NO. 89-536
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
IN RE THE MARRIAGE OF
JEFFREY J. SMITH,
Petitioner and Respondent,
and
KATHLEEN FOLEY,
Respondent and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula,
The Honorable Douglas G. Harkin, presiding.
COUNSEL OF RECORD:
For Appellant:
Michael Sol, Sol & Wolfe, Missoula, Montana
For Respondent:
Thomas W. Trigg, Missoula, Montana
Submitted on Briefs: March 1, 1990
Decided: April 26, 1990
Filed: 8
Justice William E. Hunt, Sr., delivered the Opinion of the Court.
The mother, Kathleen Foley, appeals the memorandum and order
of the District Court, Fourth Judicial District, County of
Missoula, which denied her additional visitation rights. We
affirm.
The sole issue on appeal is whether the District Court abused
its discretion in refusing to modify its prior rulings to allow the
mother to have visitation with the children when the father was n o t
at his home and only the father's present wife was there.
This matter has been before this Court in In re Marriage of
Smith, 232 Mont. 527, 757 P.2d 784, (1988), where the mother, as
the appellant, asked this Court to find that the District C o u r t
abused its discretion by awarding superior visitation rights to the
father. The order of the District Court awarded the parents joint
custody of both children with the father serving as primary
residential parent. Mother was granted custody of the children two
or three weekends per month, Thanksgiving, Easter, summers, and
part of Christmas vacations. The mother was to have liberal
visitation when the children were in the father's custody and the
father was unavailable. The mother was granted this visitation
time rather than placing the children in the care of "non-family
member^.'^ The mother asked the District Court for a clarification
of the term flnon-familymembers1' and the court stated that the
father's then girlfriend, Shaun Gant, was a family member.
We affirmed the ruling of the District Court and held that
there was no error in the court's judgment. Specifically, we held
that the District Court's conclusion Number 19 did not confer
superior visitation rights to Shaun Gant. Smith, 757 P.2d at 786.
Subsequent to our opinion, the father married Shaun Gant.
Now, when the children are staying at his residence and he is at
work, his wife is present. It is during this period of time when
the father is at work and the children are being cared for by his
wife that the mother seeks to have additional visitation of the
children.
The mother recently petitioned the District Court for further
clarification of visitation. A hearing was held and the court made
an order which reads as follows:
In order to make it perfectly clear what was intended by
the original Order, Respondent's [mother] visitation
shall be that visitation set out in Conclusions of Law
17 (first, third and fifth weekends of each month),
Conclusions of Law 18 [summer visitation], Conclusions
of Law 21 (holidays), and those periods of time when all
four of the following conditions exist at the same time:
1. Father is not home,
2. Father's wife is not home,
3. Mother is available, and
4. It is reasonable under the
circumstances.
The effect of this order was to deny the mother a
modification of the existing visitation rights. It is from this
order that the mother appeals.
We have examined the record and find that the District Court
did not abuse its discretion refusing modify visitation.
"The court may modify an order granting or denying visitation
rights whenever modification would serve the best interest of the
child.I1 Section 40-4-217, MCA. The District Court has examined
the children and heard the testimony of the parties. There is no
evidence to support the contention that any modification would be
in the best interest of the children. Further, the District
Courtlscurrent order, which did not amend the original conclusion
number 19, does not confer superior visitation rights to the
father's wife. The children are in the custody of their father
during the subject time periods. The mother retains liberal
visitation rights during this time. The mother was never granted
llvisitationl'other than those periods of time described above.
The father has allowed the mother visitation rights as provided in
the order and has not denied her any privileges or visitation
rights with the children that were not reasonable under all of the
circumstances.
The judgment of the District Court is affirmed.
-
k ' .
-- A , / - I /
Chief Justice
IN THE SUPREME COURT FOR THE STATE OF MONTANA
IN RE THE MARRIAGE OF
JEFFREY J. SMITH,
O R D E R
Petitioner & Respondent, )
v.
KATHLEEN FOLEY, 1
1
Respondent & Respondent. )
I P
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On April 26, 1990, this Court issued it's most rece3t decision
in the case of In Re the Marriage of Smith and Foley, - P.2d -,
47 St.Rep. 814 (Mont. 1990), denying appellant, Kathleen Foley8s
request for a review of the district court's decision clarifying
the original visitation decree. In our decision, we held the most
recent clarification order of the District Court to be in keeping
with its prior clarification order, which was also reviewed by this
Court on appeal and affirmed in In Re the ~arriageof Smith and
Foley, 232 Mont. 527, 757 P.2d 784 (1988). Appellant Foley
requests a rehearing of the most recent appeal.
Appellant properly points out that this Court was incorrect
when it made the following two statements: "a hearing was held,"
and that the ~istrictCourt "examined the children and heard the
testimony of the parties".
The first statement, "a hearing was held," is incorrect and
shall be stricken from the opinion. Because a hearing is not
required, the error has no effect on this Court's ultimate
decision.
The second statement, "examined the children and heard the
testimony of the parties" refers to, and was based upon, the
testimony and evidence associated with that decree. The statement
in the opinion is correct and will remain as part of the opinion.
WHEREFORE, IT IS ORDERED THAT:
1. The following phrase shall be stricken from the original
opinion at page 3, line 11: "A hearing was held . .. II
2. Appellantls petition for rehearing is DENIED.
3 . The Clerk of this Court shall mail a true and correct copy
of this Order to all counsel of record.
DATED this 36a day of May, 1990.
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