaggerty felt that if things went well the first six months, then overnightvisitation 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: Theparties 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 disadvantageofbeing impracticalboth because of the geographical distance involved and the fact that the psychologist's program requires reasoning and reasonableness by the parties, being ingredientswhich are not available in the circumstances of the attitudes andmotivations of theparties. Judy appeals the order and raises the following issues: 1. Whether the District Court erred in failing to set forth specific findings of factupon which the court concluded that Mark's fixed visitation sched.ule was in the best interestsof theminor childrenof the parties. 2. Whether the adoptionby the DistrictCourt ofMark'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 conclusionsof 

### lawpursuant 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 motionsunder F.ules 12 or 56 or any other motion except as provid.ed in Rule 41(b)

# ." Rule 41(b)concerns invnlunta-rydismissal 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 reasonablenessby theparties 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 tothe childrens' best interests, the parties' attitudes toward each other,and the distance between theparties' residences. Judy argues that the granting of a fixed visitation schedule does not serve the best interests of the children,

was not supportedby the evidence and was an abuse of discretion by the DistrictCourt. We disagree. The record reveals Mark was granted a right to reasonable visitation under the dissolution judgment,but Jud-ydid 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 fivemonths 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 unreasonableparties." 646 P.2d 524, 39 St.Rep. 1034. As in Baker, in this case the court's aid was necessary to clarify themeaning 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 betweenMark and Judywould prohibit implementationof graduated basisvisitation. Affirmed.