Hendershott v. Jesse B. Westphal

• Decision Date: 12 April 2011
• Docket Number: No. DA 10–0434.,DA 10–0434.
• Citation: 253 P.3d 806,2011 MT 73,360 Mont. 66
• Parties: Heidi R. HENDERSHOTT, Petitioner and Appellant,v.Jesse B. WESTPHAL, Respondent and Appellee.
• Court: Montana Supreme Court

360 Mont. 66

253 P.3d 806

2011 MT 73

Heidi R. HENDERSHOTT, Petitioner and Appellant,

v.Jesse B. WESTPHAL, Respondent and Appellee.

No. DA 10–0434.

Supreme Court of Montana.

Submitted on Briefs Feb. 16, 2011.Decided April 12, 2011.

For Appellant: Monte Jewell, Attorney at Law; Missoula, Montana.For Appellee: Jesse B. Westphal, (self-represented); Kila, Montana.Justice BETH BAKER delivered the Opinion of the Court.

[360 Mont. 66] ¶ 1 Petitioner Heidi Hendershott appeals from the Eleventh Judicial District Court's order denying her motion pursuant to M.R. Civ. P. 59(g) to amend the final parenting plan by striking the provision requesting alternative dispute resolution.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 Pursuant to this Court's order to seal the record in this case, we have limited any reference to sensitive confidential information in the following factual summary and include those facts necessary to our analysis of the issue presented. Petitioner Heidi Hendershott and respondent Jesse Westphal were married in 1999, in Flathead County, Montana, where they resided throughout their marriage. Heidi filed a petition for dissolution and proposed parenting plan in 2007. Prior to filing for dissolution, Heidi obtained an order of protection against Jesse. Heidi's proposed parenting plan sought to allow Jesse supervised visits with the parties' two children at the Nurturing Center in Kalispell until Jesse worked his way to age appropriate visitation.

¶ 3 Heidi's affidavit in support of an interim parenting plan described “increasing levels” of physical and emotional abuse to which she could no longer subject herself or their children. Heidi alleged Jesse would frequently become enraged and had trouble controlling his anger. Heidi also alleged that their children had witnessed his actions and started to justify Jesse's behavior.

¶ 4 The District Court approved Heidi's proposed parenting plan as an interim parenting plan and set a hearing on the order of protection and the parenting plan. After hearing from both parties, the District Court modified the plan and granted Jesse age appropriate visitation. The court ordered that the order of protection remain in effect and be modified only to account for visitation. The court also ordered that an independent parenting plan evaluation be conducted by Dr. Edward Trontel.

¶ 5 Heidi refused to meet with Jesse during Dr. Trontel's evaluation, which Dr. Trontel claimed “perturbed” his examination process. Dr. Trontel ultimately opined that “there is no way to conclude, with absolute certainty, that serious endangerment is nonexistent. However, there is no empirical foundation to conclude with reasonable confidence that Mr. Westphal poses a serious danger to Ms. Westphal or her children.”

¶ 6 On December 7, 2007, Heidi also underwent an evaluation by Dr. Christine Fiore, a Licensed Clinical Psychologist. Dr. Fiore opined that difficulty in Heidi's marriage, with ongoing traumatic experiences, has resulted in post traumatic stress disorder. Dr. Fiore explained that post traumatic stress disorder is a diagnosis commonly found in women who experience ongoing emotional or other abuse in their relationships. Dr. Fiore further concluded that continued contact with Jesse would exacerbate Heidi's symptoms.

¶ 7 On March 3, 2008, the parties stipulated to a new interim parenting plan. By agreement, the order of protection entered against Jesse was dismissed. The stipulated interim parenting plan identified an exchange point for the children and allowed for either parent to request the presence of law enforcement. It further stipulated that Heidi and Jesse would only communicate through a written parenting journal. The stipulated plan omitted any provision for the mediation of disputes over the parenting plan. As part of the new interim parenting plan, Heidi and Jesse agreed to undergo a supplemental parenting evaluation by Dr. Paul Silverman, a Licensed Clinical Psychologist.

¶ 8 Heidi consistently requested that an officer of the Kalispell Police Department be present during child exchanges. After the Kalispell Police Department complained of Heidi's frequent request for “stand by” officers, Heidi, with the assistance of her family, hired uniformed security guards to accompany her. After the children's visits with Jesse, Heidi claimed the children were timid and uncomfortable.

¶ 9 On December 26, 2008, Dr. Silverman completed a parenting plan evaluation of Jesse, Heidi, and the children. Dr. Silverman opined that “[d]etermining whether Jesse was abusive during their marriage is extremely difficult and the truth may only be known by Jesse and Heidi.” Dr. Silverman did note that Heidi's alleged abuses included constant put downs and rages and that Jesse would tell Heidi he owned her body and she should do what he wants her to do. However, Dr. Silverman concluded that these allegations, as well as other observations of Jesse's behavior, led him to question whether abuse actually was occurring or if Heidi's allegations were merely her own interpretations of Jesse's behavior. Dr. Silverman noted that Jesse agreed he had not been a “Godly husband” and acted towards Heidi in a way that contributed to the end of their marriage. While Dr. Silverman did not find evidence of physical or sexual abuse, he found Jesse to be insensitive and intolerant of others, that he had difficulty managing his anger, and that he viewed the relationship in a traditional male-dominated manner. Dr. Silverman also noted Heidi was inhibited socially, had low self esteem, and suffered from stress and anxiety which caused physical symptoms.

¶ 10 Dr. Jennifer Robohm, a Licensed Clinical Psychologist and Heidi's individual therapist, responded to Dr. Silverman's Parenting Evaluation Report with a number of concerns about Dr. Silverman's methodology and observations. Dr. Robohm specifically noted that even though Heidi had been seeing her for six months, Dr. Silverman did not consult Dr. Robohm for her impressions. She further explained that many of the anecdotes Heidi shared with Dr. Silverman were consistent with experiences of abuse victims but were not included in his report.

¶ 11 On February 28, 2009, Dr. Robert Geffner, a Licensed Psychologist, reviewed Dr. Silverman's report and completed a forensics consultation. Dr. Geffner noted that Dr. Silverman's report failed to account for the children's problematic behavior before or after visits with Jesse or Jesse's difficulty managing his anger. Dr. Geffner also noted many red flags for potential abuse, including power and control issues he claimed were disregarded by Dr. Silverman. Dr. Geffner concluded Heidi displayed many behaviors and traits of an abused woman and recommended Jesse undergo psychotherapy with an abuse specialist.

¶ 12 At trial, both Heidi and Jesse presented testimony regarding Heidi's abuse allegations. The District Court heard testimony from Heidi, Jesse, Dr. Trontel, Dr. Silverman, Dr. Fiore, Dr. Robohm, and Dr. Geffner, among others.

¶ 13 Heidi testified, as she told Dr. Silverman, that Jesse believed her body belonged to him, not to her, and that he expected her to do whatever he said. Heidi stated she lived in fear of Jesse. Heidi's counsel also presented a letter, written by Jesse, which read, in part, “[i]t is so dumb because I don't want to control you or dominate you or abuse you or manipulate you, but that's what I have done, but I sure couldn't see it.” Upon questioning Jesse stated, “I could see places where, yes, I could be viewed as a controlling person or a manipulative person.”

¶ 14 On January 13, 2010, the District Court issued a decree of dissolution, along with findings of fact regarding Heidi's abuse allegations. The court reviewed the opinions of the trial witnesses and stated, “[t]he Court finds that Dr. Silverman was the only professional person who performed and completed a parenting evaluation and that his final evaluation followed accepted standards which support his conclusions and recommendations.” The court summarized Dr. Silverman's recommendations, including the following:

Communication between Petitioner and Respondent concerning the children should be accomplished by the existing journal, email, or any other method agreeable to both parties.

With no direct contact by the parents, medical information should be shared by the parties but actual appointments attended by only the parent who scheduled the appointment.

Child exchanges between the parties should take place in the vicinity of the parties' residences through neutral third parties with no direct contact between Petitioner and Respondent....

¶ 15 The District Court concluded:

[I]t is in the best interests of the parties' children to continue, as a final parenting plan, the previously approved Interim Parenting Plan of March, 2008. The children are to reside primarily with Petitioner with Respondent having parenting time as indicated in the Interim Plan.... With the exception of the recommendation by Dr. Silverman that parenting time be increased ... the Court finds that Dr. Silverman's other recommendations, listed above, as to direct contact, exchanges, communication between the parents, phone contact, public school, and medical appointments, are in the best interests of the children and are to be incorporated in the parties' final parenting plan.

¶ 16 The court directed Jesse's counsel to prepare a final parenting plan based on the court's findings. Heidi objected to Jesse's proposed parenting plan on the ground that, pursuant to § 40–4–301(2), MCA, the final parenting plan should not include a mandatory mediation provision.

¶ 17 The District Court ultimately approved and ordered a final parenting plan. The plan specified that communication between the parties be with “no direct contact” and that “all non-emergency communication between mother and father should be accomplished in writing.” Section IV of the final parenting plan...