*1 OF THE MARRIAGE IN RE WHYTE, CHARLES ANTHONY Appellant, Petitioner COUVILLION, LOUISE LEANAH Appellee. Respondent No. DA 11-0379. on Briefs December 2011. Submitted February 2012. Decided MT 45.
JUSTICE NELSON concurred. *2 dissented, joined by BAKER JUSTICE CHIEF JUSTICE McGRATH and JUSTICE MORRIS. Hayes; P.L.L.P.; Michael Appellant: Hays Hayes,
For L. & Hamilton. Offices, Appellee: Peter;
For Linda Osorio St. St. Peter Law P.C.; Missoula. Opinion
JUSTICE RICE delivered the of the Court. Charles Whyte appeals Amending from an Order Parenting ¶1 Plan Court, Twenty-First County. entered the Judicial District Ravalli We following reverse and remand. We the address issues: Did the District err in the amending parties’ parenting ¶2 Court plan? 2. Did delegating the District Court err in the power
¶3 to C.A.W. parenting plan the amend in the ? future FACTUAL AND PROCEDURAL BACKGROUND (Charles) (Leanah) Charles Whyte and Leanah Couvillion child, in July married C.A.W., had one during marriage, their born in January parties May 22, 2003, 2000. The divorced 2003. On parties stipulated parenting plan, final which was incorporated into divorce decree. Under parenting this initial plan, parties shared equal agreed time and that when C.A. kindergarten, they W. started plan would to implement August school schedule. In the parties entered into Stipulated Parenting Plan), Final Amended Plan (Parenting which parenting arrangements detailed their years.1 for C.A.W.’sschool Parenting The Plan called primarily for C.A.W. to live with Frenchtown, Leanah in visiting Charles on during weekends and summer, grade, until he started at arrangement sixth which time the switch, would he primarily and would reside with Charles in Hamilton. Parenting provided: The Plan parties signed Stipulated Parenting August The Final Amended Plan on diligently 2005 and followed it thereafter but did file the document with the court party any delay regard filing until March of 2011. Neither raises issue with
plan. will reside year [C.A.W.] During School Schedule: fifth Kindergarten through [sic] Leanah from primarily days and all his father on the weekends and visit grade parties agree would school, young as he is still is no of the mother the influence interest [C.A.W.]’s best then reside young years. [C.A.W.] will during these primarily he grade year until from his sixth with Charles primarily his mother on weekends high school and will visit graduates school, growing into is no as will be days and all that there agree [C.A.W.]’s it would be in best parties adolescence and during these primarily of the father interest to have influence years. adolescent However, in plan from 2005 forward. followed year fifth as the
February 2011, during grade C.A.W.’s filed a residency approaching, Leanah motion arrangements was residency requested Plan. She amend her, live revised so that C.A.W. would continue to arrangement be a letter primarily residing than with Charles. Leanah attached rather requesting her reasons for an amendment. explaining her motion kindergarten, and shy She stated C.A.W. was when he attended Boy participating she has worked with him to be more social in the removing “feel[s] Leanah that she him from Frenchtown Scouts. stated *3 significant [C.A.W.] School would cause a amount of stress and that body, putting [C.A.W.] him in a school with a new student whole new regress shy will into a child.” also noted that C.A.W. is back She receiving help extra at the Frenchtown School and that she is moving challenge way in a [C.A.W.] “concerned that him will him recover from in a short amount of time and could be difficult for to grades
that his self will suffer.” and esteem hearing a on on The District Court conducted Leanah’s motion ¶7 living May 2011. The were both asked describe Charles testified that relationships situations and their with C.A.W. stepchildren since the divorce had three who he had remarried and four-bedroom, ages 9,12, house and He owns two-bathroom Charles, Hamilton. he stays on acres land in C.A.W. with four When has although a room his the home an office stepbrother, shares with necessary. that could be into a bedroom for C.A.W.if Charles converted He noted that the employment fencing has maintained as a contractor. riding four-wheelers, having family enjoys watching together, movies church, UFC game enjoy watching night, going especially They guests arts invite their home watch fights. martial often people.” Charles generally “pretty and are active bunch of fights Hamilton, stated that could C.A.W.’smove C.A.W. continue to Scouts, Boy in an with participate activity very which C.A.W. Frenchtown, already involved in and that boys C.A.W. knows troop. acknowledged expressed stay Charles that C.A.W. desire to
¶8 friends, school in Frenchtown his current but offered that C.A.W. along has known all that he would have to make the transition to a grade. opined, stay new school in sixth Charles “he wants to in the -but, you know, school because he has established friends there and majority C.A.W., I think the is a fear that has of ...” trial, years eleven old at time twelve-year-old stepsister and his attending Hamilton, would be noted, the same school and Charles it, together [of] ‘both them would sit and talk about both they’d seemed going excited me because to the same A school.” family friend Charles’ testified that has a “[C.A.W.] lot of friends here. He a lot people has who love him.” Leanah testified that year for about a she has lived in two- duplex bedroom basement apartment Frenchtown. She was unemployed recently but high diploma attained her school and was taking boyfriend online classes to become a medical coder. Her of over year C.A.W., one lives with her and and Leanah testified that C.A.W. her boyfriend get along very well. She testified to previous several unhealthy relationships that led her move period to Missoula for a while, of time. She was remarried for a and this was “particularly man [C.A.W.].” hard on She also with another lived man who ‘had a drinking problem him [Leanah] didn’t Despite want around.” moves, Leanah’s C.A.W. has remained enrolled in the Frenchtown school district. Leanah testified that difficulty C.A.W.has had some reading.
She on admitted cross-examination that she received several from notifications the school that C.A.W. wasn’t turning homework and had excessive afternoon but absences stated the reading problem improved has since she received those notifications and that she has talked to about the absences. The court also spoke with C.A.W. expressed in camera. C.A.W.
concern that at environment his father’s house would not be doing conducive to work alone, because there is ‘howhere to be *4 so like if I had or anything, homework it too would be loud and stuff. my mom’s, And when I’m at just quiet it’s I where can do it.”When the studies, court asked C.A.W. if he quiet needs to be he when “[s]ometimes, replied, yeah.” expressed C.A.W. also concern that he would not have alone time younger because his stepbrother followed
223 to Charles’ actual work schedule seeming In contradiction him around. long fencing during is laid off winter works as a contractor-die thought he would see summer-C.A.W. told the court he hours in the maintained, i.e., permitting if his more the current schedule father during summer and on weekends to be with his father in the C.A.W. year. the school motion to amend granted The District Court Leanah’s
¶12 to continue Plan. The effect ofthe amendment was practical his would continue reside with quo, the status under which C.A.W. weekends, his while during year and visit father on mother the school visiting his during the summer and primarily residing with father Further, Court ruled oral District mother on summer weekends. residential determine future pronouncement would July every year 15 parents by a letter to his writing decisions held stay. like to The District Court advising them where he would out,” “I noting until he think prevail ages wishes “will that C.A.W.’s likely his best would be in enough he’s mature his wishes interests.” appeals. Charles REVIEW
STANDARD OF parenting plan determining In whether the amendment of findings of fact to determine appropriate, we review district court’s D'Alton, re 2009 they clearly Marriage erroneous. In whether are Marriage 251 (citing 351 Mont. 209 P.3d ¶ 49). Oehlke, 79, 9, ‘Findings are 2002 MT 46 P.3d ¶ evidence, the clearly they supported by if are not substantial erroneous evidence, or this review misapprehends the effect of Court’s Oehlke, 17 of the record convinces it that a mistake has been made.” ¶ (citations omitted). quotations If the of fact which erroneous, then predicated clearly to amend are are not decision only overturn the court if there is a clear abuse will district 9). DAlton, (citing Oehlke, A its discretion. 7 district court abuses arbitrarily it acts employment discretion when without resulting the bounds of reason judgment conscientious exceeds 100, 20, injustice. Marriage of Guffin, re 2010 MT substantial In (citation omitted). Conclusions of law Mont. P.3d Guffin, reviewed whether are correct.
DISCUSSION amending parties’ parenting Court 1. Did err *5 plan? satisfy that did argues Charles Leanah her burden under the prove to a change
statute there has been in circumstances or her proving amending Parenting necessary burden of Plan was argues best all changes interest. Charles of the in expressly at contemplated circumstances were the time Plan, thus, they Parenting statute, entered into the under the a change warranting plan amendment of has not been demonstrated. governing parenting plans statute amendment of provides: (1) plan Amendment of -mediation. The court may finds, plan in its discretion amend a if prior parenting prior basis of facts that have plan arisen since the that were entry unknown time plan, at the of the prior has occurred in the circumstances the child and that necessary the amendment is to serve best interest of the child 40-4-219, Section MCA. At the Leanah hearing, was asked Charles’ counsel what she changed
believed were the warranting circumstances an amendment of the She responded, “Well, Plan. the circumstances that [sic] he’s She older.” conceded that at the time she agreed Parenting Plan, to it was understood that C.A.W.would be older at the time the switch in custody residential take would effect. agreed She also it was foreseeable C.A.W. would changing be from schools Frenchtown to Hamilton at residency the time his would change. appellate For her briefing, Leanah has retained counsel and emphasis
shifted the argument her from C.A.W.’s in age increase to his needs as a appreciates student who a quiet environment in which to complete his homework. She notes that has Charles three stepchildren that, in his argues light home and of C.A.W.’sreading difficulties, difficulty he might have completing his school work and succeeding in while living responds Charles. Charles the parties they knew at the agreement time entered the that the contemplated change initially schools could until stressful became acclimated the change. to hearing,
¶19 At the conclusion of the provided the District Court its reasoning from ruling the bench:
And it’s clear me that both are fit and proper parents I any here. don’t think there’s issue that. about But have had circumstances in sense that the agreement was just when tyke, made he was a little and now he’s about enter mind his and his has a own wishes school and middle now than would greater-eertainly greater weight entitled point .... And he does at this younger he was have been when he called a calmer appreciate the-what greatly seem Frenchtown, does state atmosphere privacy or more respect And I so to him for school work. helpful that that hand, here, if the but the other fact that is a contract on issues, I the first one property would be contract dealt with children, it, you have dealing it’s enforce but when along, I think you go child as interest of the consider best require Agreement I enforce the now it wouldAf were to right Hamilton, that he-it would year move next school him to think, going grant I’m be, very thing I stressful for him .... So him to-er maintain the current modification and allow *6 [sic]. arrangement prevail that’s current arrange-the increase Thus, reasoning was based C.A.W.’s the Court’s entitled, and age, to which his wishes should be greater weight the at his greater privacy enjoyed the or C.A.W. atmosphere calmer doing for mother’s house schoolwork.2 circumstances, parenting unique While each case is to its own There,
D’Alton raised similar guidance. issues the father provides and had sought change parenting offering that circumstances plan, the had changed years parenting plan in the six since the been entered nanny are now and because “both children in school the children’s no force in children’s longer stabilizing terminated so that she is ‘a the that the had to frustrate the relationship,”’ attempted and mother DAlton, contact Relevant the issues father’s with the children. 10. to ¶ here, the approvingly Ti]f we noted District Court’s statement that (6) is passage years being of six and the children in school both amendment, sufficient to warrant an then the courts would be flooded if all cases.” plans motions amend most not DAlton, added, “[ljndeed, 11. We the mere so that aging children ¶ hardly could are now be considered ‘unknown entry prior plan’ required by court at the time 40-4- § DAlton, 219(1), agreed MCA.” 11. with the District Court that We threshold satisfy “these circumstances ‘do initial conducting hearing for on matter. criteria’” under the statute were The District Court’s written order consisted a form order wherein boxes generic language indicating findings of of law in the checked fact and conclusions reasoning specific case was of the statute were entered. No or reference to facts to this provided in the written order.
D’Alton, change Our regarding 11. discussion of the children’s here, and age applies school attendance with even more force where parties’ agreement expressly contemplated age would C.A.W. grade. when he These schools reached sixth circumstances along agreement all were known the basis of the that the years. followed for six At most, only finding factual that could be considered a finding circumstance is court’s oral enjoys greater peacefulness privacy doing schoolwork at Leanah’s acknowledge home. We Leanah’s concerns that the change residency disrupt could cause stress for C.A.W.and his progress, but no addressing of fact potential problems these were made the court. It juncture is at this Dissenting Opinion yields search temptation support for evidence to the District Court’s decision, testimony obviously Charles, citing negative to such as ‘fighting,” ‘Veiling,” “cussing” asserted to occurred in his Dissent, However, home. 39. not our appellate function as an court. We have no idea whether the District Court considered this factual, evidence to be credible it duty and is not our make such Indeed, determinations. if anything, implication from the District just Court’s order is opposite-that discounted such evidence finding that clear me parents “it’s proper both fit and I any here. don’t think there’s issue about that.” The Dissenting Opinion improperly usurps finding the fact function. Further, Dissenting Opinion criticizes our mention of the District Court’s Dissent, use of a form order developed litigants. assist We find no fault with itself, the use of the form but such forms do not bear this imprimatur Court’s immunizing them from review or guaranteeing they always successfully will the purpose serve for which *7 they are intended. well We are aware that a district court has “broad discretion considering parenting
when the of a child. ‘Child custody cases often present the court with difficult presume decisions. We must that the carefully considered the and evidence made correct decision.’” Tummarello, 34, In Marriage 18, 387, re 2012 MT 363 Mont. 270 of In re P.3d 28 (citing Parenting of N.S., 98, 18, 2011 MT 360 Mont. 863). 288, However, 253 recognized DAlton, P.3d as we cases involving amendment existing parenting plans satisfy of must an statutory initial threshold of changed DAlton, circumstances. 11. promotes stability The statute for children and discourages unnecessary litigation over parenting plans. commonly Our cases have
227
See,
nature.
in circumstances ofa more substantial
changes
considered
(a
215,
121
178,
change
P.3d
Kooyer,
MT
Mont.
239
v.
2010
357
Sian
disabled,
out
moved
found when father became
of circumstances was
Clay, 2007 MT
state,
Marriage
In re
employment);
and lost his
of
of
in circumstance established
228, 339
147, 168
(changes
Mont.
P.3d 665
way to
having
drive 90 miles each
deliver
by
moving
mother
and
households);
Carter,
Marriage
In re
children to
from school and
(mother
state),
19,
84, 63
1124
moved out of
2003 MT
314 Mont.
P.3d
68
697
Nies, 2003 MT
P.3d
Marriage
In re
(mother
sexually
that father
abused
made unsubstantiated accusations
visitation); In re
the father’s
repeatedly
the child
frustrated
Robison,
207; 311
forward-looking agreement reflected that C.A.W.would live primarily until sixth at which time the grade, with Leanah he reached live flip, primarily schedule would and C.A.W. would Charles. plan years six expectation, The followed particularly part, plan on Charles’ that the would be followed as matter, strictly is not a contractual agreed. We understand this may care child plans as even best laid for the of a become Still, mean parties’ ineffective over time. commitments do when, here, something, especially faithfully over followed many years record, well. this conclude that and work On Court’s required District determination of circumstances §40-4-219(1), MCA, supported was not the evidence and that 'Alton, D statutory threshold was not satisfied. See therefore error here is that the Court’s entered from the specific District statutory evidence received were insufficient establish Consequently, standard for plan. amendment Court’s Plan is amendment of the reversed. currently grade note C.A.W.is in the middle of his sixth We year. briefing, requested, prevail, In his Charles has if he were required during year C.A.W. not be schools the school but beginning grade that the take effect at of C.A.W.’sseventh year. agree entry matter be remanded for of an We and order by the incorporating order District Court this relief.
228 delegating power 2. Did the District Court err
¶26 plan modify parenting in the ? future The Court held as follows: ¶27 I opportunity [C.A.W.] But think should also have the each by [sic] summer to make decision mid summer as to whether he wants to that or maintain whether wants come reverse situation, enough I think so he’s mature that his wishes would likely interests, past arrangement be in his best so the will by July year, continue in effect. But then 15th each be he’ll notify required parents both his whether he wants that to continue or like to the living arrangements, whether he’d reverse prevail and then that until he out. ages will MCA, 40-4-212, Section provides that the court ¶28 shall determine parenting plan in accordance with the interest of best child, in parenting consideration “allrelevant Section factors.” 40-4- 212(1), Further, 40-4-219(1), MCA, MCA. provides ‘[i]n § determining section, the child’s best may, interest under this the court (c) 40-4-212, in addition to the criteria also consider whether ... years age child is 14 or older and desires the amendment ....’’Under provisions, these is parenting plan appropriate whether is a legal only by conclusion can be made a court. While consideration ofthe statutorily years child’s desires is when required old, the child is 14 make, evidence, ultimate decision is for the based and cannot be delegated Here, only to the child. C.A.W. was eleven. holding The District annually Court’s that C.A.W.will determine his arrangements own residential is reversed. amending order vacated, The is the Parenting Plan reinstated,
Plan is and this entry matter is remanded for of an order consistent herewith. COTTER,
JUSTICES NELSON and WHEAT concur. NELSON, concurring. JUSTICE join I Opinion. Court’s Where undisputedly parents two fit agreed writing to a parenting plan reasonable that takes into
account the changing needs of their child the opportunity for both parents development influence as ages, the child agreement should persuasive proof be enforced absent harmof child. We have recited the so principle often that it has become mantra: right parent of a parent constitutionally natural child a one’s
protected,
liberty
Luna,
fundamental
interest. See Steab v.
2010 MT
22,
351;
Custody
Mont.
233 P.3d
&
Parental
I
DA,
Mont.
¶33 move; parents are their parents children often faced with4b.eir child divorce; change; parents boundaries want the school district any Changing one over number reasons. to attend school another make. The fact parents child’s is the sort of decision that their schools, and is no changing that children often benefit from is grow persuasive this case that C.A.W. will not survive-and evidence something to is point, change in his life. More from-fehis to, to, Changes, learn even those cope that we all had and have to with. initially unpleasant, seem are the stuff of life and life’s lessons peace quiet to And if needs in which that need be learned. study, no his father will not-as would there is reason to believe that any loving parent-accommodate fit need. view, my grounds amending In Leanah’s and “evidence” for
¶34 parenting plan here are meritless. meets the strict standards Neither §40-4-219(1), analysis, set MCA. In the final it is the we have under fit, parent job parents’ job child. It parents natural is schooling, and to make all of the other make decisions about ages. parents decisions that make as their child is not job both of district courts this Court circumstances where fit, is no capable, loving, persuasive are and where there evidence 1 principle is so cited that the cases are This of law so well established and often string nothing legion, lengthy and a cite will add discussion.
230
of harm the child. Here, a parenting the District Court inserted itself into decision ¶35 that was not its make under either facts or law in this case. clearly crediting The District Court abused its discretion in Leanah’s amending grounds parenting plan. and “evidence”and completely I concur in the Court’s decision. BAKER, dissenting. JUSTICE 23), acknowledges (Opinion, As the apply Court we a ¶
presumption custody carefully cases child “that considered made Marriage Everett, the evidence and the correct decision.”In re 8, 29, N.S., 2012 MIT 363 P.3d (quoting 18); Mont. 507 ¶ ¶ Marriage Tummarello, 34. Unless this Court can determine from record that which a modification decision is erroneous, predicated clearly do not disrupt the decision of a custody district court in a child matter absent clear abuse of Thomas, 212, 13, 333 323, 142 discretion. Jacobsen v. 2006 MT Mont. 859; Arneson-Nelson, 242, 22, P.2d In re 2001 MT (1993). 874; J.M.D., P.3d Mont 857 P.2d Unquestionably, finding circumstances “prerequisite” amending prior parenting Jacobsen, plan. 17. But is a all finding, factual which-like other factual findingsfis *10 Jacobsen, reviewed for clear error. 13. appellant high The faces the hurdle of demonstrating abuse of discretion and must show that the “arbitrarily district court acted employment without of conscientious judgment resulting or exceeded the of reason in bounds substantial Albrecht, injustice.” Albrecht v. “Arbitrary”is
P.3d synonymous with a ‘failure to exercise honest alone[,]” judgment,” “depending on the will or “without consideration regard and for facts and presented.” circumstances Black’s Law (6th 1990). Dictionary ed., West say To the District Court here acted unreasonably either or
arbitrarily employment without judgment gives conscientious review, insufficient to our effect standards of dismisses the role of the presumes judge, appellate trial and judges collectively can make a judgment better about a child’s life a reading Judge from transcript. hearing held a Langton present person. at which both were He watched them on the testimony. witness stand observed their testimony He heard parties, from other witnesses for the including (without ection) provider obj Leanah’s friend and child care who related regress C.A.W.’sfears and concerns he would in the successes for fought which he had improve grades. to his He interviewed eleven- finding factual Discounting his in his chambers. year-old C.A.W. give family appropriate does not had the circumstances of record. In the time reading Judge Langton a fair deference to divorced, married a woman with Charles and Leanah since Charles full-time; arguments are often with them children who live three as home, Judge Langton which C.A.W.described family in Charles’s his development between ‘fighting,”‘yelling,” “cussing”; C.A.W.’s academics, but grade struggles preschool years fifth resulted has the he the of teachers at progress help he showed to live judge told the wants grade; attended since first feels it is environment where he in mother’s home with calmer since These circumstances have arisen for him do homework. easier plan the at the time the was the unknown to court prior plan the 40-4-219(1), MCA;Jacobsen, 16. We have cited Section entered. Clay, may a district consider. blending of families as one factor could have parents Neither the court nor C.A.W.’s 25-26. ¶¶ family and blending C.A.W.’sneeds the of Charles’s anticipated observed, through Judge Langton As C.A.W. matriculated school. typical request modify parenting plan, request Leanah’s unlike which the court sought preserve quo, status determined was in C.A.W.’sbest interests. limited, gross record is it While evidence is say arbitrarily determining acted
overstatement district court in the change new factors in C.A.W.’s life amounted to a these §40-4-219(1), The of the child for MCA. purposes circumstances expressly grants statute the district courts discretion make determination; specific not list factors that must be found before does change may require such a be deemed sufficient or imported has in its circumstances “substantial”-a factor Court §1-2-101, Opinion, 23; The no analysis here. see MCA. statute sets necessary threshold other than that amendment be to serve 40-4-219(1), Langton MCA. Judge best interest the child. Section position was in a far better than are we to decide keep parties’ place. sufficient to current schedule in any parenting plan focus We must remember lives, staying proceeding parents’ or whether affecting made agreements they years true to earlier child. *11 child, Robison, is child’s interest. ¶ focus is the and what in that best (the §40-4-219, MCA, of of under best interests proof burden standard). determination, making the child In trial §40-4-212, in the criteria stated MCA. considers parent parents; These criteria include wishes of child’s or child; the wishes of the and interrelationship interaction of parent the child with the child’s and and siblings any person significantly other who affects child’s best interests; adjustment home, community; school and continuity stability and of care. Plaisted-Harman, v. 100, 29, 218, 2010 MT 356 Mont. ¶ Guffin 28). Robison, (quoting Judge Langton carefully
P.3d 888
looked
¶
at
chambers;
interviewing
the wishes of C.A.W.
him in
when
learned
his relationship
step-siblings;
testimony
about
with his
and heard
on
importance
continuity
stability
school,
of
home,
in his
community.
Judge
Langton
upon
made
determination
based
conscientious
review of these factors. While the Court faults him for
checking
order,
boxes on a
by
form
such forms were created
Commission of this Court in an
handling
pro
effort
facilitate the
family
se
matters
district
by
increasingly
law
courts
burdened with
brought
litigants
cases
self-represented
Judge
such matters.1
Langton’s reasoning
bench,
was reflected in his comments from the
19)-he
quotes (Opinion,
which-as the Court
ruling
¶
made clear his
child,
based
parties’
wishes,
on the best interest of the
the child’s
different environments
at the two households. We do not
specific
statute,
require
findings
only
on each factor in the
district court “set forth the ‘essential and determining
facts
” Carter,
[it]
which
rested its conclusion
custody
on the
issue.’
14¶
(citations omitted). And we have held the
findings
district court’s
on a
modification petition
upheld
long
will be
as
imply
finding
Burk,
change in
circumstances.
11. This is
consistent
our
application
implied findings
of the doctrine of
reviewing findings
fact. That
provides
[of
doctrine
that “where ‘findings
general
fact] are
terms, any
specifically made,
necessary
but
[determination],
are deemed to
implied,
have been
if supported
”
In re
evidence.’
Location Mont. All-Alcoholic Bevs.
Transfer
Resort,
165,
29,
331,
2008 MT
343 Mont.
(last 02/23/2012). accessed
233
Graham,
473,
J.M.D.,
712;
Marriage
P.2d at
reversal standard, had met his burden of we found father not discretion erroneous, clearly nor showing findings that the district court’s were court abused its discretion. did he substantiate claim D’Alton, 11. conclusion that the mere upheld We Court’s (6) nanny of the children’s “passage years” of six and the termination support finding a of circumstances. were insufficient D’Alton, development not can holding 11. Our purposes of circumstances.” “changed never be considered factor Rather, judgment for that of the simply we refused to substitute our fact-finder, act that the court did not without holding instead district making judgment in its conclusion in employment conscientious here. particular set of circumstances. We should do the same properly gives the District Court’s this case Upholding Application to our standards of review. of our standards credence may always produce does identical results in what seem review not Dvorak, Compare & Trailer v. be similar cases. N.W. Truck Sales (District (1994) 332-35, 877 Court did not Mont. P.2d 34-36 litigant excusable ruling abuse its discretion demonstrated good justifying filing cause time for neglect and an extension of appeal) Sadowsky City Glendive, v. notice of Mont. (District (1993) not its 856 P.2d Court did abuse litigant excusable ruling discretion failed demonstrate filing an of time for a notice neglect good justifying cause extension are the same as those appeal). present The facts D’Alton not presented here. Like Truck Sadowsky demonstrate, N.W. standard review as a check on serves abuse of a district court’s authority, but not as a means of imposing might what we think be a better judge’s position. result we in district poor crafting The law can be mechanism for solutions to disputes genesis that have their in personal relationships. But it is the is, system best dispute-resolution and the sole recourse for system separated only families. The works if give appropriate watch, listen, deference those in a position judge observe and human interactions and communications on which relationships those that, built. bottom line is ordinary custody an case such as this, Montana Supreme Court deciding should where a child (or seventh) attends the sixth grade. *13 Finally, disagree I Judge gave Langton power veto to C.A.W.
over his residential schedule. While court stated during the hearing child to write letter to his each summer, the written parenting plan that was entered the court and controls the parenting ofC.A.W.adopted Leanah’s proposed residential nothing schedule said about an automatic modification at the Any change wishes. in the parenting plan would have to be presented by motion and determined 40-4-219, court. Section MCA. respectfully I dissent.
CHIEF JUSTICE McGRATH and join JUSTICE MORRIS in the dissenting Opinion of JUSTICE BAKER.