97-597




                                                                          No. 97-597

                                       IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                                         1998 MT 96N



                                                               IN RE THE MARRIAGE OF
                                                               PEGGY C. G. SCHAPLOW,
                                                              n/k/a PEGGY C. GANDER,

                                                         Petitioner and Respondent,

                                                                                  and

                                                                  TERRY F. SCHAPLOW,

                                                           Respondent and Appellant.




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


                                                                  COUNSEL OF RECORD:

                                                                      For Appellant:

                         Edmund P. Sedivy, Jr.; Sedivy, Bennett &                                                  White, Bozeman,
                                                  Montana

                                                                     For Respondent:

                        Marcelle C. Quist; Quist Law Office, Southern Pines, North
                         Carolina; Todd Hillier, Attorney at Law, Bozeman, Montana



                                                Submitted on Briefs: March 26, 1998

                                                           Decided:             April 30, 1998
                                                                              Filed:


                                          __________________________________________

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 97-597


                                                                                  Clerk

                                              MEMORANDUM


¶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 this Court.

¶2   Terry F. Schaplow (Terry) and Peggy C. G. Schaplow (Peggy)
dissolved their marriage on May 6, 1991. At the time of dissolution, the
parties agreed to a joint custody arrangement for their two sons, Jay and Jesse.
Since that date, the parties have continually involved the courts in their
day-to-day disagreements as to the interests of Jay and Jesse, most of which involve
the boys' sports activities. On February 3, 1997, Terry moved for modification
of custody, requesting sole custody of the boys as a result of Peggy's refusal
to deliver the boys to sports practices. The District Court issued an order to
show cause and set a hearing for April 29-30, 1997. Thereafter, the parties
flooded the court with various motions and briefs. The District Court
responded by appointing a guardian ad litem and attorney for the children and
holding the modification matter in abeyance.

¶3   On June 13, 1997 and July 25, 1997, Terry filed renewed requests for
a hearing on his motion for modification and requested that certain summer
visitation and seasonal sporting matters be heard. On August 21, 1997, after
receiving the report of the guardian ad litem, the District Court held a hearing
for the purpose of determining three limited issues: 1) Which school should
Jay Schaplow attend in the fall of 1997, Sacajawea Middle School or Chief
Joseph Middle School? 2) Should Terry be allowed to petition the Montana
High School Association on Jesse Schaplow's behalf for a "waiver" to allow
Jesse to compete in basketball as a sophomore rather than a junior? 3) Should
Jay Schaplow play fall soccer? The District Court ruled on the three issues,
then, in its Memorandum, stated "though not an issue before the Court on the
August 21, 1997 hearing, it is the Court's distinct impression after speaking
with the children that the children prefer the present custody arrangement to
any sole custody arrangement with either parent and the Court agrees that the
present arrangement is in the children's best interests." It is from this
statement that Terry appeals.

¶4        Terry presents two issues on appeal:

¶5   1) Did the District Court violate Terry's procedural due process rights
by denying his motion for sole custody without holding a hearing or reviewing
any evidence?

¶6   2) Did the District Court err by disregarding the law of the case?
We dismiss the first issue for lack of jurisdiction and affirm the second issue.
                       Discussion

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                                                      I

¶7   1) Did the District Court violate Terry's procedural due process rights
by denying his motion for sole custody without holding a hearing or reviewing
any evidence?

¶8   Terry asserts that the above ruling is a final order denying his motion
for modification. Terry further asserts that the District Court violated his due
process rights by ruling on his motion without conducting a hearing. Peggy
asserts that the order is interlocutory, issued for the sole purpose of
determining the three stated issues and is not a final appealable order on
Terry's motion. As a result, Peggy asserts that this appeal should be dismissed
for lack of jurisdiction. We agree.

¶9   Terry requests that this Court reverse the decision of the District Court
and remand the matter for a hearing on his motion for modification. Terry
asserts that the failure of the District Court to hold a hearing regarding his
motion for modification deprived him of due process rights. However, we
determine that the District Court's Order and Memorandum was issued as a
final judgment as to the three limited issues, and was not a final order as to
Terry's motion for modification.

¶10 The Montana Rules of Appellate Procedure provide that appeal can be
taken only from a final judgment. Rule 1, M.R.App.P. "A final judgment is
one in which there has been a final determination of the rights of the parties,
and any decree which leaves matters undetermined is interlocutory in nature
and is not a final judgment for purposes of appeal." Kirchner v. Western
Montana Mental Health Center (1995), 272 Mont.110, 112, 899 P.2d 1102,
1104. We determine that the District Court's Order and Memorandum, despite
mentioning its "impression" regarding custody, was not a final judgment on
Terry's motion for modification. Terry's due process argument assumes that the
District Court issued a final judgment on his motion. Since there was no such
final judgment, the present appeal is premature and must be dismissed for lack
of jurisdiction.
                           II

¶11       2)     Did the District Court err by disregarding the law of the case?

¶12 The District Court, in December 1994, issued a "final" determination
of visitation rights. The visitation schedule ordered that "[w]hen the boys are
with [Peggy], she shall insure that the boys attend the sports activities they
participate in." Terry has since interpreted this portion of the District Court
Order as "the Sports Participation Clause." This Court, in its prior opinion in
this case, upheld the District Court's 1994 order regarding visitation and the
court's subsequent contempt orders against Peggy for failing to deliver the
boys to their sports activities. Terry argues that the Sports Participation
Clause, as upheld by this Court, is the law of the case. Furthermore, Terry
argues that the District Court, in its most recent Order and Memorandum,
holding that Jay was not required to participate in soccer, violated the law of
the case. Peggy's response asserts only that Terry's argument is illogical and
that the District Court has continuing jurisdiction to amend custody matters.

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This Court reviews the district court's conclusions of law to determine whether
the court's interpretation of the law is correct. Carbon County v. Union
Reserve Coal Co., Inc. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

¶13 As a preliminary matter, we determine that the issue of whether the law
of the case doctrine requires that Jay play soccer is moot because the 1997
soccer season has passed. However, we address the issue of whether the
Sports Participation Clause is the law of the case to avoid future confusion as
to the law of the case doctrine and its application to this case. We explained
in Doting v. Trunk (1993), 259 Mont. 343, 347-48, 856 P.2d 536, 539, that
"[w]hen this Court states in an opinion a principle or rule of law necessary to
the decision, such statement becomes the law of the case and controls
throughout its subsequent progress, both in the trial court and upon subsequent
appeal." This Court, by upholding the District Court's contempt orders, did
not create a "law of the case" requiring that the boys participate in sports.
Rather, this Court upheld the District Court's holding that if the boys
participate in a particular sports activity, Peggy must insure that the boys
attend the activity. Terry misinterprets this Court's Opinion as requiring Jay
to participate in soccer. We determine that the District Court's refusal to apply
the Sports Participation Clause, as interpreted by Terry, as the law of the case
was correct.

¶14 We further determine that the District Court did not err in determining
that Jay is not required to participate in soccer. We note that in ordering that
Jay did not have to play, the District Court considered the report of the
guardian ad litem, the testimony at the August 21, 1997 hearing and the
personal interview the court conducted with the boys. As a result, the District
Court had a firm impression that Jay did not want to play soccer and that it
was not in Jay's best interest to force him to participate in sporting activities
to which he was opposed.

¶15 In determining the best interests of the child, § 40-4-212, MCA, allows
the District Court to consider the wishes of the child. Given his age and
maturity, Jay is in a better position than either parent to decide which
extracurricular activities suit him. We determine that the District Court's
reliance on the wishes of Jay is not erroneous. Affirmed in part and dismissed
in part.

/S/       W. WILLIAM LEAPHART
/S/       JAMES C. NELSON
/S/       KARLA M. GRAY
/S/       JIM REGNIER
/S/       TERRY N. TRIEWEILER




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