No. 01-614
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 103
IN RE THE MATTER OF
JOHN CALVIN SCHILLER,
Petitioner and Appellant,
v.
AMIE JO SCHILLER,
Respondent and Respondent.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin,
Honorable Mark L. Guenther, Judge Presiding
COUNSEL OF RECORD:
For Appellant:
Edward J. Guza, Drysdale, McLean & Guza, Bozeman, Montana
For Respondent:
Phillip N. Carter, Attorney at Law, Sidney, Montana
Submitted on Briefs: February 7, 2002
Decided: May 16, 2002
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 John Calvin Schiller appeals from the Eighteenth Judicial
District Court’s Amended Temporary Order of Protection. We affirm.
¶2 We re-state the issues on appeal as follows:
¶3 (1) Did the District Court err in failing to issue findings of
fact and conclusions of law?
¶4 (2) Did the District Court err in amending the temporary
order of protection?
¶5 (3) Did the District Court err in refusing to hear evidence of
domestic violence preceding the parties’ marriage?
FACTUAL AND PROCEDURAL BACKGROUND
Comment [COMMENT1]: Tr 4
¶6 John Calvin Schiller (John) and Amie Jo Schiller (Amie) were
Comment [COMMENT2]: Tr 7
married on September 19, 1998. Their only child, Kyle, was born on
April 6, 1999. They reside in Belgrade, Montana.
Comment [COMMENT3]: Tr 4
¶7 On June 16, 2001, John and Amie went to a friend’s wedding in
Comment [COMMENT4]: Tr 5
Miles City. They attended the reception together and then went to Comment [COMMENT5]: Tr 5
Comment [COMMENT6]: Tr 7
a bar in town with friends. John and Amie were staying at John’s
Comment [COMMENT7]: Tr 5-6
parents’ home in Miles City, and his parents took Kyle home earlier
in the evening. Both John and Amie consumed alcohol throughout the
night.
¶8 After going into town, Amie wanted to leave, but John did not.
Comment [COMMENT8]: Tr 7-8
An argument ensued, and John testified that Amie threatened to
return home to Belgrade with Kyle. Amie then left the bar and went
to John’s parents’ home. Around 4:30 a.m., one of the bridesmaids
gave John a ride home. After visiting with the bridesmaid upon
Comment [COMMENT9]: Tr 96
reaching his parents’ home for, according to Amie, approximately Comment [COMMENT10]: Tr 8
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15-20 minutes, John entered the home and a further argument ensued.
Comment [COMMENT11]: Tr 96
Amie testified that John pushed her and called her an “immature
bitch.” Amie admitted that she then hit John in the face twice and
Comment [COMMENT12]: Tr 95-
chipped his tooth. During this time, Kyle was asleep and did not 96
Comment [COMMENT13]: Tr 47
witness the incident. Comment [COMMENT14]: Tr 48
Comment [COMMENT15]: Tr 96
¶9 Three days later, John filed a petition for temporary order of
protection for Kyle and himself in Gallatin County. He alleged
that Amie assaulted and endangered him. He recounted the wedding
incident and also alleged that Amie struck him with a closed fist
before they were married. In addition, he alleged that, on a
previous occasion, Amie “backhanded” Kyle so that he hit his head
on a chair and, on another occasion, she said that Kyle drove her
“so crazy most of the time [she] could just shoot him.” John
alleged that Amie stole prescription drugs from the pharmacy at
which she worked, administered them to Kyle and offered them to
others. The District Court granted John’s petition and prohibited
Amie from contacting both John and Kyle. John then filed a
dissolution action in Gallatin County.
¶10 Pursuant to § 40-15-202(1), MCA, the District Court held a
hearing on June 29, 2001, regarding the temporary order of
protection. John testified regarding his allegations and denied
pushing Amie and calling her names. On John’s behalf, others
testified that Amie had obtained or offered to obtain prescription
medication for them. Amie admitted hitting John and increasing her
Paxil dosage without a prescription, but she denied all of John’s
other allegations. She testified that she had prescriptions for
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the antibiotics that she obtained and administered to Kyle. Amie’s
supervisor at the pharmacy testified that he did not believe that
Amie had stolen drugs from the pharmacy. A letter he wrote prior
to the hearing, which was admitted at the hearing, explained that
the pharmacy permitted employees to obtain uncontrolled
prescription drugs and pay for them later. Employees were required
to record such transactions in a notebook. Amie’s supervisor
stated that she was “up to date” on her transactions.
Comment [COMMENT16]: Tr 141
¶11 After the hearing, the District Court issued an Amended
Temporary Order of Protection (Amended Order) extending the
temporary order of protection for six months as to John.
¶12 The District Court did not find that Kyle was in substantial
danger, and the Amended Order was not extended to Kyle. Rather,
the District Court, recognizing that it was also the court in the
parties’ dissolution action, issued an Interim Child Support Order
and Interim Parenting Plan providing that Kyle would primarily
reside with Amie.
¶13 John appeals the court’s Amended Temporary Order of Protection
to the extent that it did not include Kyle.
DISCUSSION
¶14 (1) Did the District Court err in failing to issue findings
of fact and conclusions of law?
¶15 John claims that the District Court erred in failing to enter
findings of fact and conclusions of law pursuant to Rule 52(a),
M.R.Civ.P. He argues that because there were no findings or
conclusions, it is difficult to ascertain why the District Court
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determined that Kyle was not in need of protection and whether this
decision was erroneous. John requests the case be remanded to the
District Court for findings of fact and conclusions of law. Amie
contends that since the Amended Order expired on December 29, 2001,
remand is unnecessary.
¶16 In all actions tried upon the facts without a jury, the
District Court must find the facts specially and state separately
its conclusions of law. It is sufficient if the findings of fact
and conclusions of law are stated orally and recorded in open court
following the close of the evidence. Rule 52(a), M.R.Civ.P.
¶17 Here, the District Court entered findings of fact and
conclusions of law orally on the record at the close of the
evidence. This is sufficient for purposes of our review. We hold
that the District Court properly issued findings of fact and
conclusions of law pursuant to Rule 52(a), M.R.Civ.P.
¶18 (2) Did the District Court err in amending the temporary order
of protection?
¶19 At the close of evidence, the District Court stated that it
was “not convinced that as a result of two and a half hours of
hearing, that this is an ongoing physical problem between these two
spouses.” Concerning the parenting of Kyle, the court expressed
that it did not hear any testimony indicating that Kyle was in
substantial danger or unreasonably endangered by Amie’s
administration of prescribed antibiotics, and, instead, it stated
that John and Amie had done a reasonably good job of raising Kyle.
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¶20 In direct response to John’s inquiry regarding physical and
chemical abuse pursuant to § 40-4-212 (f), (l), MCA (physical
abuse), and § 40-4-212(g), MCA (chemical abuse), the court stated
that the testimony revealed that both parents had slapped Kyle, and
this did not warrant removing Kyle from either of them. In the
Interim Parenting Plan, the court restricted both parents from
slapping or striking Kyle on the head. With respect to Amie’s
alleged drug abuse, the court found that John had presented no
professional testimony substantiating this claim. The court found
that there was no drug or alcohol abuse by either parent. The
court ordered John and Amie to enroll in parenting classes.
¶21 John claims that the temporary order of protection matter was
essentially a “parenting proceeding,” and, as such, John faults
the District Court for failing to consider the best interests of
Kyle pursuant to § 40-4-212, MCA. In particular, John argues that
the District Court erred in failing to consider the physical abuse
by Amie against John and Amie’s chemical abuse.
¶22 John compares this case to that of Stoneman v. Drollinger,
2000 MT 274, 302 Mont. 107, 14 P.3d 12. In Stoneman, the District
Court found that the father had a history of violence and
convictions for domestic abuse and that the children witnessed his
violent behavior, yet it permitted unsupervised visitation. We
reversed, stating that witnessing domestic violence has a profound
impact on children whether or not they are physically harmed.
Stoneman, ¶ 59.
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¶23 Focusing on the hearing testimony, Amie argues that the
District Court did not fail to ensure Kyle’s best interests in this
case. She insists the District Court properly judged the
credibility of the witnesses in making its decision that there was
no ongoing physical problem between John and Amie and that Kyle was
not in danger of harm. She also points out that, unlike in
Stoneman, there is no history of violence and alcohol abuse in this
case.
¶24 The decision to continue, amend or make permanent an order of
protection is for the District Court to determine, and we will not
overturn its decision absent an abuse of discretion. The Court’s
standard of review for custody and visitation is whether
substantial credible evidence supports the district court’s
judgment, and we will uphold the district court’s findings and
conclusions unless they clearly demonstrate an abuse of discretion.
Stoneman, ¶ 53.
¶25 Upon a showing of good cause, a district court may continue,
amend, or make permanent a temporary order of protection. Section
40-15-202(1), MCA. Contact with a minor may be restricted for an
appropriate amount of time or permanently if the court finds that
the minor was a victim of abuse, a witness to abuse, or endangered
by the environment of abuse. Section 40-15-204(4), MCA.
¶26 We conclude that the District Court properly refused to
restrict Amie’s contact with Kyle in this case. Substantial
credible evidence supports the District Court’s determination that
Kyle was not in substantial danger of harm or unreasonably
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endangered by Amie. Kyle was not a victim of abuse, and there was
no indication that he lived in an environment of abuse. In
contrast to Stoneman, Kyle did not witness abuse between John and
Amie.
¶27 We further conclude that the District Court properly
considered Kyle’s best interests under § 40-4-212, MCA, in
fashioning the Interim Parenting Plan in this case. Despite John’s
contentions, the District Court considered the physical abuse
between John and Amie as required by § 40-4-212(l), MCA.
Substantial credible evidence supports the court’s determination
that there was not an ongoing physical abuse problem and that Kyle
was not physically abused. Furthermore, a complete review of the
record supports the District Court’s conclusion that Amie was not
chemically dependent pursuant to § 40-4-212(g), MCA. We hold that
the District Court properly omitted Kyle from its Amended Order
under §§ 40-15-202 and -204, MCA, and § 40-4-212, MCA.
¶28 (3) Did the District Court err in refusing to hear evidence
of domestic violence preceding the parties’ marriage?
¶29 At the hearing, John attempted to introduce evidence that Amie
assaulted him prior to their marriage. Amie objected on relevance
grounds. The court stated that it had some question as to the
relevance of the incident, and John initiated no further
questioning on this issue.
¶30 John argues that the District Court should have considered
Amie’s assault against John which occurred before their marriage.
Citing § 40-15-102(6), MCA, John claims that the length of time
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between the abusive incident and his application for an order of
protection was irrelevant.
¶31 We agree that the incident of abuse preceding John and Amie’s
marriage was irrelevant as to Kyle. At this point, Kyle was not
born and, of course, did not witness the abuse. We hold that the
District Court did not err in refusing to hear evidence of domestic
violence preceding the parties’ marriage and Kyle’s birth.
¶32 We affirm.
/S/ W. WILLIAM LEAPHART
We Concur:
/S/ KARLA M. GRAY
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
/S/ JIM RICE
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