In Re the Parenting of A.P.V.W.

08/09/2022

DA 21-0525
Case Number: DA 21-0525

IN THE SUPREME COURT OF THE STATE OF MONTANA
2022 MT 159N

IN RE THE PARENTING OF: A.P.V.W., a minor child,

DAVID ALLEN WARD,

Petitioner and Appellee,

v.

SHANELLE J. VAN DYKE,

Respondent and Appellant.

APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. BDR 2020-49
Honorable Michael F. McMahon, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Michelle H. Vanisko, Hinshaw & Vanisko, PLLC, Helena, Montana

For Appellee:

David B. Gallik, Gallik Law Office, PLLC, Helena, Montana

Submitted on Briefs: June 29, 2022

Decided: August 9, 2022

Filed:

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__________________________________________
Clerk
Justice Jim Rice 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 Shanelle Van Dyke (Mother) appeals the First Judicial District Court’s

September 21, 2021 Order on Pending Motions (Order) denying her M. R. Civ. P. 59(e)

Motion to Alter or Amend the Judgment and Request for Judicial Notice. Mother also

challenges the District Court’s Findings of Fact and Conclusions of Law and Order, and

related Final Parenting Plan, on the basis of the court’s statements to the Guardian ad Litem

(GAL) at the conclusion of the merits hearing. We affirm, but Mother is not prohibited

from filing a new petition under § 40-4-219, MCA, for amendment of the parenting plan.

¶3 Mother and David Ward (Father) lived together unmarried in Lincoln for several

years until December 2019. Their child, A.P.V.W., was born in 2016. On February 27,

2020, Mother obtained an Order of Protection against Father, prohibiting Father from

coming within 1,500 feet of Mother. The Order of Protection did allow Father to exercise

supervised parenting time with A.P.V.W. for four hours a week and was eventually

modified to reduce the prohibited distance to 700 feet. Father petitioned for a permanent

parenting plan, and a GAL was appointed. The GAL filed a report recommending alternate

parenting plans: one if Mother continued to reside in Lincoln, and another if Mother moved

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to East Helena to pursue new employment. The District Court held a merits hearing on

June 10, 2021, to take testimony from the parties and consider the GAL’s report.

¶4 As originally drafted, the GAL’s report proposed a parenting plan that gave Father

parenting time only every other weekend, regardless of whether Mother remained in

Lincoln or moved to East Helena. During her testimony, the GAL stated that she intended

to amend her report. In response, and based upon the testimony it had heard, the District

Court stated that the amended report should provide a proposed schedule assuming Mother

remained in Lincoln and another for Mother moving to East Helena. To wit, that if Mother

moved to East Helena and the GAL was still convinced that Father should parent only

“every other weekend,” that Father would receive “substantial summer parenting time . . .

coordinated with the school district calendar at Helena,” and some evening time with

A.P.V.W. during Father’s “off weeks.” The District Court also directed the GAL to include

a parenting proposal with a “two-two-three” day rotation should A.P.V.W. remain enrolled

in school in Lincoln.

¶5 Shortly after the hearing, Mother committed to moving to East Helena. On July 9,

the GAL submitted an amended report, including the two parenting plan scenarios and

schedules for either Lincoln or East Helena as Mother’s residency, as directed by the

District Court. On July 13, 2021, the District Court issued its Findings of Fact and

Conclusions of Law and Final Parenting Plan, which adopted the “East Helena” parenting

plan with minor modifications. Father filed a Notice of Entry of Judgment on July 15.

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¶6 On August 12, 2021, Mother filed a Motion to Alter or Amend Judgment. In the

Motion, made pursuant to M. R. Civ. P. 59(e), Mother argued that newly discovered and

previously unavailable evidence relevant to the matter should be brought to the District

Court’s attention. Specifically, Mother contended that, on August 2, 2021, Father had been

arrested at his residence on allegations of Partner or Family Member Assault, § 45-5-206,

MCA, and Strangulation of a Partner or Family Member, § 45-5-215(1), MCA. Although

the incident did not involve Mother, and A.P.V.W. was not present, Mother argued the

evidence was directly related to the best interest factors a court must consider for parenting

plans under § 40-4-212(1), MCA. Mother also argued the District Court had erred when it

directed the GAL to include certain provisions in her amended report at the conclusion of

the merits hearing. Mother additionally filed a Request for Judicial Notice asking the

District Court to take notice of the Complaint and Affidavit and Order Re: Probable Cause

filed in Father’s criminal matter, which detailed the allegations against him.

¶7 The District Court denied both the Motion and the Request for Judicial Notice. The

District Court ruled the Motion was untimely because “on July 15, 2021, [Father] filed a

Notice of Entry of Judgment relative to this Court’s July 13, 2021 ‘Judgment.’ Thereafter,

[Mother] had twenty-eight days to seek Rule 59(e) relief. There are twenty-nine days from

July 15, 2021 to August 13, 2021.” Regarding the Request for Judicial Notice, the District

Court stated that “for purposes of A.P.V.W.’s best interest, [it] may only consider ‘physical

abuse or threat of physical abuse by one parent against the other parent or the child,’”

pursuant to § 40-4-212(1)(f), MCA. While stating Father’s alleged conduct in the charging

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documents “genuinely concerned” the court, it reasoned that Father “has yet to be

convicted and, under the law, is presumed to be innocent” until proven guilty. Mother

appeals.

¶8 “We review a district court’s conclusions of law to determine whether the district

court’s interpretation of the law is correct.” Chase v. Bearpaw Ranch Ass’n, 2006 MT 67,

¶ 14, 331 Mont. 421, 133 P.3d 190 (citing Chamberlin v. Puckett Construction, 277 Mont.

198, 202-03, 921 P.2d 1237, 1240 (1996)). “We review a district court’s denial of a [Rule

59(e)] motion to amend for abuse of discretion.” Lee v. USAA Cas. Ins. Co., 2001 MT 59,

¶ 27, 304 Mont. 356, 22 P.3d 631 (citation omitted). “The test for abuse of discretion is

whether the trial court acted arbitrarily without employment of conscientious judgment or

exceeded the bounds of reason resulting in substantial injustice.” Jarvenpaa v. Glacier

Elec. Coop., 1998 MT 306, ¶ 13, 292 Mont. 118, 970 P.2d 84 (citation omitted). A district

court has discretion in determining issues related to trial administration; we review its

decisions in that regard for abuse of discretion. Fink v. Williams, 2012 MT 304, ¶¶ 18-20,

367 Mont. 431, 291 P.3d 1140 (citations omitted).

¶9 “A motion to alter or amend a judgment must be filed no later than 28 days after the

entry of the judgment.” M. R. Civ. P. 59(e). The Rules provide that a judgment is

“entered . . . if a separate document is required, when the judgment is entered in the civil

docket and . . . it is set out in a separate document.” M. R. Civ. P. 58(c)(2)(A) (2019). The

judgment entered here was in the form of a separate document, as required. See M. R. Civ.

P. 58(a) (2019). Mother argues that, pursuant to the local rules permitting email filing, her

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Motion was filed on August 12, 2021, when she emailed it to the court, not on August 13,

as the District Court noted in its Order. Therefore, she contends that, because she filed on

August 12, she timely filed her Motion within 28 days of the Notice of Entry of Judgment.1

However, Rule 59 does not provide that a motion to alter or amend a judgment must be

filed no later than 28 days after the notice of entry of judgment, but, rather, clearly states

that “[a] motion to alter or amend a judgment must be filed no later than 28 days after the

entry of judgment.” M. R. Civ. P. 59(e) (emphasis added).

¶10 The District Court’s Findings of Fact and Conclusions of Law and Order, and Final

Parenting Plan, the judgments Mother sought to have amended, were both entered on

July 13, 2021. According to the calculation of dates in the Montana Rules of Civil

Procedure, see M. R. Civ. P. 6(a)(1), from July 13, 2021, to August 12, 2021, is 30 days.

Therefore, while the District Court erred by using the date of Father’s Notice of Entry of

Judgment as the starting date in its calculation, and by using August 13 as the date Mother

filed her Motion, Mother’s Motion was nonetheless untimely under the Rules.2 As the

Motion was untimely, the issue regarding judicial notice is technically mooted. However,

1
Mother’s Opening Brief cites Rule 59(b), but that Rule applies to motions for a new trial.
Mother’s Motion was to alter or amend a judgment pursuant to Rule 59(e), but, in any event, the
28-day timeline is the same in both provisions.
2
The record contains two duplicate copies of Mother’s Rule 59(e) Motion and supporting brief,
both of which are stamped “Filed” by the District Court. One copy, however, is stamped as filed
on August 12, the other on August 13. The Case Register Report on review likewise lists both
copies, although it indicates the August 12 copy was emailed, as Mother represents. The District
Court’s “Filed” stamp on each document appears to be signed by a different District Court staff
member, which perhaps lead to the apparent confusion of dates.

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despite the expiration of time to file under Rule 59(e), Mother is not prejudiced in her

ability to file a petition for amendment of the Final Parenting Plan under § 40-4-219, MCA.

¶11 Mother also argues the District Court abused its discretion by “directing” the GAL

to include certain provisions in her amended parenting plan, which she proposed to file

after the merits hearing. Mother argues a guardian ad litem’s role is to advocate for and

provide recommendations based on the child’s best interests, in light of the evidence, and

that, while courts may direct guardians ad litem to perform certain tasks, by directing the

GAL here to include specific provisions in the amended parenting plan, the District Court

erroneously prevented the GAL from objectively advocating for A.P.V.W.’s best interests.

¶12 Section 40-4-205, MCA, provides for the appointment of guardians ad litem in child

custody matters. Subsection (2) provides:

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.

Section 40-4-205(2), MCA.

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¶13 A guardian ad litem may propose a parenting plan based on her observations, and

the district court ultimately determines the final parenting plan, in accordance with the

child’s best interest. Section 40-4-212(1), MCA. “Child custody cases often present the

court with difficult decisions. We must presume that the court carefully considered the

evidence and made the correct decision.” In re Marriage of Tummarello, 2012 MT 18,

¶ 34, 363 Mont. 387, 270 P.3d 28 (quotation marks and citation omitted). To that end, a

district court is not required to adopt a guardian ad litem’s proposed parenting plan but may

rely on it in its ultimate parenting plan determination. See Tummarello, ¶ 35 (a district

court is entitled to evaluate reports and testimony, including those of a guardian ad litem,

and adopt the recommendations it determines to be in the child’s best interest).

¶14 Here, the District Court “directed” the GAL to include certain provisions in her

amended parenting plan at the conclusion of the merits hearing, after the presentation of

testimony and evidence, the testimony of the GAL expressing her intention to amend her

report, and waiver of closing statements by the parties. The District Court then told the

GAL that “for purposes of your proposed plan that you are going to amend, the Court

would like for you to consider a couple different options. If you are still convinced of

every other weekend for [Father], I would like substantial summer parenting time for him.”

The District Court went on to state:

I would also like a proposal that if this Court requires [A.P.V.W.] to be going
to school in Lincoln, a plan of equal parenting time . . . . [T]he two-two-three
is what I find to be the most efficient. So . . . [e]ssentially . . . if [A.P.V.W.]
is in Helena, this is the plan; if she’s in Lincoln, this is the plan.

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The District Court noted it requested the changes to the GAL’s initial proposal because

“there’s got to be sufficient days during the summer to try and make up [for parenting time

lost] during the school year.” Finally, the District Court explained that, despite the changes

it was requesting in the amended report, it would still consider the GAL’s recommendation,

that the two parenting plan options it provided were based upon its review of the evidence,

and that it reserved the authority to make an ultimate decision on the parenting plan:

But I will rely upon her recommendation. If she says it should be a Lincoln
schedule, it will be a Lincoln schedule. If it’s going to be a Helena Schedule,
it will be a Helena schedule. But those are the two options she’s left with
based upon what the Court has heard today in evidence. And she will make
the recommendation, and if I disagree with it, then I’ll put the opposite
schedule in. Okay?

(Emphasis added.)

¶15 While Mother raises a cautionary point, we conclude that under these circumstances

the District Court did not abuse its discretion. At this stage of the proceeding, the District

Court could have proceeded, and would have been within its authority, to enter a final

parenting plan based upon the GAL’s initial report and the evidence presented at the merits

hearing, and decline to receive an amended report. Instead, it voiced its considerations and

directed the GAL to include and consider its proposals in the amended parenting plan. It

then reviewed the amendments and issued the Final Parenting Plan it found to be in

A.P.V.W.’s best interests. See § 40-4-212(1), MCA; Tummarello, ¶ 35.

¶16 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. This appeal presents

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no constitutional issues, no issues of first impression, does not establish new precedent or

modify existing precedent, and the District Court did not abuse its discretion.

¶17 Affirmed.

/S/ JIM RICE

We concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA

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