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IN RE: the Parenting of: R.T.C. (2022)

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Supreme Court of Montana.

IN RE: the Parenting of: R.T.C., Timothy Ray Clark, Petitioner and Appellee, J'aime Colleen O'Neill, Respondent and Appellant.

DA 21-0333

Decided: February 08, 2022

For Appellant: Suzanne C. Marshall, Attorney at Law, Bozeman, Montana For Appellee: Daniel J. Roth, Daniel J. Roth, P.C., Bozeman, Montana

¶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 J'Aime Colleen O'Neill (Mother) appeals from the Eighteenth Judicial District Court's April 15, 2021 order modifying the parties’ parenting plan, holding both parties in contempt, and ordering she undergo a psychological evaluation. We affirm.

¶3 R.T.C. was born in 2015 to Mother and Timothy Ray Clark (Father). In 2017, Mother and Father separated, and the Eighteenth Judicial District Court of Gallatin County entered an Amended Final Parenting Plan on September 7, 2018. The parties have an acrimonious history, including numerous reports by Mother to Child Protective Services against Father and his wife, petitions for orders of protection by both parties, and continuing no-contact orders between them.

¶4 Following disputes about telephone communication with R.T.C., hostile custody exchanges, and failed mediation about R.T.C.’s preschool enrollment, Mother filed a petition for contempt on August 1, 2019. In response, Father filed a petition for a temporary order of protection and a motion to allow him to enroll R.T.C. in preschool over Mother's objection. A hearing was held on September 20, 2019.

¶5 Nine days later, Mother failed to bring R.T.C. to a scheduled exchange. A day later, she filed for a temporary order of protection with Justice Court in Yellowstone County, where she lived. Father simultaneously filed for contempt, sanctions, and immediate return of R.T.C. in Gallatin County District Court. The Gallatin County District Court immediately ordered R.T.C.’s return to Father. Upon learning of Gallatin County's involvement, the Yellowstone County Justice Court transferred Mother's order of protection petition.

¶6 On October 7, 2019, the District Court denied Mother's contempt petition, finding she had been “manipulative, deceptive, [and] harassing” and that Father had not knowingly violated the plan. The District Court granted Father's motion to enroll R.T.C. in preschool. In a separate order, the court denied both parties’ orders of protection but expanded their no-contact orders. The court scheduled a November 15, 2019 hearing to address Father's contempt motion and to amend the parenting plan's telephone communication provisions.

¶7 At the hearing, Father reiterated his request that Mother undergo a psychological evaluation, and Mother testified that she was willing to do so. Father had previously moved for an evaluation during the parties’ original parenting plan litigation. In its January 15, 2020 order, the District Court held Mother in contempt for her failure to bring R.T.C. to the September 29 exchange and ordered the psychological evaluation. The court ruled it had good cause based on Mother's continued divisive conduct and the emotional toll on R.T.C., finding the evaluation was for R.T.C.’s benefit. The court sanctioned Mother, awarding Father attorney fees and costs related to the contempt proceedings stemming from the failed exchange.

¶8 On March 12, 2020, Mother moved for relief from the court's contempt order and sanctions, and she objected to the psychological evaluation and modification of the parties’ exchange times, which were adjusted to accommodate Father's work schedule.

¶9 By July 2020, Father had made another filing with the District Court, requesting suspension of Mother's parenting time pending her compliance with the psychological evaluation and the court's permission to enroll R.T.C. in kindergarten. Father cited Mother's eviction as evidence of instability warranting visitation modifications. On September 1, 2020, Mother responded with a new contempt petition because Father enrolled R.T.C. in kindergarten without her consent. Mother requested the parenting plan be modified to make her the primary custodian.

¶10 On September 11, 2020, the District Court issued a temporary order permitting Father to enroll R.T.C. in school and scheduling a new hearing for the parties’ latest round of motions. Following a continuance, the District Court held a hearing on March 12, 2021. In its April 15, 2021 order, the District Court reviewed the extensive, rancorous history of this case and held both parties in contempt. The court also modified the parenting plan to make Father the primary custodian and decision-maker. The District Court ordered that its interim decisions be incorporated into a second amended final parenting plan, which the court adopted on May 25, 2021. The District Court also entered judgment against Mother for attorney fees in the amount of $2,250, with interest.

¶11 “In family law cases, we review orders of contempt to determine whether the district court acted within its jurisdiction and whether the evidence supports the contempt.” Novak v. Novak, 2014 MT 62, ¶ 37, 374 Mont. 182, 320 P.3d 459. We review a district court's findings related to custody modification for clear error and will reverse a district court's modification decision only where an abuse of discretion is clearly demonstrated. In re Marriage of Oehlke, 2002 MT 79, ¶ 9, 309 Mont. 254, 46 P.3d 49.

¶12 Mother argues that the District Court's January 15, 2020 order holding her in contempt, ordering her psychological evaluation, and adjusting exchange times was in error. Specifically, Mother contends that she was without notice that modifications were before the court at the November 15, 2019 hearing, that the court relied on insufficient evidence of changed circumstances, and that the psychological evaluation and modifications were erroneously ordered as contempt sanctions. Mother thus claims the District Court's April 15, 2021 order relies on factual and legal errors by incorporating prior orders. Mother also argues that the court abused its discretion in modifying the plan to make Father, not Mother, the primary custodian and in declining to award her attorney fees for Father's contempt.1

¶13 Mother's claimed lack of notice and characterization of the November 15, 2019 hearing is somewhat disingenuous. Mother relies upon the October 2, 2019 contempt warrant as restricting the scope of the November hearing. However, the District Court also issued several orders on October 7, 2019, in an effort to expeditiously and efficiently treat the parties’ barrage of filings. In its amended no-contact order, the District Court identified the November 15, 2019 proceeding as the time and place it would resolve the ambiguous provisions about telephone communication with R.T.C. In its separate order on Mother's Yellowstone County order of protection and modification request, the District Court stated that these would also be addressed at the November hearing. At the hearing, the District Court postponed consideration of the order of protection because Father had not been served.

¶14 The record demonstrates that the November 15, 2019 hearing, while originally scheduled to address contempt, was, by court order, amended to address the parenting plan modifications necessitated by the parties’ no-contact orders and Mother's pending order of protection. Mother had sufficient notice that these modifications were at issue.

¶15 Mother also falsely characterizes the court's plan modification and its order she undergo psychological evaluation as contempt sanctions. Sufficient evidence in the record supports the District Court's holding that it had good cause to order Mother's psychological evaluation due to concerns for the emotional toll Mother's divisive actions were having on R.T.C.

¶16 District courts have broad discretion over parenting matters and must determine parenting plans in accordance with the child's best interests. Tubaugh v. Jackson (In re C.J.), 2016 MT 93, ¶ 14, 383 Mont. 197, 369 P.3d 1028 (citing § 40-4-212(1), MCA). The court was required to consider Mother's mental health in weighing R.T.C.’s best interests under § 40-4-212(1)(e), MCA. In its ruling, the court expressed concern over Mother's manipulation of the legal system at the expense of R.T.C. At the November 15, 2019 hearing, the court heard testimony from a Billings attorney Mother had consulted and whom Mother called as a witness. The court found that conflicts between what Mother told the attorney and her sworn order of protection petition indicated she had been deceptive in her efforts to garner support for her refusal to exchange R.T.C. on September 29, 2019.

¶17 Weighing witness testimony and credibility is the province of the district court. In re C.M., 2019 MT 227, ¶ 21, 397 Mont. 275, 449 P.3d 806. Mother also acquiesced to the psychological evaluation at the hearing, and “we will not put a District Court in error for a ruling or procedure in which the appellant acquiesced.” State v. Gardner, 2003 MT 338, ¶ 44, 318 Mont. 436, 80 P.3d 1262 (quoting In re Marriage of Smith, 242 Mont. 495, 501, 791 P.2d 1373, 1377 (1990)). Because substantial evidence in the record supports the District Court's good-cause finding and its order was made with conscientious regard for R.T.C.’s best interests, the court did not err in ordering Mother's psychological evaluation.

¶18 The District Court also had sufficient evidence to amend the parties’ parenting plan. A court has discretion to amend a parenting plan if it finds the child's circumstances have changed and amendment is necessary to serve the child's best interests. Section 40-4-219(1), MCA. In the January 15, 2020 order, the court ordered a minor change in the parties’ exchange time to accommodate Father's work schedule.

¶19 In its April 15, 2021 order, the court articulated detailed findings and conclusions under each of the factors in § 40-4-212(1), MCA. The court modified the parenting plan in light of Mother's withholding visitation, its determination she instigated conflict between the parties, the parties’ inability to co-parent, and the court's resulting concern for the emotional impact to R.T.C. and detriment to his education. The District Court cited its “grave concerns regarding RTC's emotional well-being given the dynamics of this case” and “fallout from the conflict that the Court concludes has been generated by [Mother] in the vast number incidents at issue.” These were the primary issues pursuant to § 40-4-212(1)(m), MCA, which permits the court to consider the “adverse effects on the child resulting from continuous and vexatious parenting plan amendment actions.” The court ultimately determined that making Father the primary custodian and decision-maker best addressed R.T.C.’s need for stability and accommodated R.T.C.’s school attendance. The District Court's findings demonstrate the changed circumstances affecting R.T.C. Its modification of the parenting plan was within its discretion. As to the change regarding exchange times, the court was within its discretion to reduce harmful conflict by ordering a workable schedule.

¶20 Mother also contests the District Court's failure to award her attorney fees for Father's contempt. However, on the second round of contempt filings, the District Court held against both parties. A district court's contempt powers are discretionary, and we review its sanctions for statutory adherence. In re Marriage of Winters, 2004 MT 82, ¶ 41, 320 Mont. 459, 87 P.3d 1005; El Dorado Heights Homeowners’ Ass'n v. Dewitt, 2008 MT 199, ¶ 15, 344 Mont. 77, 186 P.3d 1249. Here, the court concluded that “the parties’ contempt sanctions should off-set each other” and opted to forego the statutory affidavit process. See § 3-1-512, MCA. The record amply demonstrates that the parties’ parenting plan was unworkable. The District Court acted within its discretion to resolve the parenting plan issues rather than continuing enforcement through sanctions, particularly when both parties were noncompliant.

¶21 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review. The District Court's findings and legal conclusions were not in error, and it did not rule arbitrarily or abuse its discretion.

¶22 Affirmed.


1.   Father argues that Mother's Notice of Appeal failed to encompass the entirety of the District Court's April 15, 2021 order or the court's final judgment, making M. R. App. P. 4(4)(a), which “draws into question all previous orders and rulings excepted or objected to which led up to and resulted in the judgment,” inapplicable. Father argues that only the denial of Mother's parenting plan modification was noticed and is properly before this Court. Mother's notice identified the parties and designated the order appealed from in compliance with M. R. App. P. 4(4)(a). A misnomer in title or technical defect need not be fatal to an appeal. Wilhelm v. Owens Enters., 242 Mont. 285, 288, 790 P.2d 467, 469 (1990); see also M. R. App. 4(4)(f) (informality of form or title insufficient for dismissal). Mother's brief makes arguments regarding each of the District Court's orders from its April 15, 2021 “Findings of Fact, Conclusions of Law and Order Following Hearing on March 12, 2021 Regarding Pending Motions.” That Mother titled this an “Order Denying Appellant's Motion to Modify Parenting Plan” is insufficient to deny her appeal on the other issues addressed therein.

Chief Justice Mike McGrath delivered the Opinion of the Court.


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