                                          NO.        95-108

                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                1995


IN RE MARRIAGE OF
PATRICIA       ANN ROBERTS,
                Petitioner         and Respondent,

         and
DAVID     ROBERTS,
                Respondent



APPEAL     FROM:        District  Court of the Thirteenth   Judicial                  District,
                        In and for the County of Yellowstone,
                        The Honorable   Maurice R. Colberg,    Judge                 presiding.


COUNSEL OF RECORD:
                For   Appellant:
                        Mark D.      Parker,   Parker          Law Firm,
                        Billings,      Montana
                For   Respondent:
                        Allen     Beck, Attorney          at    Law,
                        Billings,      Montana


                                          Submitted           on Briefs:   October      19,       1995
                                                                Decided:   December      5,       1995
Filed:



                                                Cl
Justice             Terry               N.     Trieweiler                   delivered               the          opinion            of      the     Court.
          Pursuant                      to     Section               I,      Paragraph              3(c),             Montana             Supreme           Court
1995      Internal                  Operating                   Rules,             the       following                 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        State                Reporter                   Publishing               Company               and        West          Publishing

Company.

          Patricia                      Roberts              filed           a petition                   in      the     District                 Court         for

the       Thirteenth                           Judicial                    District                in          Yellowstone                   County              for
dissolution                   of         her       marriage                 to     David       Roberts.                   Following                a two-day
hearing             at    which                the         parties               presented               evidence              in      support         of        and

in opposition                       to various                   pre-dissolution                          motions,              the       court       entered

an      order            in        which              it      disallowed                     any        visitation                   by     David           until

further             order               of     the         court          and ordered                   that          he not        enter          Melstone,

Montana.                 David               appeals               from          the       order         of      the     District                 Court.

          We restate                         the       issues              on appeal               as follows:

          1.             Did             the         District                Court           abuse              its      discretion                  when           it

modified             the       temporary                      visitation                    arrangement?

          2.             Did             the         District                Court           violate                  David's             right        to        due

process             when           it        amended               the      pleadings               to         include          David's             right           to

visitation?
          3.             Did             the         District                Court           abuse              its      discretion                  when           it

admitted             tapes               of conversations                          recorded               without             David's             knowledge?

          4.             Did             the       District                  Court          violate               David's              constitutional

right          to        travel                 when            it         ordered            that             he       not         enter          Melstone,

Montana?

                                                                                       2
                                           FACTUAL BACKGROUND
         David and Patricia                were married               on March 13, 1958.                        They have
eight         children,        three      of whom are                minors:           Brian       Keith         Roberts,
age 16;          Raina      Christina        Roberts,               age 11;         and Kyla            Ann Roberts,
age     8.

         On August           31, 1994, Patricia                 filed        a petition           for     dissolution
of      her      marriage        to     David.         She filed                an exparte             motion         for      a

temporary           restraining            order       and          temporary           injunction,                  and     an
affidavit          at the same time.                 Patricia's               affidavit           stated         that       she
fled     the      family      home on August            25, 1994,              and did         not disclose                 her
whereabouts           because         she feared         for         her     life      and the          lives         of her
minor         children.              The affidavit              stated          that        she    was concerned
because David experienced                     mood swings and made repeated                                 threats          to
her and her adult               children,          which        included            threats       of suicide,               and
assault,          and threats           to kill      them.
         On the           same day,        the     court            issued      a temporary               restraining
order         prohibiting        David      from     molesting               or disturbing              the peace of
Patricia          and the minor children.                      It    also granted             temporary              custody
of the minor              children      to Patricia            and set September                  8, 1994, as the
date     on which David could                 show cause why further                          relief        should          not
be granted.
         The show cause                 hearing      was actually                    held     on September                  12,
1994.          On September           15, 1994, the parties                    stipulated           to a temporary
restraining           order      and other          temporary              relief         to remain             in    effect
until         September       27, 1994.


                                                           3
         On September           27,     1994,     a second show cause hearing                               led     to a
second stipulation               regarding            temporary           custody,        visitation,              child
support,        and maintenance.                The parties               agreed       that     Patricia          would
have sole        custody       of the minor            children           until      further         order    of the
court;      David would have supervised                           visitation           until      further          order
of   the court;          and the parties               would        submit         to an evaluation                 by a
family      therapist         and a psychologist                  who would make a recommendation
regarding          appropriate         visitation.                 The stipulation               also       enjoined
David      from molesting             or disturbing            the peace of the petitioner                           and
the minor        children        and Patricia            from doing the                same      to David.           The
stipulation            also      forbade         David        from        having         any      contact           with
Patricia        or     the     minor      children           at     Patricia's            residence           or     any
school        that      the    minor       children           attend,          and      from      removing           the
children        from the State            of Montana.
         On October           24, 1994,      Patricia             filed     another        exparte      motion       for

temporary        restraining           order.         She requested               exclusion       of David from
the community            of Melstone,            Montana.             She based her              motion       on her
own affidavit           and the affidavits                   of Sam Damon and John Emigh, whom
she had hired             as bodyguards.                 In her           affidavit,            Patricia          noted
numerous occasions               on which David had violated                           the stipulation               and
order      dated     September         30, 1994.
         On November 14, David made several                               motions.             He moved to have
Patricia        held     in contempt            for    violating            the visitation               order,        to
have the        children         interviewed            in    chambers             regarding         custody,          to
have the court            seek advice           from a professional                     person       pursuant          to
§ 40-4-214(2),            MCA, for       an investigation                  and report            concerning          the

                                                         4
custody         of the minor               children            pursuant             to $Z40-4-215,               MCA, for          an
order        requiring           family         law mediation                  pursuant          to     § 40-4-301,            MCA,
and for         the appointment                  of an attorney                     to represent               the     interests
of     the     children            pursuant            to    § 40-4-205,                  MCA.        David's         motion       to
have         Patricia          held        in     contempt              was based             on his            unsuccessful
efforts         to exercise            visitation.
          On December 6 and December 7, 1994,                                             the court       held         a hearing
to consider               evidence       pertaining             to the parties'                   motions.             Following
the hearing,                the court           issued        its       findings           of fact,        conclusions             of
law,      and order             in which          it        granted          all     of David's           motions          except
the      motion           to have Patricia                   held       in     contempt           and the motion                for
family         law        mediation.              The court                  deemed the               pleadings          amended
pursuant             to     Rule      15(b),            M.R.Civ.P.,                  to     include        the         issue       of
temporary              custody         and        visitation                  and         modified         the         temporary
custody,             visitation,            and restraining                         order     dated        September            30,
1994,        to prohibit             visitation               by David             until      further          order       of the
court.          It     also     ordered          that        David not enter                 the town of Melstone,
Montana.
                                                             ISSUE 1
          Did the District                  Court           abuse its              discretion          when it          modified
the temporary                 visitation           arrangement?
          We review              a district                 court's          findings            of     fact         related       to
visitation                modification            to        determine              whether        those        findings         are
clearly         erroneous.               In re MarriageofElser                     (Mont.     1995),           895 P.2d        619,

622,      52 St.          Rep. 434, 436 (citing                         MarriageofJohnson              (1994),         266 Mont.


                                                                    5
158,       166,      879 P.2d 689,               694).         When a district                      court's          underlying
findings            are      not       clearly       erroneous,                 this        Court         will      overturn           a
district            court's        modification                of visitation                    rights           only      when an
abuse of discretion                     is clearly        demonstrated.                        Elser,      895     P.2d at 622.

           Section           40-4-217(3),          MCA, governs                  modification                    of visitation
rights        and provides:
           The court      may modify         an order     granting     or denying
           visitation    rights    whenever modification          would serve the
           best interest       of the child;       however, the court may not
           restrict   a parent's        visitation     rights    unless it finds
           that the visitation       would endanger seriously          the child's
           physical,   mental,     moral     or emotional     health.
           In its      order,          which temporarily                   prohibited              David from visiting
his minor            children,           the court        concluded               that        " [vlisitation                between
David and the minor                     children       would seriously                        endanger the physical,
mental            and emotional             health       of         the    children."                    On appeal,           David
contends            that      serious       endangerment                  was not proven.
           However,            after       a review                of     the     record,               we conclude             that
serious           endangerment             was proven.                  The District              Court          set forth       the
following            facts      in its       order.           It        found that            David made comments to

the      Deputy        Sheriff,           Floyd       Fisher,             which         could           be interpreted             as
threats           to take       the life         of Patricia                and others;                 that      David may be
a very             violent         and dangerous                   person;             that       Patricia              had    hired
bodyguards             to protect            her because                  of her         fear       of David;              and that
the      three        adult        children          who testified                     at     the        trial       all      feared
their         father          and thought            he dealt              inappropriately                       with      them or
other        siblings          when they           were growing                 up.



                                                                    6
           A review               of        the     record            demonstrates                      that         the            court's               findings

were         supported                      by      substantial                     evidence.                        Specifically,                                Kevin
Roberts,             the     couple's                   24-year-old                     son,     described                    David               as a violent

man and testified                            that         he saw David                     place             a knife                to         the       throat        of

a man and              then            was asked                    by David              to         obtain          a gun                  for        him        so he

could        kill          the     man.             Christopher                     Roberts,                 the     couple's                      19-year-old

son,       testified               that            he had been afraid                            of      his        father                 for        as long          as

he      could         remember.                         Patricia             testified                  that         David                     threatened              to
commit           suicide           and take                   the     family             with         him          and threatened                            to    take

the       minor            children                 to        a     foreign               country.                       The              Deputy             Sheriff

testified              that            David            Roberts           had           threatened                  to            "kill           that        bitch"

when         his       minor                children                refused               to         visit           him              at         a       scheduled

visitation                 time.

           We conclude                      that        the       District               Court's             findings                     of      fact       are not

clearly             erroneous,                    and that            the       court           did          not     abuse                 its        discretion

when        it      modified                 the         parties'               temporary                    visitation                          agreement             to

prohibit             visitation                    by David.

            Furthermore,                         David's             contention                      that          the            District                   Court's

custody             order         deprives                 him       of      parental                 rights             in         violation                 of     the

rule        set      forth             in        Babcockv. Wonnacott (1994),                                 268 Mont.                         149,       885 P.2d

522,        is      without             merit.                The parties'                      September                 27,              1994,          stipula-

tion         gave          temporary                     custody               of        the          children                     to          Patricia              and

provided              that         "in            the      event          of        her         absence              .        .       . Kevin                Roberts

shall        be the              custodian                 to       supervise                  the      children                    in         her       place       and

stead."                    The         court's                  order           preserved                     the             alternate                      custody

agreement              and         merely                changed             the         visitation                  arrangement.                                 David

                                                                                    7
agreed             to the alternate                custody        arrangement,                   and therefore,                Babcock

is not on point.
                                                               ISSUE 2
          Did        the District                Court     violate            David's            right      to due process
when          it      amended             the      pleadings             to     include             David's            right       to
visitation?
          The District                   Court     deemed the pleadings                           amended and modified
the existing                order        related      to custody              and visitation,                    although       none
of      the        motions         directly         sought        denial         of        all     visitation.                 David
asserts             that     the court's             amendment of the pleadings                                   violated        his
right         to due process                  because he was not given                             notice         of the issue
which         would         be considered             and an opportunity                          to respond.
          Rule 15(b),               M.R.Civ.P.,            permits            the amendment of pleadings                           to
conform             to the evidence.                 The evidence               presented                did concern           child
custody             issues         in     general        and whether             visitation                 by David           would
endanger              the     children.              First,            David's         own motions                  related        to
custody              which         involves          the         subject         of         visitation.                   Second,
Patricia's             affidavit            stated        that     she was afraid                   that         visitation        by
David          would         have         placed         the     children             in         danger.            Third,        the
affidavit             of      Patricia's            bodyguards            stated           that      David         made direct
threats             against        the safety            and health           of Patricia                 and other           family
members.
          Finally,             the        court,      on several                occasions,                made statements
which         indicated            that     the question               of visitation                 was at issue.                For
example,             when the hearing                began the court                       stated         that      "I was told
in chambers                 that        the major        issue         that     is pending               before        the court

                                                                   8
is     related           to     the       visitation                  of     the           respondent               with         his      children."
And,      in      response              to an objection,                             the     court       stated             that         "I    think          an

issue        in     this        case         would            be whether                    the     children           may or may not                         be

endangered               by the           presence               of        Mr.        Roberts,            and I want                    to     hear      the

evidence            about            that."              In      another                   response            to     an objection,                      the

court        stated           that        'I[ w 1 e're          in    custody                disputes           and problems                     that         we

have      to endanger                   kids."            David            failed            to object              to the             presentation

of      evidence              of        serious               endangerment--the                           statutory                    standard               to
modify            visitation--and                         failed              to            take       issue          with             the      court's

characterization                        of       the      issues.

          David's              effort         to prove                Patricia's                    violation              of      the        temporary

visitation                 agreement                    required                     testimony             which                 concerned               the

visitation              agreement,                    and therefore,                        we conclude               that         David's            right

to     due process                 was not              violated              when it                modified              the      pleadings                 to

conform           to     the       evidence.

                                                                      ISSUE            3
          Did       the        District                Court         abuse            its         discretion               when it             admitted

tapes        of     conversations                       recorded              without                David's          knowledge?

          David          contends             that        the        tapes            of conversations                       between            his      son

Dino         and        him          were             admitted               over             objection                in          violation                  of

5 45-8-213,                   MCA,           which            prohibits                     the       taping           of          conversations

without           the         consent            of     all      parties.

          Rule          103,       M.R.Evid.,                  provides                that:

                  (a)               Effect             of erroneous    ruling.        Error    may not be
          predicated                   upon             a ruling     which       admits     or   excludes
          evidence                 unless              a substantial       right     of the party         is
          affected,                 and


                                                                                 9
                  (1)   Objection.       In case the ruling     is one admitting
           evidence,    a timely    objection     or motion  to strike   appears
           of record,    statincr    the suecific     ground of obiection,       if
           the specific      ground     was not apparent      from the context
            . . . .

(Emphasis                 added.)              We have                stated             that         we will          only           consider           on

appeal           objections                 made           at        trial          that         are        timely,              specific,              and

based         on the              correct         grounds.                     Guertin v. Moody’s Market, Inc.                          ( 19 94 ) , 2 6 5

Mont.         61,     67,         874 P.2d            710,           714;      Bachev.Gilden                (1992),             252 Mont.             178,

182,       827 P.2d                817,        820.

          At        the     hearing,              David              objected             to     the       admission               of     the     tapes

because             they          had      just        been           handed             to     his       attorney              and       he had         no

idea      what        they          said,         and because                      a quick               review       of        the      transcript

of      the         tapes            (admitted                  at       the         same           time)          revealed                that         the

conversation                      was actually                  a negotiation                       between           Dino,           negotiating

for      Patricia,                and David,                and negotiations                             are not      admissible.                    Now,

on appeal,                 David         contends               that         the     tapes            should       have          been        excluded

because             they      were         recorded              in      violation                  of     § 45-8-213,                  MCA.      David

did      not        object           on this               basis         at        the        hearing.             Therefore,                  we hold

that       the       court           did       not         abuse         its        discretion                when         it      admitted             the

tapes.              We also             note      that          we reached                    our        conclusion              under          Issue         1

without             consideration                     of     the        tapes            at     issue.

                                                                        ISSUE 4

           Did the           District             Court              violate             David's           constitutional                    right       to

travel         when          it     ordered            that            he not            enter           Melstone,              Montana?




                                                                               10
         The District              Court     prohibited            David        from      entering         the        small
community           of Melstone,           Montana,         in order          to effectively              enjoin        him
from disturbing                the peace of Patricia                     and his minor             children.
         Section        40-4-121,          MCA, provides               in part         that:
                 (2)  As a part of a motion for temporary maintenance
         or support       or by independent       motion   accompanied      by
         affidavit,    either    party may request the court to issue a
         temporary    injunction      for any of the following    relief:
                 .   . .
                 (b)  enjoining    a party from molesting     or disturbing
         the peace of the other party           or of any family       member
          . . . .
         We conclude            that     the District             Court        did     not restrict             David's
right      to     travel       but merely              placed     reasonable            restrictions             on the
distance         David must keep from his estranged                              family        until      the issues
raised        in the parties'            pleadings          are finally              resolved.         The Melstone
community           simply      happened to be the                     frame     of reference             chosen          by
the     court.             Considering           its      size,        this     restriction             should          not
unreasonably            interfere          with        David's     right        to travel.
         Neither        did     the court              abuse its        discretion             by imposing             this
restriction            on David's          activities.                 The town of Melstone                     is very
small         and     Patricia's           residence             can    be     seen       from         most      of     the
businesses.             At the time          of the hearing,                   Patricia         had a temporary
restraining            order       which barred            David       from coming into                 the town of
Melstone         and she testified                that     the order           assisted          her because she
did     not      "have to worry            all         day about        what he's          doing        or if         I see
his     truck,       to be afraid.               I don't        have to be afraid                to let       the kids
walk back and forth                    from school          and do their               normal      things."             She
also      testified           that      she needed an additional                           restraining                order


                                                            11
keeping       him out of Melstone              "because       it    takes         a lot   of stress           off
me and takes        a lot     of stress        off     of the kids.                We can move around
freely       and not live      with     this      constant         fear     all     the   time."

         We conclude        that    David's          constitutional               right    to      travel      is
neither       implicated      nor     infringed           upon by the court's                 order         which
prohibits       him from entering          Melstone.               For these         reasons       we affirm
the court's       order     which modified            the parties'           temporary          custody       and
visitation       agreement.




We concur:




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