                                                                                               04/18/2017


                                           DA 16-0387
                                                                                           Case Number: DA 16-0387

                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2017 MT 92



IN RE THE MARRIAGE OF:

DARIN BROCKINGTON,

               Petitioner and Appellee,

         and

DEBORAH BROWN,

               Respondent and Appellant.



APPEAL FROM:            District Court of the Eleventh Judicial District,
                        In and For the County of Flathead, Cause No. DR-06-110(C)
                        Honorable Heidi Ulbricht, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Katherine P. Maxwell, Maxwell Law, PLLC, Kalispell, Montana

                 For Appellee:

                        Peter F. Carroll, Attorney at Law, Kalispell, Montana



                                                     Submitted on Briefs: March 22, 2017

                                                                 Decided: April 18, 2017


Filed:

                        __________________________________________
                                          Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1       Deborah Brown (Deborah) appeals an order entered in the Eleventh Judicial District

Court on June 3, 2016, amending the parenting plan for her minor child, A.E.B. Deborah

also appeals an order entered August 4, 2016, holding her in contempt and assessing costs

and attorney’s fees for the contempt proceedings against her, although the District Court

has not yet determined the reasonableness of fees or assessed costs. We affirm the District

Court’s order amending the parenting plan and dismiss, without prejudice, Deborah’s

appeal of the contempt order.

¶2       We restate the dispositive issues as:

         1. Whether the District Court abused its discretion in determining the amended
         parenting plan was in the best interests of A.E.B.

         2. Whether Deborah’s appeal of the separate order of contempt is from a final
         judgment.

                   FACTUAL AND PROCEDURAL BACKGROUND

¶3       Darin Brockington (Darin) and Deborah are the parents of A.E.B., born in 2000.

Their marriage was dissolved in 2007 and an Order Establishing Parenting Plan was

entered on August 6, 2008 (2008 Plan). The 2008 Plan provided that A.E.B. would reside

primarily with Deborah and that Darin, who serves in the United States Army as a

Lieutenant Colonel, would have parenting time “both in Montana and his place of

residence, wherever that may be.” Both Darin and Deborah have remarried. Darin lives

with his wife, Donna, in Manassas, Virginia, along with Donna’s children from a previous

marriage. Deborah currently resides in Kalispell, Montana, with her husband, Jeff, and

A.E.B.


                                                 2
¶4     The District Court noted that both parents are exceptional in their parenting abilities

and their devotion to their daughter. Nonetheless, there has been great acrimony between

Darin and Deborah with respect to their co-parenting obligations. In particular, Darin and

Deborah have been unable to agree on the appropriate amount of time Darin should spend

with A.E.B., as well as where Darin’s parenting time should take place. Darin has lived in

other locations besides Virginia, depending on where he is stationed in the Army, including

in Mons, Belgium. The 2008 Plan provided that Darin have parenting time with A.E.B.

any time he was in Montana, for a period not to exceed ten days. Aside from certain

holidays and alternating birthdays, Darin was to exercise the majority of his parenting time

in the summer. The 2008 Plan provided specifically for the summers of 2008, 2009, and

2010, with visits varying in length from 43 to 49 days. These summer visits were to take

place at Darin’s residence, wherever that was.

¶5     Although the 2008 Plan did not address summer visits for the years following 2010,

the parties assumed the visits would continue every summer. Thus, in 2011 A.E.B. spent

48 days with her father in Virginia; and in the summers of 2013 and 2014, A.E.B. spent 49

days in Mons, Belgium. For the 2012 summer, which was when Darin moved to Belgium,

Darin requested A.E.B. spend only 18 days with him in Virginia prior to his relocation.

The understanding between Darin and Deborah remained that A.E.B. would always return

from Darin’s care in sufficient time for her to attend the first day of school in Montana.

¶6     Notwithstanding the parties’ ability to arrange summer visitations beyond the

particular years identified in the 2008 Plan, disputes between Darin and Donna over

co-parenting obligations apparently existed as early as 2006, prompting the District Court


                                              3
to appoint Nancy Smith (GAL) to be A.E.B.’s guardian ad litem in 2006.1 In the 2008 Plan,

the District Court ordered that “[i]n the event there needs to be some form of dispute

resolution regarding the parenting plan in the future, that the GAL shall be the first resource

in resolving disputes between parties[.]”2 Since her appointment, the GAL has made

several recommendations to the court regarding parenting time.

¶7     Darin covets his parenting time. He has always felt that A.E.B. should spend more

time with him, not less. The record on appeal shows that it is not unusual for him to spend

substantial time and money on the travel and logistics necessary for him to parent A.E.B.

Even while he resided in Belgium, he ensured he did not lose his allotted time with A.E.B.

by securing for her a military passport and paying for her airfare to Belgium. Darin also

takes advantage of provisions in the 2008 Plan allowing him to parent in Montana for

continuous periods not to exceed ten days. Darin has traveled to Montana to exercise

parenting time, renting a car and securing a hotel room to spend time with A.E.B. These

trips not only cost him money, but deplete the leave he accrues in the Army.

¶8     Deborah’s home with Jeff, as A.E.B.’s primary residence, has been beneficial for

A.E.B. She excels at school and is active in extracurricular activities like volleyball and

basketball. She has friends and is, in most ways, a well-adjusted teenager. She attends




1
   In 2003, Deborah filed a Petition for Dissolution, which she later dismissed. Darin subsequently
filed his Petition for Dissolution in 2006, resulting in the parties’ dissolution in 2007 and the 2008
Plan.
2
  The 2008 Plan was ordered by the Honorable Stewart E. Stadler. The proceedings to amend the
2008 Plan were presided over by the Honorable Heidi J. Ulbricht, who replaced Judge Stadler
upon his retirement.


                                                  4
church regularly and volunteers when she can to serve at its concession stand. She also

works on occasion at her mother’s hardware store. She is not immune from teenage

tribulations, however, and the record reflects that she has become expressive of her desire

to be more independent and to make decisions for herself. In this regard, A.E.B. has

expressed that she wants to spend more time in Montana during the summers, despite

Darin’s wishes that he have more time with her. Although they enjoy certain activities

together, A.E.B. has expressed that her stepmother Donna is prone to anger, and that her

father and Donna must often work when she visits, leaving her in the care of her

stepsiblings or structured day-camps. The 2008 Plan also mandates that A.E.B. regularly

call Darin at certain times during the week. A.E.B. does not enjoy these mandatory calls

and would enjoy texting, Skyping, and emailing Darin instead. Overall though, A.E.B.

primarily complains that her summers away with Darin interfere with her life in Kalispell,

which results in her friends accruing experiences during the summer to which she cannot

relate when she returns to Montana.

¶9     Deborah filed a motion to amend the 2008 Plan on April 21, 2014, several months

shy of A.E.B.’s fourteenth birthday. Deborah alleged that a change of circumstances had

occurred and that A.E.B.’s best interests necessitated amending the parenting plan.

Specifically, Deborah sought the amendment based on A.E.B.’s desire to stay in Kalispell

over the summers and noted that A.E.B. “reached a stage in her development when social

activities, sports, events, jobs and friendships [in] Kalispell, Montana are of significant and

increasing importance[.]” Darin responded to the motion by requesting its dismissal or,

alternatively, a referral to the GAL for closer review. The District Court denied Deborah’s


                                              5
motion and referred the matter to the GAL for recommendations, to be filed by September

15, 2014, when A.E.B. would be at least fourteen. Over the summer of 2014, while A.E.B.

visited Darin in Mons, Belgium, the GAL conducted her investigation, communicating

with A.E.B. by Skype and email. After concluding her investigation, the GAL filed

recommendations with the District Court, along with her own motion to adopt her

recommendations as an interim parenting plan. The GAL recommended that Darin’s

parenting time occur only in Montana; that his time be reduced in the summer to either one

or two weeks, which must be exercised in Montana; and that A.E.B.’s mandatory phone

calls to him cease. The GAL’s proposed “Final Parenting Plan” also contained the

following provision: “In the event there needs to be some form of dispute resolution

regarding the parenting plan in the future, Nancy M. Smith, GAL, shall be the first resource

to mediate the dispute. The parties shall follow any written recommendation of the GAL

pending further order of the court.” On December 2, 2014, Deborah filed a motion to adopt

the GAL’s recommended parenting plan.

¶10    On December 18, 2014, Darin filed a motion to stay any proceedings pursuant to

the Servicemembers Civil Relief Act, 50 U.S.C.S. §§ 3901, et seq. (SCRA), which allows

for the stay of civil proceedings while members of the military serve abroad. Darin,

nonetheless, clearly objected to the GAL’s recommendations. The District Court granted

Darin’s motion to stay proceedings pursuant to SCRA and vacated a hearing which had

been scheduled for February 19, 2015.

¶11    Darin continued to communicate with Deborah that he wished to have parenting

time as he had previously exercised under the 2008 Plan. Specifically, Darin asked that


                                             6
A.E.B. spend time with him at his Virginia residence for one month. Deborah refused and

offered instead that he could visit A.E.B. in Montana. She believed that the 2008 Plan was

outdated, that it was not in A.E.B.’s best interest, and that the SCRA stay of the proceedings

had abated it. In May of 2015, Darin requested the court enforce a 2015 summer visit. On

June 25, 2015, Darin again requested the court compel summer parenting time for 2015

and also to hold Deborah in contempt. Darin made another request for parenting time on

August 3, 2015. The court maintained, however, that it was unable to consider any of

Darin’s requests because of the stay. Darin finally filed a motion to lift the stay on August

3, 2015, which was granted by the court on August 21, 2015. While the District Court did

not act on the motions filed by either party due to the stay, the court did interview A.E.B.

at Deborah’s request, concluding that an interview of A.E.B. would not violate the SCRA

stay because it did not involve the parties.

¶12    After the stay was lifted, the court conducted a hearing over two days, November

24, 2015, and February 24, 2016.         The District Court issued its Findings of Fact,

Conclusions of Law and Order on June 3, 2016, rejecting the GAL’s proposed parenting

plan and amending the 2008 Plan. The court found that, in deference to A.E.B.’s wishes

and despite Darin’s desire to maintain contact with his daughter, the GAL’s proposed plan

allowed Darin only one to two weeks in June and would “severely curtail Darin’s

opportunity for parenting time with A.E.B.”          The court found that the GAL had

inappropriately shared information only with Deborah and did not provide an equal

opportunity for input from Darin. The court determined that “the GAL has demonstrated

a perceived preference toward Deborah” and a “willingness to interfere with Darin’s


                                               7
parenting opportunities.” The court also found that “the GAL [had] clearly encouraged

A.E.B. to believe she [would] not have to spend time in Virginia.” The court determined

that Deborah’s interests in keeping A.E.B. in Kalispell, which aligned with the GAL’s

recommendations, would “unreasonably [attempt] to limit or outright suspend Darin’s

parenting opportunities.” Finding that “[t]he failure of both Deborah and the GAL to

recognize the benefits of the continuing relationship between A.E.B. and her father’s

extended family is without precedent in this court[,]” the court terminated the GAL’s

appointment, concluding the GAL had become an ineffective means in assisting the parties

to share parenting opportunities. The court directed the parties to use a mediator in the

future, if necessary, and proceeded to determine the shared parenting obligations for A.E.B.

¶13    In its order amending the 2008 Plan, the court noted that A.E.B., during the

in-chambers interview, expressed that she would like fewer days in the summer with her

father. The court expressly stated that it considered AEB’s wishes, but would not defer to

them entirely. The court determined that the best interests of A.E.B. were served by having

summer activities in both Montana and Virginia. Because the court found that Darin had

demonstrated a consistent commitment to shared parenting and his responsibilities to

A.E.B., Darin’s time with A.E.B. in Virginia was reduced in accordance with A.E.B.’s

wishes, but only by approximately two weeks. Darin was to exercise four weeks of

parenting time during the month of July. The court was not willing to reduce Darin’s

parenting time to one or two weeks to be exercised only in Montana, as suggested by

Deborah and recommended by the GAL. Darin’s opportunities to continue parenting in

Montana were left intact, including every spring break until A.E.B. graduates from high


                                             8
school. The court also left the holiday schedule established by the 2008 Plan in place and

determined that Deborah and Darin should share the cost of A.E.B.’s travel equally.

Finally, the court expressed concerns over Deborah encouraging A.E.B. to limit her contact

with her father and concluded that Deborah failed to recognize that parenting time with

both parents was in A.E.B.’s best interests.

¶14    The District Court entered its order amending the 2008 Plan on June 3, 2016. The

court ordered that A.E.B. was to travel to Darin’s home no later than July 1, 2016, and that

Darin was to have parenting time during the month of July for the years 2016, 2017, and

2018. On June 15, 2016, Darin emailed Deborah a travel itinerary which had A.E.B.

departing for Virginia on July 1, 2016, and returning to Montana on July 31, 2016.

Deborah, however, expressed difficulty understanding the amended 2008 Plan and

indicated she would be seeking other options. On June 30, 2016, Deborah filed an appeal

from the District Court’s judgment amending the 2008 Plan and filed a motion in the

District Court to stay its judgment. The next day, on July 1, the District Court denied

Deborah’s request for stay.

¶15    A.E.B., however, did not travel to Virginia. Darin immediately filed a motion for

an order to show cause and for contempt against Deborah, asking for enforcement of the

court’s orders. The court denied the motion, reasoning that Deborah’s appeal had removed

the matter from the district court’s jurisdiction. Darin filed a petition for writ of supervisory

control on July 18, 2016, which this Court granted, in part, on July 26, 2016. Or. Granting

Pet. for Writ of Supervisory Control in Part, Brockington v. 11th Jud. Dist. Ct.,

https://supremecourtdocket.mt.gov/search/getDocument?documentid=149335 (Mont. Jul.


                                               9
26, 2016) (No. OP 16-0423). This Court concluded that, pursuant to Kuzara v. Kuzara, a

district court in a contempt proceeding arising out of a domestic matter has the authority to

enforce its judgment even though an appeal is pending in the underlying domestic

proceeding. 211 Mont. 43, 48, 682 P.2d 1371, 1374 (1984). We remanded the matter to

the District Court for proceedings consistent with our order.

¶16    The District Court held a hearing August 3, 2016, on Darin’s motion for contempt.

Both parents were present and the court considered testimony from several other witnesses.

Ultimately, the court concluded that Deborah had failed to abide by her shared parenting

obligations as set forth in the Amended Parenting Plan when she “encouraged, if not

solicited outright, A.E.B.’s active involvement in defiant actions to withhold from Darin

parenting time granted to him in a court ordered parenting plan.” The court found that

much of Deborah’s testimony was not credible and that Deborah continued to try and

convince the court that “Virginia was boring,” that A.E.B. would miss too many

opportunities in Montana, and that A.E.B.’s Christian faith would suffer as a result of

having to visit her father during July. The court held Deborah in contempt because her

failure to abide by her obligations of shared parenting “compels a clear and direct

response.” The court assessed a fine of $500 per day for each day in July that Deborah

failed to deliver A.E.B. to Darin for exercise of his parenting time, or a total of $15,500,

but allowed Deborah to purge her contempt by immediately arranging with Darin to meet

her and A.E.B. prior to August 8, 2016, at either Dulles International or Reagan National

Airport, for Darin to have parenting time of not less than 31 days. Deborah was ordered to

pay all costs of travel for A.E.B. and to reimburse Darin for all of his costs, including travel


                                              10
expenses and the value of lost leave from his military service. Deborah was also ordered

to pay the costs and Darin’s attorney’s fees incurred in the contempt proceedings.

¶17    After the court entered its finding of contempt, according to Darin, A.E.B. traveled

to Virginia, apparently without incident, for parenting time with Darin and a visit with

A.E.B.’s extended family. Darin filed his affidavit of costs and attorney’s fees with the

court. Due to a continuance of the hearing on reasonableness of attorney’s fees, requested

by Deborah and unopposed by Darin, attorney’s fees and costs had not been determined by

the District Court as of the time of the instant appeal.

                               STANDARDS OF REVIEW

¶18    We review findings of fact related to amendments of parenting plans to determine

whether they are clearly erroneous. In re Marriage of Everett, 2012 MT 8, ¶ 11, 363 Mont.

296, 268 P.3d 507; In re Marriage of Graham, 2008 MT 435, ¶ 8, 347 Mont. 483, 199 P.3d

211. When findings upon which a decision is predicated are not clearly erroneous, we will

reverse a district court’s decision regarding a parenting plan amendment only when a clear

abuse of discretion is demonstrated. Graham, ¶ 8; In re Marriage of Oehlke, 2002 MT 79,

¶ 9, 309 Mont. 254, 46 P.3d 49. A trial court abuses its discretion when it acts “arbitrarily

without employment of conscientious judgment or exceed[s] the bounds of reason resulting

in substantial injustice.” Everett, ¶ 11; Albrecht v. Albrecht, 2002 MT 227, ¶ 7, 311 Mont.

412, 56 P.3d 339.

¶19    A contempt proceeding in a family law proceeding “is entirely independent of the

civil action out of which it arose.” Kuzara, 211 Mont. at 48, 682 P.2d at 1374. In civil

cases, an aggrieved party may appeal from “a contempt judgment or order in a family law


                                              11
proceeding when, and only when, the judgment or order appealed from includes an

ancillary order entered as a result of the contemptuous conduct which affects the substantial

rights of the parties involved[.]” M. R. App. P. 6 (3)(j). The right of a natural parent to

parent one’s child is a constitutionally protected, fundamental liberty interest. Steab v.

Luna, 2010 MT 125, ¶ 22, 356 Mont. 372, 233 P.3d 351.

¶20    “[A]ny decree which leaves matters undetermined is interlocutory in nature and is

not a final judgment for purposes of appeal.” Kircher v. W. Mont. Regl. Community Mental

Health Ctr., 261 Mont 227, 229, 861 P.2d 927, 929 (1993). We explained in In re Marriage

of Griffin, that for a decree to be final it must reserve no further questions or directions for

further determination. 260 Mont. 124, 135, 860 P.2d 78, 85 (1993). Lastly, M. R. App. P.

4(1)(a) provides that “[a] final judgment conclusively determines the rights of the parties

and settles all claims in controversy in an action or proceeding, including any necessary

determination of the amount of costs and attorney fees awarded or sanction imposed.”

                                       DISCUSSION

¶21 1. Did the District Court abuse its discretion in determining the Amended Parenting
Plan was in A.E.B.’s best interests?

¶22    Deborah argues that the District Court failed to give appropriate weight to the

recommendations of the GAL. More specifically, Deborah maintains that the GAL was

intricately involved with the parties and A.E.B., “often as an arbitrator,” and that since

2006 “the Court relied upon her and assigned to her an ongoing role to assist the parties in

dispute resolution.” Deborah also takes issue with the court’s failure to address interim

parenting plan arrangements while the SCRA stay was in place.                Here we discern



                                              12
Deborah’s argument to be that the court erroneously faulted Deborah for not allowing

A.E.B. to visit Darin during the 2015 summer when it was actually the court, through its

misunderstanding of the SCRA, which was responsible for Darin not having any 2015

summer visitation. Finally, Deborah argues that the District Court did not adequately

consider A.E.B.’s wishes because the court continued to provide summer parenting time

for Darin. Darin argues that the record supports the District Court’s conclusions and that

Deborah is unable to establish error in any of the court’s findings.

¶23    In addressing Deborah’s assertion that the court failed to appropriately weigh and

consider the GAL’s recommendations, we must begin with an explanation of a guardian

ad lietem’s duties and role in family law proceedings. A court may appoint a guardian ad

litem pursuant to § 40-4-205, MCA, to “represent the interests of a minor dependent child

with respect to the child’s support, parenting, and parental contact.” Section 40-4-205(1),

MCA.      A guardian ad litem has the general duties of informing and making

recommendations to the court concerning the child’s support, parenting, and parental

contact following any investigation necessary to ascertain the facts relevant to such an

inquiry. Section 40-4-205 (2)(a)-(c), MCA. While a guardian ad litem may also “perform

other duties as directed by the court” under § 40-4-205(2)(e), MCA, the responsibility and

obligation of a guardian ad litem when performing any of its duties is always to “represent

the interests of a minor dependent child[.]” Section 40-4-205(1), MCA.

¶24    By contrast, the 2008 Plan designates for the GAL to facilitate disputes, which

would have been continued under the GAL’s proposed plan whereby she would continue

her role “mediating” disputes, interjected the GAL into disputes between the parties,


                                             13
Deborah and Darin, surrounding what each believed were their co-parenting obligations.

Yet, mediation is a process in which an impartial third-party facilitates communication and

negotiation and promotes voluntary decision making by the parties to the dispute. By way

of illustration, the Model Standards of Conduct for Mediators provides that “[i]mpartiality

means freedom from favoritism, bias, or prejudice.”          Model Stand. of Conduct for

Mediators Standard II (ABA 2005).3 A mediator must avoid a conflict of interest or the

appearance of a conflict during and after the mediation. “A conflict of interest can arise

from involvement by a mediator with the subject matter of the dispute or from any

relationship between a mediator and any mediation participant, whether past or present,

personal or professional, that reasonably raises a question of a mediator’s impartiality.”

Model Stand. of Conduct for Mediators Standard II (ABA 2005).

¶25    Montana provides for mediation of family law disputes. The “purpose of mediation

is to reduce the acrimony that may exist between the parties and to develop an agreement

that is supportive of the best interests of the child involved in the proceeding.” Section 40-

4-302(1), MCA (emphasis added). The mediator “must have knowledge of the mediation

process[,]” and while the parties may stipulate to a mediator not maintained on the mediator

list established by the court pursuant to § 40-4-306, MCA, there are no statutory provisions

which sanction a dual appointment as both guardian ad litem and mediator in the same

proceeding. Section 40-4-307(5), MCA. Indeed, the statutory provision for appointment



3
   The 2005 Model Standards were approved by the American Bar Association’s House of
Delegates, the Board of the Association for Conflict Resolution, and the Executive Committee of
the American Arbitration Association.


                                              14
of a guardian ad litem is distinct and separate from those statutory provisions offering the

parties an opportunity to mediate their disputes. See § 40-4-205, MCA, and §§ 40-4-301

to -308, MCA.

¶26    Based on the foregoing principles, it is clear that the duty of a guardian ad litem to

represent the interests of the child is inconsistent with the obligation of a mediator to be

impartial and free from favoritism or bias, with no involvement in the subject matter of the

dispute. Indeed, the guardian ad litem’s duty to represent the child’s interest in the dispute

cannot be honored while at the same time honoring the obligation of a mediator to be an

impartial third-party. The duties of each role are distinct and serve different functions in

the delivery of justice. To emasculate or blend the roles only undermines the integrity of

each process, whether it is the appointment by a judge of a guardian ad litem for fact-

finding purposes or the selection of a mediator to facilitate communication, negotiation,

and voluntary decision making by the parents in an alternative dispute resolution forum.

¶27    Contrary to Deborah’s assertions, it is readily apparent that the District Court did

consider and appropriately weigh the recommendations of the GAL, as it was those

recommendations which led, in part, to the court vacating her appointment. It is evident

from the court’s findings that it appreciated the GAL was no longer effectively performing

her duty to represent A.E.B.’s interests. The court observed the GAL’s recommendation

to severely limit Darin’s parenting time was inconsistent with the best interests of A.E.B.

because she failed to recognize the significance to A.E.B. of a continued relationship with

her father and A.E.B.’s extended family. The court found that the GAL’s position, which

aligned and advocated the position of a party, Deborah, was “without precedent in this


                                             15
court.” The court found that the GAL had clearly encouraged A.E.B. to believe she will

not have to spend time in Virginia and that the GAL had failed to share information with

Darin or provide an equal opportunity for input from him. Deborah does not argue that

these findings were clearly erroneous, only that the court failed to attribute the proper

weight to the GAL’s recommendation. We disagree. The record supports that the District

Court clearly considered the GAL’s recommendations, but did not agree with them.

Moreover, the District Court appropriately recognized that the GAL should not serve as a

mediator in the same proceeding when it directed the parties to a “mediator, if needed.”

¶28    Deborah appears to argue that the court faulted her for Darin’s loss of parenting time

during the 2015 summer when, in fact, Deborah alleges it was the result of the court’s

misunderstanding of the SCRA stay. It is unnecessary, however, to address whether the

SCRA prevented the court from taking any action, even to enter an order establishing

interim parenting time for 2015. The undisputed facts are that Deborah continued for years

2012, 2013, and 2014 to allow summer visitation with Darin of nearly six weeks, despite

the absence of any provision in the 2008 Plan providing for those years. Therefore, Darin

exercised summer parenting time even though the 2008 Plan made no provision for those

particular years.   Darin continued pursuing his obligation of shared parenting by

communicating with Deborah that he wanted A.E.B. to visit in the 2015 summer, even if

for only a month. Despite his efforts, Deborah refused to allow A.E.B. to visit, maintaining

instead that the SCRA stay had abated the 2008 Plan. However, nothing precluded

Deborah from ensuring Darin had parenting time, as she had previously done for three

years in the past, although not specifically ordered to do so. Thus, it was Deborah, and not


                                             16
Darin, who attempted to distort to her advantage the provisions of the SCRA. The court’s

findings that Deborah unreasonably limited Darin’s parenting opportunities and that the

summer of 2015 was the first time Darin was not able to exercise summer visitation in 14

years were not clearly erroneous. The record supports the court’s findings regardless of

whether the court misunderstood the stay provisions of SCRA.

¶29    Deborah also argues that the court failed to give appropriate weight to A.E.B.’s

wishes to spend summers in Montana.           Section 40-4-219(1)(c), MCA, concerning

amendments of parenting plans, provides that the court “may” consider that “the child is

14 years of age or older and desires the amendment[.]” The court interviewed A.E.B. in

chambers once A.E.B. turned fourteen and noted that A.E.B. had expressed she would like

less time at her father’s home. The court expressly stated that it had taken A.E.B.’s wishes

into consideration. The court, however, also expressed its concern that Deborah was

encouraging A.E.B. to limit her time with Darin; that Deborah had a great deal of influence

over A.E.B; that A.E.B. was also being encouraged by the GAL to believe she would not

have to spend time in Virginia with her father; and that Darin was not provided an equal

opportunity to acquire information or have his input heard in the dispute.             Most

importantly, however, the court found that both Deborah and the GAL failed to appreciate

the significance of A.E.B. continuing a relationship with her father as being in A.E.B.’s

best interests. Based on the evidence that had been presented, the court was justified in its

concern that A.E.B.’s stated preference to spend summers in Montana with Deborah was

being encouraged by Deborah and the GAL.




                                             17
¶30    The court was charged with an unenviable task: evaluating the testimony of a

fourteen-year-old in the context of her parents’ acrimonious disputes and, more

particularly, conducting such an evaluation where one parent had substantially less

influence and lived several thousand miles away from A.E.B. The court was correct in not

simply following A.E.B.’s wishes, even assuming they fairly represented her position—

because at fourteen, A.E.B. cannot be assumed to know necessarily what is in her best

interests. Indeed, because A.E.B. was only fourteen and not emancipated, and because her

parents could not decide what was in her best interests, the court had to make the decision.

The court could not abdicate its responsibility for making the decision when the parents

were unable to agree, especially when a committed parent was asking the court for the

opportunity to parent. See Steab, ¶ 22 (finding that the right of a natural parent to parent

one’s child is a constitutionally protected, fundamental liberty interest).      The court

considered the wishes of A.E.B. and limited Darin’s time from what normally had been 6

weeks to 4 weeks during the month of July. Deborah failed to demonstrate that any

findings of the court were erroneous, or that the court did not consider A.E.B.’s desire for

the amendment. Indeed, the court amended the parenting plan so that A.E.B. would have

less time in Virginia.

¶31    We conclude that the court’s findings are not clearly erroneous and that the court

did not abuse its discretion when it ordered the June 3, 2016 Amended Parenting Plan.




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¶32 2. Whether Deborah’s appeal of the separate order of contempt is from a final
judgment.

¶33    On August 4, 2016, following a hearing, the court held Deborah in contempt for her

failure to abide by the shared parenting obligations of the June 3, 2016 Amended Parenting

Plan. Specifically, the court found that Deborah had encouraged A.E.B. not to visit Darin

in Virginia. The court, however, has not decided the reasonableness of attorney’s fees nor

assessed an amount for fees and costs.

¶34    We have recognized that a contempt proceeding in a family law matter is entirely

independent of the civil action out of which it arose. Kuzara, 211 Mont. at 48, 682 P.2d at

1374. Further, in civil cases, an aggrieved party may appeal from “a contempt judgment

or order in a family law proceeding when, and only when, the judgment or order appealed

from includes an ancillary order entered as a result of the contemptuous conduct which

affects the substantial rights of the parties involved[.]” M. R. App. P. 6(3)(j).

¶35    We conclude that Deborah has the right to separately appeal the order of contempt

pursuant to Kuzura and M. R. App. P. 6(3)(j). However, Deborah must also comply with

the rule that “any decree which leaves matters undetermined is interlocutory in nature and

is not a final judgment for purposes of appeal.” Kircher, 261 Mont. at 229, 861 P.2d at

929; Griffin, 260 Mont. at 135, 860 P.2d at 85. Montana Rule of Appellate Procedure

4(1)(a) provides: “[a] final judgment conclusively determines the rights of the parties and

settles all claims in controversy in an action or proceeding, including any necessary

determination of the amount of costs and attorney fees awarded or sanction imposed.”

Here, the contempt order is not a final judgment because it lacks the court’s decision



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regarding the amount of attorney’s fees and costs. Therefore, although Deborah may

appeal the contempt order pursuant to M. R. App. P. 6(3)(h), which allows for appeals from

an order of contempt in family law matters, it is not the court’s final decision on the

contempt matter. As such, we dismiss without prejudice Deborah’s appeal of the August

4, 2016 order holding her in contempt.

                                     CONCLUSION

¶36    The District Court’s June 3, 2016 order adopting an Amended Parenting Plan is

affirmed; the appeal of the August 4, 2016 contempt order is dismissed without prejudice.



                                                  /S/ LAURIE McKINNON


We Concur:

/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE


Chief Justice Mike McGrath, dissenting.


¶37    Occasionally there are cases that demonstrate the inadequacies of our courts to

appropriately resolve highly contested family disputes involving the custody and

placement of innocent children. That is particularly true when parents are determined to

misuse our adversary system of dispute resolution to persist in a litigation posture designed

to assign blame and settle grudges, for real or perceived misconduct, of the other parent by

undermining and denigrating the former spouse. Final resolution of such disputes can take



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years; meanwhile, the children suffer the consequences of the parents’ inappropriate

behavior. The best interest of the child is relevant only to the extent that it provides “a

slogan” for the parties to pursue their own selfish interests.

¶38      This is clearly one of those cases. A.E.B. has endured years with this dispute

dominating her young life.

¶39      At this point in time, A.E.B. is sixteen years old and capable of making her own

decisions regarding the course of her life until she reaches eighteen. Who are we to tell

her she has made the wrong decision?

¶40      Appellant’s motion to amend the parenting plan was filed on April 21, 2014. The

District Court’s decision was filed on June 13, 2016. For various reasons, it has taken over

two (now almost three) years to resolve the motion. During that time A.E.B. has grown

and matured—a significant period of development that the Courts have not recognized.

¶41      The decision of the District Court, in my view, was not in the best interest of this

child.

¶42      I dissent.


                                                   /S/ MIKE McGRATH




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