                                                                                            07/21/2020


                                           DA 19-0702
                                                                                        Case Number: DA 19-0702

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2020 MT 186N


IN RE THE MARRIAGE OF:

STEVAN STREIT WILLIAMS,

               Petitioner and Appellee,

         v.

LINDSAY MARIE WILLIAMS,

               Respondent and Appellant.

APPEAL FROM:           District Court of the Twenty-Second Judicial District,
                       In and For the County of Stillwater, Cause No. DR 15-13
                       Honorable Matthew J. Wald, Presiding Judge

COUNSEL OF RECORD:

                For Appellant:

                       George T. Radovich, Attorney at Law, Billings, Montana

                For Appellee:

                       Jo Messex Casey, Hendrickson Law Firm, P.C., Billings, Montana


                                                   Submitted on Briefs: June 10, 2020

                                                               Decided: July 21, 2020


Filed:
                                 sr---6ma•—•f
                       __________________________________________
                                         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     Lindsay Williams (Lindsay) appeals from the Amended Findings of Fact,

Conclusions of Law, and Order issued by the Twenty-Second Judicial District Court,

Stillwater County, on November 19, 2019. We affirm. This is the second time this Court

has been asked to review a district court decision regarding the parenting of the Williams

children.

¶3     Lindsay married Stevan Williams (Stevan) on July 10, 1999, and the parties

divorced by dissolution decree entered on November 18, 2016. Lindsay and Stevan have

three children, G.M.W. (16 years old); G.L.W. (12 years old); and T.R.W. (11 years old).

Stevan, G.M.W., and T.R.W. are deaf, and G.M.W. and T.R.W. have cochlear implants.

In the summer of 2015, the parties stipulated to an interim parenting plan of alternating

weeks and continued to follow that schedule until Lindsay moved to Lewistown,

Montana, in August 2016. The parties then agreed the children would reside with Stevan

in Columbus, Montana, and see Lindsay on alternating weekends and holidays with

additional time in the summer until the District Court reached a decision on their

parenting plan.



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¶4    The District Court held a hearing on the parties’ parenting issue on July 17, 2017,

and entered an order on October 11, 2017, which provided for the parties’ Final Parenting

Plan (Parenting Plan).    The court found that both parents were fit and had good

relationships with the children, and that the children were bonded with both parents.

However, the District Court held that the children’s interests were best served by

continuing to reside in Columbus, given the children had lived in Columbus their entire

lives, had numerous relationships and attachments, and had excelled in school there. The

court made clear to Lindsay that the children would reside with her if she established a

home in the Columbus area, but would remain with Stevan if she did not. Lindsay opted

to remain in Lewistown, and the children have continued to reside primarily with Stevan

since that time. Lindsay appealed the October 2017 order, and this Court affirmed the

District Court’s Parenting Plan in all respects on September 11, 2018. In re Marriage of

Williams, 2018 MT 221, 392 Mont. 484, 425 P.3d 1277.

¶5    On December 4, 2017, less than two months after the District Court issued the

Parenting Plan—and while Lindsay’s appeal thereof was still pending with this Court—

Lindsay filed a motion to change the Parenting Plan. Lindsay requested the District

Court interview the children and asked that a Guardian Ad Litem and counselor be

appointed. On January 2, 2018, before the District Court issued its ruling on Lindsay’s

motion to change the Parenting Plan, Lindsay failed to return the children as required by

the District Court’s October 2017 order. The court was forced to issue an ex parte order

on January 4, 2018, providing that, “if necessary, law enforcement officials assist with

the return of the children.” Lindsay was held in contempt for failing to return the

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children to Columbus as required.      On January 9, 2018, the District Court denied

Lindsay’s motion to change the Parenting Plan and ordered Lindsay to pay Stevan’s

attorney fees and costs incurred in responding to the motion.

¶6     Lindsay then barraged the District Court with multiple motions, including requests

that the court withdraw its contempt order; that the court rule on the motion to withdraw

the contempt order; and that the court sanction Stevan’s counsel. On March 6, 2018, the

District Court denied Lindsay’s motion to withdraw the contempt order, and explicitly

warned Lindsay and her counsel that “filing of further motions or other documents that

multiply proceedings in th[e] case w[ould] result in appropriately severe sanctions.” The

March 2018 order also noted that Lindsay had attempted to enroll the children in school

in Lewistown on January 3, 2018, in direct violation of the court’s October 2017 order.

On March 19, 2018, the District Court denied Lindsay’s motion for sanctions and

appointed a counselor for the children, Cherish Roberts (Roberts), with acknowledgement

that Roberts worked in an office with multiple counselors and that the children would

likely have different counselors.

¶7     On March 1, 2019, Lindsay filed a petition for modification of the Parenting Plan,

asking the District Court to designate Lindsay as the primary parent, to permit the

children to move to Lewistown, and to adopt a parenting plan already rejected by the

court two years earlier. Stevan moved to dismiss the petition, asserting that Lindsay had

failed to demonstrate a change of circumstances as required by § 40-4-219, MCA.

Lindsay involved the children in the proceedings by having two of them, G.L.W. and

G.M.W., sign affidavits in support of her petition. Shortly thereafter, Roberts provided

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an affidavit to the District Court stating that the children were diagnosed with child

psychological abuse by Lindsay and that additional time with Lindsay would be

detrimental to the children’s mental health. Roberts also provided the District Court with

a report, created on behalf of each child’s counselor and Roberts herself, stating: (1) the

children each have varying levels of psychological dysfunction which could result in

long-term consequences; (2) each child was being treated for serious mental health issues

because of loyalty conflicts forced by Lindsay; (3) the counselors had growing concerns

about the children’s safety; (4) Lindsay was unwilling to work with the counselors; and

(5) Lindsay should be limited to professionally supervised visits until the children

received a psychological evaluation and until a comprehensive parenting re-evaluation

could be conducted.

¶8     In response to Roberts’s report to the District Court, Stevan filed an ex parte

emergency motion to amend the Parenting Plan pursuant to § 40-4-220(2)(a)(ii), MCA

(providing that a court may temporarily amend a previously ordered parenting plan

ex parte where “an emergency situation has arisen in the child’s present environment that

endangers the child’s physical, mental, or emotional health and an immediate change in

the parenting plan is necessary to protect the child”). The District Court granted Stevan’s

ex parte motion on May 30, 2019, and ordered that Lindsay’s contact with the children be

professionally supervised, based on Roberts’s recommendation and expert opinion that

the children may suffer permanent emotional and psychological damage if they remained

subject to Lindsay’s continued attempts to alienate the children from their father.



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¶9    When a court issues an ex parte order for an interim parenting plan under

§ 40-4-220(2)(a)(ii), MCA, it is required to hold a show cause hearing within 21 days,

giving the parties an opportunity to show why the interim parenting plan should not

remain in effect until further order of the court. Section 40-4-220(2)(b), MCA. In the

present case, the District Court held a scheduling conference on June 3, 2019, but did not

set a show cause hearing at that time given that “[s]cheduling a hearing [on the ex parte

order] was complicated by the schedules of each attorney, each party’s expert witnesses,

and the availability of qualified sign language interpreters.” On June 26, 2019, Lindsay

filed a motion to quash the May 30, 2019 ex parte order, because the District Court failed

to hold a show cause hearing within 21 days as required by § 40-4-220(2)(b), MCA. On

July 15, 2019, Lindsay filed a motion for immediate relief on the same basis. Stevan

objected and filed responses to both motions. On July 24, 2019, the District Court

coordinated the interpreters, parties, and witnesses, and scheduled a hearing on all

pending motions and petitions for August 12, 2019.               Shortly thereafter, on

August 1, 2019, Lindsay filed a motion with the District Court requesting that the court

either interview G.L.W. and G.M.W. in chambers to ascertain their wishes as to their

residence pursuant to § 40-4-214(1), MCA, or permit them to testify in court. The

District Court reserved ruling on Lindsay’s request to interview the children until the

court heard testimony and other evidence regarding the children’s mental health and

treatment at the August 12, 2019 hearing.

¶10   At the August 12, 2019 hearing on all pending motions and petitions, the

District Court denied Lindsay’s motion to quash the ex parte order and her motion for

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immediate relief. The court’s Amended Findings of Fact, Conclusions of Law, and

Order, issued on November 19, 2019, further explained the court’s rationale for denying

these motions. The District Court reasoned that, although there was a 21-day hearing

requirement on its ex parte order, Lindsay’s constitutional rights were not violated by the

delay.    Although Lindsay’s contact with the children was limited to professionally

supervised visits, she was not denied contact altogether; nor was she prohibited from

seeing the children. The District Court held that Lindsay refused to take advantage of

opportunities to remain in contact with her children because she did not like the

parameters set by the court.       Given the children’s best interests, complexities of

scheduling involving the court, the parties, the attorneys, two qualified sign language

interpreters, expert witnesses that each party asserted were necessary, and Lindsay’s

request for the children’s counseling records, the District Court found that a hearing on

all the issues was the appropriate remedy for the scheduling delay.

¶11      The District Court also denied Lindsay’s motion to interview the children or allow

them to testify as witnesses, based on the court’s concern that added participation of the

children in their parents’ custody dispute might be detrimental to their mental health

given the past history of the case; the primary issue of alleged parental alienation by

Lindsay; and the potential emotional and psychological harm to the children that could

result from their further involvement in the litigation.

¶12      As to Lindsay’s petition to amend the Parenting Plan, the District Court held that

Lindsay had failed to show a substantial change in circumstances necessitating the

requested amendment. Section 40-4-219, MCA. The court further held that the best

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interests of the children under § 40-4-212, MCA, would not be served by granting

Lindsay’s requested modification to the Parenting Plan. The District Court affirmed its

May 2019 ex parte order granting Stevan’s motion to amend the Parenting Plan, by

ordering that the October 2017 Parenting Plan be revised to reflect the terms of the

May 2019 ex parte order.

¶13    Lindsay appeals the District Court’s November 2019 order, asserting three errors

which she argues warrant reversal: (1) that the District Court committed reversible error

when it failed to abide by the 21-day hearing requirement as prescribed in

§ 40-4-220(2)(b), MCA; (2) that the District Court committed clear error when it

determined that Lindsay had subjected the children to parental alienation and should be

restricted to professionally supervised parenting time; and (3) that the District Court

deprived Lindsay of due process of law by preventing her from calling the children as

witnesses at trial. We address each issue in turn.

¶14    The first issue raised on appeal is whether the District Court committed reversible

error when it failed to hold a show cause hearing on its ex parte order within the

21-day timeframe as required by § 40-4-220(2)(b), MCA.              Lindsay argues that

§ 40-4-220(2)(b), MCA, imposes “a basic jurisdictional requirement,” and the

District Court exceeded its jurisdiction when it held a hearing on Stevan’s ex parte

motion outside of the 21-day statutory hearing requirement. Lindsay contends that the

court committed structural error because she was “depriv[ed] . . . of all reasonable

contact” with her children in the interim between the issuance of the ex parte order and

the August 12, 2019 hearing.

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¶15    This Court will not reverse a district court’s ruling by reason of an error that

would have no significant impact upon the result. In re H.T., 2015 MT 41, ¶ 10,

378 Mont. 206, 343 P.3d 159 (citing In re J.C., 2008 MT 127, ¶ 43, 343 Mont. 30,

183 P.3d 22). “[I]f there is no showing of substantial injustice, the error is harmless.”

In re A.N., 2000 MT 35, ¶ 39, 298 Mont. 237, 995 P.2d 427.             Where, as here, a

district court engages in a discretionary action which cannot be accurately characterized

as a finding of fact or conclusion of law, we review the district court’s decision to

determine whether the court abused its discretion.       In re F.H., 266 Mont. 36, 39,

878 P.2d 890, 892 (1994).

¶16    We have consistently held that a district court may protect a child’s best interests

despite procedural errors. In re F.H., 266 Mont. at 39, 878 P.2d at 892. Although

Lindsay argues that the District Court’s failure to hold a show cause hearing constitutes a

jurisdictional question warranting plain error review, our reading of the statute reveals

that the 21-day hearing provision is a statutorily imposed procedural requirement.

Roberts’s report to the District Court voiced concerns about the children’s mental and

physical welfare should Lindsay be allowed continued unsupervised visits with the

children. These alarming revelations put the District Court on alert and triggered the

court’s duty to protect the children and ensure that all actions were taken in their best

interests. Here, the court carefully balanced the procedural statutory requirements against

the children’s best interests and ultimately decided to protect the children.          The

District Court’s inability to hold a hearing within 21 days of issuing its ex parte order

does not amount to an abuse of discretion warranting reversal.

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¶17    Lindsay argues to this Court that prospective harm to her rights could have

resulted from the District Court’s failure to hold a hearing within 21 days; however, she

fails to show how the error caused her concrete substantial injustice.1 The fact that

Lindsay was permitted to see the children—albeit under professionally supervised

circumstances—is evidence that the court’s failure to hold a hearing within the requisite

time frame did not result in substantial injustice to Lindsay. The District Court did not

abuse its discretion when it concluded that the children’s best interests precluded granting

Lindsay’s motion to quash the ex parte order in the interim between the 21-day hearing

deadline and the August 12, 2019 hearing.

¶18    Lindsay next argues that the District Court committed clear error when it

determined that she was “guilty of parental alienation” and should be restricted to

professionally supervised parenting time. Lindsay asserts that “there was absolutely no

evidence adduced at trial about any act, speech or conduct by Lindsay that supports the

theory” of parental alienation. We disagree. There is ample evidence in the record to

support the District Court’s findings and conclusions that the children suffered from

parental alienation attributable to Lindsay.

¶19    This Court reviews a district court’s findings of fact supporting a parenting plan to

determine whether they are clearly erroneous.             In re C.J., 2016 MT 93, ¶ 12,

383 Mont. 197, 369 P.3d 1028.          A finding of fact is clearly erroneous if it is not

supported by substantial evidence; if the district court misapprehended the effect of the

1
  For instance, Lindsay’s brief to this Court states that the District Court’s “delay could easily
have caused irreparable harm to Lindsay and it certainly took away valuable time she could have
spent with her children.”
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evidence; or if our review of the record convinces us that a mistake has been made.

In re C.J., ¶ 12.

¶20    Essentially, Lindsay asks this Court to review the same evidence presented to the

District Court and reach different conclusions on Lindsay’s role in the children’s

psychological dysfunction and parental alienation.         Lindsay disagrees with the

District Court’s use of the children’s diagnoses and recommendations made by the

children’s counselors as evidence to be weighed according to the best interest factors in

§ 40-4-212(1), MCA.

¶21    The District Court’s October 2017 order and Parenting Plan found that the

children were bonded and had good relationships with both Lindsay and Stevan. A few

months later, in May 2018, the children’s mental health had deteriorated to the point that

their counselors expressed concern that more time with Lindsay would result in long term

negative impacts to the children’s mental health, including maladaptive coping and

depression. The children’s counselors observed patterns of behavior suggesting parental

alienation instigated by Lindsay with Stevan as the target, and attributed the dramatic

change in the children’s mental health to Lindsay’s behavior. The District Court applied

these findings to the best interest factors in § 40-4-212(1), MCA, to determine that the

children’s interests would be best served by remaining in Columbus with Stevan, where

they have a strong support system. According to the District Court, Stevan “is most

likely to facilitate Lindsay’s contact with the children and follow the recommendations of

the children’s counselors while Lindsay has shown a consistent effort to frustrate and



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undermine Stev[an]’s relationship with the children and does not support the children’s

counseling.”

¶22    We hold that the District Court did not commit clear error in making these

findings, as the record shows that Lindsay continues to refuse to acknowledge her role in

the children’s mental health issues, and does not seem to understand the impact of her

behavior on the children’s long term development. The court’s findings on Lindsay’s

role in the children’s parental alienation diagnoses were supported by substantial

evidence, accurately apprehended by the District Court.

¶23    Lindsay’s final argument on appeal concerns the District Court’s denial of her

motion to interview the children or to allow the children to testify as witnesses. Lindsay

asserts that the court’s denial of her motion deprived her of due process of law.

¶24    Whether a person has been denied his or her right to due process is a question of

constitutional law of which our review is plenary.        In re A.S., 2004 MT 62, ¶ 9,

320 Mont. 268, 87 P.3d 408. We review evidentiary rulings to determine whether the

district court abused its discretion. State v. Enright, 2000 MT 372, ¶ 21, 303 Mont. 457,

16 P.3d 366. The District Court has broad discretion to determine whether evidence is

relevant and admissible, and absent a showing of an abuse of discretion, the trial court’s

determination will not be overturned. Enright, ¶ 21.

¶25    Lindsay argues that this Court’s case law regarding due process in termination

proceedings is applicable in the present circumstances.           See In re A.S., ¶ 12.

In re A.S. involved a petition by the State to terminate the parental rights of a mother who

had repeatedly failed to comply with her treatment plan. Under such circumstances, we

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held that “when the State seeks to terminate a parent’s liberty interest in the care and

custody of his or her child, due process requires that the parent not be placed at an unfair

disadvantage during the termination proceedings.” In re A.S., ¶ 12. “Accordingly, we

have held that fundamental fairness requires that a parent be represented by counsel at

proceedings to terminate parental rights.” In re A.S., ¶ 12.

¶26    Lindsay contends that application of due process is appropriate in the present case.

She characterizes the District Court’s decision to disallow the children’s testimony

“threatened [Lindsay] with termination” of her parental rights. She asserts that the threat

of termination of her parental rights “is the result of the ruling in the present case

although it did not arise in the context of a child protective services matter.” Lindsay

argues that the District Court’s denial of her motion to interview the children or to permit

them to testify violated due process by infringing on her right to call witnesses on her

own behalf. We disagree. The facts of In re A.S. are notably dissimilar to the facts here.

Lindsay’s right to parent her children was not “threatened” or “terminated” as a result of

the District Court’s evidentiary ruling on the permissibility of the children’s testimony,

and therefore her due process rights were not implicated in any way in the proceedings

below. As such, we review the District Court’s denial of Lindsay’s motion to interview

the children or permit them to testify for an abuse of discretion.

¶27    Section 40-4-212(1), MCA, provides that a court must determine a parenting plan

“in accordance with the best interest of the child[ren],” and lists several factors relevant

to the court’s determination.        One such factor is “the wishes of the child.”

Section 40-4-212(1)(b), MCA.       To determine the child’s wishes with regards to the

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parenting plan, § 40-4-214, MCA, permits the court to interview the child in chambers or

to seek the advice of professional personnel. “The statute does not require the court to

interview the children directly. . . . It permits a court to instead rely on the evaluation of a

professional counselor.” Anderson v. Anderson, 2014 MT 111, ¶ 17, 374 Mont. 526,

323 P.3d 895 (internal citations omitted).              This Court has explained that

§ 40-4-214, MCA, is a statutory exception to the rule prohibiting hearsay.

Anderson, ¶ 17 (citing Marriage of Drake, 2002 MT 127, ¶¶ 16-18, 310 Mont. 114,

49 P.3d 38; M. R. Evid. 802).

¶28    Although consideration of the children’s wishes is a factor to be considered under

§ 40-4-212(1), MCA, the District Court is not required to interview the children, nor is it

required to follow their wishes. See Marriage of Williams, ¶ 20. Child witnesses need

protection against the potential emotional and psychological injuries that may occur with

regular litigation procedures. Henricksen v. State, 2004 MT 20, ¶ 46, 319 Mont. 307,

84 P.3d 38. At the August 2019 hearing, substantial testimony was presented regarding

the current and past wishes of the children and their relationships with Lindsay and

Stevan. The court stated its concerns that added participation of the children in their

parents’ custody dispute might be detrimental to their mental health, given the past

history of the case; the primary issue of alleged parental alienation by Lindsay; and the

potential emotional and psychological harm to the children that could result from their

further involvement in the litigation. It was within the District Court’s discretion to hold

that the best interests of the children and potential harm to their mental well-being

outweighed interviewing the children or permitting them to testify as to their preferences,

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given the court’s findings on the children’s mental health, parental alienation, and the

high level of conflict in the case. Therefore, the District Court did not abuse its discretion

in declining to interview the children or to permit them to testify in court as to their

wishes.

¶29    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 constitutional issues, no issues of first impression, and does not establish new

precedent or modify existing precedent.

¶30    Affirmed.


                                                  /S/ LAURIE McKINNON


We concur:

/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
/S/ INGRID GUSTAFSON
/S/ JIM RICE




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