Marriage of Brown , 385 Mont. 369 ( 2016 )

11/22/2016
DA 16-0085
Case Number: DA 16-0085
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 299
IN RE THE MARRIAGE OF:
EMILY A. BROWN,
Petitioner and Appellee,
v.
JOHN O. BROWN,
Respondent and Appellant.
APPEAL FROM: District Court of the Twelfth Judicial District,
In and For the County of Hill, Cause No. DR 11-019
Honorable David Cybulski, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jason T. Holden, Katie R. Ranta, Faure Holden Attorneys at Law, P.C.,
Great Falls, Montana
For Appellee:
Amy O. Duerk, Simon Law Office, Missoula, Montana
Submitted on Briefs: September 21, 2016
Decided: November 22, 2016
Filed:
__________________________________________
Clerk
Justice Patricia Cotter delivered the Opinion of the Court.
¶1 John Brown appeals from an order of the Montana Twelfth Judicial District Court,
Hill County, denying his motions to modify the parenting plan and child support
agreement he entered with his former wife, Emily. Although Emily does not cross-
appeal, she requests an award of fees associated with the appeal. We affirm the District
Court’s denial of John’s motions and deny Emily’s request for fees.
ISSUES
¶2 We address the following issues on appeal:
1. Did the District Court err in denying John’s motions to modify child support
and amend the parenting plan without a hearing?
2. Is Emily entitled to attorney’s fees associated with the appeal?
BACKGROUND
¶3 The District Court entered a decree dissolving the marriage of John and Emily
Brown in November 2012. The decree incorporated by reference a separation agreement
signed by the parties that provided a parenting plan and child support for their daughter,
the sole child of their marriage. The agreement obligated John to pay $1000 per month in
child support through the end of 2012 and $750 per month thereafter. The agreement
also provided that each party had “the right to modify child support payments every two
years.”
¶4 The parenting plan designated Emily as the primary parent. John and Emily
agreed their daughter would live with Emily and attend school in Missoula during the
school year. John was entitled to spend one weekend each month of the school year with
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their daughter in Missoula, and for the majority of the summer, their daughter would live
with John in Havre. The parenting plan further provided that “[a] motion to amend this
plan to change the school location or schedule . . . prior to September, 2013, is vexatious
and not in the best interests of the child.”
¶5 On February 3, 2014, John filed a motion to modify his child support obligation,
citing § 40-4-208, MCA. In his motion, John claimed his “income and financial
circumstances have changed significantly.” John explained that “[h]e does not earn the
income he once did and he can no longer afford the $750.00 per month payment.” The
motion did not elaborate on why or to what extent his income had fallen. John asked for
a hearing on his motion and a scheduling order to exchange financial information with
Emily.
¶6 On February 18, 2014, Emily filed a brief opposing John’s motion. Emily argued
John’s motion was premature under the terms of their agreement and that John had failed
to raise sufficient facts to show the substantial and continuing change in circumstances
required by § 40-4-208, MCA. After receiving several time extensions, John filed a
memorandum and affidavit supporting his motion on March 12, 2014, in which he
asserted that § 40-4-208, MCA, allowed the court to modify his child support obligation
upon a showing of changed circumstances. According to the memo, John “believes he
has shown such a circumstance and will show such a circumstance.” John explained that
his declining income was out of his control and noted that the price of gas was at
“historic lows.” John again requested a hearing and a scheduling order.
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¶7 On April 24, 2015, John filed a motion to amend the parenting plan. In his
affidavit supporting the motion, John asked the District Court to review the plan because
his contact with his daughter “is essentially a non-school year schedule” and “is not
substantial and continuing.” John did not claim Emily had breached the parenting plan,
but he expressed his belief that it was in his daughter’s best interest to spend every other
weekend with him during the school year. John again requested a hearing. Emily
opposed the motion, arguing again that John had failed to show a substantial change in
circumstances.
¶8 A discovery dispute ensued when Emily sought to compel John to produce
financial records. This dispute further delayed a hearing on John’s motions. On August
10, 2015, the parties stipulated to a scheduling order that set September 24 as the date for
a hearing on the outstanding motions. Emily filed a status report on September 17 in
which she relayed information obtained in discovery about several instances of high-
value transactions in John’s personal checking account. Premised upon these facts,
Emily argued John’s financial condition had not changed for the worse and asked the
District Court to deny the pending motions and vacate the hearing. Based on Emily’s
status report, the District Court vacated the hearing but did not rule on the motions.
Instead, the District Court gave John until November 16, 2015, to respond to Emily’s
status report.
¶9 John’s response to the status report again asserted that it would be in his
daughter’s best interest to spend more time with him. Regarding the modification to his
child support obligation, John claimed that he was “entitled to a reduction as the parties
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agreed to adjust child support in two (2) years and [Emily] is making more money today
and [John] is making less money today.” As before, John did not provide any
explanation of how or why his income had fallen, beyond the vague statement that his
“income has declined because of the continued historic lows of natural gas prices.”
¶10 On December 15, 2015, the District Court conducted a case management
conference with the parties via telephone. Following that conference, the District Court
issued the order denying John’s motions that serves as the basis for this appeal. In the
order, the District Court stated that “the parties [sic] counsel agreed that no hearing was
needed on the pending motions,” although John maintains that neither he nor his counsel
withdrew his multiple requests for a hearing. On the basis of the motions, briefs, and
affidavits discussed above, the District Court concluded that John had not shown a
substantial change in circumstances or provided a basis for modifying his child support
obligations. Accordingly, the District Court denied John’s motions. John timely appeals.
STANDARD OF REVIEW
¶11 We review a district court’s ruling on a motion for modification of child support
for an abuse of discretion. In re Marriage of Pearson, 1998 MT 236, ¶ 29, 291 Mont.
101, 965 P.2d 268. We also apply the abuse of discretion standard to a district court’s
decision not to hold an evidentiary hearing. Harrington v. Energy W. Inc., 2015 MT 233,
¶ 11, 380 Mont. 298, 356 P.3d 441. A court abuses its discretion if it acts arbitrarily
without conscientious judgment or exceeds the bounds of reason, resulting in substantial
injustice. Pearson, ¶ 30.
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DISCUSSION
¶12 1. Did the District Court err in denying John’s motions to modify child support
and amend the parenting plan without a hearing?
¶13 At the outset, we note that the terms of a separation agreement are generally
binding upon the court, except for provisions relating to “support, parenting, and parental
contact with children.” Section 40-4-201(2), MCA. As such, John’s contention that the
separation agreement grants him the right to modify child support and the parenting plan
is not persuasive—the relevant statutes in Title 40, chapter 4, MCA, must be satisfied to
modify child support or a parenting plan. Indeed, John seems to acknowledge this by
citing § 40-4-208, MCA, in his original motion to modify child support.
¶14 It is also important to distinguish between a motion to modify child support and a
motion to modify a parenting plan. Both are at issue in this case and both ultimately
require a showing of changed circumstances, but Montana statutes provide different
standards for evaluating the necessity of the two types of modification. We therefore
address the two motions in turn.
A. Child Support Modification
¶15 Child support provisions in a dissolution decree may be amended only under
certain, specific conditions. See § 40-4-208(2)(b), MCA. One of these conditions
requires “a showing of changed circumstances so substantial and continuing as to make
the terms unconscionable.” Section 40-4-208(2)(b)(i), MCA. Unconscionability
determinations are made on a case-by-case basis at the discretion of the district court.
Pearson, ¶ 30.
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¶16 In his motion to modify his child support obligation, John claimed his income and
financial circumstances had changed significantly. More than a month later, John filed a
supporting affidavit that echoed this conclusory refrain and generally blamed the price of
natural gas for his alleged earnings decline. John did not explain how the drop in the
price of gas affected his income or the extent to which his income had declined since the
decree of dissolution. From this nebulous claim of changed circumstances, John
maintains that he is entitled to an evidentiary hearing.
¶17 John cites Harrington for the proposition that a district court should hold an
evidentiary hearing (1) if there are disputed issues of material fact and (2) if the court
must weigh the credibility of witnesses. See Harrington, ¶ 11. While these
considerations would generally counsel in favor of a hearing, we note that John has not
actually mustered a dispute of material fact. Nearly two years had passed between the
filing of the motion to modify child support and the District Court’s denial of the motion.
During this time, John merely made conclusory statements about the need for a child
support modification but did not make a showing of changed circumstances arguably
demonstrating that the existing support order was unconscionable. We are not inclined to
compel the District Court to hold a hearing to find the facts that John has repeatedly
failed to assert. Consequently, we cannot fault the District Court for refusing John’s
requests for an evidentiary hearing, nor can we fault the District Court’s ultimate
conclusion that John failed to show a substantial and continuous change in circumstances
that made his child support obligation unconscionable.
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B. Parenting Plan Modification
¶18 Montana’s laws governing parenting plans seek to “preserve stability and
continuity of custody for the children.” In re Marriage of Johnson, 266 Mont. 158, 166,
879 P.2d 689, 694 (1994) (internal quotation marks omitted). A district court may amend
a parenting plan
if it finds, upon the basis of facts that have arisen since the prior plan or that
were unknown to the court at the time of entry of the prior plan, that a
change has occurred in the circumstances of the child and that the
amendment is necessary to serve the best interest of the child.
Section 40-4-219(1), MCA.
¶19 A parent who seeks to amend a parenting plan must “submit, together with the
moving papers, an affidavit setting forth facts supporting the requested plan or
amendment.” Section 40-4-220(1), MCA. It is not enough to simply file the motion
without specifying how the parenting plan should be amended; the requested amendment
must be included with the moving papers. Section 40-4-219(7), MCA. Taken together,
these statutes impose a burden on the parent seeking an amendment to show, through
affidavits submitted with the motion to amend, facts that were unknown to the court
when the parenting plan was adopted or that have since arisen and that necessitate
amendment of the parenting plan.
¶20 The District Court’s order did not cite these statutes, but summarized the law by
noting that “[p]arenting plans can only be modified on a substantial change in
circumstances.” John does not dispute this interpretation of the statute, nor does he allege
Emily has in any way breached their parenting plan. Instead, John argues that the
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settlement agreement specifically allowed modification of the parenting plan after two
years had passed.
¶21 John relies on the following language from the agreement: “A motion to amend
this plan to change the school location or schedule . . . prior to September, 2013, is
vexatious and not in the best interests of the child.” This language simply provides that
any attempt to amend the parenting plan before the stated month is not in the child’s best
interests. It does not grant either party a right to freely amend the plan after September
2013. Moreover, any amendment to the parenting plan must comply with the applicable
statutes. See § 40-4-201(2), MCA. In other words, John, as the movant, was required to
submit a specific, proposed amendment to the parenting plan and an affidavit informing
the District Court of the new facts that necessitated the amendment. See §§ 40-4-219(7)
and -220(1), MCA.
¶22 John did not supply a specific, proposed amendment with his motion. He did file
an affidavit, in which he argues that the parenting schedule during the school year
deprives him of substantial and continuing contact with his child. As the District Court
observed, however, “[t]he fact that the child is now in school and school attendance
interferes with visitation was anticipated by the prior parenting plan, and was to be
expected in the ordinary course of life.” Thus, the District Court concluded John failed to
show the requisite “substantial change in circumstances.” The District Court was not
obliged to hold an evidentiary hearing to give John an opportunity to cure his failure to
raise facts pursuant to § 40-4-220(1), MCA, or submit a proposed amendment in
compliance with § 40-4-219(7), MCA. We therefore conclude the District Court did not
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abuse its discretion in denying John’s motion to amend the parenting plan without first
holding an evidentiary hearing.
¶23 2. Is Emily entitled to attorney’s fees associated with the appeal?
¶24 On appeal, Emily asks this Court to award her attorney’s fees incurred during the
appeal, relying on Cadena v. Fries, 2015 MT 90, 378 Mont. 409, 346 P.3d 347, and M.
R. App. P. 19(5). In Cadena, the parties’ separation agreement provided for an award of
attorney’s fees to the prevailing party. Cadena, ¶ 22. John and Emily’s separation
agreement contains no such provision, so Cadena is inapposite. We will award
attorney’s fees under M. R. App. P. 19(5) if the appellant’s claims for relief are
“frivolous, vexatious, filed for purposes of harassment or delay, or taken without
substantial or reasonable grounds.” Although John’s claims lack merit, we cannot
conclude they are frivolous or lacking in good faith. See In re Marriage of Parker, 2013
MT 194, ¶ 54, 371 Mont. 74, 305 P.3d 816.
¶25 Alternatively, Emily asks this Court to sanction John for filing vexatious motions
that constitute harassment, pursuant to § 40-4-219(5), MCA. Emily did not raise this
argument at the District Court, however, and we will not consider it for the first time on
appeal. See JAS, Inc. v. Eisele, 2016 MT 33, ¶ 26, 382 Mont. 200, 367 P.3d 330.
CONCLUSION
¶26 We affirm the order of the District Court and decline to award attorney’s fees
related to the appeal.
/S/ PATRICIA COTTER
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We Concur:
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ JIM RICE
/S/ MICHAEL E WHEAT
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