Marriage of Tipps , 2004 MT 181N ( 2004 )

No. 03-330
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 181N
IN RE THE MARRIAGE OF KORDETTE B. TIPPS,
n/k/a KORDETTE K. MAGER,
Petitioner and Respondent,
and
GREGORY L. TIPPS,
Respondent and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake, Cause No. DR 2000-167
The Honorable Deborah Kim Christopher, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Robert Terrazas, Justin Starin, Terrazas Law Offices, Missoula Montana
For Respondent:
Evonne Smith Wells, Attorney at Law, Missoula, Montana
Submitted on Briefs: October 2, 2003
Decided: July 13, 2004
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent. It shall be filed as
a public document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.
¶2 Gregory L. Tipps (Tipps) filed a Motion in the Twentieth Judicial District Court,
Lake County, seeking to replace the Guardian Ad Litem Charles Wall (Wall) appointed by
the court to represent his children’s interests in the ongoing custody dispute between Tipps
and his ex-wife and mother of the children, Kordette Mager (Mager). The District Court
denied Tipps’ Motion and ordered Tipps to pay Mager’s and Wall’s attorney’s fees that were
associated with the Motion to Replace. Tipps appeals. We affirm in part and reverse and
remand in part.
ISSUES
¶3 The issues before this Court are: 1) whether the District Court erred in denying
Tipps’ Motion to Replace the Guardian Ad Litem of the children, and 2) whether the District
Court abused its discretion when it ordered Tipps to pay Mager’s and Wall’s attorney’s fees.
Additionally, Mager argues that the District Court’s Order denying Tipps’ Motion is not an
appealable order.
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FACTUAL AND PROCEDURAL BACKGROUND
¶4 Tipps and Mager were divorced in July 2000. As a result on the ongoing custody
dispute over their three children, the District Court appointed Wall as the guardian ad litem
of the children on July 24, 2001. Wall subsequently submitted a proposed interim parenting
plan that was adopted by the court on November 25, 2002. Under this plan, Tipps and
Mager have joint custody on a rotating schedule of primary parenting and weekend visitation.
Both parties continue to follow the parenting plan and neither has sought to modify it.
¶5 On February 14, 2003, Tipps moved to replace Wall as guardian ad litem. Tipps
maintained in his affidavit that Wall was prejudicial, unprofessional and was not exercising
his authority in a manner that was in the children’s best interest. After all parties filed
responsive and reply briefs, the District Court denied the Motion and ordered Tipps to pay
Mager’s and Wall’s costs in responding to the Motion. Tipps filed a timely appeal.
STANDARD OF REVIEW
¶6 This Court reviews a district court’s determination of whether to remove or replace
a guardian ad litem for error. See In Re B.P., 2000 MT 39, ¶ 42, 298 Mont. 287, ¶ 42, 995
P.2d 982, ¶ 42, and In re Guardianship of Gali, 2000 MT 83, ¶ 9, 299 Mont. 178, ¶ 9, 998
P.2d 541, ¶ 9. We review a district court’s award of attorney fees in a dissolution action to
determine whether the court abused its discretion. A district court has abused its discretion
if its award of attorney fees is not supported by substantial evidence. In re Marriage of
Harkin, 2000 MT 105, ¶ 70, 299 Mont. 298, ¶ 70, 999 P.2d 969, ¶ 70 (citation omitted).
DISCUSSION
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¶7 The first issue we address is whether the District Court’s Order is an appealable order.
Mager maintains that the Order refusing to remove or replace the guardian ad litem is not “a
final judgment” or a “special order made after final judgment,” and, as a result, under Rule 1,
M.R.App.P., we do not have jurisdiction to hear this appeal.
¶8 Rule 1, M.R.App.P. defines from what judgment or order an appeal may be taken.
It states in pertinent part:
(b) In civil cases a party aggrieved may appeal from a judgment or order,
except when expressly made final by law, in the following cases:
(1) From a final judgment entered in an action or special proceeding
commenced in a district court, or brought into a district court from another
court or administrative body.
(2) From an order granting a new trial; or refusing to permit an action to be
maintained as a class action; or granting or dissolving an injunction; or
refusing to grant or dissolve an injunction; or dissolving or refusing to dissolve
an attachment; from an order changing or refusing to change the place of trial
when the county designated in the complaint is not the proper county; from an
order appointing or refusing to appoint a receiver, or giving directions with
respect to a receivership, or refusing to vacate an order appointing or affecting
a receiver; from an order directing the delivery, transfer, or surrender of
property; from any special order made after final judgment; and from such
interlocutory judgments or orders, in actions for partition as determine the
rights and interests of the respective parties and direct partition to be made.
In any of the cases mentioned in this subdivision the supreme court, or a
justice thereof, may stay all proceedings under the order appealed from, on
such conditions as may seem proper.
...
¶9 We have defined a final judgment previously as “one which constitutes a final
determination of the rights of the parties; any judgment, order or decree leaving matters
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undetermined is interlocutory in nature and not a final judgment for purposes of appeal.”
B.P., ¶ 15 (citation omitted).
¶10 Mager cites In Re D.A., 2003 MT 109, 315 Mont. 340, 68 P.3d 735, as authority for
the proposition that a temporary custody order does not constitute a final determination of
the rights of the parties. She also relies upon Lee v. Lee, 2000 MT 67, 299 Mont. 78, 996
P.2d 389, wherein we held that the “family law” exception may allow for a direct appeal of
a contempt order issued in a marital dissolution proceeding when the judgment appealed
from also includes an ancillary order which affects the substantial rights of the involved
parties. Lee, ¶ 37.
¶11 Tipps counters that neither D.A. nor Lee is applicable. He explains that D.A. involves
a temporary custody order and Lee addresses a contempt order. We agree that both D.A. and
Lee are distinguishable and inapposite, as they do not address the issue presented here--i.e.,
the appealability of an order refusing to replace a guardian ad litem.
¶12 While domestic relations cases frequently involve multiple filings and resulting
interim orders addressed to such issues as parenting plans, visitation, child support and the
like, in this case there are no other pending issues. The parties have proceeded under a
parenting plan that has been in place since November, 2002, and neither has sought to
modify it. Thus, the sole issue in the matter is the issue before us. Given this, and because
the Order of the District Court is a final determination, we will address the merits of the
District Court’s Order on replacement of the guardian and the propriety of attorney’s fees.
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¶13 Tipps argues that the District Court erred in refusing to remove Wall as guardian ad
litem. Tipps relates five specific instances that caused him to be “troubled by the Guardian’s
performance.” Without recounting the individual events, Tipps’ chief concern is that he
views Wall as unprofessional, prejudicial against Tipps’ interests and biased in favor of
Mager. Tipps considers the continuation of Wall as guardian ad litem an interference with
his fundamental and constitutionally protected right to parent his children. He further avers
that Wall failed to properly carry out his duties as guardian ad litem.
¶14 Mager, on the other hand, maintains that the guardian has performed the statutorily-
required duties and that nothing in Tipps’ affidavit indicates that he has not. Citing In Re
B.P. and A.P., 2001 MT 219, 306 Mont. 430, 35 P.3d 291, she asserts that the District Court
determines whether or not to remove a guardian ad litem based upon whether the guardian
ad litem has performed his or her duties as obligated under the applicable statute. B.P. and
A.P., ¶¶ 20 and 23. She maintains that because the record in the case at bar clearly reflects
that Wall has performed his duties as set out under Montana law, the District Court did not
err in allowing Wall to retain his role as guardian.
¶15 Moreover, when subjective accusations are leveled against a guardian, such as bias
or a poor relationship with the children the guardian is appointed to represent, the District
Court will look at whether the record supports such allegations. B.P. and A.P., ¶ 23.
¶16 The District Court appointed Wall pursuant to its discretion and authority under § 40-
4-205. Section 40-4-205(2)(a)-(e), MCA, defines a guardian ad litem’s duties. It provides:
(2) The guardian ad litem has the following general duties:
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(a) to conduct investigations that the guardian ad litem considers necessary
to ascertain the facts related to the child’s support, parenting, and parental
contact;
(b) to interview or observe the child who is the subject of the proceeding;
(c) to make written reports to the court concerning the child’s support,
parenting, and parental contact;
(d) to appear and participate in all proceedings to the degree necessary to
adequately represent the child and make recommendations to the court
concerning the child’s support, parenting, and parental contact; and
(e) to perform other duties as directed by the court.
¶17 Neither this statute nor other statutes authorizing the appointment of guardians ad
litem provide for the statutory removal of the guardian. See §§ 25-5-301, 41-3-112, and 41-
5-1411, MCA. Therefore, as noted by Mager, when reviewing the correctness of a district
court’s decision on granting or denying a motion to remove a guardian who has been
appointed under § 40-4-205, MCA, we determine whether the guardian has performed the
duties required under the statute. In the case before us, Tipps has advanced no argument that
Wall has failed to perform any duties set forth in § 40-4-205(2)(a)-(e), MCA. Under Rule
23(a)(4), M.R.App.P., an appellant is required to present an argument containing his or her
contentions with respect to the issues presented and the reasons for such contentions.
Additionally, the appellant must also present a well-reasoned argument citing authority,
statutes and the pages of the record relied upon. It is not this Court’s duty to guess the
positions of parties or to construct arguments on their behalf. See Harland v. Anderson
Ranch Co., 2004 MT 132, ¶ 33, 321 Mont. 338, ¶ 33, ___ P.3d ___, ¶ 33. Therefore,
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because Tipps failed to allege that Wall did not comply with the statute, we will not conclude
that Wall has done so.
¶18 As for Tipps’ allegations of unprofessionalism, the record supports Tipps’ claim that
Wall used profanity when addressing Tipps’ mother, and removed one of the children from
school without Tipps’ knowledge. While the District Court reprimanded Wall and instructed
that he refrain from using profanity when dealing with the parties or their family members,
the District Court, nonetheless, chose not to remove Wall as guardian despite these examples
of alleged unprofessionalism. The District Court’s Order contains no factual findings or
analysis. As a result, we do not know the court’s rationale for its decision, but based on the
record before us we cannot conclude that the District Court erred in choosing not to remove
Wall. Moreover, it appears that Wall’s actions are being closely monitored as required under
Girard v. Williams1, 1998 MT 231, 291 Mont. 49, 966 P.2d 1155, so that Tipps’
constitutional parental rights are not being inappropriately impinged. The record indicates
that counselors, the District Court, and the Department of Public Health and Human Services
have been frequently involved in the lives of this family. As such, there appears to be
adequate oversight. Tipps and Mager both must recognize that Wall’s responsibility is to
1
In Girard, we recognized longstanding Montana law that “a parent’s right to the
custody of his or her natural child . . . is a fundamental, constitutionally protected right.” We
further cautioned that “the ability of a third party [be it an individual or a state agency] to interfere
with the natural parent-child relationship must be closely monitored.” Girard, ¶ 16 (citations
omitted).
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represent the children and to make decisions that are in the children’s best interests. It is
likely that, at times, Wall’s decisions will appear to favor Mager, and at other times, Tipps.
¶19 However, we cannot affirm the District Court’s Order awarding attorney’s fees to
Mager. Under § 40-4-110(1), MCA, a court “from time to time, after considering the
financial resources of both parties, may order a party to pay a reasonable amount for the cost
to the other party of maintaining or defending any proceeding under chapters 1 and 4 and for
professional fees, including sums for legal and professional services rendered and costs
incurred prior to the commencement of the proceeding or after entry of judgment.” We held
in Harkin that a district court’s award of attorney fees in a dissolution action must be
“reasonable, necessary, and based on competent evidence.” Harkin, ¶ 72 (citation omitted).
¶20 From the court’s spartan order, we cannot ascertain whether the award was
reasonable or necessary, or whether or not it was a sanction. Furthermore, there is nothing
in the record to suggest that the parties presented evidence regarding the appropriateness of
requiring Tipps to pay Mager’s and Wall’s legal costs, nor is there evidence that the District
Court considered the financial resources of the parties prior to issuing its Order.
¶21 We have held that the district court must conduct a hearing allowing for “oral
testimony, the introduction of exhibits, and an opportunity to cross-examine in which the
reasonableness of the attorney fees claimed is demonstrated.” Harkin, ¶ 72. Mager argues
that because Tipps did not object to the reasonableness of the fees, a district court hearing
to determine the reasonableness was not held. Under Harkin, however, the burden is not on
Tipps to object to the reasonableness of attorney’s fees imposed prior to a hearing on the
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reasonableness of such fees. It is the district court’s duty to hold such a hearing before
imposing attorney’s fees. The court’s failure to comply with these requirements was an
abuse of its discretion.
¶22 For the foregoing reasons, we affirm the District Court’s decision to deny Tipps’
motion to remove the guardian. We reverse the District Court’s Order requiring Tipps to pay
Mager’s and Wall’s attorney’s fees and remand for the court to receive evidence and conduct
a hearing on the reasonableness and necessity of awarding such fees.
/S/ PATRICIA O. COTTER
We Concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
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