Custody of Arneson Nelson

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No. 99-447
IN THE SUPREME COURT OF THE STATE OF MONTANA
2000 MT 31NIN RE THE CUSTODY OF
SAWYER THOMAS ARNESON-NELSON,
a minor child
DEBBIE M. PENGRA,
f/k/a DEBBIE M. ARNESON,
Petitioner and Respondent,
and
MARK EDWARD NELSON,
Respondent and Appellant
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Mark E. Nelson, Pro Se, Canyon Creek, Montana
For Respondent:
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Michael L. McPherson; McPherson & Hutchison, Great Falls, Montana
Submitted on Briefs: January 13, 2000
Decided: February 7, 2000
Filed:
__________________________________________
Clerk
Justice Karla M. Gray 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 but 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.Mark Edward Nelson (Mark), appearing pro se, appeals from the entry by the First
Judicial District Court, Lewis and Clark County, of a Final Parenting Plan concerning
Sawyer Thomas Arneson-Nelson (Sawyer), the minor son of himself and Debbie M.
Arneson (Debbie). We affirm.
¶3.Mark presents the following issues:
¶4. Did the District Court abuse its discretion in issuing the Final Parenting Plan?
¶5. Did the District Court violate Mark's state or federal constitutional rights?
For the reasons discussed below, we do not resolve the issues presented on the merits.
¶6.Sawyer was born on August 3, 1994, and was 4½ years old at the time the District
Court entered the Final Parenting Plan (Plan) at issue in this case. Mark and Debbie have
been involved in continuous litigation since soon after his birth with, as the court put it, "a
constant barrage of motions, requests for ex parte and contempt orders, affidavits,
communications by the parties and attorneys to the Court, copies of communications
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between the attorneys, and communications and requests to the Court by therapists,
mediators and neutral observers."
¶7.The District Court found, in both an early custody order and in its findings of fact in
conjunction with the Plan, that both Mark and Debbie are excellent parents and love
Sawyer very much. Unfortunately, as the court determined, they have been "unable to co-
parent Sawyer without exposing him to continuing mutual hostility." Indeed, "[t]he parties
are simply unable to agree on anything that pertains to Sawyer and are unwilling or unable
to communicate with each other in a constructive and civil manner for the benefit of
Sawyer's well being." The court found that the best interests of the child were that the
parents have as little contact with each other as possible and that he spend quality time
with each parent. Accordingly, Debbie was designated Sawyer's primary residential
custodian, and given the authority to make all decisions with regard to him. Mark was to
have Sawyer with him for one week each month, specified holidays, and three consecutive
weeks each summer. The court expressly provided for telephone conversations between
Mark and Sawyer and frequent communication by mail was encouraged.
¶8.With regard to a motion by Mark to hold Debbie in contempt for frustrating his
visitation during February of 1999, the District Court held Debbie in contempt. Debbie
was ordered to pay the costs and attorney fees Mark incurred with respect to the hearing
on his motion.
¶9.Mark appeals from the entry of the Plan.
DISCUSSION
¶10.Only by close scrutiny of Mark's and Debbie's briefs were we able to ascertain the
issues Mark is attempting to raise in this appeal. His brief does not comply with any of the
briefing requirements contained in the Montana Rules of Appellate Procedure and,
furthermore, it is interspersed with inappropriate attacks on the District Court.
¶11.Most importantly, Mark does not support his arguments with citations to authority as
required by Rule 23(a)(4), M.R.App.P. While we make all possible accommodations for
parties appearing pro se by relaxing requirements that do not go to the fundamental bases
of such parties' appeals, a district court's decision is presumed correct and an appellant
bears the burden of establishing error by that court. Matter of M.J.W., 1998 MT 142, ¶ 18,
289 Mont. 232, ¶ 18, 961 P.2d 105, ¶ 18 (citations omitted). This Court's development of a
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party's arguments and search for legal authority to support them would constitute improper
advocacy for one party. By failing to advance any legal authority under which the District
Court either abused its discretion in entering the Plan or violated his constitutional rights,
Mark has failed to meet his burden.
¶12.Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ J. A. TURNAGE
/S/ WILLIAM E. HUNT, SR.
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
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