No. 92-611
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
IN RE THE MARRIAGE OF
KATHLEEN A. KOVASH,
Petitioner and Respondent,
and
MYRON J. KOVASH,
Respondent and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Mark P. Yeshe, Donahoe & Yeshe,
Helena, Montana
For Respondent:
Robert F. Alsobrook, Attorney at Law,
Bozeman, Montana
Submitted on Briefs: May 27, 1993
Decided: A u g u s t 17, 1993
Filed:
Justice William E Hunt, Sr., delivered the opinion of the Court.
.
Respondent Kathleen A. Kovash petitioned the Eighteenth
Judicial District Court, Gallatin County, for dissolution of her
marriage to appellant Myron J. Kovash. After a four-day trial, the
District Court issued temporary orders and granted appellant
unsupervised visitation with the parties' four children. On
August 31, 1992, the District Court issued its Findings of Fact and
Conclusions of Law which terminated all contact between the
children and appellant, but allowed conditional visitation.
Appeliant appeals from tne order.
We affirm in part and modify the District Court's order.
Appellant presents seven issues for this Court's
consideration.
1. Did the District Court err by modifying its December 13,
1991, temporary custody order?
2. Did the District Court err by failing to consider the
wishes of the children?
3. Did the District Court err when it terminated appellant's
visitation rights?
4. Did the District Court abuse its discretion by ordering
the two older children to protect the two younger children?
5. Did the District Court err by not allowing grandparent
visitation?
6. Did the District Court violate appellant's constitutional
rights by ordering him not to go to Coeur D'Alene, Idaho?
7. Did the District Court abuse its discretion when it
granted respondent custody of the children?
Myron and Kathleen Kovash were married on October 16, 1976, in
Livingston. Four boys were born into the marriage. The parties
separated on June 4, 1990.
The marriage was marred with abuse by Myron against Kathleen
and the oldest child, J.K. The first incidence of abuse occurred
within six months after the marriage. Kathleen testified that
Myron would strike her at least three to four times a year. The
most severe incidents occurred in the last year of the marriage.
In April 1989, Kathleen testified that while on a boat Myron
struck her in the face and almost knocked her into the water,
knowing that she could not swim. Following a confrontation over
marital problems, in December 1989, Myron assaulted Kathleen over
a two-day period and pointed a pistol at her, causing her to fear
for her life. Myron again assaulted Kathleen after further
problems of the same nature arose. The oldest child, J.K., had to
run for aid on both occasions. During the second incident, a
police officer had to use force to pull Myron off Kathleen. There
are many instances of abuse testified to by Kathleen which Myron
denies. The parties sought marriage counseling in Montana.
Kathleen left Myron on June 4, 1990, and resided in a
battered women's shelter in Coeur D'Alene, Idaho, for a month.
Kathleen obtained temporary restraining orders in both Montana and
Idaho, but according to the District Court they have not been
satisfactory. The Idaho orders permitted Myron to be with the
3
children, if not Kathleen. The District Court entered a series of
orders to keep Kathleen and the children safe, and instituted
visits by Myron and his extended family. Upon the recommendation
of the supervising social worker, the guardian ad litem, and the
child's counsellors, the court suspended visitation and limited
telephone contact.
Kathleen testified that during telephone calls Myron usually
focused on adult issues, which agitated the children. Myron has
told one child on four occasions that he disowned him but later
apologized. Rayhieen has had difficulty getting the children to
accompany her to the Woman's Center for the calls. The children
often acted out after the calls, such as by shoving their mother,
and one of the children had anxiety attacks.
Dr. Jack Oakwright, a licensed psychologist in Coeur D'Alene,
testified that he met with Kathleen and the children following a
referral from the battered women's shelter in Coeur DSAlene.
Because Kathleen had insufficient funds, the bulk of the therapy
was done by Jill Crocker, a master level assistant. Dr. Oakwright
testified that the oldest child was damaged the most by physical
and emotional abuse inflicted by Myron. He also testified that the
child's development in therapy was delayed. Dr. Oakwright
expressed concern about reports from a hospital describing Myron as
suicidal or homicidal after the incident in December 1989 involving
the firearm. Viewing all the medical and psychological reports,
Dr. Oakwright saw a consistent pattern where Myron would only
submit to treatment as a way of manipulating the return of his
wife. Dr. Oakwright also found a consistent pattern diagnosis that
Myron was dangerous, suicidal, or homicidal. Dr. Oakwright
expressed the opinion, based upon the review of the records and
interviews with family members, that Myron represented a danger to
the children and needed treatment before having anything other than
professionally supervised and monitored visitation. Dr. Oakwright
did not interview Myron.
Rob Marchetti, a child protective officer with the Department
of Family Services, supervised two telephone visits between Myron
and the children. He testified that the telephone visits harmed
the children and the abuse was getting worse. He recommended that
all contacts by telephone and in person be held in a therapist's
office and supervised by the therapist.
Jeannine Newville, the court-appointed guardian ad litem, also
testified that the telephone visits were getting worse. She stated
that shared custody was not in the best interest of the children.
She recommended grandparent visitation.
On June 4, 1990, Kathleen filed her petition for dissolution.
A four-day trial was held December 9 through 12, 1991. After the
trial, the court issued a temporary order concerning custody,
visitation, and restraint of the parties. The court granted
unlimited visitation. On August 31, 1992, the District Court
issued its findings of fact and conclusions of law and terminated
all visitation and contact between Myron and the children, but
suspended the termination upon certain conditions. Myron appeals
the order.
I.
Did the District Court err by modifying its December 13, 1991,
temporary custody order?
Myron argues t n t the District Court's modification of its
ia
December 13, 1991, order violated his right to due process and was
an abuse of discretion. He contends that the District Court needed
to find a change in circumstances when issuing a final custody
order which differed from the temporary order. We disagree.
In its temporary order, the District Court granted Myron
unsupervised visitation. On July 30, i992, the guardian ad litem
wrote an addendum which stated that Myron's behavior was not
improving because of his regular visits with his sons, and was, in
fact, getting worse. The guardian ad litem also stated that Myron
was dangerous. When the District Court issued its findings of fact
and conclusions of law, it terminated all visitation and contact
between the children and Myron. The court did, however, suspend
the ternination with certain conditions. Myron contends that the
court's consideration of the guardian ad litem's report without a
hearing to allow Myron to present his arguments was a violation of
due process and amounted to an abuse of discretion.
Nothing in the District Court's findings of fact and
conclusions of law suggests that the court considered the July 30,
1992, report of the guardian ad litem. The court made extensive
findings relating to the guardian ad litem's testimony at trial.
A tape recorded conversation of October 21, 1991, between the
children and Myron convinced the guardian ad litem that matters
6
were getting worse. The District Court heard this taped
conversation and agreed. The guardian ad litem testified that
shared custody was not in the best interest of the children, and
recommended that Myron have only professionally supervised
visitation. We hold that the District Court did not violate
Myron's due process rights.
Myron also contends that the District Court needed to find a
change of circumstances when issuing its final custody order which
differed from the temporary order. We decided a similar issue in
I n re Harriage of Allen (1989j, 237 Hont. 64, 771 P.2d 578. In
Allen, the mother had temporary custody of the children for two and
one-half years before the District Court awarded custody to the
father. We explained in Allen that:
As expressed in § 40-4-213, MCA, the best interest
test is the standard used by the court to award temporary
custody. However, the court, upon motion for temporary
custody, is only determining the best interest of the
child with regard to temporary custody pending resolution
of the action.
Temporary child custody is merely an
initial determination made to ascertain which
of [the] parents will keep children until such
time as full hearing on custody can be made.
27C C.J.S. Divorce, 642, footnote 30. While district
courts must consider the stability of the child's home
when it [sic] determines custody, it would nevertheless
be inherently unfair to require the temporary non-
custodial parent to make a higher threshold showing of
changed circumstances before a custody order may deviate
from the temporary order.
In Allen, we quoted the following commissionerls note to
§ 40-4-213, MCA:
[This action] encourages trial courts to issue
temporary custody orders without formal hearing whenever
possible. Since the hearing itself may be a traumatic
event for both parents (and therefore for their children,
indirectly), the trial court is authorized to make
temporary orders on the basis of affidavits alone unless
one of the parties files formal objection to that
procedure. In most cases, it is expected that trial
judges will award temporary custody to the existing
custodian so as to minimize disruption for the child.
Allen, 771 P.2d at 581.
If changed circumstances are required to be proven before
modifying temporary custody orders, parents would be forced to
litigate temporary custody. This result would be contrary to the
purpose of the statute. Therefore, we hold that the District Court
was not required to find a change in circumstances before modifying
the temporary custody order.
11.
Did the District Court err by failing to consider the wishes
of the children?
Section 40-4-212(1) (a) and (b), MCA, requires the court to
consider the wishes of the children when determining custody. The
District Court interviewed the children before the December 1991
hearing. The court also interviewed the second child during the
March 5, 1992, hearing. All the children testified that they
wanted to visit their father, but that they did not like the
telephone calls because of Myron's behavior.
The guardian ad litem, the children's counselor, and the
children's social worker recommended that Myron only have
supervised visitation. The court did not order supervised
visitation. Instead, it gave Myron conditional visitation with his
children for Christmas 1992 and for the month of July 1993. The
court ordered weekly telephone visitation and restricted it so that
the children would not have to discuss "adult issues." The court
granted the children the authorityto terminate the telephone calls
after 15 minutes.
The district court need not make a specific finding on each
,
statutory element. In re Marriage of Arrotta (1990) 244 Mont. 508,
513, 797 P.2d 940, 943. The court must show that it has considered
each element by making specific findings regarding the best
interests of the children. Arrotta, 797 P.2d at 943. The district
court is not required to award custody or visitation based upon the
child's preferences. Arrotta, 797 P.2d at 943. The order
attempted to balance the children's wishes against what was in
their best interest. We conclude from reading the record, and from
the District Court's extensive findings, that the children's wishes
were properly considered when conditional visitation was granted.
111.
Did the District Court err when it terminated Myron's
visitation rights?
As stated previously, Myron's contact with his children was
suspended with conditions. Myron was still allowed visitation with
his children but was required to meet specific conditions relating
to the weekly telephone calls. If he complied with these
conditions, he was given the opportunity to visit the children
during the Christmas holidays. If the Christmas visitation
proceeded without incident, then Myron was allowed to have one
month's worth of visitation during the summer. If Myron did not
meet these guidelines, the court would terminate his visitation
rights. The court" use of the carrot and stick approach was an
effort to curb Myron's behavior toward his children and foster a
more healthy relationship. It does not amount to a termination of
visitation rights. We hold that the District Court did not abuse
its discretion in placing conditions on Myron's visitation.
IV.
Did the District Court abuse its discretion by ordering the
two older children to protect the two younger children?
In view of the testimony and evidence produced during the
proceedings, the court was concerned about the safety of the
children. The court interviewed the boys and felt that it was
appropriate to have the older children supervising visitation and
protecting the younger ones. Dr. Oakwright testified that it would
be in the best interests of the children to allow them to initiate
the telephone contacts and to terminate the telephone calls with
their father. We hold that the District Court did not abuse its
discretion.
v.
Did the District Court err by not allowing grandparent
visitation?
Section 40-4-217(2), MCA, allows the district court to grant
grandparent visitation if it finds that it is in the best interests
of the children. In this instance, the District Court granted
10
grandparent visitation, but they could only exercise their rights
simultaneously with Myron. We hold that the District Court did not
abuse its discretion in granting the grandparents visitation.
VI .
Did the District Court violate Myron's constitutional rights
by ordering him not to go to Coeur DIAlene,Idaho?
Myron contends that the court's order restraining him from
going to Coeur D1Alene is too broad and infringes on his
constitutional right to travel. We agree. The order is overly
broad in tne sense that it does not consider that Myron may have
other business in Coeur DIAlene or that he may be travelling
through the city.
There is substantial evidence in the record to support the
conclusion that when Myron travels to Coeur D'Alene, Kathleen and
the children are subjected to harassment. The intent of the order
is to keep Myron away from Kathleen and the children until the
court finds it appropriate to lift the restraining order. We hold
that the portion of the court's order preventing Myron from
traveling to Coeur D'Alene is too broad and should be stricken. We
affirm those portions of the order that intend to keep Myron away
from Kathleen and the children.
VII.
Did the District Court abuse its discretion when it granted
Kathleen custody of the children?
Our standard of review in custody matters is whether
substantial credible evidence supports the court's determination.
In re Marriage of Fesolowitz (Mont. 1993), 852 P.2d 658, 662, 50
St. Rep. 575, 578. The law presumes that joint custody is in the
best interest of the child. Courts award joint custody to assure
the child frequent and continuing contact with both parents.
Section 40-4-223, MCA. Physical custody should be arranged as
equally as possible between the parents, with the child's best
interest as the primary consideration. Fesolowitz, 852 P.2d at
662. The District Court must consider the factors set forth in
40-4-212, MCA, when determining which parent receives custody.
Here the court granted custody of the children to Kathleen.
During trial, Dr. Oakwright testified that Myron was "dangerous to
the welfare of his children and needs treatment before he should be
allowed anything butthe most closely and professionally supervised
visitation." He recommended that Kathleen have sole custody. Mr.
Marchetti recommended that Myron have physical visitation only in
a therapist's office with an emphasis on therapy helping Myron in
not being abusive. The guardian ad litem recommended that Kathleen
have custody of the children. We hold there is substantial
credible evidence to support the Court's conclusion that it is in
the best interest of the children that Kathleen be granted custody.
We affirm all issues except as to the modification of the
portion of the order that prohibits Myron from traveling to Coeur
D'Alene, Idaho.
concur :
August 17, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Mark P. Yeshe
DONAHOE & YESHE
P.O. Box 413
Helena, MT 59624
ROBERTALSOBROOK
Attorney at Law
225 E. Mendenhail
Bozeman, MT 59715
ED SMITH
CLERK OF THE SUPREME COURT
STATE OFMONTANA