Duke v


                                                 Duke v. Corcoran
                                               Decided Feb. 5, 1998
                                        (NOT TO BE CITED AS AUTHORITY)

                                                               No. 97-238

                       IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                            1998 MT 19N

                                         IN RE THE VISITATION OF:
                                    RACHEL MARIE ELIZABETH CORCORAN
                                       and JACOB DANIEL CORCORAN

                                             AGNES ELIZABETH DUKE and
                                                 JAMES ROY DUKE,

                                                   Petitioners and Appellants,

                                                                      v.

                                                   KENNETH CORCORAN,

                                                 Respondent and Respondent.

                           APPEAL FROM: District Court of the Thirteenth Judicial

                                                                 District,

                                           In and for the County of Yellowstone,

                                       Honorable Diane G. Barz, Judge Presiding.

                                                   COUNSEL OF RECORD:

                                                            For Appellant:

                                   Jock B. West, West, Patten, Bekkedahl & Green,

                                                          Billings, Montana

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                                                           For Respondents:

                                        Christopher P. Thimsen, Billings, Montana

                                           Submitted on Briefs: January 15, 1998

                                                   Decided:         February 5, 1998

                         Chief Justice J. A. Turnage 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 but 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 the Court.


¶2 Agnes and James Duke appeal from the order of the Thirteenth
Judicial District Court, Yellowstone County, denying their motion
to set a show cause hearing. We reverse.


¶3 The sole issue raised on appeal is whether the District
Court abused its discretion when it denied the Dukes' motion to
set a show cause hearing.


                  BACKGROUND
¶4 Kenneth and Janiece Corcoran had three children, two of whom
are still minors. Janiece died, and the Dukes, Janiece's parents,
petitioned for visitation of their two minor grandchildren. The
Dukes did not pursue their petition, and it was dismissed in May
1993.


¶5 In June 1993, the Dukes petitioned for grandparent visitation
pursuant to Sec. 40-4-217(2), MCA (1981). The District Court

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received a Court Services report in November 1994, which
recommended supervised visitation. Supervised visitation occurred
until April 1996, when the Dukes moved for a hearing to review the
Court Services' recommendation for supervised visitation. The
District Court denied the Dukes' motion, and Kenneth terminated
visitation.


¶6 In September 1996, the Dukes moved the court to issue an order
to Kenneth to show cause why he was not allowing visitation.
Kenneth objected to setting a show cause hearing. The District
Court, without a hearing, denied the Dukes' motion to set a show
cause hearing and dismissed their petition for visitation. The
Dukes appeal from that order.


                        DISCUSSION

¶7 Did the District Court abuse its discretion when it denied the
Dukes' motion to set a show cause hearing?


¶8 This Court will overturn a court's custody or visitation
decision only when the court's findings and conclusions clearly
demonstrate an abuse of discretion. In re Marriage of Hunt (1994),
264 Mont. 159, 164, 870 P.2d 720, 723. Therefore, we consider
whether the District Court abused its discretion when it denied the
Dukes' motion to set a show cause hearing.


¶9 The Dukes argue the District Court violated their due process
rights because it did not afford them a hearing as required by Sec.
40-9-102, MCA, and Sec. 40-4-217(2), MCA (1981). Kenneth responds
that the Dukes asked the court to grant them visitation without an
evidentiary hearing, which the court properly refused to do. He
further argues that the Dukes failed to provide the court with any
legal authority in support of their request for visitation.


¶10 Section 40-9-102(2), MCA, formerly Sec. 40-4-217(2), MCA

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(1981), permits the grant of visitation to grandparents upon the
petition of a grandparent if the court finds, after a hearing, that
visitation would be in the best interest of the child. Bradshaw v.
Bradshaw (1995), 270 Mont. 222, 235, 891 P.2d 506, 514 (emphasis
added).


¶11 The District Court did not afford the Dukes a hearing on their
September 1996 motion for a show cause hearing. The District
Court's denial of a hearing contradicts the express mandate of Sec.
40-9-102(2), MCA, which requires a court to hold a hearing to
determine whether grandparent visitation is in the best interests
of the children.


¶12 We conclude the District Court abused its discretion when it
denied the Dukes' motion to set a show cause hearing on their
petition for grandparent visitation. Accordingly, we order the
District Court to conduct a hearing on the Dukes' petition for
visitation of their minor grandchildren.


¶13 Reversed and remanded with instructions consistent with this
opinion.


                           CHIEF JUSTICE TURNAGE
We concur:
/S/ WILLIAM E. HUNT, SR.
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
/S/ KARLA M. GRAY




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