Opinion
DA 23-0454
02-27-2024
IN RE THE MARRIAGE OF: DANIEL DIXON BERK, Petitioner and Appellee, and APRIL RAE BERK, Respondent and Appellant.
For Appellant: Megan S. Winderl, Dustin M. Chouinard, Markette & Chouinard, P.C. For Appellee: Michael L. Hayes, Hays & Hayes.
Submitted on Briefs: February 7, 2024.
APPEAL FROM: District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DR-2021-155 Honorable Jennifer B. Lint, Presiding Judge
For Appellant: Megan S. Winderl, Dustin M. Chouinard, Markette & Chouinard, P.C.
For Appellee: Michael L. Hayes, Hays & Hayes.
OPINION
BETH BAKER, JUDGE.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, we decide this case by memorandum opinion. It 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 April Rae Berk appeals the order of the Twenty-First Judicial District Court, Ravalli County, adopting an amended parenting plan based on recommendations of the Guardian Ad Litem (GAL). April challenges the authority of the GAL and contends that the District Court erred by approving the amended final parenting plan without a hearing. We conclude that the GAL did not exceed his authority in commencing an investigation and writing a report but that the District Court erred by adopting the report without first holding a hearing. We accordingly reverse and remand for a hearing.
¶3 Daniel ("Dan") and April dissolved their marriage in January 2022 by decree of dissolution. The decree incorporated by reference a stipulated final parenting plan for then-six minor children, who at the time ranged in age from five to seventeen years old.Pursuant to the parties' stipulated final parenting plan, the decree called for the GAL who had assisted the parties to "continue working with the family until further written agreement of the parties or subsequent Court order." Due to unresolved issues between the parties, the parenting plan provided, in pertinent part:
Five of the six children are still subject to the parenting plan.
In that the parties are unable at this time to agree to a parenting plan that will be appropriate for the remainder of all of the children's minority, the parties agree the parenting plan (including, but not limited to, the residential schedule, holiday schedule, etc.) shall be reviewed and modified as necessary to serve the children's best interests: (a) pursuant to MCA § 40-4-234(2)(f) in January 2023, or (2) pursuant to MCA § 40-4-219(1) if there is a significant change in circumstances, in order to consider the children's changing needs as they age.
¶4 In anticipation of the review, the GAL contacted the parties in September 2022 to alert them to the impending review and modification period and advise that if they sought his involvement, he would need to do an updated investigation. April responded that no modification was needed and GAL input was not necessary; Dan believed a modification was in the children's best interest and requested GAL involvement. After both parties acknowledged that some changes to the parenting plan would be beneficial, particularly regarding reducing transitions and drive time, the GAL began his investigation.
¶5 The stipulated final parenting plan provided that during the school year, the five oldest children shall reside with April except for Dan's parenting time every other weekend, beginning Friday after school until Sunday evening at 4:00 p.m. It also provided that the children shall continue attending church in Hamilton during Dan's parenting weekends, with Dan transporting the children to church. April would return the children to Dan after church, and Dan would again transport the children to the church's youth group at 4:00 p.m. on Sunday. The children had additional parenting time with Dan every Tuesday from after school until 8:00 p.m. The youngest child was on a weekly rotating parenting schedule. The summer schedule was the same except for holidays.
¶6 At the time of the dissolution, both parties lived in Corvallis. Although not expressly stated in the stipulated final parenting plan, the children attended school in Hamilton. At the time the parties' final parenting plan was implemented, the parties still lived relatively close to each other-April lived in Corvallis and Dan lived in Victor. Since then, April relocated to Darby and Dan moved to Missoula, which resulted in a transition time of approximately an hour and a half each way. April then moved to Victor, which is substantially closer to Missoula. She expressed interest in transferring the children's school from Hamilton to Victor; Dan agreed.
¶7 The GAL filed his recommendations in May 2023. Relevant to this appeal, "[i]n an effort to decrease rapid 'turn around' transitions and to increase the children's parenting time with Dan," the GAL recommended a change in the parenting plan such that Dan would parent all the children on the following schedule:
1. Every 1st, 2nd and 3rd weekend of every month, based on the position of the Saturday. April should transport the children to Dan after school on Friday (or at 5:00 p.m. if there is no school) and Dan should take them to school on Monday morning (or at the resumption of school following the weekend).
2. Every Tuesday[,] April should transport the children to Dan immediately after school and Dan should take them to school on Wednesday morning.
During the summer, the GAL recommended April and Dan parent the children on a bi-weekly rotating schedule.
¶8 The GAL also acknowledged in his report that "[o]ne issue of continued controversy" regarded the children's attendance at church in Hamilton. Now that Dan lives in Missoula, the GAL noted, attendance of a church service in Hamilton "is a significant travel event creating a change in circumstances for Dan and the children." The GAL referenced that "[t]he children's counselor recognizes the importance of the support role [the church] plays in the children's lives and strongly endorses continued involvement." The GAL did not formally recommend anything on this issue other than that both parents should be able to expose the children to faith-based groups as they see fit.
¶9 Dan filed a motion to amend the parenting plan to adopt the scheduling changes recommended by the GAL, with the exception that the children rotate weekly, rather than bi-weekly during the summer, with church camps to be scheduled as much as possible on April's time. April responded with a counter-motion, contending that the GAL's recommended schedule includes excessive transitions between parenting time that do not serve the children's best interests. She proposed that the children continue to reside primarily with her during the school year and that Dan parent the children every other weekend on an extended basis-starting Thursday after school and ending at the start of school Monday. She agreed to the weekly rotating parenting schedule in the summer. April alleged that Dan's brief "includ[ed] a scatter shot of polarizing, superfluous and disputed factual allegations[]" to which she "will not respond in kind but will be prepared to address Dan's accusations should this matter proceed to hearing. Instead, April concede[d] that a change of circumstances exists, warranting an Amended Parenting Plan." ¶IO Dan filed a notice of issue and requested a hearing. Dan's filing noted, "There are issues of fact pertaining to the best interest of the children that require judicial determination." Later that same day, the District Court approved the GAL's recommendations. In its order, the com! noted that "[t]he parties are not far apart in their objections, and the objections appear to be less about what is in the best interests of the children, and more about continuing to sling arrows at each other and punish past behavior." It found that "[t]he GAL's report and investigation [was] thorough" and "providfed] a substantial basis for its conclusions and recommendations." The court stated:
Victor schools operate on a Monday-through-Thursday school week.
[A] hearing in this matter would only serve to foment the negative feelings the parties have toward each other, and would provide little benefit to the Couit in determining the children's best interests, or provide substantial infoimation to vaiy from the GAL's report. The children should not be subject to that spectacle, nor the stress in the household leading up to a contested hearing.
It approved the GAL's recommendations and ordered the parties "to implement the GAL's recommendations with the stipulated changes, that the children's time be week on - week off, and the children can relocate to the Victor School District (if still so agreed upon)."
¶11 "We review parenting plan determinations and modifications for a clear abuse of discretion." Bessette v. Bessette, 2019 MT 35, ¶ 13, 394 Mont. 262, 434 P.3d 894 (citations omitted). "An abuse of discretion occurs if a court exercises granted discretion based on a clearly erroneous finding of fact, an erroneous conclusion or application of law, or otherwise acts arbitrarily, without employment of conscientious judgment, or exceeds the bounds of reason resulting in substantial injustice." Bessette, ¶ 13 (internal quotations and citations omitted). We review a district court's conclusions of law de novo for correctness. Bessette, ¶13 (citation omitted).
The GAL's investigation and report
¶12 We first address April's argument that the GAL exceeded his authority by performing the parenting review contrary to the terms of the stipulated final parenting plan, mediating the parties' disputes, and changing material terms of the parties' agreements in his proposed amended parenting plan. Dan contends that April raises this issue for the first time on appeal as April did not seek relief from the District Court on any of these theories. ¶13 The court may appoint a guardian ad litem to represent the interests of a minor dependent child with respect to the child's support, parenting, and parental contact. Section 40-4-205(1), MCA. Section 40-4-205(2), MCA, provides that the guardian ad litem has the following general duties:
(a) to conduct investigations that the guardian ad litem considers necessary to ascertain the facts related to the child's support, parenting, and parental contact;
(b) to interview or observe the child who is the subject of the proceeding;
(c) to make written reports to the court concerning the child's support, parenting, and parental contact;
(d) to appear and participate in all proceedings to the degree necessary to adequately represent the child and make recommendations to the court concerning the child's support, parenting, and parental contact; and
(e) to perform other duties as directed by the court.
¶14 We first observe that April noted her objection to the GAL's authority to perform the parenting plan review in her counter-motion and response to Dan's motion to amend the parenting plan. She thus preserved this claim for appeal. But we agree with Dan that the GAL did not exceed his authority in commencing a report. The parties' stipulated final parenting plan provided that the plan would be reviewed and modified in January 2023. It also stated that the GAL "shall continue working with the family until further written agreement of the parties or subsequent Court order." It was within the scope of the GAL's duties under § 40-4-205(2), MCA, combined with the parties' stipulated parenting plan, to conduct an investigation and make a recommendation to the court with his findings.
The District Court's adoption of the GAL's recommendations
¶15 April argues that the District Court erroneously amended the parenting plan without holding a hearing under § 40-4-220, MCA. Although she did not expressly request a hearing, she contends that she did not need to because the statute required a hearing before the District Court adopted an amended parenting plan.
¶16 Section 40-4-220(1), MCA, states:
Unless the parties agree to an interim parenting plan or an amended parenting plan, the moving party seeking an interim parenting plan or amendment of a final parenting plan shall submit, together with the moving papers, an affidavit setting forth facts supporting the requested plan or amendment and shall give notice, together with a copy of the affidavit, to other parties to the proceeding, who may file opposing affidavits. The court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the affidavits, based on the best interests of the child, in which case it shall set a date for hearing on an order to show cause why the requested plan or amendment should not be granted.
¶17 Dan responds that § 40-4-220, MCA, does not apply because the parties agreed in their final parenting plan that a "best interests" modification of the parenting plan would occur in January 2023 pursuant to § 40-4-234(2)(f), MCA. Dan further contends that April waived the right to a hearing by failing to request one and by suggesting in her briefing that a hearing was not necessary. Dan requests that we affirm the District Court's order approving the GAL report and the amended parenting plan with the possible exception of a provision concerning modification of child support.
¶18 Parsing the language of § 40-4-220, MCA, to address the parties' arguments, it requires the court to set a hearing on a party's request to amend the parenting plan unless either: (1) the parties agree to an amended parenting plan or (2) lacking a finding of adequate cause for the same, the court denies the motion. It is clear from the record here that the parties did not agree to an amended parenting plan. The parties stipulated in their final parenting plan that the plan "shall be reviewed and modified as necessary to serve the children's best interests," but the parties did not reach agreement on amendments to the plan. Dan's motion to approve the GAL's recommendations recognized April's opposition to his motion and the parties' inability to stipulate to an amended parenting plan.
¶19 The record also supports that April did not waive the hearing. Dan formally requested a hearing, contending that the parties had factual disputes regarding the children's best interests. April did not disagree or object to a hearing. Both parties sought different amendments regarding changes to the school year parenting schedule that would materially change the parenting plan.
¶20 "When interpreting a statute, this Court begins with the plain language of the statute." In re U.A.C., 2022 MT 230, ¶ 13, 410 Mont. 493, 520 P.3d 295 (citing State v. Christensen, 2020 MT 237, ¶ 95, 401 Mont. 247, 472 P.3d 622). "The plain meaning of a statute controls when the legislative intent can be determined from the plain meaning of the words used in the statute." In re U.A.C., ¶ 13 (quoting Christensen, ¶ 95) (internal quotations omitted). Because the parties did not agree to an amended parenting plan, the plain language of § 40-4-220, MCA, required the court to set a hearing unless it found adequate cause and denied the motion.
¶21 April additionally points out that, by not holding a hearing, the District Court did not allow the parties to cross-examine the GAL before it adopted his report and recommendations. Dan responds that even if this was error, April's material rights were not prejudiced because April "emphasized harmony with the GAL's report, relied on the GAL's report in making her argument for a minor change to the proposed schedule . . ., and invited the court to rule in her favor without holding a hearing."
¶22 In relevant part, § 40-4-215(4), MCA, states, "Any party to the [parenting] proceeding may call the investigator and any person the investigator has consulted for cross-examination. A party may not waive the right of cross-examination prior to the hearing." We have held that this section "applies to § 40-4-205, MCA, in that a guardian ad litem must testify and be subject to cross examination if they give evidence concerning an investigation." Jacobsen v. Thomas, 2004 MT 273, ¶ 32, 323 Mont. 183, 100 P.3d 106. ¶23 We also have held that a district court may not rely on a GAL's hearsay report "when the report's author does not testify at the custody hearing and is not subject to cross-examination." Puccinelli v. Puccinelli, 2012 MT 46, ¶ 21, 364 Mont. 235, 272 P.3d 117. "To rely on such reports is a violation of the parent's due process rights." Puccinelli, ¶ 21. In accordance with Puccinelli, the District Court abused its discretion when it relied exclusively on the GAL's written report in making its custody determination. See also Wendlandtv. Johnson, 2012 MT 90, ¶ 14, 365 Mont. 1, 277 P.3d 1208.
¶24 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Intemal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review. The District Court erred by granting Dan's motion to amend the parenting plan without first holding a hearing at which the parties could question the GAL. The court retains discretion to control the administration of the hearing. In re Estate of Edwards, 2017 MT 93, ¶ 49, 387 Mont. 274, 393 P.3d 639. The court's final decision on Dan's request for amendment of the parenting plan must consider the evidence presented and reflect consideration of the best interests of the children under § 40-4-212, MCA. Puccinelli, ¶ 22. We reverse the District Court's order adopting the amended parenting plan from the GAL's recommendations and remand for a hearing.
We Concur: MIKE McGRATH, JAMES JEREMIAH SHEA, INGRID GUSTAFSON, JIM RICE.