Parenting of A.J.B., a Minor Child ( 2021 )

12/14/2021
DA 21-0168
Case Number: DA 21-0168
IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 316N
IN RE THE PARENTING OF
A.J.B., a minor child,
KATIE MARIE THORNTON,
Petitioner and Appellee,
and
GREGORY STEVEN BALLARD,
Respondent and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. ADR-2017-718
Honorable Mike Menahan, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Brian J. Miller, Morrison, Sherwood, Wilson, and Deola PLLP, Helena,
Montana
For Appellee:
Robyn L. Weber, Weber Law Firm, Helena, Montana
Submitted on Briefs: November 10, 2021
Decided: December 14, 2021
Filed:
c ir-641.—if
__________________________________________
Clerk
Justice James Jeremiah Shea 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 memorandum opinion, shall not be cited and does not serve
as precedent. Its case title, 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 Gregory Ballard appeals from the April 7, 2021 Findings of Fact, Conclusions of
Law, and Order of the First Judicial District Court, Lewis and Clark County, adopting an
amended parenting plan for his daughter, A.J.B. We affirm.
¶3 Ballard met Katie Thornton in 2015 shortly after Ballard’s honorable discharge from
the United States Navy. A.J.B. was born in June 2016. Ballard and Thornton separated in
the fall of 2017. Ballard and Thornton were never married. In June 2018, the District Court
entered a parenting plan that authorized A.J.B. to live with Thornton in Dillon and allowed
Ballard to visit upon Thornton’s approval.
¶4 At the time, Ballard suffered from undiagnosed service-related post-traumatic stress
disorder; he often resorted to alcohol and gambling to cope with his PTSD. Ballard
eventually attended a 17-week out-patient treatment program with the Veterans
Administration. In 2019, he moved to Florida for a job, hoping to return to Dillon to work
remotely and re-establish a relationship with A.J.B. after one year. Until his return to
Dillon in May 2020, Ballard mainly stayed connected with A.J.B. through telephone and
video, which Thornton facilitated.
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¶5 Thornton remarried in July 2020. At the time of the District Court’s decision, she
and her husband were expecting a child.
¶6 On May 28, 2020, Ballard filed a motion to amend the 2018 parenting plan, asking
the court to grant him 50/50 parenting time. The parties were unable to stipulate to an
amended parenting plan, so on September 15, 2020, the court ordered an interim parenting
plan, which allowed Ballard to have overnight parenting time with A.J.B.
¶7 On April 1, 2021, the District Court held a hearing on Ballard’s motion. Thornton
testified that a 50/50 parenting plan would be “really disruptive” and that “continuity of
care [and a] stable home base is important for kids to have.” She also testified that, under
the interim plan, A.J.B. was having more temper tantrums and at times would hide under
the table because she did not want to go with Ballard. Thornton attributed that behavior to
A.J.B.’s difficulty adjusting to different sets of rules and different bedtime routines and
stated, “I think it would be really different for her to make that transition multiple times
throughout the week . . . .” On April 2, Ballard amended his proposed plan to a one week
on/one week off schedule for each parent.
¶8 On April 7, the District Court entered its Findings of Fact, Conclusions of Law, and
Order. The court’s Amended Final Parenting Plan provided that A.J.B. would remain in
Thornton’s primary care and allowed Ballard to have custody from Friday through Monday
every other week and one weekday each alternating week, as well as alternating holidays
and two continuous weeks per month to each parent over the summer. Ballard appealed
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the District Court’s decision, claiming his fundamental right to parent was violated when
the court did not award him a 50/50 parenting schedule.
¶9 This Court reviews a district court’s findings of fact supporting a parenting plan for
clear error. In re Solem, 2020 MT 141, ¶ 5, 400 Mont. 186, 464 P.3d 981; In re M.C.,
2015 MT 57, ¶ 10, 378 Mont. 305, 343 P.3d 569. A finding of fact is clearly erroneous
“if it is not supported by substantial evidence, if the district court misapprehended the effect
of the evidence, or if our review of the record leaves us firmly convinced that the district
court made a mistake.” In re M.C., ¶ 10. Absent clearly erroneous findings, we will not
disturb a district court’s decision regarding a parenting plan unless there is a clear abuse of
discretion. In re Solem, ¶ 6; In re Marriage of Whyte, 2012 MT 45, ¶ 23, 364 Mont. 219,
272 P.3d 102 (explaining that child custody cases present the court with difficult decisions
and, accordingly, we presume the court carefully considered the evidence and made the
correct decision). A court abuses its discretion when it “acts arbitrarily, without
employment of conscientious judgment, or exceeds the bounds of reason, resulting in
substantial injustice.” In re M.C., ¶ 10.
¶10 Ballard argues that the court’s Amended Final Parenting Plan infringes on his
fundamental right to parent his child because it does not give him equal parenting time with
Thornton, even though both parties are fit parents to whom the child is well-bonded, and
both live in the same town. Ballard asserts that the District Court abused its discretion
when it entered the amended parenting plan, which only provides Ballard with 132 days of
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full parenting time per year, because it denies him equal parenting without substantial
evidence that the plan is in the best interest of the child.
¶11 Section 40-4-212(1), MCA, requires a district court to determine a parenting plan
“in accordance with the best interest of the child.” In determining the best interest of the
child, a court must take into account “all relevant parenting factors,” including, but not
limited to, those set forth in § 40-4-212(1)(a)-(m), MCA. While a court must consider
these statutory factors, it is not required to enter specific findings related to each.
Czapranski v. Czapranski, 2003 MT 14, ¶ 11, 314 Mont. 55, 63 P.3d 499. “[A] court’s
findings must ‘express the essential and determining facts upon which it rests its
conclusions.’” Crowley v. Crowley, 2014 MT 42, ¶ 45, 374 Mont. 48, 318 P.3d 1031(quoting In re Marriage of Epperson, 2005 MT 46, ¶ 30, 326 Mont. 142, 107 P.3d 1268).
¶12 The District Court did not abuse its discretion when it adopted the Amended Final
Parenting Plan for A.J.B. The court carefully considered the factors in § 40-4-212, MCA,
and concluded that the amended parenting plan is in the best interest of A.J.B. The
District Court found that both parents love A.J.B. and wish to maximize their parenting
time with her. Section 40-4-212(1)(a), MCA. The District Court considered A.J.B.’s
current and future relationships with both parents and their extended families and
concluded that the amended parenting plan fosters and accommodates these relationships.
Section 40-4-212(1)(c), MCA. The court evaluated Thornton’s concerns about stability
and A.J.B.’s difficulty adjusting to the interim parenting plan and concluded that the
amended parenting plan “will preserve and promote the continuity and stability of care for
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A.J.B., while increasing the time she spends with her father.” Section 40-4-212(1)(d), (h),
MCA. The court acknowledged that Ballard’s parenting time has been limited thus far and
concluded that its amended parenting plan was in A.J.B.’s best interest because it
“significantly increases parenting time with Greg.” Section 40-4-212(l), MCA. The court
has guaranteed Ballard the same legal rights as Thornton, such as the right to access
medical information, to consult with school officials, attend activities, arrange medical
treatment, as well as the right to be involved in other important decisions concerning A.J.B.
¶13 Ballard has failed to support his argument that anything but a 50/50 parenting plan
is fundamentally unfair under these facts. A district court has “broad discretion when
considering the parenting of a child.” In re Marriage of Whyte, ¶ 23. The District Court
found that “A.J.B. has lived her entire life with [Thornton] and most of her life with
[Thornton’s] parents” and “[t]heir importance to A.J.B. cannot be over-emphasized.” The
court found that A.J.B.’s young age and Thornton’s testimony concerning A.J.B.’s
upcoming transition into kindergarten “favor[], at minimum, maintaining something akin
to the status quo” and Ballard’s “proposed parenting plan would largely disrupt the stability
the child currently enjoys.” Substantial credible evidence in the record supports the
District Court’s finding that a plan promoting continuity and stability of care while still
“significantly” increasing Ballard’s parenting time serves A.J.B.’s best interest.
¶14 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law or by the clear application of
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applicable standards of review. We conclude the District Court’s findings of fact and
conclusions of law were supported by substantial evidence. Accordingly, the District Court
did not abuse its discretion in adopting the Amended Final Parenting Plan for A.J.B. The
court’s amended parenting plan does not infringe on Ballard’s fundamental right to parent.
We affirm.
/S/ JAMES JEREMIAH SHEA
We Concur:
/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR
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