                             No.    91-560
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1992


IN RE THE MARRIAGE OF
SHARIE MARIE COGAR,
           Petitioner and Appellant,
     and
NICKEY EUGENE COGAR,
           Respondent and Respondent.



APPEAL FROM:    District Court of the Fourth Judicial District,
                In and for the County of Missoula,
                The Honorable Ed Mc Lean, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
                Carol J. Everly, Attorney at Law, Missoula, Montana.
           For Respondent:
                F. R. Randy Harrison, Attorney at Law, Missoula,
                Montana.


                             Submitted on Briefs:   February 13, 1992
                                          ~ ~ ~ i dMarch :
                                                    ~ d 24, 1992
Filed:
Justice Fsed J. Weber delivered the Opinion of the Court.

     Pursuant to their decree of dissolution, Sharie Marie Cogar
and Nickey Eugene Cogar were awarded joint custody of their two
minor children with Mrs. Cogar as primary caretaker. Subsequently,
Mr. Cogar moved for modification of joint custody of the children
to sole custody in his care.      The District Court for the Fourth
Judicial District, Missoula County, entered a temporary custody
order granting Mr. Cogar temporary sale custody.       The next day,
Mrs. Cogar moved to quash the temporary order, The District Court
granted her motion and ordered a custody evaluation and a chemical
dependency evaluation of Mrs. Cogar. After considering the results
of those evaluations and interviewing the children, the District
Court issued an order continuing joint custody with Mrs. Cogar as
the primary custodian but amending the visitation schedule. Mrs.
Cogar appeals from the District Court's        order   amending the
visitation schedule.      We affirm.

     We restate the issue as follows:
     Did the District Court abuse its discretion when it denied the
motion for sole custody but modified the existing visitation
schedule?
     The marriage of Sharie and Nickey Cogar was dissolved on June
2, 1989.    The parties agreed to share joint custody of their two
minor children with Mrs. Cogar as the primary caretaker. A minimum
visitation schedule was agreed to and incorporated into the decree
of dissolution.     Mr.    Cogargs visitation was to include as a

minimum: (1) two consecutive days and one over night visit each and
every week; (2) alternating weekends commencing at    5:00   p.m. Friday
evening and ending at 6:00 p.m. Sunday evening; (3) alternating
visitation on the holidays of Memorial Day, Labor Day, Fourth of
July, ~hanksgiving and Easter.       Mrs. Cogar was to have every
Christmas and Mr. Cogar was to have every Christmas eve; and (4)
Mr. Cogar was to have the children six weeks of the summer
beginning one week after school recessed for the summer.
     In October of 1989, Mr. Cogar moved the court to modify child
custody and name him as primary custodian. He based his motions on
allegations that changed circumstances would make it in the
children's best interests to reside primarily with him.        The court
authorized the appointment of a guardian ad litem for the children
and ordered that the children undergo an evaluation by counselors
at the Mental Health Center.
     The children were evaluated by Dr. Sandra Rahrer.        Dr. Rahrer
recommended that the visitation arrangement then in effect be
maintained.
     On April 2, 1991, Mr. Cogar filed another motion for sole
custody in which he alleged that Mrs. Cogar had been arrested for
driving under the influence; that she had no valid driver's
license, vehicle license or liability insurance; that she had moved
the children five times in a two year period; that she had been
treated for alcoholism; and that their son had been retained in
kindergarten due to excessive absences.
     The D i s t r i c t Court issued an ex p a r t e order of temporary
custody.   The next day, Mrs. Cogar moved the court to quash the
temporary custody order. A hearing was held on April 5, 1991. At
the hearing, Judge McLean questioned the children in his chambers
as to custody and visitation.
    The court granted Mrs. Cogartsmotion to quash the temporary
custody order.   However, it ordered a new custody evaluation and
ordered Mrs. Cogar to undergo a chemical dependency evaluation. It
further ordered that the parties share the physical custody of
their children on a weekly basis     -- one parent would keep the
children for one week and then alternate so that the other parent
would keep the children for one week.
     A follow-up hearing was held on August 21, 1991, in which the

court considered the results of the custody evaluation done by Dr.
Philip Bornstein and Dr. Marcy Bornstein. Some of the Bornsteinsf
conclusions follow:
          4.   Emotionally, [the children] are in need of
     nurturance, affection, understanding, and a reduction of
     interparental judgmental attitudes. To best accomplish
     this, they must be assured of continuing contact with
     both parents.


     As evaluators, we have considered the best interests of
     the minor children by evaluating their desires, the
     desires of their parents, the childrens' relationship to
     each parent, and the childrensf current adjustment to
     home, school, and community. Indeed, reviewing all data
     presented above, this examiner finds that the awarding of
     joint custody continues to be in the best interests of
     [the children].


          6.   Thus, given the above findings, this examiner
     believes there is little reason to change the visitation
     schedule as originally prescribed in the June 2, 1989
     Decree of Dissolution.  . . .
         8.   Mr. and Mrs. Cogar should agree upon the
    following:
         A. The sharing of time with children during
         holidays, vacations, etc., should be as e w a l
         as possible.
         B. Once a schedule is put into effect, that
         schedule should be followed as closely as
         possible.


    Reqardless of residential plan, the principle of joint
    custody provides assurance that both parents can remain
    siqnificantlv involved in all substantive matters that
    have impact upon the children. (Emphasis added).
After considering the Bornsteinsl evaluation, the District Court

decided to have the parties follow the residential plan known as
             PlanH. The court described the plan as follows:
the ilAckerman
         THE COURT: It is known as the 9/4 (sic), 10/5 (sic)
    Plan, Sharie will have the children during the school
    year on a 9/5 basis. During the summer, Nick will have
    the summer on a 10/4 basis. You can take a look at this
    plan and draw it up.
          The 9/5 plan during the school year means that
     Sharie will have the children nine out of fourteen days
     and Nick will have them five out of the fourteen days.
     During the summertime that changes to where Nick has the
     children ten days out of the fourteen and Sharie has them
     four days out of the fourteen.
           The way it works is on the 9/5 plan, he will have
     theme, like, three days one week and two days the next,
     or four days one week and one week the next. He will
     have them Thursday, Friday, Saturday, and Sunday of one
     week.    The following week he will have them on a
     Saturday.
          Sharie will have them the remainder of the time.
     During Christmas vacation he will have them for two
     weeks; during Thanksgiving and Easter vacation he will
     have them one week. ~uringthe summer months -- summer
     means it begins the day after school gets out and ends
     the day before school starts -- Nick will have the
     children ten out of every fourteen days, with Sharie
     having the children for a three-day weekend one week and
     overnight the alternate week.
         The way this will end up is Sharie will wind up with
    the children approximately twenty days more per year than
    Nick will have, when it all comes out in the wash. This
    plan is meant to address the jumping back and forth where
    we are talking about the stability for the child's
    benefit.
Mrs. Cogar appeals from the District Court's imposition of the
Ackerman plan.
     Did the District Court abuse its discretion when it denied the
motion for sole custody but modified the existing visitation
schedule?
     In his motion to modify custody dated April 2, 1991, Mr. Cogar
sought to be awarded the sole custody of his children pursuant to
5 40-4-219, MCA.   That motion was denied by the District Court.
Instead, the District Court modified the visitation time that the
parents spent with their children. Mrs. Cogar maintains that since
a change in visitation time was not the issue before the court, it
erred in modifying it. She maintains that the District Court would
have had to have shown serious endangerment to the children before
it could modify visitation.
     Mr. Cogar maintains that a change in visitation time does not
amount to a change in "custodyw under   §   40-4-219,   MCA, when the
parties retained joint custody.   We agree.
     Section 40-4-219, MCA, provides that the court may in its
discretion modify a prior custody decree if it finds (1) that a
change has occurred in the circumstances of the child and that the
modification is necessary to serve the best interest of the child;
and (2) if it further finds that the child's present environment
endangers seriously his physical, mental, moral, or emotional
                                  6
health and the harm likely to be caused by a change of environment
is outweighed by its advantages to him, After considering custody
evaluations, the children's wishes and a chemical dependency
evaluation, the ~istrictCourt determined that it was in the best
interest of the children to continue joint custody.     In the same
order, the District Court modified the visitation schedule by
instigating the Ackeman Plan of visitation.
     As evidenced by the statutes, custody and visitation are not
the same thing. Under   40-4-218,   MCA, the custodian has the right
to determine the child's upbringing, including his education,
health care and religious training, unless there is a specific
limitation on his authority.   We are not dealing with an issue of
custody here but rather an issue of visitation.          Under the
provisions of 5 40-4-217, MCA, a parent not granted custody of a
child is entitled to reasonable visitation rights and the district
court may modify Wisitation rights whenever modification would
serve the best interest of the ~hild[ren]~~.
                                           The statute further
provides that "the court may not restrict a parent's visitation
rights unless it finds that the visitation would endanger seriously
the child's physical, mental, moral, or emotional health".
     The District Court here concluded that joint custody was still
appropriate and continued the original joint custody provision.
The court did not restrict either parent's visitation, The court
stated that the Ackerman Plan was meant to "address the jumping
back and forth where we are talking about the stability for the
child's benefit."   The court further stated:      "1 have read the
children's    feelings.         I'm   doing what     I think is in the best

interests of the children."           Acting under the specific provisions

of   §   40-4-217, MCA, the District Court modified the visitation

plan.        We   hold   that    the District       Court   did   not   abuse   its

discretion in the modification of the visitation plan.


                                                L




             Justices
Justice Karla M. Gray, dissenting.


     I respectfully dissent from the majority opinion.        It is my
view that the District Court abused its discretion in imposing a
significantly revised visitation schedule where neither party
requested modification of visitation and no evidence on the record
supports the court's action.
     The majority correctly notes that the District Court imposed
the ltAckerman
             Plan" subsequent to an August 21, 1991, hearing and
that the court states that it considered the results of the custody
evaluation done by Drs. Bornstein. The District Court did not cite
to the Bornstein report, however, in support of its imposition of
the new visitation schedule; the majority attempts to do so to
avoid finding an abuse of discretion.
     It is my view that the majority's efforts in this regard are
in error, as a clear reading of the report and the majority's
quotations from it indicate. First, the cited portions relating to
continued contact with both parents and continued joint custody
being in the best interests of the children have nothing whatsoever
to do with the matter of substantially revising the visitation
schedule.   Next, the majority quotes, but does not highlight the
Bornsteinst conclusion that "there is little reason to change the
visitation schedule as originally prescribed.   ..   .Ir   The majority
goes on to quote the Bornsteinst recommendation that holiday and
vacation time should be shared "as equal as possible."           It is
important to note the limited scope of this recommendation; no
recommendation is made that all of the childrenFstime be shared as

                                 9
equally as possible (which is the ultimate result of the court's
imposition of the "Ackerman Plan*'),but only that vacation times be
so shared.   Finally, the majority highlights a statement from the
Bornsteins' report relating only to the importance of continuing
joint custody, which was the question before the District Court,
and not to revising the visitation schedule. Absolutely nothing in
the Bornsteins' report supports the court's imposition of the
"Ackerman Plan.
      The majority then goes on to quote from the District Court's
explanation of that Plan, including the notion that the "plan is
meant to address the jumping back and forth where we are talking
about the stability for the child's benefit." A more "jumping back
and   forthM schedule disruptive to the children's stability,
particularly in light of the recommendations from the Bornsteins,
hardly can be imagined.
      I agree with the majority that, pursuant to 5 40-4-217(3),
MCA, a court can modify visitation rights when it "would serve the
best interest of the child[ren] .It   Nothing on the record before the
District Court or this Court supports the notion that the imposed
visitation plan is in the children's best interest; nor does the
District Court make any findings regarding the children's best
interests insofar as this visitation plan is concerned.
      I would hold that the District Court abused its discretion.
