December 17 2007
DA 06-0725
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 339N
IN RE THE MARRIAGE OF
RHONDA ELAINE BAKER DAMSCHEN,
Joint Petitioner and Appellant,
and
DONALD DAVID DAMSCHEN,
Joint Petitioner and Appellee.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DR 2000-544
Honorable Ed P. McLean, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Richard A. Volinkaty, Attorney at Law, Missoula, Montana
For Appellee:
Jo Antonioli, Antonioli & Wade, P.C., Missoula, Montana
Submitted on Briefs: September 19, 2007
Decided: December 17, 2007
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, Supreme Court 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 Rhonda and Donald Damschen were married in 1989 and divorced in 2000.
Shortly after dissolution, disputes pertaining to the children began arising resulting in
numerous hearings to address vacation plans, holiday visitation schedules and home-
schooling. In October 2005 Donald moved for an order prohibiting Rhonda from
interfering with the children’s public schooling. In March 2006 the District Court
granted the motion. In April 2006 Donald moved for a warrant of contempt against
Rhonda for violating the March order. The court granted this motion as well. Rhonda
appeals these orders. We affirm.
ISSUES
¶3 Rhonda presents several issues on appeal. She asserts that the District Court either
erred or abused its discretion by: (1) admitting hearsay evidence; (2) limiting each party
to ninety minutes during the hearing; (3) granting a “custodial interest” in the children to
Donald’s wife; (4) ordering the children’s school to arrest her, under specific
circumstances, for trespassing; and (5) awarding attorney’s fees and costs to Donald.
FACTUAL AND PROCEDURAL BACKGROUND
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¶4 Rhonda and Donald Damschen were married in Missoula, Montana, in 1989.
Three sons were born to the couple between 1994 and 1998. Rhonda and Donald filed a
Joint Petition for Dissolution of Marriage in August 2000. The parties entered into a
Marital Dissolution Settlement Agreement and Parenting Plan (the Agreement) which
distributed the marital property, apportioned the marital debts and set forth the shared
child custody terms and conditions. The Fourth Judicial District Court granted the
Petition in October 2000 and ordered compliance with the Agreement.
¶5 Very shortly thereafter the parties began having serious disagreements about the
custody and schooling arrangements. The oldest child had been home-schooled prior to
the divorce and Rhonda wished to continue this arrangement as well as to home-school
the two other children. The parents continued home-schooling at their respective homes
through December 2004 at which time Donald moved for an order terminating home-
schooling and requiring the boys to attend public school. The District Court granted the
motion in January 2005 and the boys were enrolled in a local elementary school.
¶6 In October 2005 Donald filed a motion for an order prohibiting Rhonda from
interfering with the boys’ public school curriculum. Among other things, he alleged that
Rhonda encouraged the children to disregard school rules and promised them a reward if
they succeeded in getting themselves expelled so she could continue home-schooling
them. The court conducted a three and one-half hour hearing in early March 2006, at the
beginning of which the District Court informed the parties that each attorney had ninety
minutes to present his or her client’s case. Neither party objected to this time constraint.
During the hearing, Rhonda’s attorney made over twenty objections, primarily pertaining
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to the admissibility of evidence. After several of these objections, the District Court
warned him that it was keeping track of the time spent on objections and would reduce
Rhonda’s allocated ninety minutes accordingly.
¶7 At the conclusion of the hearing the District Court issued its ruling from the
bench. A written Opinion and Order was issued on March 7, 2006. In this order, the
District Court found that Rhonda had interfered with the children’s public schooling.
Among other things, the court’s order restricted Rhonda’s presence on school property
during Donald’s parenting time to certain prescribed activities, and instructed the school
to have her arrested and prosecuted if she violated this restriction. The order also stated
that Donald’s wife, Susan, “shall be entitled to custody of the three children in Donald’s
absence, during his custodial time.” The District Court awarded attorney’s fees and costs
for preparing for and attending the hearing to Donald. After this ruling Rhonda’s
attorney lodged an objection that the court’s time limitation hindered his ability to present
Rhonda’s case.
¶8 Subsequently, Rhonda moved for a new trial based on denial of her right to a fair
trial because of the time constraints imposed by the court. Rhonda also objected to the
court’s award of attorney’s fees to Donald. Before the District Court could rule on
Rhonda’s motion, Donald filed a motion for a warrant of contempt alleging that Rhonda
continued to interfere with the boys’ public schooling in violation of the March 2006
order. In May 2006 the court denied Rhonda’s motion for a new trial and reiterated its
award of fees and costs to Donald. It also filed a warrant of contempt against Rhonda.
On June 8, 2006, Rhonda appealed the District Court’s March and May orders. We
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dismissed her appeal without prejudice on the ground that none of the orders she sought
to appeal were final or appealable under M. R. App. P. 1.
¶9 In July 2006 the District Court issued an order denying Donald’s request that he be
the children’s primary custodial parent during future school years with Rhonda having
every other weekend visitation rights. In this order, however, the court clarified that its
March 7, 2006 order did not establish parental rights for Susan Damschen but merely
gave Susan the right to pick up the children on behalf of her husband. The court
observed that its May 9, 2006 order placing the children with Donald for the remainder of
the 2005-2006 school year had expired but the court expressly prohibited Rhonda from
preparing future meals for the children when they were in Donald’s custody. The court
also limited the circumstances under which she could be on the school grounds in the
future but removed any reference to its earlier instruction that the school have her
arrested and prosecuted.
¶10 The District Court filed an order on September 5, 2006, awarding Donald
approximately $11,100 in attorney’s fees and costs. On October 16, 2006, Rhonda filed a
Notice of Appeal of the District Court’s March 7, May 9, and September 5, 2006 orders.
STANDARD OF REVIEW
¶11 The decision to place a time limit on a hearing is a matter of trial administration
which is within the district court’s discretion. Eatinger v. Johnson, 269 Mont. 99, 106,
887 P.2d 231, 235. We apply the same standard of review to the court’s evidentiary
rulings. The district court has broad discretion in determining the admissibility of
evidence. Notwithstanding this deference, however, judicial discretion must be guided
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by the rules and principles of law; thus, our standard of review is plenary to the extent
that a discretionary ruling is based on a conclusion of law. In such circumstances, we
must determine whether the court correctly interpreted the law. In re T.W., 2006 MT
153, ¶ 8, 332 Mont. 454, ¶ 8, 139 P.3d 810, ¶ 8 (citations omitted). Lastly, whether a
party is entitled to recover attorney’s fees is a question of law we review for correctness
while the actual award of attorney’s fees is a discretionary ruling that we review for
abuse. Valeo v. Tabish, 1999 MT 146, ¶ 15, 295 Mont. 34, ¶ 15, 983 P.2d 334, ¶ 15 and
Denton v. First Interstate Bank of Commerce, 2006 MT 193, ¶ 19, 333 Mont. 169, ¶ 19,
142 P.3d 797, ¶ 19.
DISCUSSION
¶12 Rhonda argues on appeal that the District Court abused its discretion by limiting
the duration of a hearing intended to resolve a single issue—did Rhonda interfere with
the children’s public schooling? As indicated above, district courts have broad discretion
in trial administration matters and we will not disturb such rulings absent an abuse of this
discretion. Moreover, Rule 7 of the Montana Fourth Judicial District Court Rules
expressly allows time limits to be imposed by the court. The District Court informed the
parties at the start of the hearing that each side had an equal and reasonable amount of
time to present their cases. Neither party objected to this limitation. During the hearing,
in addition to his multiple objections, Rhonda’s attorney conducted voir dire of two of
Donald’s three witnesses, cross-examined all three of Donald’s witnesses and conducted
direct examination of Rhonda’s expert witness. The court, under the authority of Rule 7,
enforced the imposition of the time limit. In light of the fact that this hearing was
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scheduled to address only one issue, we conclude that the District Court did not abuse its
discretion by imposing an equal and reasonable time limit on the proceeding.
¶13 Likewise, the District Court has broad discretion on evidentiary matters. In
addition to the challenged evidence which appears to meet the requirements for
admissibility under Rule 803(6) of the Montana Rules of Evidence, substantial
unchallenged testimony was presented describing various instances in which Rhonda
interfered with her children’s schooling during Donald’s parenting weeks, including
instructing the children to not get into Susan’s car after school, to not eat the lunches
prepared for them by their father and Susan, and to not respect and obey the rules of the
school. Therefore, the record supports the court’s decision that Rhonda interfered with
her sons’ public school curriculum.
¶14 Rhonda complains of the court’s award in its March 2006 order of a “custody
interest” in her children to Susan and the court’s instruction to the school to have Rhonda
arrested if she violates the March order. The District Court clarified this language in its
July 2006 order indicating that it merely granted Susan the right to pick up the children
from school when Donald was unavailable, during Donald’s custodial time.
Additionally, the July 2006 order eliminated the instruction to the school that it have
Rhonda arrested and prosecuted for trespass should she violate the March 2006 order. As
a result, we need not address these complaints further.
¶15 Lastly, the parenting agreement signed by both parties provided that the successful
party in any action commenced to enforce, modify, or interpret provisions of the
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Agreement was entitled to attorney’s fees and costs. The District Court did not abuse its
discretion in awarding such fees and costs accordingly.
¶16 We have determined to decide this case pursuant to Section 1, Paragraph 3(d) of
our 1996 Internal Operating Rules, as amended in 2003, which provides for
memorandum opinions. It is manifest on the record before us that the findings of fact are
supported by substantial evidence, and the legal issues are clearly controlled by settled
Montana law which the District Court correctly interpreted; therefore, there was no abuse
of discretion by the District Court.
¶17 We affirm the judgment of the District Court.
/S/ PATRICIA COTTER
We Concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ BRIAN MORRIS
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