Schiller v. Schiller

2002 MT 103, 47 P.3d 816, 309 Mont. 431, 2002 Mont. LEXIS 202
CourtMontana Supreme Court
DecidedMay 16, 2002
Docket01-614
StatusPublished
Cited by11 cases

This text of 2002 MT 103 (Schiller v. Schiller) 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
Schiller v. Schiller, 2002 MT 103, 47 P.3d 816, 309 Mont. 431, 2002 Mont. LEXIS 202 (Mo. 2002).

Opinion

JUSTICE LEAPHART

delivered the Opinion of the Court.

¶ 1 John Calvin Schiller appeals from the Eighteenth J udicial District Court’s Amended Temporary Order of Protection. We affirm.

¶2 We re-state the issues on appeal as follows:

¶3 (1) Did the District Court err in failing to issue findings of fact and conclusions of law?

¶4 (2) Did the District Court err in amending the temporary order of protection?

¶5 (3) Did the District Court err in refusing to hear evidence of domestic violence preceding the parties’ marriage?

FACTUAL AND PROCEDURAL BACKGROUND

¶6 John Calvin Schiller (John) and Amie Jo Schiller (Amie) were married on September 19, 1998. Their only child, Kyle, was born on April 6,1999. They reside in Belgrade, Montana.

¶7 On June 16, 2001, John and Amie went to a friend’s wedding in Miles City. They attended the reception together and then went to a bar in town with friends. John and Amie were staying at John’s parents’ home in Miles City, and his parents took Kyle home earlier in the evening. Both John and Amie consumed alcohol throughout the *433 night.

¶8 After going into town, Amie wanted to leave, but John did not. An argument ensued, and John testified that Amie threatened to return home to Belgrade with Kyle. Amie then left the bar and went to John’s parents’ home. Around 4:30 a.m., one of the bridesmaids gave John a ride home. After visiting with the bridesmaid upon reaching his parents’ home for, according to Amie, approximately 15-20 minutes, John entered the home and a further argument ensued. Amie testified that John pushed her and called her an “immature bitch.” Amie admitted that she then hit John in the face twice and chipped his tooth. During this time, Kyle was asleep and did not witness the incident.

¶9 Three days later, John filed a petition for temporary order of protection for Kyle and himself in Gallatin County. He alleged that Amie assaulted and endangered him. He recounted the wedding incident and also alleged that Amie struck him with a closed fist before they were married. In addition, he alleged that, on a previous occasion, Amie “backhanded” Kyle so that he hit his head on a chair and, on another occasion, she said that Kyle drove her “so crazy most of the time [she] could just shoot him.” John alleged that Amie stole prescription drugs from the pharmacy at which she worked, administered them to Kyle and offered them to others. The District Court granted John’s petition and prohibited Amie from contacting both John and Kyle. John then filed a dissolution action in Gallatin County.

¶10 Pursuant to § 40-15-202(1), MCA, the District Court held a hearing on June 29,2001, regarding the temporary order of protection. John testified regarding his allegations and denied pushing Amie and calling her names. On John’s behalf, others testified that Amie had obtained or offered to obtain prescription medication for them. Amie admitted hitting John and increasing her Paxil dosage without a prescription, but she denied all of John’s other allegations. She testified that she had prescriptions for the antibiotics that she obtained and administered to Kyle. Amie’s supervisor at the pharmacy testified that he did not believe that Amie had stolen drugs from the pharmacy. A letter he wrote prior to the hearing, which was admitted at the hearing, explained that the pharmacy permitted employees to obtain uncontrolled prescription drugs and pay for them later. Employees were required to record such transactions in a notebook. Amie’s supervisor stated that she was “up to date” on her transactions.

¶11 After the hearing, the District Court issued an Amended Temporary Order of Protection (Amended Order) extending the *434 temporary order of protection for six months as to John.

¶12 The District Court did not find that Kyle was in substantial danger, and the Amended Order was not extended to Kyle. Rather, the District Court, recognizing that it was also the court in the parties’ dissolution action, issued an Interim Child Support Order and Interim Parenting Plan providing that Kyle would primarily reside with Amie.

¶13 John appeals the court’s Amended Temporary Order of Protection to the extent that it did not include Kyle.

DISCUSSION

¶14 (1) Did the District Court err in failing to issue findings of fact and conclusions of law?

¶15 John claims that the District Court erred in failing to enter findings of fact and conclusions of law pursuant to Rule 52(a), M.R.Civ.P. He argues that because there were no findings or conclusions, it is difficult to ascertain why the District Court determined that Kyle was not in need of protection and whether this decision was erroneous. John requests the case be remanded to the District Court for findings of fact and conclusions of law. Amie contends that since the Amended Order expired on December 29,2001, remand is unnecessary.

¶16 In all actions tried upon the facts without a jury, the District Court must find the facts specially and state separately its conclusions of law. It is sufficient if the findings of fact and conclusions of law are stated orally and recorded in open court following the close of the evidence. Rule 52(a), M.R.Civ.P.

¶17 Here, the District Court entered findings of fact and conclusions of law orally on the record at the close of the evidence. This is sufficient for purposes of our review. We hold that the District Court properly issued findings of fact and conclusions of law pursuant to Rule 52(a), M.R.Civ.P.

¶18 (2) Did the District Court err in amending the temporary order of protection?

¶19 At the close of evidence, the District Court stated that it was “not convinced that as a result of two and a half hours of hearing, that this is an ongoing physical problem between these two spouses.” Concerning the parenting of Kyle, the court expressed that it did not hear any testimony indicating that Kyle was in substantial danger or unreasonably endangered by Amie’s administration of prescribed antibiotics, and, instead, it stated that John and Amie had done a reasonably good job of raising Kyle.

¶20 In direct response to John’s inquiry regarding physical and *435 chemical abuse pursuant to § 40-4-212 (f), (1), MCA (physical abuse), and § 40-4-212(g), MCA (chemical abuse), the court stated that the testimony revealed that both parents had slapped Kyle, and this did not warrant removing Kyle from either of them. In the Interim Parenting Plan, the court restricted both parents from slapping or striking Kyle on the head. With respect to Amie’s alleged drug abuse, the court found that John had presented no professional testimony substantiating this claim. The court found that there was no drug or alcohol abuse by either parent. The court ordered John and Amie to enroll in parenting classes.

¶21 John claims that the temporary order of protection matter was essentially a “parenting proceeding,” and, as such, John faults the District Court for failing to consider the best interests of Kyle pursuant to § 40-4-212, MCA.

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Bluebook (online)
2002 MT 103, 47 P.3d 816, 309 Mont. 431, 2002 Mont. LEXIS 202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schiller-v-schiller-mont-2002.