01/22/2025
DA 23-0729 Case Number: DA 23-0729
IN THE SUPREME COURT OF THE STATE OF MONTANA
2025 MT 16N
IN RE THE MARRIAGE OF:
BENJAMIN J. ANDERSON,
Petitioner and Appellee,
and
KRISTIN C. ANDERSON, n/k/a KRISTIN COOPER,
Respondent and Appellant.
APPEAL FROM: District Court of the Sixth Judicial District, In and For the County of Park, Cause No. DR 2017-68 Honorable Brenda R. Gilbert, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Kirsten Mull Core, Law Office of Kirsten Mull Core, P.C., Bozeman, Montana
For Appellee:
Rebecca R. Swandal, Swandal Law PLLC, Livingston, Montana
Submitted on Briefs: January 2, 2025
Decided: January 22, 2025 Filed: __________________________________________ Clerk Justice Ingrid Gustafson 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 noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Appellant, Kristin Cooper (Cooper), appeals from various orders issued by the Sixth
Judicial District, Park County, related to the ongoing parenting disputes between the
parties. We affirm.
¶3 The parties were married in 2014, their daughter, F.A., was born in 2016, and they
were divorced on July 9, 2018. At the time of the dissolution, the parties stipulated to a
parenting plan which designated Cooper as the primary caregiver until F.A. turned five, at
which time the parties would share equal parenting time. Shortly after the dissolution,
parenting conflicts began to arise, and over the last several years the parties have litigated
parenting issues on an ongoing basis. The court has held 11 parenting plan proceedings
since 2019, the court file is voluminous at 758 documents, and on June 6, 2023, the District
Court issued its 47-page Findings of Fact, Conclusions of Law, and Order. On appeal,
Cooper asserts the District Court: abused its discretion and violated her fundamental right
to parent; erred by failing to appoint a guardian ad litem versus a parenting coordinator;
erred in directing her mental health treatment and prohibiting her from use of medical
marijuana; and erred in finding her in contempt of court and awarding Appellee, Benjamin
Anderson (Anderson), fees. We affirm.
2 ¶4 We review the underlying findings in support of a district court’s decision to modify
a parenting plan under the clearly erroneous standard. Guffin v. Plaisted-Harman,
2010 MT 100, ¶ 20, 356 Mont. 218, 232 P.3d 888. We review a district court’s conclusions
of law to determine if they are correct. In re the Parenting of C.J., 2016 MT 93, ¶ 12,
383 Mont. 197, 369 P.3d 1028. A district court has broad discretion when considering the
parenting of a child, and we must presume that the court carefully considered the evidence
and made the correct decision. C.J., ¶ 13 (citation omitted). Accordingly, absent clearly
erroneous findings, we will not disturb a district court’s decision regarding parenting plans
unless there is a clear abuse of discretion. C.J., ¶ 13.
¶5 Although Cooper asserts the District Court’s facts are “conclusory, oftentimes
completely erroneous” she has failed to demonstrate any erroneous or unsupported factual
findings. Upon our review of the record, the District Court has done a herculean job in this
case. Conducting a multitude of proceedings and addressing hundreds of filings diligently,
comprehensively, and conscientiously. The District Court’s findings are thorough,
well-reasoned, and well-supported by testimony and evidence. The District Court has not
violated Cooper’s fundamental right to parent, but rather has conscientiously considered
the statutorily required parenting issues and issued findings and conclusions in support of
its determinations. While Cooper’s perception of the facts and credibility of witnesses
differs from those determined by the District Court, based on the record before us, we find
no abuse of discretion and decline to reweigh the evidence in the manner advanced by
Cooper.
3 ¶6 The District Court diligently considered the evidence presented with regard to
Cooper’s drug use, including her diagnosis of severe cannabis use disorder. Although
Cooper possesses a medical marijuana card, this does not authorize her to use marijuana in
a manner which is unsafe to her parenting. As the District Court noted, her use of marijuana
for recreational purposes has negatively impacted her parenting abilities, and the District
Court would have similar concerns of a parent misusing alcohol. The District Court did
not penalize Cooper for legal use of marijuana, but rather responded to Cooper’s
problematic use of marijuana which negatively impacts her parenting abilities. The District
Court also diligently considered evidence of problematic parenting behaviors exhibited by
Cooper, including that Cooper forced F.A. to continue breast feeding when F.A. was well
past the age of breast feeding. When faced with conflicting evidence as to Cooper’s
parenting behaviors and abilities, the court resolved the conflicts by weighing the evidence
and assessing the credibility, demeanor, and interests of the witnesses.
¶7 Cooper asserts the court erred in failing to appoint a guardian ad litem rather than
relying on a parenting coordinator. While the court may appoint a guardian ad litem, the
court is not required to do so. Section 40-4-205(1), MCA. Here, the District Court
reasoned that because F.A.’s counselor was available to coordinate parenting and make
recommendations as to F.A.’s best interests, it would be superfluous and potentially
confusing to appoint a separate guardian ad litem. With this rationale we find no abuse of
discretion in not appointing a guardian ad litem.
¶8 The District Court was required by § 40-4-212(1)(e), MCA, to consider the mental
health of the parties in determining a parenting plan to meet F.A.’s best interests. Based
4 on the substantial evidence presented and Cooper’s presentation over time, the District
Court appropriately placed limitations on Cooper’s parenting until she could demonstrate
through counseling with a psychologist the ability to maintain appropriate behavior with
F.A. This requirement does not preclude Cooper from engaging with her current counselor
or in seeking other treatment she believes she needs, but it does provide the court with an
objective means of assessing Cooper’s behaviors as they relate to parenting F.A. in the
future.
¶9 Cooper asserts the court erred in finding her in contempt of court and awarding
Anderson fees. District courts have the discretion to award attorney fees.
Section 40-4-110, MCA. We will not disturb an award of fees if supported by substantial
evidence. Weibert v. Weibert, 2015 MT 29, ¶ 11, 378 Mont. 135, 343 P.3d 563. Here, the
District Court was in the best position to assess the appropriateness of awarding fees. From
the record, it is clear Cooper has failed to comply with court orders and engaged in
excessive litigation to the extent that the District Court previously declared her a vexatious
litigant. Based on the record herein, we find no abuse of discretion in finding Cooper in
Free access — add to your briefcase to read the full text and ask questions with AI
01/22/2025
DA 23-0729 Case Number: DA 23-0729
IN THE SUPREME COURT OF THE STATE OF MONTANA
2025 MT 16N
IN RE THE MARRIAGE OF:
BENJAMIN J. ANDERSON,
Petitioner and Appellee,
and
KRISTIN C. ANDERSON, n/k/a KRISTIN COOPER,
Respondent and Appellant.
APPEAL FROM: District Court of the Sixth Judicial District, In and For the County of Park, Cause No. DR 2017-68 Honorable Brenda R. Gilbert, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Kirsten Mull Core, Law Office of Kirsten Mull Core, P.C., Bozeman, Montana
For Appellee:
Rebecca R. Swandal, Swandal Law PLLC, Livingston, Montana
Submitted on Briefs: January 2, 2025
Decided: January 22, 2025 Filed: __________________________________________ Clerk Justice Ingrid Gustafson 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 noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Appellant, Kristin Cooper (Cooper), appeals from various orders issued by the Sixth
Judicial District, Park County, related to the ongoing parenting disputes between the
parties. We affirm.
¶3 The parties were married in 2014, their daughter, F.A., was born in 2016, and they
were divorced on July 9, 2018. At the time of the dissolution, the parties stipulated to a
parenting plan which designated Cooper as the primary caregiver until F.A. turned five, at
which time the parties would share equal parenting time. Shortly after the dissolution,
parenting conflicts began to arise, and over the last several years the parties have litigated
parenting issues on an ongoing basis. The court has held 11 parenting plan proceedings
since 2019, the court file is voluminous at 758 documents, and on June 6, 2023, the District
Court issued its 47-page Findings of Fact, Conclusions of Law, and Order. On appeal,
Cooper asserts the District Court: abused its discretion and violated her fundamental right
to parent; erred by failing to appoint a guardian ad litem versus a parenting coordinator;
erred in directing her mental health treatment and prohibiting her from use of medical
marijuana; and erred in finding her in contempt of court and awarding Appellee, Benjamin
Anderson (Anderson), fees. We affirm.
2 ¶4 We review the underlying findings in support of a district court’s decision to modify
a parenting plan under the clearly erroneous standard. Guffin v. Plaisted-Harman,
2010 MT 100, ¶ 20, 356 Mont. 218, 232 P.3d 888. We review a district court’s conclusions
of law to determine if they are correct. In re the Parenting of C.J., 2016 MT 93, ¶ 12,
383 Mont. 197, 369 P.3d 1028. A district court has broad discretion when considering the
parenting of a child, and we must presume that the court carefully considered the evidence
and made the correct decision. C.J., ¶ 13 (citation omitted). Accordingly, absent clearly
erroneous findings, we will not disturb a district court’s decision regarding parenting plans
unless there is a clear abuse of discretion. C.J., ¶ 13.
¶5 Although Cooper asserts the District Court’s facts are “conclusory, oftentimes
completely erroneous” she has failed to demonstrate any erroneous or unsupported factual
findings. Upon our review of the record, the District Court has done a herculean job in this
case. Conducting a multitude of proceedings and addressing hundreds of filings diligently,
comprehensively, and conscientiously. The District Court’s findings are thorough,
well-reasoned, and well-supported by testimony and evidence. The District Court has not
violated Cooper’s fundamental right to parent, but rather has conscientiously considered
the statutorily required parenting issues and issued findings and conclusions in support of
its determinations. While Cooper’s perception of the facts and credibility of witnesses
differs from those determined by the District Court, based on the record before us, we find
no abuse of discretion and decline to reweigh the evidence in the manner advanced by
Cooper.
3 ¶6 The District Court diligently considered the evidence presented with regard to
Cooper’s drug use, including her diagnosis of severe cannabis use disorder. Although
Cooper possesses a medical marijuana card, this does not authorize her to use marijuana in
a manner which is unsafe to her parenting. As the District Court noted, her use of marijuana
for recreational purposes has negatively impacted her parenting abilities, and the District
Court would have similar concerns of a parent misusing alcohol. The District Court did
not penalize Cooper for legal use of marijuana, but rather responded to Cooper’s
problematic use of marijuana which negatively impacts her parenting abilities. The District
Court also diligently considered evidence of problematic parenting behaviors exhibited by
Cooper, including that Cooper forced F.A. to continue breast feeding when F.A. was well
past the age of breast feeding. When faced with conflicting evidence as to Cooper’s
parenting behaviors and abilities, the court resolved the conflicts by weighing the evidence
and assessing the credibility, demeanor, and interests of the witnesses.
¶7 Cooper asserts the court erred in failing to appoint a guardian ad litem rather than
relying on a parenting coordinator. While the court may appoint a guardian ad litem, the
court is not required to do so. Section 40-4-205(1), MCA. Here, the District Court
reasoned that because F.A.’s counselor was available to coordinate parenting and make
recommendations as to F.A.’s best interests, it would be superfluous and potentially
confusing to appoint a separate guardian ad litem. With this rationale we find no abuse of
discretion in not appointing a guardian ad litem.
¶8 The District Court was required by § 40-4-212(1)(e), MCA, to consider the mental
health of the parties in determining a parenting plan to meet F.A.’s best interests. Based
4 on the substantial evidence presented and Cooper’s presentation over time, the District
Court appropriately placed limitations on Cooper’s parenting until she could demonstrate
through counseling with a psychologist the ability to maintain appropriate behavior with
F.A. This requirement does not preclude Cooper from engaging with her current counselor
or in seeking other treatment she believes she needs, but it does provide the court with an
objective means of assessing Cooper’s behaviors as they relate to parenting F.A. in the
future.
¶9 Cooper asserts the court erred in finding her in contempt of court and awarding
Anderson fees. District courts have the discretion to award attorney fees.
Section 40-4-110, MCA. We will not disturb an award of fees if supported by substantial
evidence. Weibert v. Weibert, 2015 MT 29, ¶ 11, 378 Mont. 135, 343 P.3d 563. Here, the
District Court was in the best position to assess the appropriateness of awarding fees. From
the record, it is clear Cooper has failed to comply with court orders and engaged in
excessive litigation to the extent that the District Court previously declared her a vexatious
litigant. Based on the record herein, we find no abuse of discretion in finding Cooper in
contempt and awarding Anderson attorney fees.
¶10 Finally, Anderson seeks attorney fees on appeal. While arguably Cooper has at
times acted without respect for the judicial process, we understand the highly charged
emotions that can arise in parenting actions that result in behavior one would not normally
exhibit. It is appropriate that each party bear their own attorney fees associated with this
appeal. The near constant litigation in which the parties have been involved has not been
in their or F.A.’s best interest. We encourage the parties to devote at least as much attention
5 as they have devoted to their litigation to improving their communication and addressing
their parenting skills and abilities so they can jointly meet F.A.’s best interest in the future.
¶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
applicable standards of review.
¶12 Affirmed.
/S/ INGRID GUSTAFSON
We Concur:
/S/ JAMES JEREMIAH SHEA /S/ LAURIE McKINNON /S/ BETH BAKER /S/ JIM RICE