Larrivee v. Gardner ( 2021 )

07/13/2021
DA 20-0483
Case Number: DA 20-0483
IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 173N
IN THE MATTER OF THE
PARENTING OF S.R.G.,
A minor child;
LISA LARRIVEE,
Petitioner and Appellee,
v.
JAMES GARDNER,
Respondent and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. ADR-18-0208
Honorable Jon A. Oldenburg, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
James F. Gardner, Self-Represented, Great Falls, Montana
For Appellee:
Noel K. Larrivee, Larrivee Law Offices, PLLC, Dayton, Montana
Submitted on Briefs: May 26, 2021
Decided: July 13, 2021
Filed:
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__________________________________________
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 James Gardner (Father), a member of the State Bar of Montana appearing pro se,
appeals from the Findings of Fact, Conclusions of Law and Order and Final Parenting Plan
entered by the Eighth Judicial District Court, Cascade County, regarding his child, S.R.G.
We affirm.
¶3 Father raises the following issues:
1. Did the District Court err by ordering Father to pay for certain activities
for S.R.G.?
2. Did the District Court err by ordering Father to pay past insurance
premiums?
3. Did the District Court err by disregarding the testimony of Kimberly
Cummings, LCPC, at trial?
4. Did the District Court err by disregarding the video testimony of S.R.G.?
5. Did the District Court err by its allocation of parenting time in the
Final Parenting Plan?
¶4 Father and Lisa Larrivee (Mother) are the parents of S.R.G., who was born in
Los Angeles, California, in May 2015. Mother and Father were never married and have
not been romantically involved since 2015. In November 2015 Mother moved back to
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Montana where she and S.R.G. have since resided. The parties acknowledge that Mother
has been the primary custodial parent from S.R.G.’s birth.
¶5 In September 2017, the parties met to review a “Stipulation for Final Parenting
Plan” Father had drafted, and to calculate Father’s child support obligation from the
Montana online calculator, which they determined to be $1,200 per month. Mother
testified that Father stated he would revise the parenting plan and provide an updated
version to Mother after the meeting, but did not do so. Mother thus commenced this action
in April 2018, initially appearing pro se.
¶6 Following Father’s motion for substitution and three district judges declining
jurisdiction, the Hon. Jon A. Oldenburg accepted the case. The parties’ coparenting of
S.R.G. was amicable until December 18, 2018, when a dispute arose about parenting time
over the holidays, leading to the appearance in the action by counsel Noel Larrivee
(Larrivee), Mother’s father, to represent her in the action. The parties entered a Stipulation
to Interim Parenting Plan (Interim Plan).
¶7 Under the Interim Plan, Mother was designated as the primary parent with Father
allotted parenting time with S.R.G. every other weekend and one weeknight of each week.
Holiday parenting was divided between Mother and Father, but no provision addressed
S.R.G.’s birthday. Father was required to “pay Mother $1,000.00 per month beginning on
January 5, 2019 and by the fifth of each month thereafter. In addition, Father shall pay
Mother $5,000.00 by January 31, 2019 and an additional $5,000.00 by July 31, 2019.” The
Interim Plan set out parameters for a college fund for S.R.G. and set the contributions each
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party would make toward the costs of S.R.G.’s health insurance and activities. The
District Court approved the Interim Plan and set trial for June 14, 2019.
¶8 On June 10, 2019, four days before trial, Mother filed a notice advising the court
she was moving to Bozeman and requesting the issue be heard at trial. On June 12, she
also filed an objection “to any continuance” of the trial, reasoning that Larrivee had
incurred substantial expense to fly a witness from Alaska to testify. On June 13, the
District Court, noting that Mother’s notice of residency change did not comply with
§ 40-4-217, MCA, vacated the trial on the ground that “it would be inherently unjust to
require [Father] to appear for trial to contest an unknown Final Plan with [Mother] now
residing in Bozeman.” Instead, a hearing was held on June 14 to discuss the interim
parenting plan and to permit the Alaskan witness to testify and preserve her testimony for
trial. The witness proved to be S.R.G.’s maternal grandmother, a Great Falls resident who
cut short her annual trip to Alaska to be back in town to testify.1
¶9 Following the hearing, the court issued its Order on Interim Parenting Plan as a
bridge to a final plan that largely maintained the prior Interim Plan with minor alterations
to account for Mother’s current residency in Bozeman. Unfortunately, the litigation had
become extremely contentious and, given the tenor of Father’s interactions, the Order
concluded with a warning to Father that his “petty, personal, vindictive, spiteful, wrong,
inappropriate, improper, and totally unnecessary” attacks upon Mother and Larrivee must
1
The parties refer to S.R.G.’s maternal grandmother as “Yabba.”
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stop, at the risk of sanctions. Despite this admonishment, both Father and Larrivee
continued to engage in antagonistic conduct.
¶10 Trial on the Final Parenting Plan was held on July 20, 2020, wherein testimony was
received from Mother, Father, Yabba, a Child Support Services Division employee, and
Kimberly Cummings, a child counselor retained by Father. Also admitted was a video
recording of Father “interviewing” S.R.G. about her interaction with her stepbrother, L.L.,
and other exhibits. The District Court noted that Father’s Financial Affidavit had not been
filed prior to trial and that he had likewise waited until trial to advise “that his 2016, 2017,
and 2018 tax returns were being filed the day of the trial[,]” a delay that ostensibly caused
the trial court to task the Child Support Services Division of the Department of Public
Health and Human Services to calculate the final amount of child support.
¶11 The District Court issued its Order and Final Parenting Plan on August 26, 2020.
The court noted that “Lisa lives in Bozeman in a four-bedroom, 2 and ½ bath home about
a block from [S.R.G.’s] school.” Conversely, Father “lives in Great Falls in a two-bedroom
one bath home with his significant other Destiny Freiberg; [O.G.], the toddler son of
[Father] and Destiny; [T.G.,] (Destiny’s 10-year-old son who visits on weekends)[;] and
Zachary Gardner, adult son of [Father].” The court reasoned that “there was no testimony
of an unsafe environment for [S.R.G.] in [Father’s] home[,]” although she shared a
bedroom with “[Father], Destiny, and [O.G.,]” whereas in Bozeman S.R.G. “has her own
room.” The court considered each of the “best interest” factors set forth in
§ 40-4-212(1), MCA, concluding that S.R.G.’s best interests would be served by primarily
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residing with Mother in Bozeman. Father was granted parenting time every other weekend
from Friday evening until Sunday evening during the school year, and Thursday evening
until Sunday evening during summer break. Holidays were alternated between the parties.
Mother’s Day and Mother’s birthday were awarded to Mother, and Father’s Day and
Father’s birthday to Father. S.R.G.’s birthday, at which time S.R.G would be residing with
Mother, was granted to Mother. Each parent was granted fourteen (14) vacation days, with
the requirement that S.R.G. could not be away from Mother for more than five (5)
consecutive days until she had turned eight years old.2
¶12 The court ordered Father to pay $1,000 per month for child support pending entry
of an order by the Child Support Services Division. The parties were required to evenly
share the cost of S.R.G.’s health insurance and to “each contribute Fifty Percent (50%) of
the costs for any of the child’s expenses exceeding $500.00 annually including school and
summer camp tuitions and extra-curricular activities.” Concerning past due obligations
arising under the Interim Plan, the Order found that:
[Mother’s Exhibits] 20-23 document the expenses for [S.R.G.’s] health
insurance and preschool and camp activities for 2019. That Exhibit shows
the following share for [Father]: health insurance-$138. x 12
months=$1,661.28 per year; pre-school (Merry-Hearts) $297.50 x 9 months=
$2,677.50/school year; and summer camp, $260/month for 3 months-
$780.00. [Father’s] share would them be $1661.28, plus $2,677.50, plus
$780.00 for a total of $5118.78, minus the $500.00 amount specified equals
$4,618.78 that [Father] owes.
Father appeals, raising the above-stated issues.
2
S.R.G. is currently six years old.
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¶13 We review a district court’s findings of fact to determine whether they are clearly
erroneous. Czapranski v. Czapranski, 2003 MT 14, ¶ 10, 314 Mont. 55, 63 P.3d 499 (citing
In re Marriage of Fishbaugh, 2002 MT 175, ¶ 19, 310 Mont. 519, 52 P.3d 395). A finding
is clearly erroneous if it is not supported by substantial evidence, if the trial court
misapprehended the effect of the evidence, or if our review of the record convinces us that
a mistake has been committed. In re J.W.M., 2015 MT 231, ¶ 12, 380 Mont. 282,
354 P.3d 626. We review a district court’s conclusions of law for correctness.
J.W.M., ¶ 12.
¶14 “A district court has broad discretion when considering the parenting of a child, and
we must presume the court carefully considered the evidence and made the correct
decision.” In re G.M.N., 2019 MT 18, ¶ 11, 394 Mont. 112, 433 P.3d 715; accord
In re Marriage of McKenna, 2000 MT 58, ¶ 17, 299 Mont. 13, 996 P.2d 386. So long as
the trial court’s findings are supported by substantial, credible 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, ¶ 10 (citing In re Marriage of Bukacek,
274 Mont. 98, 105, 907 P.2d 931, 935 (1995)). An abuse of discretion occurs when a
district court “acts arbitrarily without conscientious judgment or exceeds the bounds of
reason.” J.W.M., ¶ 11 (citing In re J.C., 2008 MT 127, ¶ 33, 343 Mont. 30, 183 P.3d 22).
¶15 A court must determine child custody matters in accordance with the best interest
of the child. See § 40-4-212(1), MCA. This inquiry requires that the court consider factors
enumerated in § 40-4-212(1), MCA. “While the court must consider several statutory
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factors in determining the child’s best interest pursuant to § 40-4-212, MCA, it need not
make specific findings pertaining to each factor.” McKenna, ¶ 15.
¶16 Father argues the District Court erred by ordering him to share in S.R.G.’s preschool
and summer nature school because these are schools, not “activities,” yet neither are
colleges or higher education for which he was required to contribute under the Interim Plan.
He compares these functions to “day care,” a term used by Yabba during her testimony. A
stipulated parenting plan is enforced and interpreted under contract law. In re Estate of
Hicks, 2011 MT 76, ¶ 10, 360 Mont. 91, 252 P.3d 175. “[I]f the language of the parenting
plan is clear, i.e. unambiguous, it controls the agreement’s interpretation.” Estate of Hicks,
¶ 10. When interpreting the words of a contract, they “are to be understood in their ordinary
and popular sense” unless the parties to the agreement intended otherwise.
Section 28-3-501, MCA. We find no error. Interaction with other children in a learning
environment is a socialization and educational activity. See Merriam-Webster’s Collegiate
Dictionary 13 (11th ed. 2003) (activity is “the quality or state of being active[,]” which can
include “an educational procedure designed to stimulate learning by firsthand
experience[.]”).
¶17 Father argues the District Court erred by ordering him to pay past insurance
premiums. He argues he “did, in fact, pay his portion of the premiums” and “there was no
testimony or evidence presented that Father did not pay one-half of the insurance premium
once Mother secured a new, non-subsidized policy[,]” but also contends that “there was no
order” and that he “didn’t have to contribute” to the insurance premium costs because the
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Interim Plan did not require that he pay 50% of premiums unless S.R.G.’s then-current
insurance plan “cease[d] to be available.” The Interim Plan, which was in effect for the
time period in dispute, stated:
[Mother] shall continue to provide medical coverage through the plan as long
as it is available at a reasonable cost. Mother and Father shall each pay Fifty
(50%) of any co-pays and uninsured costs. Mother shall supply Father with
a copy of the bills within Fifteen (15) days of receipt and Father shall pay
Fifty (50%) of the costs to Mother or invoicing party within Fifteen (15) Days
of receipt.
Should the plan cease to be available, Mother and Father shall each pay Fifty
(50%) of the new health insurance premium costs and Fifty (50%) of any
deductibles, co-pays and uninsured costs.
During the hearing, Mother testified that S.R.G.’s former plan was “no longer [] available”
and S.R.G.’s new plan, which insured S.R.G. for all twelve months of 2019, had a
“$276.88 per month premium[,]” toward which Father did not contribute. Mother also
submitted supporting documentary evidence. While Father and Larrivee engaged in
contentious back-and-forth over the health insurance issue, this was the only evidence
concerning whether S.R.G. was insured under a new health insurance policy in 2019. Since
the testimony was not refuted and was supported by documentary evidence, we conclude
the District Court’s finding was supported by substantial, credible evidence, and there was
no abuse of discretion.
¶18 Father argues the District Court erred in its assessment of evidence concerning
potential harm to S.R.G. in Mother’s household. He offered the testimony of
Kimberly Cummings, a Licensed Clinical Professional Counselor specializing in helping
“kids with trauma, drug addiction, [and] abuse,” who Father had retained to assess S.R.G.
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Cummings met with S.R.G. for about 12 sessions, each lasting approximately 30-45
minutes, and testified that S.R.G. “continuously [brought] up that her brother [L.L.] [was]
very mean to her [and] hit[] her,” and had expressed a desire to spend more time at Father’s
house. Cummings provided her perceptions of S.R.G.’s relationship with Mother and L.L.,
which the District Court summarized as being concerned about S.R.G.’s physical and
mental well-being at Mother’s house, and believing S.R.G. was not receiving “that female
connection with her mother,” as stated in her affidavit. She recommended that S.R.G. be
placed primarily with Father, and that L.L. and Mother receive counseling. However, the
District Court discounted this testimony, reasoning Cummings’ “conclusions, allegations,
and recommendations were made without Ms. Cummings ever contacting or discussing
[S.R.G. and L.L.] with [Mother]; ever meeting [Mother or L.L.]; ever meeting or
attempting to gather collateral information from the close family members of [Mother] who
have constant contact with [S.R.G. and L.L.]; never interviewing Destiny, [T.G.], or
Zachary, or conducting solid interviews with [Father].” The court concluded that a
“plethora of testimony, exhibits, and documentation in this record [] refutes
Ms. Cummings’ recommendations and conclusions[,]” and afforded little weight to the
testimony. Such evidence included Yabba’s testimony that L.L. did not attack and injure
S.R.G., as Father contended, but rather S.R.G. fell while getting out of a vehicle; various
testimony minimizing the perceived negative relationship between S.R.G. and L.L. and
describing typical sibling conflict; and evidence that S.R.G. was happy residing at Mother’s
house. We conclude the District Court’s conclusion was not erroneous.
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¶19 On a related issue, Father argues the District Court erred by ignoring asserted
mistreatment of S.R.G. by L.L., as discussed in a video conversation she had with Father,
and her articulated desire to live with him. The child’s preferences for custody are indeed
a factor to be considered by a district court when making a custody determination.
Section 40-4-212(1)(b), MCA; see also § 40-4-219(1)(c), MCA (limiting consideration of
the desires of the child when amending a parenting plan to children over the age of 14).
However, the trial court is under no duty to interview the child to discern her preferences
and “is not required to make specific factual findings regarding the children’s preferences.”
Bukacek, 274 Mont. at 105, 907 P.2d at 935. The District Court stated that it “did not
interview the child due to her tender age and therefore does not know her wishes.” Father
contends the court ignored S.R.G.’s desire to reside primarily with him, but the transcript
of the conversation with Father does not contain a clear expression by S.R.G. about wanting
to reside primarily with Father; rather, it largely deals with the squabbles S.R.G. is having
with L.L. There was extensive evidence also illustrating that S.R.G. was happy and
thriving at the homes of both Mother and Father.
¶20 Father alleges that “[t]he Final Parenting Plan inexplicably contains [] gender-based
biases[.]” Father finds error in Part III (C) of the Final Parenting Plan that gives Mother
parenting time every Mother’s Day, all of Mother’s birthdays, and all of S.R.G.’s birthdays.
Father does not mention that he received parenting time annually on Father’s Day and on
his birthday. Concerning S.R.G.’s birthday, a district court may consider “the child’s
adjustment to home, school, and community” when determining the best interest of the
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child. Section 40-4-212(1)(d), MCA. Given that the parties no longer reside in the same
city and S.R.G. has begun school, it appears reasonable that Mother would exercise
parenting on S.R.G.’s May birthday to coincide with Mother’s primary parenting during
the school year and for S.R.G. to be able to celebrate with school friends. Regarding the
provision that Father not use his allotted vacation time more than five consecutive days in
a row until S.R.G. turns eight years old, it is well with the province of the District Court to
determine it is in S.R.G.’s best interest to not spend an extended period of time away from
Mother, her primary parent since birth, during her young years. See
§ 40-4-212(1)(h), MCA (determining the best interest of a child includes consideration of
“continuity and stability of care”). The provision requiring that, should Father or any
member of Father’s house have symptoms of illness, any visitation must be rescheduled
until the sick person is symptom free is clearly in the best interest of the child, particularly
during times of public health concerns. The Final Parenting Plan was issued in the midst
of the COVID pandemic and to limit visitation when the result may be harmful exposure
to S.R.G. is prudent. See § 40-4-212(1)(e), MCA (determining the best interest of a child
includes consideration of “the mental and physical health of all individuals involved”).
The same bears true for the provision requiring that Father notify Mother if S.R.G. becomes
ill while in Father’s care—it was designed to allow Mother to prepare and get herself tested
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for illness. See § 40-4-212(1)(e), MCA. We conclude the Final Parenting Plan does not
contain biased provisions.3
¶21 Finally, Father faults the District Court’s election not to follow local district court
guidelines for allocation of time in a parenting plan. For a child aged three to five, the
guidelines suggest no additional time for the nonprimary custodial parent in the summer.
For a child over the age of five, the guidelines suggest the nonprimary parent be granted
“[o]ne-half of the school summer vacation.” At the time of the hearing, S.R.G. was age
five, and, technically, would have been considered under the guideline for children of ages
three to five. Although the guideline for children over the age of five would now be
applicable to S.R.G., we conclude there was no abuse of discretion in the District Court’s
summer custody allocation. The parenting plan guidelines state they are “only a general
direction for parents” and “are not compulsory rules[.]” As such, a district court
“reserves the right to set whatever parenting plan best meets the needs of the children[.]”
Here, the District Court acknowledged the guidelines, but relied upon substantial evidence
to depart from them.
¶22 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
3
We agree that the parties and the parenting plan should enhance the opportunity for Father to
contact or communicate with S.R.G. on her birthday, and to receive reports concerning medical
care received by S.R.G. while with Mother.
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applicable standards of review, for which there was no abuse of discretion. This appeal
presents no constitutional issues, no issues of firm impression, and does not establish new
precedent or modify existing precedent.
¶23 Affirmed.
/S/ JIM RICE
We concur:
/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR
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