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                                                               No. 00-821

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                              2001 MT 242



                                                   IN RE THE CUSTODY OF:

                                        SAWYER THOMAS ARNESON-NELSON,

                                                              a minor child.

                                              DEBBIE M. ARNESON-PENGRA,

                                                    Petitioner and Respondent,

                                                                      v.

                                                  MARK EDWARD NELSON,

                                                    Respondent and Appellant.

                             APPEAL FROM: District Court of the First Judicial District,

                                          In and for the County of Lewis and Clark,

                                   The Honorable Dorothy McCarter, Judge presiding.

                                                     COUNSEL OF RECORD:

                                                             For Appellant:

                         Kathryn S. Syth, Gillen, LaRance & Syth, P.C., Billings, Montana

                                                            For Respondent:

                                 Debbie M. Arneson-Pengra (pro se), Helena, Montana


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                                                Submitted on Briefs: June 7, 2001
                                                  Decided: December 4, 2001

                                                                    Filed:

                                    __________________________________________

                                                                    Clerk



Justice Jim Regnier delivered the Opinion of the Court.

¶1 Mark Edward Nelson appeals from the June 8, 2000, Order of the First Judicial District
Court, Lewis and Clark County. We affirm.

¶2 We find the following issues dispositive:

¶3 1. Whether the District Court erred in amending the prior parenting plan to suspend
Nelson's visitation rights?

¶4 2. Did the District Court err in failing to appoint a guardian ad litem?

¶5 3. Whether Nelson's Due Process and Equal Protection Rights were violated?

                                                          BACKGROUND

¶6 This case arises out of an entrenched custody and child support dispute between Debbie
M. Arneson-Pengra (Pengra) and Mark Edward Nelson (Nelson). Pengra and Nelson are
the parents of Sawyer Thomas Arneson-Nelson (Sawyer) and have never been married to
each other. Sawyer was born on August 3, 1994.

¶7 The legal wrangling began when Pengra filed a motion for custody and child support
on February 23, 1995. Sawyer was just over six months old at the time. In the ensuing six
years, Pengra and Nelson have waged a protracted battle over custody and visitation
rights. Throughout this time, the parties have inundated the District Court with what it
labeled as a "constant barrage" of communications, motions and requests.

¶8 During the course of this dispute, Nelson has had a history of verbally abusive

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altercations with Pengra, the court and mediators. The District Court specifically noted
Nelson's hostility and aggressiveness toward Pengra and her boyfriend when it held
Nelson in contempt for violating an order that prohibited the parties from speaking with
each other.

¶9 The court gave Pengra temporary custody of Sawyer on April 24, 1995, and Nelson
visitation rights. Approximately four months later, the court ordered both parties to submit
to psychological evaluations to assist in the custody determination. Judge Jeffrey M.
Sherlock entered a custody order on January 24, 1996, noting the extreme hostility
between the parties. The order provided that Pengra and Nelson have joint custody of
Sawyer. Pengra was to have physical custody, while Nelson was to have specified
visitation rights. The District Court ordered the parties to exchange Sawyer at a neutral
observer's residence.

¶10 Due to an inflammatory letter Nelson wrote and sent to him, Judge Sherlock
eventually recused himself from this case. On April 23, 1997, Judge McCarter assumed
jurisdiction of the case and ordered that a member of the sheriff's office be present at the
parties' exchanges of Sawyer.

¶11 On May 14, 1997, the District Court ordered an investigation and report on the
circumstances of the custody arrangement. The custody reevaluating report was issued on
June 4, 1997. In their report, the doctors stated that Nelson was verbally aggressive toward
Pengra and the neutral observers. The study indicated that these outbursts had a negative
effect on Sawyer. It also noted, however, that Sawyer was not frightened of his father,
except during Nelson's outbursts.

¶12 On April 19, 1999, the District Court entered the Final Parenting Plan. The court gave
Pengra primary custody of Sawyer and the authority to make all decisions regarding his
care. Nelson was allowed specific visitation rights. The District Court also ordered Pengra
to undergo counseling to improve her parenting skills and Nelson to undergo anger
management counseling. We affirmed the plan in In re Custody of Arneson-Nelson, 2000
MT 31N, 299 Mont. 545, 4 P.3d 1218.

¶13 Pengra filed a Motion for an Ex Parte Order and Hearing on March 21, 2000, asking
the court to suspend Nelson's visitation rights. Nelson was provided a Notice of Hearing
for Ex Parte Motion on March 16, 2000. On March 21, 2000, the District Court reviewed
the motion. Both parties were present at the courthouse. Later that day, the court issued an


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Ex Parte Order suspending all of Nelson's contact with Sawyer and set a hearing on the
matter for May 4, 2000.

¶14 At the hearing, both parties were allowed to put on and cross-examine witnesses. On
June 8, 2000, the District Court entered an Order that suspended all physical contact
between Nelson and Sawyer. Instead, the court limited Nelson's contact with Sawyer to
phone calls, email and mail. Nelson appeals the Order.

                                                  STANDARD OF REVIEW

¶15 We review a district court's findings relating to custody modification to determine
whether those findings are clearly erroneous. See In re Marriage of Johnson (1994), 266
Mont. 158, 166, 879 P.2d 689, 694 (citation omitted). Findings are clearly erroneous if
they are not supported by substantial evidence, the court misapprehends the effect of the
evidence, or this Court's review of the record convinces it that a mistake has been made.
See Johnson, 266 Mont. at 166-67, 879 P.2d at 694 (citation omitted). We will reverse a
district court's decision to modify custody or visitation only where an abuse of discretion
is clearly demonstrated. In re Marriage of Hunt (1994), 264 Mont. 159, 164, 870 P.2d
720, 723.

                                                              ISSUE ONE

¶16 Whether the District Court erred in amending the prior parenting plan to suspend
Nelson's visitation rights?

¶17 A court may, in its discretion, amend a prior parenting plan if it finds that there has
been a change in circumstances of the child and that a change is necessary for the best
interests of the child. See § 40-4-219(1), MCA. In making this determination, the District
Court relies on facts that arose after the prior parenting plan or that the court was unaware
of at the time of the prior plan. See § 40-4-219(1), MCA.

¶18 The hearing to determine whether to amend Sawyer's parenting plan was largely a
battle of conflicting testimony. Pengra put on evidence to show that Nelson's behavior has
negatively affected Sawyer. Pengra's primary witness was Joyanna Silberg, PhD., a Senior
Psychologist at the Sheppard and Enoch Pratt Hospital in Baltimore, Maryland. Dr.
Silberg testified that Sawyer was seriously emotionally disturbed and opined that the
source of these problems was Sawyer's fear of his father and Nelson and Pengra's


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hostilities toward each other.

¶19 Nelson countered this testimony with his primary witness, Scott Harris. Harris was the
Montana Department of Public Health and Human Services' caseworker assigned to the
case. He testified that he had investigated several allegations of child abuse by Nelson, but
found no evidence of abuse. Nelson also testified on his own behalf.

¶20 Following the hearing, the District Court found that "any form of attempted co-
parenting is impossible without causing further and continuing harm to Sawyer" and that
"[Nelson] is causing harm to Sawyer by refusing to assist in, and attempting to frustrate,
Sawyer's mental health therapy and by refusing to cooperate with the professionals
involved in Sawyer's life." The court went on to find that "it is in Sawyer's best interest to
suspend [Nelson's] physical contact with Sawyer" and that "[a]ny visitations between
[Nelson] and Sawyer shall be at [Pengra's] sole discretion."

¶21 Nelson argues that the court's findings are not supported by substantial credible
evidence and that the court misapprehended the effect of this evidence. He thus contends
that the court's findings were clearly erroneous. We disagree.

¶22 We begin our analysis by reiterating that "[t]he trial court is in a better position than
this Court to resolve child custody issues. The district court's decision is presumed correct
and will be upheld unless a clear abuse of discretion is shown." Fitzgerald v. Brown (In re
Custody of J.M.D.) (1993), 259 Mont. 468, 473, 857 P.2d 708, 712. It is the function of
the district court to resolve conflicts regarding evidence. See In re Marriage of Penning
(1989), 238 Mont. 75, 78, 776 P.2d 1214, 1216.

¶23 Pengra's primary witness, Dr. Silberg, testified that Sawyer was severely disturbed
and that he did not feel safe at his father's home. During her evaluation of Sawyer, she
noted that he displayed a number of dissociative symptoms such as confusion in memory
and rapid changes in mood, behavior and cognition. Dr. Silberg testified that Sawyer's
emotional condition worsened between her first and second evaluations.

¶24 Most disturbing, at her second evaluation of Sawyer, Dr. Silberg inquired about the
pain he experienced when urinating. Her report noted his response: "I was in the bathroom
and the bad people put a screwdriver in like this (he touched his penis). They taped it on.
The bad people heard my crying and told me to stop but I could not stop crying." She
noted in her report that, while the specific events that Sawyer relayed to her were


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improbable, he was reporting some form of purposefully inflicted trauma and that Sawyer
appears convinced that there are people that intend to hurt him. In her testimony, she
recommended that the court continue to suspend Nelson's visitation rights with Sawyer
until Nelson receives mental health therapy.

¶25 Nelson argues that the District Court should not have entertained Dr. Silberg's
testimony. He argues that § 40-4-219, MCA, barred Dr. Silberg's testimony concerning
matters prior to the original parenting plan. We disagree. The statute clearly requires the
district court to "consider post-decree facts, as well as pre-decree facts unknown to the
trial court at the time the decree was entered, in determining both the 'change in
circumstances' and the 'best interests' requirements." In re Marriage of Sarsfield (1983),
206 Mont. 397, 413, 671 P.2d 595, 604. Dr. Silberg's testimony and report were not
introduced at the time of the original parenting plan because Dr. Silberg was unavailable
for cross-examination. Therefore, Dr. Silberg's testimony was unknown to the District
Court at the time of the original plan.

¶26 Nelson also contends that the District Court erred in allowing Dr. Silberg to testify as
an expert witness. He argues that Dr. Silberg did not possess adequate knowledge to make
an expert opinion, in part, because she never interviewed Nelson nor reviewed Sawyer's
pediatric records, although she did speak to Sawyer's pediatrician. Furthermore, Nelson
argues that Dr. Silberg's knowledge of the situation was biased as it was provided by
Pengra.

¶27 Again, we disagree. The role of determining the qualification and competency of an
expert witness rests largely with the trial judge, and we will not disturb that determination
without a showing of abuse of discretion. See Cottrell v. Burlington N. R.R. (1993), 261
Mont. 296, 301, 863 P.2d 381, 384 (citations omitted). Dr. Silberg has extensive
experience in evaluating and treating children with serious emotional disturbances. Dr.
Silberg evaluated Sawyer at her office in Baltimore in January 1999, and conducted a
follow-up assessment in Helena, Montana, in February 2000. She also interviewed Pengra
and consulted numerous documents, including school, legal and therapy records. She
testified that many of these sources provided objective information concerning Nelson's
anger control in front of Sawyer. Given this testimony, we cannot conclude that the
District Court abused its discretion in allowing Dr. Silberg to testify. See State v. Hocevar,
2000 MT 157, ¶60, 300 Mont. 167, ¶60, 7 P.3d 329, ¶60 (holding that an expert could
base diagnosis on review of medical records, investigative statements and information
concerning defendant).

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¶28 Nelson further argues that the District Court misapprehended the evidence presented.
He contends that it is Debbie's, not his, hostility that has resulted in harm to Sawyer.
Nelson's primary witness, Harris, testified that he had observed Sawyer with Nelson for
several hours and witnessed no harmful interaction between them. Furthermore, he
testified that he saw no reason to discontinue Nelson's access to Sawyer. On cross-
examination, Harris testified that he did not have the training to even attempt to diagnose a
child with a dissociative disorder and that he would not argue with a nationally known
psychologist on the subject.

¶29 The District Court was clearly faced with contradictory evidence concerning Sawyer's
mental health and Nelson's affect on that health. It is the role of the district court, however,
to untangle conflicting evidence. See Penning, 238 Mont. at 78, 776 P.2d at 1216.
Reviewing the record, we cannot conclude the District Court's findings are clearly
erroneous.

¶30 Sawyer finally argues that the District Court's failure to make the specific finding of a
"change in circumstances" constituted error. As we noted above, a district court may
amend a prior parenting plan if it finds a "change has occurred in the circumstances." See
§ 40-4-219(1), MCA. Here, the District Court made numerous findings relating to
Sawyer's emotional well-being. While the court did not make a specific finding that there
was a "change in circumstances," we conclude, upon a review of the court's Order, that the
court implied such a finding. In particular, the District Court noted that "[t]estimony
indicated that Sawyer has improved significantly since March 21, 2000, when Mark's
visitations were suspended." Our conclusion does not lower the requirement that there be a
change in circumstances to amend a prior parenting plan. Instead, we simply conclude that
the District Court's failure to specifically cite the words a "change in circumstances" is, at
most, harmless error. See Rule 61, M.R.Civ.P.; see also In re Marriage of Abrahamson
(1996), 278 Mont. 336, 343, 924 P.2d 1334, 1338 (holding that the district court's failure
to explicitly mention § 40-4-212(3)(a), MCA, constituted, at most, harmless error).

¶31 For the reasons set forth above, we conclude that the District Court's findings were not
clearly erroneous and it did not abuse its discretion in amending the prior parenting plan.

                                                              ISSUE TWO

¶32 Did the District Court err in failing to appoint a guardian ad litem?


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¶33 Nelson argues that the court erred in amending the parenting plan without first
appointing a guardian ad litem. His rationale is that both parties asked for a guardian ad
litem and that the court should not have made such a significant decision as to Nelson's
parenting rights without first appointing a guardian ad litem. Nelson does not cite any
authority for his position.

¶34 Section 40-4-205, MCA, states that a "court may appoint a guardian ad litem to
represent the interests of a minor dependent child with respect to the child's support,
parenting, and parental contact." (Emphasis added). We have consistently held that this is
not a mandatory statute, and such an appointment is discretionary with the court. See
Fitzgerald, 259 Mont. at 476, 857 P.2d at 714; In re Marriage of Johnston (1993), 255
Mont. 421, 428-29, 843 P.2d 760, 764; Merriman v. Merriman (In re Marriage of
Merriman) (1991), 247 Mont. 491, 496, 807 P.2d 1351, 1354. Here, the District Court
considered Nelson's request, but denied it stating that "[t]he Court is unwilling to place
anyone else in danger of Mark's threatening and aggressive behavior." We therefore
conclude that the District Court did not abuse its discretion in not appointing a guardian ad
litem.

                                                            ISSUE THREE

¶35 Whether Nelson's Due Process and Equal Protection Rights were violated?

¶36 Nelson argues that the hearing before the District Court violated the Due Process
Clause and that the District Court's subsequent restriction of Nelson's visitation rights
violated the Equal Protection Clause. In asserting both claims, Nelson essentially argues
that his visitation rights implicate natural parenting rights to care and custody of a child.
He asserts that such rights are fundamental rights that are protected by both the Due
Process and Equal Protection Clauses of the United States and Montana Constitutions. The
District Court's hearing and findings, according to Nelson, must therefore undergo
constitutional analysis. Nelson initially raised these claims in his Motion for Supervisory
Control, but we dismissed Nelson's motion without ever addressing the merits. Therefore,
we now turn to these issues for the first time.

¶37 A constitutional issue is waived if not presented at the earliest opportunity. See
Billings Deaconess Hosp. v. Angel (1986), 219 Mont. 490, 495, 712 P.2d 1323, 1327;
Dodd v. City of East Helena (1979), 180 Mont. 518, 523, 591 P.2d 241, 244. Nelson never
objected at the hearing or in any post-hearing motions to the District Court that the hearing


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violated the Due Process Clause nor that any restriction of his visitation rights may violate
the Equal Protection Clause. Instead, Nelson first brought these claims before this Court.
We conclude that Nelson did not raise these claims at the earliest opportunity and
therefore waived them.

¶38 Affirmed.

                                                         /S/ JIM REGNIER

                                                               We Concur:

                                                      /S/ KARLA M. GRAY

                                                    /S/ JAMES C. NELSON

                                               /S/ W. WILLIAM LEAPHART



Justice Patricia Cotter dissents.

¶39 I concur with the majority's conclusion as to Issue 2. However, I respectfully dissent
from the majority's conclusions as to Issue 3, and Issue 1 to the extent the District Court
exceeded the scope of Pengra's Motion for an Ex Parte Order.

¶40 In Pengra's filings to the court, she requested an Ex Parte Order immediately
suspending Nelson's visitation rights, and further moved the District Court to set a hearing
to make the suspension permanent. She requested an additional hearing in six months to
determine whether supervised visits could then renew. At no time did Pengra request sole
custody of Sawyer. In its order granting the immediate suspension, the District Court
explained that Pengra "requested a hearing to make the suspension permanent until further
evidence was established."

¶41 The District Court concluded that concerns for Sawyer's safety warranted immediate
suspension of visitation between Nelson and Sawyer until the various professionals could
be heard, and scheduled a hearing to take place approximately two weeks later. There was
no notice from either the court or Pengra that Pengra could be granted sole custody of
Sawyer or that Nelson's visitation rights could be permanently suspended without means

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for re-evaluation.

¶42 In its order suspending visitation permanently, the District Court went beyond the
relief Pengra had originally requested. The District Court suspended all physical contact
between Nelson and Sawyer indefinitely. Although Pengra had initially asked the court to
later hold a hearing to review Nelson's progress and determine if visitation could then be
re-instituted, the court did not make any such provision in its Final Order, instead granting
Pengra the sole right to decide what, if any, contact Nelson could ever have with Sawyer
in the future. Considering the extensive animosity between these parents, this order in
effect terminated Nelson's rights of visitation, as it is extremely unlikely Pengra will ever
agree to allow visitation of any kind.

¶43 Moreover, although not specifically mentioned in the majority Opinion, the District
Court also granted Pengra sole custody of Sawyer, even though she had not requested such
relief.

¶44 "In marital cases, as in other cases, the essential elements of due process are notice
and an opportunity to be heard." In re Marriage of Huotari (1997), 284 Mont. 285, 291,
943 P.2d 1295, 1299 (a father's right to procedural due process was denied when a district
court went beyond the matter before it) (citation omitted). "[I]f a permanent change in
custody appears to the court to be necessary, then due process requires that an application
be made for that purpose and proper notice of such application be given." State ex rel.
Shelhamer v. District Court (1972), 159 Mont. 11, 15, 494 P.2d 928, 930 (in a proceeding
for nonsupport and contempt, it was error for the court to change custody provisions). The
requirement that all issues to be tried must be raised in the pleadings applies to child
custody disputes, and a District Court does not have jurisdiction to grant relief outside of
the issues presented by the pleadings, without agreement of the parties. Matter of Custody
of C.J.K. (1993), 258 Mont. 525, 527, 855 P.2d 90, 91 (issue of immediate primary
physical custody of a child was not properly before the court for its ruling) (citations
omitted).

¶45 Neither Pengra's motion, nor the notice of hearing alerted Nelson that he stood to lose
both his right of joint custody and his right of continuing visitation with his son on a
permanent basis. While the majority concludes that Nelson's due process arguments were
waived for his failure to raise them below, the fact is that the District Court orders
exceeding the relief sought by Pengra were not entered until June 8, 2000, over a month
after the hearing which was held to address only the relief sought by Pengra. Moreover,


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we have consistently held that "a natural parent's right to care and custody of a child is a
fundamental liberty interest, which must be protected by fundamentally fair procedures."
In re J.N., 1999 MT 64, ¶ 12, 293 Mont. 524, ¶ 12, 977 P.2d 317, ¶ 12 (citation omitted).
Nelson was not accorded fundamentally fair procedures here, and I would not conclude he
has waived his right to those procedures.

¶46 I would reverse the District Court's order and remand for a full hearing, requiring
Pengra to set forth specifically in her pleadings the relief she seeks, and giving Nelson a
full opportunity to present evidence and argument against the prospect of a change in
custody and the permanent suspension of his visitation rights.

                                                    /S/ PATRICIA COTTER




Justices Jim Rice and Terry N. Trieweiler concur in the foregoing dissent.



/S/ JIM RICE

/S/ TERRY N. TRIEWEILER




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