In re Bessette
¶2 We restate the dispositive issues as:
1. Whether the District Court erroneously granted and maintained a temporary emergency order pursuant to § 40-4-220(2)(a)(ii), MCA, without an adequate showing and finding of changed circumstances under §§ 40-4-219(1) and -220(1), MCA ?
2. Whether the District Court abused its discretion when it limited Mother to supervised visitation?
3. Whether the District Court abused its discretion in denying Mother's request to refer the matter to Family Court Services in lieu of further involvement of the court-appointed guardian ad litem?
4. Whether the District Court abused its discretion in precluding admission of a psychological evaluation report authored by a non-testifying mental health professional?
¶3 On November 4, 2015, Chad Bessette (Father) filed a petition for dissolution of his marriage to Mother and for imposition of a court-ordered parenting plan for their minor child, L.G.B., then six years old. After Mother timely responded and litigation ensued for over a year, the parties eventually stipulated to a final parenting plan. On December 6, 2016, the District Court approved and imposed the stipulated plan as a final parenting plan.
¶4 On June 12, 2017, Mother filed a motion to amend the final parenting plan supported by affidavit and a proposed amended parenting plan. Based on an incident of domestic violence at Father's home in the presence of the child, Father subsequently applied for and obtained a temporary order of protection
¶5 On November 29, 2017, the parties participated in a twelve-hour settlement conference encompassing a wide-range of parenting plan, temporary protective order, and marital estate distribution issues still outstanding. As a result, the parties entered into stipulated parenting
¶6 On December 13, 2017, only two weeks into the phased transition schedule, an incident occurred at the parking lot of Pick's Bowling Alley in Bigfork, Montana, where Mother and Father had arranged to meet to exchange the child. According to Father, he drove to the Bowling Alley, accompanied by his girlfriend, and waited for Mother to arrive with the child. Upon arriving with the child and seeing Father's girlfriend, Mother rapidly accelerated toward Father's car, stopping abruptly approximately two feet short of where Father was standing next to the car. Mother then angrily got out and repeatedly screamed "you shouldn't bring that bitch here." The child then became upset, yelling at Mother to "stop fighting." According to Mother's version of the events, she merely "parked very close" to Father's car "because it was icy and snowy and [she] didn't want [the child] to have to walk across the lot and slip on the ice." Mother acknowledged that her "reaction could have been better."
¶7 On December 15, 2017, Father filed a motion "for ex parte interim relief" and a subsequent show cause hearing. The motion requested immediate suspension of the parties' then-governing amended parenting plan to bar Mother from having unsupervised contact with the child. The motion further requested that the court reauthorize the court-appointed GAL to investigate and make further recommendation
¶8 At the show cause hearing, the court heard testimony from various witnesses regarding the circumstances of the bowling alley incident and the damaging effect on the child of Mother's continued belligerent behavior
¶9 Mother acknowledged that her behavior could have been better but asserted that there had been no change of circumstances sufficient to warrant modification of the parties' prior parenting plan. On the purported basis of eliminating the continuing cost of the GAL, Mother further requested that the court relieve the GAL and refer the matter to the Eleventh Judicial District Family Court Services program for further monitoring.
¶10 Finding it necessary in the best interests of the child, the District Court orally ordered: (1) continued suspension of the prior parenting plan; (2) that Mother complete 40 hours of anger management counseling; (3) that Mother have only supervised visitation pending reinstatement of the parenting plan; and (4) that, upon approval from the GAL, the child's counselor, and the anger management counselor, the prior parenting plan would be reinstated and restarted under its phased transition schedule. Inter alia , the District Court explained that, "rather than a change in circumstances," the bowling alley incident "was just a continuation of what had been going on before ... it's the same old stuff ... so I'm going to suspend the parenting plan" with the "hop[e] that within ... a year from now it will be going full tilt 50/50."
¶11 On the stated ground that any such referral "probably should have been done a year or two ago [a]nd I ... hate to reinvent the wheel at this stage," the court orally denied Mother's motion to refer the matter to Family Court Services in lieu of further involvement of the GAL.
[1] Pursuant to M.C.A. § 40-4-220(2)(ii), the [c]ourt has the authority to grant a temporary order providing for living arrangements for the child ex parte as an emergency situation has arisen in the child's present environment that endangers the child's physical, mental, and emotional health and an immediate change is necessary to protect the child.
[2] The [prior amended parenting plan] was [previously] approved as an Order of the Court.... However, it is in the child's best interest under ... M.C.A. § 40-4-212 that the [prior parenting plan] is suspended until such time as....
The written judgment ultimately ordered that the parties' prior amended parenting plan "is hereby SUSPENDED" pending satisfaction of the specified conditions of reinstatement. Mother timely appeals.
STANDARD OF REVIEW
¶13 District courts have broad discretion to make and modify parenting plan determinations under the applicable standards of §§ 40-4-212, -219, and -220, MCA. In re C.J .,
¶14 1. Whether the District Court erroneously granted and maintained a temporary emergency order pursuant to § 40-4-220(2)(a)(ii), MCA, without an adequate showing and finding of changed circumstances under §§ 40-4-219(1) and -220(1), MCA ?
¶15 Regardless of the District Court's characterization of it as a mere temporary "suspension" of the prior parenting plan, Mother characterizes the relief granted as a modification or amendment of a prior parenting plan subject to the requirements of § 40-4-219(1), MCA. Based on the court's characterization of her conduct as "a continuation of" the "same old stuff" that "had been going on before" rather than "a change in circumstances," Mother essentially asserts that the court either erroneously modified the prior parenting plain without a sufficient finding of changed circumstances or, alternatively, erroneously suspended the parenting plan pursuant to § 40-4-220(2)(a)(ii), MCA, independent of § 40-4-219(1), MCA. In response, Father essentially asserts that the relief granted was not a modification of a prior parenting plan but merely a temporary suspension of the existing parenting plan independently authorized under § 40-4-220(2)(a)(ii), MCA, without regard for the requirements of § 40-4-219(1), MCA.
¶16 In its discretion, a district court may amend or modify a previously imposed parenting plan only upon finding that (1) a change in the circumstances of the child exists based on "facts that have arisen since the prior plan or that were unknown to the court at the time of entry of the prior plan"; and (2) amendment or modification is "necessary to serve the best interest of the child" based on consideration of the relevant criteria specified in §§ 40-4-212 and - 219(1), MCA. Section 40-4-219(1), MCA. For purposes of § 40-4-219(1), MCA, a prior parenting plan is a court-ordered parenting plan constituting a final judgment of the court in a parenting proceeding. See § 40-4-219(7), MCA ; In re Marriage of Hedges ,
¶17 At present, Title 40, chapter 4, part 1, MCA, provides for only three types of parenting plans-initial parenting plans, amended parenting plans, and temporary interim parenting plans incident to a previously or concurrently filed request for an initial or amended parenting plan. See §§ 40-4-211(1), -212, -213, -219, -220, MCA ; In re Marriage of Kovash ,
¶18 A party seeking amendment or modification of a prior parenting plan must file a motion for amendment supported by an affidavit showing of the alleged change in circumstances and necessity for modification specified in § 40-4-219(1), MCA.
¶19 Within this framework, the party seeking amendment may also seek an ex parte interim order for "temporary living arrangements for the child." Section 40-4-220(2)(a)(i), MCA. In addition to the affidavit showing required by §§ 40-4-219(1) and -220(1), MCA, the motion must be further supported by an additional affidavit showing that "an emergency situation has arisen ... endanger[ing] the child's physical, mental, or emotional health" and that "an immediate" parenting plan change "is necessary to protect the child" pending further proceedings. Section 40-4-220(2)(a)(ii), MCA. If the ex parte affidavit showing is sufficient to establish a prima facie showing of an emergency situation endangering the child and a resulting need for immediate protection as required by § 40-4-220(2)(a)(ii), MCA, then the
¶20 Citing In re Arneson-Nelson ,
¶21 Here, Mother correctly points out that the District Court characterized its order on hearing as a mere temporary "suspension" of the prior parenting plan subject to specified conditions for reinstatement. This characterization notwithstanding, the relief granted upon hearing, within the limited application of §§ 40-4-220(1) - (2), MCA, in regard to a previously imposed parenting plan, was in substantive effect an amendment or modification of a prior parenting plan subject to § 40-4-219(1), MCA. In that context, we agree with Mother that, in addition to not making a specific finding of a change in circumstances under § 40-4-219(1), MCA, the District Court further made a seemingly contrary statement from the bench-rather than "a change in circumstances," Mother's conduct was "a continuation of" the "same old stuff" that "had been going on before." However, we must view the court's oral statement in context of the hearing record and in light of the actual findings of fact and conclusions of law entered pursuant to M. R. Civ. P. 52(a).
¶22 The court's written findings of fact did not similarly state or manifestly imply that it found that no change in circumstances that had arisen since imposition of the prior parenting plan. Moreover, as in Arneson , the court's written findings clearly manifest a change in circumstances that would have supported an express finding under § 40-4-219(1), MCA. Under the terms of the prior parenting plan, Mother would either have had limited visitation as provided by the
¶23 Moreover, despite its seemingly contrary comment from the bench, the District Court's written conclusions of law clearly manifest the court's awareness and understanding that, as a matter of law, emergency relief under § 40-4-220(2)(a)(ii), MCA, is available only in conjunction with a request for modification of a prior parenting plan pursuant to §§ 40-4-219(1) and -220(1), MCA. Even in the isolated context of the hearing record, the court's comment cannot be fairly viewed as an oral finding of fact. It occurred in the narrow context of the court compassionately explaining to Mother the necessity of the temporary modification and the built-in pathway for reinstatement of the prior plan. Thus, as in Arneson , the court's written findings of fact and conclusions of law manifestly imply a sufficient finding of a requisite change in circumstances under § 40-4-219(1), MCA. We hold that the District Court did not erroneously modify the parties' prior parenting plan without a sufficient finding of changed circumstances as required by § 40-4-219(1), MCA.
¶24 2. Whether the District Court abused its discretion when it limited Mother to supervised visitation? ?
¶25 Mother asserts that the District Court erroneously limited her custodial rights to supervised visitation without making
¶27 3. Whether the District Court abused its discretion in denying Mother's request to refer the matter to Family Court Services in lieu of further involvement of the court-appointed guardian ad litem?
¶28 The Eleventh Judicial District Court has long utilized a local Family Court Services (FCS) program to assist the court in determining and monitoring parenting plans. See Eleventh Jud. Dist. Local Rule 8(B) (June 2018);
¶29 To the extent not in conflict with the Montana Constitution, statutes, or rules of this Court, district courts have power and discretion to adopt local rules of administration, practice, and procedure. Sections 3-1-112(1), 3-2-704, MCA ; M. R. Civ. P. 83. Duly-adopted local rules are generally "binding upon" the adopting court.
¶30 In September 2017, in the ongoing course of pre-judgment litigation prior to the initial parenting plan determination, the District Court granted Mother's uncontested motion for appointment of a limited-scope GAL to assess the parenting dispute and make recommendations regarding what contact Mother should ultimately have with the child. At that time, the parties stipulated to splitting the costs of the GAL's services. As an integral component, the stipulated and ultimately imposed parenting plan mandated that the previously appointed GAL would monitor Mother's progress and the child's welfare throughout the specified transition schedule. Mother did not object.
¶31 This chapter of the ongoing custody dispute arose after imposition of the parties' "final" parenting plan and prior to expiration of the stipulated period of court-ordered monitoring by the GAL. Under these unique circumstances, Mother waived her option of compelling referral to FCS pursuant to the since-superseded Local Rule 22(D)(2). We hold that the District Court did not erroneously fail to refer this matter to FCS in violation of the then-governing local rule.
¶32 4. Whether the District Court abused its discretion in precluding admission of a psychological evaluation report authored by a non-testifying mental health professional?
¶33 At the show cause hearing, Mother moved for admission of a presumably favorable written psychological evaluation report prepared by an examining mental health professional not called to testify. On Father's objection, the District Court denied admission of the report as
¶34 No sale. Mother acknowledges on appeal that the evaluation report was inadmissible hearsay as defined by M. R. Evid. 801 - 02. However inconsistent or counterproductive, Father's failure to object to the subsequent admission of the subject hearsay through other means does not render the District Court in error for failing to retroactively admit the previously precluded evidence sua sponte . We hold that the District Court did not abuse its discretion in precluding admission of the subject psychological evaluation report.
CONCLUSION
¶35 We hold that the District Court did not erroneously grant and maintain a temporary emergency order pursuant to § 40-4-220(2)(a)(ii), MCA, without an adequate showing and finding of changed circumstances under §§ 40-4-219(1) and -220(1), MCA. We further hold that the District Court did not abuse its discretion in limiting Mother to supervised visitation, failing to refer this matter to a Family Court Services program pursuant to local rule, or precluding admission of a psychological evaluation report authored by a non-testifying mental health professional.
¶36 Affirmed.
We concur:
LAURIE McKINNON, J.
INGRID GUSTAFSON, J.
JAMES JEREMIAH SHEA, J.
JIM RICE, J.
Notes
The District Court apparently imposed the "final" parenting plan prior to entry of a final judgment dissolving the parties' marriage and adjudicating all other incidents of the marriage. See Order Approving Stipulated Final Parenting Plan , filed December 6, 2016.
As extended following hearing on August 23, 2017, the protective order referenced, inter alia , a then-pending Justice Court partner/family member assault prosecution against Mother and further barred Mother from having any contact with the child except as approved by the child's counselor.
In contrast, independent of § 40-4-219, MCA, parents may periodically seek review and modification of a prior parenting plan without proof of a "change in circumstances" if the prior plan expressly provides for such review. See § 40-4-234(2)(f), MCA (periodic review of parenting plan in re contemplated future need for review if provided for in prior parenting plan); In re S.W.B.S. ,
If the ex parte affidavit showing is facially insufficient to constitute a prima facie showing under § 40-4-220(2)(a)(ii), MCA, nothing in § 40-4-220(2)(b), MCA, prevents a court, in its discretion, from conducting a hearing to determine whether, upon additional evidence, sufficient cause may yet exist to grant the relief under the standards of § 40-4-220(2)(a)(ii), MCA.
"In appropriate circumstances" in a domestic relations matter, "the [c]ourt may refer the matter to Family Court Services for investigation, report and recommendation regarding custody ... and visitation rights of each child and parent." Montana Eleventh Jud. Dist. Local Rule 8(B).
The court did not specifically sustain the objection but implicitly did so by not admitting it and, instead, specifically authorizing Mother to question the court-appointed GAL about her knowledge of the subject matter.