In Re the Marriage of Carter , 314 Mont. 84 ( 2003 )

No. 01-407
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 19IN RE THE MARRIAGE OF
MARINA CARTER,
Petitioner and Respondent,
and
AUSTIN ROGER CARTER,
Respondent and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin, Cause No. DR-97-232,
Honorable Mike Salvagni, Judge Presiding
COUNSEL OF RECORD:
For Appellant:
Ronald Waterman, Gough, Shanahan, Johnson & Waterman,
Helena, Montana
For Respondent:
Magdalena C. Bowen, Bowen & Parker, Bozeman, Montana
Submitted on Briefs: November 1, 2001
Decided: February 13, 2003
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Austin Roger Carter (Roger) appeals the final parenting plan
entered by the Eighteenth Judicial District Court, Gallatin County.
We affirm the order of the District Court.
¶2 We address the following issues on appeal:
¶3 1. Whether the final parenting plan adopted by the District
Court was in the best interest of the children and supported by
substantial evidence.
¶4 2. Whether Respondent is entitled to attorney fees in
defending this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
¶5 Roger and Marina Harris (Marina) were married in October 1993
and separated in June 1997. Two children were born during the
marriage. A dissolution proceeding was initiated in 1997, and a
final decree, including parenting plan, was adopted by the District
Court on June 1, 1999.
¶6 Eight days after the final parenting plan was approved, Marina
advised Roger that she was engaged to be married and was moving
with the children to Salt Lake City, Utah. Marina’s move
necessitated changes in the parenting plan, some of which were
resolved by mediation, but others were brought before the District
Court in a hearing held on April 6, 2000. At the hearing, Dr.
Charles Kelly (Dr. Kelly), a psychologist who had previously
performed a parenting plan evaluation in 1998 and was called by
Marina, opined that it was in the children’s best interest to
reside with Marina and further, that traveling on alternating
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weekends from Salt Lake City to Belgrade, Montana, to be with Roger
was stressful for the children and not in the best interest of
their relationship with Roger. Based on the evidence presented at
the hearing, the District Court issued an interim parenting plan
which provided a parenting schedule through June 2001. The interim
parenting plan adopted by the District Court was date specific and
provided Roger contact with the children about twice per month, for
three to five days each time.
¶7 On June 27, 2000, Roger filed a Motion to Amend the Interim
Order. Roger proposed a parenting plan that would provide him more
contact with the children. The proposal contemplated that Roger
would relocate to Utah and have custody of the children 50 percent
of the time.
¶8 The District Court held a hearing on January 26, 2001, to
establish a final parenting plan. After hearing evidence, the
District Court denied Roger’s proposed parenting plan, adopting a
final parenting plan which named Marina as the primary custodial
parent and providing that the children would reside with her the
majority of time. Based on the assumption that Roger would reside
in Utah, Roger was provided parenting time with the children every
other week from Wednesday after school until Sunday morning and one
night a week during the alternate week. The parenting plan also
provided a schedule for holidays and summers. Roger appeals.
STANDARD OF REVIEW
¶9 When we review a district court’s findings related to the
modification of a parenting plan regarding custody and visitation,
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the standard of review is whether those findings are clearly
erroneous. In Re the Marriage of Oehlke, 2002 MT 79, ¶ 9, 309
Mont. 254, ¶ 9, 46 P.3d 49, ¶ 9. When findings upon which a
decision is predicated are not clearly erroneous, we will reverse a
district court’s decision regarding a parenting plan only where an
abuse of discretion is “clearly demonstrated.” Oehlke, ¶ 9.
DISCUSSION
¶10 Was the final parenting plan adopted by the District Court in
the best interest of the children and supported by substantial
evidence?
¶11 The district court is required to determine child custody
matters in accordance with the best interest of the child. Section
40-4-212, MCA (1999), provides in relevant part:
(1) The court shall determine the parenting plan in
accordance with the best interest of the child. The
court shall consider all relevant parenting factors,
which may include by are not limited to:
(a) the wishes of the child’s parent or parents;
. . .
(c) the interaction and interrelationship of the child with
the child’s parent or parents and siblings and with any other
person who significantly affects the child’s best interest;
(d) the child’s adjustment to home, school, and community;
(e) the mental and physical health of all individuals
involved;
. . .
(h) continuity and stability of care[.]
Section 40-4-219, MCA (1999), provides the following direction in
regard to amendment of a parenting plan:
(1) the court may in its discretion amend a prior
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. In determining the child’s best
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interest under this section, the court may, in addition
to the criteria in 40-4-212, also consider whether:
(a) the parents agree to the amendment;
(b) the child has been integrated into the family of the
petitioner with consent of the parents; ...
(d) one parent has willfully and consistently:
(i) refused to allow the child to have any contact
with the other parent; or
(ii) attempted to frustrate or deny contact with the
child by the other parent; or
(e) one parent has changed or intends to change the
child’s residence in a manner that significantly affects
the child’s contact with the other parent.
¶12 Roger argues that both parents should have frequent and
continuing contact with the children, and the only way to satisfy
the requirement that the best interest of the children be served is
to allow each parent to have contact with the children 50 percent
of the time. Roger does not maintain that 50/50 parenting contact
is appropriate in all cases, but that it is appropriate in this
case, because both parents agree that the other parent possesses
the necessary and appropriate parenting skills to properly care for
the physical and emotional needs of the children. Roger maintains
that there is no evidence in the record and no justification for
limiting his parenting contact with his children to an every other
long weekend. Roger claims the District Court did not provide any
rationale for its arbitrary decision to restrict his contact with
the children.
¶13 Roger argues that the District Court was required to consider
and discuss the factors set forth in §§ 40-4-212 and 40-4-219, MCA,
and demonstrate in its findings that it had evaluated the facts, in
light of the statute. Roger contends the District Court failed to
carry out this function, offering that “the District Court merely
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recited the rote findings that Roger’s parenting proposal was ‘not
in the best interests of the children’.” According to Roger, the
District Court provided no indication that it even considered the
statutory factors set forth above. Thus, Roger concludes that the
record did not support the District Court’s Order, that the
District Court abused its discretion, and this Court should reverse
the parenting plan.
¶14 In a marriage dissolution proceeding, the district court is
required to determine child custody matters in accordance with the
best interest of the child. See §§ 40-4-212 and 40-4-219, MCA.
While a district court must consider the several statutory factors
listed in § 40-4-212, MCA, we have held that the court is not
required to make specific findings regarding each and every factor
listed in the statute. In Re the Marriage of McKenna, 2000 MT 58,
¶ 15, 299 Mont. 13, ¶ 15, 996 P.2d 386, ¶ 15, and In Re the
Marriage of Anderson (1993), 260 Mont. 246, 252, 859 P.2d 451, 455.
This Court stated in Anderson that:
The custody determination must be based on substantial
evidence relating to the statutory factors and [the
evidence] must be set forth explicitly in the findings.
The findings should, at a minimum, set forth the
“essential and determining facts upon which the District
Court rested its conclusion on the custody issue.”
Anderson, 260 Mont. at 252-53, 859 P.2d at 455, quoting In Re the
Marriage of Converse (1992), 252 Mont. 67, 71, 826 P.2d 937, 939.
¶15 The parties submitted substantially different parenting plans.
Marina proposed a parenting plan similar to the June 1, 1999,
parenting plan, which allowed Roger contact with the children every
other week for a long weekend and one night during the week he did
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not have the children. Roger, on the other hand, submitted a
parenting plan in which the children alternated between the
parties, two weeks with him and then two weeks with Marina. In
considering the children’s adjustment to their home, school, and
community, the District Court found it was important for the
children to have continuity and consistency in the parenting
environment, which was consistent with Dr. Kelly’s report and
testimony. In its findings of fact, the District Court noted that
“Dr. Kelly indicates [Marina] is the primary parent and the
children should not spend lengthy times away from [Marina].”
Further, the District Court found that “[Roger’s] proposal of
rotating the children’s residency every two weeks is not in the
best interests of the children based on Dr. Kelly’s evaluation of
the children.”
¶16 The District Court also found both Roger and Marina were able
parents and that neither had acted neglectfully or abusively toward
the children, adding that “[b]oth parties are good, loving parents
and neither parent offers criticism of the other’s parenting skills
or abilities to parent the children.” Dr. Kelly indicated there
was no mental or physical problems that prevented either parent
from being an effective parent. In addressing the developmental
needs of the children, the District Court relied on Dr. Kelly’s
recommendation that the children should reside primarily with one
parent and that the children should not be separated from the
primary parent for lengthy periods of time. The schedule in the
final parenting plan reflects this recommendation.
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¶17 In denying Roger’s proposed parenting schedule, the District
Court also considered the inability of the parties to communicate
well regarding the children. The District Court entered a finding
that the parties have had “obvious and continuing” communication
difficulties. Roger’s proposal of rotating the children’s
residence every two weeks would require more positive communication
between Roger and Marina, which the District Court determined was
not likely to occur. The District Court stated:
The parties have had a history of difficult
communications with each other and there continues to be
animosity between the parties. Petitioner indicates the
parties do not communicate well regarding issues of the
children as evidenced by Respondent’s Motion for
Contempt, criminal complaints and other ongoing
difficulties between the parties. . . . [Roger’s]
proposal of rotating the children’s residence every two
weeks is not in the best interests of the children based
on Dr. Kelly’s evaluation of the children and the obvious
and continuing communication difficulty between the
parties.
¶18 The District Court also found that both Marina and the
children were very active in their church, noting “[h]owever,
[Roger] is not active in the LDS Church and has not attended for
over a year.”
¶19 Based on our review of the record, we conclude that the
District Court acted in accordance with §§ 40-4-212 and 40-4-219,
MCA, and properly considered the best interest of the children when
it issued its final parenting plan on March 22, 2001. The record
reflects that the District Court considered the statutory factors,
made appropriate findings that are supported by substantial
evidence, set forth findings that explained the basis of the
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court’s decision, and entered an independent judgment regarding the
parenting of the children.
¶20 In addition to challenging the District Court’s assessment of
the children’s best interest, Roger faults the District Court’s
consideration of, or failure to consider, certain evidence. First,
relying on § 40-4-219(1)(d)(ii), MCA, which allows consideration of
a parent’s attempt to frustrate contact between the children and
the other parent, Roger argues that the District Court failed to
consider Marina’s attempt to frustrate Roger’s contact with the
children. In 1999, eight days after a final parenting plan was
adopted and approved by the District Court, Maria announced she was
moving with the children from Idaho to Salt Lake City, Utah.
According to Roger, this move caused him to lose 29 days of
parenting. Then, in July 2000 there was an instance of custodial
interference. Roger traveled to Utah to be with his children and
Marina delayed the delivery of the children to Roger for two to
four hours, preventing his daughter from attending a birthday party
which Roger and his family had planned for her. Roger contends
these actions by Marina were not given appropriate consideration by
the District Court.
¶21 However, in the same order in which it adopted the parenting
plan, the District Court made eleven separate findings regarding
Roger’s allegations of custodial interference, including the
details of the two-hour delay in the parenting exchange which
occurred on July 15, 2000. The District Court determined that
Marina was in violation of the parenting plan by delaying the
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exchange of the children, and found her in contempt therefor, but
also indicated that no other instances of custodial interference
had occurred thereafter. It is apparent from the District Court’s
simultaneous findings regarding the custodial interference and the
parenting plan that it adequately considered the custodial
interference issue and incorporated its impressions therefrom into
the parenting plan, as the court’s order included an assessment of
the parties’ ability to communicate with each other in regard to
the children.
¶22 Roger next claims that the District Court erred by relying on
the evaluation and report of Dr. Kelly. Dr. Kelly had testified
during a hearing on an interim parenting plan in April 2000 that
his earlier recommendations should be re-evaluated in light of
Marina’s custodial interference. However, this re-evaluation did
not occur. Therefore, Roger contends that, without a re-
evaluation, Dr. Kelly’s opinion should be removed from the District
Court’s consideration. Roger further contends that the District
Court should not have relied on Dr. Kelly’s report because it
failed to consider a parenting situation in which he and Marina
resided in the same community, which Roger’s proposal had
contemplated.
¶23 Dr. Kelly generally supported restriction of Roger’s parenting
time with the children, believing that the long distance travel
between Salt Lake City and Belgrade was not in the children’s best
interest. However, as Roger correctly points out, by the time of
the hearing on the final plan, the issue of the children traveling
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between Salt Lake City and Belgrade was removed by Roger’s proposal
to relocate to Utah.
¶24 Nonetheless, we do not conclude that the District Court erred
in considering Dr. Kelly’s testimony. Although Dr. Kelly was a
witness for Marina, Roger had every opportunity to consult with Dr.
Kelly after Dr. Kelly’s testimony in April 2000 to obtain a re-
evaluation or additional information in response to the proposed
change in Roger’s residence, but he did not do so. Roger also had
the opportunity to consult another expert to refute Dr. Kelly’s
recommendations and support his proposed parenting plan, but,
again, he did not do so. Under these circumstances the District
Court was entitled to rely on Dr. Kelly’s evaluation and
recommendations to the extent they were still relevant, which the
District Court did.
¶25 Further, the failure of Dr. Kelly’s report to consider the
proposed change in Roger’s residence does not affect the District
Court’s findings that Marina was the primary parent, that the
children should not spend lengthy periods away from her, that
Marina and the children were both actively involved with their
church and Roger was not, and that the parties did not communicate
well regarding the children, which were the bases of the District
Court’s conclusion that Roger’s plan was not in the best interest
of the children.
¶26 The District Court considered the relevant evidence presented,
including the testimony of the parents and the expert, and reached
an independent decision on the best interest of the children. The
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District Court crafted a parenting plan in which the children
continued to have primary time with Marina with Roger having
contact Wednesday evening through Sunday morning every other week,
time during the alternating week, as well as holidays and summer.
We determine that the District Court’s conclusion that its final
parenting plan was in the best interest of the children is
supported by substantial evidence and not an abuse of discretion.
¶27 Is Respondent entitled to attorney fees in defending this
appeal?
¶28 Marina asserts that we should award her attorney fees and
costs pursuant to Rule 32, M.R.App.P., on the grounds that Roger’s
appeal was taken without substantial or reasonable grounds. Rule
32, M.R.App.P., provides:
If the supreme court is satisfied from the record and the
presentation of the appeal in a civil case that the same
was taken without substantial or reasonable grounds, such
damages may be assessed on determination thereof as under
the circumstances are deemed proper.
As a general rule, this Court will not impose sanctions pursuant to
Rule 32, M.R.App.P., unless the appeal is entirely unfounded and
intended to cause delay, or unless counsel’s actions otherwise
constitute an abuse of the judicial system. In Re the Marriage of
Snow, 2002 MT 143, ¶ 31, 310 Mont. 260, ¶ 31, 49 P.3d 610, ¶ 31.
In this case, even though we did not rule in Roger’s favor, his
appeal was not entirely unfounded or intended to cause delay, and
did not constitute an abuse of the judicial system. Accordingly,
we do not award Marina her attorney fees and costs on appeal.
¶29 Affirmed.
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/S/ JIM RICE
We concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ TERRY N. TRIEWEILER
/S/ JIM REGNIER
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