December 18 2009
DA 08-0505
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 428N
IN RE THE PARENTING OF:
J.D.B. and J.R.B.,
Minor children,
J.M.B.,
Petitioner and Appellant,
and
E.B.,
Respondent, Appellee and Cross-Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DR 2008-0001
Honorable G. Todd Baugh, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Kevin T. Sweeney, Attorney at Law, Billings, Montana
J. Greg Tomicich, Attorney at Law, Billings, Montana
For Appellee:
Nancy G. Schwartz, N.G. Schwartz Law, PLLC, Billings, Montana
Jill Deann LaRance, Kathryn S. Syth, LaRance & Syth, P.C.,
Billings, Montana
Submitted on Briefs: October 28, 2009
Decided: December 18, 2009
Filed:
__________________________________________
Clerk
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Justice John Warner delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 2006 Internal
Operating Rules, the following decision shall not be cited as precedent. It shall be filed
as a public document with the Clerk of the Supreme Court and shall be reported by case
title, Supreme Court cause number, and disposition to the State Reporter Publishing
Company and to West Group in the quarterly table of noncitable cases issued by this
Court.
¶2 J.M.B. (Grandmother) appeals from an order entered in the Thirteenth Judicial
District Court, Yellowstone County, dismissing her petition for custody of her
grandchildren, J.D.B and J.R.B. The children’s mother, E.B. (Mother) cross-appeals
from an order entered in the same case granting Grandmother court-ordered contact with
J.D.B and J.R.B. Mother also appeals from the District Court’s order denying her motion
to require Grandmother to pay Mother’s attorney fees. We affirm.
¶3 The issue concerning the lives of J.D.B and J.R.B., who are the subjects of this
unfortunate battle, is whether the District Court erred in dismissing Grandmother’s
petition for custody of the children, and instead ordered that Grandmother may have
limited contact with them without following some recommendations of a therapist
retained by Mother.
¶4 Grandmother’s son, D.B., and Mother were married and had J.D.B. and J.R.B., the
two children who are the subjects of this case. During the marriage, Grandmother took
care of the children on a regular basis. In November 2006, while D.B. and Mother were
engaged in a difficult divorce proceeding, D.B. was killed in a work-related accident.
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After the death of D.B., the Montana Department of Public Health and Human Services
(DPHHS) petitioned for and was granted temporary investigative authority over the
children because Mother had health problems that made it difficult for her to be an
adequate parent. Pursuant to this authority, DPHHS placed J.D.B. and J.R.B. with
Grandmother. DPHHS sought to have J.D.B. and J.R.B. adjudicated as youths in need of
care. However, before the District Court entered an order that the children were
dependant or neglected, DPHHS moved to dismiss the petition. The dependant and
neglect action was dismissed and the children were placed in Mother’s care.
¶5 On January 2, 2008, Grandmother filed a “Petition for Parenting Plan; For
Establishment of Parental Interest” pursuant to Title 40, chapter 4, MCA (2007). In her
petition, Grandmother averred that Mother was, at that time, the subject of a Title 41
action alleging the children were neglected or dependant. Grandmother claimed that she
had established a child-parent relationship with the children and that Mother had engaged
in conduct that was contrary to the child-parent relationship. Grandmother asked that the
Court designate her as the primary residential custodian of the children and that Mother
have reasonable visitation and pay child support.
¶6 Mother filed a motion to dismiss Grandmother’s parenting action. Mother
correctly cited § 40-4-228, MCA (2007), for the proposition that Grandmother had no
standing to file a petition for custody because Grandmother had acknowledged in her
petition that a Title 41 proceeding was pending.
¶7 Grandmother then filed an amended petition in which she again prayed for
primary custody of the children, but added an alternative request for court-ordered
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visitation with the children. Grandmother abandoned her request for child support and
also averred that the dependant and neglect action under Title 41 had been dismissed after
she had filed her original petition.
¶8 Mother filed a response in which she argued that Grandmother’s request for
grandparent-grandchild contact must be dismissed because she had failed to comply with
the requirements of Title 40, chapter 9, MCA (2007).
¶9 Grandmother and Mother appeared on April 30, 2008, for an evidentiary hearing.
After an off-the-record conference in chambers, the District Court entered an order from
the bench granting Mother’s motion to dismiss Grandmother’s petition for custody. The
court stated that it would then proceed to hear Grandmother’s petition for grandparent
visitation under Title 40, chapter 9, MCA (2007).
¶10 The District Court heard testimony from numerous parties over the course of
several days. The children’s former therapist, Dr. Jackson, testified about the children’s
relationship with Grandmother. The thrust of Dr. Jackson’s testimony was that the
children should have contact with Grandmother. However, Dr. Roche, who was the
children’s and Mother’s therapist, testified about her ongoing work with the children and
recommended that Grandmother not have visits with J.D.B. and J.R.B. until after she had
submitted to a psychological evaluation, participated in counseling, and completed
parenting classes.
¶11 Grandmother testified that she had no desire to parent the children and that she had
never been interested in parenting J.D.B. and J.R.B. because she had already raised her
own family. She said that her goal was to arrange visitation with her grandchildren.
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¶12 For her part, Mother testified concerning her health issues, her relationship with
her children before D.B.’s death, and her current relationship with her children. She
testified that she would allow Grandmother to have contact with J.D.B. and J.R.B. if
Grandmother first complied with Dr. Roche’s recommendations.
¶13 On September 4, 2008, the District Court issued an order granting Grandmother
unspecified and limited contact with J.D.B. and J.R.B. The District Court found that
Mother was not opposed to contact between the children and Grandmother, and that she
only sought to impose preconditions to such contact. Specifically, the District Court
found that Dr. Roche’s recommendations that Grandmother be required to submit to
psychological evaluation, counseling, and parenting classes were not warranted. The
court also found that the evidence is clear and convincing that the children’s best interests
will be served by normal and usual contact with Grandmother.
¶14 The District Court ordered that Grandmother must accept that she is a grandparent
and not a parent, must respect and support all of Mother’s parental decisions, must have
Mother’s permission before making any gifts to the children and before even mentioning
gifts to the children, that all rules and child-rearing practices are the province of Mother,
and that her parenting decisions must be observed by Grandmother in all respects.
¶15 The court subsequently imposed a sanction under M. R. Civ. P. 11 and ordered
Grandmother to pay Mother’s attorney fees. However, on November 20, 2008, the
District Court reconsidered, concluded that Grandmother’s actions in this case did not
constitute harassment, delay, dilatory, or abusive tactics, and ordered that Grandmother
did not have to pay Mother’s attorney fees.
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¶16 Grandmother appeals from the District Court’s order dismissing her petition for
third-party custody. Mother cross-appeals from the court’s orders granting grandparent-
grandchild contact and denying her motion for an award of attorney fees.
¶17 The District Court is in the best position to hear testimony and evaluate evidence.
This Court will not reverse a district court’s findings of fact unless if they are supported
by the evidence and are not clearly erroneous. See Matter of Adoption of Doe, 277 Mont.
251, 255, 921 P.2d 875, 878 (1996).
¶18 In support of her position on appeal, Grandmother engages in an extensive
analysis of the validity of Montana’s third-party custody statutes, compares Montana’s
statutes to those enacted in other jurisdictions, and concludes that the statutes
appropriately balance the fundamental constitutional rights of parents and children under
Montana law.
¶19 However, Grandmother’s counsel asked Grandmother during her testimony
whether she was interested in parenting J.D.B. and J.R.B., and Grandmother replied that
she was not. When asked whether she had ever been interested in serving as their parent,
Grandmother replied, “No, actually, I have never been interested in being a parent again.
I raised my family.” Grandmother testified that her goal in the lawsuit was simply to
arrange visitation. In view of her testimony, there can be no doubt that Grandmother
elected to abandon her claim for custody of J.D.B. and J.R.B., and the District Court did
not err by dismissing it.
¶20 For her part, Mother complains on appeal that the District Court erred in ordering
that Grandmother have limited contact with J.D.B. and J.R.B. because the title of the
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petition was wrong, Grandmother did not give DPHHS notice of the petition, and Mother
did not have adequate notice of Grandmother’s prayer for contact as opposed to custody.
And, Mother claims that the District Court failed to make the necessary findings to award
grandparent-grandchild conduct under § 40-9-102, MCA (2007).
¶21 Mother ignores, however, that she testified that she is not opposed to contact
between Grandmother and J.D.B. and J.R.B. Mother does not disagree with the District
Court that it is in the children’s best interest to have contact with their Grandmother. Nor
does Mother disagree with the conditions that the District Court’s order places on such
contact. All that Mother appeals is that Grandmother is not required to submit to
psychological evaluation, to undergo counseling, and to complete parenting classes
before she sees the children.
¶22 In this regard, the District Court carefully considered and rejected the
recommendations of Dr. Roche. In particular, the court noted that the children had been
placed with Grandmother by DPHHS, and the court found as a matter of fact that based
on the evidence it was unnecessary for Grandmother to submit to psychological
evaluation, counseling, and parenting classes. The evidence supports this finding and it is
not clearly erroneous.
¶23 In this instance, Mother is a fit parent. Thus, in order for Grandmother to have
contact with the children over Mother’s objection, Grandmother must prove by clear and
convincing evidence that it is in the children’s best interest to have contact with her, and
that the presumption in favor of the parent’s wishes has been rebutted. Polasek v.
Omura, 2006 MT 103, ¶ 15, 332 Mont. 157, 136 P.3d 519 (citing Evans v. McTaggart,
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88 P.3d 1078 (Alaska 2004)). Grandmother has carried her burden of proof as the
District Court found by clear and convincing evidence that it is in the children’s best
interest to have contact with their Grandmother. And, after hearing the basis of Mother’s
objection, the District Court found that Mother’s demands are not warranted. Thus, the
presumption in favor of Mother’s wishes has been overcome. Upon review of the record,
considering that J.D.B. and J.R.B. have established a significant relationship with
Grandmother, that Mother does not wish to deny Grandmother all contact with the
children, that the basis of Mother’s objection is unfounded, and that the District Court has
ordered that Mother will remain in control of all parenting decisions, we conclude that
the District Court did not err in issuing its order granting Grandmother limited contact.
¶24 On appeal, Mother seeks a reversal of the District Court’s order that Grandmother
is not required to pay Mother’s attorney fees. Mother filed a motion for an award of
attorney fees. In September 2008, the District Court ordered Grandmother to pay
Mother’s attorney fees because Grandmother had filed her original petition before the
Title 41 action by DPHHS had been terminated. After noting that Grandmother had filed
her petition seeking third-party custody of J.D.B. and J.R.B. twenty-two days before she
was allowed to do so under Title 40, the District Court found that the Title 41 case was
“mostly decided” by the time Grandmother had filed her petition. The District Court thus
concluded that Grandmother’s premature filing was not the harassment, delay, dilatory,
or abusive tactics that M. R. Civ. P. 11 is meant to punish and deter, and thus vacated its
earlier order.
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¶25 We review de novo a district court’s determination that a party has violated
M. R. Civ. P. 11. We review a district court’s findings of fact underlying that conclusion
to determine if such findings are clearly erroneous. Byrum v. Andren, 2007 MT 107,
¶ 19, 337 Mont. 167, 159 P.3d 1062.
¶26 Considering the problems experienced by Mother in parenting J.D.B. and J.R.B.,
Grandmother’s participation in their upbringing, and the course of this case that raises the
suspicion that it is as much the attorneys as the parties that have prolonged its resolution,
we will not reverse the District Court’s decision on M. R. Civ. P. 11 sanctions.1
¶27 We conclude that the District Court did not err by dismissing Grandmother’s
petition for third-party custody of J.D.B. and J.R.B. We conclude that the District Court
did not err in entering its order that Grandmother may have limited contact with J.D.B.
and J.R.B. under the conditions stated therein. The District Court did not err in denying
Mother’s M. R. Civ. P. 11 motion for attorney fees.
¶28 Affirmed.
/S/ JOHN WARNER
We concur:
/S/ MIKE McGRATH
1
Mother testified that she had spent almost $200,000 in attorney fees. While no exact amount
was introduced into evidence, the amount of attorney fees seems, to say the least, large.
Considering the positions of Mother and Grandmother, that the children should be raised by
Mother and have limited contact with Grandmother, which is what the District Court ordered,
this amount seems especially large.
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/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
Justice James C. Nelson concurs and dissents.
¶29 On appeal, J.M.B., the grandmother of the two minor children, among other
insignificant questions, raises the issue of whether the District Court erred in dismissing
her Title 40 custody claim. I concur in our decision to affirm the trial court on this issue
and on J.M.B.’s other issues. That said, I do not agree on the Court’s decision as to the
cross-appeal issues. I now address those.
¶30 E.B., the mother of the two minor children, raises three issues by way of a
cross-appeal: (1) whether J.M.B. had standing to file a third-party custody petition; (2)
whether the District Court properly entered an order for grandparent-grandchild contact;
and (3) whether the District Court’s recission of its previous award of attorney’s fees was
clear error. I would reverse on each of these issues. Since this Opinion is not being
published and will not serve as precedent, I will only summarize my reasons for reversing
the cross-appeal issues.
¶31 As to the first cross-appeal issue, standing is determined at the time an action is
brought. Nova Health Systems v. Gandy, 416 F.3d 1149, 1154-55 (10th Cir. 2005);
Becker v. Federal Election Com’n, 230 F.3d 381, 386 n. 3 (1st Cir. 2000), cert. denied,
Nader v. Federal Election Com’n, 532 U.S. 1007, 121 S. Ct. 1733 (2001). At the time
J.M.B. filed her action under Title 40, chapter 4, MCA, § 40-4-228(1), MCA, specifically
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precluded her custody action because of the on-going youth-in-need-of-care proceeding
under Title 41, chapter 3, MCA. J.M.B. had no standing to file a custody action, and her
petition was, therefore, properly dismissed.
¶32 Moreover, during the evidentiary hearing, J.M.B. admitted that she was not
seeking parentage—i.e., custody—rights. Thus, J.M.B. mooted the very claim she now
raises on appeal.
¶33 Finally, once dismissed for lack of standing, J.M.B.’s petition could not be extant
and could not, somehow, morph into a grandparent-contact action under Title 40,
chapter 9, MCA. Therefore, the trial court erred in entering an order for grandparent-
grandchild contact. J.M.B. never actually filed a Title 40, chapter 9, MCA, grandparent-
contact action; rather, she and the trial court simply morphed her custody action
(assuming, arguendo, it was extant at all) into a contact action. As E.B. correctly points
out, J.M.B. never complied with the procedural requirements of a Title 40, chapter 9,
MCA, action. We have rejected the sort of approach used by J.M.B. here—i.e., trying to
accomplish grandparent contact governed by Title 40, chapter 9, MCA, via some other
statutory scheme. See Stewart v. Evans, 2006 MT 102, ¶¶ 12-13, 16-18, 332 Mont. 148,
136 P.3d 524. As E.B. argues, the District Court granted J.M.B. relief beyond that
requested in her pleadings—and relief to which she was not entitled, in any event.
¶34 As to the second cross-appeal issue, E.B. argues that J.M.B. is not entitled to
grandparent contact on the facts here. The trial court made no statutorily-required
findings, on the basis of clear and convincing evidence, that grandparent contact was in
the best interests of the children or that the presumption in favor of E.B.’s wishes was
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rebutted. See § 40-9-102(5), MCA. Indeed, the court here reversed the presumption.
The evidence before the court supports E.B. E.B. was not unilaterally opposed to
contact, but only contact after J.M.B. had complied with Dr. Brenda Roche’s
recommendations that J.M.B. submit to a psychological evaluation, participate in
counseling and complete parenting classes. E.B. was a fit parent, and J.M.B. was not
entitled to have contact with the children as a matter of right, but only after complying
with the statutory scheme under § 40-9-102, MCA.
¶35 The evidence before the court showed that J.M.B. was antagonistic to E.B., had
issues with her, and that she tried to turn the children against their mother and tried to buy
the children’s loyalty with expensive gifts. The burden was on J.M.B. to prove
grandparent contact would be beneficial to the children; it was not E.B.’s burden to prove
it would not be. Section 40-9-102, MCA. The court’s interpretation of the contact
statutes sweeps with too broad a brush and is patently in error.
¶36 Finally, as to the third cross-appeal issue, the matter of attorney’s fees, I would
reverse and order the trial court to impose M. R. Civ. P. 11 sanctions. At all times
pertinent here, J.M.B. was a practicing attorney. She signed her Title 40, chapter 4,
MCA, custody petition in blatant violation of the fact that there was an on-going youth-
in-need-of-care proceeding—which she herself prompted in the first place and then
promoted. See § 40-4-228(1), MCA. J.M.B. then, on appeal, sought to overturn the trial
court’s custody determination, notwithstanding that she had mooted her own custody
argument during the evidentiary hearing—claiming that she never really wanted custody,
but only visitation. Finally, J.M.B. never did file a Title 40, chapter 9, MCA,
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grandparent-contact petition, yet she put E.B. to the expense of fighting that in court as
well.
¶37 The Court refuses to reverse the District Court’s decision on M. R. Civ. P. 11
sanctions, partly on the basis that this case “raises the suspicion that it is as much the
attorneys as the parties that have prolonged its resolution,” Opinion, ¶ 26, and that the
amount of attorney’s fees referred to by E.B. “seems, to say the least, large,” Opinion,
¶ 26 n. 1. The amount of attorney’s fees claimed should play no part in whether
sanctions should or should not be awarded. A determination on the actual amount of
attorney’s fees to be imposed as a sanction is more properly determined at an evidentiary
hearing on remand.
¶38 It is obvious that J.M.B. was using her status as a practicing attorney to bully E.B.,
to run up E.B.’s costs and expenses, and to put E.B. to the expense of having to hire an
attorney to defend her parental rights—when as it turned out, and despite her pleadings to
the contrary, all that J.M.B. wanted was grandparent contact. J.M.B. should be punished
for her conduct by being required to pay all of E.B.’s attorney’s fees, costs and expenses
of the proceedings in the trial court and here on appeal. Moreover, and aside from M. R.
Civ. P. 11, I would sanction J.M.B. under M. R. App. P. 19(5) for filing a frivolous and
vexatious appeal—one for which there were no substantial grounds.
¶39 I do not agree with the “no harm—no foul” approach which the trial court and this
Court take in this matter. While this approach achieves a feel-good result for the
majority, it completely ignores and completely mangles the pertinent statutory schemes at
issue—all to the detriment and prejudice of E.B.
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¶40 On that basis I concur and dissent.
/S/ JAMES C. NELSON
Justice Patricia O. Cotter joins in the Concurrence and Dissent of Justice James C.
Nelson.
/S/ PATRICIA O. COTTER
Justice Jim Rice, concurring in part and dissenting in part.
¶41 On Grandmother’s appeal, I concur with the Court’s determination to affirm on
the ground that Grandmother abandoned her claim for a parental interest of the children.
¶42 On Mother’s cross appeal, I dissent from the Court’s decision to affirm the District
Court. As mentioned by Justice Nelson’s concurring opinion, the District Court failed to
determine whether the presumption in favor of Mother’s contrary wishes as a fit parent—
including her pre-conditions for such visitation—had been rebutted in accordance with
Polasek v. Omura, 2006 MT 103, 332 Mont. 157, 136 P.3d 519, and the subsequent
legislative codification of that decision. Therefore, I would reverse the grandparent
contact order.
¶43 I further agree with Justice Nelson’s dissent regarding the imposition of attorney
fees and would likewise reverse that determination.
/S/ JIM RICE
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