Parenting of O.M.C. , 2013 MT 98N ( 2013 )

April 15 2013
DA 12-0537
IN THE SUPREME COURT OF THE STATE OF MONTANA
2013 MT 98N
IN THE PARENTING OF O.M.C.,
A Minor Child.
WHITNEY GRANT,
Petitioner and Appellant,
v.
CHRIS CARNAHAN,
Respondent and Appellee.
APPEAL FROM: District Court of the Seventeenth Judicial District,
In and For the County of Phillips, Cause No. DR 12-01
Honorable John C. McKeon, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Lindsay Lorang; Lorang Law, PC; Havre, Montana
For Appellee:
Peter L. Helland; Helland Law Firm; Glasgow, Montana
Submitted on Briefs: April 3, 2013
Decided: April 15, 2013
Filed:
__________________________________________
Clerk
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Justice Beth Baker delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this
case is decided by noncitable opinion and does not serve as precedent. It shall be filed as a public
document with the Clerk of the Supreme Court and its case title, Supreme Court cause number and
disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific
Reporter and Montana Reports.
¶2 The Seventeenth Judicial District Court entered a decree in August of 2012 establishing a
parenting plan with respect to O.M.C., the minor child of Whitney Grant and Chris Carnahan. Whitney
appeals, arguing that the final parenting plan was not supported by substantial evidence and is not in
the best interests of O.M.C. We affirm.
¶3 The parties lived together in Malta, Montana, for about four years and, in May of 2007, Whitney
gave birth to their son, O.M.C. The parties separated in February of 2011, after which they initially
shared residential parenting equally. In June of 2011, they agreed that Chris’s residential parenting
through September would be approximately every other weekend, so that he could participate in the
summer drag racing circuit. After that time, they did not go back to the previous schedule.
¶4 In January 2012, Whitney petitioned the District Court to establish a parenting plan. She asked
to be designated as O.M.C.’s primary residential parent and notified the court of her intent to move to
Idaho with O.M.C. to live with her boyfriend. Chris responded with a proposed parenting plan under
which he would be O.M.C.’s primary residential parent “whether Whitney moves to Idaho or remains in
Malta.”
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¶5 After a hearing, the District Court determined that each parent has a good relationship with
O.M.C. The court found that moving to Idaho for the school term would not be in O.M.C.’s best
interests. It adopted the plan proposed by Chris, with modifications. Under the modified plan, O.M.C.
will live with Chris during the school year and during the first week following the end of the school year
and the last week of summer vacation from school. O.M.C. will live with Whitney during the summer.
Whitney also shall have O.M.C. every other week during the school year from Wednesday at 6 p.m. until
Sunday at 6 p.m., which shall occur in the Malta area if she moves to Idaho. Holidays will be alternated.
The court stated that plan was in O.M.C.’s best interests and that it “provides the opportunity for equal
residential parenting should [Whitney] decide to stay in the Malta area.”
¶6 After the District Court issued its order adopting the final parenting plan, Whitney advised the
court that she no longer intended to move to Idaho. On appeal, she contends the District Court erred by
ordering a parenting plan which substantially changed the residential schedule of the interim parenting
plan, by failing to make specific findings for forming a change in the custodial schedule, and by failing to
make findings as to why it was not in O.M.C.’s best interest to remain in her primary care if she
remained in Malta.
¶7 The issues raised in this appeal are governed by review standards that call for great deference to
a trial court’s determinations. A district court has “broad discretion when considering the parenting of a
child. ‘Child custody cases often present the court with difficult decisions. We must presume that the
court carefully considered the evidence and made the correct decision.’” In re Marriage of Tummarello,
2012 MT 18, ¶ 34, 363 Mont. 387, 270 P.3d 28 (quoting In re Parenting of N.S., 2011 MT 98, ¶ 18, 360
Mont. 288, 253 P.3d 863).
¶8 The standard of review for a parenting plan is whether the district court abused its discretion in
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reaching the conclusions it did. Tummarello, ¶ 21. Furthermore, judgments regarding the credibility of
witnesses and the weight to be given their testimony are within the province of the District Court, and
we will not substitute our judgment for its determinations. Tummarello, ¶ 34.
¶9 As is often the case in decisions regarding parenting plans, the parties presented conflicting
evidence at the hearing before the District Court. Given the deference that we appropriately give to
district courts in cases such as this, we find no basis on which to reverse the decision here. It is not the
appellate court’s prerogative to determine in the first instance what is an appropriate parenting plan for
the parties’ child. Having observed and listened to the parties and heard the evidence, Judge McKeon
was in the best position to judge O.M.C.’s best interests. His findings are supported by substantial
evidence in the record. Though Whitney expresses concern that a period of ten days between visits
between a mother and her young child is too long, the parenting plan allows the parties to agree to
additional visitation, and they should do so when it is in the child’s best interests. Especially in light of
the court’s encouragement of the parties to agree to equal residential parenting if Whitney stays in
Malta, the parenting plan is consistent with the statutory preference for “frequent and continuing
contact with both parents.” Section 40-4-212(1)(l), MCA.
¶10 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal
Operating Rules, which provides for noncitable opinions. This appeal presents no constitutional issues
or issues of first impression. It does not establish new precedent or modify existing precedent. In our
opinion, it would not be of future guidance for citation purposes to the citizens of Montana, the bench,
or the bar. The District Court did not abuse its discretion in adopting the parenting plan. The District
Court’s order for final parenting plan filed August 9, 2012, is affirmed.
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/S/ BETH BAKER
We concur:
/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
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