09/19/2017
DA 17-0112
Case Number: DA 17-0112
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 231N
IN RE THE MARRIAGE OF:
SHANNON R. PATTERSON,
Petitioner and Appellee,
and
JOSH T. PATTERSON,
Petitioner and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DR 10-368
Honorable Edward P. McLean, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Josh T. Patterson, self-represented, Missoula, Montana
For Appellee:
Richard A. Reep, Reep, Bell, Laird & Jasper, P.C., Missoula, Montana
Submitted on Briefs: August 23, 2017
Decided: September 19, 2017
Filed:
__________________________________________
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 non-citable cases published in the Pacific Reporter and Montana
Reports.
¶2 This appeal arises out of a marriage dissolution proceeding in which a decree was
entered in the Fourth Judicial District Court, Missoula County, on June 1, 2010, dissolving
the marriage of Josh Patterson and Shannon Patterson, n/k/a Shannon Hayden. The
proceedings have been extensive since then, as reflected by the over 350 entries in the
District Court docket. The appellate history has been similarly complicated, including the
dismissal by this Court of three attempted appeals by Josh, proceeding pro se, prior to the
entry of an appropriate final judgment.
¶3 Josh’s central challenges on appeal are to the parenting order that placed the parties’
child, C.P., in the sole care and control of Shannon, and to the District Court’s award of
attorney fees. These issues were primarily determined in the District Court’s order of
July 14, 2016, which also placed the custody of the parties’ other child, W.P., with Josh.
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Josh’s arguments incorporate objections to parts of other orders as well, but these are the
primary issues raised.1
¶4 The District Court found that the effect of the numerous filings by Josh “was to
multiply these proceedings dramatically and to prolong final resolution of outstanding
issues,” even though “[t]he record is replete with warnings and admonitions against
Josh . . .” by the District Court. “Despite this, Josh persisted in failing to respond to
discovery, in filing inappropriate pleadings, and otherwise multiplying these proceedings
in a manner which was clearly not in the best interest of the children.” The District Court
found that “Josh repeatedly resisted the children’s counselor and the GAL’s
recommendations creating litigation which resulted in numerous orders from this Court.
Josh failed to comply with the terms of the Decree resulting in unnecessary litigation and
orders to compel.”2 The District Court explained that a basis for Shannon’s request for
attorney fees was Josh’s “unnecessary duplication and multiplication of these
proceedings.”
1
Josh summarizes his challenge to the orders regarding attorney’s fees entered by the District
Court as follows: “On January 18, 2017, based on the erroneous July 14, 2016 Findings of Fact,
Conclusion of Law and Order, perpetuating historic erroneous Findings of Fact beginning with the
August 19, 2015 Findings of Fact, the District Court ordered Josh to pay another $5,197.08 in
attorney’s fees, in addition to the thousands of dollars in attorney’s fees previously awarded
Shannon.” Thus, we reference findings entered by the District Court in these various orders to
address the issues raised on appeal.
2
In contrast, the District Court stated in its findings that “[t]his Court notes that Shannon has
followed virtually every recommendation issued by this Court, participating counselors and the
Guardian ad litem.”
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¶5 Regarding Josh’s approach to parenting the children, the District Court found that:
Josh has continued to involve both WP and CP in this dispute by discussing
financial matters, visitation schedules, and all manner of adult issues. He has
been warned to cease such discussions but, by all appearances, neither he nor
his family [have] discontinued this campaign against Shannon . . . . This
Court finds that Josh has embarked on a significant campaign to alienate the
children from their mother, Shannon. Through his continued criticism,
slander, and disparagement of Shannon, he has encouraged both WP and CP
to disrespect their mother and officers of the legal system and [has] alienated
Shannon from the children’s love and affection and [has] alienated the
children from Shannon’s love and affection.
The District Court thus concluded that “[b]ecause this Court has found that significant
parental alienation has occurred, CP’s custodial status with Shannon shall be as a sole
custodian.”3
¶6 The record further demonstrates that Josh’s attacks have included the use of social
media, where the parties’ two minor children can not only view the content, but can
participate by liking and commenting. Josh has complained about the handling of the case,
called Shannon derogatory names and even posted sexually explicit photos of Shannon—
all of which the children could see. Josh called Shannon derogatory names in text messages
to his children and supported the children’s use of derogatory names for Shannon on social
media. Josh has taken extreme action in the case, including suing the Guardian Ad Litem,
attempting to introduce an adult video of Shannon into evidence, and attempting to
introduce other evidence of alleged past sexual misconduct by Shannon. Josh’s actions are
in clear violation of the parenting plan and against the best interest of the children. Josh
3
Although the District Court referred to Shannon as “sole custodian,” the order nonetheless
allowed Josh to exercise parenting time with C.P.
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commonly alleges judicial corruption as the reason for the rulings against him, which we
completely reject for lack of factual basis.
¶7 “A finding of fact is clearly erroneous if it is not supported by substantial evidence,
if the court misapprehended the effect of the evidence or if, upon reviewing the record, this
Court is left with the definite and firm conviction that the district court made a mistake.”
In re S.T., 2008 MT 19, ¶ 8, 341 Mont. 176, 176 P.3d 1054 (citation omitted). The appellant
has “the duty to present the supreme court with a record sufficient to enable it to rule upon
the issues raised. Failure to present the court with a sufficient record on appeal may result
in . . . affirmance of the district court on the basis the appellant has presented an insufficient
record.” M. R. App. P. 8(2).
¶8 Josh argues that several of the District Court’s recent orders awarding attorney’s
fees are based on erroneous findings of fact. However, Josh provides few citations to the
record demonstrating these findings are erroneous. Josh quibbles over the language used
by the District Court and details of the complex and lengthy litigation. Josh has not met
his burden to demonstrate the District Court’s finding of fact was erroneous. We affirm
the District Court’s determination that the award of attorney’s fees is supported by the
record, given Josh’s own egregious conduct, the terms of the parenting plan and marital
settlement which allows for attorney’s fees, and § 37-61-421, MCA, which allows a litigant
to be held responsible for attorney’s fees when he unreasonably and vexatiously multiplies
the proceedings.
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¶9 Josh also argues that the District Court violated his free speech rights by punishing
him for his social media posts, and by curtailing future posts. A state “may sometimes
curtail speech [ . . . ] when necessary to advance a significant and legitimate state interest.”
State v. Lance, 222 Mont. 92, 103, 721 P.2d 1258, 1266 (1986) (quoting City Council v.
Taxpayers for Vincent, 466 U.S. 789, 804, 104 S. Ct. 2118, 2128 (1984)). Here, there is a
compelling interest in protecting the minor children from being exposed to the adult matters
involved in this litigation, especially Josh’s continual denigration of the children’s mother.
Further, the curtailment is sufficiently narrow, as Josh is only prohibited from speaking
where his children are exposed to his speech. Therefore, Josh’s free speech rights have not
been violated.
¶10 Finally, Josh argues that his constitutional right to parent has been infringed by
awarding Shannon full custody of their younger child, C.P. Custody of a child may be
terminated, but the district court must carefully follow the procedures set forth by the
legislature for doing so. Fischer v. Fischer, 2007 MT 101, ¶ 24, 337 Mont. 122, 157 P.3d
682. Josh does not contend that the District Court failed to follow the procedures set forth
by the legislature, nor does he challenge these procedures. Thus, he has not properly raised
a constitutional challenge. We note that Josh’s rights as a parent have been significantly
limited because his own conduct is against the best interest of the children.
¶11 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 or by the clear application of
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applicable standards of review. Having reviewed the briefs and limited record on appeal,
we conclude that the District Court’s findings of fact are not clearly erroneous, the
conclusions of law are correct, and there has been no abuse of discretion.
¶12 Affirmed.
/S/ JIM RICE
We concur:
/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR
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