                                                                                         March 29 2016


                                          DA 15-0556
                                                                                        Case Number: DA 15-0556

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2016 MT 74N



IN RE THE MARRIAGE OF:

KAYLEEN M. WALL, n/k/a NOLAND,


              Petitioner and Appellee,

         v.

JOHN E. WALL,

              Respondent and Appellant.



APPEAL FROM:           District Court of the Twentieth Judicial District,
                       In and For the County of Lake, Cause No. DR-14-32
                       Honorable James A. Manley, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Matthew H. O’Neill, O’Neill Law Office, PLLC, Polson, Montana

                For Appellee:

                       Lucy Hansen, Judnich Law Office, Missoula, Montana



                                                   Submitted on Briefs: March 2, 2016

                                                              Decided: March 29, 2016


Filed:

                       __________________________________________
                                         Clerk
Justice Laurie McKinnon 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      John E. Wall (John) appeals from two orders, entitled Findings of Facts,

Conclusions of Law, and Final Decree (Final Decree) and Final Parenting Plan, entered

by the Twentieth Judicial District Court, Lake County. We affirm in part and reverse in

part.

¶3      On September 7, 2013, John married Kayleen M. Wall (Kayleen). Kayleen had

two children prior to the parties’ marriage. On February 27, 2014, Kayleen obtained an

Order of Protection against John from the Tribal Court of the Confederated Salish and

Kootenai Tribes that prohibited John from having any contact with her or her children.

The Order of Protection was later made permanent. On March 7, 2014, Kayleen filed for

dissolution. In June 2014, John and Kayleen’s son, D.J.W., was born. Following a

hearing on the parties’ dissolution and parenting plan, the District Court issued its Final

Decree and Final Parenting Plan on August 11, 2015. John appeals.

¶4      John raises five issues on appeal. He first claims that the District Court erred in

allowing John’s ex-wife, Dawn Burnham (Burnham), to testify. John argues Burnham’s

testimony was inadmissible because portions constituted hearsay or were both hearsay

and irrelevant. Relevant evidence is generally admissible unless “its probative value is


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substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” M. R. Evid. 402; 403. Evidence is relevant if it

has “any tendency” to make the existence of any fact more probable or less probable than

it would be without the evidence. M. R. Evid. 401. Hearsay is inadmissible. M. R. Evid.

802.

¶5     Burnham testified about her prior relationship and marriage to John; several

instances of John’s emotional and physical abuse against her; an incident where John

admitted that he was angry at their child and threw an object, which missed the child and

hit the wall, causing a hole in the sheetrock; John’s relinquishment of his parental rights

to he and Burnham’s child; and an allegation of child abuse she made against John that

caused Child Protective Services to investigate him. Burnham testified that their son

apologized for causing the hole in the wall. When prompted that it was not his fault John

had thrown something at the wall, the son told Burnham it was John throwing him and

his head, not an object, that caused the hole in the sheetrock. It was after this incident

that Burnham called Child Protective Services and made an allegation of child abuse

against John. This testimony garnered seven objections based on hearsay and one on

relevance. The District Court stated, “I’m going to allow the witness to testify to what

the child said to her for the limited purpose of explaining what actions [Burnham] took

and why.”

¶6     Burnham’s testimony regarding her prior relationship and marriage to John did not

constitute hearsay. In general, Burnham testified based upon her personal knowledge


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about her relationship with John, their child, and their family dynamics. Burnham’s

testimony regarding the incident where John allegedly threw their son into a wall and the

resulting child abuse investigation was relevant to the parenting proceeding focused on

developing a parenting plan for John and Kayleen’s minor child. As explained by the

District Court, Burnham’s testimony regarding what their son told her about the wall

incident was offered and accepted by the court, not to prove the truth of the matter

asserted—that John actually threw their son into a wall—but for the limited purpose of

explaining why Burnham called Child Protective Services. Because the purpose of the

statement was not to prove the truth of the matter asserted, it was not hearsay, and was

admissible because of its relevance.      The District Court did not err in allowing

Burnham’s testimony. We affirm the District Court on this issue.

¶7    The second issue John raises on appeal is whether the District Court erred in

allowing Kayleen’s pastor, Lawrence Nicholas (Nicholas), to testify. John claims that

Nicholas’ testimony was prohibited under §§ 26-1-804, -813 and 40-4-303, MCA, and

M. R. Evid. 802. Section 26-1-804, MCA, provides that a member of the clergy or priest

may not, without consent of the person confessing, be examined as to any confession

made to them. Section 26-1-813(2)(a), MCA, provides that, except if consented to in

writing by both parties, mediation discussions are confidential. Section 40-4-303, MCA,

provides mediation proceedings are subject to confidentiality and privileges provisions of

§ 26-1-813, MCA. Hearsay is inadmissible. M. R. Evid. 802.

¶8    Nicholas testified that he knew Kayleen because she attends his church and that he

met John through Kayleen. He testified he had known Kayleen for three or more years,


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had performed John and Kayleen’s marriage ceremony, and later held one marital

counseling session with them. John objected to Nicholas’ testimony on the grounds of

pastor privilege, mediator privilege, and hearsay. Nicholas testified that before John

came to the session, he found out that Kayleen was afraid of John, John drank, and got

angry when he drank. Nicholas testified that John arrived late and appeared very angry.

Nicholas testified that “because [John] was that angry,” he was concerned he might need

to “jump in between both of them.” Nicholas testified that John left the session early,

Nicholas heard him peeling out of the church’s gravel parking lot, and that he had not

seen or spoken to John since. When Kayleen’s attorney asked Nicholas, “if Kayleen told

you that she was afraid of John, based upon that meeting would you believe that her fears

are justified?” Nicholas answered, “Yeah.”

¶9     Section 26-1-804, MCA, does not apply and did not prohibit Nicholas’ testimony

because Nicholas did not testify as to any confession John made to Nicholas. Sections

26-1-804, -813, MCA, do not apply and did not prohibit Nicholas’ testimony because

Nicholas did not testify as to any confidential discussions made during mediation. The

rule against hearsay does not apply and did not prohibit Nicholas’ testimony because

Nicholas testified about his personal observation of the parties’ behavior and actions, and

not specific statements made or offered for their truth. The District Court did not err in

allowing Nicholas’ testimony. We affirm the District Court on this issue.

¶10    The third issue John raises on appeal is whether the District Court erred by

requiring John to have supervised visitation with D.J.W. in its Final Parenting Plan. John

contends that the District Court lacked substantial evidence and failed to make a finding


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required under § 40-4-218(2), MCA. “[I]f the court finds that in the absence of the order

the child’s physical health would be endangered or the child’s emotional development

significantly impaired, the court may order supervised visitation by the noncustodial

parent.” Section 40-4-218(2), MCA. This provision does not require the court make a

specific finding or that it be included in the parenting plan. We review a district court’s

factual findings pertaining to a parenting plan to determine if they are clearly erroneous.

In re Marriage of Anderson, 2014 MT 111, ¶ 11, 374 Mont. 526, 323 P.3d 895 (citation

omitted). A finding is clearly erroneous if it is not supported by substantial evidence, if

the district court misapprehended the effect of the evidence, or if our review of the

evidence convinces us that the district court made a mistake. Anderson, ¶ 11 (citation

omitted).

¶11    In the Final Parenting Plan, the District Court found D.J.W. would primarily reside

with Kayleen, the custodial parent, and that John would have supervised visitation with

D.J.W. two Saturdays per month.        In making its determination, the District Court

recognized that John’s “chemical dependency . . . is a factor;” that “physical abuse and

the threat of physical abuse by [John] against [Kayleen] and her children is a factor;” and

that a “Permanent Restraining Order, Cause No. 14-060-TPO, has been issued in the

Tribal Court of the Confederated Salish and Kootenai Tribes prohibiting [John] from any

contact with [Kayleen] or her children.” The Final Parenting Plan stated, there “are

circumstances which warrant a limit or restraint on access to [D.J.W.] by [John.]” It also

stated that the Final Parenting Plan would be reviewed annually and be modifiable when

necessary to serve D.J.W.’s needs. When the Final Parenting Plan was ordered, John had


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not met D.J.W. or requested to do so. The District Court did not err in granting John

supervised visitation because substantial evidence supported a finding that, without

supervised visits, D.J.W.’s physical health would be endangered or his emotional

development significantly impaired. We affirm the District Court on this issue.

¶12    The fourth issue John raises on appeal is whether the District Court erred in

permitting the prevailing party to recover attorney fees in future modifications to the

Final Parenting Plan. Section 40-4-110, MCA, governs costs associated with proceedings

involving marriage, termination of marriage, child custody, and support. That section

reads, in pertinent part:

       The court from time to time, after considering the financial resources of
       both parties, may order a party to pay a reasonable amount for the cost to
       the other party of maintaining or defending any proceeding under chapters
       1 [Marriage] and 4 [Termination of Marriage, Child Custody, Support] and
       for professional fees, including sums for legal and professional services
       rendered and costs incurred prior to the commencement of the proceeding
       or after entry of judgment.

Section 40-4-110(1), MCA. The Final Parenting Plan states that “[s]hould Court action

occur, the prevailing party shall be awarded attorney fees.” This provision in the Final

Parenting Plan is impermissible because it conflicts with § 40-4-110(1), MCA, in that it

does not require or allow the District Court to consider the financial resources of both

parties before awarding attorney fees. The District Court erred in including such a

provision in the Final Parenting Plan, which is inconsistent with the requirements of

§ 40-4-110(1), MCA. We reverse the District Court on this issue and remand with

instructions to vacate this provision of the Final Parenting Plan.




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¶13   The fifth issue John raises on appeal is whether the District Court erred by failing

to include, in its Final Decree, a requirement that Kayleen reimburse John for $500 worth

of hay John fed to Kayleen’s cattle. Kayleen concedes this issue, stating the “District

Court record is clear, that Kayleen did not object to paying Appellant $500.00 for a hay

credit.” This issue is not contested. The District Court erred by failing to include a

requirement that Kayleen reimburse John for $500 worth of hay. We reverse the District

Court on this issue and remand with instructions to credit John with $500.

¶14   We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. This appeal

presents no issues of first impression and does not establish new precedent or modify

existing precedent.

¶15   Affirmed in part, reversed in part, and remanded for modification of the Final

Parenting Plan and Final Decree consistent with this Opinion.


                                                /S/ LAURIE McKINNON

We Concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE




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