                                   No.     95-014
               IN THE SUPREMECOURT OF THE STATE OF MONTANA
                                         1995


IN RE THE MARRIAGE OF
ROBERTADIRE SCHMIDT,
               Petitioner   and Respondent,
         and
TIMOTHY ALLEN SCHMIDT,
               Respondent   and Appellant.



APPEAL FROM:          District  Court of the Fifth Judicial District,
                      In and for the County of Jefferson,
                      The Honorable Frank M. Davis, Judge presiding.


COUNSEL OF RECORD:
               For Appellant:
                      Linda M. Deola; Reynolds, Motl,        Sherwood
                      & Wright, Helena, Montana
               For Respondent:
                      Bernard   "Ben" Everett; Knight, Dahood,      McLean,
                      Everett   & Dayton, Anaconda, Montana



                                          Submitted   on Briefs:   May 11, 1995
                                                        Decided:   June 6, 1995
Filed:



                                         Clerk
Justice        Karla       M. Gray delivered                     the Opinion             of the Court.

        Timothy          Allen         Schmidt          appeals        from        the    findings           of     fact      and
modification              order         dated      August            29,     1994,        and the            supplemental
modification             order         dated      December 27, 1994,                      entered        by the            Fifth
Judicial         District             Court,      Jefferson            County.           We affirm.
        The sole           issue        on appeal          is whether              the District              Court        abused
its     discretion               in     establishing                 a visitation              schedule              for      the
Schmidt        children.
        The marriage              of Timothy             Allen        (Tim) and Roberta                Dire        (Roberta)
Schmidt          was       dissolved              by      the        District            Court         via         findings,
conclusions             and decree              filed      October           14,      1992.       Tim and Roberta
were awarded             joint         custody          of their           minor      children         Peter        William,

age     6,      and      Janna          DiRe,       age         4.          Roberta        was      designated                the
children's         physical             custodian.           The court             observed       that,           due to the
close        proximity        of the parents'                    residences,             visitation            should         not
be a problem,             and directed             Tim and Roberta                    to implement            liberal         and
reasonable          visitation                 schedules.             In the          event      the     parents            were
unable        to agree           on such a schedule,                       the District           Court            set     forth
Tim's        specific       visitation             rights.
         For      a period              of      approximately                 sixteen          months             after       the

dissolution,             the parties             implemented               a schedule         giving         Tim somewhat
more liberal             visitation              with      the children                than    that       set       forth      by
the court         in the decree.                  In February              1994, Roberta           decreased               those
more liberal             visitation             terms;      by March 1994, Tim was visiting                                 with
the children             only         every     other      weekend.
         Tim filed          a Motion            to Modify            Order      for      Custody and Visitation
                                                                 2
on April           1,     1994,         which       requested            a change           in        the     visitation
schedule           and in        the      designation             of     physical          custodian             based         on
changed circumstances.                       Roberta         responded           to Tim's             motion        and also
moved for          modification.                  The District               Court      scheduled            the motions
for      hearing          on July          27,      1994;         the        Minute      Entry          of     that        date
indicates          that       the      cause was heard                  in chambers             with     both        parties
present       and represented.                       The court               directed       counsel            to     submit
memoranda "confirming                     their      respective              views."       It     appears           that    the
proceeding          was more in the nature                         of a discussion                     meeting        than        a
hearing       and that            no court         reporter            was present.               It     also        appears
that     no one objected                 to proceeding              in such a fashion.
         Having          received        no memoranda, the District                             Court        entered        its
findings       and order              on August        31, 1994,              retaining          joint        custody          of
the     children          with        physical       custody           in Roberta.               Tim's        visitation
was modified             to alternate             weekends,            alternate         holidays            and special
occasions,              and      an     equal      division             of     the      Christmas/New                 Year's
holiday       season each year.
         Tim moved for                  reconsideration                 of     the      court's          findings           and
order.       He pointed               out that      no testimony               was given,             and no evidence
was presented,                 during        the      July        27 proceeding                  in      chambers;             he
asserted          that     the parties             had not been dilatory                         in     responding             to
the      court's         directive          and were planning                        to--and,          indeed,         had a
right      to--submit            their      written         documentation                and positions                before
a      decision          was        made.          Tim       attached            an      affidavit              which          he
characterized              as establishing             that       the existing             custody           arrangement
had proved          harmful           to the children.                  The court        granted            Tim's     motion

                                                              3
to     reconsider           and       directed         counsel        to      pursue         any     necessary
discovery         and advise          when the matter            was ready            for    hearing.
         The District            Court held an evidentiary                   hearing        on Tim's         motion
to     reconsider          on December 14,              1994.         The parties             testified          and
introduced         exhibits.            On December 28, 1994,                    the court         entered       its
supplemental            order     of modification.               Insofar          as is relevant              here,
that     order        modified      the visitation              schedule         ordered         in August        by
adding        visitation           on    alternate          Wednesdays            and       confirming           the
extended         summer visitation               set    forth      in      the     dissolution              decree.
Tim appeals            from both        post-decree          orders        relating         to visitation.
         Did    the   District     Court                    abuse   its   discretion       in
         establishing    the visitation                     schedule ultimately      ordered
         on December 28, 1994?
         As set         forth      above,        the    original           decree        awarded          Tim    and
Roberta       joint      custody        of the children            with       liberal        and reasonable
visitation         in Tim.         In the event             the parties           were unable           to agree
on such visitation,                the court        directed       that       Tim have visitation                 as
follows:
         1.     Two weekends each month from 5:00 p.m.                                  Friday      until       7:00
a.m. Monday;
         2.     equal      division       of the Christmas/New                    Year's      holiday;
         3.     other      holidays       alternating;           and
         4.      at least        30 days'        summer visitation.
No appeal         was taken        from the visitation,                    or any other,            portion       of
the decree.
         The District            Court did modify           visitation           from that         provided       in
the original           decree      in response         to Tim's         and Roberta's            motions.          In

                                                        4
doing        so,     the            court     did      not        adopt        either         parent's         modification
proposal            in        its      entirety.              The visitation                        schedule       ultimately
ordered        on December 28, 1994,                              is       as follows:
        1.         Alternating                weekends from 5:00 p.m. Friday                              until      7:00 p.m.
Sunday;
        2.         equal division                   of the Christmas/New                      Year's      holiday       season,
with    a parent                    having       the     children               for      both        Christmas         Eve and
Christmas           Day in alternating                        years;
        3.         other              holiday           and                special            occasion            visitations
alternating;
        4.         at least                30 days'     summer visitation;                          and
        5.     after            school        visitation               on alternate            Wednesdays until              8:30
p.m.
        We will               overturn         a district               court's         visitation           decision       only
when the           court's             findings         and conclusions                    clearly         demonstrate          an
abuse of discretion.                           In re Marriage                 of Hunt (1994),               264 Mont.        159,
164,    870 P.2d                    720,     723.       The record                before        us reflects            no such
abuse of discretion.
        The District                   Court's        December 28, 1994, visitation                               schedule      is
more expansive                  than that           originally               set forth          in the decree.             While
the weekend visits                          now end on Sunday evenings                                instead        of Monday
mornings,           Tim is             entitled         to two additional                           weekend visits           each
year    by virtue                   of the     "alternating                  weekends"          versus       "two weekends
each      month"               provision.                    In        addition,              the     December          holiday
visitation               is    now expanded to result                            in an equal              division       of the
Christmas/New                  Year's         holiday         "season,"              rather         than a mere division

                                                                       5
of     the    two      holidays.             Moreover,             alternating              "special          occasion
visitations,"              presumably         such events            as the children's                and parents'
birthdays,             have        been      added          where          only        alternating             holiday
visitations            existed        in the decree.               Alternate          Wednesday visitations
from after          school         until     8:30 p.m.           also      are added.
        We previously                have held        that       a visitation              schedule          providing
visitation          on alternating            weekends,            alternate          holidays,        one evening
per week and two weeks in the summer is reasonable.                                                In re Marriage
of Tahija          (1992),         253 Mont.         505, 509,            833 P.2d 1095,              1097;      citing
In re Marriage               of Alt        (1985),        218 Mont.            327,    708 P.2d 258.                 Here,
the District            Court's        visitation          schedule            is more generous              than that
approved        as reasonable               in Marriacre            of Tahiia           and Marriage            of Alt
and Tim has failed                   to establish          that      the schedule             is unreasonable.
Nor does he cite                  any authority            under which              the visitation             granted
is unreasonable.                      Tim argues            that         the    District        Court        erred        in
establishing             the      final      visitation             in     several         ways;      both      of     his
arguments,          however,          begin from a faulty                  premise.          First,     Tim argues
that     under         a     joint         custody         arrangement,               5 40-4-224(2),                  MCA,
requires        that       the allotment            of time between the parents                        be as equal
as     possible.               While       this      argument             may or        may not         have          been
appropriate             in     an appeal            from     the         original          decree,      it      is     not
available        now.        No appeal having                been taken             from the joint            custody,
physical        custody           and visitation             provisions             in the decree,             we will
not    consider            this      argument        in    relation            to     subsequent        visitation
provisions          more advantageous                to Tim than those originally                            set forth
by the court            in the decree.

                                                             6
       Tin's         second argument                is   that         the District             Court's        modified
visitation           schedule      did not take into                    account         the best       interests          of
the    children          in     spending           more tine             with         their       father.            This
argument       apparently              is premised          on an alleged                 right      by Tin to the
visitation           he and Roberta            originally              implemented,               rather     than that
ordered       by the          court.         Under the               facts      of     this       case,      we cannot
agree ;      the      court-ordered                schedule           was established                  to     meet    the
precise        eventuality              upon       which        it      was premised--the                     parents'
inability          to agree       on a reasonable                    visitation           schedule.
       We hold         that      the District              Court        did not abuse its                   discretion
and,      further,        that         the    visitation              schedule           established           for    the
Schmidt       children         is not unreasonable.
       Affirmed.
       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.




We concur:
i




    Justices
