No. 92-056
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
IN RE THE MARRIAGE OF
DIANNE K. REMICK,
n/k/a DIANNE K. BITNEY,
Petitioner and Respondent,
and
DOUGLAS B. REMICK,
Respondent and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Leif B. Erickson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Douglas B. Remick, Helena, Montana, Pro Se
For Respondent:
Randy K. Schwickert, Attorney at Law, Whitefish,
Montana
Submitted on Briefs: December 10, 1992
Decided: March 2, 1993
Justice John Conway Harrison delivered the Opinion of the Court.
This is an appeal from an order of the Eleventh Judicial
District Court, Flathead County, temporarily terminating
appellant's visitation with the two children of this marriage. We
affirm.
Douglas and Dianne were married in Lincoln County on July 4,
1980. Their sons, Kyle and Cory, were born in 1982 and 1984
respectively. At the time she filed her petition for dissolution
in March 1989, Dianne was 35 years old and employed as a medical
secretary in Columbia Falls, Montana. Douglas was 48 years old,
unemployed and receiving disability benefits from the National
Guard for injuries sustained in the line of duty. He had been a
bank president until he was "involuntarily terminated" in 1987.
Since 1989, Douglas has been living in Helena, Montana.
In July 1989, Douglas and Dianne and their attorneys signed a
settlement agreement in which the parties stipulated to temporary
joint custody with Dianne as the residential parent; visitation by
Douglas on alternate weekends and Wednesday evenings; and $200 a
month as child support, paid through Dianne's attorney.
At an attorneys' conference on September 6, 1989, the parties'
attorneys agreed to a hearing before a special master, pursuant to
Rule 53, M.R.Civ.P. This hearing eventually was scheduled for
February 27, 1990.
At the hearing on February 27, both parties were present and
represented by counsel. The special master filed a report on April
13, 1990. She found that Dianne's fulltime salary was $13,184,
2
which represented the top of her earning capacity, and that Douglas
was earning $600 a month from insurance sales and $539 a month from
the National Guard, for a current annual income of $13,668. The
master noted also that Douglas has children from a previous
marriage, for whom the Montana Child Support Enforcement Division
was then withholding $199 a month from his income. She reported
that the parties had agreed to joint custody, with Dianne as the
residential parent, and to visitation for one weekend per month
plus thirty days each summer. This agreement was incorporated in
the master's order, which also required Douglas to pay child
support at $186.84 per month, subject to adjustment if his income
increased, and to pay half the cost of health insurance for the
children and half the cost of day care. Finding that the
stipulated property division was llconscionable
and equitable," she
also ordered the parties to transfer property and execute documents
as necessary to comply with the terms of their agreement.
Both parties moved to modify the masterfs report. Dianne
claimed that Douglas could return to work in the banking industry
at a salary in excess of $40,000 annually but had chosen to remain
"underemployed," and that under the Montana Child Support
Guidelines the master should impute an annual income of $45,000 to
Douglas.
Douglas also filed objections to the master's report, after
his attorney, Michael McCabe, withdrew on April 26, 1990. He
claimed that Mr. McCabe had agreed to the property division without
his consent and that the couple's debts had not been divided
fairly. He also stated that he would not pay child support because
Dianne was living with her boyfriend, that he wanted the children
to live with him, and that he would expect child support from
Dianne in the amount of $200 a month.
After a hearing on May 17, 1900, the District Court entered a
decree of dissolution, adopting the master's report except that
Douglas was ordered to pay $203.80 per month for child support
through automatic withholding.
On November 21, 1990, Dianne filed a motion for contempt and
order to show cause, stating that Douglas had not reimbursed her
for his share of the children's health insurance premium and day
care expenses. The court entered its order to show cause on the
same day, requiring Douglas to appear on January 2, 1991. Douglas
failed to appear on that date, but his new lawyer, Patrick
Springer, appeared to request a continuance. The court denied the
continuance on the ground that Douglas had not shown good cause for
his absence.
In its order of January 2, 1991, the District Court found
Douglas guilty of three counts of contempt of the court's decree of
May 17, 1990, sentenced him to fifteen days in the Flathead County
jail, and imposed a fine of $1,500. The order provided that
Douglas could purge himself of contempt by paying Dianne the
amounts he owed her for day care and health insurance premiums,
plus her attorney's fees, before January 25. Douglas failed to
make these payments, and the court issued a warrant for his arrest
on February 20, 1991.
Douglas posted bond, and on March 22, 1991, his attorney filed
a petition for modification of the decree of dissolution, arguing
that fraud upon the court authorized the court to set aside its
prior judgment and that the time limit in Rule 60(b), M.R.Civ.P.,
does not apply. In his supporting affidavit, Douglas stated that
the settlement agreement incorporated in the decree was "a
falsehood and represents a fraud perpetrated upon the court,IFthat
he had not been "a part of the negotiations," and that he had not
understood that the agreement made him responsible for all marital
indebtedness.
The District Court considered Douglas1 petition for
modification on March 28, 1991, the date set for his appearance on
the contempt charges. Both parties were present, accompanied by
their attorneys. In its subsequent order, signed on May 2, 1991,
the court denied Douglas' petition on the basis that he had failed
to establish any of the grounds authorizing the court to set aside
a property agreement pursuant to 5 40-4-208(3), MCA. It also
suspended its previous sentence for contempt, to "provide another
opportunity for Mr. Remick to purge himself of the Court's finding
of ~ o n t e m p tby~ paying the $1,201.95 in arrearages determined in
~
the court's January 2 order and remaining current in his
obligations for health insurance and day care. The court ordered
monthly installments of $200 for five months, plus a final payment
of $201.95.
On May 28, 1991, Douglas, through his attorney, filed an
emergency petition for enforcement of visitation, stating that he
had advised Dianne in January that he wished to take the children
for his thirty-day summer visit on June 15, 1991 and that he
proposed to take them to his family reunion in Wisconsin at that
time, but Dianne insisted that all visitation was to occur in
Flathead County. In her response, Dianne said that she did not
object to contact between Douglas and the children but was
concerned that his proposed visitation was unreasonable "based upon
his historic patterns and irresponsibility." A letter from her
attorney to Douglast attorney, dated April 8, 1991, was attached to
the response. It stated that Douglas in the past had driven with
the children in the car while he was drinking; that he had allowed
their half-brother, Ryan, then age thirteen, to drive with the
children in the car; and that he had not visited the children since
December 27, 1989, on which occasion he failed to bathe them for a
week and let them stay up past midnight.
On June 14, 1991, after a hearing attended by both parties and
their attorneys, the court issued an order listing conditions under
which Douglas could exercise his visitation right that summer,
including, among other things, that Douglas was not to consume
alcohol while driving or within two hours before driving; that he
was not to speak negatively to the children about Dianne; that he
was not to allow an unlicensed driver to operate a motor vehicle
while the children were in it; and that "the children shall be
supervised at all times by a responsible adult." The order also
provided that the children were to be returned to Dianne
immediately if any violation occurred or if the children wished to
terminate the visit for any reason.
On July 9, 1991, Dianne moved for termination of visitation,
based on Douglas' alleged violations of the court's order of June
14, 1991 and his refusal to return the children to Dianne.
Douglas1 fifteen-year-old son Ryan had told Dianne's attorney that
on several occasions during the visit, Douglas had consumed alcohol
within two hours of driving, that Douglas had often spoken ill of
Dianne in the presence of the children, and that Douglas had left
the children unsupervised by anyone older than Ryan for several
hours each day. Ryan's observations were partially confirmed by
Tom Best, Director of Family Court Services for the Eleventh
Judicial District, who had interviewed Douglas and Cory, the
younger child, at Douglas1 parents' home in Kalispell the previous
day.
On the same day, July 9, the court issued an order terminating
the current visit and authorizing Montana law enforcement personnel
to assist Dianne in picking up the children.
On October 11, 1991, Dianne moved for an order requiring
Douglas to show why he should not be held in contempt for his
willful disregard of the court's orders of May 2 and June 14, 1991,
and for an order terminating Douglas' visitation rights on the
grounds that visits would seriously endanger the physical, mental,
and emotional health of the children. On the same day the court
issued an order setting both requests for hearing on November 7,
1991. This order was served on Douglas on October 17, 1991. The
hearing subsequently was postponed until November 19.
On November 12, 1991, Douglas filed a motion to "dismiss and
postpone" the hearing because he had filed a bankruptcy petition
and expected hearings on that petition to show that Dianne "from
day one has committed contempt, provided false records, and
misrepresented statements to this court." Douglas wrote this
motion himself, his attorney having withdrawn earlier in November.
The court then issued a minute order announcing that the
"hearing on Petitioner Motion for Contempt is hereby reset for
December 2, 1991 . . . . In response, Douglas filed a second
motion to dismiss, on November 27, stating that "there is no
Contempt intended whatsoevern and "there just weren't sufficient
funds available to pay." Further, he asked that "the hearing on
the visitation rights be postponed until such time as I am able to
obtain Counsel," and that a guardian ad litem be appointed for the
children.
Douglas appeared at the hearing on December 2 without counsel.
He told the court that because the minute order did not mention the
visitation issue, he was prepared only to discuss the contempt
charges. He asked again that the hearing be postponed, but the
court denied his request on the ground that it had no reason to
grant a further continuance.
On Dianne's motion, the court interviewed the two children
camera during the hearing. Based on the record and on the
children's testimony, the court found that continued visitation
between the children and Douglas would seriously endanger their
physical, mental, and emotional health. It issued an order
terminating Douglas1 visitation rights temporarily, until Douglas
had obtained a mental health evaluation, had participated in any
recommended counseling and therapy, and had completed a chemical
dependency evaluation. If the termination order were rescinded,
Douglas could visit the children only with supervision.
The court also found Douglas in contempt for willful violation
of the court's order of May 2, 1991, sentenced him to thirty days
in the Flathead County jail, and imposed a fine of $3,000. Douglas
avoided the sentence and fine by paying the $1,202.95 previously
ordered, plus $1,930 in attorney's fees and costs, in April 1992.
He appeals the order terminating visitation.
The issues on appeal are (1) whether the District Court failed
to give proper notice of the issues to be addressed at the hearing
of December 2, 1991, and (2) whether the District Court abused its
discretion in denying Douglas' second request for a continuance of
that hearing.
I
Douglas argues that he was denied due process of law because
the District Court failed to give him notice that termination of
his visitation rights would be considered at the hearing of
December 2, 1991. His argument is based on the fact that the
court's order of November 20, 1991, postponing the hearing until
December 2, referred only to Dianne's "motion for contempt."
This argument cannot be taken seriously, in view of Douglas'
request, in his November 27 motion to dismiss, that "the hearing on
visitation rights" be postponed. Moreover, if he had any doubt as
to the scope of the December 2 hearing, he had a duty to inquire to
resolve that doubt. Section 1-1-217(2), MCA, provides that:
Every person who has actual notice of circumstances
sufficient to put a prudent man upon inquiry as to a
particular fact has constructive notice of the fact
itself in all cases in which, by prosecuting such
inquiry, he might have learned such facts.
The essential elements of due process are notice and the
opportunity to be heard. In re Marriage of Robbins (1985), 219
Mont. 130, 138, 711 P.2d 1347, 1352. In Robbins, we held that both
elements were satisfied when the appellant husband was given six
weeks notice before the hearing, and the hearing actually was held,
giving him an opportunity to be heard. Here, Douglas was served on
October 17, 1991, with an order requiring his appearance on
November 7 to show cause why he should not be found guilty of
contempt and for a hearing on Dianne's motion to terminate his
visitation rights. By the time the hearing actually was held, he
had had six weeks notice.
We hold that the District Court did not deprive Douglas of his
right to due process.
II
A district court may, in its discretion, postpone a trial or
proceeding upon good cause shown and in furtherance of justice.
Section 25-4-503, MCA. "The denial of a motion for a continuance
is within the sound discretion of the District Court and it is not
error to deny such a motion unless a clear abuse of discretion is
shown." Bolich v. Bolich (1982), 199 Mont. 45, 49, 647 P.2d 844,
847. See also In re Marriage of Concepcion (1984), 212 Mont. 191,
687 P.2d 718; Fields v. Wells (l989), 239 Mont. 392, 780 P.2d 1141.
Here, as in Bolich and ~oncepcion, the record does not
disclose any good cause for postponement. The court already had
continued the hearing at Douglas1 request. Douglas' request for
time in which to obtain counsel is not persuasive, as it was
written two weeks after he had accepted Mr. Springer's request to
withdraw and had filed a separate motion concurring in that
request. Further, the court had given Douglas great latitude over
a period of more than two years, particularly in allowing him
extended time in which to pay his share of his children's health
insurance and day care expenses.
Douglas had been found guilty of contempt for nonpayment
eleven months before the December 2, 1991 hearing but had avoided
payment without penalty. Moreover, the court found, based on
substantial evidence, that further visits with Douglas would
endanger the children. Prompt action to protect the children and
give Douglas an incentive to undergo treatment for alcoholism was
clearly indicated.
We hold that the District Court did not abuse its discretion
in denying Douglas' motion to postpone the hearing of December 2,
1991.
AFFIRMED.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, S t a t e Reporter, and West Publishing Company.
We concur: LY
Marriage of Remick
Combined Opinion