## Facts

- Heidi Hendershott and Jesse Westphal married in 1999 and had two children.
- Westphal was prone to angry outbursts and, by his own admission, could be controlling and manipulative; he expected Hendershott to do what he said.
- Around 2007, Hendershott obtained a protective order against Westphal and later petitioned for dissolution of marriage in the Eleventh Judicial District Court, Flathead County.
- During dissolution proceedings, the district court conducted hearings on custody and parenting issues and entered interim parenting plans while it evaluated a final plan.
- A central dispute was whether Westphal had physically or emotionally abused Hendershott, as she alleged.
- A licensed psychologist, Dr. Silverman, evaluated the parties and reported that Westphal was insensitive, had difficulty controlling anger, and held traditional “male-dominated” expectations; however, he could not conclude with certainty that abuse occurred.
- Hendershott appeared fearful of Westphal and often requested police or private security presence during child exchanges; she also experienced stress and anxiety and lacked self-confidence.
- Another psychologist identified multiple “red flags” for abuse in the relationship, including power-and-control concerns.
- Westphal wrote Hendershott an apologetic note stating he did not want to be controlling, dominating, or abusive but acknowledged he had acted that way.
- The district court found Dr. Silverman credible and adopted his recommendations, entering a final parenting plan that required future parenting disputes to go to mediation/alternative dispute resolution, but with structure intended to prevent direct contact between the parties.
- After entry of the final parenting plan, Hendershott moved under M. R. Civ. P. 59(g) to amend the plan to remove the mediation/ADR requirement, arguing Mont. Code Ann. § 40-4-301(2) barred court-ordered mediation when domestic violence is suspected.
- The district court denied the Rule 59(g) motion, and Hendershott appealed that denial to the Montana Supreme Court.

## Issues

1. Did the district court violate Mont. Code Ann. § 40-4-301(2) by requiring mediation/ADR in a final parenting plan despite Hendershott’s allegations and evidence of coercive control and fear?
2. Did the district court abuse its discretion by denying Hendershott’s Rule 59(g) motion to amend the parenting plan to strike the mediation/ADR provision?

## Decision

- The Montana Supreme Court affirmed the district court.
- The Court held that § 40-4-301(2) did not bar the mediation/ADR requirement on this record because the statutory domestic-violence limitation was not triggered by the district court’s findings.
- The Court deferred to the district court’s evaluation of conflicting evidence and its credibility determination crediting Dr. Silverman’s testimony that he could not conclude with certainty that abuse occurred.
- The Court approved the district court’s decision to require mediation/ADR with conditions designed to avoid direct contact between the parties.
- Because the mediation/ADR provision was within the district court’s authority and discretion, the denial of the Rule 59(g) motion was affirmed.

## Legal Principles

- Parenting plan determinations, including dispute-resolution provisions, are reviewed for abuse of discretion; statutory interpretation is reviewed de novo.
- Under Mont. Code Ann. § 40-4-301(2), a court may order mediation/ADR for parenting disputes unless the court has a statutory basis to treat the case as involving domestic violence (including a qualifying history of partner or family member assault).
- Allegations and evidence of conflict, anger, and controlling behavior do not automatically bar mediation/ADR absent findings that meet the statute’s domestic-violence limitation.
- A trial court may rely on mental-health evaluations and credibility findings when deciding whether the statutory limitation applies.
- When mediation/ADR is permitted, a court may structure the process to reduce the need for face-to-face interaction and address safety concerns.

## Conclusion

The Montana Supreme Court upheld the district court’s refusal to remove an ADR/mediation requirement from the final parenting plan, concluding that § 40-4-301(2) did not prohibit mediation because the district court did not find a qualifying history of domestic violence and reasonably structured mediation to avoid direct contact between the parents.


Hendershott v. Westphal, 253 P.3d 806 (2011)