Steab v. Luna, 2010 MT 125 (Mont. 6/3/2010)

• Decision Date: 03 June 2010
• Docket Number: No. DA 09-0626.,DA 09-0626.
• Parties: JOHN R. STEAB, Petitioner and Appellee, v. LAUNA J. LUNA, Respondent and Appellant.
• Court: Montana Supreme Court

Page 1

2010 MT 125

JOHN R. STEAB, Petitioner and Appellee, v. LAUNA J. LUNA, Respondent and Appellant.

No. DA 09-0626.

Supreme Court of Montana.

Submitted on Briefs: April 21, 2010.

Decided: June 3, 2010.

Appeal from: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. ADR 02-82 Honorable Dorothy McCarter, Presiding Judge

For Appellant: Benjamin C. Tiller; The Law Offices of Benjamin C. Tiller; Helena, Montana.

For Appellee: Julie A. Johnson; Gough, Shanahan, Johnson & Waterman, PLLP; Helena, Montana.

Justice Jim Rice delivered the Opinion of the Court.

¶ 1 Launa Luna appeals the judgment of the District Court for the First Judicial District, Lewis and Clark County, which modified the parties' parenting plan by granting, inter alia, primary residential custody of K.S. to Appellee John Steab. Launa challenges the modification on numerous grounds, including that the court violated her due process rights, entered clearly erroneous factual findings and abused its discretion. Because we conclude Launa's due process argument is dispositive, we do not reach her other arguments.

¶ 2 The issue on appeal is whether the District Court violated Launa's due process rights by modifying the parenting plan without proper notice to Launa that John sought primary residential custody of their daughter, K.S.?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 Launa and John are the biological parents of three children: their son, T.J., who is 22, and their daughters J.S., age 19, and K.S., age 9. This appeal concerns a change to the parenting plan for 9-year-old K.S., modifying the primary residential parent from Launa, who resides in Utah, to John, who resides in Montana. The District Court modified the parenting plan after receiving testimony that the family's son T.J. had subjected J.S. to repeated sexual abuse, and that K.S. was in danger of the same abuse. Some background regarding these unfortunate circumstances is pertinent to the appeal.

¶ 4 In 1999, while Launa and John were married, the family learned that J.S. had been sexually abused by the children's uncle, Chase, on numerous occasions when she was five or six years of age. Launa and John sought counseling for J.S., and separated the family from Chase. Launa and John subsequently divorced in 2002 and, pursuant thereto, a parenting plan designating Launa as the primary residential parent of K.S was adopted by the court. In 2007, with the court's approval, Launa moved to Utah with K.S. and T.J. and, pursuant to the parenting plan, John maintained continuous contact with the children after Launa's move.

¶ 5 In the early fall of 2008, the family learned that T.J. had also been sexually abused by Chase in 1999, and that, in turn, T.J. had also sexually abused J.S. when she was 9 years old and T.J. was 12 years old. These events had occurred while Launa and John were still married and living together, before K.S. was born. No evidence that K.S. has been sexually abused has been offered.

¶ 6 After learning of the abuse between T.J. and J.S., John contacted the Davis County Sheriff's Office in Utah. Detective West of that office conducted a forensic interview of K.S. to determine if she had been harmed by T.J. Detective West noted that K.S. exhibited a consistent reaction while discussing each member of her family, although she indicated that T.J. asked her to hug him about ten times a day and that he did not hug her back. Detective West noted in his report that this behavior "could be the beginning of the grooming process," but that he could not presently make that determination. Given K.S.'s reactions and the lack of an indication of abuse, Detective West concluded that T.J. had not abused K.S. and ended his investigation.

¶ 7 On September 24, 2008, John filed an emergency ex parte motion requesting the District Court temporarily place K.S. in his care pending a hearing on the matter, given T.J.'s history of sexual abuse. John's motion did not include Detective West's report, but provided his affidavit which stated that K.S. told him that T.J. would be babysitting her, and that she had recently been left alone to watch television with T.J. at Launa's home in Utah.

¶ 8 The District Court granted John's ex parte motion the day it was filed, ordering K.S. placed in John's custody pending a hearing. Pursuant thereto, John took K.S. from her school in Utah the following day and returned with her to Montana. The next day, September 26, 2008, Launa filed a motion for immediate rescission of the ex parte order, and return of K.S. to her. On October 1, 2008, after reviewing Detective West's incident report attached to Launa's motion, the District Court vacated the ex parte order. The court found insufficient evidence to amend the parenting plan on an emergency, ex parte basis, and indicated it would hold a hearing upon receipt of a joint parental custody evaluation. K.S. returned to Utah, where she continued to maintain her primary residence with Launa and her step-father.

¶ 9 On December 4, 2008, Launa and John stipulated to Dr. Heather Walker conducting the parenting evaluation. The District Court accepted the parties' stipulation and ordered Dr. Walker to perform the evaluation. After traveling to both parties' homes in Utah and Montana and interviewing individuals who had meaningful contact with K.S., Dr. Walker met with both John and Launa, and discussed her recommendations. Dr. Walker's parenting evaluation affirmed Launa as the primary residential parent of K.S., but recommended that John be granted more parenting time in the summer with K.S ¶ 10 Following Dr. Walker's evaluation, John's attorney drafted a revised parenting plan which he provided to Launa and her lawyer on August 26, 2009. John's proposed parenting plan stated that it was "in accordance with the evaluators [sic] August 2009 recommendations," and provided that Launa would have "primary physical custody" and that K.S. "shall reside primarily at her mother's residence." On September 17, 2009, John requested a hearing regarding modification of the parenting plan. In his motion, John stated that he had "sent his proposed modifications to the parenting plan incorporating Dr. Walker's recommendations" to Launa. (Emphasis added.) A hearing was set for October 30, 2008.

¶ 11 At the hearing, Launa's counsel raised an initial objection about the pleadings, noting that no motion to amend the parenting plan had actually been filed and that the order vacating the ex parte order was the only suggestion of a modification to the parenting plan in the record. The court responded that the order had put the parties on notice and that, given time restraints, the court did not want to address procedural aspects of the case.

¶ 12 John's counsel began by submitting his proposed findings of fact, conclusions of law and parenting plan, and stating that John was requesting a "switch in primary custodial parents from mother to father and to protect [K.S.] from the potential of more sexual abuse[,] based on the recommendations of Donna Hale." Following counsel's comment regarding Donna Hale, the District Court disclosed that it had received a letter from Ms. Hale on October 26, 2009, which it provided to the parties. Hale's letter to the court stated that Hale wanted to "refresh some of [their] conversations and add additional information regarding the Steab case," and asked the court to "keep this case and allow [the] hearing to occur."

¶ 13 John called Ms. Hale, a licensed clinical social worker who had treated various members of the family. Ms. Hale admitted that she was not an expert on sex offenders "by choice," but the night before the hearing she had read "about four hours of literature research" on the internet about sex offenders in preparation for her testimony about T.J.'s potential dangerousness to K.S. Ms. Hale provided numerous recommendations regarding the best interests of K.S. and testified in support of John's request to change the primary residential parent. Ms. Hale based her opinion on the likelihood of T.J. reoffending and sexually assaulting K.S., particularly given that K.S. was the same age as J.S. when T.J. began sexually abusing J.S, and opined that Launa was seemingly indifferent to the situation.

¶ 14 Launa's counsel objected during Hale's testimony that there had "not been a request that the Court provide a parenting plan that gives primary custody to John. Only parenting plan that was presented along with the motion [did] not suggest a change of custody." John's counsel admitted that the first time a change of custody had been suggested was within the findings of fact submitted that day. The court stated, "Well now we know."

¶ 15 Cross-examining Hale, Launa's counsel addressed the letter Hale had sent to the court and asked, "Have you had out of court conversations regarding this case with Judge McCarter?" The District Court responded that "I think [Ms. Hale] may have had some with me but nothing of substance because we are friends and we go to lunch occasionally and she talks about things, so the answer for her, she may have mentioned something about the case . . . ." After some additional dialogue, the court responded that Ms. Hale "doesn't talk a lot about substance of these cases," and that they try to talk about other things.

¶ 16 In Launa's case-in-chief, she called Dr. Walker, who had performed the court-ordered custody evaluation, and Rick Bashaw, T.J.'s current treating therapist. Based on her investigation, Dr. Walker believed it would be in K.S.'s best interest to remain primarily with Launa, but spend additional parenting time with John during the summer. Bashaw testified that T.J. was progressing well through his treatment program, and posed no threat to K.S. as long as their contact was supervised.

¶ 17 The District Court adopted Hale's recommendations and ordered that John would be the primary residential parent. Launa filed a ...