Marriage of Schaplow

Nos. 95-219 and 96-222
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996

IN RE THE MARRIAGE OF
PEGGY C. G. SCHAPLOW,
n/k/a PEGGY C. GANDER,
Petitioner and Appellant,
v.
TERRY SCHAPLOW,
Respondent and Respondent.

APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Dale Cox, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Marcelle C. Quist, Kendra K. Anderson, Quist, Bowden
& Anderson, Bozeman, Montana
For Respondent:
Edmund P. Sedivy, Sedivy, Bennett &White, Bozeman,
Montana

Submitted on Briefs: September 19, 1996
Decided: December 19, 1996
ncr ‘8. g 1996
Justice William E. Hunt, Sr., delivered the Opinion of the Court

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, State Reporter and West Publishing Company.

The marriage of Peggy C. G. Schaplow, n/k/a Peggy C. Gander

(Peggy) and Terry Schaplow (Terry) was dissolved in May 1991
pursuant to a decree issued by the Eighteenth Judicial District

Court, Gallatin County. Peggy appeals from the court's order

establishing a custody and visitation schedule and removing her

"primary residential custodian" status, and from the court's order

finding her in contempt.

We affirm.

We review the following issues:

1. Did the District Court err in "modifying" the parties'

existing custody and visitation arrangement?

2. Did the District Court err in ordering that the parties'

two children continue their religious training?

3. Did the District Court err in finding Peggy in contempt?

INTRODUCTION

This case is about two capable adults who have made a number

of failed attempts to manage on their own the custodial

arrangements of their children. Upon the dissolution of their

marriage, Terry and Peggy tried what they have termed a "non-

2
traditional" approach to custody and visitation, where scheduling

was subject only to their negotiations, not to the provisions of a
court 'decree or order. However, since the inception of this "non-

traditional" approach, a period of about four years, the parties
have argued incessantly, privately and in court, about nearly every

aspect of the daily interrelationship between each of their own

lives and their children's lives. The record establishes a pattern
in which the parties seek assistance, disregard the recommendations
given, and then seek assistance again. This dispute, at once
impressive and irrational in its detail and intensity, was

presented to the District Court for an ultimate resolution. Peggy,

who requested that the District Court solve the scheduling problem

"once and for all," ~disapproves of the resolution given.

FACTS

Terry and Peggy were married in Bozeman, Montana in June 1977.

The couple have two children: Jesse, born July 15, 1981; and Jay,

born May 29, 1984. Terry and Peggy separated in September 1989,

and their marriage was dissolved in May 1991, pursuant to a decree

issued by the Eighteenth Judicial District Court, Gallatin County.

The court's decree incorporated the parties' Separation, Custody,
and Property Settlement Agreement, which provided for joint custody

of Jesse and Jay and designated Peggy as the primary residential

custodian. The Agreement also provided a detailed custody and

visitation schedule for the period June 6, 1991 to June 15, 1992;

this schedule was subject to mutual modification by the parties.

In addition, the Agreement provided that upon the termination of

3
the time period covered by the custody schedule, "the parties will
evaluate future schedules with consultation with Dr. [Charles]
Kelly [a clinical psychologist retained by the parties to make a
custody evaluation]. If the parties are unable to resolve the
future schedule with Dr. Kelly, then the parties agree to mediate
any disputes in a format suggested by Dr. Kelly and agreed to by
the parties."
Although the parties themselves created the initial custody
schedule, they had difficulties in adhering to it almost
immediately after its adoption by the court. It is quite apparent
from the record that one of the main reasons that such a detailed
schedule was created in the first place, and why, ultimately,
strict compliance with the schedule was difficult, was the fact
that each parent was actively involved in a number of activities
with the children. Terry, a former high school and college
basketball player, encouraged his two sons to become involved in
all sports, but especially baseball and basketball. He at
different times coached each of his sons, and made every effort to
enroll the boys in various sports camps and programs. Peggy, it is
evident from the record, has a great fondness for snow skiing, and
encouraged the boys to undertake that sport. Peggy enrolled Jesse
and Jay in a number of ski programs in the Bozeman area. In
addition, when Peggy and Terry were married, they decided together
that the boys would attend Sunday school classes at the First
Presbyterian Church in Bozeman, and would receive weekly Taekwondo
instruction. Not surprisingly, the different activities' schedules

4
conflicted with each other, with the temporary custody and
visitation schedule established in the dissolution decree, and with
a subsequent custody and visitation schedule created by the

parties.

Although the parties agreed to a schedule in January 1992 that

generally provided Terry custody of the boys three days per week

and Peggy custody of the boys four days per week, a schedule which

remained in effect for nearly three years, the parties were unable
to resolve, amicably or otherwise, the inevitable problems that

periodically arose because of the conflicting schedules of the
boys' various activities. Each party had begun to "claim" certain
activities, so that difficult situations were created if, for

example, ski class conflicted with a basketball game, or if one
parent's "claimed" activity fell on a day that the other parent had

custody of the children. Both Terry and Peggy began seeking court

assistance to resolve these disputes, most of which had reached a

fevered pitch. (With respect to a dispute regarding the

relationship between custody and one of the boys' participation in

a youth baseball league, the court was presented with evidence that

the boy's batting average while in Terry's custody was four times
higher than it was while in Peggy's custody.) The court issued

orders which variously provided for and required the boys'

participation in ski programs; baseball and basketball practices,
camps, and games; and Sunday school.

The court's periodic, "stop-gap" rulings concerning the

minutiae of the parties' daily lives and their children's daily

5
lives did not fully solve the scheduling problems. Eventually,
Peggy filed motions for final determination of visitation rights

and contempt, and Terry filed a counter motion for contempt, all of
which were heard by the court on October 20 and 21, 1994. The
District Court issued its order on December 16, 1994, which
provided, in pertinent part, that Terry and Peggy would remain
joint custodians of the boys, and that neither party would be
considered the primary residential custodian; that during the
school year the parties would alternate custody of the children on
a weekly basis; that each party would have custody of the children
for one half of the summer; that custody of the children on the
various national and school holidays was divided nearly equally
between Terry and Peggy; and, that each parent ensure that the
children participate in the aforementioned athletic and religious
activities. The court found Peggy in contempt for failing to make
the boys available for Sunday school on three occasions, but
suspended the $500 contempt fine and declared that Peggy "may purge
herself of the contempt charge provided there are no violations of
the Court's order herein for one year." The court stated in its
order that it "considered each appropriate factor in Section 40-4-
212, MCA and finds that it is in the best interests of the minor
children that the following custody schedule and orders incidental
thereto be followed[. I” Peggy alleges a number of errors in the

court's December 16, 1994 order, and these allegations of error

form part of the basis for her appeal here.
 Not long after the court's order was filed, each party began
filing motions alleging that the other was in contempt for failing
to abide by the order. The court considered testimony in support
of the motions during two hearings, on September 28, 1995 and
.December 28, 1995. The court issued an order January 2, 1996,
which did not find either party in contempt but did require Peggy
to ensure the boys' attendance at sports practices. The court
issued a second order on January 8, 1996, holding Peggy in contempt
for violating the original dissolution decree by failing to provide
Terry with a 1995 IRS form relating to claiming one of the boys as
a dependent, and for violating the December 16 order by failing to
get the boys to various sports practices. The court applied to
Peggy the $500 fine which it had suspended in the December 16
order. Peggy's allegations of error in the court's contempt order
form the other basis for her appeal here. Although Peggy filed a
notice of appeal to this Court from the District Court's December

16, 1994 order prior to the institution of the contempt
proceedings, we have allowed Peggy to appeal both the December 1994
order and the January 1996 contempt order in one action.
ISSUE ONE
Did the District Court err in "modifying" the parties'
existing custody and visitation arrangement?
In Issue One, Peggy raises three jurisdictional challenges.

Peggy first argues that because there was no motion for
modification before the court, the court was without jurisdiction
to modify the parties' existing custody arrangement as it did in
 its December 16, 1994 order. Peggy contends that the court
improperly modified the custody arrangement as contained in the

original decree by removing her "primary custodian" status. pew
alleges that she requested that the court merely "clarify" matters,

noting that her motion before the court was entitled "Motion for

Final Determination of Visitation Rights," and that the court

recognized the purpose of this document when it stated "The central

issue before the Court is Petitioner's Motion for Final
Determination of Visitation Rights."

While we are well aware of the firmly established rule that a

district court may not rule on matters other than those presented

by the pleadings, In re Custody of C.S.F. (1988), 232 Mont. 204,

209, 7'55 P.2d 578, 581, we cannot glean from the circumstances here

a violation of this rule by the District Court. The court's

December 16, 1994 order did indeed remove Peggy's "primary

residential custodian" status, but this alone did not constitute an

improper modification of the original custody determination, nor

did it constitute a,ruling on a matter beyond the pleadings. The

parties have had great difficulty creating a workable, permanent

visitation schedule. Neither mediation nor periodic judicial

intervention into isolated issues has successfully solved the

visitation problem. Peggy finally pleaded with the court in her

.motion for final determination of visitation rights to "once and

for all, establish a proper visitation schedule. ... A final

determination of visitation rights of the parties, specifically a

simplified visitation schedule, is in the best interests of the

8
children." The parties submitted briefs and proposed visitation

schedules. The court heard testimony concerning the various

alleged causes of the visitation problems, including testimony from
Terry that Peggy had used her "primary custodian" status to derail

previous attempts at creating or maintaining visitation
arrangements. On the basis of testimony presented at the hearings,

and the briefs and proposed visitation schedules presented by the

parties, the court ordered that the parties follow the court's

specific visitation schedule which provided for nearly equal time

with the boys, and that neither party be considered the "primary
custodian," a title which had led to visitation problems in the

past. The court was asked to resolve a difficult visitation

problem, and the provisions of the court's order, including the
removal of "primary custodian" status, manifest the court's attempt

to do so. To the extent that Peggy has characterized the situation

differently, we disagree. There was no District Court error here.

With respect to her second argument, Peggy contends that the

court erred by not applying the jurisdictional prerequisite

requirements of 5 40-4-219, MCA, prior to modifying the decree.

Peggy claims that the court's December 16, 1994 order, establishing

a new visitation schedule and removing her "primary custodian"

status, was a modification which, in the words of this Court's

opinion in In re Marriage of Johnson .(1994), 266 Mont. 158, 166,

879 P.2d 689, 694, "haId the effect of substantially changing the

primary residence of the parties' children, even though the formal

designation of 'joint custody' [was1 retained." Peggy claims that

9
under these circumstances, Johnson requires that the requirements
of § 40-4-219, MCA, must be met before the court may engage in a
custody modification. Johnson, 079 P.2d at 694. Peggy argues that
the court erred by modifying the parties' visitation and custody
arrangement according to § 40-4-212, MCA (the "best interest
test") , before conducting a jurisdictional analysis under s; 40-6
219, MCA. We cannot agree with Peggy's second argument.
Johnson states, in pertinent part:
Motions or petitions to modify a sole custody
provision or terminate a joint custody provision must
satisfy the jurisdictional prerequisites set forth in §
40-4-219, MCA. Likewise, a motion or petition to modify
child custody provisions in a dissolution decree which
have the effect of substantially changing the primary
residence of the parties' children, even though the
formal designation of "joint custody" is retained, are to
be construed as motions or petitions to terminate joint
custody and must satisfy the jurisdictional requirements
set forth in S 40-4-219, MCA. Any effort to modify the
physical custody arrangements in a decree which provided
for joint custody, which does not seek a substantial
change in the children's primary residence, may be
considered by the district court according to the best
interest standard set forth in § 40-4-212, MCA.

Johnson, 879 P.2d at 694 (emphasis added). The court here was
requested to resolve a bitter, ongoing visitation scheduling
dispute; the court's resolution did not "have the effect of
substantially changing the primary residence of the parties'
children," nor, for that matter, did it have the effect of
modifying the decree, save for the removal of Peggy's title of
primary custodian. At the time of the hearing on this matter,
there existed between the parties a visitation schedule, created by
themselves without direction from the court or the original decree,

10
that provided that during the school year Peggy and Terry would
divide weekly custody of the boys according to a four day/three day
split. As well, each of the parties had had custody of the boys
for roughly half of the previous summer. The relevant portions of
the court's order provided that the parties would alternate full
weekly custody of the boys during the school year, and that each of
the parties would have custody of the boys for half of the summer.
The order also provided for a nearly equal division of custody on
holidays. Finally, the order provided that neither party would
maintain "primary custodian" status. These provisions have little
to do with, let alone substantially change, "the primary residence
of the parties' children." To the contrary, the court's order
essentially maintains the number of days the boys were spending at
each parent's home under the existing visitation schedule. Section
40-4-219, MCA, is inapplicable here. There was no District Court
error,
Peggy's third argument under Issue One is that the court erred
in modifying the custody and visitation arrangement because Terry
did not first file an affidavit in support of modification, as
required by § 40-4-220, MCA. The statute provides:

(1) A party seeking a temporary custody order or
modification of a custody decree shall submit, together
with his moving papers, an affidavit setting forth facts
supporting the requested order or modification and shall
give notice, together with a copy of his affidavit, to
other parties to the proceeding, who may file opposing
affidavits. The court shall deny the motion unless it
finds that adequate cause for hearing the motion is
established by the affidavits, in which case it shall set
a date for hearing on an order to show cause why the
requested order or modification should not be granted.

11
Peggy's argument is misguided, as the provisions of § 40-4-220,
MCA, are inapplicable here. First, it is the moving party that
must comply with the affidavit requirement; in this case, that was

Peggy I not Terry, Second, the statute contemplates a situation
where a party requests that the court modify the custody decree;
here, such relief was neither requested nor given. To reiterate,
at the time of the hearing the parties, while bound by the initial
custody decree to the extent that it provided for joint custody and
designated Peggy as the primary custodian, were and had been
subject to a custody and visitation arrangement largely created by
themselves; in any event, the parties had long since left behind
the temporary schedule set out in the decree. The relief sought,
and the relief given, did not involve a modification of the
original decree because the decree no longer controlled the
parties' custody and visitation scheduling arrangements. And,
pursuant to our discussion of the purpose and effect of the court's
removal of Peggy's title as primary custodian, we cannot see how
the court's action in that regard would have first required its
perusal of a § 40-4-220, MCA, affidavit. Contrary to Peggy's third
argument, the court did not commit reversible error.
ISSUE TWO
Did the District Court err in ordering that the parties' two
children continue their religious training?
Peggy has two bases for her allegation of error with respect
to Issue Two: Peggy first contends that the court's order requiring
the boys' weekly attendance at First Presbyterian Church in Bozeman

12
violated 5 40-4-218(l), MCA, in that the court's order infringed on

her custodial rights; Peggy also contends that in requiring the
boys to attend "Terry's" church, the court's order violated her
First Amendment religious rights.

Section 40-4-218(l), MCA, provides:

Except as otherwise agreed by the parties in writing at
the time of the custody decree, the custodian may
determine the child's upbringing, including his
education, health care, and religious training, unless
the court after hearing finds, upon motion by the
noncustodial parent, that in the absence of a specific
limitation of the custodian's authority, the child's
physical health would be endangered or his emotional
development significantly impaired. (Emphasis added.)

Peggy contends that this statute authorizes her, not Terry or the

court, to make decisions regarding the boys' religious training
while they are in her custody. However, under the circumstances of

this case, the boys' religious training is indistinct from the

boys' basketball training, baseball training, or ski training, in
the respect that whatever importance it may once have had to the

parties and their children was completely overshadowed by its

status as a fiercely contended scheduling issue. The parties'

difficulty in coordinating, without intermittent and consistent

strife, their schedules and the boys' schedules had reached a peak
by the time the District Court was requested to resolve these

matters. "[Dlistrict courts have broad powers to determine all

problems concerning custody and visitation." In re Marriage of
Hunt (1994), 264 Mont. 159, 164, 870 P.2d 720, 723. Both parties

have repeatedly sought judicial and other intervention into their

daily lives in hopes of resolving their scheduling problems.
13
Peggy's claim now that the District Court is improperly interfering

with her parental rights to raise her child as she wishes is
completely disingenuous. The court attempted to resolve one aspect
of the parties' custody and visitation problem by requiring the
boys' attendance at "Sunday School and/or Church Services each
Sunday that the custodial parent is not out of town." We do not
agree with Peggy's first contention. The court did not err.

Peggy's second contention here is that the court's order
requiring the boys' weekly attendance at the First Presbyterian
Church in Bozeman violated her First Amendment religious rights.
Peggy states that while Terry prefers the First Presbyterian
Church, and while she used to attend that church, she no longer
feels comfortable going there. Peggy argues that the court, in
forcing the boys to attend "Terry's" church while they are in her
custody, is in effect choosing between the parties' conflicting
religious beliefs. Peggy cites a number of cases which indicate
that courts are reluctant to get involved in conflicts regarding
the religious training of children. See, e.g., MUrIO v. Munoz

(1971), 79 Wash.2d 810, 489 P.2d 1133; Angel v. Angel (Ohio C.P.
1956), 140 N.E.2d 86; Khalsa v. Khalsa, 107 N.M. 31, 751 P.2d 715.
However, the. record does not reveal any conflict of religions
between Terry and Peggy, only, again, a conflict regarding custody

and visitation scheduling. The District Court did not violate
Peggy's First Amendment religious rights by ordering the boys'

church attendance at First Presbyterian.

14
 ISSUE THREE
Did the District Court err in finding Peggy in contempt?
By order dated June 11, 1996, this Court granted Peggy's
request to consolidate her appeal of the District Court's January
1996 orders finding her in contempt with her previously filed
appeal of the court's December 1994 custody and visitation order.
Also in that June 11, 1996 order, we stated that "[olur review of
contempt orders in family law cases is limited to whether the
district court acted within its jurisdiction and whether the
evidence supports the contempt" (citing In re Marriage of Bayer
(1995), 274 Mont. 282, 289, 908 P.2d 665, 669; In re Marriage of
Dreesbach (1994), 265 Mont. 216, 224, 875 P.2d 1018, 1023; In re
Marriage of Sullivan (19931, 258 Mont. 531, 539-40, 853 P.2d 1194,
1200). Terry and Peggy do not dispute the District Court's
jurisdiction over the contempt matters. Therefore, the only issue
here is whether the District Court's findings of contempt were
supported by the evidence.
Peggy argues that the court's January 8, 1996 order finding
her in contempt for failing to get the boys to sports practices and
for failing to provide Terry with an IRS dependent exemption waiver
form was not supported by the evidence. To the contrary, we

conclude that the evidence supports the court's findings. The

court states, at finding number 11:
The December 16, 1994 Order provides, in part:
"When the boys are with Petitioner, she shall insure that
the boys attend the sports activities they participate
in..."

15
At finding number 6, the court states:
The parties' Separation, Custody and Property Settlement
agreement provides in part:
"The parties agree that for 1990 and all years
thereafter, each will claim one (1) of the children
as dependents (Jesse by Husband and Jay by Wife)
unless otherwise ordered by the Court and both
parties agree to execute appropriate IRS forms to
accomplish this."
and this provision was incorporated into the original
divorce decree.

Peggy does not dispute that she failed on various occasions in 1995
to get the boys to their respective sports activities. At the
December 1995 hearing which preceded the court's January 8, 1996
order, Peggy offered explanations as to why she had not gotten the
boys to their activities; Terry, in turn, testified to the effect
that Peggy's explanations were not valid. With respect to this
conflicting testimony, we note that a court may properly give more
weight to one party's evidence than to the other party's evidence.
See, In re the Marriage of Rolfe (1985), 216 Mont. 39, 44-45, 699
P.2d 7.9, 82. The court concluded that Peggy's failures to get the
boys to their respective sports activities constituted violations
of the December 16, 1994 order, and found Peggy in contempt. This
finding of contempt is supported by the evidence.
With respect to the IRS form, Peggy's argument focuses mainly
on the court's finding that Terry had suffered a penalty, levied by
the IRS, as a result of her failure to give him the form before his
taxes were due on April 15; she contends that finding was not
supported by the evidence. This focus is misplaced. The court did

16
not need to find that Terry had suffered an adverse consequence as

a result of Peggy's violation of the decree in order to find Peggy
in contempt for violating the decree.

Peggy was required to annually provide Terry with a signed IRS

form which would allow Terry to claim one of the children as a

dependent on his tax forms. Peggy did not provide Terry the form

by April 15, 1995, and in fact did not provide the form until

requested to do so by the court at the September 28, 1995 contempt

hearing. There was conflicting evidence presented concerning

whether the form was available to Terry prior to April 15, 1995,

but again, a court may properly give one party's evidence more
weight than the other party's evidence. The court concluded that

Peggy violated the dissolution decree by failing to provide Terry

the IRS form in a timely manner, and found her in contempt. This
finding of contempt is supported by the evidence.

Peggy also argues that the court erred by adopting, verbatim,

Terry's proposed findings as its own. A court's verbatim adoption
of proposed findings does not "constitute error per se." In re

Marriage of Nikolaisen (19931, 257 Mont. 1, 5, 847 P.2d 287, 289.
We set out the following test in Nikolaisen:

When reviewing the adequacy of the findings of fact and
conclusions of law, we examine whether they are
sufficiently comprehensive and pertinent to provide a
basis for a decision, and whether they are supported by
substantial evidence.

Nikolaisen, 847 P.2d at 289 (citation omitted). The court's eleven

pages of findings and conclusions regarding the parties' contempt

motions are comprehensive, pertinent to the issues raised, and, as

17
 supported by substantial evidence. The
we have already discussed,
court did not err in adopting verbatim Terry's proposed findings.
Affirmed.

We Concur: h

18