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In re Marriage of Kesler

Supreme Court of Montana

September 18, 2018

IN RE THE MARRIAGE OF: DAVID OTTO KESLER, III, Petitioner and Appellee, and WENDY ROGERS, f/k/a WENDY KESLER, Respondent and Appellant.

          Submitted on Briefs: August 15, 2018

          APPEAL FROM: District Court of the Third Judicial District, In and For the County of Anaconda-Deer Lodge, Cause No. DR 13-17 Honorable Ray Dayton, Presiding Judge

          For Appellant: Wendy Rogers f/k/a Wendy Kesler, Self-Represented, Roundup, Montana

          For Appellee: Bradley J. Jones, Jami L. Prins, Jones & Cook, Attorneys at Law, Missoula, Montana

          OPINION

          BETH BAKER JUSTICE

         ¶1 Wendy Rogers appeals the findings of fact, conclusions of law, and final parenting plan ordered by the Third Judicial District Court, Anaconda-Deer Lodge County. She alleges multiple errors in the District Court's factual findings and in its parenting plan determination. We do not adopt the District Court's findings in full, but upon review of the record conclude that substantial evidence supports its decision and that Wendy has not demonstrated reversible error. We affirm the parenting plan.

         PROCEDURAL AND FACTUAL BACKGROUND

         ¶2 Wendy Rogers and David Otto Kesler, III, married in March 2012 and had one child, K.R.K., in December 2012. The couple briefly resided in Roundup, Montana, at the beginning of the marriage, but moved to the Deer Lodge area shortly after Wendy became pregnant. David's family owns a large ranch near Philipsburg and has extended family in the area. David and Wendy moved into a house owned by David's parents.

         ¶3 David and Wendy's relationship quickly deteriorated. Wendy filed for a temporary order of protection in Powell County in February 2013, alleging physical and verbal abuse from David. David petitioned for a dissolution of marriage in Anaconda-Deer Lodge County shortly thereafter. In April 2013, the District Court dissolved the temporary order of protection and ordered an interim parenting plan granting Wendy primary residential custody of K.R.K. with visitation for David every two weeks. This interim parenting plan never went into effect, however, because the parties reconciled less than a week after it was ordered. 2

         ¶4 Wendy and David separated for good in April 2014. Wendy filed for another temporary order of protection in justice court, alleging continued physical and verbal abuse. David moved back to his parents' ranch near Philipsburg. He filed a motion to vacate the interim parenting plan and asked the court to grant him primary custody of K.R.K. and to enter an order prohibiting Wendy from relocating to Roundup during the proceedings. David alleged that Wendy had mental health issues, had threatened to leave and take K.R.K. to Roundup, and had assaulted him with a shotgun. The District Court granted David's motion.

         ¶5 In June 2014, the parties filed a stipulated interim parenting plan, which the court adopted without analysis. This plan required Wendy and David to exchange K.R.K. every forty-eight hours and prohibited either of them from removing K.R.K. "from Anaconda-Deer Lodge County or contiguous counties" without written approval from the other party or the court. As part of the interim parenting plan, the parties also agreed to undergo a mental health evaluation with the same therapist and comply with all recommendations.

         ¶6 Dr. Paul Silverman evaluated Wendy and David between July 2014 and February 2015. He conducted extensive psychological testing of both, reviewed records, and interviewed multiple friends, family, and acquaintances. Dr. Silverman discussed each party's prior relationships. Before marrying David, Wendy was married for over twenty years and had four daughters from that relationship. Wendy reported that her first husband was verbally, physically, and sexually abusive. Soon after Wendy began living with David, her daughters from her first marriage left to live with their father in Roundup and refused to return. David also was married previously. He reported that his adult daughter from that marriage falsely accused him of abusing her and that they remained estranged. In an extensive fifty-one-page report, Dr. Silverman recommended that K.R.K. reside with Wendy while having visits with David, citing Wendy's superior parenting skills among other reasons. Anticipating Wendy's move to Roundup, Dr. Silverman wrote that Wendy's "decision to move [K.R.K.] from the Deer Lodge area to Roundup is irrelevant to this conclusion."

         ¶7 David sought a second evaluation from Dr. William Stratford. Dr. Stratford submitted a three-page letter in November 2015, disagreeing with Dr. Silverman's assessment and opining that a co-parenting relationship could be established with K.R.K. spending two weeks with David on his parents' ranch and two weeks with Wendy in Roundup. Dr. Stratford emphasized the stabilizing factor that David's parents played in K.R.K.'s life. In his letter, Dr. Stratford stated that "Wendy has had problems sustaining herself economically and emotionally outside of a relationship with a man," and that "unchecked, she may 'solve' her problems by yet another relationship."

         ¶8 On March 4, 2016, the District Court held a hearing on the final parenting plan at which both parties appeared with counsel. Only Dr. Silverman and Dr. Stratford were called as witnesses. At the hearing, Dr. Stratford explained that he had changed his opinion and that he recommended the two week/two week schedule only if Wendy remained in the Anaconda area. He opined that Roundup was a virtual unknown and that K.R.K. deserved to be in a safe environment with very few miles of transit between the homes. He stated that if ...


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