Marriage of Simonsen ( 2021 )

03/02/2021
DA 20-0070
Case Number: DA 20-0070
IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 55N
IN RE THE MARRIAGE OF:
SHARILYN J. SIMONSEN,
Petitioner and Appellee,
and
RUSSEL A. SIMONSEN,
Respondent and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. CDR-18-0216
Honorable John A. Kutzman, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Patrick F. Flaherty, Flaherty Gallardo Lawyers, Great Falls, Montana
For Appellee:
Dana A. Henkel, Terrazas Henkel, P.C., Missoula, Montana
Jeffrey S. Ferguson, Jeffrey S. Ferguson Law Office, PLLC, Great Falls,
Montana
Submitted on Briefs: February 3, 2021
Decided: March 2, 2021
Filed:
cir-641.—if
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of non-citable cases published in the Pacific Reporter and Montana
Reports.
¶2 Russell A. Simonsen (Russ) appeals the December 31, 2019, Final Parenting Plan
entered by the Eighth Judicial District Court, Cascade County, awarding primary custody
of the parties’ two children to Sharilyn J. Simonsen (Shari) during the academic year. We
consider:
1. Whether the District Court erred by designating Shari as the primary residential
custodian during the academic year in the Final Parenting Plan?
2. Whether the District Court erred by holding Russ in contempt?
¶3 The parties were married in Great Falls, Montana, on July 31, 2004. The parties
had two children during the marriage, J.W.S. and K.H.S., both of whom were minors
throughout this proceeding. On April 24, 2018, Shari filed a Petition for Dissolution. Russ
opposed terminating the marriage and sought reconciliation.
¶4 Shari moved out of the marital home and into her parents’ home in July 2018. The
District Court found that her decision to live with her parents was caused by her inability
to finance a new home while tied to the existing mortgage on the marital home and that
this housing arrangement aggravated the relationship between Shari and the children, who
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preferred to reside at the marital home because they identified it as their “safe space” and
they had their own bedrooms there.
¶5 The District Court found that Russ did not conduct cordial interactions with Shari
in front of the children. Emergency authorities were called to respond to Russ’ erratic
behavior toward Shari on one occasion and were nearly summoned on another. The
District Court also found that Russ spoke poorly of Shari around the children and “adopted
what is most charitably described as a laissez faire attitude toward facilitating parenting
time between Shari and the children.” Concerned with Russ’ behavior and his withholding
of the children from her, Shari filed a Motion for an Emergency Parenting Plan on
October 5, 2018. The District Court held a hearing regarding the motion on December 19,
2018. At the conclusion of the hearing, the District Court, not wanting “to reverse the
primary custody relationship [with Russ], at least not yet[,]” orally issued an Interim
Parenting Plan that placed the children with Russ on weekdays and with Shari every other
weekend. Upon further consideration, the court sua sponte issued a Revised Interim
Parenting Plan on January 15, 2019, wherein it increased Shari’s time with the children to
every weekend and required that Russ facilitate two evening phone calls per week between
Shari and the children.
¶6 A Final Parenting Plan Hearing was held February 21, 2019. The District Court
heard testimony from Russ, Shari, the children, a parent of J.W.S.’s friend, and counselors
who had met with the children. On February 25, 2019, the District Court entered its
Findings of Fact, Conclusions of Law, and Decree of Dissolution of Marriage, which
incorporated a Stipulated Property Agreement, but reserved ruling on a Final Parenting
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Plan. The Stipulated Property Agreement required, among other things, that Russ refinance
the marital home and remove Shari from the mortgage. However, Russ did not refinance
the marital home and remove Shari from the mortgage until December 2019, after months
of proceedings to prod him, including four show cause hearings and entry of an Order of
Contempt. Despite this, Shari was able to purchase a home sometime after the
February 2019 hearing, enabling the children to have their own bedrooms at her residence.
¶7 On December 31, 2019, the District Court issued its Final Parenting Plan along with
Findings of Fact, Conclusions of Law, and Order wherein it concluded the best interest of
the children would be served if they would “reside with Shari for the academic school year
with visitation to occur every other weekend with Russ, and for the children to reside with
Russ during the majority of the summer vacation with visitation to occur every other
weekend with Shari.” From the evidence, the District Court found that Russ had, among
other improprieties: attempted to alienate Shari and the children by blaming the divorce on
her; told the children Shari was “leaving the family”; and purposefully acted to hinder the
children’s relationship with Shari. This finding was buttressed by Russ’ testimony that the
children and Shari got along amicably prior to the separation, in stark contrast to the
problems that occurred thereafter. The court also found that Russ manipulated the children
in an attempt to get Shari to reconcile with him, and thereby undermine her in the eyes of
the children, by, among other things, having the children invite Shari on excursions with
Russ and bringing the children to watch as he begged her to return in her parents’ front
yard.
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¶8 A counselor opined at the hearing that the children preferred to live with Russ, but
the District Court determined, given the timing—Russ had retained her the month prior to
the hearing—and that Russ had asked oddly-framed questions to the children in the
counselor’s presence, the counselor was primarily retained to influence the hearing.
Similarly, after speaking with the children, the District Court determined that the children
preferred the comfort of the marital home and having their own bedrooms, which did not
equate to preferring to live with Russ, and that Shari moving into her own home would
eventually alleviate any discomfort felt by the children while staying with her. From this,
the District Court concluded that Russ was being an intentionally ineffective co-parent, a
position supported not only by the foregoing but by Russ failing to inform Shari of thoughts
of self-harm articulated by J.W.S., and excluding Shari from the children’s counseling
sessions. The District Court found the children desired to have “fun time” with both parents
and to spend both weekday and weekend time with each parent. In its Conclusions of Law,
the court carefully considered the best interest of the children, entering a specific
conclusion regarding each factor enumerated in § 40-4-212(1), MCA (2019). Russ appeals
the Final Parenting Plan.
Final Parenting Plan
¶9 Because the district court is in a superior position to weigh the evidence and
credibility of witnesses, so long as the findings are supported by substantial evidence “we
will not overturn the court in a child custody matter unless we determine that there has
been a clear abuse of discretion.” Czapranski v. Czapranski, 2003 MT 14, ¶ 10, 314 Mont.
55, 63 P.3d 499 (citing In re Marriage of Bukacek, 274 Mont. 98, 105, 907 P.2d 931, 935
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(1995)); In re Marriage of McKenna, 2000 MT 58, ¶ 14, 299 Mont. 13, 996 P.2d 386(“Where the findings are supported by substantial credible evidence, this Court will affirm
the custody decision unless it is shown that the trial court committed a clear abuse of
discretion.”). We review a district court’s findings of fact to determine if they are clearly
erroneous. Czapranski, ¶ 10 (citing In re Marriage of Fishbaugh, 2002 MT 175, ¶ 19, 310
Mont. 519, 52 P.3d 395).
¶10 A district court must determine child custody in a manner that effectuates the best
interest of the child after considering the thirteen factors enumerated in § 40-4-212(1),
MCA. Fishbaugh, ¶ 20; see § 40-4-212(1), MCA. Though the court must consider each
factor articulated by the statute, it need not make a specific finding relating to each.
Czapranski, ¶ 11 (citing Fishbaugh, ¶ 20).
¶11 Russ contends that the District Court, in granting Shari primary custody time during
the academic year, endorsed the viewpoint of Shari while disregarding those of the
children, the counselors, and himself. Russ argues the court’s custody determination was
not supported by substantial evidence, therefore rendering the Final Parenting Plan clearly
erroneous. We disagree. The District Court clearly addressed the statutory guidelines,
entering conclusions of law that were precise and addressed each statutory factor, affording
them proper weight under the circumstances. Further, the court’s findings reveal
comprehensive consideration of all evidence Russ asserts was ignored; significant weight
was not accorded because Russ’ coercive actions weakened the strength and credibility of
the testimony of the counselors and children.
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¶12 Perhaps Russ’ most salient point of contention is that the children expressed a
preference to reside with him. However, upon its review of the testimony, the District
Court found it was more the marital home, not Russ, that was the source of their comfort.
The record supports what the District Court found—both Russ and Shari are good, loving
parents and the children desire time with both parents. However, the record also supports
the court’s finding that Russ had not demonstrated an ability to effectively co-parent and
facilitate a positive relationship between Shari and the children. Where there are conflicts
in testimony, it is the function of the trier of fact to resolve those conflicts and we will not
substitute our judgment for that of the trier of fact because it is the trial court that is in the
better position to resolve child custody issues. McKenna, ¶ 17. We hold there is substantial
evidence supporting the District Court’s determination that it is in the best interest of the
children to share custody as described in the Final Parenting Plan Order and that the Order
is not otherwise clearly erroneous. We also hold that, given the trial court’s careful
assessment of the factors in § 40-4-212(1), MCA, and its “independent analysis of the facts
of the case to make its custody decision,” there is no clear abuse of discretion. McKenna,
¶ 19 (internal quotation and citation omitted).
Contempt
¶13 Russ states the District Court has not yet entered its final ruling on contempt of
court, and that, “[u]pon remand the District Court Judge can award attorney’s fees, a
contempt sanction and put [Russ] in jail[.]” Shari argues there were several contempt
orders and Russ has not designated the order he is seeking to appeal.
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¶14 Unless an exception applies, Rule 6(1) of the Montana Rules of Appellate Procedure
limits appeals to final orders. A contempt order is reviewable “on a writ of certiorari,”
although it may be appealed if the contempt order “includes an ancillary order that affects
the substantial right of the parties involved.” Section 3-1-523(1), (2), MCA. The “family
law exception” is “limited.” Marez v. Marshall, 2014 MT 333, ¶ 23, 377 Mont. 304, 340
P.3d 520. “We generally reject the direct appeal of a contempt order in a dissolution of
marriage case that goes purely to the district court’s contempt power” and does not
adjudicate or affect any ancillary matter falling within the district court’s continuing
jurisdiction over the rights of the parties. In re Marriage of Lutes, 2005 MT 242, ¶ 10, 328
Mont. 490, 121 P.3d 561; Lee v. Lee, 2000 MT 67, ¶ 37, 299 Mont. 78, 996 P.2d 389(holding that a “lone contempt order” may not be reviewed on direct appeal).
¶15 The August 7, 2019, Order clearly constitutes an order of contempt in a family law
proceeding. However, the exception allowing for direct appeal does not apply as the Order
did not impact the substantial rights of the parties. The Order was a “lone contempt order”
aimed at maintaining the dignity and authority of the District Court and had no ancillary
impact on any substantial rights relating to the court’s continuing jurisdiction over the
marriage dissolution or the Final Parenting Plan. Lee, ¶ 37. Further, Russ’ argument that
§ 3-1-511, MCA, requires that he be “given an opportunity to defend himself” has no merit
as regarding that Order, as it was preceded by the August 1, 2019, show cause hearing on
the topic. Therefore, the exception does not apply and the contempt order is not ripe for
review by the Court at this time. Marta Corp. v. Thoft, 271 Mont. 109, 114, 894 P.2d 333,
336 (1995) (determining that it was premature for the Court to rule on contempt prior to
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final judgment being issued by the district court when there was no applicable exception).
If, as Russ argues, there are further contempt matters to be resolved, we do not undertake
review of those matters herein.
¶16 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review.
¶17 Affirmed.
/S/ JIM RICE
We concur:
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR
/S/ INGRID GUSTAFSON
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