In re Kesler

2018 MT 231, 427 P.3d 77, 392 Mont. 540
CourtMontana Supreme Court
DecidedSeptember 18, 2018
DocketDA 17-0666
StatusPublished
Cited by13 cases

This text of 2018 MT 231 (In re Kesler) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Kesler, 2018 MT 231, 427 P.3d 77, 392 Mont. 540 (Mo. 2018).

Opinion

Justice Beth Baker delivered the Opinion of the Court.

***540¶ 1 Wendy Rogers appeals the findings of fact, conclusions of law, and ***541final parenting plan ordered by the Third Judicial District Court, Anaconda-Deer Lodge County. She alleges multiple errors in the District Court's factual findings and in its parenting plan determination. We do not adopt the District Court's findings in full, but upon review of the record conclude that substantial evidence supports its decision and that Wendy has not demonstrated reversible error. We affirm the parenting plan.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 2 Wendy Rogers and David Otto Kesler, III, married in March 2012 and had one child, K.R.K., in December 2012. The couple briefly resided in Roundup, Montana, at the beginning of the marriage, but moved to the Deer Lodge area shortly after Wendy became pregnant. David's family owns a large ranch near Philipsburg and has extended family in the area. David and Wendy moved into a house owned by David's parents.

¶ 3 David and Wendy's relationship quickly deteriorated. Wendy filed for a temporary order of protection in Powell County in February 2013, alleging physical and verbal abuse from David. David petitioned for a dissolution of marriage in Anaconda-Deer Lodge County shortly thereafter. In April 2013, the District Court dissolved the temporary order of protection and ordered an interim parenting plan granting Wendy primary residential custody of K.R.K. with visitation for David every two weeks. This interim parenting plan never went into effect, however, because the parties reconciled less than a week after it was ordered.

¶ 4 Wendy and David separated for good in April 2014. Wendy filed for another temporary order of protection in justice court, alleging continued physical and verbal abuse. David moved back to his parents' ranch near Philipsburg. He filed a motion to vacate the interim parenting plan and asked the court to grant him primary custody of K.R.K. and to enter an order prohibiting Wendy from relocating to Roundup during the proceedings. David alleged that Wendy had mental health issues, had threatened to leave and take K.R.K. to Roundup, and had assaulted him with a shotgun. The District Court granted David's motion.

¶ 5 In June 2014, the parties filed a stipulated interim parenting plan, which the court adopted without analysis. This plan required Wendy and David to exchange K.R.K. every forty-eight hours and prohibited either of them from removing K.R.K. "from Anaconda-Deer Lodge County or contiguous counties" without written approval from the other party or the court. As part of the interim parenting plan, the ***542parties also agreed to undergo a mental health evaluation with the same therapist and comply with all recommendations.

¶ 6 Dr. Paul Silverman evaluated Wendy and David between July 2014 and February 2015. He conducted extensive psychological testing of both, reviewed records, and interviewed multiple friends, family, and acquaintances. Dr. Silverman discussed each party's prior relationships. Before marrying David, Wendy was married for over twenty years and had four daughters from that relationship. Wendy reported that her first husband was verbally, physically, and sexually abusive. Soon after Wendy began living with David, her daughters from her first marriage left to live with their father in Roundup and refused to return. David also was married *81previously. He reported that his adult daughter from that marriage falsely accused him of abusing her and that they remained estranged. In an extensive fifty-one-page report, Dr. Silverman recommended that K.R.K. reside with Wendy while having visits with David, citing Wendy's superior parenting skills among other reasons. Anticipating Wendy's move to Roundup, Dr. Silverman wrote that Wendy's "decision to move [K.R.K.] from the Deer Lodge area to Roundup is irrelevant to this conclusion."

¶ 7 David sought a second evaluation from Dr. William Stratford. Dr. Stratford submitted a three-page letter in November 2015, disagreeing with Dr. Silverman's assessment and opining that a co-parenting relationship could be established with K.R.K. spending two weeks with David on his parents' ranch and two weeks with Wendy in Roundup. Dr. Stratford emphasized the stabilizing factor that David's parents played in K.R.K.'s life. In his letter, Dr. Stratford stated that "Wendy has had problems sustaining herself economically and emotionally outside of a relationship with a man," and that "unchecked, she may 'solve' her problems by yet another relationship."

¶ 8 On March 4, 2016, the District Court held a hearing on the final parenting plan at which both parties appeared with counsel. Only Dr. Silverman and Dr. Stratford were called as witnesses. At the hearing, Dr. Stratford explained that he had changed his opinion and that he recommended the two week/two week schedule only if Wendy remained in the Anaconda area. He opined that Roundup was a virtual unknown and that K.R.K. deserved to be in a safe environment with very few miles of transit between the homes. He stated that if Wendy were to relocate to Roundup, the child should stay in the Anaconda area, where she has extended family to provide stability and security.

¶ 9 At the hearing, Dr. Silverman opined that a two week/two week schedule is not developmentally appropriate for children in K.R.K.'s age range and could lead to attachment difficulties. In Dr. Silverman's ***543opinion, K.R.K. needed a primary parent and the court needed to determine which of the two parents was the best choice for that role. Dr. Silverman recommended Wendy as the best choice because she was more nurturing than David. Further, Dr. Silverman opined that David had a history of being controlling in his past relationships and had demonstrated misjudgment by making multiple claims of child abuse against Wendy that went unsubstantiated by Child Protective Services ("CPS"), physicians, and the sheriff's office. Dr. Silverman explained that familiarity was important for K.R.K.

¶ 10 At the end of the hearing, the District Court expressed that it did not know how it was going to determine a final parenting plan on the limited record before it. The only evidence presented was from two conflicting experts. At David's suggestion, the District Court recessed to allow the parties to attempt mediation. The parties were not able to reach agreement.

¶ 11 After the hearing, David's parents evicted Wendy from the house near Deer Lodge. Under a temporary investigative authority order from the District Court, CPS amended the interim parenting plan, allowing Wendy to move to a house that she owned in Roundup and changing to weekly exchanges of K.R.K. between the households. The court adopted this temporary parenting agreement in July 2016. Both parties stipulated, however, that this plan was not in K.R.K.'s best interest on a long-term basis.

¶ 12 In September 2016, the parties filed a stipulated motion to release unredacted records from CPS to the parties. The Court ordered the release, but rescinded the order in December 2016 after reviewing the records in camera.

¶ 13 The District Court held a second hearing on a final parenting plan on August 4, 2017.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Parenting of L.D.K.-R & H.I.K.-R.
2026 MT 37N (Montana Supreme Court, 2026)
Matter of Austin Knudsen
2025 MT 304 (Montana Supreme Court, 2025)
State v. O'Connell
2025 MT 298N (Montana Supreme Court, 2025)
Jackson v. Jackson
2025 MT 192N (Montana Supreme Court, 2025)
In Re The Marriage of: Boeshans
2025 MT 187 (Montana Supreme Court, 2025)
Marriage of Drumheller
2025 MT 69N (Montana Supreme Court, 2025)
Cuomo v. Derr
2025 MT 48N (Montana Supreme Court, 2025)
E. Weilacher v. S. Weilacher
2024 MT 195N (Montana Supreme Court, 2024)
Marriage of Frost
2024 MT 33N (Montana Supreme Court, 2024)
Rhodes v. Rhodes
2023 MT 220N (Montana Supreme Court, 2023)
Marriage of Okland
2023 MT 127N (Montana Supreme Court, 2023)
Marriage of Williams
2020 MT 266N (Montana Supreme Court, 2020)
Parenting of A.F.
2020 MT 256N (Montana Supreme Court, 2020)
Marriage of Schmidt
2020 MT 235N (Montana Supreme Court, 2020)
In re Herrera
2018 MT 272 (Montana Supreme Court, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
2018 MT 231, 427 P.3d 77, 392 Mont. 540, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-kesler-mont-2018.