No 

No. 98-275

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 309N

IN RE THE CUSTODY OF S.C.,

a Minor Child,

BRIAN CASMAN,

Petitioner and Appellant,

and

AURIA GILMORE, 

Respondent and Respondent.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-275%20Opinion.htm (1 of 5)4/20/2007 2:09:00 PM
No 

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable John W. Larson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Christopher Daly, Attorney at Law, Missoula, Montana

For Respondent:

Hilary Bush, Montana Legal Services Association, Missoula, Montana

Submitted on Briefs: November 19, 1998

Decided: December 15, 1998

Filed:

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-275%20Opinion.htm (2 of 5)4/20/2007 2:09:00 PM
No 

__________________________________________

Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

¶1. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal 

Operating Rules, the following decision shall not be cited as precedent but shall be 

filed as a public document with the Clerk of the Supreme Court and shall be 

reported by case title, Supreme Court cause number, and result to the State Reporter 

Publishing Company and to West Group in the quarterly table of noncitable cases 

issued by this Court.

¶2. Brian Casman (Casman) appeals from the Custody Decree entered April 3, 1998 

by the Fourth Judicial District, Missoula County. Casman, the father, contends that 

the court adopted a proposed decree presented by the mother, Auria Gilmore 

(Gilmore), without first affording Casman the opportunity to respond in writing or 

an opportunity for a hearing, thereby denying him due process of law. 

¶3. The procedural background is as follows: A trial as to all issues was held on 

September 19, 1996. On December 20, 1996, the court issued an Interim Custody 

Decree which provided that the parties were granted joint custody of S.C. and that 

neither party would be designated primary custodian until final reports from the 

guardians ad litem in Montana and Florida were received. The decree further stated 

that a final order regarding a visitation schedule would be entered by the court upon 

receipt of the recommendations of the guardians ad litem. Although the court did 

receive the final guardian ad litem reports a few months later, it issued temporary 

orders granting Gilmore parenting time with S.C. in Florida and requiring 

additional steps before a final decree would be entered. Two of these temporary 

orders specifically indicated that another hearing would be scheduled with regard to 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-275%20Opinion.htm (3 of 5)4/20/2007 2:09:00 PM
No 

a final decree. The last such temporary order provided: "The Court expressly retains 

jurisdiction to enter further amendments and to issue a final custody and visitation 

order and decree upon the child's return to Montana in March 1998." 

¶4. By agreement of the parties, the minor child was brought back to Montana in 

mid-February, 1998. Relying on the District Court's earlier orders, Casman expected 

that a hearing would then be scheduled. Although no time frame had been 

established for submission of motions or proposed decrees, counsel for Gilmore, on 

March 26, 1998, filed a Motion for Final Determination of Custody and Visitation 

along with a Proposed Custody Decree, which was served upon counsel for Casman. 

Gilmore requested that the court adopt her proposed decree or, in the alternative, set 

a hearing for a final determination of custody and visitation. The District Court 

signed Gilmore's proposed decree as its final order on March 27, 1998, the day after 

the motion was filed. Casman appeals from that order. 

¶5. Casman contends that under Rule 2 of the Uniform District Court Rules, he had 

ten days within which to reply to Gilmore's motion and that the District Court, in 

granting Gilmore's motion without first affording him an opportunity to address the 

fundamental issue of custody of his child, denied him due process of law under the 

United States and Montana Constitutions. 

¶6. Gilmore concedes that when she filed her motion for a final decree she expected 

that the court would permit Casman time to respond. She contends, nonetheless, that 

the court did not abuse its discretion in signing the proposed decree since, "[e]ven if 

Judge Larson had waited for Father's response to the Motion, it is extremely 

doubtful that he would have made a materially different decision in this case." This 

contention is pure speculation. We have no means of knowing what the District 

Court's decision would have been if it had had the benefit of a response from 

Casman or if it had held a hearing as previously promised. We do know that due 

process requires that Casman be given an opportunity to respond to Gilmore's 

motion. The opportunity to respond is particularly cogent given that the issue before 

the court involved Casman's fundamental right to custody of his child. See Matter of 

Guardianship of Doney (1977), 174 Mont. 282, 286, 570 P.2d 575, 577. Further, it was 

particularly vital that Casman be allowed to address any issues or reports that had 

developed in the intervening 18 months since the trial in September of 1996. 

¶7. We hold that the District Court erred in adopting Gilmore's proposed decree 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-275%20Opinion.htm (4 of 5)4/20/2007 2:09:00 PM
No 

without first affording Casman an opportunity to respond. The Custody Decree 

entered on April 3, 1998 is reversed and this matter is remanded for the purpose of 

allowing Casman an opportunity to respond to Gilmore's motion and for the court to 

rule on the motion, or, if it deems it appropriate, to conduct a further hearing. 

/S/ W. WILLIAM LEAPHART

We concur:

/S/ J. A. TURNAGE

/S/ JAMES C. NELSON

/S/ JIM REGNIER 

/S/ TERRY N. TRIEWEILER

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-275%20Opinion.htm (5 of 5)4/20/2007 2:09:00 PM