08/23/2016
DA 15-0772
Case Number: DA 15-0772
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 210N
IN RE THE PARENTING PLAN OF:
J.B.,
PENELOPE OTERI,
Petitioner and Appellant,
v.
RUSSELL BARBER,
Respondent and Appellee.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DR-12-647
Honorable John W. Larson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Penelope Oteri, Self-Represented, Conrad, Montana
For Appellee:
Russell Barber, Self-Represented, Clovis, California
Submitted on Briefs: July 13, 2016
Decided: August 23, 2016
Filed:
__________________________________________
Clerk
Justice Laurie McKinnon 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 Penelope Oteri appeals from an order issued by the Fourth Judicial District Court,
Missoula County, denying her motion to amend the court’s August 17, 2015 findings of
fact, conclusions of law, and child support order. We affirm.
¶3 Penelope Oteri (Mother) and Russell Barber (Father) were married on January 21,
2006, in Reno, Nevada, and divorced shortly afterwards. The parties have one minor
child, J.B.
¶4 Over the course of the last decade, the parties have been involved in a lengthy,
litigious, and continuous custody and visitation dispute over J.B. Initially, the parties
litigated their disputes in Nevada state courts. On August 29, 2012, a Nevada district
court entered a parenting plan (Nevada Parenting Plan), which granted Mother physical
custody, permitted Mother to move to Montana, and allowed Father visitation.
¶5 However, after Mother moved to Montana in September 2012, the parties began
litigating over J.B. in this State. Since that time, they have filed a plethora of motions in
the Fourth Judicial District Court, Missoula County. The District Court has attempted to
deal with the motions as they are filed. Relevant to this appeal, Mother filed her third
motion to amend (Motion to Amend) the Nevada Parenting Plan with the District Court
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on May 12, 2014. On August 17, 2015, after several more motions from both parties and
several subsequent orders from the District Court, the court entered the order that is now
in dispute. The court’s August 17 order held Mother in contempt for refusing to allow
J.B. to use skype communication to contact Father, allowed Father to seek a second
opinion regarding the child’s medical condition, and ordered the parties to agree upon a
joint treatment and school strategy for the child. The August 17 order did not address the
Motion to Amend.
¶6 On appeal, Mother argues the District Court erred by not amending the parenting
plan in its order. To support her argument, Mother contends that the court’s factual
findings regarding the martial settlement and child support are clearly erroneous. After
reviewing the court’s August 17 order, we believe that the Motion to Amend was outside
the scope of the court’s order and thus the District Court’s ultimate ruling on the Motion
to Amend is still outstanding. We read the August 17 order to dispose of only those
issues that it expressly addressed in its conclusions of law, i.e., holding Mother in
contempt; allowing Father to seek a second opinion; and requiring the parties to agree
upon a joint treatment and school strategy. Mother does not appeal these holdings.
Further, the District Court’s factual findings regarding the martial settlement and child
support, which Mother argues are clearly erroneous, are unrelated to the issues disposed
of in the court’s order. Thus, we do not address whether the court’s factual findings
regarding those issues are clearly erroneous. Because Mother does not appeal any of the
holdings that the District Court issued, we conclude that the District Court did not err.
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¶7 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, the case presents a question controlled by settled law.
¶8 Affirmed.
/S/ LAURIE McKINNON
We Concur:
/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ JIM RICE
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