No. 98-050 INTHE SUPREME COURT OF THE STATE OF MONTANA 1999 MT 117

DEBBIE GROVES, Petitioner and Respondent,
v. LON and LORALEE CLARK, Respondents and Appellants.

APPEALFROM: District Court ofthe Eighth Judicial District, In and for the County ofCascade, The Honorable Kenneth R. Neill, Judge presiding.

COUNSEL OF RECORD: ForAppellant: DarcyM. Crum, Great Falls, Montana ForRespondent: David Stuft, Kalispell, Montana

Submitted on Briefs: October 1, 1998 Decided: May 28, 1999 Filed:

CleikJustice William E. Hunt, Sr. delivered the Opinion ofthe Court. ,-rl Lon and Loralee Clark (the Clarks), adoptive parents of L.C., appeal from the Findings ofFact, Conclusions ofLaw, andJudgment enteredby the Eighth Judicial District Court, Cascade County, allowing Debbie Groves (Groves), L.C.'s birth mother, monthly weekend visitation and weekly telephone contact with L.C. The Clarks also appeal the court's denial oftheir motion for a new trial. We affirm. ,-r2 The Clarks presentthe following issues for review: ,-r3 1. Didthe District Court err in finding that post-adoption visitation with Groves was in the best interest ofL.C.? ,-r4 2. Did the District Court err in modifying 

### sua sponte the parties' post-adoption visitation agreement? ,-r5 3. Didthe District Court err in denying the Clarks' Rule 59, M.R.Civ.P. motion for a new trial? BACKGROUND ,-r6 This is the second appeal filed in this case concerning post-adoption visitation between Groves and L.c. A more detailed account ofthe facts ofthis case can be found in Groves v. Clark (1996), 277 Mont. 179,920P.2d981 (hereinafter Groves I). To summarize, in January 1994, whenL.C. was three years old, Groves signed a document terminating her parentalrights to L.c.,relinquishing custody ofL.C. to Lutheran Social Services (LSS), and consenting to adoption. Groves and the Clarks signed a written visitation agreement which providedthe following: Groves wouldhave unrestricted visitation with L.c. so long as she

2gave the Clarks two days notice; Groves would have unrestricted telephone contact with L.C.; and Groves wouldhave the right to take L.c. out ofschool inthe event she hadto "go to Butte for some emergency." This agreement was drafted by the LSS and neither party consulted an attorneybefore signingit. In February 1994, the District Court entered an order terminating Groves' parental rights to L.C. and awarding custody of L.C. to LSS. In September 1994, the Clarks legally adopted L.c.**~7** Groves and the Clarks abided by the terms ofthe visitation agreementuntil June 5, 1995, when Groves notifiedthe Clarks that she wantedto take L.c. to Butte for the weekend and the Clarks refused. The Clarks told Groves that she was welcome to visit L.C. in their home, but couldnot take L.c. on extended out-of-town trips. Several weeks later, Groves filed a petitionrequesting specific performance ofthe visitation agreement. The Clarks filed

an objection andbriefin opposition to the petition which the parties agreed couldbe treated

as a motion for summaryjudgment.**~8** InDecember 1995,theDistrictCourtdeniedGroves' petitionfor specificperformance ofthe visitation agreement. The court concludedthat, pursuantto §40-8-125, MCA, and our holding in In re c.P. (1986), 221 Mont. 180, 717 P.2d 1093, the document whereby Groves terminatedherparental rights andrelinquished custody ofL.C. to LSS constitutedthe final, controlling agreementconcerningrelationsbetweenGroves andL.c. Becausethatdocument did not reserve any visitation, the court concluded that Groves was not entitled to post3adoption visitation. Based on these conclusions, the court held that the post-adoption visitation agreement was void and unenforceable. Groves appealed to this Court.**~9** This Courtreversed the District Court concluding that In re C.P. was distinguishable from the instant case. Groves I, 277 Mont. at 183,920P.2d at 983. We noted that in In re c.P., the parties hadnot discussed visitation rights ofthe birthparents let alone reached any agreement. In contrast, Groves and the Clarks specifically bargained for the right of visitation andvoluntarily signed a written notarized agreement whichprovidedthe terms of the visitation arrangement. Groves I, 277 Mont. at 183, 920 P.2d at 983-84. We further noted that after deciding In re C.P., the Montana Legislature enacted § 40-8-136, MCA (1995), which we interpreted as providing for the recognition of agreements for postadoption contact and visitation. Groves I, 277 Mont. at 184-85, 920 P.2d at 984. On this basis, we held: [B]irthparents and prospective adoptive parents are free to contract for postadoption visitation and
...trial courts must give effectto such contracts when continued visitation is in the best interest ofthe child. Groves I, 277 Mont. at 186,920P.2d at 985. Weremanded the case to the District Court for

a hearing on whether enforcement ofthe parties' visitation agreement wouldbe in the best interest ofL.C. Groves I, 277 Mont. at 187,920 P.2d at 985-86.**~10** The District Court held a hearing on September 3, 1997. Based on the evidence produced attrial, the court found that abondexistedbetween Groves andL.C. andthatitwas highly likely L.c. would suffer from issues ofabandonment, identity, and grieving unless
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### appropriate visitation with Groves was granted. Ultimately, the court found that continued visitationbetween Groves and L.c. was in L.C.'sbest interest. The court ordered continued visitation and telephone contact between Groves and L.C., but not in accordance with the terms of the parties' liberal visitation agreement. Rather, the court found that a more structured visitation arrangement was in the best interest ofL.c. Specifically, the court granted Groves unsupervised monthly weekend visitation with L.C. and required the parties to share equallyin the transportation costs. Additionally, the court granted Groves telephone contact with L.C. at least once per week. The court recommended that the parties seek adoption counseling and attempt to agree upon future visitation modifications that may be appropriate as L.c. matures. ,-rll Unsatisfied with this outcome, the Clarks filed with the court a motion for a new trial pursuantto Rule 59, M.R.Civ.P. In theirbriefin support ofthe motion, the Clarks set forth evidence whichthey allegedwas newly discovered and askedthe courtto reconsiderwhether post-adoption visitation between Groves and L.C. was in L.c.'s best interests. The Clarks also argued that the court was withoutjurisdiction to modify sua sponte the express terms ofthe visitation agreement. ,-r12 In an order dated December 15, 1997, the court denied the motion. The court stated that the evidence presented at trial overwhelmingly supported the finding that continued visitationbetween Groves and L.c. was in the best interest ofL.C. The court stated that the post-trial evidence presentedby the Clarks was not "newly discovered" because the Clarks
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### had ample opportunity before trial to discover the evidence. The court statedthat its "best interests"ruling was limitedto the evidenceproduced attrial, but suggested thatthe post-trial evidence presented by the Clarks could be considered upon a properly filed petition for modification ofvisitation rights. Regarding the sua sponte 

### modification ofthe parties' visitation agreement, the court stated that modification was within its discretion in accordance with determining the best interests ofthe child. More facts will be provided as necessary to dispose ofthe issues raised. DISCUSSION Issue 1 

### ,-r13 Did the District Courterr in finding that post-adoption visitation with Groves was in the best interest ofL.C.? ,-r14 Like other family law disputes involving parental visitation, we review a district court's findings relating to a birth parent's right to post-adoption visitation to determine whetherthose findings are clearly erroneous. See 

### In re Marriage ofSyverson (1997), 281 Mont. 1, 21, 931 P.2d 691, 703. A finding is clearly erroneous ifit is not supported by substantial evidence, the court misapprehended the effect ofthe evidence, or this Court's review ofthe record convinces it that a mistake has been made. Syverson, 281 Mont. at 21- 22, 931 P.2d at 703. ,-r15 The Clarks make several arguments in support oftheir assertion that the court erred in finding that visitation between Groves and L.C. was in L.C.'s best interests. The first argument is somewhat confusing. The Clarks first quote verbatim §40-4-212, MCA, which 6lists the factors that a district court may considerwhen conducting a "bestinterests" analysis. The Clarks assertthat this "bestinterests" standard controls in determining whether a postadoption visitation agreement shouldbe enforced. However, in the following paragraphs, the Clarks assertthatthe adoptive parents' wishes are paramount in deciding whether a postadoption visitation agreement shouldbe enforced. The Clarks cite several cases from other jurisdictionspurportedly holding that adoptive parents have the right to determine whether it is in the best interest ofthe adopted child to maintain contact with the birth mother. 

### See e.g., People in Interest ofM.M. (Colo. 1986),726 Pold 1108; In re Adoption ofHammer (Ariz. 1971),487 P.2d 417; Commonwealth ex reI. Flannery v. Sharp (Pa. 1943),30 A.2d 810; Spencer v. Franks (Md. 1937), 195 A. 306. The Clarks also cite cases from other jurisdictionspurportedlyholdingthatthemere fact thatthe adoptiveparents oppose visitation provides a sufficientbasis for finding that visitation is not in the best interest ofthe child. 

### See e.g., Geri v. Fanto (N.Y. 1974),361 N.Y.S.2d 984; In re Benjamin (N.Y. 1978),403 N.Y.S.2d 877.**~16** We reject the Clarks' assertions that the adoptive parents have sole discretion, orthat the adoptive parents' wishes are paramount, in deciding whether a post-adoption visitation agreement shouldbe enforced. The law inMontana, which also happens to bethe law ofthis case, is clear: whether a post-adoption visitation agreement is enforceable shall be decided bythe District Courtpursuant to a "bestinterests" ,analysis. Groves I, 277 Mont. at 186-87,

7920 P.2d at 985-86. The adoptive parents' wishes is but one factor among many to be consideredby the District Court. See Section 40-4-212, MCA.**~17** Next, the Clarks argue that the court did not adequately consider and evaluate the evidencewhen applyingthe "bestinterests" standard. The Clarks argue thatthe court should have disregarded the testimony ofGroves' expert witness and shouldhave attached greater weight to the testimony ofthe Clarks' expert witness. The Clarks also assert that the court did not consider evidence that two people had observed bruises on L.c.'s bodybefore the adoption was finalized, and evidence that L.C. had made statements to people indicating she

was unhappy and did not wish to have visitation with Groves. Lastly, the Clarks assert that the evidence did not support a finding that a bond existed between Groves and L.c. The Clarks contend that no bond could have existed between L.c. and Groves because their visitation sessions prior to trial were short and infrequent.**~18** We determine that the court adequately considered and evaluated the evidence produced at trial in applying the "best interests" standard. The court heard each party's expertwitnesses and found Groves' experts to be more credible. In cases tried to the court without ajury, it is the duty and function ofthe court to resolve conflicts in evidence. In re Marriage ofPenning (1989), 238 Mont. 75, 78, 776 P.2d 1214, 1216. The credibility of witnesses andthe weightto be affordedtheirtestimony is a matterleftto the sounddiscretion ofthe District Court. Rule 52(a), M.R.Civ.P.; Keeblerv. Harding (1991), 247 Mont. 518, 523, 807 P.2d 1354, 1357.
8'-;19 With regard to the alleged bruising found on L.c.'s body, this evidence was not presented attrial. Withregardto the alleged statements madebyL.c. to various persons that she was unhappy visiting Groves, some ofthis evidencewas presented attrial, and some was not. Wecannotfault the DistrictCourt for notconsideringevidence which was notpresented at trial and which was not subject to cross-examination. Parties on appeal are bound by the record andmaynot add additional matters in briefs or appendices. State v. Hatfield (1993), 256 Mont. 340, 344, 846 P.2d 1025, 1028. To the extent some evidence of L.C.'s unhappiness with visitation was presented to the District Court, the record reflects that the court adequately considered this evidence. 

### In its findings offact, the court stated: Respondents [the Clarks] testifiedthatvisitation adversely affectedL.C. inthat afterward she would evidence insecurity about her adoption status, wouldbe moody and difficult to discipline. On the other hand, the court heard the testimony ofthe Petitioner's [Groves'] experts including Kathy Gerhke [an adoptive parenting instructor] andDebbie 

### 0 'Brien [a family counselor] which explained this as a normal occurrence. Based on their testimony, this court finds that it is highly likely L.C. will suffer from issues of abandonment, identity, and grieving unless appropriate visitation is granted. L.C. lived with her mother for over three years. The evidence, including from a visitation facilitator, was that visitation was a happy experience for L.C. '-;20 We also reject the Clarks' assertion that the evidence did not support a finding that

abondexistedbetween Groves andL.c. Therecord demonstrates that L.c. andGroves were together for the first three years ofL.C.'s life. The court heard testimony from Debbie 

# o'Brien, a marriage and family counselor who hadbeen counseling Groves since August 1996. Ms. O'Brientestified that in her opinion, a bond existedbetween L.c. and Groves. Although the majority ofpost-adoption visitation sessions between L.C. and Groves were 9

### short and infrequent, this does not necessarily mean that no bond existed between L.c. and Groves. We note that several ofGroves, attempts to have visitationwith L.C. were frustrated by the Clarks' own actions. The Clarks often refused to talk to Groves. At trial, Mrs. Clark admitted that when Groves called her about attending L.C.'sbirthday party, she pretended she could not hear who was calling. The record also shows that the Clarks outright refused visitation. We hold that substantial evidence existed to support the finding that a bond existed between L.c. and Groves.**~21** 

### Throughout theirbriefon appeal, the Clarks assert that visitation with Groves is not in L.c.'s best interests because the Clarks do not know the details ofthe visitation such as where L.c. will be, what L.C. will be doing, and with whom L.c. will be associating. The Clarks have expressed concern overL.c.'s sleeping arrangements at Groves' residence. The Clarks disapprove ofL.C. snowmobiling and riding in a car without wearing a seatbelt. The Clarks also complain that their move from Great Falls to McLeod makes the current visitation arrangement unworkable.**~22** 

### These concerns were notpresentedto the District Court at trial. We again stress that the parties on appeal are boundby the record and may not add additional matters in briefs

or appendices. Hatfield, 256 Mont. at 344, 846 P.2d at 1028. We will not consider these

concerns in determining whether the court erred in making its findings. These concerns are
more appropriately raised in a petition for modification ofvisitation rights.

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### ,-r23 Upon the foregoing, we detennine that the court's finding that visitation between Groves and L.e. was in the bestinterest ofL.e. was not clearly erroneous. The finding was supportedby substantial evidence, the court did notmisapprehend the effect ofthe evidence, and we do not believe a mistake was committed. Issue 2 

### ,-r24 Did the District Court err in modifying sua sponte 

### the parties' post-adoption visitation agreement? ,-r25 The court's decision to modify the parties' visitation agreementpursuant to the best interests ofthe child was a discretionary ruling. The standard ofreview ofdiscretionary trial courtrulings is abuse ofdiscretion. See 

### May v. FirstNat'l Pawn Brokers, Ltd. (1995), 270 Mont. 132, 134, 890 P.2d 386,388. In evaluating abuse ofdiscretion, we look to whether the court acted arbitrarily without employment ofconscientiousjudgment or exceeded the bounds ofreason resulting in substantial injustice. In re Marriage ofWessel (1986), 220 Mont. 326, 333, 715 P.2d 45,50. ,-r26 In its findings of fact, the court noted that the original visitation agreement was "inartfully drawn" bythe LSS withoutbenefit oflegal counsel and that its tenns were vague. As previously mentioned, the original agreement contemplated that Groves could have visitation with L.e. whenever she wanted so long as she gave the Clarks two days notice. No time restriction on visitation was incorporated into the agreement. The court found that

a more structured visitation arrangement, monthly weekend visitation, was in the best interests ofL.e. Later, in ruling upon the Clarks' motion for a new trial, the court held that 11

### modification of the parties' original visitation agreement was within its discretion in accordance with determining the best interests ofL.e.**~27** 

### The Clarks argue thatthe court erredin modifying sua sponte

### the terms ofthe original visitation agreementbecause no statute or other legal authority exists granting the court this power. The Clarks argue that when the court found that visitation was in the best interests ofL.C., the court was bound to enforce the parties' visitation agreement as written.**~28** 

### We agree with the District Court that modification ofthe parties' original visitation agreement was within its discretion in accordance with determining the best interests ofL.e. The policy ofthis state is that "[i]n matters relating to children, the best interests ofthe children are paramount." In re Marriage ofWidhalm (1996), 279 Mont. 97, 101,926 P.2d 748,750 (citing In re Marriage ofMager (1990),241 Mont. 78, 80-81,785 P.2d 198,200). It 

### is a well-established rule that parties cannot make binding agreements concerning the support, custody, or visitation ofchildren. Widhalm, 279 Mont. at 101, 926 P.2d at 750 (citations omitted). Although this rule has been expressed in the context of separation agreements made between spouses, see 

### § 40-4-201(2), MCA, we believe it applies equally to post-adoption agreements made between an adopted child's birth parents and adoptive parents. Moreover, failure to apply this rule to disputes involving post-adoption visitation agreements couldpotentially lead to absurd results. It

### would be incongruous for a court to hold that visitation is in the best interest ofa child andthen enforce a visitation agreement that was not in the bestinterest ofthe child. Forthese reasons, we determine that the District
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### Court did not abuse its discretion III 

### modifying the parties' post-adoption visitation agreement. Issue 3**~29** Did the District Court err in denying the Clarks' Rule 59, M.R.Civ.P. motion for a new trial?**~30** 

### The Clarks based their motion for a new trial on an allegation ofnewly discovered evidence. The Clarks asserted that following the District Court's September 1997 "best interests" hearing, they hired new counsel. They asserted that the new counsel had discovered material evidence that was not presented to the District Court but that could possibly produce a different outcome upon retrial. Some ofthis evidence consisted of deposition testimony oftwo witnesses who reported seeing bruises on L.C.'s body priorto the adoption. These depositions were taken by the Clarks in 1996 in preparation for trial but

were not introduced at trial. The remainder ofthe evidence consisted ofpost-trial affidavits executedbythe Clarks andtwo otherwitnesses in whichthe affiants related statements made by L.c. purportedly indicating that she did not wish to have visitation with Groves. In denying the motion, the court stated that apost-trial change ofcounsel was not germane to the issue of newly discovered evidence. The court determined that the alleged newly discovered evidence was discoverable before trial, and that the Clarks had ample time, more than a year, in which to discover the evidence.**~31** 

### The Clarks assign errorto the court's denial oftheirmotion for anew trial. In support oftheir claim oferror, the Clarks assert that the court made its "bestinterests" determination 13

### on the basis ofan incomplete record and argue that the court should have considered the "new" evidence because it was material and not cumulative.**~32** 

### The decision to grant anew trial basedupon newly-discovered evidence is within the discretion ofthe trialjudge and will not be overturned absent a showing ofmanifest abuse ofdiscretion. Fjelstad v. State, through Dept. ofHighways (1994), 267 Mont. 211, 220,883 P.2d 106,111.**~33** 

### Section 25-11-102, MCA, provides that anew trial maybe grantedfor several reasons whichmaterially affectthe substantialrights ofaparty. One ofthese reasons is the discovery ofnew evidence which is material to the party applying for a new trial and which that party couldnot, withreasonable diligence, have discovered and produced at trial. Section 25-11- 102(4), MCA. A party moving for a new trial on the basis ofnewly discovered evidence must show that: (1) this evidence came to the party's knowledge since the trial; (2) it was not through want ofdiligence that the evidence was not discovered earlier; (3) the evidence is

so material that it wouldprobablyproduce a different result upon retrial; (4) the evidence is not merely cumulative; and (5) the evidence does not tend only to impeach the character or credit ofawitness. In re Marriage ofNeal (1994), 267 Mont. 455, 461-62,884 P.2d 789, 793-94.**~34** 

### In this case, the Clarks did not show that the new evidence came to their knowledge since the trial, or that they could not have discovered the new evidence with reasonable diligence. The record shows that the depositions were in the Clarks' possession before
14commencement oftrial. Similarly, there is no evidence in the record indicating that the contents ofthe affidavits couldnot have been discovered with due diligence before the trial. We agree with the District Court that a post-trial change ofcounsel is irrelevant to the issue ofwhether evidence could have been discovered priorto trial. We hold the District Court did not abuse its discretion in refusing to grant a new trial on the basis ofnewly discovered evidence. ,-r35 Affirmed.

# ~~-LJ Justice

We Concur:

# ~~~ Justices

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