Marriage of Huotari, In re

• Decision Date: 26 August 1997
• Docket Number: No. 97-174,97-174
• Citation: 54 St.Rep. 884,284 Mont. 285,943 P.2d 1295
• Parties: In re the MARRIAGE OF Jeffrey Wilford HUOTARI, Petitioner and Appellant, and Brenda Marie Huotari n/k/a Brenda M. Copeland, Respondent and Respondent.
• Court: Montana Supreme Court

Page 1295

943 P.2d 1295

284 Mont. 285

In re the MARRIAGE OF Jeffrey Wilford HUOTARI, Petitioner

and Appellant,

and

Brenda Marie Huotari n/k/a Brenda M. Copeland, Respondent

and Respondent.

No. 97-174.

Supreme Court of Montana.

Submitted on Briefs July 31, 1997.

Decided Aug. 26, 1997.

David N. Hull, Helena, for Petitioner and Appellant.

Dennis G. Loveless, Helena, for Respondent and Respondent.

GRAY, Justice.

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 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.

could Brenda move Jacob's residence out of Montana without a visitation schedule being established by either agreement or court modification.

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. 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 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 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....