Marriage of Simonsen

2021 MT 55N

• Court: Montana Supreme Court
• Decided: March 2, 2021
• Docket: DA 20-0070
• Status: Unpublished

Opinion

03/02/2021

DA 20-0070 Case Number: DA 20-0070

IN THE SUPREME COURT OF THE STATE OF MONTANA 2021 MT 55N

IN RE THE MARRIAGE OF:

SHARILYN J. SIMONSEN,

Petitioner and Appellee,

and

RUSSEL A. SIMONSEN,

Respondent and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. CDR-18-0216 Honorable John A. Kutzman, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Patrick F. Flaherty, Flaherty Gallardo Lawyers, Great Falls, Montana

For Appellee:

Dana A. Henkel, Terrazas Henkel, P.C., Missoula, Montana

Jeffrey S. Ferguson, Jeffrey S. Ferguson Law Office, PLLC, Great Falls, Montana

Submitted on Briefs: February 3, 2021

Decided: March 2, 2021

Filed:

cir-641.—if __________________________________________ 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 Russell A. Simonsen (Russ) appeals the December 31, 2019, Final Parenting Plan

entered by the Eighth Judicial District Court, Cascade County, awarding primary custody

of the parties’ two children to Sharilyn J. Simonsen (Shari) during the academic year. We

consider:

1. Whether the District Court erred by designating Shari as the primary residential custodian during the academic year in the Final Parenting Plan?

2. Whether the District Court erred by holding Russ in contempt?

¶3 The parties were married in Great Falls, Montana, on July 31, 2004. The parties

had two children during the marriage, J.W.S. and K.H.S., both of whom were minors

throughout this proceeding. On April 24, 2018, Shari filed a Petition for Dissolution. Russ

opposed terminating the marriage and sought reconciliation.

¶4 Shari moved out of the marital home and into her parents’ home in July 2018. The

District Court found that her decision to live with her parents was caused by her inability

to finance a new home while tied to the existing mortgage on the marital home and that

this housing arrangement aggravated the relationship between Shari and the children, who

2 preferred to reside at the marital home because they identified it as their “safe space” and

they had their own bedrooms there.

¶5 The District Court found that Russ did not conduct cordial interactions with Shari

in front of the children. Emergency authorities were called to respond to Russ’ erratic

behavior toward Shari on one occasion and were nearly summoned on another. The

District Court also found that Russ spoke poorly of Shari around the children and “adopted

what is most charitably described as a laissez faire attitude toward facilitating parenting

time between Shari and the children.” Concerned with Russ’ behavior and his withholding

of the children from her, Shari filed a Motion for an Emergency Parenting Plan on

October 5, 2018. The District Court held a hearing regarding the motion on December 19,

2018. At the conclusion of the hearing, the District Court, not wanting “to reverse the

primary custody relationship [with Russ], at least not yet[,]” orally issued an Interim

Parenting Plan that placed the children with Russ on weekdays and with Shari every other

weekend. Upon further consideration, the court sua sponte issued a Revised Interim

Parenting Plan on January 15, 2019, wherein it increased Shari’s time with the children to

every weekend and required that Russ facilitate two evening phone calls per week between

Shari and the children.

¶6 A Final Parenting Plan Hearing was held February 21, 2019. The District Court

heard testimony from Russ, Shari, the children, a parent of J.W.S.’s friend, and counselors

who had met with the children. On February 25, 2019, the District Court entered its

Findings of Fact, Conclusions of Law, and Decree of Dissolution of Marriage, which

incorporated a Stipulated Property Agreement, but reserved ruling on a Final Parenting 3 Plan. The Stipulated Property Agreement required, among other things, that Russ refinance

the marital home and remove Shari from the mortgage. However, Russ did not refinance

the marital home and remove Shari from the mortgage until December 2019, after months

of proceedings to prod him, including four show cause hearings and entry of an Order of

Contempt. Despite this, Shari was able to purchase a home sometime after the

February 2019 hearing, enabling the children to have their own bedrooms at her residence.

¶7 On December 31, 2019, the District Court issued its Final Parenting Plan along with

Findings of Fact, Conclusions of Law, and Order wherein it concluded the best interest of

the children would be served if they would “reside with Shari for the academic school year

with visitation to occur every other weekend with Russ, and for the children to reside with

Russ during the majority of the summer vacation with visitation to occur every other

weekend with Shari.” From the evidence, the District Court found that Russ had, among

other improprieties: attempted to alienate Shari and the children by blaming the divorce on

her; told the children Shari was “leaving the family”; and purposefully acted to hinder the

children’s relationship with Shari. This finding was buttressed by Russ’ testimony that the

children and Shari got along amicably prior to the separation, in stark contrast to the

problems that occurred thereafter. The court also found that Russ manipulated the children

in an attempt to get Shari to reconcile with him, and thereby undermine her in the eyes of

the children, by, among other things, having the children invite Shari on excursions with

Russ and bringing the children to watch as he begged her to return in her parents’ front

yard.

4 ¶8 A counselor opined at the hearing that the children preferred to live with Russ, but

the District Court determined, given the timing—Russ had retained her the month prior to

the hearing—and that Russ had asked oddly-framed questions to the children in the

counselor’s presence, the counselor was primarily retained to influence the hearing.

Similarly, after speaking with the children, the District Court determined that the children

preferred the comfort of the marital home and having their own bedrooms, which did not

equate to preferring to live with Russ, and that Shari moving into her own home would

eventually alleviate any discomfort felt by the children while staying with her. From this,

the District Court concluded that Russ was being an intentionally ineffective co-parent, a

position supported not only by the foregoing but by Russ failing to inform Shari of thoughts

of self-harm articulated by J.W.S., and excluding Shari from the children’s counseling

sessions. The District Court found the children desired to have “fun time” with both parents

and to spend both weekday and weekend time with each parent. In its Conclusions of Law,

the court carefully considered the best interest of the children, entering a specific

conclusion regarding each factor enumerated in § 40-4-212(1), MCA (2019). Russ appeals

the Final Parenting Plan.

Final Parenting Plan

¶9 Because the district court is in a superior position to weigh the evidence and

credibility of witnesses, so long as the findings are supported by substantial evidence “we

will not overturn the court in a child custody matter unless we determine that there has

been a clear abuse of discretion.” Czapranski v. Czapranski, 2003 MT 14, ¶ 10, 314 Mont.

55, 63 P.3d 499 (citing In re Marriage of Bukacek, 274 Mont. 98, 105, 907 P.2d 931, 935 5 (1995)); In re Marriage of McKenna, 2000 MT 58, ¶ 14, 299 Mont. 13, 996 P.2d 386

(“Where the findings are supported by substantial credible evidence, this Court will affirm

the custody decision unless it is shown that the trial court committed a clear abuse of

discretion.”). We review a district court’s findings of fact to determine if they are clearly

erroneous. Czapranski, ¶ 10 (citing In re Marriage of Fishbaugh, 2002 MT 175, ¶ 19, 310

Mont. 519, 52 P.3d 395).

¶10 A district court must determine child custody in a manner that effectuates the best

interest of the child after considering the thirteen factors enumerated in § 40-4-212(1),

MCA. Fishbaugh, ¶ 20; see § 40-4-212(1), MCA. Though the court must consider each

factor articulated by the statute, it need not make a specific finding relating to each.

Czapranski, ¶ 11 (citing Fishbaugh, ¶ 20).

¶11 Russ contends that the District Court, in granting Shari primary custody time during

the academic year, endorsed the viewpoint of Shari while disregarding those of the

children, the counselors, and himself. Russ argues the court’s custody determination was

not supported by substantial evidence, therefore rendering the Final Parenting Plan clearly

erroneous. We disagree. The District Court clearly addressed the statutory guidelines,

entering conclusions of law that were precise and addressed each statutory factor, affording

them proper weight under the circumstances. Further, the court’s findings reveal

comprehensive consideration of all evidence Russ asserts was ignored; significant weight

was not accorded because Russ’ coercive actions weakened the strength and credibility of

the testimony of the counselors and children.

6 ¶12 Perhaps Russ’ most salient point of contention is that the children expressed a

preference to reside with him. However, upon its review of the testimony, the District

Court found it was more the marital home, not Russ, that was the source of their comfort.

The record supports what the District Court found—both Russ and Shari are good, loving

parents and the children desire time with both parents. However, the record also supports

the court’s finding that Russ had not demonstrated an ability to effectively co-parent and

facilitate a positive relationship between Shari and the children. Where there are conflicts

in testimony, it is the function of the trier of fact to resolve those conflicts and we will not

substitute our judgment for that of the trier of fact because it is the trial court that is in the

better position to resolve child custody issues. McKenna, ¶ 17. We hold there is substantial

evidence supporting the District Court’s determination that it is in the best interest of the

children to share custody as described in the Final Parenting Plan Order and that the Order

is not otherwise clearly erroneous. We also hold that, given the trial court’s careful

assessment of the factors in § 40-4-212(1), MCA, and its “independent analysis of the facts

of the case to make its custody decision,” there is no clear abuse of discretion. McKenna,

¶ 19 (internal quotation and citation omitted).

Contempt

¶13 Russ states the District Court has not yet entered its final ruling on contempt of

court, and that, “[u]pon remand the District Court Judge can award attorney’s fees, a

contempt sanction and put [Russ] in jail[.]” Shari argues there were several contempt

orders and Russ has not designated the order he is seeking to appeal.

7 ¶14 Unless an exception applies, Rule 6(1) of the Montana Rules of Appellate Procedure

limits appeals to final orders. A contempt order is reviewable “on a writ of certiorari,”

although it may be appealed if the contempt order “includes an ancillary order that affects

the substantial right of the parties involved.” Section 3-1-523(1), (2), MCA. The “family

law exception” is “limited.” Marez v. Marshall, 2014 MT 333, ¶ 23, 377 Mont. 304, 340

P.3d 520. “We generally reject the direct appeal of a contempt order in a dissolution of

marriage case that goes purely to the district court’s contempt power” and does not

adjudicate or affect any ancillary matter falling within the district court’s continuing

jurisdiction over the rights of the parties. In re Marriage of Lutes, 2005 MT 242, ¶ 10, 328

Mont. 490, 121 P.3d 561; Lee v. Lee, 2000 MT 67, ¶ 37, 299 Mont. 78, 996 P.2d 389

(holding that a “lone contempt order” may not be reviewed on direct appeal).

¶15 The August 7, 2019, Order clearly constitutes an order of contempt in a family law

proceeding. However, the exception allowing for direct appeal does not apply as the Order

did not impact the substantial rights of the parties. The Order was a “lone contempt order”

aimed at maintaining the dignity and authority of the District Court and had no ancillary

impact on any substantial rights relating to the court’s continuing jurisdiction over the

marriage dissolution or the Final Parenting Plan. Lee, ¶ 37. Further, Russ’ argument that

§ 3-1-511, MCA, requires that he be “given an opportunity to defend himself” has no merit

as regarding that Order, as it was preceded by the August 1, 2019, show cause hearing on

the topic. Therefore, the exception does not apply and the contempt order is not ripe for

review by the Court at this time. Marta Corp. v. Thoft, 271 Mont. 109, 114, 894 P.2d 333,

336 (1995) (determining that it was premature for the Court to rule on contempt prior to 8 final judgment being issued by the district court when there was no applicable exception).

If, as Russ argues, there are further contempt matters to be resolved, we do not undertake

review of those matters herein.

¶16 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.

¶17 Affirmed.

/S/ JIM RICE

We concur:

/S/ LAURIE McKINNON /S/ BETH BAKER /S/ DIRK M. SANDEFUR /S/ INGRID GUSTAFSON