In re Heenan

• Decision Date: 23 March 2021
• Docket Number: DA 20-0333
• Citation: 482 P.3d 1206 (Table),2021 MT 73 N
• Parties: IN RE the MARRIAGE OF: Jeffery Patrick HEENAN, Petitioner and Appellant, and Sarah Kate WALLACE, Respondent and Appellee.
• Court: Montana Supreme Court

482 P.3d 1206 (Table)

2021 MT 73 N

IN RE the MARRIAGE OF: Jeffery Patrick HEENAN, Petitioner and Appellant,

and

Sarah Kate WALLACE, Respondent and Appellee.

DA 20-0333

Supreme Court of Montana.

Submitted on Briefs: January 20, 2021

Decided: March 23, 2021

For Appellant: André Gurr, Melissa Stones-Smith, Garden City Law, PLLC, Kalispell, Montana

For Appellee: Klaus D. Sitte, ASUM Legal Services, Missoula, Montana

Justice Jim Rice delivered the Opinion of the Court.

¶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 Jeffery Patrick Heenan appeals the Fourth Judicial District Court, Missoula County's (District Court) "Findings of Fact, Conclusions of Law, Decree of Dissolution and Order Adopting Parenting Plan" and "Final Parenting Plan." We restate the issues as follows:

1. Did the District Court err in its adoption of the final parenting plan, including permitting Wallace to relocate and requiring Heenan's visitation to be supervised?

2. Did the District Court err in its division of the marital estate and the determination of child support?

¶3 We affirm in part, reverse in part, and remand for further proceedings.

¶4 The procedural history of this case is extensive and involves proceedings in multiple venues. Heenan and Wallace met in 2011 and married in June 2016, giving birth to D.H. later that year, while living in Billings. Wallace decided to return to school for physical therapy, and she applied to Idaho State University in Pocatello, Idaho and the University of Montana in Missoula. After Idaho State University accepted Wallace, Heenan and Wallace purchased a foreclosed home in Pocatello for approximately $38,000. During Wallace's pregnancy in 2016, Heenan, with the help of his parents, renovated the Pocatello home, investing an estimated $21,052 in supplies and labor. Heenan, a flooring contractor, painted walls, removed carpet, repaired plumbing, and replaced the subfloor.

¶5 Wallace elected instead to enroll at the University of Montana, where she had previously been waitlisted. In August 2016, Heenan and Wallace entered a rental lease agreement in Missoula. Heenan paid the monthly rent. A couple weeks later, while Wallace was preparing to move to Missoula, the Billings Police Department responded to a dispute between Heenan and Wallace, reporting that Heenan was intoxicated and had threatened movers with a rifle. Heenan and Wallace agreed to separate for a short period of time. The couple eventually moved to Missoula together, but, in February 2017, they decided to separate permanently.

¶6 On February 27, 2017, Wallace petitioned for a temporary order of protection (TOP) from the Missoula City Municipal Court. Wallace stated she felt threatened and intimidated by Heenan's behavior, alleging he had threatened violence against Wallace and D.H., destroyed property in the Missoula rental, and was verbally abusive towards Wallace, particularly by his claiming that she was mentally ill. The Municipal Court issued an ex parte TOP and hearing notice. After a couple of pleadings and orders, including a continuance, the issue proceeded before the District Court, which set a hearing for June 9, 2017.

¶7 In March 2017, Wallace applied for child support with the Child Support Enforcement Division of the Department of Public Health and Human Services (CSED). Heenan filed this proceeding with the District Court. CSED was not notified of the dissolution proceeding. Heenan's initial attorney withdrew in April 2017, citing a breakdown in communication.

¶8 At the June 9, 2017 TOP hearing, the District Court adopted an interim parenting plan negotiated by new counsel and stipulated to by Heenan and Wallace, effective until July 15, 2017. Under the agreement, Heenan was granted scheduled visitation with D.H., with all communications between Heenan and Wallace to take place on Our Family Wizard, a parenting application. The District Court dismissed the TOP and entered a "Civil No Contact" order in its place, although the oral order did not specify an expiration date. The District Court subsequently memorialized the oral order and scheduled a status hearing for August 17, 2017, and a trial for September 1, 2017. On June 30, 2017, Heenan's attorney withdrew, citing ineffectual communications. Upon an unopposed motion by Heenan's new counsel, the District Court continued the trial until October 20, 2017.

¶9 On September 27, 2017, Heenan and Wallace stipulated to a stay of the dissolution proceedings and the CSED action. Heenan and Wallace agreed that Wallace would remain the primary custodial parent and that a similar visitation schedule with D.H., then 14 months old, would continue. Further parenting issues were to be addressed with attorney Meri Althauser, who conducted a program to resolve parenting issues, and Heenan and Wallace agreed to communicate by text and e-mail. The parties each retained the option of continuing dissolution proceedings. The District Court vacated the schedule. Althauser later sent a letter stating she would no longer assist the parties.

¶10 On October 21, 2017, Heenan and Wallace met for their scheduled exchange time at the Missoula Alliance Church. Wallace became upset with Heenan when he asked why D.H.’s diaper was soiled. According to Wallace, Heenan called D.H. "trashy." When Wallace began to leave with D.H., Heenan followed her, and Wallace told him to leave her alone. When their argument created a disturbance, Heenan left and reported the incident to the Missoula Police Department, while Wallace reported the incident to CSED.

¶11 On January 2, 2018, Wallace petitioned for a second TOP, alleging Heenan was stalking, sending messages by text, e-mail, and Our Family Wizard telling Wallace she was mentally ill, and contacting her friends and family to help Wallace realize she was mentally ill. Wallace alleged other violations of the Civil No Contact order by Heenan, including breaking into the Missoula rental, calling Child Protective Services to conduct a wellness check on Wallace, which was later determined to be unsubstantiated, and sending Wallace's neighbor to the Missoula rental as hired help. Wallace requested supervised visitation for Heenan and D.H. The following day, the District Court issued a TOP in Cause No. DR-18-1, requiring Heenan to stay at least 1,500 feet away from the Missoula rental, University of Montana campus, and ASUM Childcare. Heenan was permitted to contact D.H. through supervised visits at Planet Kids in Missoula. The District Court set a hearing for January 22, 2018 and stated that the TOP "shall continue in full force and effect until further order of the court."

¶12 At the hearing, Wallace moved the District Court to continue this matter because she had retained counsel who could not be present. The District Court granted the motion over Heenan's objection and reset the TOP hearing for February 6, 2018. On February 6, Wallace advised the District Court that the dissolution proceeding, then a separate proceeding, had been stayed, and asked that both matters be continued for three weeks. The District Court granted the motion over Heenan's objection, set a joint hearing for both the dissolution and the TOP for February 23, 2018, and ordered the TOP to remain in effect. At the hearing, Heenan and Wallace stipulated to appointing of Amy K. Lord of Lord Law Office, PC, to serve as a Parenting Coordinator, which the District Court granted. The District Court ordered Lord to implement a temporary parenting plan and to report to the District Court regarding D.H.’s support and parenting.

¶13 In March of 2018, following no objection from Heenan or Wallace to its calculation, CSED ordered Heenan to "pay child support in the amount of $544.00 per month starting in April of 2018." In August 2018, after no payment had been made, CSED seized Heenan's bank account, collecting $1,778.95. Heenan requested an exemption hearing before CSED, which was held on September 24, 2018. CSED was then first made aware of the parties’ dissolution proceedings, leading to its ruling:

Ms. Wallace should have advised the CSED of the dissolution action and the September 2017 [stipulation staying the dissolution and CSED proceedings]. Mr. Heenan also had many opportunities to object to the [Notice and Order Concerning Support] and to advise the CSED of the District Court action. The CSED did not know of the parties’ agreement until the recent exemption hearing. The CSED believes that returning half of the seized amount ($889.46) to Mr. Heenan without him having to prove the income is wages, and entering a substitute [temporary order] and vacating the [Notice and Order Concerning Support] appropriately balances various interests.

CSED vacated the original support order. Heenan and CSED entered into a stipulation dismissing the exemption proceedings and converting the proceeding to a temporary support matter.¹

¶14 In early 2019, Heenan moved the District Court to schedule a trial, citing Lord's delay in issuing her recommendations and that Heenan had not seen D.H., then 2 ½ years old, for six months. Lord's recommendations were reported on February 13, 2019, wherein she concluded that "DH appears to have a strong, trusting bond with [Wallace]. It is this parenting coordinator's perspective that this did not occur by accident, but by the consistent, loving care." Lord opined that Heenan "perceives himself to be the victim in his relationships" with Wallace and D.H., and that Heenan believed Wallace

has systematically manipulated this process against him and believes he has little to no culpability in the lack of contact and relationship he has with DH. To the extent he believes he has no responsibility in creating the

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