No. 83-424
IN THE SUPREME COURT OF T S STATE OF MONTANA
IE
1984
MOLLY STRONG,
Petitioner and Appellant,
-vs-
BILLY RAY WEAVER,
Respondent and Respondent.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Flichael Keedy, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Richard DeJana, Kalispell, Montana
For Respondent:
George B. Best, Kalispell, Montana
- . -
Submitted on Briefs: April 18, 1984
Decided: July 23, 1984
Filed: '
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
Petitioner wife, Molly Strong, appeals an order of the
Flathead County District Court modifying a previous order
that had defined the "reasonable visitation" rights of the
respondent husband, Billy Ray Weaver. The wife had not
appealed the previous order. The trial court modified the
previous visitation schedule after it held a contempt hearing
to determine whether the wife had been denying the husband
his rights under that previous order. The trial court
subsequently found the wife in contempt. There was no
separate visitation hearing, nor was the appealed order
supported by findings of fact and ~onclusions of law. We
vacate the appealed order and remand the cause to the
District Court for a visitation hearing.
The wife presents only one issue. That is whether the
trial court had jurisdiction to modify the previous
visitation order without holding a visitation hearing and
without entering findings and conclusions that the
modification was in the "best interest" of the child under
section 40-4-217 (3) , MCA.
Custody of the parties' infant child, Anneve, was
awarded to the wife under the decree of dissolution of
marriage entered June 21, 1979. At that time, the husband
was awarded "reasonable (child) visitation" rights. The
husband was compelled three times to petition the court to
order visitation because the wife was not providing him with
"reasonable visitation." On the third time, the husband
petitioned the court to clarify the terms "reasonable
visitation" by setting out a specific visitation schedule,
and the court did so. That visitation schedule was later
modified by the court after the contempt hearing, granting
increased visitation rights to the husband, and the wife
appeals that modification order.
Section 40-4-217(3), MCA, controls the modification of a
visitation order. That section provides that the order may
be modified " . . . whenever (it) would serve the best
interest of the child;. . ." That section contemplates a
visitation hearing and a finding that any modification would
be in the child's "best interest." Further, this ultimate
finding must be supported by findings and conclusions so that
the parties are informed of the basis of the court's
decision, and so that this Court may effective1.y review the
trial court's determination. Jones v. Jones (Mont. 1980) ,
620 P.2d 850, 37 St.Rep. 1973. Here there was no visitation
hearing, no finding in the order that the modification was in
the "best interest" of the child, and no findings and
conclusions to support the order.
We vacate the June 13, 1983 visitation order and remand
this cause for a visitation hearing. Any modification order
regarding visitation must be supported by findings and
conclusions.
We Concur:
Chief Justice