Testimony by Non-Presiding Judges and the Discretionary Weight of Guardian Ad Litem Recommendations in Montana Parenting-Plan Litigation

1. Introduction

Case: In re the Marriage of Kahl & Sperano, 2025 MT 141N (Mont. Sup. Ct.).

Although formally captioned a marriage-dissolution matter, the proceeding ultimately concerned only the creation of a final parenting plan for the parties’ minor child, M.A.K. The appellant-father, James Michael Kahl (“James”), sought primary residential custody during the school year. The respondent-mother, Jennifer June Sperano (“Jennifer”), requested the inverse arrangement, emphasising her availability as the after-school caregiver and her sustained sobriety since a 2018 DUI offence.

On appeal, James advanced four assignments of error:

• Admission of testimony from District Judge Brenda R. Gilbert, who had presided over Jennifer’s Treatment Court.
• Failure to adopt the Guardian Ad Litem’s recommendation that the child live with James during the academic year.
• Alleged factual error that Jennifer was already employed as a chemical-dependency counsellor.
• Workability of the ordered parenting schedule, given the 200-mile separation between the parents’ residences (Red Lodge and Gardiner, Montana).

The Montana Supreme Court issued a memorandum opinion affirming the trial court. While such opinions are marked “non-citable” under the Court’s Internal Operating Rules, they nonetheless illuminate several doctrinal points—particularly the permissibility of testimony from a non-presiding judge and the discretionary nature of GAL advice.

2. Summary of the Judgment

The Supreme Court held that:

1. No error occurred in allowing Judge Gilbert to testify. Rule 605 of the Montana Rules of Evidence (which bars a presiding judge from testifying at her own trial) and Rule 3.3 of the Montana Code of Judicial Conduct (which restricts judges from acting as character witnesses) were inapplicable because Judge Gilbert neither presided over the parenting-plan litigation nor opined on Jennifer’s general character.
2. The district court had no obligation to adopt the GAL’s recommendation; § 40-4-205, MCA, renders GAL input advisory, and the trial court adequately explained why it found other factors more persuasive.
3. The alleged misstatement that Jennifer “has earned” a counselling degree was, at most, a clerical misphrasing that did not affect the court’s ultimate findings, which accurately recognised she was pursuing such a degree.
4. The “200-mile distance” argument was unpreserved because it was not raised below; appellate review was therefore unavailable.

Accordingly, the Supreme Court affirmed the parenting plan granting Jennifer primary custody during the school year and James primary custody in the summer.

3. Analysis

A. Precedents Cited

• In re S.W.B.S., 2019 MT 1 – articulated the “clear-error” standard for factual findings.
• In re Marriage of Oehlke, 2002 MT 79 – also addressed clear-error review and deference to district courts in family matters.
• In re Marriage of Whyte, 2012 MT 45 – noted that custody decisions warrant substantial appellate deference.
• In re Solem, 2020 MT 141 – reaffirmed that GAL recommendations are advisory.
• In re Marriage of Tummarello, 2012 MT 18 – emphasised the trial judge’s role as fact-finder regarding witness credibility.
• Masters Group Int’l v. Comerica Bank, 2021 MT 161 – provided the framework for reviewing factual findings for substantial evidence.
• Ryffel Family Partnership v. Alpine Country Construction, 2016 MT 350 – restated the preservation rule: appellate courts will not consider issues first raised on appeal.

Collectively, these authorities reinforce two core principles: (1) the Montana Supreme Court’s limited power to disturb fact-bound custody determinations absent clear error or abuse of discretion, and (2) the advisory—rather than binding—nature of third-party recommendations (GALs, parenting evaluators, etc.).

B. Legal Reasoning

1. Judge Gilbert’s Testimony

The appellant relied on Rule 605, M.R.E., prohibiting a presiding judge from testifying at the same proceeding, and on Rule 3.3, Montana Code of Judicial Conduct, limiting judges from acting as character witnesses. The Supreme Court distinguished the scenario: Judge Gilbert was:

• a witness about Jennifer’s conduct and compliance in Treatment Court;
• not presiding over the instant custody litigation;
• testifying to observed behaviour (sobriety, programme performance) rather than vouching for Jennifer’s moral character.

Consequently, neither ethical nor evidentiary rules barred her testimony. The Court implicitly adopted a functional test: if a judge’s testimony pertains to factual matters gained through judicial observation outside the present litigation and is not offered as character evidence, Rule 605 does not apply.

2. Weight of GAL Recommendations

Citing § 40-4-205, MCA, and Solem, the Court reaffirmed that a GAL’s role is investigative and advisory; the trial judge retains ultimate responsibility for assessing the statutory “best-interests” factors (§ 40-4-212, MCA). Here, the district court accepted many GAL suggestions but disagreed with her preferred residential schedule, reasoning that:

• Jennifer’s four-day school week in Gardiner permitted longer father-child weekend blocks;
• Jennifer’s server schedule (double shifts on “off” weeks) allowed her personal after-school care, reducing third-party daycare;
• Jennifer’s past DUI conviction no longer posed a safety risk, given prolonged sobriety and ongoing monitoring.

The Supreme Court deferred to that analysis, emphasising the trial judge’s vantage point in observing witnesses and balancing factors.

3. Factual Finding on Counselling Employment

Even if the written decree’s wording (“has earned a degree”) was imprecise, the oral findings and trial evidence clarified that Jennifer was working toward an addiction-counselling degree. The Court found substantial evidence for the pertinent facts: Jennifer was a server, enrolled in a bachelor’s programme, and had a job offer contingent on graduation. Any mis-phrasing was harmless.

4. Preservation of Distance Argument

The father’s “200-mile distance” objection surfaced only on appeal. The Court invoked the preservation doctrine (Ryffel) and declined to entertain it, underscoring that litigants must raise logistical obstacles during trial so the district court can create a record.

C. Impact of the Decision

Although labelled “non-citable,” the opinion:

• Clarifies that a judge uninvolved in the present case may testify about a party’s Treatment Court performance without violating Rule 605 or judicial-ethics rules, provided the testimony concerns observed conduct and not impermissible character vouching.
• Reinforces trial-court discretion in weighing GAL reports—an area often contested in high-conflict custody matters.
• Signals that Montana courts will view sustained sobriety, programme completion, and voluntary ongoing monitoring as powerful evidence mitigating the stigma of a prior DUI felony.
• Highlights the importance of issue preservation; geographical practicality arguments must be raised below to merit appellate review.

Practitioners can expect district courts to remain the primary evaluators of credibility and best-interest factors, with appellate intervention limited largely to clear-error scenarios.

4. Complex Concepts Simplified

• Memorandum Opinion: A short, non-precedential decision used where the Court believes no new law is announced and the outcome is controlled by settled principles.
• Rule 605 (M.R.E.): Bars the judge sitting on a case from testifying as a witness in that same case—designed to preserve judicial impartiality.
• Guardian Ad Litem (GAL): A court-appointed individual who investigates and makes recommendations regarding a child’s best interests. Their reports assist the court but do not bind it.
• Clear-Error Standard: Appellate courts overturn a factual finding only if (1) no substantial evidence supports it, (2) the trial court misapprehended evidence, or (3) the record definitively shows a mistake.
• Abuse of Discretion: A deferential review that asks whether the lower court acted arbitrarily, without employment of conscientious judgment, or exceeded the bounds of reason.
• Issue Preservation: A party must raise objections or legal theories in the trial court; failing to do so forfeits the claim on appeal.

5. Conclusion

While Kahl & Sperano does not establish formal precedent, it offers practical guidance. It confirms that testimony from a Treatment Court judge is admissible when that judge is not presiding over the custody litigation and provides factual observations rather than character advocacy. It also underscores the trial court’s prerogative to diverge from GAL recommendations and the necessity for litigants to preserve logistical objections at trial.

For family-law practitioners, the decision illustrates effective evidentiary strategies (e.g., leveraging Treatment Court records), the continuing vitality of the best-interests analysis under § 40-4-212, MCA, and the stringent appellate standards protecting district-court discretion in parenting-plan determinations. Parties should prepare for a fact-intensive battle at the district-court level, knowing that overturning such judgments on appeal remains an uphill climb.