NO. 8 7 - 5 3 4
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
IN RE THE CUSTODY OF
C. S. F., a minor child.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Douglas Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Joseph M. Goldman, Misso.ula,Montana
For Respondent:
Datsopoulos, MacDonald & Lind; Dennis E. Lind,
Missoula, Montana
Submitted on Briefs: April 7, 1 9 8 8
Decided: June 2, 1 9 8 8
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
The custody of CSF, a minor child, has been the subject
of proceedings in the District Court, Fourth Judicial
District, Missoula County, since 1982. The father resides in
California and the mother in Montana.
The first order of the District Court pertaining to
custody was a temporary one, entered January 14, 1983. Joint
custody was awarded with the provision that the child should
reside with the mother, subject to a visitation schedule for
the father, set out in the temporary order. On August 20,
1984, the father and mother entered into a joint custody
agreement which was filed in the District Court proceedings.
On July 3, 1986, the District Court entered an order stating
that "the joint custody agreement of the parties shall be the
order of the court on all issues addressed therein,
including, but not limited to custody, child support . . ."
In 1987, both father and mother filed motions before the
District Court seeking modification of one sort or another
relating to the joint custody agreement and the July 3, 1986
order of the District Court. On June 1, 1987, the District
Court entered orders denying the father's motion for a full
summer visitation; denying the father's motion to eliminate
child support during summer months; ordering that May 1, 1987
remain part of the agreement for a notification date; denying
the mother's motion to increase child support; and ordering
that child support be paid through the clerk of the court as
per the agreement.
The mother filed a motion for reconsideration by the
District Court of the June 1, 1987 order. The District Court
on June 30, 1987 denied the mother's motion for
reconsideration, but in passing, made the following
statement:
It was - the intention of the June 1, 1987, order
not
to allow [father] to accumulate - unused
all
visitation. It was the agreement of the parties
that visitation would accumulate only if there was
a "refusal of Mother or because of scheduling
conflicts" and not as a device to acquire
visitation not originally scheduled.
If [mother] refuses to accumulate the visitation
days requested by [father] his remedy is to
petition the court for an appropriate order . . .
On July 13, 1987, following the apparent suggestion by
the District Court in its order denying reconsideration, the
father moved the court to determine the number of days of
visitation he was entitled to as an accumulation for days
denied to him through the mother or by scheduling conflicts.
Hearing before the District Court on the father's motion
for accumulated visitation was held on July 28, 1987. After
the District Court heard testimony on the motion, the
following colloquy occurred between the court and counsel:
THE COURT: Of this year. Let me look--you know
what I am going to look at, don't you? The
agreement. We'll see what it says.
Father shall have visitation only in the
even-numbered years for Labor Day and July 4th.
This is an odd-numbered year, so the mother has
July 4th.
I am ready to rule in this case and the evidence I
have heard indicates to me that you have the right
to accumulate six days. When would you like to do
that? Would it be convenient to take it now or be
better to do it sometime before school starts?
THE COURT: So it would be 5, 6, 7, 8, 9, 10 and
then, that would be the end of his visitation and
the child would be returned the evening of the
10th. Is that agreed, [father's counsel]?
(FATHER'S COUNSEL]: That's all right.
THE COURT: All right. Would you prepare a written
order to this effect, [mother's counsel]?
[MOTHER'S COUNSEL]: I will, Your Honor.
THE COURT: Court's adjourned.
On September 3, 1987, the District Court signed an order
which had been prepared by the mother's counsel. Paragraph 1
of the order followed the request of the District Court as to
the number of accumulated days of visitation to which the
father was entitled. The order included a second paragraph,
which, however, in words and figures follows:
2. In order to prevent an annual dispute and
hearing with respect to accumulated visitation
under the terms of the Joint Custody Agreement
dated the 20th day of August, 1984, and in
clarifying the intent of said Agreement, the
parties are ordered as follows:
a. Father shall provide to the Court and to the
mother a work schedule and his choice of an every
other weekend visitation schedule in order to
accommodate his work schedule so as not to conflict
with his alternating weekend visitation schedule.
The schedule shall commence, in accordance with the
Joint Custody Agreement, after Labor Day Weekend of
each year and shall conclude on or before Memorial
Day Weekend of the following year. Said schedule
shall be provided to the Court and to Mother on or
before September 10, 1987 and on or before August
15th of each year thereafter.
b. Because of the geographical distance and
necessity for travel arrangements, Father shall
provide written notice to the mother ten days prior
to exercising visitation of the schedule of travel
times and related arrangements for the minor child.
Father shall provide written notice to the mother
ten days prior to any weekend the father
anticipates or recognizes a scheduling conflict,
informing the mother of the conflict and providing
written documentation specifying the reasons and
appropriate details of the conflict. If no written
notice regarding visitation is received, it shall
be assumed the father does not have a scheduling
conflict but chooses not to exercise visitation.
c. Pursuant to the terms of the August 20, 1984
Joint Custody Agreement, scheduling conflicts
created by the necessity of father having to work
on a regularly scheduled visitation weekend shall
as a first option be rescheduled to the father's
next available weekend. If an available weekend
does not exist, the scheduling conflict shall be
rescheduled or accumulated in accordance with the
terms of the Agreement.
d. Mother shall provide written notice to the
father ten days prior to any weekend that mother
anticipates or recognizes a scheduling conflict,
informing the father of the conflict and specifying
the reasons and appropriate details of the
conflict.
The Court once again re-emphasizes to the parties
that the specific Agreement and Custodial
Visitation Schedule as set forth in the Joint
Custody Agreement of August 20, 1984, shall be
strictly adhered to and the Court shall enforce
said Agreement consistent with the Memorandum and
Order of the Court dated June 30, 1987,
incorporated herein by reference, which Order and
Memorandum sets forth the Court's interpretation of
said Agreement.
Thereafter, counsel for the father moved the District
Court for reconsideration and amendment of the order or for a
new hearing on the grounds that the order was inconsistent
with the findings of the court, inconsistent with the joint
custody agreement of the parties, outside of the issues
before the court with respect to the father's motion for
accumulated leave, and entered without giving father an
opportunity to present witnesses and cross examination with
respect to the new matters covered in the order. The motion
for reconsideration of amendment and new hearing was denied
and the father appeals to this Court.
The single issue presented on appeal is whether that
portion of the order of September 3, 1987, designated as
paragraph 2, supra, is valid.
The father contends on appeal that the District Court
exceeded its jurisdiction in paragraph 2 of the September 3,
1987 order by addressing issues which were res judicata,
which exceeded the intent of the District Court in its
direction to the mother's counsel, and which constituted an
abuse of discretion because not supported by findings of
fact.
In response, mother's counsel counters that the
testimony showed hostility between the father and mother with
respect to visitation, scheduling difficulties that gave rise
to increasing hostility, and the need for clarification in
the agreement to eliminate conflicts. In addition, the
counsel for mother contends in brief that the District Court
itself provided counsel further instructions after the
hearing had been concluded. The brief states:
Although the hearing was concluded, the court
provided further instructions to counsel to include
specific notices and disclosure in the order. The
court included these provisions in an effort to
preclude and prevent unnecessary and repeated court
hearings and confrontations between the parents
with respect to the court's interpretation of the
accumulated visitation provision of the custodial
visitation agreement. The court additionally
requested specific reference to its memorandum and
order of June 30, 1987 ...
The order of September 3, 1987, is a substantial
departure in its provisions from the order requested by the
District Court at the conclusion of its hearing, which was
simply to pro~ride specific dates for accumulated visitation
to the father. If we assume from the statements in the
mother's brief that the further provisions in the September
3, 1987 order were added under the specific instructions of
the District Court, outside the presence of father's counsel,
the problem is not cured. Whether the resultant order is
because of the voluntary addition by mother's counsel, or by
the express ex parte direction of the District Court, it is a
standard rule that a court is bound in entering a judgment or
final order to the issues presented to it. In National
Surety Corporation v. Kruse (1948), 121 Mont. 202, 205, 192
P.2d 317, 319, we said:
The rule in Montana as well as in other
jurisdictions, seems to be well settled that a
judgment must be based on a verdict or findings of
the court and must be within the issues presented
to the court. In Morse v. Morse (1945), 116 Mont.
504, 154 P.2d 982, 984, this Court said:
"There is no principle of law more firmly
established than that the judgment must follow and
conform to the verdict, decision, or findings in
all substantial particulars. (Citing authority.)"
The single issue before the District Court at the July
28, 1987 hearing was the amount of accumulated visitation, if
any, that the father was to have of the minor child. The
effect of the oral order of the District Court at the
conclusion of that hearing, and its request to mother's
counsel, was simply to frame an order encompassing the stated
visitation dates for the father. The matters contained in
the subsequent order of September 3, 1987, in paragraph 2,
are not supported by findings, though the order modifies, in
several respects, the original joint custody agreement
between the parents, which the District Court declared on
July 3, 1986, would govern all subjects relating to
visitation. Indeed, during the July 28, 1987 hearing on the
motion for accumulated visitation, the court repeatedly
brought counsel back to the terms of the agreement to focus
on the issues then before it. A judgment or final order
adjudging matters outside the issues raised by the pleadings
is so far void. Welch v. All Persons, etc. (1927), 78 Mont.
370, 254 P.2d 179. In Old Fashion Baptist Church v.
Department of Revenue (19831, 206 Mont. 451, 457, 671 P.2d
625, 628, we said:
A district court does not have jurisdiction to
grant relief outside of the issues presented by the
pleadings unless the parties stipulate that the
other questions be considered or that the pleadings
are amended to conform to the proof. (Citing
authority.) In National Surety Corporation
[ (1948), 121 Mont. 202, 192 P.2d 3171 , this Court
recognized that "the rule in Montana as well as in
other jurisdictions seems to be well settled that a
judgment must be based on a verdict or findings of
the court and - -be within the issues presented
must
to - court.
- the This rule was clearly upheld in
Heller, 162 Mont. at 188, 510 P.2d at 16 (emphasis
in original) .
Under the rule in Welch, supra, that portion of the
District Court's September 3, 1987 order relating to
accumulated leave is valid, but the remaining portion, being
outside the issues, is void. We therefore, in this case,
reverse the decision of the District Court refusing to amend
its order or to grant a new hearing. That portion of the
District Court judgment dated September 3, 1987 relating to
accumulated visitation is upheld, but that portion designated
as paragraph 2 is found and held by us to be void and of no
effect.
Justice
We Concur:
' Chief Justice