                                   Nos.    95-219          and 96-222
                 IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                    1996


IN RE THE MARRIAGE OF
PEGGY C. G. SCHAPLOW,
n/k/a PEGGY C. GANDER,
                Petitioner         and Appellant,
     v.
TERRY SCHAPLOW,
                Respondent         and Respondent.




APPEAL FROM:            District  Court of the Eighteenth  Judicial                      District,
                        In and for the County of Gallatin,
                        The Honorable   Dale Cox, Judge presiding.


COUNSEL OF RECORD:
                For   Appellant:
                        Marcelle    C. Quist,  Kendra K. Anderson,                 Quist,         Bowden
                        & Anderson,     Bozeman, Montana
                For   Respondent:
                        Edmund P. Sedivy,              Sedivy,     Bennett    &White,       Bozeman,
                        Montana


                                          Submitted         on Briefs:       September      19,      1996
                                                               Decided:       December      19,      1996
          ncr     ‘8. g 1996
Justice            William              E.     Hunt,           Sr.,         delivered                 the      Opinion            of        the        Court

           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.

           The marriage                       of     Peggy            C. G. Schaplow,                         n/k/a         Peggy            C.        Gander

(Peggy)            and           Terry             Schaplow              (Terry)               was           dissolved                in      May         1991
pursuant             to     a decree                   issued           by     the         Eighteenth                   Judicial                  District

Court,           Gallatin                   County.                  Peggy          appeals                 from      the        court's                order

establishing                     a custody                   and      visitation                     schedule             and         removing               her

"primary            residential                     custodian"                status,                and from             the     court's               order

finding            her      in        contempt.

          We affirm.

          We review                   the      following                issues:

            1.       Did         the         District                Court          err        in      "modifying"                    the         parties'

existing            custody                 and visitation                     arrangement?

            2.      Did      the            District                Court      err        in        ordering            that           the        parties'

two      children            continue                  their          religious                 training?

            3.      Did          the        District                Court      err        in        finding           Peggy            in     contempt?



                                                                    INTRODUCTION

            This         case          is     about          two      capable             adults              who have            made a number

of       failed             attempts                    to          manage            on            their           own          the          custodial

arrangements                     of         their        children.                    Upon            the       dissolution                       of     their

marriage,                 Terry             and      Peggy            tried          what            they          have         termed             a     "non-

                                                                               2
traditional"                 approach              to     custody               and visitation,                     where         scheduling

was subject              only         to    their         negotiations,                       not     to     the        provisions               of     a
court      'decree           or order.                  However,             since          the     inception              of      this         "non-

traditional"                 approach,               a period                of      about          four      years,            the       parties
have      argued         incessantly,                    privately                 and in court,               about         nearly             every

aspect          of     the      daily            interrelationship                          between            each        of         their       own

lives      and their               children's                  lives.             The record               establishes                a pattern
in which             the parties             seek assistance,                         disregard              the        recommendations
given,          and      then          seek         assistance                     again.            This          dispute,               at     once
impressive               and          irrational                    in       its          detail            and         intensity,                was

presented             to the          District            Court           for       an ultimate               resolution.                      Peggy,

who requested                 that         the      District               Court          solve       the      scheduling                 problem

"once        and for          all,"         ~disapproves                   of       the     resolution                  given.

                                                                         FACTS

          Terry         and Peggy were married                                   in Bozeman,               Montana         in June              1977.

The couple              have        two      children:                   Jesse,        born         July       15,       1981;          and Jay,

born      May 29,             1984.           Terry            and Peggy               separated              in        September               1989,

and their             marriage             was dissolved                     in      May 1991,              pursuant             to     a decree

issued        by the          Eighteenth                 Judicial                District           Court,           Gallatin             County.

The      court's         decree            incorporated                    the       parties'               Separation,                 Custody,
and Property                 Settlement                 Agreement,                 which      provided             for     joint          custody

of      Jesse         and Jay           and designated                       Peggy          as the           primary             residential

custodian.                   The       Agreement                 also        provided               a detailed                  custody            and

visitation              schedule             for         the        period          June       6,     1991         to    June         15,       1992;

this       schedule            was         subject             to       mutual         modification                     by the          parties.

In      addition,             the      Agreement                 provided              that         upon       the       termination                  of


                                                                             3
the time        period         covered         by the custody                   schedule,            "the     parties             will
evaluate         future          schedules            with         consultation                with         Dr.         [Charles]
Kelly       [a clinical            psychologist                retained            by the parties                       to make a
custody         evaluation].               If        the     parties            are     unable         to         resolve             the
future      schedule            with    Dr.     Kelly,          then       the parties               agree         to mediate
any disputes            in      a format         suggested                by Dr.        Kelly        and agreed                  to by
the parties."
         Although          the parties               themselves             created           the      initial             custody
schedule,             they       had      difficulties                     in         adhering          to         it         almost
immediately            after      its     adoption           by the court.                    It     is quite            apparent
from the record                 that    one of the main reasons                               that     such a detailed
schedule         was created              in     the         first         place,         and why,                ultimately,
strict       compliance            with        the     schedule            was difficult,                    was the              fact
that     each parent             was actively                involved             in    a number of                activities
with      the      children.              Terry,           a       former         high         school         and          college
basketball            player,          encouraged            his      two sons to become involved                                      in
all      sports,          but      especially              baseball               and     basketball.                         He at
different          times        coached each of his                       sons,        and made every                   effort         to
enroll      the boys in various                      sports          camps and programs.                      Peggy,             it    is
evident         from the record,                has a great                fondness           for     snow skiing,                    and
encouraged            the boys to undertake                        that     sport.            Peggy enrolled                     Jesse
and Jay          in    a number           of     ski       programs              in     the        Bozeman area.                       In
addition,          when Peggy and Terry                      were married,                they        decided            together
that      the      boys        would      attend           Sunday school                  classes            at         the      First
Presbyterian            Church in Bozeman, and would receive                                          weekly            Taekwondo
instruction.              Not surprisingly,                    the different              activities'                   schedules

                                                                4
conflicted                   with              each            other,               with                 the          temporary                 custody                 and
visitation                 schedule                 established                     in the dissolution                                  decree,          and with
a     subsequent                       custody                 and         visitation                          schedule                 created            by           the

parties.

           Although                   the      parties           agreed                  to a schedule                       in        January          1992 that

generally              provided                     Terry        custody                      of        the       boys         three         days       per           week

and Peggy             custody                  of        the    boys              four         days           per       week,          a schedule                    which

remained          in         effect                for      nearly                three            years,             the      parties           were           unable
to    resolve,                   amicably                 or     otherwise,                             the       inevitable                 problems                 that

periodically                          arose         because                 of       the            conflicting                    schedules                of          the
boys'        various                  activities.                     Each party                         had begun                to     "claim"           certain
activities,                      so         that          difficult                  situations                         were           created            if,           for

example,              ski             class         conflicted                     with             a basketball                        game,       or          if      one
parent's           "claimed"                       activity                fell          on a day that                       the        other       parent              had

custody          of        the          children.                 Both             Terry                and Peggy              began         seeking                 court

assistance                  to        resolve              these            disputes,                     most          of     which         had reached                      a

fevered           pitch.                            (With             respect                      to         a      dispute              regarding                     the

relationship                     between                 custody             and one of                        the      boys'          participation                     in

a youth          baseball                    league,            the         court             was presented                       with       evidence                 that

the     boy's          batting                  average              while               in        Terry's              custody           was       four             times
higher         than              it         was while                 in      Peggy's                     custody.)                    The      court           issued

orders           which                  variously                  provided                         for           and        required               the              boys'

participation                          in     ski        programs;                  baseball                      and basketball                    practices,
camps,        and games;                        and Sunday                    school.

           The         court's                     periodic,                      "stop-gap"                         rulings             concerning                     the

minutiae              of         the          parties'                daily              lives                and      their           children's                    daily


                                                                                         5
lives       did      not     fully          solve         the         scheduling            problems.              Eventually,
Peggy filed               motions          for     final             determination               of visitation                 rights

and contempt,               and Terry            filed             a counter        motion         for    contempt,            all       of
which       were heard             by the              court          on October            20 and 21,              1994.               The
District            Court         issued          its          order          on     December             16,      1994,         which
provided,            in     pertinent             part,             that      Terry         and Peggy would                    remain
joint       custodians               of     the         boys,             and that      neither            party          would          be
considered            the        primary           residential                     custodian;             that      during              the
school        year        the parties             would alternate                    custody         of the children                     on
a weekly           basis;        that      each party                 would have custody                   of the children
for     one half            of    the       summer;                that     custody         of     the     children            on the
various        national            and school                      holidays         was divided             nearly         equally
between        Terry         and Peggy;                  and,         that     each parent                ensure          that          the
children           participate              in the aforementioned                            athletic            and religious
activities.                The court             found         Peggy in contempt                    for     failing         to make
the     boys         available             for          Sunday            school      on         three      occasions,                  but
suspended the $500 contempt                               fine            and declared           that     Peggy "may purge
herself        of the contempt                    charge             provided        there        are no violations                      of
the     Court's           order      herein             for        one year."           The court                stated        in its
order       that     it     "considered                 each appropriate                    factor        in Section             40-4-
212,       MCA and finds                  that     it         is     in the best            interests             of the minor
children           that     the following                     custody         schedule           and orders           incidental
thereto        be followed[.                I”          Peggy alleges                 a number of errors                       in the

court's        December 16,                  1994 order,                    and these            allegations              of     error

form part            of the basis                for      her appeal                here.
           Not long            after      the court's                  order       was filed,         each party                  began
 filing         motions         alleging         that           the other          was in contempt                    for    failing
 to abide           by the order.                The court                  considered        testimony                in support
 of    the       motions          during         two       hearings,               on September                 28,         1995 and
.December           28,       1995.        The court               issued           an order          January               2,    1996,
 which       did not           find     either        party            in contempt           but did require                      Peggy
 to    ensure           the     boys'      attendance                  at     sports        practices.                  The court
 issued         a second order             on January              8, 1996, holding                   Peggy in contempt
 for violating                the original            dissolution                  decree by failing                   to provide
 Terry       with       a 1995 IRS form relating                             to claiming             one of the boys as
 a dependent,              and for        violating               the December 16 order                         by failing              to
 get      the    boys         to various           sports              practices.            The court                applied           to
 Peggy the              $500 fine          which           it      had suspended                in        the     December              16
 order.          Peggy's         allegations               of error            in the court's               contempt              order
 form the other                 basis      for     her appeal                  here.        Although            Peggy filed                  a
 notice         of appeal             to this      Court          from the District                   Court's               December

 16,       1994          order         prior          to         the        institution              of         the         contempt
 proceedings,              we have allowed                  Peggy to appeal both the December 1994
 order       and the January                   1996 contempt                   order       in one action.
                                                           ISSUE ONE
           Did      the        District           Court           err         in     "modifying"                the         parties'
 existing           custody           and visitation                   arrangement?
           In Issue            One, Peggy raises                        three       jurisdictional                challenges.

 Peggy          first          argues          that         because                there      was         no      motion               for
 modification                 before      the court,              the court            was without               jurisdiction
 to modify              the parties'             existing              custody         arrangement               as it           did    in
 its        December                  16,          1994            order.                   Peggy            contends               that          the             court
 improperly                 modified                    the         custody                arrangement                    as     contained                   in      the

 original              decree              by removing                      her       "primary                custodian"                status.                   pew
 alleges            that        she requested                         that          the         court         merely           "clarify"                matters,

 noting            that         her        motion              before              the          court         was entitled                   "Motion                 for

 Final           Determination                          of         Visitation                     Rights,"                 and      that           the            court

 recognized                the        purpose                of      this         document              when it             stated          "The         central

 issue             before                  the          Court               is         Petitioner's                         Motion               for              Final
 Determination                    of        Visitation                      Rights."

               While       we are                well         aware          of       the         firmly          established                    rule        that          a

 district              court           may not                rule          on matters                      other      than         those          presented

 by      the       pleadings,                     In     re        Custody               of       C.S.F.            (1988),            232 Mont.                   204,

 209,          7'55 P.2d          578,            581,        we cannot                  glean          from         the       circumstances                       here

 a violation                     of         this            rule        by         the           District             Court.                 The         court's

 December                 16,          1994             order               did          indeed               remove             Peggy's                "primary

 residential                 custodian"                       status,              but          this        alone     did        not       constitute                     an

 improper                modification                        of      the          original                  custody            determination,                        nor

 did      it       constitute                    a,ruling               on a matter                         beyond         the      pleadings.                       The

 parties            have         had great                        difficulty                    creating              a workable,                  permanent

 visitation                  schedule.                            Neither              mediation                    nor        periodic                 judicial

 intervention                     into             isolated                    issues                 has      successfully                      solved              the

 visitation                 problem.                     Peggy              finally               pleaded            with         the       court            in      her

.motion            for      final             determination                           of        visitation                 rights           to      "once            and

 for        all,           establish                    a      proper               visitation                      schedule.               ...          A        final

 determination                        of     visitation                     rights               of     the       parties,              specifically                       a

 simplified                 visitation                        schedule,                    is      in       the      best        interests                   of      the

                                                                                       8
children."                   The         parties            submitted                 briefs              and proposed                  visitation

schedules.                       The         court         heard              testimony                   concerning                the         various

alleged          causes            of the visitation                           problems,                including               testimony              from
Terry       that         Peggy            had used           her         "primary                custodian"                status          to     derail

previous                attempts                     at        creating                     or          maintaining                     visitation
arrangements.                          On the       basis         of testimony                     presented               at    the      hearings,

and the           briefs               and proposed                    visitation                 schedules                presented             by the

parties,              the         court           ordered              that         the        parties               follow         the         court's

specific            visitation                     schedule             which         provided                 for      nearly          equal          time

with       the        boys,             and that           neither              party            be considered                    the       "primary
custodian,"                  a title               which          had         led      to        visitation                problems              in     the

past.             The        court               was      asked           to        resolve               a    difficult                visitation

problem,              and         the       provisions                  of     the        court's              order,            including              the
removal          of     "primary                  custodian"              status,              manifest              the      court's           attempt

to do so.               To the             extent          that         Peggy has characterized                                  the      situation

differently,                     we disagree.                     There         was no District                         Court        error            here.

           With         respect              to     her      second            argument,                  Peggy         contends            that        the

court          erred              by        not          applying               the         jurisdictional                        prerequisite

requirements                      of      5 40-4-219,                   MCA,        prior            to       modifying             the         decree.

Peggy claims                     that       the      court's            December               16,      1994 order,               establishing

a new          visitation                    schedule              and         removing                 her          "primary            custodian"

status,            was           a modification                        which,          in         the         words        of     this          Court's

opinion            in       In     re       Marriage              of      Johnson              .(1994),              266 Mont.             158,        166,

879 P.2d              689,         694,          "haId         the       effect           of      substantially                     changing             the

primary           residence                  of     the     parties'                children,                 even      though            the     formal

designation                  of         'joint         custody'               [was1         retained."                  Peggy          claims          that

                                                                                9
under      these     circumstances,                    Johnson requires                   that    the requirements
of     § 40-4-219,          MCA, must be met before                              the     court       may engage in a
custody      modification.                   Johnson,         079 P.2d at 694.                   Peggy argues            that
the court          erred     by modifying                 the parties'                  visitation           and custody
arrangement             according            to        § 40-4-212,               MCA (the              "best     interest
test")     , before         conducting             a jurisdictional                     analysis        under      s; 40-6
219,     MCA.      We cannot            agree with             Peggy's           second argument.
         Johnson         states,        in pertinent                part:
                 Motions     or petitions       to modify       a sole custody
         provision       or terminate     a joint      custody provision       must
         satisfy     the jurisdictional        prerequisites      set forth     in §
         40-4-219,     MCA. Likewise,        a motion or petition        to modify
         child    custody provisions         in a dissolution       decree which
         have the effect        of substantially          changing the primary
         residence       of the parties'         children,     even though the
         formal designation        of "joint    custody" is retained,        are to
         be construed       as motions or petitions          to terminate     joint
         custody and must satisfy          the jurisdictional        requirements
         set forth      in S 40-4-219,      MCA. Any effort        to modify      the
         physical        custody     arrangements     in a decree which provided
         for    joint       custody,      which   does not seek a substantial
         change       in     the    children's     primary     residence,      may be
         considered         by the district        court   according      to the best
         interest        standard      set forth    in § 40-4-212,      MCA.


Johnson,        879 P.2d           at    694           (emphasis         added).             The court           here     was
requested          to      resolve           a     bitter,           ongoing            visitation             scheduling
dispute;        the        court's           resolution              did       not        "have        the     effect        of
substantially               changing             the     primary            residence             of     the     parties'
children,"           nor,      for       that           matter,          did       it      have        the     effect        of
modifying          the      decree,          save       for     the      removal           of     Peggy's        title       of
primary       custodian.                At       the    time        of     the     hearing           on this       matter,
there      existed       between the parties                      a visitation              schedule,          created       by
themselves         without         direction             from the court                 or the original            decree,

                                                               10
that      provided             that      during         the    school        year       Peggy and Terry              would
divide       weekly            custody     of the boys according                    to a four          day/three       day
split.          As well,              each of the parties                   had had custody               of the boys
for      roughly         half     of the previous                summer.           The relevant           portions       of
the      court's         order         provided         that     the parties             would        alternate       full
weekly         custody          of the boys during               the school             year,     and that        each of
the parties              would have custody                    of the boys for             half       of the summer.
The order           also        provided          for    a nearly          equal      division         of custody        on
holidays.             Finally,            the      order       provided         that      neither        party       would
maintain           "primary            custodian"         status.           These provisions              have little
to do with,              let     alone     substantially                  change,       "the primary         residence
of     the     parties'              children."               To the       contrary,            the    court's       order
essentially              maintains          the number of days the boys were spending                                    at
each parent's                  home under the existing                     visitation           schedule.         Section
40-4-219,           MCA, is inapplicable                       here.         There was no District                   Court
error,
          Peggy's         third         argument        under Issue One is that                       the court      erred
in modifying               the custody             and visitation               arrangement            because       Terry
did      not     first          file      an affidavit               in     support       of     modification,               as
required           by § 40-4-220,                 MCA.        The statute           provides:

          (1)       A party     seeking    a temporary    custody     order    or
          modification      of a custody decree shall submit,          together
          with his moving papers, an affidavit           setting   forth   facts
          supporting     the requested order or modification          and shall
          give notice,      together    with a copy of his affidavit,           to
          other parties       to the proceeding,      who may file      opposing
          affidavits.       The court shall deny the motion unless it
          finds     that   adequate cause for hearing           the motion      is
          established     by the affidavits,     in which case it shall set
          a date for hearing on an order to show cause why the
          requested order or modification           should not be granted.

                                                                11
Peggy's       argument          is     misguided,                as the provisions                        of    § 40-4-220,
MCA, are          inapplicable               here.          First,            it     is    the     moving         party        that
must comply with              the affidavit                  requirement;                  in this         case,       that      was

Peggy I not          Terry,           Second,          the       statute             contemplates               a situation
where a party              requests           that      the court                  modify        the custody            decree;
here,      such relief          was neither                 requested               nor given.              To reiterate,
at the time           of the hearing                 the parties,                  while     bound by the initial
custody       decree        to the extent              that       it     provided           for     joint         custody        and
designated           Peggy      as        the        primary            custodian,               were       and        had     been
subject       to a custody             and visitation                    arrangement               largely         created        by
themselves;           in any event,                  the parties                   had long         since       left      behind
the temporary              schedule           set out in the decree.                               The relief           sought,
and     the       relief      given,            did        not        involve             a modification                 of      the
original           decree       because              the      decree               no     longer          controlled             the
parties'          custody       and visitation                        scheduling             arrangements.                     And,
pursuant       to our discussion                     of the purpose                     and effect         of the court's
removal       of     Peggy's         title       as primary                   custodian,           we cannot            see how
the     court's        action        in      that      regard           would           have first             required          its
perusal       of a § 40-4-220,                 MCA, affidavit.                       Contrary         to Peggy's              third
argument,          the court          did      not commit reversible                             error.
                                                       ISSUE TWO
         Did the District                    Court     err       in ordering                that     the parties'                two
children          continue      their          religious               training?
         Peggy has two bases for                           her allegation                   of error           with     respect
to Issue      Two: Peggy first                  contends               that        the court's            order       requiring
the boys'          weekly     attendance              at First           Presbyterian                Church in Bozeman

                                                                 12
violated               5 40-4-218(l),                    MCA, in that               the         court's              order        infringed             on

her        custodial               rights;              Peggy        also        contends                that         in        requiring              the
boys        to     attend              "Terry's"                church,          the          court's            order           violated              her
First         Amendment                  religious              rights.

            Section              40-4-218(l),                   MCA, provides:

           Except      as otherwise         agreed by the parties                in writing      at
           the      time   of    the      custody         decree,      the      custodian      may
           determine         the       child's          upbringing,           including        his
           education,       health      care,       and religious           training,      unless
           the      court    after      hearing         finds,      upon      motion      by the
           noncustodial         parent,        that    in the absence            of a specific
           limitation        of the custodian's                 authority,         the child's
           physical       health      would       be endangered            or his      emotional
           development        significantly           impaired.          (Emphasis      added.)


Peggy         contends                that       this          statute       authorizes                   her,            not     Terry        or      the

court,           to      make          decisions                regarding              the       boys'           religious                training
while         they       are       in her          custody.               However,             under        the           circumstances                 of

this         case,          the          boys'          religious            training               is      indistinct                    from         the

boys'         basketball                  training,              baseball              training,                or        ski     training,                 in
the       respect            that          whatever              importance              it      may       once            have      had       to      the

parties               and        their           children            was         completely                overshadowed                       by       its

status            as     a fiercely                     contended            scheduling                   issue.                 The      parties'

difficulty                  in        coordinating,                  without             intermittent                       and        consistent

strife,            their          schedules               and the          boys'         schedules                   had reached               a peak
by      the       time           the         District             Court          was      requested                   to        resolve            these

matters.                 "[Dlistrict                    courts           have      broad           powers             to        determine              all

problems               concerning                 custody           and visitation."                                 In     re     Marriage                 of
Hunt          (1994),            264 Mont.               159,       164,        870 P.2d            720,         723.             Both        parties

have        repeatedly                   sought          judicial           and other               intervention                       into         their

daily            lives           in       hopes           of      resolving               their            scheduling                    problems.
                                                                            13
Peggy's        claim        now that              the District           Court       is improperly                  interfering

with      her       parental                rights        to     raise       her         child         as     she wishes              is
completely               disingenuous.                The court            attempted            to resolve             one aspect
of     the    parties'             custody            and visitation                 problem           by requiring                 the
boys'        attendance                at     "Sunday          School        and/or            Church         Services             each
Sunday that                the     custodial              parent     is not out of                     town."          We do not
agree        with        Peggy's          first       contention.              The court               did not err.

          Peggy's           second            contention            here       is        that       the       court's             order
requiring            the         boys'        weekly        attendance              at    the      First          Presbyterian
Church        in     Bozeman violated                      her     First      Amendment religious                           rights.
Peggy        states             that        while         Terry      prefers             the       First          Presbyterian
Church,         and while                she used to               attend      that         church,           she no longer
feels        comfortable                 going       there.          Peggy argues                  that       the      court,         in
forcing         the boys to attend                         "Terry's"          church         while          they       are in her
custody,            is     in     effect           choosing         between          the         parties'           conflicting
religious            beliefs.                Peggy cites            a number of cases which                               indicate
that      courts           are reluctant                  to get         involved          in conflicts                 regarding
the     religious                training            of    children.             See,          e.g.,         MUrIO v.             Munoz

(1971),         79 Wash.2d 810,                      489 P.2d 1133;                 Angel v.            Angel          (Ohio       C.P.
1956),        140 N.E.2d               86; Khalsa v. Khalsa,                        107 N.M. 31, 751 P.2d 715.
However,            the.        record         does not            reveal        any conflict                     of    religions
between Terry                   and Peggy, only,                  again,      a conflict               regarding             custody

and visitation                    scheduling.                  The District                Court            did    not      violate
Peggy's            First         Amendment religious                        rights         by      ordering            the        boys'

church        attendance                 at First          Presbyterian.



                                                                    14
                                                        ISSUE THREE
           Did the District                   Court        err     in finding             Peggy in contempt?
           By order         dated            June       11,       1996,       this        Court      granted          Peggy's
request          to consolidate                her appeal               of the District                  Court's      January
1996 orders               finding            her      in      contempt           with      her      previously              filed
appeal          of the court's                December 1994 custody                        and visitation                 order.
Also       in that        June 11, 1996 order,                          we stated          that      "[olur        review       of
contempt          orders         in      family            law     cases         is     limited          to     whether        the
district           court         acted         within            its     jurisdiction               and        whether         the
evidence          supports            the     contempt"                (citing          In re Marriage               of     Bayer
(1995),          274 Mont.            282,      289,        908 P.2d 665,                 669;     In re Marriage               of
Dreesbach           (1994),           265 Mont.             216,       224,       875 P.2d 1018,                1023;       In re
Marriage          of Sullivan                (19931,        258 Mont.            531, 539-40,             853 P.2d 1194,
1200).            Terry       and        Peggy do                not     dispute           the      District            Court's
jurisdiction              over      the contempt                 matters.              Therefore,         the only          issue
here       is     whether         the        District            Court's          findings          of        contempt       were
supported          by the evidence.
           Peggy argues               that      the        court's        January          8, 1996 order                finding
her in contempt              for        failing            to get the boys to sports                          practices        and
for     failing       to provide              Terry        with        an IRS dependent              exemption             waiver
form       was not          supported              by       the        evidence.            To the             contrary,          we

conclude           that     the        evidence             supports             the     court's         findings.             The

court       states,        at finding               number 11:
           The December 16, 1994 Order provides,                                          in part:
           "When the boys are with Petitioner,   she shall                                           insure that
           the boys attend the sports activities     they                                            participate
           in..."

                                                                   15
At finding           number 6, the court                states:
         The parties' Separation,    Custody and Property                                  Settlement
         agreement provides   in part:
                    "The parties        agree that    for 1990 and all   years
                    thereafter,      each will claim one (1) of the children
                    as dependents         (Jesse by Husband and Jay by Wife)
                    unless      otherwise     ordered  by the Court and both
                    parties      agree to execute appropriate    IRS forms to
                    accomplish this."
         and this provision                 was incorporated                 into        the    original
         divorce decree.

Peggy does not dispute                 that     she failed            on various         occasions         in 1995
to     get    the     boys    to    their       respective            sports        activities.             At    the
December 1995 hearing                  which      preceded            the   court's        January         8, 1996
order,       Peggy offered          explanations               as to why she had not gotten                       the
boys to their            activities;           Terry,      in turn,          testified            to the effect
that      Peggy's       explanations           were not           valid.         With      respect         to    this
conflicting           testimony,        we note         that     a court       may properly           give       more
weight       to one party's            evidence         than to the other                party's      evidence.
See, In re the Marriage                     of Rolfe           (1985),      216 Mont.          39, 44-45,         699
P.2d 7.9, 82.           The court        concluded             that    Peggy's       failures        to get the
boys to their            respective           sports      activities           constituted           violations
of the December 16, 1994 order,                          and found          Peggy in contempt.                   This
finding       of contempt           is supported           by the evidence.
         With       respect    to the IRS form,                 Peggy's      argument          focuses      mainly
on the court's            finding      that     Terry      had suffered             a penalty,         levied       by
the IRS, as a result                of her failure               to give       him the form before                his
taxes        were     due on April             15;      she contends            that       finding         was not
supported           by the evidence.             This focus           is misplaced.               The court       did

                                                         16
not     need         to       find      that         Terry       had suffered                      an adverse                 consequence                  as

a result             of       Peggy's          violation                of      the       decree          in     order         to      find        Peggy
in     contempt                for     violating                the       decree.

          Peggy was required                            to annually                   provide             Terry        with         a signed            IRS

form      which               would         allow        Terry            to        claim        one       of     the         children              as      a

dependent                 on his        tax         forms.             Peggy           did     not        provide            Terry          the      form

by     April             15,         1995,        and      in         fact          did      not      provide                the     form          until

requested                to     do so by the                   court           at    the      September                28,     1995 contempt

hearing.                      There         was       conflicting                     evidence              presented                  concerning

whether             the        form         was available                      to     Terry        prior          to     April             15,     1995,

but      again,               a court           may properly                         give       one       party's             evidence              more
weight          than           the     other         party's            evidence.                    The court                concluded              that

Peggy      violated                   the      dissolution                   decree           by failing                to     provide             Terry

the      IRS form               in     a timely              manner,                and found             her     in      contempt.                  This
finding             of        contempt          is      supported                   by the         evidence.

          Peggy            also        argues           that        the        court         erred        by adopting,                     verbatim,

Terry's             proposed            findings               as its           own.          A court's                verbatim             adoption
of     proposed                 findings             does        not         "constitute                  error         per         se."           In      re

Marriage             of        Nikolaisen                (19931,             257 Mont.               1,     5,    847 P.2d                 287,      289.
We set          out           the     following              test         in        Nikolaisen:

          When reviewing       the adequacy   of the findings      of fact  and
          conclusions       of     law,   we examine     whether     they   are
          sufficiently       comprehensive    and pertinent      to provide    a
          basis      for a decision,    and whether  they are supported      by
          substantial      evidence.


Nikolaisen,                    847 P.2d           at 289            (citation                omitted).              The court's                   eleven

pages          of        findings            and conclusions                         regarding              the        parties'              contempt

motions             are        comprehensive,                    pertinent                   to the        issues            raised,             and,      as

                                                                               17
                                    supported       by substantial    evidence.     The
we have already     discussed,
court    did not err       in adopting   verbatim      Terry's   proposed   findings.
        Affirmed.




We Concur:             h




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