IN RE CUSTODY OF ARNESON-NELSON

• Decision Date: 04 December 2001
• Docket Number: No. 00-821.,00-821.
• Parties: In re the CUSTODY OF Sawyer Thomas ARNESON-NELSON, a minor child. Debbie M. Arneson-Pengra, Petitioner and Respondent, v. Mark Edward Nelson, Respondent and Appellant.
• Court: Montana Supreme Court

36 P.3d 874

2001 MT 242

307 Mont. 60

In re the CUSTODY OF Sawyer Thomas ARNESON-NELSON, a minor child.

Debbie M. Arneson-Pengra, Petitioner and Respondent, v. Mark Edward Nelson, Respondent and Appellant.

No. 00-821.

Supreme Court of Montana.

Submitted on Briefs June 7, 2001.

Decided December 4, 2001.

Kathryn S. Syth, Gillen, LaRance & Syth, P.C., Billings, MT, For Appellant.

Debbie M. Arneson-Pengra (pro se), Helena, MT, For Respondent.

Justice JIM REGNIER delivered the Opinion of the Court.

¶ 1 Mark Edward Nelson appeals from the June 8, 2000, Order of the First Judicial District Court, Lewis and Clark County. We affirm.

¶ 2 We find the following issues dispositive:

¶ 3 Whether the District Court erred in amending the prior parenting plan to suspend Nelson's visitation rights?

¶ 4 Did the District Court err in failing to appoint a guardian ad litem?

¶ 5 Whether Nelson's Due Process and Equal Protection Rights were violated?

BACKGROUND

¶ 6 This case arises out of an entrenched custody and child support dispute between Debbie M. Arneson-Pengra (Pengra) and Mark Edward Nelson (Nelson). Pengra and Nelson are the parents of Sawyer Thomas Arneson-Nelson (Sawyer) and have never been married to each other. Sawyer was born on August 3, 1994.

¶ 7 The legal wrangling began when Pengra filed a motion for custody and child support on February 23, 1995. Sawyer was just over six months old at the time. In the ensuing six years, Pengra and Nelson have waged a protracted battle over custody and visitation rights. Throughout this time, the parties have inundated the District Court with what it labeled as a "constant barrage" of communications, motions and requests.

¶ 8 During the course of this dispute, Nelson has had a history of verbally abusive altercations with Pengra, the court and mediators. The District Court specifically noted Nelson's hostility and aggressiveness toward Pengra and her boyfriend when it held Nelson in contempt for violating an order that prohibited the parties from speaking with each other.

¶ 9 The court gave Pengra temporary custody of Sawyer on April 24, 1995, and Nelson visitation rights. Approximately four months later, the court ordered both parties to submit to psychological evaluations to assist in the custody determination. Judge Jeffrey M. Sherlock entered a custody order on January 24, 1996, noting the extreme hostility between the parties. The order provided that Pengra and Nelson have joint custody of Sawyer. Pengra was to have physical custody, while Nelson was to have specified visitation rights. The District Court ordered the parties to exchange Sawyer at a neutral observer's residence.

¶ 10 Due to an inflammatory letter Nelson wrote and sent to him, Judge Sherlock eventually recused himself from this case. On April 23, 1997, Judge McCarter assumed jurisdiction of the case and ordered that a member of the sheriff's office be present at the parties' exchanges of Sawyer.

¶ 11 On May 14, 1997, the District Court ordered an investigation and report on the circumstances of the custody arrangement. The custody reevaluating report was issued on June 4, 1997. In their report, the doctors stated that Nelson was verbally aggressive toward Pengra and the neutral observers. The study indicated that these outbursts had a negative effect on Sawyer. It also noted, however, that Sawyer was not frightened of his father, except during Nelson's outbursts.

¶ 12 On April 19, 1999, the District Court entered the Final Parenting Plan. The court gave Pengra primary custody of Sawyer and the authority to make all decisions regarding his care. Nelson was allowed specific visitation rights. The District Court also ordered Pengra to undergo counseling to improve her parenting skills and Nelson to undergo anger management counseling. We affirmed the plan in In re Custody of Arneson-Nelson, 2000 MT 31N, 299 Mont. 545, 4 P.3d 1218, 2000 WL 139971.

¶ 13 Pengra filed a Motion for an Ex Parte Order and Hearing on March 21, 2000, asking the court to suspend Nelson's visitation rights. Nelson was provided a Notice of Hearing for Ex Parte Motion on March 16, 2000. On March 21, 2000, the District Court reviewed the motion. Both parties were present at the courthouse. Later that day, the court issued an Ex Parte Order suspending all of Nelson's contact with Sawyer and set a hearing on the matter for May 4, 2000.

¶ 14 At the hearing, both parties were allowed to put on and cross-examine witnesses. On June 8, 2000, the District Court entered an Order that suspended all physical contact between Nelson and Sawyer. Instead, the court limited Nelson's contact with Sawyer to phone calls, email and mail. Nelson appeals the Order.

STANDARD OF REVIEW

¶ 15 We review a district court's findings relating to custody modification to determine whether those findings are clearly erroneous. See In re Marriage of Johnson (1994), 266 Mont. 158, 166, 879 P.2d 689, 694 (citation omitted). Findings are clearly erroneous if they are not supported by substantial evidence, the court misapprehends the effect of the evidence, or this Court's review of the record convinces it that a mistake has been made. See Johnson, 266 Mont. at 166-67, 879 P.2d at 694 (citation omitted). We will reverse a district court's decision to modify custody or visitation only where an abuse of discretion is clearly demonstrated. In re Marriage of Hunt (1994), 264 Mont. 159, 164, 870 P.2d 720, 723.

ISSUE ONE

¶ 16 Whether the District Court erred in amending the prior parenting plan to suspend Nelson's visitation rights?

¶ 17 A court may, in its discretion, amend a prior parenting plan if it finds that there has been a change in circumstances of the child and that a change is necessary for the best interests of the child. See § 40-4-219(1), MCA. In making this determination, the District Court relies on facts that arose after the prior parenting plan or that the court was unaware of at the time of the prior plan. See § 40-4-219(1), MCA.

¶ 18 The hearing to determine whether to amend Sawyer's parenting plan was largely a battle of conflicting testimony. Pengra put on evidence to show that Nelson's behavior has negatively affected Sawyer. Pengra's primary witness was Joyanna Silberg, PhD., a Senior Psychologist at the Sheppard and Enoch Pratt Hospital in Baltimore, Maryland. Dr. Silberg testified that Sawyer was seriously emotionally disturbed and opined that the source of these problems was Sawyer's fear of his father and Nelson and Pengra's hostilities toward each other.

¶ 19 Nelson countered this testimony with his primary witness, Scott Harris. Harris was the Montana Department of Public Health and Human Services' caseworker assigned to the case. He testified that he had investigated several allegations of child abuse by Nelson, but found no evidence of abuse. Nelson also testified on his own behalf.

¶ 20 Following the hearing, the District Court found that "any form of attempted co-parenting is impossible without causing further and continuing harm to Sawyer" and that "[Nelson] is causing harm to Sawyer by refusing to assist in, and attempting to frustrate, Sawyer's mental health therapy and by refusing to cooperate with the professionals involved in Sawyer's life." The court went on to find that "it is in Sawyer's best interest to suspend [Nelson's] physical contact with Sawyer" and that "[a]ny visitations between [Nelson] and Sawyer shall be at [Pengra's] sole discretion."

¶ 21 Nelson argues that the court's findings are not supported by substantial credible evidence and that the court misapprehended the effect of this evidence. He thus contends that the court's findings were clearly erroneous. We disagree.

¶ 22 We begin our analysis by reiterating that "[t]he trial court is in a better position than this Court to resolve child custody issues. The district court's decision is presumed correct and will be upheld unless a clear abuse of discretion is shown." Fitzgerald v. Brown (In re Custody of J.M.D.) (1993), 259 Mont. 468, 473, 857 P.2d 708, 712. It is the function of the district court to resolve conflicts regarding evidence. See In re Marriage of Penning (1989), 238 Mont. 75, 78, 776 P.2d 1214, 1216.

¶ 23 Pengra's primary witness, Dr. Silberg, testified that Sawyer was severely disturbed and that he did not feel safe at his father's home. During her evaluation of Sawyer, she noted that he displayed a number of dissociative symptoms such as confusion in memory and rapid changes in mood, behavior and cognition. Dr. Silberg testified that Sawyer's emotional condition worsened between her first and second evaluations.

¶ 24 Most disturbing, at her second evaluation of Sawyer, Dr. Silberg inquired about the pain he experienced when urinating. Her report noted his response: "I was in the bathroom and the bad people put a screwdriver in like this (he touched his penis). They taped it on. The bad people heard my crying and told me to stop but I could not stop crying." She noted in her report that, while the specific events that Sawyer relayed to her were improbable, he was reporting some form of purposefully inflicted trauma and that Sawyer appears convinced that there are people that intend to hurt him. In her testimony, she recommended that the court continue to suspend Nelson's visitation rights with Sawyer until Nelson receives mental health therapy.

¶ 25 Nelson argues that the District Court should not have entertained Dr. Silberg's testimony. He argues that § 40-4-219, MCA, barred Dr. Silberg's testimony concerning matters prior to the original parenting plan. We disagree. The statute clearly requires the district court to "consider post-decree facts, as well as pre-decree facts unknown to the trial court at the time the decree was entered, in determining both the `change in circumstances' and the `best interests' requirements." In re Marriage of Sarsfield (1983), 206 Mont. 397, 413, 671 P.2d 595, 604. Dr. Silberg's testimony and...