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In re Parenting of R.W.W.

Supreme Court of Montana

July 3, 2018

IN RE THE PARENTING OF: R.W.W., A minor child, TRINA I. WOLF, Appellant/Petitioner, WALTER E. WOLF, Appellee/Respondent.

          ORDER

         Trina J. Wolf (Trina) and Walter E. Wolf (Walter) have one child in common, fourteen-year-old R.W.W. The Eighteenth Judicial District Court issued a 29-page Findings of Fact, Conclusions of Law, and an Order regarding petitioner's (Trina) objections to professional team's report, setting forth parenting arrangements, and addressing respondent's (Walter) notice of intent to relocate. The order placed R.W.W. in sole custody of Walter, required all contact between Trina and R.W.W. to be at R.W.W.'s desire and request, and approved Walter's intent to relocate to Costa Rica once he posts a $1 million bond. Trina has filed a notice of appeal of the final order entered May 7, 2018.

         The District Court has denied Trina's motion to stay the judgment pending appeal. On June 25, 2018, Trina filed with this Court a motion to stay the District Court order pending appeal. On July 2, Walter filed a brief in opposition to Trina's motion.

         BACKGROUND

         Trina and Walter are the biological parents of R.W.W., born in October of 2004. The parties' marriage was dissolved in 2011 and a final decree was entered incorporating the terms of their agreed parenting plan, which provided for parenting to be shared between the parties. In January of 2014, R.W.W.'s court-appointed guardian ad litem became concerned that Trina was engaged in behaviors detrimental to R. W. W. 's best interests. The guardian ad litem requested emergency relief and filed an affidavit with the court detailing her concerns. The court appointed Dr. Christopher Hahn to investigate and make recommendations to the court regarding R.W.W.'s welfare. Dr. Hahn met with R.W.W. on ten different occasions and conducted in-home observations in each parent's home. In September 2014, Dr. Hahn issued a Parenting Investigation Report which the court implemented on November 6, 2014, as an interim parenting plan. On January 7, 8, and 9, 2015, the court conducted a trial on the request for emergency relief and modification of the parenting plan. On April 21, 2015, the District Court issued a second interim parenting plan and appointed a parenting coordinator, Dr. Michael Butz, to coordinate therapeutic efforts between the parties' personal counselors and R.W.W.'s counselor. R.W.W. selected Dr. Hallie Banziger as his counselor.

         On December 15, 2015, and June 2-3, 2016, a trial was held regarding entry of a Final Parenting Plan. Dr. Banziger testified that any parenting time with Trina be supervised based on R, W.W.'s suicidal ideations and extreme level of stress while in her care. Dr. Butz, who provided reports to the court every two weeks, testified to his concerns about R.W.W.'s well-being when in Trina's care. Trina requested that R.W.W. undergo a psychological evaluation, which the court granted. Dr. Dee Woolston reported R.W.W. was exposed to extraordinary parental manipulation. Trina presented her own expert witness, Dr. Robert Geffner. Dr. Hahn recommended a schedule whereby R.W.W. would live exclusively with Walter, with Trina having only supervised parenting time, following a stabilization period for R. W.W. wherein he would have no contact at all with Trina.

         On July 20, 2016, the court issued a forty-three page Findings of Fact, Conclusions of Law, and Order setting forth in comprehensive detail its reasons for ordering the Final Parenting Plan. The court incorporated all its findings from its thirty-page order entered April 21, 2015. R.W.W. would reside exclusively with Walter and after a period of time with Walter, Trina could resume parenting time in a supervised four-hour parenting block every other week. The court established a "Professional Team" comprised of psychologists for the principals and a Parenting Coordinator (retired District Court Judge, the Honorable Wm. Nels Swandal, was subsequently appointed). The court tasked the Professional Team with monitoring R.W.W., monitoring Trina's conduct, and recommending more frequent contact between R.W.W. and Trina when it would be consistent with R, W.W.'s best interests. On September 14, 2016, prior to an order adopting a final parenting plan, the team filed a report suggesting beginning written communication between R.W.W. and Trina. On October 17, 2016, the court entered an order implementing the recommendations of the Professional Team. On October 20, 2016, the court entered an order adopting a Final Parenting Plan, which accorded with its July 20, 2016, Findings of Fact and Conclusions of Law.

         Trina appealed. In a June 2017 unpublished opinion, this Court concluded that the District Court's determinations were supported by substantial evidence, that a dramatic change in the parenting of R.W.W. was necessary to protect R.W.W.'s best interests, that Trina's First Amendment claim was without merit, that there was support in the record for the Final Parenting Plan, and the creation of the Professional Team was not an unconstitutional delegation of authority. Wolf v. Wolf (In re R.W.W.), No. DA 16-0717, 2017 MT 174N, ¶21-22, 2017 Mont. Lexis 519.

         On August 21, 2017, the Professional Team filed a Parenting Coordinator's Report. On August 22, the District Court issued a Notice and Order Regarding Parenting Coordinator's Report soliciting any objections to the Professional Team's recommendations. Trina objected to the recommendations and the court set a hearing for December. Upon motion by Trina, the hearing was continued and took place on March 8-9, 2018. On May 7, 2018, the District Court issued the 29-page Findings of Fact, Conclusions of Law, and an Order regarding petitioner's (Trina) objections to professional team's report, setting forth parenting arrangements, and addressing respondent's (Walter) notice of intent to relocate. The court reviewed testimony from the Professional Team who overall found that Trina pursues her own agenda without regard to the needs of R.W.W. and that forcing R.W.W. to have a relationship with Trina would be more harmful than good. Concluding there had been a substantial change in circumstances since the 2016 parenting plan was adopted, taking into consideration R.W.W. wishes to reside solely with Walter, and the Professional Team's recommendations, the court concluded R.W.W. would reside solely with Walter and have no contact with Trina unless he wished. The court concluded Walter could relocate to Costa Rica upon posting a $1 million bond.

         Trina then filed a motion to stay the implementation of the May 7 parenting plan pending an appeal to the Supreme Court. On June 13, 2018, the District Court denied Trina's motion to stay.

         CURRENT MOTION ON APPEAL

         Trina argues the District Court erred and that she has demonstrated "good cause for the relief requested." M. R. App. P. 22(1)(a)(iii). Citing a four-factored test, she contends (1) that she has shown that she is likely to succeed on the merits, (2) that she will be irreparably injured absent a stay, (3) that no other interested parties will be substantially injured, and (4) that the public interest is in her favor.[1] Walter argues Trina has failed to provide any compelling reason as to why it would be in R, W.W.'s best interest to grant the motion and issue a stay.

         In its order denying Trina's motion to stay, the District Court found, based on the record, that R. W. W. does not desire contact with Trina, does not feel emotionally safe with her, and a reunification effort would be detrimental to R, W.W.'s health. The court found R.W.W. will not be irreparably injured absent a stay as the record shows R.W.W. was excited about moving to Costa Rica. The court found Trina had failed to show that she would be irreparably damaged absent a stay, as there are no visits or communication between R.W.W. and Trina currently. Based on the record, Walter is supportive of the District Court's continued jurisdiction and will submit to the $ 1 million bond requirement, ensuring that Walter will comply with future court orders.

         M. R. App. P. 22(3) provides that this Court has, in the interests of justice, discretion to grant or deny motions to stay district court orders pending appeal.

         Trina has failed to demonstrate that the imposition of a stay in this matter is within the best interests of R. W. W. We hold it would not be within ...


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