In re Marriage of McKenna

• Decision Date: 09 March 2000
• Docket Number: No. 99-134.,99-134.
• Parties: In re the MARRIAGE OF Thomas Anthony McKENNA, Petitioner and Appellant, and Sally Jo McKenna, Respondent and Respondent.
• Court: Montana Supreme Court

996 P.2d 386

2000 MT 58

299 Mont. 13

In re the MARRIAGE OF Thomas Anthony McKENNA, Petitioner and Appellant,

and

Sally Jo McKenna, Respondent and Respondent.

No. 99-134.

Supreme Court of Montana.

Submitted on Briefs September 2, 1999.

Decided March 9, 2000.

George T. Radovich, Billings, Montana, For Appellant.

Damon L. Gannett, Gannett Law Firm, Billings, Montana, For Respondent.

Justice WILLIAM E. HUNT, SR., delivered the Opinion of the Court.

¶ 1 Thomas Anthony McKenna (Thomas) appeals from the Findings of Fact and Conclusions of Law of the Thirteenth Judicial District Court, Yellowstone County, awarding primary residential custody of the parties' minor child to Sally Jo McKenna (Sally). We affirm.

¶ 2 We are asked to address the question of whether the District Court's decision awarding Sally primary custody of the child during the school year was an abuse of discretion.

Factual and Procedural History

¶ 3 Thomas and Sally were married on September 1, 1990, in Tulare, California. They had one child, Kirsten Marie McKenna (Kirsten), during their marriage. Kirsten was born on December 28, 1993. The parties separated on May 5, 1997, and have lived apart since that time. This case was initiated when Thomas filed a Petition for Dissolution of his marriage to Sally on June 12, 1997. The parties then entered into a Partial Marital and Property Settlement Agreement governing the division of marital property and the allocation of marital liabilities on October 10, 1997. This agreement was filed with the court.

¶ 4 Since separating, Thomas and Sally have mutually agreed to a shared custody arrangement. Kirsten's time has been alternated between the parties so as to provide each parent with approximately one-half of the child's time. The parties' Partial Marital and Property Settlement Agreement contained temporary provisions for the continuation of joint custody of Kirsten pending a final decree of dissolution. The parties further informed the District Court that they desired that the court incorporate all of the terms of their marital property agreement, except the provisions for the equal allocation of Kirsten's time between the parents, into the final decree of dissolution.

¶ 5 Thus, the parties stipulated to a custody investigation by the Yellowstone County Court Services pertaining to the allocation of Kirsten's time. The custody investigation was performed by Sherri Kenck (Kenck), Court Services Family Relations Specialist. Kenck's completed custody investigation, dated January 28, 1998, was submitted to the District Court and received into evidence. In her investigation, Kenck recommended in pertinent part that Thomas and Sally

share joint parenting time. It is recommended that the current schedule remain in place with some provisions made to provide Kirsten with continuity and stability of care. When Kirsten starts school, it is recommended that she return to her mother's home to sleep on the evenings she is with her father. A suggested return time would be 7:30. This will allow Kirsten to have a sense of continuity as she prepares for school each day, but will allow the current schedule to remain in place. During the summer months, it is recommended that the overnight weekday visits resume.

¶ 6 Although the parties initially represented to the District Court that they were willing to accept Kenck's recommendations, a disagreement subsequently developed concerning when the cessation of overnight times with Thomas during weekdays would occur. On October 30, 1998, a hearing was held on the matter of allocating Kirsten's time among the parents. In addition to Kenck, several other experts testified at the hearing, including: Kate Zednick, Licensed Clinical Social Worker (Zednick); Jim Paulson, Licensed Clinical Social Worker (Paulson); and Dr. F. Tom Peterson, Licensed Clinical Psychologist (Dr. Peterson).

¶ 7 At the hearing, Kenck testified that although both parents were very nurturing and close to Kirsten, there were some relationship difficulties between the parents which posed an impediment to Kirsten's long-term adjustment to her parents' divorce. In particular, Kenck observed that communications between Thomas and Sally were marked by frustration, anger, arguing, and the inability to reach agreement and make co-parenting decisions relative to Kirsten. Children of Kirsten's age are particularly susceptible to such a relationship between their parents, according to Kenck, and Kirsten had been exhibiting both physical and emotional reactions to this dynamic between Thomas and Sally, including some anger, aggressiveness, tearfulness, and sad feelings.

¶ 8 Thus, Kenck recommended that the equal allocation of time between the parents continue until Kirsten started attending kindergarten in the fall of 1999, when Kenck recommended that Kirsten live primarily with Sally. Kenck was of the opinion that it would be in Kirsten's best interest to have one primary home with stability and continuity of care during school, which would help to reduce parental conflict. The basis for Kenck's recommendation was that, given Kirsten's precocious personality, Sally was a better parent for Kirsten at that time. Specifically, there was a clearer parent-child separation and interaction between Sally and Kirsten; Sally was better able to provide discipline and structure for Kirsten and Kirsten more readily accepted Sally's role as parent. In contrast, Thomas and Kirsten shared what Kenck described as an "emotionally enmeshed" relationship in which there is not a clear role separation between parent and child and in which an intelligent child like Kirsten can effectively end up parenting the parent.

¶ 9 Zednick, who also works as a psychotherapist in private practice, interviewed Thomas, Sally, and Kirsten several times prior to the hearing. Expressing concern about Kirsten's adjustment to the divorce, Zednick agreed with the recommendations in Kenck's custody investigation. Zednick felt that once Kirsten began to attend school, it would be important for her to have "structure, predictability, and consistency." A steady routine was more important with a child like Kirsten, according to Zednick, because Kirsten is such "an incredibly bright, incredibly strong-willed child" who can easily push parental limits. Zednick also noted that Thomas had delivered Kirsten late to her day-care provider on several occasions and had exhibited an extremely difficult time emotionally separating from Kirsten when he left her at the day-care center.

¶ 10 Paulson, who is also employed as a private practice clinician, was Thomas' therapist beginning in May of 1997. Although Paulson had expressed concern about Thomas' emotional enmeshment with Kirsten about six months prior to the hearing, he testified that, in his opinion, Thomas' enmeshment issues had been successfully addressed through therapy. Paulson felt that an equal balance of power between the two parents should work and, therefore, he recommended the continuation of equal sharing of Kirsten's time by the parties. He saw no reason for changing such an arrangement once Kirsten began school. However,...