                             f



                             No.     95-070

           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1995



IN RE THE MARRIAGE OF

KATHLEEN A. KOVASH,
           Petitioner and Respondent,

     and
MYRON J. KOVASH,
           Respondent and Appellant.




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


COUNSEL OF RECORD:
           For Appellant:
                Mark P. Yeshe, Attorney at Law, Helena, Montana

           For Respondent:
                Derik Pomeroy, Attorney at Law, Bozeman, Montana
                K. Amy Pfeifer, Attorney at Law, Department of
                Social and Rehabilitation Services, Helena, Montana
                (Attorney for Child Support Enforcement Division)
                Todd R. Hillier, Attorney at Law, Bozeman, Montana
                (Attorney for Guardian Ad Litem)
                Bruce E. Becker, Attorney at Law, Livingston,
                Montana (Attorney for Jeffrey Kovash)



                                   Submitted on Briefs:   June 20, 1995
                                               Decided:   July 25, 1995
Justice William E. Hunt, Sr., delivered the opinion of the Court.

        Appellant Myron Kovash appeals the visitation schedule issued

sua sponte by the Eighteenth Judicial District Court,                        Gallatin

County.       We affirm.

        The sole issue on appeal is:

        Did    the    District    Court    err   when   it    issued   a   visitation

schedule sua sponte?

        The parties were divorced in 1992.                   They have four minor

children.       Myron resides in Livingston, Montana, and respondent,

Kathleen Kovash, resides in Kellogg, Idaho.                  In the divorce decree,

Kathleen was granted sole custody.               Myron's visitation rights were

to be terminated if he failed to comply with certain conditions in

the decree.          The first visitation schedule issued by the District

Court covered the period from August 31,                 1992,    through July 31,

1993.     In September 1993, the two older children began residing

with Myron in Montana, while the two younger children stayed with

Kathleen in Idaho.         The subsequent visitation schedules concern the

two younger children.            The second visitation schedule covered the

period from December 26, 1993, through January 2, 1994.                     The third
visitation schedule covered the period from April 1, 1994, through

August 19, 1994.

        In the fall of 1994, the District Court requested the Guardian

Ad Litem to submit a recommendation concerning visitation.                     After

she submitted her recommended visitation schedule to the District

Court,    it    issued     an    order    containing    the    current     visitation

schedule.       The current visitation schedule covers the period of

                                            2
December 16, 1994, through August 26, 1995.                 Myron bases his appeal

on this last visitation schedule.

                                        ISSUE

     Did   the   District       Court   err     when   it    issued       a   visitation

schedule sua sponte?

     Our   standard    of   review      for     a   district    court's         decision

concerning visitation is whether it abused its discretion.                         In re
Marriage of Hunt      (1994),    264 Mont. 159, 164,           870 P.2d 720,        723,

(citing In re Marriage of Anderson (1993), 260 Mont. 246, 252, 859

P.2d 451, 454).

     Myron argues that the District Court violated                    §   40-4-217(1),

MCA, when it denied his proposed visitation schedule and issued its

own without a hearing.

     The proper statute governing a district court's continuing

jurisdiction over visitation is          §    40-6-118, MeA.

     The court has continuing jurisdiction to modify or revoke
     a judgment or order:

           (2)    with respect to matters listed in 40-6-116(3)


     Relevant portions of        §   40-6-116, MCA, state that:

     (1) The judgment or order of the court determining the
     existence   or  nonexistence   of   the  parent  child
     relationship is determinative for all purposes.

           (3) (a) The judgment or order may contain any other
     provision directed against the appropriate party to the
     proceeding concerning the custody and guardianship of the
     child, visitation privileges with the child . . . or any
     other matter in the best interest of the child.

(Emphasis added.)



                                         3
    ..


            In the instant situation, Myron had the hearing required by

§        40-4-217, MCA, before his visitation rights were terminated in

the decree         of dissolution.          The District Court                    suspended that

termination         of   visitation pursuant             to     Myron's         compliance              with

certain conditions.          The District Court has continuing jurisdiction

to monitor Myron's compliance with those conditions and to grant

visitation accordingly.              The visitation that Myron has enjoyed did

not        change his    status.      He    is       still a     parent with terminated

visitation rights.           That status has merely been suspended by the

District Court based on Myron's compliance with the conditions in

the decree of dissolution.             Pursuant to         §§   40-6-118 and -116 (3) (a) ,

MCA,        the   District   Court    has    continuing          jurisdiction                to        issue

visitation schedules in conjunction with Myron's compliance with

those conditions.

           We hold that the District Court did not abuse its discretion

when it issued the current visitation schedule sua sponte.

           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.




                                                                   '-.,.   --
                                             (i, (    r (', Y i /i'~/-'!        I,!   ·'-it:l~·/   /
                                                              Justice




                                                 4
      '"   "




     We concur:




<-' -'
 )         Chief Justice



     Nf~L




                           5
...     ..                                                                               ,   ,




Justice James C. Nelson specially concurs.

        I     concur   in    the    result         of     our    opinion,      but    not        in   its

rationale.         I   would hold that the District Court erred ln not

holding a hearing on modification of the custody order, but would

also hold that the error was harmless given that the order entered

by the court substantially complied with the proposed visitation

requested        by Myron         and    in    view      of     the   recommendation             of   the

guardian ad litem.

        More     importantly,           we    do   not     cite       any    authority       for      our

application of         §§   40-6-118 and 40-6-116, MCA, which are part of the

Uniform Parentage Act, Title 40,                         Chapter 6,         part 1, MCA,         to the

modification of custody issue in this marriage and divorce case.

In    that      respect,      I    note       that       neither      party     has   argued          the

application of those statutes to this dispute, and I have strong

reservations about whether either statute is appropriately applied

here.        Under the circumstances, I would not decide this case on the

basis of those statutes.




                                                     6
