In re P.H.R.

• Decision Date: 14 September 2021
• Docket Number: DA 21-0050
• Citation: 495 P.3d 38,405 Mont. 334
• Parties: IN RE the Parenting of: P.H.R. and P.H.R., Minor Children, Marlen Delano Russell, Petitioner and Appellee, and Sarah Patricia Russell, Respondent and Appellant.
• Court: Montana Supreme Court

405 Mont. 334

495 P.3d 38

IN RE the Parenting of: P.H.R. and P.H.R., Minor Children,

Marlen Delano Russell, Petitioner and Appellee,

and

Sarah Patricia Russell, Respondent and Appellant.

DA 21-0050

Supreme Court of Montana.

Submitted on Briefs: July 21, 2021

Decided: September 14, 2021

For Appellant: Scotti L. Ramberg, Office of the State Public Defender, Missoula, Montana

For Appellee: Lucy Hansen, Hansen Law Practice, PLLC, Missoula, Montana

Justice Beth Baker delivered the Opinion of the Court.

¶1 Sarah Willmon (formerly Sarah Patricia Russell) appeals four provisions of a Fourth Judicial District Court order and amended parenting plan requiring her and her current husband to attend family counseling, allowing her ex-husband Marlen Delano Russell to contact the children "regularly," requiring the parties to mediate future disputes, and splitting between the parties the tax dependency deductions. We affirm in part and reverse in part.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 The parties were divorced by a Texas court decree in January 2015. The Texas parenting plan appointed Sarah as the sole managing conservator for their two minor children. It included alternate plans in case of one parent's relocation to a residence "more than 100 miles" from the other parent.

Sarah and the parties’ children moved to Montana in July 2016. Marlen remained in Texas.

¶3 In December 2019, Marlen registered the parties’ divorce decree and parenting plan in Montana's Fourth Judicial District Court. Among other filings, Marlen in February 2020 filed a motion to amend the existing parenting plan and a proposed amended parenting plan. He requested primary custody of the children, arguing that there was a substantial change in circumstances warranting modification of the plan, including the children's move to Montana, the children's decline in reported wellbeing, Sarah's alleged neglect of the children, Sarah's new husband who Marlen alleges is abusive, and the children's new ages, needs, and interests. He also included in the proposed amended parenting plan a provision that "[t]he parties shall alternate claiming the children on their tax returns every tax year" and a communication provision stating that the parents’ phone calls with the children "shall be unrestricted but on a reasonable basis." Sarah responded that many of Marlen's allegations were false and lacked evidentiary support, and that there were not changed circumstances sufficient to allow amendment of the parenting plan. She also indicated she would be willing to participate in mediation regarding the parenting plan amendment "given certain protective measures are taken due to the history of domestic violence" between the parties.

¶4 The District Court ordered the parties to engage in mediation prior to any further hearing on the motion, and the parties did so in May 2020 via Zoom. As a result of the mediation the parties entered into a stipulation concerning various matters, including Marlen's communication with the children. The stipulation provided: "Father shall call P.R. (daughter) on her cell phone rather than through Mother's phone. Father shall be entitled to phone calls with P.R. (son) through Mother's phone on Monday[,] Wednesday[,] and Friday at 7:25 p.m. and shall cease calling Mother's phone at other times." The parties then filed their stipulation with the District Court.

¶5 In September 2020, the District Court held a hearing on the remaining issues under Marlen's motion. Both parties testified, as did a therapist who had seen the parties’ daughter on a few occasions. The District Court interviewed the parties’ children in chambers following the hearing. It also had access to Department of Family Services records and the parties’ Texas court file.

¶6 The court issued its Order and Amended Parenting Plan in December 2020. It granted Marlen's motion in part, agreeing with Marlen that, among other things, Sarah and the children's move to Montana constituted changed circumstances that supported adopting some amendments to the parenting plan. The court concluded, however, that Sarah would remain primary parent and the parenting schedule would remain the same. Relevant to this appeal, the court's order and amended parenting plan include provisions that require Sarah and her husband to attend family counseling, allow the absent parent to contact the children "regularly," require the parties to mediate future disputes, and split between the parties the tax dependency deductions.

STANDARD OF REVIEW

¶7 We review a district court's conclusions of law de novo. Giambra v. Kelsey , 2007 MT 158, ¶ 28, 338 Mont. 19, 162 P.3d 134 (citations omitted). We review for clear error a district court's findings in support of its decision to modify a parenting plan. Guffin v. Plaisted-Harman , 2010 MT 100, ¶ 20, 356 Mont. 218, 232 P.3d 888 (citing In re Marriage of Oehlke , 2002 MT 79, ¶ 9, 309 Mont. 254, 46 P.3d 49 ). "A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the court misapprehended the effect of the evidence or if, upon reviewing the record, this Court is left with the definite and firm conviction that the district court made a mistake." In re S. T. , 2008 MT 19, ¶ 8, 341 Mont. 176, 176 P.3d 1054 (citation omitted).

¶8 "[A] district court's decision will not be disturbed on appeal unless there is a mistake of law or a finding of fact not supported by substantial credible evidence that would amount to a clear abuse of discretion."

Guffin , ¶ 20 (citations and internal quotation marks omitted); In re Marriage of D'Alton , 2009 MT 184, ¶ 7, 351 Mont. 51, 209 P.3d 251 (citation omitted). This Court reviews a district court's award of a tax exemption for an abuse of discretion. In re Marriage of Foreman , 1999 MT 89, ¶ 41, 294 Mont. 181, 979 P.2d 193 (citing In re Marriage of Schnell , 273 Mont. 466, 471, 905 P.2d 144, 147 (1995) ). A court has abused its discretion if it "acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice." Guffin , ¶ 20 (citation omitted).

DISCUSSION

¶9 1. Whether the District Court erred when it ordered Sarah's husband to engage in family counseling.

¶10 Related to its concern that no caregiver should use corporal punishment on the children and in order "[t]o establish other appropriate interventions and issues regarding the parenting of children in a blended family," the District Court ordered that "Sarah shall engage in family counseling with her current husband." Sarah argues that the District Court erroneously included her husband in this order because he is not a party to the case and thus is not subject to the court's jurisdiction. Marlen responds that the District Court's inclusion of Sarah's husband was a proper exercise of its discretion and authority to ensure the children's physical and emotional health and well-being because her husband is "a man she agreed to add into her household and a man who she has allowed to discipline the children." Marlen agrees that Sarah's husband cannot be held in contempt for failing to attend counseling but argues that Sarah "has been tasked with ensuring that other adult members of her household are safe around the children."

¶11 A court may exercise power over or compel the action of only those parties under the court's jurisdiction. Reed v. Woodmen of the World , 94 Mont. 374, 381–82, 22 P.2d 819, 821 (1933) ; Locke v. Estate of Davis , 2015 MT 141, ¶ 32, 379 Mont. 256, 350 P.3d 33 (where Safeco was not a named party, was not represented by counsel, and did not appear before the district court, the court erred in making findings against it). A person becomes a party to an action through her or his voluntary appearance before the court or through legal service of summons. M. R. Civ. P. 4(b)(2); Deich v. Deich , 136 Mont. 566, 577, 323 P.2d 35, 41 (1958) (citation omitted).

¶12 Although the District Court has discretion in fashioning appropriate provisions for the best interests of the children, it erred to the extent it included Sarah's current husband in its order to attend family counseling. Sarah's husband is not a party to this case, nor did he at any time voluntarily submit himself to the jurisdiction of the District Court. Montana courts do not have the authority to order a non-party to engage in conduct, nor can they enforce such an order. Further, Sarah cannot be held in contempt if her husband fails to comply with the order. We accordingly reverse that provision of the District Court's order requiring Sarah's current husband to attend family counseling.

¶13 2. Whether the District Court abused its discretion when it ordered that the absent parent may contact the children "regularly."

¶14 After a court has determined that changed circumstances exist sufficient to allow amendment of a parenting plan, it may amend such a parenting plan only if the amendment "is necessary to serve the best interest of the child." Section 40-4-219(1), MCA ; Jacobsen v. Thomas , 2006 MT 212, ¶ 16, 333 Mont. 323, 142 P.3d 859. Sections 40-4-212(1) and -219(1), MCA, provide a non-inclusive list of eighteen factors to be considered when analyzing the best interests of the children. Such factors include: whether "one parent has willfully and consistently: (i) refused to allow the child to have any contact with the other parent; or (ii) attempted to frustrate or deny contact with the child by the other parent"; and "whether the child has frequent and continuing contact with both parents, which is considered to be in the child's best interests unless the court determines, after a hearing, that contact with a parent would be detrimental to the child's best interests[.]" Sections 40-4-212(1), -219(1), MCA.

¶15 In considering the factors for the children's best interests, the court found that "Marlen accuses Sarah of frustrating his ability to talk to the children, but the [c]ourt finds these accusations without merit. Marlen's...