In Re the Marriage of Ulland

823 P.2d 864, 251 Mont. 160, 48 State Rptr. 1159, 1991 Mont. LEXIS 326
CourtMontana Supreme Court
DecidedDecember 30, 1991
Docket91-292
StatusPublished
Cited by10 cases

This text of 823 P.2d 864 (In Re the Marriage of Ulland) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Marriage of Ulland, 823 P.2d 864, 251 Mont. 160, 48 State Rptr. 1159, 1991 Mont. LEXIS 326 (Mo. 1991).

Opinions

JUSTICE HARRISON

delivered the Opinion of the Court.

Jan (Ulland) Gregson appeals the order of the First Judicial District Court, Lewis and Clark County, Montana, which modifies the custody provision of a dissolution decree awarding the parties joint custody of their daughter with physical custody retained by the mother. While retaining the designation of joint custody, the District Court’s modification transferred physical custody of the child from the mother, Jan, to the father, Marcus. We affirm.

The parties present the following issues:

1. Did the District Court err in modifying the primary physical custody of the minor child, Rian?

2. Did the District Court err in failing to follow the child’s wishes concerning physical custody and primary residence?

3. Did the District Court err in failing to appoint independent counsel to represent the child’s interests?

[163]*163To appreciate the circumstances of this appeal, an overview of the litigation involving this marriage dissolution is appropriate at this point. Marcus and Jan Ulland were married on May 21, 1977. They had one child, Rian Marie, born May 8, 1978. The couple separated in September of 1979; the First Judicial District Court entered a decree of dissolution on May 14, 1980. By stipulation of the parties adopted in full by the court, the decree awarded the parties joint custody of Rian naming Jan as the physical custodian and awarding Marcus reasonable visitation. Further, the parties stipulated that if either parent decided to permanently leave Montana, the leaving party would give the other party fifteen days prior written notice. In the event Jan wished to move from Montana with Rian, the parties agreed to set up reasonable visitation to allow Marcus an opportunity to participate in Rian’s upbringing.

On May 14, 1980, the day the District Court entered the decree, Jan gave Marcus the requisite fifteen days written notice that she and Rian were leaving Montana. Approximately three weeks later, Jan and Rian left Montana and Jan remarried.

Upon receiving Jan’s notice, Marcus petitioned the court to modify the visitation provisions in the original decree. The District Court concluded that Jan’s intention to move from Montana was a change in circumstances justifying alteration of the original decree. Accordingly, the court set forth a specific visitation schedule including unlimited reasonable visitation whenever Marcus was in the geographic area of the child.

On August 23,1985, Marcus petitioned the court a second time to modify visitation claiming a change in circumstances. Marcus based this petition on Jan’s constant moving with Rian to different locations without keeping Marcus apprised of his daughter’s whereabouts and phone number, thus making it difficult for him to keep in contact with Rian. When Marcus received no response to his August 23, 1985, petition, he filed a third petition to modify his visitation.

The parties entered into a stipulation, filed with the court November 6,1985, resolving Marcus’ outstanding motions. They agreed that a change in circumstances supported a change in visitation. The stipulation provided a specific visitation schedule and that the minor child would be known by her legal name (Ulland) and she would be enrolled in school under her legal name. The District Court gave this stipulation full force and effect.

On February 17, 1989, Marcus filed his fourth motion to modify the custody provisions. Marcus asked the court to change primary [164]*164physical custody from Jan to him. Alternatively, Marcus asked the court to order physical custody to alternate yearly between Marcus and Jan or to set specific dates for visitation. Marcus based this motion on his claim of Jan’s continual interference with his visitation rights.

The District Court held a hearing on May 18, 1989, concerning Marcus’ February 17, 1989, motion to modify custody. Both parties were represented by counsel. The court verbally admonished Jan for her past interference with Marcus’ visitation. The court rejected a change in primary physical custody at that time and awarded Jan another opportunity to comply with court orders and prior stipulations while retaining primary physical custody of Rian. The court ordered Jan to refrain from interfering and to encourage Rian to develop a relationship with Marcus. As a result of this hearing, the court entered an interim order setting forth specific dates that Rian would visit Marcus, including four weeks during the summer in 1989 and the 1989 Christmas holiday. The court awarded Marcus physical custody of Rian for Christmas break and spring break on an alternating yearly basis beginning with Christmas of 1989. Additionally, the court awarded Marcus physical custody of Rian for six weeks during the summers, beginning with the summer of 1990. The court stressed the importance of Jan’s compliance with this order. The court warned her that if she failed to comply it would hold her in contempt and punish her to emphasize the severity of her continual non-compliance.

Pursuant to the court’s interim order, Rian spent four weeks in the summer of 1989 with Marcus and his new wife. During this visitation, Jan frequently contacted Rian via telephone calls and letters. Jan and her husband refused to address letters to Rian by her legal name, violating the court order and the parties’ November 6,1985, stipulation which provided that Rian would be known by her legal name.

Following the May 1989 hearing, the parties entered into another stipulation attempting to resolve the parties’ difficulties and vitiating the need for the court to issue a final order. This stipulation, adopting the court’s requirements concerning visitation periods, was signed by the parties on December 5,1989, and filed with the court on December 12,1989. Additionally, the stipulation required that Marcus give Jan thirty days notice when he intended to exercise his visitation rights.

Prior to filing this stipulation, Marcus notified Jan that he intended to exercise his visitation rights for Rian’s Christmas break. Jan refused to allow Marcus to exercise his Christmas visitation [165]*165rights, as provided by the court and the December 12, 1989 stipulation, because he failed to give her thirty days notice. Since the court awarded Marcus visitation for Christmas of 1989, but not 1990, and Jan refused visitation in 1989, Marcus tried to arrange his visitation to allow Rian to remain with Jan for Christmas of 1989, but spend Christmas of 1990 with Marcus in Washington. This agreement was reduced to writing but unexecuted by Jan. It was not until January 31, 1990, that Jan’s attorney notified Marcus’ attorney that Jan refused to trade Christmas of 1989 for Christmas of 1990. Needless to say, Marcus lost his court ordered Christmas of 1989 visitation.

Pursuant to the December 12, 1989, stipulation, Marcus notified Jan of his intent to exercise his visitation rights for spring break of 1990. He sent advance purchased airline tickets to fly Rian from Helena to Washington. Jan refused to allow Rian to fly alone. Consequently, Marcus and Jan each drove to Spokane to exchange Rian, thus reducing Rian’s visit with Marcus by two of seven days.

In May of 1990, Marcus notified Jan of his intent to exercise his six week summer visitation. Jan notified Marcus that she was filing a petition to modify visitation because Rian did not want to spend the summer with Marcus. A hearing was scheduled in May but was vacated until August.

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In Re the Marriage of Ulland
823 P.2d 864 (Montana Supreme Court, 1991)

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Bluebook (online)
823 P.2d 864, 251 Mont. 160, 48 State Rptr. 1159, 1991 Mont. LEXIS 326, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-ulland-mont-1991.