                                           No. 04-050

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                       2005 MT 14N


IN RE THE PARENTING OF
the child of D.D.,

K. K.,

              Petitioner and Respondent,

         v.

D. D. G.,

              Respondent and Appellant.



APPEAL FROM:         District Court of the Fifth Judicial District,
                     In and for the County of Madison, Cause No. DF-29-1997-1,
                     The Honorable Wm. Nels Swandal, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Karl Knuchel, Attorney at Law, Livingston, Montana

              For Respondent:

                     J. Blaine Anderson, Jr., Attorney at Law, Dillon, Montana


                                     Submitted on Briefs: December 22, 2004

                                                Decided: January 31, 2005
Filed:


                     __________________________________________
                                       Clerk
Justice John Warner delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent. It shall be filed as

a public document with the Clerk of the Supreme Court and shall be reported by case title,

Supreme Court cause number and result to the State Reporter Publishing Company and to

West Group in the quarterly table of noncitable cases issued by this Court.

¶2     D.D.G. (Mother) appeals from an order of the District Court issued on December 30,

2002, holding her in contempt and granting K.K. (Father) temporary residential custody of

their daughter, A.D.K (Daughter). Mother further appeals from a December 29, 2003,

District Court order granting Father permanent residential custody of Daughter.           We

conclude the appeal of the temporary custody order ancillary to the contempt order is moot,

we affirm the $750 contempt judgment entered December 30, 2002, and we the affirm the

District Court’s custody order of December 29, 2003.

¶3     We restate and address the issues as follows:

¶4     1. Does the District Court’s final custody order require reversal because its temporary

custody order was improperly entered?

¶5     2. Did the District Court err in imposing a $750 contempt judgment?

¶6     3. Did the District Court have jurisdiction to enter its final custody order of

December 29, 2003?

¶7     4. Did the District Court abuse its discretion by changing residential custody from

Mother to Father in its December 29, 2003, final custody order?

                 FACTUAL AND PROCEDURAL BACKGROUND

                                              2
¶8     Daughter was born on August 20, 1997. Ten months later the District Court adjudged

K.K. to be her father. At this time, Father lived in Elko, Nevada, and Mother and Daughter

lived in Sheridan, Montana. Despite the substantial distance, the two parties managed to

stipulate to a parenting plan in which Father would see Daughter at least four days per

calendar month.

¶9     While the stipulated parenting agreement gave Father four full days per month with

his daughter, he actually had her with him only part of the days allotted to him. Even if he

stayed in Sheridan for consecutive days, Mother demanded that he pick up the child every

morning and bring her back every evening, instead of allowing Daughter to spend the night

with him. At this time, Father was driving back and forth between Elko and Sheridan to

make his parenting appointments. When he found a new job in Colorado Springs, he began

flying to make his appointments with his daughter.

¶10    After approximately two and one-half years under the stipulated parenting plan, the

parties filed motions to hold each other in contempt. Mother alleged Father was not paying

his child support. Father alleged parenting interference because Mother denied his parenting

rights for various reasons–with or without notice–or delayed his visits by not having

Daughter ready. The District Court denied both motions.

¶11    In February 2002 the parties agreed to a new parenting plan under which Father

would have Daughter for extended periods of time. Problems quickly developed. When

Father flew to Sheridan to pick up the child for her May 2002 visit, Mother told him

Daughter was too sick to travel. Father later learned the doctor believed Daughter was well

enough to travel. Father was forced to file a motion to enforce his June 2002 parenting

                                             3
rights. Then, Mother attempted to change Father’s August-September 2002 parenting time,

which was planned well in advance and coincided with Father’s wedding. The District Court

held for Father in every instance.

¶12    In June 2002, the District Judge ordered that Mother change the child’s surname to

a hyphenated name reflecting both parents’ surnames. Mother did not comply.

¶13    In July 2002, Father filed another motion for contempt alleging Mother’s continued

interference with his visitation. At the hearing on the motion, the District Court discovered

Mother had not changed Daughter’s name on her birth certificate. The District Court gave

her thirty days during which to complete the birth certificate change. Mother continued to

protest that order and failed to even make an attempt to comply until mid-December 2002.

¶14    In his motion dated July 18, 2002, Father prayed that the District Court hold Mother

in contempt because she interfered in his parenting rights as outlined above, and suggested

an appropriate sanction for such contempt would be to award him his attorney’s fees and

costs; Father did not pray for a change in residential custody. The hearing on this motion

was held October 25, 2002. Father appeared with his attorney and Mother appeared pro se.

Both parties called witnesses who were sworn and testified and both introduced documentary

evidence.

¶15    At the conclusion of the hearing Father, through counsel, filed a written motion to

change residential custody from Mother to himself. The motion contained a recitation of the

stated reasons for the change, interference with his parental rights, and these reasons were

substantially the same as the reasons he and his witnesses had just testified to at the contempt

hearing. The motion did not pray for an emergency or temporary change in custody pending

                                               4
a hearing. At the same time, Father orally moved the Court to amend the pleadings to

conform to the evidence presented in the contempt hearing.

¶16    The District Court took the matter of the change in residential custody under

advisement, told Mother that she had 30 days to respond to the motion, and set a hearing.

Father then had an opportunity to reply to Mother’s response. Daughter remained with

Mother.

¶17    On November 22, 2002, within the time for a response set by the District Court’s

order, Mother retained counsel and responded to Father’s motion to change the parenting

plan by filing a brief in opposition to the motion, a motion to strike and an affidavit in

opposition to the motion. Father replied. Father also, on December 12, 2002, supported his

motion to change residential custody with affidavits.

¶18    The District Court entered its order on December 30, 2002, holding Mother in

contempt for the interferences in parenting rights in May, June, and August-September. The

District Court, in the contempt portion of such order, awarded Father $750 to reimburse him

for the cost of plane tickets because Mother had denied his May 2002 parenting time when

he traveled to Montana.

¶19    Also, in its Order of December 30, 2002, the District Court found that an emergency

situation existed and transferred temporary residential custody from Mother to Father. At

the time the order was entered, the child was visiting Father for Christmas, and the order

provided that she would not return to Mother, but would remain with Father until Mother’s

next scheduled visitation.

¶20    Mother filed a direct appeal of that part of the Order of December 30, 2002, which

                                            5
temporarily changed residential custody. However, the appeal was dismissed by order of

this Court, holding that the contempt order was not reviewable on appeal as it was not

attached to a final domestic relations order because the temporary custody order was not a

final order. Order of April 8, 2003, Cause No. 03-070, In re the Parenting of the Child of

D.D.

¶21    This litigation then proceeded on Father’s motion to change residential custody.

Discovery was conducted, motions were filed and ruled on, and preliminary hearings held.

Over the course of the parties’ parenting disputes, the District Court assigned two guardians

ad litem, and the parents and child have visited with multiple psychologists.

¶22    The first guardian ad litem, Karen McMullin, commended Father for his “extreme,

almost beyond human tolerance” efforts to maintain a bond with Daughter. Nevertheless,

in 2000, she recommended Daughter remain in Mother’s custody. Father, realizing he would

need more evidence of parenting interference to prove the subtle ways Mother was

manipulating Daughter, secured the court’s permission, and began recording the

conversations between himself, Mother and Daughter–with the Mother’s knowledge.

¶23     Transcripts of these telephone conversations were introduced into evidence, as well

as the tape recordings themselves. Some of these telephone conversations, admittedly small

segments in hundreds of hours of conversations, clearly show Mother putting Daughter in

a position where she was encouraged not to be with Father. For example, Mother would

make sure that the five-year-old knew she would be missing a T-ball game if she visited with

her father. When Daughter would become confused about who her father was, Mother

reinforced her belief that Mother’s husband was Daughter’s father, by telling her “Daddy

                                             6
here is daddy.” Finally, Mother made Daughter feel guilty for visiting Father by repeatedly

telling her how much her Sheridan family missed her.

¶24    After the District Court transferred temporary custody to Father in December of 2002,

Mother and her family began abusing their telephone privileges. Mother’s family made

approximately 143 phone calls to Daughter during a period of six weeks. Mother and her

family began calling every day, contrary to the court-ordered telephone schedule. Although

some telephone calls came during the allotted times, Father and his family did not answer

because the sheer volume and persistence of Mother’s family’s calls disrupted their peace.

Beyond the simple schedule of times during which Mother and her family could call, the

District Court also had to limit the lengths of the calls to redress this abuse.

¶25    The first guardian ad litem saw Daughter’s home life and environment in Sheridan,

but no witness other than Father had seen Daughter’s home life and environment in Colorado

Springs. Needing that information to determine the best interests of the child, the District

Court appointed a second guardian ad litem, Colorado attorney Virginia Ethridge, to

determine whether Father’s home was a safe and healthful environment. Ms. Ethridge

visited the home, talked with Daughter, her teacher, school principal, and vice-principal.

She concluded Father’s home was appropriate for Daughter.

¶26     To balance the perspectives, Mother hired her own expert, Rochelle Beley, M.S.,

LCPC, to determine what would be best for Daughter. Ms. Beley did not meet or talk with

Father. In her custodial assessment, Ms. Beley found that Mother did deny Father’s

parenting time with Daughter and prevented him from spending quality time with his

daughter. Nonetheless, she recommended returning Daughter to Mother because she feared

                                               7
disrupting the bond between them. The District Court specifically considered Ms. Beley’s

report and testimony in its findings of fact transferring permanent residential custody to

Father.

¶27    On August 15, 2003, the District Court held a hearing on Father’s motion to change

residential custody. Both parties appeared with counsel and the matter was tried. On

December 29, 2003, the District Court entered its final order wherein it concluded both

parents could provide stable care and meet Daughter’s developmental needs, but determined

Mother’s abuse of phone privileges, willful and consistent attempts to frustrate and deny

contact, and attempts to alienate Daughter from Father proved that Father was more likely

to ensure Daughter has contact with Mother than vice versa. The District Court therefore

changed residential custody of Daughter to Father and set a visitation schedule.

                                STANDARD OF REVIEW

¶28    Our standard for review of contempt orders, pursuant to our granting a writ of

certiorari, is first to determine whether the court which found contempt acted within its

jurisdiction and, second, to determine whether there is substantial evidence to support the

findings of the court. Lee v. Lee, 2000 MT 67, ¶ 19, 299 Mont. 78, ¶ 19, 996 P.2d 389, ¶ 19.

In order for a court to act within its jurisdiction, it must have: (1) cognizance of the subject

matter; (2) presence of the proper parties; and (3) the court's action must be invoked by

proper pleadings and the judgment must be within the issues raised. Lee, ¶ 20. We review

a district court’s conclusions of law to determine whether they are correct. In re Marriage

of Czapranski, 2003 MT 14, ¶ 19, 314 Mont. 55, ¶ 19, 63 P.3d 499, ¶ 19. When reviewing

a district court’s discretionary decisions, we review its findings of fact to determine whether

                                               8
they are clearly erroneous. Czapranski, ¶ 10. Because the district court is in a superior

position to weigh the evidence, we will not overturn the court in child custody matters unless

we determine that there has been a clear abuse of discretion. Czapranski, ¶ 10.

                                       DISCUSSION

                                          ISSUE 1

¶29    Does the District Court’s final custody order require reversal because its

temporary custody order was improperly entered?

¶30    Rather than follow the statutory procedure and file a motion for a change in the

parenting plan supported by affidavits, counsel for Father filed the motion without an

affidavit. Then, counsel moved to conform the evidence on a different motion, the motion

for contempt that had just been heard, to the new motion to amend the parenting plan. While

we may now, belatedly, suspect that counsel was attempting to bypass the affidavit practice

called for in § 40-4-220, MCA, by use of Rule 15(a), M.R.Civ.P., this is a procedure not

specifically provided for by the statutes or the Rules of Civil Procedure.

¶31    Mother would have us reverse the District Court’s final custody order of December

29, 2003, because, she argues, the temporary change of custody ordered on December 30,

2002, was without legal authority and in violation of her right to procedural due process.

She claims that there was no affidavit filed as required for a temporary custody order, that

the temporary change in custody was at no time requested by Father in his pleadings and that

she had no notice or opportunity to defend herself from such action.

¶32    Father responds that he made a motion in open Court to amend his motion for

contempt to include the sworn testimony at the hearing of October 25, 2002, and such sworn

                                              9
testimony satisfies the affidavit requirement of § 40-4-220, MCA. He points out that the

District Court did not immediately grant the requested change in custody, and delayed

making the temporary change until after Mother took full advantage of her opportunity to

obtain counsel, to file a response, and to file counter affidavits. Thus, he argues, Mother was

not denied procedural due process.

¶33    Father also argues that as the best interests of the child are paramount, the District

Court acted within its authority to enter a temporary custody order changing residential

custody sua sponte when, after an examination of the full record, it found that the change

was required to protect the mental and emotional health of Daughter.

¶34    Section 40-4-220, MCA, requires that a party moving for a custody order, either

temporary or final, must submit with his moving papers an affidavit setting forth facts

supporting the suggested plan. This Court has held that § 40-4-220, MCA, provides no

exception to the affidavit requirement and has declined to create one. In re Marriage of

Allison (1994), 269 Mont. 250, 267, 887 P.2d 1217, 1227. However, this Court has also held

that the requirement is substantial compliance with affidavit practice to ensure that all parties

have notice and an opportunity to respond. In re Marriage of Anderson (1989), 240 Mont.

316, 321, 783 P.2d 1372, 1375; In re Marriage of Stout (1985), 216 Mont. 342, 347, 701

P.2d 729, 732.

¶35    In this instance, the required affidavit was not filed with the motion to change

custody. However, Mother was fully aware of the reasons for the motion by its terms, as

well as the testimony of Father and his witnesses given under oath and on the record at the

October 25, 2002, hearing. Further, she was given time within which to respond, and she

                                               10
did so with the assistance of counsel. Thus, she was not unfairly surprised by the motion or

the reasons offered for the change in custody.

¶36    We have approved of a District Court’s sua sponte visitation order to advance the

paramount best interests of a child. See Groves v. Clark, 1999 MT 117, ¶¶ 27-28, 294 Mont.

417, ¶¶ 27-28, 982 P.2d 446, ¶¶ 27-28. However, there appears to be no precedent where

we have held that a District Court may act as it did here; that is, make a finding that the

mental and emotional health of a child requires an immediate change in residential custody

when neither party has prayed for such an order.

¶37    The December 30, 2002, order of the District Court temporarily changing Daughter’s

residential custody on an emergency basis, without a demand for such immediate change,

and without the proper motion and affidavit having been filed, was error. However, the

issues surrounding custody of the Daughter have now been fully presented to the District

Court and determined. Based on the record before us, we do not conclude that the final

custody order, entered a year later, after the issues were fully and fairly litigated, must be set

aside because proper procedure was not followed in the entry of the temporary order.

¶38    A moot question is one which existed once but no longer presents an actual

controversy. E.g., Jim & Tracy's Alignment, Inc. v. Smith, 1998 MT 203, ¶ 8, 290 Mont.

368, ¶ 8, 966 P.2d 731, ¶ 8. “[A]n issue is moot when it no longer presents a justiciable

controversy, due to the occurrence of a given event or the passage of time.” Heisler v. Hines

Motor Co. (1997), 282 Mont. 270, 275, 937 P.2d 45, 48. When the final custody order of

December 29, 2003, was entered the issue of whether the temporary custody order was

properly entered became moot.

                                               11
¶39    A parent aggrieved by an improper temporary custody order is not without any

remedy. When a parent can establish that the entry of a temporary order constitutes a

mistake of law, causing a gross injustice, for which an appeal is not an adequate remedy, the

extraordinary writ of supervisory control might issue. Rule 17(a), M.R.App.P.; In re Matter

of D.A., 2003 MT 109, ¶ 18, 315 Mont. 340, ¶ 18, 68 P.3d 735, ¶ 18.

¶40    We decline to reverse the District Court’s final custody order because of the now

moot procedural deficiencies leading up to the temporary order of December 8, 2002.

                                          ISSUE 2

¶41    Did the District Court err in imposing a $750 contempt judgment?

¶42    Immediately after the District Court entered its December 30, 2002, order, Mother

filed a direct appeal of the temporary custody portion of the order. She argued that such

temporary custody order was ancillary to a judgment that she was in contempt of Court, and

thus it was appealable pursuant to § 3-1-523(2), MCA.

¶43    Unlike most contempt orders, reviewable only pursuant to a writ of certiorari,

Montana has carved out an exception for contempt orders in family law proceedings. Lee

v. Lee, 2000 MT 67, ¶ 24, 299 Mont. 78, ¶ 24, 996 P.2d 389, ¶ 24. Section 3-1-523, MCA,

provides as follows:

       Judgment and orders in contempt cases final–family law exception.
              (1) The judgment and orders of the court or judge made in cases of
       contempt are final and conclusive. Except as provided in subsection (2), there
       is no appeal, but the action of a district court or judge can be reviewed on a
       writ of certiorari by the supreme court or a justice of the supreme court . . . .
              (2) A party may appeal a contempt judgment or order in a family law
       proceeding only when the judgment or order appealed from includes an
       ancillary order that affects the substantial rights of the parties involved.


                                              12
¶44    Rule 1, M.R.App.P., provides for an appeal only from final orders. Thus, for a family

law contempt judgment to be directly appealed, it must include a final, ancillary order that

affects the substantial rights of the parties involved. Section 3-1-523, MCA; see In re Matter

of D.A., 2003 MT 109, ¶ 19, 315 Mont. 340, ¶ 19, 68 P.3d 735, ¶ 19 (holding “orders of

temporary custody are not ‘final judgments,’ subject to direct appeal, but instead are

interlocutory orders from which this Court will grant relief in extraordinary circumstances”);

Lee, ¶ 37.

¶45    The December 30, 2002, Order clearly constitutes a contempt judgment in a family

law proceeding, and it included a temporary residential custody order, which is an ancillary

order that affected the substantial rights of Mother. Nevertheless, a temporary custody order

is not a final ancillary order, but is rather an interlocutory order. Thus, § 3-1-523(2), MCA,

does not apply. See Matter of D.A., ¶ 19. As such, the contempt order does not fall within

the statute and is not appealable.

¶46    We dismissed Mother’s first appeal on April 8, 2003, in Cause No. 03-070, for failing

to fit within the family law exception of § 3-1-523, MCA. While the result of our order was

correct, dismissal of the appeal, we incorrectly told Mother she could file a direct appeal of

the contempt citation when a final custody order was entered. Contrary to our order, a writ

of certiorari is the only proper way to review the contempt portion of the December 30,

2002, order.

¶47    Mother has in this appeal, at least by implication, asked us to review and reverse the

judgment of December 30, 2002, that she was in contempt. In view of the statement in our

order of April 8, 2003, No. 03-070, that we would review the contempt judgment if it was

                                             13
later appealed, we have deemed the notice of appeal and briefs herein to include a petition

for a writ of certiorari for review of the contempt judgment, and thus we have examined its

propriety.

¶48    In this instance, the District Court sanctioned Mother $750, to reimburse Father for

airplane tickets he secured for the May visitation that was denied him. This is the only

sanction imposed for contempt. The money judgment is not ancillary to the contempt, but

integral to the contempt order. Cf. Grounds v. Coward, 2000 MT 128, ¶¶ 5-6, 300 Mont. 1,

¶¶ 5-6, 2 P.3d 822, ¶¶ 5-6, discussing Lee v. Lee, 2000 MT 67, 299 Mont. 78, 996 P.2d 389

(In Lee the family law exception applied because the contempt judgment was accompanied

by a money judgment due under a dissolution decree).

¶49    We conclude that the $750 judgment was within the District Court’s contempt

jurisdiction pursuant to the motion for contempt, and that there was no abuse of discretion

in imposing this sanction. Father testified that he had secured three round-trip airfares at an

average cost of $250 to $350 to exercise his visitation, and was denied the ability to have the

child with him. While somewhat imprecise, the testimony was sufficient to show the tickets

were essentially wasted, and Mother offered no rebuttal evidence. The District Court was

entitled to believe this amount of loss was directly caused by Mother’s contempt of the

visitation orders, and we will not disturb such on appeal.

                                          ISSUE 3

¶50    Did the District Court have jurisdiction to enter its final custody order of

December 29, 2003?

¶51    Mother argues that because Father’s motion to change the residential parenting plan,

                                              14
filed immediately after the hearing of October 25, 2002, was not supported by affidavit, the

District Court was without jurisdiction to hear it. However, it is clear that an affidavit

supporting this motion was filed on December 12, 2002, some eight months before the

hearing on the motion. The affidavit supporting the motion was filed within ample time for

Mother to meet the allegations therein. Both parties conducted discovery, retained experts,

and were prepared for the hearing on the motion. The District Court had obtained

jurisdiction through the proper pleadings and had before it all that was necessary to fairly try

the matter on its merits. Sections 40-4-219, 220, MCA.




                                              15
                                          ISSUE 4

¶52    Did the District Court abuse its discretion by changing residential custody from

Mother to Father in its December 29, 2003, final custody order?

¶53    Mother argues that the District Court abused its discretion by failing to adopt the

recommendations of Ms. Beley, who she argues is the only expert that was qualified to give

an opinion about custodial placement. She relies on In re Marriage of McKenna, 2000 MT

58, 299 Mont. 13, 996 P.2d 386, for the proposition that a district court must adopt the

recommendations of a particular expert if she were the only expert to testify at the hearing.

Mother mischaracterizes Marriage of McKenna. There, the district court heard from four

experts at the hearing, considered them all in its factual findings, and adopted the

recommendations of two of the experts.

¶54    District courts must determine child custody matters in accordance with the best

interests of the child after considering a “variety of statutory factors including, but not

limited to, the parents’ wishes, the interaction and interrelationship of the child with the

child’s parents, continuity and stability of care, and whether the child has frequent and

continuing contact with both parents.” Czapranski, ¶ 11. “While a district court must

consider the best interest factors enumerated in § 40-4-212(1), MCA, it need not make

specific findings relating to each.” Czapranski, ¶ 48.

¶55    As we said in Marriage of McKenna, while the record reflects that both parents are

good parents,

       [I]t is not this Court’s role to second-guess the fact-finding function of the
       District Court. Where there are conflicts in the testimony, it is the function of
       the trier of fact to resolve those conflicts. We will not substitute our judgment

                                              16
       for that of the trier of fact as the trial court is in a better position than this
       Court to resolve child custody issues. [Internal citations omitted].

Marriage of McKenna, ¶ 17.

¶56    The District Court found that both households are stable and can meet Daughter’s

developmental needs. Its findings specifically considered Ms. Beley’s report but concluded

that it conflicted with other competent evidence. The District Court’s decision need not

conform to a particular piece of evidence or a particular expert’s report or testimony as long

as the court had substantial credible evidence supporting its decision. See Marriage of

McKenna, ¶ 18.

¶57    The District Court had before it substantial credible evidence supporting its

determination that it is in Daughter’s best interest that Father be designated as residential

custodian.   Specifically, an abundance of evidence shows that Mother willfully and

consistently attempted to frustrate or deny contact between Daughter and her Father.

Mother’s own expert admitted that Father will better ensure Mother has contact with

Daughter than vice versa. The record shows that Mother has attempted to openly alienate

Daughter from Father and his wife, and, instead of alleviating the stress and disruption for

Daughter, has added to it.

¶58    Where, as here, “the trial court has properly considered the factors set forth in § 40-4-

212, MCA, has relied on professional assessments of the child’s best interest, and has made

an ‘independent analysis of the facts of the case to make its custody decision,’ there is no

clear abuse of discretion.” Marriage of McKenna, ¶ 19.

                                      CONCLUSION


                                              17
¶59   The judgment of the District Court is affirmed.


                                        /S/ JOHN WARNER


We Concur:


/S/ JIM RICE
/S/ PATRICIA O. COTTER
/S/ W. WILLIAM LEAPHART




                                           18
Justice James C. Nelson concurs.

¶60    I concur in our discussion and resolution of Issues 3 and 4. I concur in the result of

Issue 1, primarily because the best interests of the child demand that result. I write

separately, however, to express my dismay with the procedural background of this case as

set out in our discussion of Issue 1. I concur in the result of Issue 2, but for different reasons

than the Court.

¶61    Section 40-4-220(1), MCA, states:

       [T]he moving party seeking an interim parenting plan or amendment of a final
       parenting plan shall submit, together with the moving papers, an affidavit
       setting forth facts supporting the requested plan or amendment and shall give
       notice, together with a copy of the 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, based on the best interests of the child, in which case it shall set a
       date for hearing on an order to show cause why the requested plan or
       amendment should not be granted.

¶62    The Commissioners’ Note to § 40-4-220, MCA, also states:

              This section establishes a procedure for seeking temporary custody or
       a modification of a custody decree by motion supported with affidavits. The
       procedure is designed to result in denial of the motion without a hearing unless
       the court finds that the affidavits establish adequate cause for holding a
       hearing. The procedure will thus tend to discourage contests over temporary
       custody and prevent repeated or insubstantial motions for modification.

¶63    As our Opinion points out, in In re Marriage of Allison (1994), 269 Mont. 250, 267,

887 P.2d 1217, 1227-28, we held that the district court erred in granting the father’s motion

to change the custodial parent designation at issue in that case because the father failed to

file a supporting affidavit with his motion. In so holding, we noted--quite simply--that § 40-




                                               19
4-220, MCA, provided no exception to the affidavit requirement, and we “refuse[d]” to

create one.

¶64    Notwithstanding the result we have reached in Issue 1, the rule which we established

in Allison remains clear. Section 40-4-220(1), MCA, requires a supporting affidavit where

there is a motion for an interim parenting plan or amended final parenting plan.       This

Opinion should not be read, in my view, as eroding that requirement in any way whatsoever.

¶65    As for Issue 2, I would not deem Mother's appeal to be a writ of certiorari. Rather

I would review the contempt issue under the doctrine of law of the case. As we point out

in ¶ 46, we told Mother she could file a direct appeal of the contempt order in our April 8,

2003 Order. While we were incorrect in doing so, that necessarily became the law of this

case, and we are bound by that. Scott v. Scott (1997), 283 Mont. 169, 175-76, 939 P.2d 998,

1001-02.

¶66    With those caveats, I concur.



                                                        /S/ JAMES C. NELSON


Chief Justice Karla M. Gray joins in the concurrence of Justice James C. Nelson.



                                                         /S/ KARLA M. GRAY




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