Background
Colby Johnson (Father) filed to establish a parenting plan for minor child C.R.J. in December 2021. As part of the litigation, the parties stipulated in February 2023 to appoint Dr. Michael Bütz as a parenting evaluator—a recommendation that originated with Jaclyn Beck (Mother) and her long-time counselor, Dr. Polly Peterson, Ph.D. The stipulation, later adopted as a court order, required Mother’s mental health providers to share all treatment records with Dr. Bütz within ten days. Dr. Bütz completed his parenting evaluation report on July 8, 2023.
Dr. Peterson refused to produce any records to Dr. Bütz before—or materially after—his report was completed, stating she did not trust the evaluator and feared her records would be misused. Mother was aware of this refusal and neither moved for a protective order nor supplemented her prior discovery responses. Father had requested identification of expert witnesses as early as June 2022; Mother never disclosed Dr. Peterson in that capacity and produced none of Dr. Peterson’s records or opinions.
At the final parenting plan hearing, Mother’s counsel confirmed that Dr. Peterson simply had declined to produce the records. The Ninth Judicial District Court, Pondera County, found the withholding intentional and prejudicial, and imposed a sanction under M. R. Civ. P. 37 precluding Dr. Peterson from testifying about any treatment provided or records created after July 8, 2023—the date of Dr. Bütz’s report. Mother appealed.
The Court’s Holding
The Montana Supreme Court unanimously affirmed. Applying an abuse-of-discretion standard, the Court evaluated three factors: the extent and nature of the discovery abuse, the prejudice caused, and whether the sanction was proportionate to the violation. On all three, the Court found the district court acted well within its broad discretion under Rule 37.
The Court rejected Mother’s argument that prejudice was minimal because Dr. Peterson could testify from memory. Rule 37, the Court explained, protects not merely against surprise but against the opposing party’s inability to prepare, cross-examine, and test the basis of an expert’s opinions. Without the underlying records, Father could not meaningfully challenge Dr. Peterson’s conclusions. The Court also rejected the argument that a lesser sanction was required, noting that a district court need not accept a remedy that rewards intentional withholding and forces the opposing party to litigate blind.
Critically, the Court emphasized the tailored nature of the sanction: Dr. Peterson was not excluded entirely. She remained free to testify about treatment and records through July 8, 2023. Only testimony about the period of non-disclosure—the precise window of the violation—was barred. The Court found this a measured, proportional response that preserved the integrity of proceedings without unnecessarily suppressing all of the counselor’s evidence.
Key Takeaways
- A mental health provider’s personal distrust of a court-appointed evaluator does not justify withholding records required by a court-approved stipulation; the proper remedy is a motion for a protective order, not unilateral non-compliance.
- Montana courts apply a low-tolerance approach to discovery abuse, and neither M. R. Civ. P. 37(b)(2) nor Montana precedent requires an advance warning before sanctions are imposed.
- Exclusion of expert testimony is an expressly authorized and proportionate sanction when the withheld information goes to the core issues in the case and the non-disclosure was deliberate.
- A party’s awareness of a provider’s refusal to comply with discovery—and failure to act—renders that non-compliance attributable to the party for sanctions purposes.
Why It Matters
This decision reinforces that court-ordered discovery obligations in custody proceedings are not optional, even when the information to be disclosed is sensitive mental health treatment. Practitioners should advise clients and their treating providers that a personal objection to a court-appointed evaluator must be raised through proper legal channels—not by simply ignoring disclosure requirements. The opinion signals that Montana courts will protect the evidentiary integrity of parenting evaluations by holding the line on compliance.
For family law attorneys, the case also clarifies the scope of Rule 37 sanctions in the parenting-plan context: a carefully tailored exclusion keyed to the period of non-disclosure is not only permissible but may be the model the Court expects. Trial courts now have clear appellate backing to impose such targeted sanctions without first issuing warnings or exhausting lesser alternatives when the record shows intentional, sustained non-compliance.