Gray v. & (In re Parenting D.C.N.H.)

400 Mont. 59

463 P.3d 445

2020 MT 119

IN RE the Parenting of D.C.N.H., A minor child.

Avalon Dawn Gray, f/k/a Avalon Dawn Douglas, Petitioner and Appellee,

and

Bailey Joseph Hanson, Respondent and Appellant.

DA 19-0225

Supreme Court of Montana.

Submitted on Briefs: March 26, 2020

Decided: May 12, 2020

For Appellant: Marybeth M. Sampsel, Measure Law, P.C., Kalispell, Montana, David F. Stufft, Attorney at Law, Kalispell, Montana

For Appellee: Avalon Dawn Gray, Self-Represented, Cut Bank, Montana

Justice Beth Baker delivered the Opinion of the Court.

¶1 Bailey Joseph Hanson appeals the Ninth Judicial District Court's order adopting in full a Standing Master's Findings of Fact, Conclusions of Law and Order Amending the Parenting Plan to direct a fifty-fifty division of parenting time with Avalon Dawn Gray for the parties’ seven-year-old child. We restate the issues on appeal:

1. Did the District Court err by making findings of fact that were not supported by the evidence presented and by failing to make findings of fact that were sufficiently comprehensive?

2. Did the District Court err by ordering a parenting plan that was arbitrary and exceeded the bounds of reason given the evidence presented?

3. Did the District Court err by impermissibly expanding the Standing Master's judicial authority?

4. Did the District Court err by making an untimely referral to the Standing Master?

We find no abuse of discretion by the District Court and no clear error in the Standing Master's findings. We decline to address Issues 3 and 4 because Bailey failed to preserve those arguments. Accordingly, we affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶2 D.C.N.H. was born in September 2012. On Avalon's petition, the District Court adopted a permanent parenting plan in September 2014, granting Avalon primary residential custody and Bailey approximately eight days of parenting time per month. Bailey appealed, and we affirmed. See Douglas v. Hanson (In re D.C.N.H.) , No. DA 14-0624, 2016 MT 24N, 2016 WL 328101, 2016 Mont. LEXIS 24.

¶3 In December 2017, Bailey filed a motion to amend the parenting plan. He claimed that Avalon was engaging in parental alienation and other behaviors not in D.C.N.H.’s best interests. Bailey asked the District Court to grant him primary custody, with limited supervised visitation for Avalon. On May 31, 2018, the District Court issued an order setting a mid-July hearing on the motion to amend. On June 28, the court issued an order referring the matter to the District Standing Master. Standing Master Mark Westveer conducted a two-day non-jury trial on July 16 and 17. Bailey was represented by counsel. Avalon represented herself.

¶4 The Standing Master heard testimony from multiple witnesses—most called by Bailey—including Jerri Swenson, D.C.N.H.’s licensed clinical professional counselor; Dr. Michael Bütz, a clinical psychologist with expertise in Parental Alienation Syndrome ("PAS"); Bailey; Avalon; and other family members. The court also entered numerous exhibits into evidence—again, most offered by Bailey—including affidavits from Swenson and family members; scientific articles on PAS; a report by Dr. Sara Boilen, Psy.D, summarizing her psycho-social-emotional evaluation of D.C.N.H.; voluminous text message records between Avalon and Bailey; medical and school records; and video and photographic evidence. Bailey sought to establish that Avalon was engaging in behavior inconsistent with D.C.N.H.’s best interests, such as showing him horror movies and alienating him from Bailey, and urged the court to reduce her parenting time to one hour of supervised visitation per week.

¶5 On September 28, Standing Master Westveer entered findings of fact, conclusions of law, and a recommended order amending the parenting plan. Based on the evidence presented, the Standing Master found that D.C.N.H. struggles in school and is socially immature and physically aggressive and that Avalon and Bailey "are in high conflict with regard to the parenting of their child and each other." He noted that although Avalon's "conduct is consistent with the early stages of alienation[,]" the alienation was "mild" and that excluding Avalon from "[p]arenting D.H. except in a supervised setting is not appropriate." The Standing Master concluded that amending the parenting plan was necessary and ordered Bailey and Avalon to "parent D.H. on a week on week off basis."

¶6 Bailey filed numerous objections. At his request, the District Court scheduled a hearing to review the Standing Master's findings. On March 19, 2019, the court issued its Order Affirming Findings of Fact, Conclusions of Law, and Order Amending Parenting Plan. Bailey appeals.

STANDARDS OF REVIEW

¶7 In a case involving both a standing master and the district court, we review a district court's decision de novo to determine whether it applied the correct standard of review to a standing master's findings of fact and conclusions of law. In re the Marriage of Davis , 2016 MT 52, ¶ 4, 382 Mont. 378, 367 P.3d 400. A district court reviews a standing master's findings of fact for clear error and his conclusions of law for correctness. Davis , ¶ 4 (citation omitted). "In a case tried before a standing master, we apply the same standard of review to an adopted master's findings as we do to a district court's." Northcutt v. McLaughlin (In re G.M.N.) , 2019 MT 18, ¶ 10, 394 Mont. 112, 433 P.3d 715 (citing Patton v. Patton , 2015 MT 7, ¶ 17, 378 Mont. 22, 340 P.3d 1242 ). This Court reviews for clear error the underlying findings in support of a district court's decision regarding modification of a parenting plan. In re G.M.N. , ¶ 10 (citation omitted). We review conclusions of law for correctness. In re G.M.N. , ¶ 10.

¶8 "A district court has broad discretion when considering the parenting of a child, and we must presume the court carefully considered the evidence and made the correct decision." In re G.M.N. , ¶ 11 (citation omitted). This Court does not reweigh conflicting evidence or substitute its judgment for that of the district court; rather, we evaluate findings of fact to determine "whether they are sufficiently comprehensive and pertinent to the issues to provide a basis for decision, and whether they are supported by the evidence presented." In re G.M.N. , ¶ 11 (citations omitted). Absent clear error, we review a district court's decision regarding a parenting plan for an abuse of discretion. In re G.M.N. , ¶ 11.

DISCUSSION

¶9 1. Did the District Court err by making findings of fact that were not supported by the evidence presented and by failing to make findings of fact that were sufficiently comprehensive?

¶10 Bailey challenges the findings of fact made by the Standing Master and affirmed by the District Court. He argues that Findings 24, 28, and 38 are unsupported by or "categorically contradict" the evidence presented and that the "remaining findings were not sufficiently comprehensive, as required by caselaw."

¶11 Bailey specifically challenges the Standing Master's finding that one of his expert witnesses, Jerri Swenson, did not have expertise regarding PAS. Finding 28 provides:

Ms. Jerri Swenson testified. She is a family counselor from Whitefish Montana who has a Masters’ Degree in counseling [and] has been counseling D.H. since early December 2017.... There are 7 office notes introduced as exhibits. [Swenson] had met with the child 12 times prior to the hearing. There are no notes for 5 counseling sessions in the Court file. There is no mention of PAS in her office notes. There is nothing in her notes or testimony indicating [D.H.] is unwilling to spend time with Father except for the finding in FOF #29 below. Ms. Swenson believes the PAS is severe based upon what she has learned from Father and his attorney, Dr. Boilen's report and conversations with Dr. Bütz. Ms. Swenson did not profess to have expertise regarding PAS.

¶12 Bailey argues the Standing Master's finding is unsupported by the evidence because the Standing Master qualified Ms. Swenson as an expert in family therapy and then noted from the bench that family therapy "is subsumed within the parental alienation sphere[.]" We disagree. Swenson's testimony established that she was an expert in family therapy; that she had encountered cases of PAS in her career as a family therapist; and that in her opinion, PAS was present to a severe degree in D.C.N.H. She did not profess expertise in PAS. That role was reserved for Dr. Bütz—a licensed clinical forensic and neuro-psychologist of nearly thirty years—who testified that he has studied PAS since 2008 and published multiple peer-reviewed articles on the subject. The sentence in Finding 28 with which Bailey takes issue is just one portion of the finding. The Standing Master did not ignore Swenson's opinion; he found separately that Avalon had exhibited poor parental judgment, including showing D.C.N.H. horror movies unsuited to a child of his age, and stated that her conduct was "consistent with the early stages of alienation." But after weighing Swenson's opinion against the conflicting evidence, the Standing Master "did not find sufficient evidence in the record to determine PAS present in a severe degree." He considered Dr. Bütz's testimony that "the literature surrounding PAS is confusing and there is a considerable diversity of opinion on the subject of PAS" and observed that "many writers on the subject of PAS regard PAS as unscientific and invalid as a diagnosis." A standing master has broad discretion when considering the parenting of a child, and we presume he carefully considered the conflicting evidence. In re G.M.N. , ¶ 26. It is not our function to reweigh conflicting evidence or substitute our judgment for that of the standing master. In re G.M.N. , ¶ 11. Finding 28 is supported by substantial credible evidence and is not clearly erroneous.

¶13 We conclude likewise that Findings 24 and 38 are not clearly erroneous. With respect to Finding 24, Bailey takes issue with the Standing...