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In re Marriage of Bessette

Supreme Court of Montana

February 12, 2019

IN RE THE MARRIAGE OF: CHAD MICHAEL BESSETTE, Petitioner and Appellee, and JENNIFER RUTH BESSETTE, Respondent and Appellant.

          Submitted on Briefs: June 27, 2018

          APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DR 15-800(B) Honorable Robert B. Allison, Presiding Judge.

          For Appellant: Jennifer Ruth Bessette, self-represented, Bigfork, Montana.

          For Appellee: Sean R. Gilchrist, Johnson-Gilchrist Law Firm, Whitefish, Montana

          OPINION

          DIRK M. SANDEFUR JUSTICE.

         ¶1 Jennifer Ruth Bessette (Mother) appeals pro se the judgment of the Montana Eleventh Judicial District Court, Flathead County temporarily suspending a previously imposed parenting plan for the minor child, L.G.B. We affirm.

         ¶2 We restate the dispositive issues as:

1. Whether the District Court erroneously granted and maintained a temporary emergency order pursuant to § 40-4-220(2)(a)(ii), MCA, without an adequate showing and finding of changed circumstances under §§ 40-4-219(1) and -220(1), MCA?
2. Whether the District Court abused its discretion when it limited Mother to supervised visitation?
3. Whether the District Court abused its discretion in denying Mother's request to refer the matter to Family Court Services in lieu of further involvement of the court-appointed guardian ad litem?
4. Whether the District Court abused its discretion in precluding admission of a psychological evaluation report authored by a non-testifying mental health professional?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 On November 4, 2015, Chad Bessette (Father) filed a petition for dissolution of his marriage to Mother and for imposition of a court-ordered parenting plan for their minor child, L.G.B., then six years old. After Mother timely responded and litigation ensued for over a year, the parties eventually stipulated to a final parenting plan. On December 6, 2016, the District Court approved and imposed the stipulated plan as a final parenting plan.[1] The plan provided that, from March through November of each year, the child would reside in Father's custody and care from Thursday evening to Friday evening, and alternating weekends. From November through March, the child would reside in Father's custody and care from Wednesday evening to Friday afternoon, and on alternating weekends. The child would be in Mother's custody and care at all other times.

         ¶4 On June 12, 2017, Mother filed a motion to amend the final parenting plan supported by affidavit and a proposed amended parenting plan. Based on an incident of domestic violence at Father's home in the presence of the child, Father subsequently applied for and obtained a temporary order of protection against Mother.[2] On August 8th, the District Court denied Mother's motion for an amended final parenting plan and set all remaining issues for bench trial. On September 8th, 2017, Mother filed a motion for appointment of a limited-scope guardian ad litem (GAL) to assess the parenting dispute and make recommendations to the court regarding what contact Mother should ultimately have with the child in light of recent developments. On September 15th, the court granted Mother's motion and appointed Christina Larsen, Esq., as a limited-scope GAL for L.G.B.

         ¶5 On November 29, 2017, the parties participated in a twelve-hour settlement conference encompassing a wide-range of parenting plan, temporary protective order, and marital estate distribution issues still outstanding. As a result, the parties entered into stipulated parenting plan and marital estate distribution agreements. On December 1, 2017, the District Court adopted and imposed the parties' now-second stipulated parenting plan as their amended final parenting plan. The plan essentially placed L.G.B. in the primary custody and care of Father subject to a three-phase graduated transition schedule designed to incrementally increase Mother's parenting time upon demonstration of stable and appropriate parenting conduct. Under Phase 1, for two weeks, Mother would have specified day visitation on Saturdays or Sundays and after-school visits on Wednesdays. Under Phase 2, for three weeks, Mother would have the child overnight from Saturday at 8:00 AM to Sunday at 6:00 PM. Under Phase 3, for four weeks, Mother would have specified parenting time on alternating weekends. Upon the completion of the phased transitional schedule, the parties would have equal parenting time on a specified alternating schedule. The stipulated plan provided that the previously appointed GAL (Larsen) would oversee the transitional phases of the plan and monitor the child's adjustment to Mother through the first month of the plan. The parenting plan further superseded the prior temporary protective order as to the child and provided that parenting exchanges would be an exception to the continuing protective order between Father and Mother.

         ¶6 On December 13, 2017, only two weeks into the phased transition schedule, an incident occurred at the parking lot of Pick's Bowling Alley in Bigfork, Montana, where Mother and Father had arranged to meet to exchange the child. According to Father, he drove to the Bowling Alley, accompanied by his girlfriend, and waited for Mother to arrive with the child. Upon arriving with the child and seeing Father's girlfriend, Mother rapidly accelerated toward Father's car, stopping abruptly approximately two feet short of where Father was standing next to the car. Mother then angrily got out and repeatedly screamed "you shouldn't bring that bitch here." The child then became upset, yelling at Mother to "stop fighting." According to Mother's version of the events, she merely "parked very close" to Father's car "because it was icy and snowy and [she] didn't want [the child] to have to walk across the lot and slip on the ice." Mother acknowledged that her "reaction could have been better."

         ¶7 On December 15, 2017, Father filed a motion "for ex parte interim relief" and a subsequent show cause hearing. The motion requested immediate suspension of the parties' then-governing amended parenting plan to bar Mother from having unsupervised contact with the child. The motion further requested that the court reauthorize the court-appointed GAL to investigate and make further recommendation as to what contact Mother should have with the child. Father characterized the relief sought as "ex parte interim relief" but did not expressly seek modification of the parties' then-governing final parenting plan. The District Court issued Father's proposed ex parte order and set a show cause hearing for January 3, 2018.

         ¶8 At the show cause hearing, the court heard testimony from various witnesses regarding the circumstances of the bowling alley incident and the damaging effect on the child of Mother's continued belligerent behavior toward Father. Testifying on behalf of the child and based on consultation with the child's therapist, Mother's therapist, and interviews of the child and Father, the GAL testified that the child continued to be traumatized and scared by Mother's uncontrolled anger and rage toward Father. The GAL testified that Mother's behavior had not improved under the amended parenting plan to date and thus recommended that the court order her to complete anger ...


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