Marriage of Brockington , 2017 MT 92 ( 2017 )

04/18/2017
DA 16-0387
Case Number: DA 16-0387
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 92IN RE THE MARRIAGE OF:
DARIN BROCKINGTON,
Petitioner and Appellee,
and
DEBORAH BROWN,
Respondent and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DR-06-110(C)
Honorable Heidi Ulbricht, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Katherine P. Maxwell, Maxwell Law, PLLC, Kalispell, Montana
For Appellee:
Peter F. Carroll, Attorney at Law, Kalispell, Montana
Submitted on Briefs: March 22, 2017
Decided: April 18, 2017
Filed:
__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Deborah Brown (Deborah) appeals an order entered in the Eleventh Judicial District
Court on June 3, 2016, amending the parenting plan for her minor child, A.E.B. Deborah
also appeals an order entered August 4, 2016, holding her in contempt and assessing costs
and attorney’s fees for the contempt proceedings against her, although the District Court
has not yet determined the reasonableness of fees or assessed costs. We affirm the District
Court’s order amending the parenting plan and dismiss, without prejudice, Deborah’s
appeal of the contempt order.
¶2 We restate the dispositive issues as:
1. Whether the District Court abused its discretion in determining the amended
parenting plan was in the best interests of A.E.B.
2. Whether Deborah’s appeal of the separate order of contempt is from a final
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 Darin Brockington (Darin) and Deborah are the parents of A.E.B., born in 2000.
Their marriage was dissolved in 2007 and an Order Establishing Parenting Plan was
entered on August 6, 2008 (2008 Plan). The 2008 Plan provided that A.E.B. would reside
primarily with Deborah and that Darin, who serves in the United States Army as a
Lieutenant Colonel, would have parenting time “both in Montana and his place of
residence, wherever that may be.” Both Darin and Deborah have remarried. Darin lives
with his wife, Donna, in Manassas, Virginia, along with Donna’s children from a previous
marriage. Deborah currently resides in Kalispell, Montana, with her husband, Jeff, and
A.E.B.
2
¶4 The District Court noted that both parents are exceptional in their parenting abilities
and their devotion to their daughter. Nonetheless, there has been great acrimony between
Darin and Deborah with respect to their co-parenting obligations. In particular, Darin and
Deborah have been unable to agree on the appropriate amount of time Darin should spend
with A.E.B., as well as where Darin’s parenting time should take place. Darin has lived in
other locations besides Virginia, depending on where he is stationed in the Army, including
in Mons, Belgium. The 2008 Plan provided that Darin have parenting time with A.E.B.
any time he was in Montana, for a period not to exceed ten days. Aside from certain
holidays and alternating birthdays, Darin was to exercise the majority of his parenting time
in the summer. The 2008 Plan provided specifically for the summers of 2008, 2009, and
2010, with visits varying in length from 43 to 49 days. These summer visits were to take
place at Darin’s residence, wherever that was.
¶5 Although the 2008 Plan did not address summer visits for the years following 2010,
the parties assumed the visits would continue every summer. Thus, in 2011 A.E.B. spent
48 days with her father in Virginia; and in the summers of 2013 and 2014, A.E.B. spent 49
days in Mons, Belgium. For the 2012 summer, which was when Darin moved to Belgium,
Darin requested A.E.B. spend only 18 days with him in Virginia prior to his relocation.
The understanding between Darin and Deborah remained that A.E.B. would always return
from Darin’s care in sufficient time for her to attend the first day of school in Montana.
¶6 Notwithstanding the parties’ ability to arrange summer visitations beyond the
particular years identified in the 2008 Plan, disputes between Darin and Donna over
co-parenting obligations apparently existed as early as 2006, prompting the District Court
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to appoint Nancy Smith (GAL) to be A.E.B.’s guardian ad litem in 2006.1 In the 2008 Plan,
the District Court ordered that “[i]n the event there needs to be some form of dispute
resolution regarding the parenting plan in the future, that the GAL shall be the first resource
in resolving disputes between parties[.]”2 Since her appointment, the GAL has made
several recommendations to the court regarding parenting time.
¶7 Darin covets his parenting time. He has always felt that A.E.B. should spend more
time with him, not less. The record on appeal shows that it is not unusual for him to spend
substantial time and money on the travel and logistics necessary for him to parent A.E.B.
Even while he resided in Belgium, he ensured he did not lose his allotted time with A.E.B.
by securing for her a military passport and paying for her airfare to Belgium. Darin also
takes advantage of provisions in the 2008 Plan allowing him to parent in Montana for
continuous periods not to exceed ten days. Darin has traveled to Montana to exercise
parenting time, renting a car and securing a hotel room to spend time with A.E.B. These
trips not only cost him money, but deplete the leave he accrues in the Army.
¶8 Deborah’s home with Jeff, as A.E.B.’s primary residence, has been beneficial for
A.E.B. She excels at school and is active in extracurricular activities like volleyball and
basketball. She has friends and is, in most ways, a well-adjusted teenager. She attends
1
In 2003, Deborah filed a Petition for Dissolution, which she later dismissed. Darin subsequently
filed his Petition for Dissolution in 2006, resulting in the parties’ dissolution in 2007 and the 2008
Plan.
2
The 2008 Plan was ordered by the Honorable Stewart E. Stadler. The proceedings to amend the
2008 Plan were presided over by the Honorable Heidi J. Ulbricht, who replaced Judge Stadler
upon his retirement.
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church regularly and volunteers when she can to serve at its concession stand. She also
works on occasion at her mother’s hardware store. She is not immune from teenage
tribulations, however, and the record reflects that she has become expressive of her desire
to be more independent and to make decisions for herself. In this regard, A.E.B. has
expressed that she wants to spend more time in Montana during the summers, despite
Darin’s wishes that he have more time with her. Although they enjoy certain activities
together, A.E.B. has expressed that her stepmother Donna is prone to anger, and that her
father and Donna must often work when she visits, leaving her in the care of her
stepsiblings or structured day-camps. The 2008 Plan also mandates that A.E.B. regularly
call Darin at certain times during the week. A.E.B. does not enjoy these mandatory calls
and would enjoy texting, Skyping, and emailing Darin instead. Overall though, A.E.B.
primarily complains that her summers away with Darin interfere with her life in Kalispell,
which results in her friends accruing experiences during the summer to which she cannot
relate when she returns to Montana.
¶9 Deborah filed a motion to amend the 2008 Plan on April 21, 2014, several months
shy of A.E.B.’s fourteenth birthday. Deborah alleged that a change of circumstances had
occurred and that A.E.B.’s best interests necessitated amending the parenting plan.
Specifically, Deborah sought the amendment based on A.E.B.’s desire to stay in Kalispell
over the summers and noted that A.E.B. “reached a stage in her development when social
activities, sports, events, jobs and friendships [in] Kalispell, Montana are of significant and
increasing importance[.]” Darin responded to the motion by requesting its dismissal or,
alternatively, a referral to the GAL for closer review. The District Court denied Deborah’s
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motion and referred the matter to the GAL for recommendations, to be filed by September
15, 2014, when A.E.B. would be at least fourteen. Over the summer of 2014, while A.E.B.
visited Darin in Mons, Belgium, the GAL conducted her investigation, communicating
with A.E.B. by Skype and email. After concluding her investigation, the GAL filed
recommendations with the District Court, along with her own motion to adopt her
recommendations as an interim parenting plan. The GAL recommended that Darin’s
parenting time occur only in Montana; that his time be reduced in the summer to either one
or two weeks, which must be exercised in Montana; and that A.E.B.’s mandatory phone
calls to him cease. The GAL’s proposed “Final Parenting Plan” also contained the
following provision: “In the event there needs to be some form of dispute resolution
regarding the parenting plan in the future, Nancy M. Smith, GAL, shall be the first resource
to mediate the dispute. The parties shall follow any written recommendation of the GAL
pending further order of the court.” On December 2, 2014, Deborah filed a motion to adopt
the GAL’s recommended parenting plan.
¶10 On December 18, 2014, Darin filed a motion to stay any proceedings pursuant to
the Servicemembers Civil Relief Act, 50 U.S.C.S. §§ 3901, et seq. (SCRA), which allows
for the stay of civil proceedings while members of the military serve abroad. Darin,
nonetheless, clearly objected to the GAL’s recommendations. The District Court granted
Darin’s motion to stay proceedings pursuant to SCRA and vacated a hearing which had
been scheduled for February 19, 2015.
¶11 Darin continued to communicate with Deborah that he wished to have parenting
time as he had previously exercised under the 2008 Plan. Specifically, Darin asked that
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A.E.B. spend time with him at his Virginia residence for one month. Deborah refused and
offered instead that he could visit A.E.B. in Montana. She believed that the 2008 Plan was
outdated, that it was not in A.E.B.’s best interest, and that the SCRA stay of the proceedings
had abated it. In May of 2015, Darin requested the court enforce a 2015 summer visit. On
June 25, 2015, Darin again requested the court compel summer parenting time for 2015
and also to hold Deborah in contempt. Darin made another request for parenting time on
August 3, 2015. The court maintained, however, that it was unable to consider any of
Darin’s requests because of the stay. Darin finally filed a motion to lift the stay on August
3, 2015, which was granted by the court on August 21, 2015. While the District Court did
not act on the motions filed by either party due to the stay, the court did interview A.E.B.
at Deborah’s request, concluding that an interview of A.E.B. would not violate the SCRA
stay because it did not involve the parties.
¶12 After the stay was lifted, the court conducted a hearing over two days, November
24, 2015, and February 24, 2016. The District Court issued its Findings of Fact,
Conclusions of Law and Order on June 3, 2016, rejecting the GAL’s proposed parenting
plan and amending the 2008 Plan. The court found that, in deference to A.E.B.’s wishes
and despite Darin’s desire to maintain contact with his daughter, the GAL’s proposed plan
allowed Darin only one to two weeks in June and would “severely curtail Darin’s
opportunity for parenting time with A.E.B.” The court found that the GAL had
inappropriately shared information only with Deborah and did not provide an equal
opportunity for input from Darin. The court determined that “the GAL has demonstrated
a perceived preference toward Deborah” and a “willingness to interfere with Darin’s
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parenting opportunities.” The court also found that “the GAL [had] clearly encouraged
A.E.B. to believe she [would] not have to spend time in Virginia.” The court determined
that Deborah’s interests in keeping A.E.B. in Kalispell, which aligned with the GAL’s
recommendations, would “unreasonably [attempt] to limit or outright suspend Darin’s
parenting opportunities.” Finding that “[t]he failure of both Deborah and the GAL to
recognize the benefits of the continuing relationship between A.E.B. and her father’s
extended family is without precedent in this court[,]” the court terminated the GAL’s
appointment, concluding the GAL had become an ineffective means in assisting the parties
to share parenting opportunities. The court directed the parties to use a mediator in the
future, if necessary, and proceeded to determine the shared parenting obligations for A.E.B.
¶13 In its order amending the 2008 Plan, the court noted that A.E.B., during the
in-chambers interview, expressed that she would like fewer days in the summer with her
father. The court expressly stated that it considered AEB’s wishes, but would not defer to
them entirely. The court determined that the best interests of A.E.B. were served by having
summer activities in both Montana and Virginia. Because the court found that Darin had
demonstrated a consistent commitment to shared parenting and his responsibilities to
A.E.B., Darin’s time with A.E.B. in Virginia was reduced in accordance with A.E.B.’s
wishes, but only by approximately two weeks. Darin was to exercise four weeks of
parenting time during the month of July. The court was not willing to reduce Darin’s
parenting time to one or two weeks to be exercised only in Montana, as suggested by
Deborah and recommended by the GAL. Darin’s opportunities to continue parenting in
Montana were left intact, including every spring break until A.E.B. graduates from high
8
school. The court also left the holiday schedule established by the 2008 Plan in place and
determined that Deborah and Darin should share the cost of A.E.B.’s travel equally.
Finally, the court expressed concerns over Deborah encouraging A.E.B. to limit her contact
with her father and concluded that Deborah failed to recognize that parenting time with
both parents was in A.E.B.’s best interests.
¶14 The District Court entered its order amending the 2008 Plan on June 3, 2016. The
court ordered that A.E.B. was to travel to Darin’s home no later than July 1, 2016, and that
Darin was to have parenting time during the month of July for the years 2016, 2017, and
2018. On June 15, 2016, Darin emailed Deborah a travel itinerary which had A.E.B.
departing for Virginia on July 1, 2016, and returning to Montana on July 31, 2016.
Deborah, however, expressed difficulty understanding the amended 2008 Plan and
indicated she would be seeking other options. On June 30, 2016, Deborah filed an appeal
from the District Court’s judgment amending the 2008 Plan and filed a motion in the
District Court to stay its judgment. The next day, on July 1, the District Court denied
Deborah’s request for stay.
¶15 A.E.B., however, did not travel to Virginia. Darin immediately filed a motion for
an order to show cause and for contempt against Deborah, asking for enforcement of the
court’s orders. The court denied the motion, reasoning that Deborah’s appeal had removed
the matter from the district court’s jurisdiction. Darin filed a petition for writ of supervisory
control on July 18, 2016, which this Court granted, in part, on July 26, 2016. Or. Granting
Pet. for Writ of Supervisory Control in Part, Brockington v. 11th Jud. Dist. Ct.,
https://supremecourtdocket.mt.gov/search/getDocument?documentid=149335 (Mont. Jul.
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26, 2016) (No. OP 16-0423). This Court concluded that, pursuant to Kuzara v. Kuzara, a
district court in a contempt proceeding arising out of a domestic matter has the authority to
enforce its judgment even though an appeal is pending in the underlying domestic
proceeding. 211 Mont. 43, 48, 682 P.2d 1371, 1374 (1984). We remanded the matter to
the District Court for proceedings consistent with our order.
¶16 The District Court held a hearing August 3, 2016, on Darin’s motion for contempt.
Both parents were present and the court considered testimony from several other witnesses.
Ultimately, the court concluded that Deborah had failed to abide by her shared parenting
obligations as set forth in the Amended Parenting Plan when she “encouraged, if not
solicited outright, A.E.B.’s active involvement in defiant actions to withhold from Darin
parenting time granted to him in a court ordered parenting plan.” The court found that
much of Deborah’s testimony was not credible and that Deborah continued to try and
convince the court that “Virginia was boring,” that A.E.B. would miss too many
opportunities in Montana, and that A.E.B.’s Christian faith would suffer as a result of
having to visit her father during July. The court held Deborah in contempt because her
failure to abide by her obligations of shared parenting “compels a clear and direct
response.” The court assessed a fine of $500 per day for each day in July that Deborah
failed to deliver A.E.B. to Darin for exercise of his parenting time, or a total of $15,500,
but allowed Deborah to purge her contempt by immediately arranging with Darin to meet
her and A.E.B. prior to August 8, 2016, at either Dulles International or Reagan National
Airport, for Darin to have parenting time of not less than 31 days. Deborah was ordered to
pay all costs of travel for A.E.B. and to reimburse Darin for all of his costs, including travel
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expenses and the value of lost leave from his military service. Deborah was also ordered
to pay the costs and Darin’s attorney’s fees incurred in the contempt proceedings.
¶17 After the court entered its finding of contempt, according to Darin, A.E.B. traveled
to Virginia, apparently without incident, for parenting time with Darin and a visit with
A.E.B.’s extended family. Darin filed his affidavit of costs and attorney’s fees with the
court. Due to a continuance of the hearing on reasonableness of attorney’s fees, requested
by Deborah and unopposed by Darin, attorney’s fees and costs had not been determined by
the District Court as of the time of the instant appeal.
STANDARDS OF REVIEW
¶18 We review findings of fact related to amendments of parenting plans to determine
whether they are clearly erroneous. In re Marriage of Everett, 2012 MT 8, ¶ 11, 363 Mont.
296, 268 P.3d 507; In re Marriage of Graham, 2008 MT 435, ¶ 8, 347 Mont. 483, 199 P.3d
211. When findings upon which a decision is predicated are not clearly erroneous, we will
reverse a district court’s decision regarding a parenting plan amendment only when a clear
abuse of discretion is demonstrated. Graham, ¶ 8; In re Marriage of Oehlke, 2002 MT 79,
¶ 9, 309 Mont. 254, 46 P.3d 49. A trial court abuses its discretion when it acts “arbitrarily
without employment of conscientious judgment or exceed[s] the bounds of reason resulting
in substantial injustice.” Everett, ¶ 11; Albrecht v. Albrecht, 2002 MT 227, ¶ 7, 311 Mont.
412, 56 P.3d 339.
¶19 A contempt proceeding in a family law proceeding “is entirely independent of the
civil action out of which it arose.” Kuzara, 211 Mont. at 48, 682 P.2d at 1374. In civil
cases, an aggrieved party may appeal from “a contempt judgment or order in a family law
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proceeding when, and only when, the judgment or order appealed from includes an
ancillary order entered as a result of the contemptuous conduct which affects the substantial
rights of the parties involved[.]” M. R. App. P. 6 (3)(j). The right of a natural parent to
parent one’s child is a constitutionally protected, fundamental liberty interest. Steab v.
Luna, 2010 MT 125, ¶ 22, 356 Mont. 372, 233 P.3d 351.
¶20 “[A]ny decree which leaves matters undetermined is interlocutory in nature and is
not a final judgment for purposes of appeal.” Kircher v. W. Mont. Regl. Community Mental
Health Ctr., 261 Mont 227, 229, 861 P.2d 927, 929 (1993). We explained in In re Marriage
of Griffin, that for a decree to be final it must reserve no further questions or directions for
further determination. 260 Mont. 124, 135, 860 P.2d 78, 85 (1993). Lastly, M. R. App. P.
4(1)(a) provides that “[a] final judgment conclusively determines the rights of the parties
and settles all claims in controversy in an action or proceeding, including any necessary
determination of the amount of costs and attorney fees awarded or sanction imposed.”
DISCUSSION
¶21 1. Did the District Court abuse its discretion in determining the Amended Parenting
Plan was in A.E.B.’s best interests?
¶22 Deborah argues that the District Court failed to give appropriate weight to the
recommendations of the GAL. More specifically, Deborah maintains that the GAL was
intricately involved with the parties and A.E.B., “often as an arbitrator,” and that since
2006 “the Court relied upon her and assigned to her an ongoing role to assist the parties in
dispute resolution.” Deborah also takes issue with the court’s failure to address interim
parenting plan arrangements while the SCRA stay was in place. Here we discern
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Deborah’s argument to be that the court erroneously faulted Deborah for not allowing
A.E.B. to visit Darin during the 2015 summer when it was actually the court, through its
misunderstanding of the SCRA, which was responsible for Darin not having any 2015
summer visitation. Finally, Deborah argues that the District Court did not adequately
consider A.E.B.’s wishes because the court continued to provide summer parenting time
for Darin. Darin argues that the record supports the District Court’s conclusions and that
Deborah is unable to establish error in any of the court’s findings.
¶23 In addressing Deborah’s assertion that the court failed to appropriately weigh and
consider the GAL’s recommendations, we must begin with an explanation of a guardian
ad lietem’s duties and role in family law proceedings. A court may appoint a guardian ad
litem pursuant to § 40-4-205, MCA, to “represent the interests of a minor dependent child
with respect to the child’s support, parenting, and parental contact.” Section 40-4-205(1),
MCA. A guardian ad litem has the general duties of informing and making
recommendations to the court concerning the child’s support, parenting, and parental
contact following any investigation necessary to ascertain the facts relevant to such an
inquiry. Section 40-4-205 (2)(a)-(c), MCA. While a guardian ad litem may also “perform
other duties as directed by the court” under § 40-4-205(2)(e), MCA, the responsibility and
obligation of a guardian ad litem when performing any of its duties is always to “represent
the interests of a minor dependent child[.]” Section 40-4-205(1), MCA.
¶24 By contrast, the 2008 Plan’s designs for the GAL to facilitate disputes, which would
have been continued under the GAL’s proposed plan whereby she would continue her role
“mediating” disputes, interjected the GAL into disputes between the parties, Deborah and
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Darin, surrounding what each believed were their co-parenting obligations. Yet, mediation
is a process in which an impartial third-party facilitates communication and negotiation
and promotes voluntary decision making by the parties to the dispute. By way of
illustration, the Model Standards of Conduct for Mediators provides that “[i]mpartiality
means freedom from favoritism, bias, or prejudice.” Model Stand. of Conduct for
Mediators Standard II (ABA 2005).3 A mediator must avoid a conflict of interest or the
appearance of a conflict during and after the mediation. “A conflict of interest can arise
from involvement by a mediator with the subject matter of the dispute or from any
relationship between a mediator and any mediation participant, whether past or present,
personal or professional, that reasonably raises a question of a mediator’s impartiality.”
Model Stand. of Conduct for Mediators Standard II (ABA 2005).
¶25 Montana provides for mediation of family law disputes. The “purpose of mediation
is to reduce the acrimony that may exist between the parties and to develop an agreement
that is supportive of the best interests of the child involved in the proceeding.” Section 40-
4-302(1), MCA (emphasis added). The mediator “must have knowledge of the mediation
process[,]” and while the parties may stipulate to a mediator not maintained on the mediator
list established by the court pursuant to § 40-4-306, MCA, there are no statutory provisions
which sanction a dual appointment as both guardian ad litem and mediator in the same
proceeding. Section 40-4-307(5), MCA. Indeed, the statutory provision for appointment
3
The 2005 Model Standards were approved by the American Bar Association’s House of
Delegates, the Board of the Association for Conflict Resolution, and the Executive Committee of
the American Arbitration Association.
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of a guardian ad litem is distinct and separate from those statutory provisions offering the
parties an opportunity to mediate their disputes. See § 40-4-205, MCA, and §§ 40-4-301
to -308, MCA.
¶26 Based on the foregoing principles, it is clear that the duty of a guardian ad litem to
represent the interests of the child is inconsistent with the obligation of a mediator to be
impartial and free from favoritism or bias, with no involvement in the subject matter of the
dispute. Indeed, the guardian ad litem’s duty to represent the child’s interest in the dispute
cannot be honored while at the same time honoring the obligation of a mediator to be an
impartial third-party. The duties of each role are distinct and serve different functions in
the delivery of justice. To emasculate or blend the roles only undermines the integrity of
each process, whether it is the appointment by a judge of a guardian ad litem for fact-
finding purposes or the selection of a mediator to facilitate communication, negotiation,
and voluntary decision making by the parents in an alternative dispute resolution forum.
¶27 Contrary to Deborah’s assertions, it is readily apparent that the District Court did
consider and appropriately weigh the recommendations of the GAL, as it was those
recommendations which led, in part, to the court vacating her appointment. It is evident
from the court’s findings that it appreciated the GAL was no longer effectively performing
her duty to represent A.E.B.’s interests. The court observed the GAL’s recommendation
to severely limit Darin’s parenting time was inconsistent with the best interests of A.E.B.
because she failed to recognize the significance to A.E.B. of a continued relationship with
her father and A.E.B.’s extended family. The court found that the GAL’s position, which
aligned and advocated the position of a party, Deborah, was “without precedent in this
15
court.” The court found that the GAL had clearly encouraged A.E.B. to believe she will
not have to spend time in Virginia and that the GAL had failed to share information with
Darin or provide an equal opportunity for input from him. Deborah does not argue that
these findings were clearly erroneous, only that the court failed to attribute the proper
weight to the GAL’s recommendation. We disagree. The record supports that the District
Court clearly considered the GAL’s recommendations, but did not agree with them.
Moreover, the District Court appropriately recognized that the GAL should not serve as a
mediator in the same proceeding when it directed the parties to a “mediator, if needed.”
¶28 Deborah appears to argue that the court faulted her for Darin’s loss of parenting time
during the 2015 summer when, in fact, Deborah alleges it was the result of the court’s
misunderstanding of the SCRA stay. It is unnecessary, however, to address whether the
SCRA prevented the court from taking any action, even to enter an order establishing
interim parenting time for 2015. The undisputed facts are that Deborah continued for years
2012, 2013, and 2014 to allow summer visitation with Darin of nearly six weeks, despite
the absence of any provision in the 2008 Plan providing for those years. Therefore, Darin
exercised summer parenting time even though the 2008 Plan made no provision for those
particular years. Darin continued pursuing his obligation of shared parenting by
communicating with Deborah that he wanted A.E.B. to visit in the 2015 summer, even if
for only a month. Despite his efforts, Deborah refused to allow A.E.B. to visit, maintaining
instead that the SCRA stay had abated the 2008 Plan. However, nothing precluded
Deborah from ensuring Darin had parenting time, as she had previously done for three
years in the past, although not specifically ordered to do so. Thus, it was Deborah, and not
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Darin, who attempted to distort to her advantage the provisions of the SCRA. The court’s
findings that Deborah unreasonably limited Darin’s parenting opportunities and that the
summer of 2015 was the first time Darin was not able to exercise summer visitation in 14
years were not clearly erroneous. The record supports the court’s findings regardless of
whether the court misunderstood the stay provisions of SCRA.
¶29 Deborah also argues that the court failed to give appropriate weight to A.E.B.’s
wishes to spend summers in Montana. Section 40-4-219(1)(c), MCA, concerning
amendments of parenting plans, provides that the court “may” consider that “the child is
14 years of age or older and desires the amendment[.]” The court interviewed A.E.B. in
chambers once A.E.B. turned fourteen and noted that A.E.B. had expressed she would like
less time at her father’s home. The court expressly stated that it had taken A.E.B.’s wishes
into consideration. The court, however, also expressed its concern that Deborah was
encouraging A.E.B. to limit her time with Darin; that Deborah had a great deal of influence
over A.E.B; that A.E.B. was also being encouraged by the GAL to believe she would not
have to spend time in Virginia with her father; and that Darin was not provided an equal
opportunity to acquire information or have his input heard in the dispute. Most
importantly, however, the court found that both Deborah and the GAL failed to appreciate
the significance of A.E.B. continuing a relationship with her father as being in A.E.B.’s
best interests. Based on the evidence that had been presented, the court was justified in its
concern that A.E.B.’s stated preference to spend summers in Montana with Deborah was
being encouraged by Deborah and the GAL.
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¶30 The court was charged with an unenviable task: evaluating the testimony of a
fourteen-year-old in the context of her parents’ acrimonious disputes and, more
particularly, conducting such an evaluation where one parent had substantially less
influence and lived several thousand miles away from A.E.B. The court was correct in not
simply following A.E.B.’s wishes, even assuming they fairly represented her position—
because at fourteen, A.E.B. cannot be assumed to know necessarily what is in her best
interests. Indeed, because A.E.B. was only fourteen and not emancipated, and because her
parents could not decide what was in her best interests, the court had to make the decision.
The court could not abdicate its responsibility for making the decision when the parents
were unable to agree, especially when a committed parent was asking the court for the
opportunity to parent. See Steab, ¶ 22 (finding that the right of a natural parent to parent
one’s child is a constitutionally protected, fundamental liberty interest). The court
considered the wishes of A.E.B. and limited Darin’s time from what normally had been 6
weeks to 4 weeks during the month of July. Deborah failed to demonstrate that any
findings of the court were erroneous, or that the court did not consider A.E.B.’s desire for
the amendment. Indeed, the court amended the parenting plan so that A.E.B. would have
less time in Virginia.
¶31 We conclude that the court’s findings are not clearly erroneous and that the court
did not abuse its discretion when it ordered the June 3, 2016 Amended Parenting Plan.
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¶32 2. Whether Deborah’s appeal of the separate order of contempt is from a final
judgment.
¶33 On August 4, 2016, following a hearing, the court held Deborah in contempt for her
failure to abide by the shared parenting obligations of the June 3, 2016 Amended Parenting
Plan. Specifically, the court found that Deborah had encouraged A.E.B. not to visit Darin
in Virginia. The court, however, has not decided the reasonableness of attorney’s fees nor
assessed an amount for fees and costs.
¶34 We have recognized that a contempt proceeding in a family law matter is entirely
independent of the civil action out of which it arose. Kuzara, 211 Mont. at 48, 682 P.2d at
1374. Further, in civil cases, an aggrieved party may appeal from “a contempt judgment
or order in a family law proceeding when, and only when, the judgment or order appealed
from includes an ancillary order entered as a result of the contemptuous conduct which
affects the substantial rights of the parties involved[.]” M. R. App. P. 6(3)(j).
¶35 We conclude that Deborah has the right to separately appeal the order of contempt
pursuant to Kuzura and M. R. App. P. 6(3)(j). However, Deborah must also comply with
the rule that “any decree which leaves matters undetermined is interlocutory in nature and
is not a final judgment for purposes of appeal.” Kircher, 261 Mont. at 229, 861 P.2d at
929; Griffin, 260 Mont. at 135, 860 P.2d at 85. Montana Rule of Appellate Procedure
4(1)(a) provides: “[a] final judgment conclusively determines the rights of the parties and
settles all claims in controversy in an action or proceeding, including any necessary
determination of the amount of costs and attorney fees awarded or sanction imposed.”
Here, the contempt order is not a final judgment because it lacks the court’s decision
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regarding the amount of attorney’s fees and costs. Therefore, although Deborah may
appeal the contempt order pursuant to M. R. App. P. 6(3)(h), which allows for appeals from
an order of contempt in family law matters, it is not the court’s final decision on the
contempt matter. As such, we dismiss without prejudice Deborah’s appeal of the August
4, 2016 order holding her in contempt.
CONCLUSION
¶36 The District Court’s June 3, 2016 order adopting an Amended Parenting Plan is
affirmed; the appeal of the August 4, 2016 contempt order is dismissed without prejudice.
/S/ LAURIE McKINNON
We Concur:
/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE
Chief Justice Mike McGrath, dissenting.
¶37 Occasionally there are cases that demonstrate the inadequacies of our courts to
appropriately resolve highly contested family disputes involving the custody and
placement of innocent children. That is particularly true when parents are determined to
misuse our adversary system of dispute resolution to persist in a litigation posture designed
to assign blame and settle grudges, for real or perceived misconduct, of the other parent by
undermining and denigrating the former spouse. Final resolution of such disputes can take
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years; meanwhile, the children suffer the consequences of the parents’ inappropriate
behavior. The best interest of the child is relevant only to the extent that it provides “a
slogan” for the parties to pursue their own selfish interests.
¶38 This is clearly one of those cases. A.E.B. has endured years with this dispute
dominating her young life.
¶39 At this point in time, A.E.B. is sixteen years old and capable of making her own
decisions regarding the course of her life until she reaches eighteen. Who are we to tell
her she has made the wrong decision?
¶40 Appellant’s motion to amend the parenting plan was filed on April 21, 2014. The
District Court’s decision was filed on June 13, 2016. For various reasons, it has taken over
two (now almost three) years to resolve the motion. During that time A.E.B. has grown
and matured—a significant period of development that the Courts have not recognized.
¶41 The decision of the District Court, in my view, was not in the best interest of this
child.
¶42 I dissent.
/S/ MIKE McGRATH
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