*1 147 IN RE THE MARRIAGE OF
DAVID CLAY, Respondent, Petitioner CAROL HAGEDORN, Respondent Appellant. No. DA 06-0314.
Submitted
Briefs
2007.
September
Decided
2007.
For Missoula. of the Court. Opinion JUSTICE delivered
CHIEF GRAY Konen, (Carol), from Hagedorn appeals known as Carol Carol ¶1 Court, Judicial District Sanders by orders entered Twentieth a sought plan to amend County, denying parenting motions which (David) awarding Clay costs custody, David changing residential and proceedings remand for further and We reverse and fees. Opinion. consistent with on are: appeal The restated issues
¶2 determining the evidence was the District Court err Did ¶3 the children’s circumstances? insufficient to establish a attorney fees awarding err in costs and 2. Did the District Court ¶4 to David?
BACKGROUND Falls when David and Carol both resided marriage July dissolving their entered a decree plan, pursuant incorporated stipulated parenting a 2004. The decree children-ages their four minor parent and Carol would to which David rotation,” basis, a with using equal 8 and 7-“on an days. holidays special and other provisions for her intent to move 2004, Carol filed notice of In December of proposed a amended summer, together with following Poison schedule, revised residential including proposed parenting plan 40-4-217, appointment for the also moved MCA. She pursuant § existing parenting plan guardian ad litem. Carol characterized animosity that David’s difficult,” expressed concern “very as and Poison. Carol’s light of her move to increase in toward her would parties’joint retained the proposed amended the children proposed that for the but responsibility primarily stay every would reside with Carol and other with David weekend, provisions holidays and the like. with opposed proposed parenting plan David Carol’s amended appointment timely motion for ad litem. guardian He filed his own proposed plan including proposed revised schedule, by 40-4-217, residential MCA. proposed as reside with him and Carol during years, weekends alternating school and alternate two summers, parents’ during weeks between residences provisions holidays additional and the like. The hearing District Court held a of2005. After Carol
presented testimony-and presented evidence before David case-the court ruled from the bench that supported changing plan. The acknowledged court move, right Carol’s expressed concern about reducing David’s parenting time, especially stipulated since mediator assisted with parenting plan in June 2004. The court requested parties discuss they whether could reduce their conflicts without assistance guardian from a ad litem. Shortly thereafter, the District Court denying entered its order parties’
both plans. amended parenting It reiterated its oral *3 ruling insufficient, that the evidence was and stated it would not reduce David’s or “change time the children’s circumstances” because Carol desired to move. The District Court took Carol’s motion appointment of guardian a ad litem -under advisement. In July, ¶10 Carol filed notice of change of a post address to Poison box, office and renewed her appointment guardian motion for ad litem. responded. David month, Later that appointed Nancy
¶11 Combs as guardian ad litem to secure recommendations of resolution parties’ problems visitation, with the parenting plan, implement and initially guidelines establish workable and schedules for visits. The court previous rejection noted its of the proposed plans and the reasons therefor. reported parties’ agreement Combs first a temporary to weeks, alternating schedule of continuing with the children
school in Thompson having Monday Falls and evening visits with the parent. off-week She requested investigate additional time to underlying reasons the three youngest children’s wishes to with Carol. her second report, Combs recommended that the oldest child David, reside primarily every weekend, with to with visits Carol Carol, younger three children reside and that the objected to David other weekend. Combs’ visits report. of her second portions and moved to strike recommendations adopt requesting that court Combs’ responded, Carol recommendations. denying its order The District Court entered second its 2005, reiterating
changes parenting plan November an reasoning characterizing and its of Combs as appointment earlier The court reasoned Combs’ effort facilitate a mutual resolution. change living “would resulted a recommendations have in circumstances not arrangements cite no substantial previous order.” On the Court at time of Court’s considered modify basis, the court concluded lacked its and moved the District Court to alter November order Carol and moved for costs responded, recommendations. David adopt Combs’ provision parenting plan in the fees based both 40-4-110, MCA. The District Court denied Carol’s motion appeals. motion. Carol granted David’s
STANDARD OF REVIEW court’s assessment recently We clarified that district law we review de question is a which sufficiency the evidence determination, because novo, of the court’s regardless context not. rules or it is See legally applicable is sufficient under evidence 26-27, 162 26-27, 338 19, 158, Mont. Kelsey, v. 2007 MT ¶¶ ¶¶ Giambra 18-19, 26-27; Swann, 126, 337 Mont. 134, v. 2007 MT ¶¶ State ¶¶ Wholesale, 511, 18-19; v. 326, 18-19, 160 P.3d Johnson Costco ¶¶ ¶¶ 727, 18- 18-19, 18-19, 152 P.3d ¶¶ 336 Mont. ¶¶ 2007 MT ¶¶ legal conclusion Thus, we review the District Court’s 19. of circumstances was insufficient establish it is determine whether correct.
DISCUSSION determining the evidence the District Court err in Did in the children’s circumstances? to establish *4 40-4-219(1),MCA, part, that court pertinent provides, 17 Section ¶ of facts finds, the basis upon if it prior parenting plan may amend the has occurred in that a prior plan, since the that have arisen the necessary to serve amendment is of the child and circumstances findings regarding made no The District Court child’s interests. best any arising stipulated parenting plan facts since the and dissolution decree. It the concluded evidence was insufficient to establish that changed and, result, children’s had as a circumstances lacked 40-4-219(1), MCA, proceed under further. § On appeal, subsequent Carol contends her move to Poison to the stipulated incorporated 2/2/3-day parenting plan resulted in changed circumstances for the children. David asserts Carol’s decision to move need not affect the children’s circumstances. cases, Both parties advance some which address
prior 40-4-219(1), MCA, versions which differ from the version applicable here. None the advanced cases addresses district court’s legal conclusion that evidence was insufficient establish a the child’s circumstances. any event, above, as set forth we review a court’s conclusion
regarding sufficiency Giambra, correctness. See 26-27. case, Stated in context of ¶¶ the issue is whether concluding erred insufficient evidence based on post- dissolution facts a change established in the children’s circumstances. Thus, we turn the record before us. At stipulated 2/2/3-day time of the plan and
dissolution decree Carol and David lived within miles of five each Thompson other in affidavit, Falls. In Carol’s pre-hearing she referred Poison, to her intended move to and asserted the plan was difficult boys having and the two were a difficult time the transitions between the Thompson Falls households. David responded maintaining via an affidavit children had-with assistance aof counselor-made progress adjusting 2/2/3-day parenting plan, asserting Carol’s “disrupt” intended move would progress and would make it impossible parents for both to have frequent and continuous contact with the children. He farther asserted proposed parenting plan-which provided that the children would reside him Falls-would allow home, in a familiar community and environment with their friends, members, close family people teachers that had been part of their lives. At the hearing, Carol’s asked how rotation had working been and Carol
responded “[h]orrible.” Carol further testified the oldest child was having difficulties, give academic and other and she felt she could not him needed discipline days. structure and two Carol also related that her older daughter regularly taking clothing David’s
152 bags wearing kept than the clothes for her at David’s grocery in rather “coax[j” house, go to her to to David’s and assure her and Carol needed addition, In Carol testified that she that she would return Carol’s. upsetting 2/2/3-day the transitions in the rotation were the felt routines, getting because she had trouble them to bed and children’s toddlers, they’re they sleep don’t well.” Carol “it sounds like more for the provided opportunities believed Poison testified she Falls, the children were excited about the Thompson children than they stability during have needed their week under move and did not hearing the 2005 plan. testify February did not at existing the above, ruled after Carol because, as mentioned the District Court presented her case and before David his. rested District Court ruled from the bench that the was The changed had due to that the children’s circumstances The court also stated its concern about “the Carol’s intended move. taking that’s of the transfer back and forth and how often difficulty willingness stipulation to consider a the place” expressed adjust parties portions technically correct about the lack We note the District Court was hearing in circumstances at the time the children’s yet had not February as Carol’s intended move
in insofar However, 1997, 40-4-217,MCA, parent has since occurred. significantly residence in manner that will who intends to a proposed to submit parent affect the child’s contact with other -219(1), together, 40-4-217 revised residential schedule. Read §§ courts exercise MCA, clearly parties and district contemplate plans with foresight in relation to Here, the District Court schedules. proposed revised residential reports. after Carol’s move and Combs’ persisted ruling its that Carol hearing 2005 reflects The record since the way 90 each moved, miles approximately and the children travel has households Falls transfer between Thompson between Poison and staying with Carol Falls when and to attend school her current addition, Carol has established household Poison. baby after another expecting and she was four spouse David intended hearing. reported also February 2005 Combs other, has also children. significant his current who to move in with not the children were implemented, 2/2/3-day rotation When households, and day to school or between driving per go miles any children or adults. living not they were present We hold the evidence of record case establishes that, as a matter law based on facts which arose since the original plan, children’s circumstances occurred. we hold the Court Consequently, District erred concluding Thus, otherwise. we remand for the District Court’s determinations whether an amendment is in and, ultimately, interest best whether and how it should amend the parenting plan. Because District Court’s decisions on remand will
necessarily factor into a subsequent decision on whether to award fees, attorney we vacate District Court’s award of fees and costs David. *6 Reversed and remanded proceedings for further consistent with Opinion. NELSON,
JUSTICES COTTER and MORRIS concur.
JUSTICE WARNER dissents. I dissent from the Court’s holding the evidence of record in this case establishes as a change matter law that a in circumstances has occurred. In order to reach this conclusion this Court in engages fact It if finding. believed, is true that Carol is the District Court could have change found requirement circumstances 40-4- 219(1), MCA, However, view, has been met. my the real is problem that the District Court made no findings regarding any change fact in circumstances prior parenting since the adopted. This is acknowledged the Court at ¶ may The District good holding Court have had reasons for that the
evidence was establish a circumstances. The might record this case shows that these include well that Carol is not credible, or that she orchestrated the move to Poison for the sole purpose severely limiting David’s time with the children. I
¶31 would remand the District Court with directions to make appropriate findings concerning why legal of fact reached conclusion circumstances that there was no requiring a new Jacobson, Marriage 52(a); M. R. P. Civ. 2006 MT 212, 19, 859, 333 Mont. leap 19. I would not ¶ ¶ ¶ directly legal conclusion that established, circumstances has been I knowing without the facts. dissent from Court’s decision to do so.