Hendershott v. Westphal, 2011 MT 73

Heidi Hendershott sought dissolution from Jesse Westphal and proposed a parenting plan in 2007.
The district court approved an interim plan; later it modified to allow Jesse age-appropriate visitation and ordered a parenting plan evaluation.
Dr. Edward Trontel evaluated the parents; Heidi refused to meet with Jesse during the evaluation.
Dr. Silverman conducted a supplemental parenting evaluation; his findings suggested questions about abuse but no definitive conclusion of abuse.
Trial evidence included Heidi’s PTSD diagnosis and testimony of controlling behavior by Jesse; Dr. Geffner highlighted red flags for abuse.
The district court ultimately approved a final parenting plan with a mandatory mediation provision for unresolved disputes, requiring mediation with no direct contact between the parties.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 40-4-301(2) bars court-ordered mediation when abuse is suspected	Hendershott argues the statute prohibits mediation.	Westphal contends mediation is permissible under the statute.	§ 40-4-301(2) bars mediation when abuse is suspected.
Whether § 40-4-301(1) permits court-ordered mediation without abuse concerns	Statute does not require consent for court-ordered mediation.	Court may order mediation if appropriate, subject to limitations.	Statute authorizes court-ordered mediation, but § 40-4-301(2) creates an absolute bar if abuse is suspected.
Relation between § 40-4-234(4) and § 40-4-301(2) on mediation	Discretion to order mediation exists under § 40-4-234(4).	Discretion does not trump the abuse prohibition in § 40-4-301(2).	Both provisions may coexist; mediation can be ordered unless there is reason to suspect abuse.
Whether the court erred in applying § 40-4-301(2) to strike ADR provisions	Evidence indicated emotional abuse; ADR should be struck.	The evidence did not establish a reason to suspect abuse sufficient to strike ADR entirely.	The district court erred by not striking the ADR provision; reason to suspect abuse requires striking mediation.
What is the proper remedy for the error	Strike Section IV entirely from the final plan.	Modify the plan to remove ADR provisions as appropriate.	Remand to strike the ADR provision and modify related sections.

Kulstad v. Maniaci, 2009 MT 326 (2009 MT) (statutory interpretation—plain meaning and harmonization)
Marriage of Christian, 295 Mont. 352, 983 P.2d 966 (1999 MT) (plain language governs statute interpretation; harmonize related provisions)
State v. Brendal, 351 Mont. 395, 213 P.3d 448 (2009 MT) (principles of statutory interpretation and legislative history)