June 25 2009
DA 08-0114
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 219N
IN RE THE MARRIAGE OF
E.D.,
Petitioner and Appellant,
and
R.D.,
Respondent and Appellee.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DR 04-393
Honorable John W. Larson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Monte Jewell, Attorney at Law; Missoula, Montana
For Appellee:
Quentin M. Rhoades, Sillivan, Tabaracci & Rhoades, PC;
Missoula, Montana
Submitted on Briefs: January 7, 2009
Decided: June 25, 2009
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Pursuant to Section 1, Paragraph 3(d), 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 E.D. appeals from orders of the Fourth Judicial District Court, Missoula County,
adopting the recommendations of the Guardian Ad Litem (GAL), retaining the GAL over
E.D.’s objection, and maintaining a “dollar for dollar” travel credit against R.D.’s child
support obligation. It is manifest on the record before us that the District Court did not
err in its disposition of this matter. We therefore affirm.
¶3 E.D. and R.D. separated in May, 2004. The parties have two minor children. At a
settlement conference in October, 2007, the parties stipulated to an interim parenting plan
and child support payment. The agreement reserved resolution of a final parenting plan
until the parties obtained the report of the GAL. The GAL made recommendations which
continued to allow R.D. to have unsupervised parenting contact, but gave E.D. primary
residential custody. The parties were also ordered to complete a parenting evaluation
with Dr. Silverman. Dr. Silverman recommended restricted parenting time for R.D.,
which did not include overnight stays. After the evaluation, the GAL requested, and the
court “approved and ordered” the recommendations of Dr. Silverman. R.D. timely
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objected, and the court scheduled a hearing. The day before the hearing, the GAL filed
an additional report and recommendations for the parenting plan which varied from Dr.
Silverman’s recommendations by suggesting alternating unsupervised weekend contact
between R.D. and the children. E.D. objected to the additional recommendations.
¶4 On June 21, 2006, the District Court held a hearing in which it took testimony
from both parties, an expert on domestic violence, Dr. Silverman, and R.D.’s therapist,
among others. The court ordered that the GAL’s recommendations be implemented as an
interim parenting plan, and ordered that the GAL would “guide the parents with regard to
a specific schedule to be implemented in the remainder of the summer and next school
year.” This interim parenting plan operated for the next fifteen months, until the Court
entered the final decree.
¶5 During this time, E.D. moved to vacate the order as an improper delegation of
authority to the GAL, which the court denied. Also during this time, the GAL notified
the court that R.D. would be relocating to Tennessee, and the court ordered that he would
receive a “dollar for dollar” credit to his child support obligation for his travel from
Tennessee to Montana, or to facilitate the children’s travel. Also during the time the
interim parenting plan was operating, continuing disagreements regarding the nature and
amount of contact R.D. was to have with the children arose between the parties, the GAL,
and the various therapists working with the parties. Essentially, E.D. objected to R.D.
having unsupervised contact with the children due to his history of domestic violence and
mental illness. Ultimately, the court adopted the residential schedule recommended by
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the GAL over E.D.’s objection, and contrary to the recommendations of Dr. Silverman.
E.D. appeals various aspects of the parenting plan.
¶6 We review the District Court’s findings related to the parenting plan to determine
if they are clearly erroneous. See Jacobsen v. Thomas, 2004 MT 273, ¶ 10, 323 Mont.
183, 100 P.3d 106. E.D. argues that the District Court erred in adopting the GAL’s
recommendation that R.D.’s parenting time should be unsupervised, because the GAL’s
recommendation was contradictory to Dr. Silverman’s. We disagree. The District Court
ordered that R.D. have unsupervised parenting time only after hearing testimony from the
GAL, R.D.’s therapist, the children’s therapist, a domestic violence expert, R.D.’s adult
stepson, and after considering Dr. Silverman’s report. The court’s order reflects that after
considering testimony and evidence, it found that it was in the best interests of the
children to have unsupervised contact with their father. The court properly exercised its
discretion in this regard, and its determination was not clearly erroneous.
¶7 E.D. next asserts the District Court improperly delegated authority to the GAL,
and erred in denying her motion to have the GAL removed for bias. While the court
ultimately adopted the GAL’s recommendations, this fact alone does not indicate that it
delegated its authority to the GAL. The record indicates that the court considered both
the recommendations of the GAL and testimony and evidence presented by E.D.
contradicting the GAL’s recommendations, yet decided that unsupervised parenting was
in the best interests of the children. This was a proper exercise of the District Court’s
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discretion. Furthermore, the GAL’s recommendations regarding unsupervised parenting
contact were made within the scope of her statutory duties. See § 40-4-205(2), MCA.
¶8 Nor did the court err in not removing the GAL after E.D. alleged the GAL was
biased. E.D. references several examples which may or may not indicate bias, but
nothing so conclusive as to compel the District Court to remove the GAL. The District
Court was in the best position to evaluate E.D.’s claims of bias, and it determined they
were without merit. Ultimately, the GAL is charged with representing the best interests
of the children. See In re Custody of Krause, 2001 MT 37, ¶ 13, 304 Mont. 202, 19 P.3d
811. None of the allegations made by E.D. indicate the GAL was not acting in the best
interests of the children, nor do they establish sufficient evidence of bias indicating the
District Court abused its discretion in not removing the GAL.
¶9 Finally, E.D. argues the District Court erred in adopting a dollar for dollar credit
against R.D.’s child support obligation for his parenting-related travel between Tennessee
and Montana. She asserts that where the court varies from the Montana Child Support
Guidelines, (which do not provide for a dollar for dollar credit), that it must do so only
after clear and convincing evidence of the reasons for a variance is established. The
District Court did not abuse its discretion by finding that the variance was appropriate in
this case. R.D. presented evidence of financial hardship occurring as a result of his
relocating to Tennessee, and from his impaired work potential resulting from a heart
condition.
¶10 Affirmed.
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/S/ W. WILLIAM LEAPHART
We concur:
/S/ MIKE McGRATH
/S/ JOHN WARNER
/S/ PATRICIA COTTER
/S/ JIM RICE
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