In the Appellate Court
of the Confederated Salish and Kootenai Tribes
of the Flathead Nation, Pablo, Montana
 
CASSIDY JOHNSON, Petitioner/Appellant,
vs.
JAMES LOZEAU, Respondent/Appellee.
 
Appeals Cause No. AP-16-146-DVCS
February 25, 2025, Decided

Appeal from the Tribal Court of the Confederated Salish and Kootenai Tribes, Honorable Bradley A. Pluff, presiding.

Before: TENENBAUM, TAYLOR AND MCDONALD.

Opinion by Justice Tenenbaum, concurred by Justices Taylor and McDonald

OPINION

Appellant Cassidy Johnson appeals from the trial court's order amending the parenting plan governing the custody and visitation of the parties' minor children. Specifically, Johnson argues the trial court abused its discretion by rebalancing parenting time, and by requiring the parties to work together to determine the exact times of exchanges on designated days. We reject Johnson's arguments and affirm the trial court's order.

BACKGROUND

The parties to this appeal, Cassidy Johnson and James Lozeau, share custody of their minor children pursuant to a court-ordered parenting plan. The parties have an extensive history of litigation over their parenting plan. The following is a summary of the procedural history relevant to this matter:

Lozeau filed a pro se petition for dissolution and a proposed parenting plan on March 3, 2016. Johnson filed her response on April 14, 2016. The parties then reconciled. The case was never dismissed. On November 11, 2020, Lozeau, through counsel, filed an Amended Petition for Dissolution and Proposed Parenting Plan. Johnson filed a Response, through counsel, on November 20, 2020. The case was set for trial in September of 2021. Prior to trial the parties agreed to a stipulated final parenting plan. The trial court adopted the stipulated plan in its Findings of Facts, Conclusions of Law, and Decree of Dissolution by Order dated September 1, 2021.

On February 1, 2022, five months after the trial court adopted the stipulated parenting plan of the parties, Lozeau filed a motion to amend the parenting plan. On February 22, 2022, Johnson filed a detailed response to Appellant's Motion, accompanied by a Declaration of the Respondent. On March 2, 2022, the trial court entered an Order denying the Motion to Amend Parenting Plan. The trial court noted that the Motion failed to allege circumstances that would allow reconsideration of the Stipulated Parenting Plan.

On March 17, 2022, still acting pro se, Lozeau filed a second motion to modify the parenting plan. The amended motion also requested that the marital property settlement be modified in that it requested Lozeau to be awarded one of the tax exemptions for the four children. Johnson filed her Response on March 30, 2022, along with another detailed Declaration. Johnson asked the trial court to deny the second motion, and also requested attorney fees as a sanction. On April 20, 2022, the tribal court issued an Order denying the Amended Motion to Amend the Parenting Plan, and further awarded Johnson her attorney fees for having to respond to the Amended Motion. The trial court ruled that Lozeau had again failed to raise a sufficient basis to amend the parenting plan, that he was a vexatious litigant and his filings constituted harassment. The court awarded Appellee costs and attorney fees. Lozeau's appeal of the trial court's decision was unsuccessful.

On December 20, 2023, Lozeau again filed a Motion to Amend Final Parenting Plan, arguing that the children are now three years older and citing various provisions he believes need revision. On January 18, 2024, Johnson filed a Motion for Late Response and simultaneously submitted a Response to the Motion to Amend Final Parenting Plan, objecting to the modifications. On January 25, 2024, Lozeau filed a Motion to Deem Motion to Amend Final Parenting Plan Well Taken. On January 25, 2024, Lozeau also filed a Reply to Response to Motion to Amend Parenting Plan. On January 30, 2024, Lozeau filed a Reply to Response to Motion to Deem Motion to Amend Stipulated Final Parenting Plan Well Taken. On January 30, 2024, Johnson filed a Motion to Enforce Parenting Plan. On February 5, 2024, Lozeau filed a Response to Respondent's Motion to Enforce Parenting Plan. On February 5, 2024, the trial court held a status hearing and scheduled a final hearing. On March 12, 2024, the trial court issued an order denying Lozeau's Motion to Deem Motion to Amend Final Parenting Plan Well Taken and denying Johnson's Motion to Enforce Parenting Plan. On May 12, 2024, the trial court issued an Order denying Lozeau's Motion to Deem Motion to Enforce Marital Settlement Agreement Well Taken and denying Johnson's Motion to Grant Respondent Permanent Sole Custody and Enforce Marital Agreement. On May 13, 2024, the trial court issued an Amended Order regarding Lozeau's Motion in Limine and Johnson's Discovery Request, limiting the witnesses and exhibits Johnson could use and precluding her from submitting an April 9, 2024, discovery request to Lozeau.

On May 16, 2024, the trial court conducted a hearing on Lozeau's Motion to Amend the Parenting Plan. The trial court heard from both parties and multiple witnesses. On May 21, 2024, the trial court conducted separate interviews with the children in chambers. On May 30, 2024, both Lozeau and Johnson filed their respective Proposed Findings of Fact and Conclusions of Law and Proposed Parenting Plans.

On June 18, 2024, the trial court issued an Order to Amend Parenting Plan changing the parties' original parenting plan in four ways:

Parenting time: The parties' two oldest children will maintain their current parenting schedule but may move between their parents' homes as they choose. Their youngest child will now have parenting time from Friday to Sunday every other week instead of just Friday to Saturday. During the summer, he will alternate weeks with each parent, except for the last two weeks before school starts, at which point the regular Friday-to-Sunday schedule will resume. Their youngest daughter will not have scheduled parenting time with Lozeau unless she decides she wants to resume visits. If she does, the previous schedule will apply, and she may move between homes at her discretion. Both parents are required to ensure that the children attend all extracurricular activities they are enrolled in while in their care.

Transportation: Transportation responsibilities will be shared equally between both parents. They may agree on a designated exchange point for custody handoffs. Given that weather and driving conditions can change, they are expected to keep each other informed of any difficulties and work together to resolve transportation issues in the children's best interest.

Parental responsibilities: Both parents are responsible for ensuring that the children are not exposed to illicit drugs, misuse of prescription drugs, or excessive alcohol consumption. Neither parent may use illicit drugs, misuse prescription drugs, or smoke in front of the children. Additionally, parents must refrain from consuming alcohol while caring for them.

Dispute Resolution: If the parents cannot agree on any issue related to the parenting plan or if a significant change in circumstances arises, they must first attempt to resolve the matter through discussion. If discussion fails or is inappropriate, they must participate in mediation before seeking a court resolution. The cost of mediation will be split equally between the parents, and they must submit a Certificate of Mediation Compliance to the court, documenting the mediation date, mediator's name, and outcome.

The trial court cited its interviews with the parties' children in justifying these changes, as well as a desire to promote stability for the children and discourage further litigation to support these amendments.

On July 2, 2024, Johnson filed a timely notice of appeal.

STANDARD OF REVIEW

Unless there is a clear abuse of discretion by the trial court, a custody decision will not be overruled on appeal. Jones v. Vanderburg, AP-04-275, (CSKT App., 2014).

DISCUSSION

Johnson argues the trial court abused its discretion by ordering amendments to her parenting plan with Lozeau. We disagree.

"Decisions over the welfare of minor children in parenting actions should be left to the discretion of the trial judge, who handles the case first-hand and has a superior advantage in determining difficult problems." Pete v. Pete, 09-014-DV, (CSKT App., 2010); see also King v. King. 1P-01-92, (CSKT App., 1992) ("The welfare of the child is the paramount consideration in awarding custody and that it must of necessity be left largely to the discretion of the trial judge.")

On appeal, Johnson first objects to the trial court's amendments to parenting time. In the order in question, the trial court increases Lozeau's parenting time with three of the children, eliminates it for one child, and grants all of the children greater say in their future custody arrangements. In supporting these changes, the trial court cites the ex parte interviews it conducted with the four children1, the children's increased maturity and ability to express their stated interests since the original parenting plan was ordered, and the importance of maintaining family connections as expressed in CSKT Laws Codified, 3-2-101.

Johnson has provided no compelling evidence that the trial court's aforementioned amendment constitutes an abuse of discretion. The record shows that both parties have successfully coordinated child exchanges in the past, though perhaps not consistently. Children's stated interests regarding custody are a key factor in the best interests determination, and that factor increases in importance as children grow older and are better able to advocate for themselves. The lower court appropriately considered and weighed the evidence presented and the conflicting perceptions of the parties, and made findings of fact supported by the evidence and its conclusions of law.

Johnson also objects to the amended order language governing the timing of handoffs as being too vague. The amended parenting plan, however, explicitly identifies the days on which exchanges must occur and requires that the parents work together to establish a mutually convenient time for handoffs to occur. Courts frequently incorporate provisions requiring co-parents to engage in reasonable cooperation, as rigid schedules do not always serve a child's best interests. The trial court's order is consistent with this principle. By setting designated exchange days while allowing flexibility in determining times, and requiring both informal and formal dispute resolution if conflicts arise2 , the plan accommodates the realities of co-parenting and encourages constructive communication.

CONCLUSION

The trial court did not abuse its discretion in rebalancing the parties' parenting time in accordance with their children's stated desires. Nor did the trial court abuse its discretion by requiring the parties to work together to determine the exact times of exchanges on designated days. For the foregoing reasons, we affirm the trial court's order amending the parenting plan.

Dated this 25th day of February, 2025.

/s/ Danny Tenenbaum
Justice Danny Tenenbaum