97-174
No. 97-174
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
IN RE THE MARRIAGE OF
JEFFREY WILFORD HUOTARI,
Petitioner and Appellant,
and
BRENDA MARIE HUOTARI n/k/a
BRENDA M. COPELAND,
Respondent and Respondent.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Broadwater,
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
David N. Hull, Attorney at Law, Helena, Montana
For Respondent:
Dennis G. Loveless, Attorney at Law, Helena, Montana
Submitted on Briefs: July 31, 1997
Decided: August 26, 1997
Filed:
__________________________________________
Clerk
Justice Karla M. Gray delivered the Opinion of the Court.
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This appeal is taken from the findings of fact, conclusions of law and order
entered
by the First Judicial District Court, Broadwater County, on post-dissolution motions
filed
by Jeffrey Wilford Huotari (Jeff) pertaining to child custody and child support. We
affirm in part, reverse in part and remand.
Jeff raises two issues on appeal:
1. Did the District Court abuse its discretion by failing to extend the
temporary
custody order?
2. Did the District Court err in addressing the merits of Jeff's motion to
modify
custody and support?
BACKGROUND
Jeff and Brenda Marie Huotari, now known as Brenda M. Copeland (Brenda),
married in 1988. Their marriage was dissolved on June 17, 1991. The District Court
adopted and incorporated the parties' Property and Child Custody Agreement
(Agreement) in its decree of dissolution and, pursuant thereto, awarded Jeff and
Brenda
joint custody of Jacob, their minor son. Brenda was designated Jacob's primary
residential custodian, subject to reasonable visitation by Jeff. The Agreement also
provided that the parties anticipated that Brenda might be moving from Montana in the
future and, in the event such a move was contemplated, Jeff and Brenda would attempt
to renegotiate a visitation schedule commensurate with the new living arrangements;
absent agreement by the parties, the District Court was authorized to review and
modify
the child custody and visitation provision. In no event could Brenda move Jacob's
residence out of Montana without a visitation schedule being established by either
agreement or court modification.
On July 17, 1996, Jeff moved the District Court to modify the child custody
provisions of the dissolution decree. His supporting affidavit stated that Brenda
had
joined the United States Army, leaving Jacob with him, and that Jacob had been
integrated into his family with Brenda's full knowledge and consent. On the basis
of the
requested modification of custody, Jeff also sought modification of his child support
obligations and of the income tax exemption provision of the decree.
Approximately one month later, Jeff moved for an ex parte temporary custody
order "pursuant to 40-4-219 M.C.A. and 40-4-220(2)(ii) [sic]" and order to show
cause. He asserted that Brenda's mother had taken Jacob from his custody nine weeks
after Brenda left the child with him and that she refused to return the child to
him. Jeff's
supporting affidavit asserted that an immediate change of custody would serve to
protect
the child's physical or emotional health.
The District Court issued a temporary order and order to show cause which
granted Jeff temporary custody of Jacob and scheduled a show cause hearing on the
matter for September 6, 1996. On the day of the hearing, Brenda filed a motion to
dismiss Jeff's July motions relating to modification of custody and support and his
ex
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parte motion for temporary custody. At the conclusion of the hearing, the District
Court
ordered that the temporary custody order would remain in effect until further order
of the
court.
The District Court's findings, conclusions and order were filed on October 30,
1996. In pertinent part, the court determined that it was in Jacob's best interest
that Jeff
retain physical custody for the remainder of the 1996-1997 school year and that Jeff
and
Brenda each would have Jacob for one-half of the summer in 1997; thereafter, Brenda
would resume physical custody of Jacob in accordance with the earlier Agreement and
the decree. The District Court concluded that there was insufficient evidence to
establish
a change in circumstances that seriously endangered Jacob's well-being and that,
notwithstanding the existence of 40-4-219(1)(f), MCA, Jeff had not satisfied the
requirements for modification of custody since Brenda's out-of-state move was
contemplated by the parties' Agreement and the dissolution decree. Jeff appeals.
STANDARD OF REVIEW
We review a district court's findings of fact relating to child custody and
visitation
matters to determine whether the findings are clearly erroneous. In re Marriage of
Dreesbach (1994), 265 Mont. 216, 220-21, 875 P.2d 1018, 1021 (citation omitted). We
will not overturn the district court's decision unless a clear abuse of discretion
is shown.
Marriage of Dreesbach, 875 P.2d at 1021 (citation omitted).
DISCUSSION
1. Did the District Court abuse its discretion by failing to extend the
temporary
custody order?
A party seeking an ex parte temporary custody order must satisfy statutory
requirements. When seeking a temporary assignment of custody ex parte in a case in
which a determination of custody previously has been made, the party must submit an
affidavit showing that "the child's present environment endangers his physical or
emotional health and an immediate change of custody would serve to protect the
child's
physical or emotional health." Section 40-4-220(2)(a)(ii), MCA. If the district
court
finds from the affidavit that the child's physical or emotional health is endangered
and
would be protected by a temporary assignment of custody, the district court must
enter
a temporary custody order; in such an event, the court must require all parties to
appear
and show cause within 20 days why "the court should not restore the child to the
custodian from whom the child was removed by the temporary order." Section 40-4-
220(2)(b), MCA.
Here, Jeff submitted the required affidavit and the District Court entered the
temporary custody order and scheduled the show cause hearing. Under 40-4-220(2)
(b),
MCA, the burden was on Jeff to support a continuation of the temporary change in
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custody he had obtained ex parte. At
the conclusion of the hearing, the District
Court
ordered that the temporary custody order would remain in effect. As a result, Jeff
retained temporary custody of Jacob until the District Court entered its findings,
conclusions and order on October 30, 1996, and, indeed, retained custody pursuant to
the
October order through the end of Jacob's 1996-1997 school year.
Jeff asserts that the District Court erred in failing to extend the temporary
custody
order until a hearing was held on his 40-4-219, MCA, motion to modify custody. He
cites to no legal authority which supports the proposition that a temporary custody
order
obtained ex parte must be continued until a hearing is held on a separate motion to
modify custody and, as a result, we do not address this portion of his argument. See
Rule 23(a)(4), M.R.App.P.
Jeff also contends that Brenda's failure to comply with the 30-day notice
requirement contained in 40-4-217(4) and 40-4-217(5), MCA, was sufficient as a
matter of law to require an extension of the temporary order. This contention is
entirely
without merit.
Section 40-4-217(4), MCA, requires a custodial parent to give written notice to
a
noncustodial parent with visitation rights of his or her intent to change a minor
child's
residence to another state. The purpose of the notice requirement, which must be
given
at least 30 days before the intended change in residence, is "to allow the
noncustodial
parent to seek a modification of the parent's visitation schedule." Section 40-4-217
(5),
MCA. Without regard to whether any nexus exists between this notice requirement and
show cause hearings on temporary custody orders obtained ex parte, 40-4-217(4) and
40-4-217(5), MCA, are inapplicable here. Brenda had not changed Jacob's residence to
another state at the time of the proceedings at issue and, according to the record
before
us, she did not intend to do so within 30 days.
Nor is Jeff's reliance on In re Marriage of Morazan (1989), 237 Mont. 294, 772
P.2d 872, well placed. In that case, we affirmed a district court's issuance of a
temporary restraining order to prevent a parent from removing children from the
jurisdiction of the court pending modification of custody proceedings. Marriage of
Morazan, 772 P.2d at 874. The case did not involve either the notice requirement
contained in 40-2-217(4), MCA, or a show cause hearing on a temporary custody order
obtained ex parte. Moreover, Jeff did not seek a temporary restraining order in
this case.
Marriage of Morazan is inapplicable here.Finally, Jeff's contentions in this regard
aside, we observe that the District Court effectively extended the temporary custody
order
Jeff had obtained ex parte until the summer of 1997 in an effort to avoid further
disruption to Jacob. We hold that the District Court did not abuse its discretion
with
regard to the temporary custody situation.
2. Did the District Court err in addressing the merits of Jeff's motion to
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modify
custody and support?
It is clear that the District Court resolved the merits of Jeff's motion to
modify
custody and support in its order of October 30, 1996, concluding that the 40-4-219,
MCA, requirements for modification were not satisfied. Jeff contends that the
District
Court erred in addressing his motion to modify when the sole purpose of the September
6, 1996, hearing was to determine whether to continue the temporary custody order
Jeff
had obtained ex parte. We agree.
As set forth above, Jeff filed two motions in this case. His first motion,
filed
pursuant to 40-4-219, MCA, was a motion to modify child custody and support. His
second motion, for an ex parte temporary custody order and order to show cause,
necessarily was filed pursuant to 40-4-220(2)(a)(ii), MCA. The District Court
granted
the latter motion and issued an order setting a show cause hearing on "the temporary
order" for September 6, 1996. At that point, it was clear that the show cause
hearing
was limited to determining whether the temporary custody order granted ex parte
should
remain in effect.
Nor did the focus of the hearing change at the hearing. Jeff's counsel opened
the
hearing by stating that the hearing was set "on a temporary order and order to show
cause." The District Court queried "[s]o we are here on temporary custody?" and
Jeff's
counsel responded "your Honor, that being done, we have a[n unrelated] procedural
question" relating to Brenda's motion to dismiss. The subject of the scope of the
hearing
arose again later, when the District Court recapped that Jeff had filed a "second
motion"
and that was "the motion for temporary custody that is being heard here today, is
that
correct?" Jeff's counsel responded in the affirmative. Still later, the District
Court again
inquired "is this a hearing on temporary custody?" Again, Jeff's counsel responded
"[t]hat is correct." Finally, the Minute Entry regarding the hearing indicated that
"[t]his
was the time set for the Order to Show Cause hearing in the above-entitled cause."
On this clear and unambiguous record regarding the scope of the September 6,
1996, hearing, we must conclude that the sole purpose of that hearing was to address
whether the temporary custody order Jeff obtained ex parte was to remain in effect.
Notwithstanding, the District Court's October 30, 1996, findings, conclusions and
order
also denied Jeff's 40-4-219, MCA, motion to modify child custody and support on the
merits.
Brenda attempts to support the District Court's action by arguing that Jeff"s
motion
for temporary custody cited 40-4-219, MCA, as well as 40-4-220, MCA, thereby
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giving "the District Court license to make a determination on the modification of the
custody provisions contained in the decree of dissolution." It is true that Jeff's
motion
for temporary custody and memorandum in support thereof reference the "endangerment"
provision in both statutes. It also is true, however, that the standard to be met
in
seeking temporary custody ex parte where a previous custody determination has been
made is whether the child's present environment endangers his or her physical or
emotional health and an immediate change of custody would protect that health. See
40-4-220(2)(a)(ii), MCA. Thus, while Jeff's motion for an ex parte temporary custody
order and supporting affidavit were not as clear as they might have been, the record
remains clear and unambiguous that the September 6, 1996, hearing was held for the
sole
purpose of determining whether to continue the temporary custody order.
Brenda also contends that the District Court merely "entered an order which
effectively encompassed the entire custody issue by including a ruling on both
motions."
While this contention about what the District Court did is correct, it begs the
question of
whether the District Court acted properly. We conclude that it did not. In marital
cases,
as in other cases, the essential elements of due process are notice and an
opportunity to
be heard. See In re Marriage of Robbins (1985), 219 Mont. 130, 138, 711 P.2d 1347,
1352. Here, Jeff received neither notice nor an opportunity to be heard on his
motion
to modify child custody and support. Thus, while it may be difficult, at best, for
Jeff to
make the showing required for modification of custody under 40-4-219, MCA, the
point is not whether Jeff ultimately can make the requisite showing, but that he
must be
provided a fair opportunity to do so prior to the time a decision is rendered on his
motion
to modify child custody. The procedure utilized by the District Court here, however
well
intentioned, did not provide such an opportunity. By going beyond the matter before
it,
the District Court denied Jeff's right to procedural due process in violation of
Article II,
Section 17 of the Montana Constitution. See Lurie v. Sheriff of Gallatin County
(Mont.
August 14, 1997), No. 97-132, slip op. at 12.
We hold that the District Court abused its discretion in addressing the merits
of
Jeff's motion to modify custody after a hearing held for the sole purpose of
determining
whether the temporary custody order he had obtained ex parte should be continued.
As a result of our conclusion on the second issue in this case, a remand is
necessary for further proceedings on Jeff's motion to modify. During the pendency of
those proceedings, Jacob is to remain in Brenda's primary physical custody in order
to
prevent any unnecessary disruption in the stability of his living arrangements.
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Affirmed in part, reversed in part and remanded for further proceedings
consistent
with this opinion.
/S/ KARLA M. GRAY
We concur:
/S/ WILLIAM E. HUNT, SR.
/S/ JIM REGNIER
/S/ JAMES C. NELSON
/S/ TERRY N. TRIEWEILER
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