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In re Parenting Plan for N.C. D.

Supreme Court of Montana

July 23, 2019

IN RE THE PARENTING PLAN FOR N.C. D., a minor child,
DEBORAH SUSAN SMITH, Respondent and Appellant. TIMOTHY KANE DAVIS, Petitioner and Appellee,

          Submitted on Briefs: June 19, 2019

          APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. CDR-2015-380 Honorable John W. Larson, Presiding Judge

          For Appellant: Deborah S. Smith, Self-Represented, Helena, Montana

          For Appellee: Robyn L. Weber, Weber Law Firm, Helena, Montana


          Laurie McKinnon, Justice.

         ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

         ¶2 Deborah Susan Smith (Mother) appeals from orders of the First Judicial District Court, Lewis and Clark County, regarding her parenting arrangement with Timothy Kane Davis (Father) for minor child N.C. D. We affirm and award Father his attorney fees and costs on appeal.

         ¶3 We already reviewed this parenting proceeding in In re the Parenting Plan for N.C. D., No. DA 16-0592, 2017 MT 272N, 2017 Mont. LEXIS 670, and we accordingly set forth the factual and procedural background only as necessary to address this appeal. Six days following our affirmation of the parties' parenting plan on November 7, 2017, Mother filed motions with supporting briefs in District Court requesting the court immediately remove N.C. D.'s Guardian Ad Litem (GAL), Greg Daly (Daly); disqualify, sanction, and remove Father's counsel; and issue an order to show cause for contempt and for sanctions, attorney fees, and costs. Thereafter, Mother continued to file additional motions, all of which Father had to respond to.

         ¶4 In February 2018, the District Court issued an order denying Mother's various motions. The District Court also ordered Mother to pay Father's attorney fees for having to respond to (1) Mother's motion to disqualify, sanction, and remove Father's counsel and award Mother attorney fees and (2) Mother's motion for an order to show cause for contempt.

         ¶5 On April 10, 2018, Daly filed a GAL report with his recommendations. Daly recommended N.C. D. reside primarily with Father and spend time with Mother at N.C. D.'s own choosing. On April 25, 2018, the District Court notified the parties it planned to interview N.C. D. by phone that afternoon at 4:30 p.m. The order clarified that the interview would be confidential. After the interview, the District Court issued an order temporarily suspending N.C. D.'s in-person visitation with Mother. The order provided for telephonic or other electronic contact at N.C. D.'s discretion. In May 2018, Mother filed a petition for a writ of supervisory control in this Court; we denied her request.

         ¶6 At the beginning of June 2018, Mother filed a motion to amend the parenting plan. The District Court subsequently issued an order on outstanding motions, finding many of Mother's motions vexatious and ordering Mother to pay Father's attorney fees for having to respond to the motions. The District Court held a two-hour hearing on June 29, 2018, regarding the parenting schedule, Daly's recommendations, and Mother's objections to Daly's recommendations. The court strictly permitted each party to utilize one hour in its examination and cross-examination of witnesses.

         ¶7 Thereafter, on July 18, 2018, the District Court issued its findings of fact, conclusions of law, and an amended parenting plan. The District Court found," N.C. D.'s environment caused by her Mother's extreme litigation and threats of litigation to Father, to the school, and to the GAL and the Mother's unwillingness to engage in a team approach is causing the greatest harm to N.C. D." It further noted Father promotes stability in N.C. D.'s life, while Mother "promotes disorganization and anxiety through anger." It recognized N.C. D.'s wishes:" N.C. D. wants to be able to leave her Mother's environment. Threats, intimidation and stress should have no place in the process of advocating for a child's best interest. The Court hopes the Mother will disengage from the high conflict and anger exhibited throughout this case." Based on its findings, the District Court ordered an amended parenting plan, in which it permitted N.C. D. to choose how much time she spends with each parent:" N.C. D. may spend time with either of her parents as she shall exclusively determine. N.C. D.'s right to choose shall be year-round, and shall include school year, summer, and all holidays."

         ¶8 Mother appeals, raising three issues which we address in turn. The crux of Mother's first argument is that she disagrees with the District Court's decision to keep certain portions of the proceedings confidential and with the court-ordered parenting arrangement. She formulates her challenge, however, as a constitutional argument in which she asserts the District Court violated her fundamental due process right to parent N.C. D. Mother identifies what she views as numerous issues, including: the District Court's day-of notice to the parties that it would confidentially interview N.C. D. on April 25, 2018; the fact that the District Court will not allow Mother and Father to access the April 25, 2018 interview transcript; the District Court's April 26, 2018 order temporarily suspending Mother's in-person visitation with N.C. D.; and the District Court's orders prohibiting Mother and Father from accessing N.C. D.'s mental health records.

         ¶9 District courts have "broad discretion when considering the parenting of a child, and we must presume that the court carefully considered the evidence and made the correct decision." In re the Marriage of Woerner, 2014 MT 134, ¶ 12, 375 Mont. 153, 325 P.3d 1244 (citation and quotation omitted). Accordingly, absent clearly erroneous findings, we will not disturb a district court's decision regarding a parenting arrangement unless there is a clear abuse of discretion. Woerner, ΒΆ 12. A district court abuses its discretion if it acts ...

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