No. 98-050 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1999 MT 117 

DEBBIE GROVES, 

Petitioner and Respondent, 

v. 

LON and LORALEE CLARK, 

Respondents and Appellants. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Kenneth R. Neill, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Darcy M. Crum, Great Falls, Montana 

For Respondent: 

David Stuft, Kalispell, Montana 

Submitted on Briefs: October 1, 1998 

Decided: May 28, 1999 

Filed: 

Cleik 
Justice William E. Hunt, Sr. delivered the Opinion of the Court. 

,-rl Lon and Loralee Clark (the Clarks), adoptive parents of L.C., appeal from the 

Findings of Fact, Conclusions of Law, and Judgment entered by 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 of their motion for a new trial. We affirm. 

,-r2 The Clarks present the following issues for review: 

,-r3 1. Did the 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. Did the 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 of the facts of this case can be found in 

Groves v. Clark (1996), 277 Mont. 179,920 P.2d 981 (hereinafter Groves I). To summarize, 

in January 1994, when L.C. was three years old, Groves signed a document terminating her 

parental rights 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 

provided the following: Groves would have unrestricted visitation with L.c. so long as she 

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gave the Clarks two days notice; Groves would have unrestricted telephone contact with 

L.C.; and Groves would have the right to take L.c. out of school in the event she had to "go 

to Butte for some emergency." This agreement was drafted by the LSS and neither party 

consulted an attorney before signing it. 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 of the visitation agreement until June 5, 

1995, when Groves notified the Clarks that she wanted to 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 could not take L.c. on extended out-of-town trips. Several weeks later, Groves 

filed a petition requesting specific performance of the visitation agreement. The Clarks filed 

an objection and brief in opposition to the petition which the parties agreed could be treated 

as a motion for summary judgment. 

~8 In December 1995, the District Court denied Groves' petition for specific performance 

of the visitation agreement. The court concluded that, pursuant to § 40-8-125, MCA, and our 

holding in In re c.P. (1986), 221 Mont. 180, 717 P .2d 1093, the document whereby Groves 

terminated her parental rights and relinquished custody ofL.C. to LSS constituted the final, 

controlling agreement concerning relations between Groves and L.c. Because that document 

did not reserve any visitation, the court concluded that Groves was not entitled to post3 
adoption 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 Court reversed the District Court concluding that In re C.P. was distinguishable 

from the instant case. Groves I, 277 Mont. at 183,920 P.2d at 983. We noted that in In re 

c.P., the parties had not discussed visitation rights of the birth parents let alone reached any 

agreement. In contrast, Groves and the Clarks specifically bargained for the right of 

visitation and voluntarily signed a written notarized agreement which provided the 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]irth parents and prospective adoptive parents are free to contract for postadoption visitation and ... trial courts must give effect to such contracts when 

continued visitation is in the best interest of the child. 

Groves I, 277 Mont. at 186,920 P.2d at 985. We remanded the case to the District Court for 

a hearing on whether enforcement of the parties' visitation agreement would be 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 at trial, the court found that a bond existed between Groves and L.C. and that it was 

highly likely L.c. would suffer from issues of abandonment, identity, and grieving unless 

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appropriate visitation with Groves was granted. Ultimately, the court found that continued 

visitation between Groves and L.c. was in L.C. 's best 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 of L.c. Specifically, the court 

granted Groves unsupervised monthly weekend visitation with L.C. and required the parties 

to share equally in 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 

pursuant to Rule 59, M.R.Civ.P. In their brief in support of the motion, the Clarks set forth 

evidence which they alleged was newly discovered and asked the court to reconsider whether 

post-adoption visitation between Groves and L.C. was in L.c. 's best interests. The Clarks 

also argued that the court was without jurisdiction to modify sua sponte the express terms 

of the 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 

visitation between Groves and L.c. was in the best interest ofL.C. The court stated that the 

post-trial evidence presented by the Clarks was not "newly discovered" because the Clarks 

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had ample opportunity before trial to discover the evidence. The court stated that its "best 

interests" ruling was limited to the evidence produced at trial, but suggested that the post-trial 

evidence presented by the Clarks could be considered upon a properly filed petition for 

modification of visitation rights. Regarding the sua sponte modification of the parties' 

visitation agreement, the court stated that modification was within its discretion in 

accordance with determining the best interests of the child. More facts will be provided as 

necessary to dispose of the issues raised. 

DISCUSSION 

Issue 1 

,-r13 Did the District Court err in finding that post-adoption visitation with Groves 

was in the best interest of L.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 

whether those findings are clearly erroneous. See In re Marriage of Syverson (1997), 281 

Mont. 1, 21, 931 P .2d 691, 703. A finding is clearly erroneous if it is not supported by 

substantial evidence, the court misapprehended the effect of the evidence, or this Court's 

review of the 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 of their 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 

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lists the factors that a district court may consider when conducting a "best interests" analysis. 

The Clarks assert that this "best interests" standard controls in determining whether a postadoption visitation agreement should be enforced. However, in the following paragraphs, 

the Clarks assert that the adoptive parents' wishes are paramount in deciding whether a postadoption visitation agreement should be enforced. The Clarks cite several cases from other 

jurisdictions purportedly holding that adoptive parents have the right to determine whether 

it is in the best interest of the 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 of Hammer 

(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 

jurisdictions purportedly holding that the mere fact that the adoptive parents oppose visitation 

provides a sufficient basis for finding that visitation is not in the best interest of the 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, or that 

the adoptive parents' wishes are paramount, in deciding whether a post-adoption visitation 

agreement should be enforced. The law in Montana, which also happens to be the law of this 

case, is clear: whether a post-adoption visitation agreement is enforceable shall be decided 

by the District Court pursuant to a "best interests" ,analysis. Groves I, 277 Mont. at 186-87, 

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920 P.2d at 985-86. The adoptive parents' wishes is but one factor among many to be 

considered by the District Court. See Section 40-4-212, MCA. 

~17 Next, the Clarks argue that the court did not adequately consider and evaluate the 

evidence when applying the "best interests" standard. The Clarks argue that the court should 

have disregarded the testimony of Groves' expert witness and should have attached greater 

weight to the testimony of the Clarks' expert witness. The Clarks also assert that the court 

did not consider evidence that two people had observed bruises on L.c. 's body before 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 

expert witnesses and found Groves' experts to be more credible. In cases tried to the court 

without a jury, it is the duty and function of the court to resolve conflicts in evidence. In re 

Marriage of Penning (1989), 238 Mont. 75, 78, 776 P.2d 1214, 1216. The credibility of 

witnesses and the weight to be afforded their testimony is a matter left to the sound discretion 

of the District Court. Rule 52(a), M.R.Civ.P.; Keebler v. 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 at trial. With regard to the alleged statements made by L.c. to various persons that 

she was unhappy visiting Groves, some of this evidence was presented at trial, and some was 

not. We cannot fault the District Court for not considering evidence which was not presented 

at trial and which was not subject to cross-examination. Parties on appeal are bound by the 

record and may not 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 of fact, the court stated: 

Respondents [the Clarks] testified that visitation adversely affected L.C. in that 

afterward she would evidence insecurity about her adoption status, would be 

moody and difficult to discipline. On the other hand, the court heard the 

testimony of the Petitioner's [Groves'] experts including Kathy Gerhke [an 

adoptive parenting instructor] and Debbie 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 

a bond existed between Groves and L.c. The record demonstrates that L.c. and Groves were 

together for the first three years of L.C.'s life. The court heard testimony from Debbie 

o 'Brien, a marriage and family counselor who had been counseling Groves since August 

1996. Ms. O'Brien testified that in her opinion, a bond existed between L.c. and Groves. 

Although the majority of post-adoption visitation sessions between L.C. and Groves were 

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short and infrequent, this does not necessarily mean that no bond existed between L.c. and 

Groves. We note that several of Groves , attempts to have visitation with 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. 's birthday 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 their brief on appeal, the Clarks assert that visitation with Groves is not 

in L.c.'s best interests because the Clarks do not know the details of the 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 over L.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 not presented to the District Court at trial. We again stress that 

the parties on appeal are bound by 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 of visitation 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 best interest ofL.e. was not clearly erroneous. The finding was 

supported by substantial evidence, the court did not misapprehend the effect of the 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 agreement pursuant to the best 

interests of the child was a discretionary ruling. The standard of review of discretionary trial 

court rulings is abuse of discretion. See May v. First Nat'l Pawn Brokers, Ltd. (1995), 270 

Mont. 132, 134, 890 P.2d 386,388. In evaluating abuse of discretion, we look to whether 

the court acted arbitrarily without employment of conscientious judgment or exceeded the 

bounds of reason resulting in substantial injustice. In re Marriage of Wessel (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" by the LSS without benefit 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 

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modification of the parties' original visitation agreement was within its discretion in 

accordance with determining the best interests ofL.e. 

~27 The Clarks argue that the court erred in modifying sua sponte the terms of the original 

visitation agreement because 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 of the parties' original visitation 

agreement was within its discretion in accordance with determining the best interests ofL.e. 

The policy of this state is that "[i]n matters relating to children, the best interests of the 

children are paramount." In re Marriage of Widhalm (1996), 279 Mont. 97, 101,926 P.2d 

748,750 (citing In re Marriage of Mager (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 of children. 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 could potentially lead to absurd results. It would be incongruous for a court to 

hold that visitation is in the best interest of a child and then enforce a visitation agreement 

that was not in the best interest of the child. For these 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 of newly 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 of this evidence consisted of 

deposition testimony of two witnesses who reported seeing bruises on L.C.'s body prior to 

the adoption. These depositions were taken by the Clarks in 1996 in preparation for trial but 

were not introduced at trial. The remainder of the evidence consisted of post-trial affidavits 

executed by the Clarks and two other witnesses in which the 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 a post-trial change of counsel 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 error to the court's denial of their motion for a new trial. In support 

of their claim of error, the Clarks assert that the court made its "best interests" determination 

13 
on the basis of an 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 a new trial based upon newly-discovered evidence is within the 

discretion of the trial judge and will not be overturned absent a showing of manifest abuse 

of discretion. Fjelstad v. State, through Dept. of Highways (1994), 267 Mont. 211, 220,883 

P.2d 106,111. 

~33 Section 25-11-102, MCA, provides that a new trial may be granted for several reasons 

which materially affect the substantial rights of a party. One of these reasons is the discovery 

of new evidence which is material to the party applying for a new trial and which that party 

could not, with reasonable diligence, have discovered and produced at trial. Section 25-11-

102(4), MCA. A party moving for a new trial on the basis of newly discovered evidence 

must show that: (1) this evidence came to the party's knowledge since the trial; (2) it was not 

through want of diligence that the evidence was not discovered earlier; (3) the evidence is 

so material that it would probably produce 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 ofa witness. In re Marriage of Neal (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 

14 
commencement of trial. Similarly, there is no evidence in the record indicating that the 

contents of the affidavits could not have been discovered with due diligence before the trial. 

We agree with the District Court that a post-trial change of counsel is irrelevant to the issue 

of whether evidence could have been discovered prior to trial. We hold the District Court 

did not abuse its discretion in refusing to grant a new trial on the basis of newly discovered 

evidence. 

,-r35 Affirmed. 

~~-LJ Justice 

We Concur: 

~~~ Justices 

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