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
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
Appellant: Wendy Rogers f/k/a Wendy Kesler, Self-Represented,
Appellee: Bradley J. Jones, Jami L. Prins, Jones & Cook,
Attorneys at Law, Missoula, Montana
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.
AND FACTUAL BACKGROUND
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.
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
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.
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.
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."
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."
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 ...