In Re the Marriage of Burk

No. 01-701
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 173IN RE THE MARRIAGE OF
KELLY JOLENE BURK,
Petitioner and Respondent,
and
JACK LOUIS BURK,
Respondent and Appellant.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Michael C. Prezeau, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Amy Guth, Attorney at Law, Libby, Montana
For Respondent:
Peter F. Carroll, Attorney at Law, Kalispell, Montana
Submitted on Briefs: March 14, 2002
Decided: August 6, 2002
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Jack Louis Burk (Jack) appeals from the Findings of Fact,
Conclusions of Law, and Order Granting Motion to Modify Parenting
Plan entered by the Nineteenth Judicial District Court, Lincoln
County, which, among other things, designated Kelly Jolene Burk
(Kelly) as the residential parent of the parties' three children.
We affirm.
¶2 The issues are whether the District Court made the necessary
findings, whether the findings made are clearly erroneous and
whether the court abused its discretion in modifying the parenting
plan.
BACKGROUND
¶3 Jack and Kelly's marriage was dissolved in 1998, at which time
both Jack and Kelly resided in Eureka, Montana. After a contested
custody hearing, the District Court stated concerns with regard to
both parents, but also found that "[d]espite his flaws, Jack puts
his children first." It adopted a parenting plan awarding the
parties joint custody of their three preteenage children, with Jack
designated as the primary residential custodian, and Kelly having
visitation rights.
¶4 The District Court amended the parenting plan at Jack's
request in March of 2000, after Kelly relocated to the state of
Washington. The amended parenting plan addressed visitation
arrangements in view of the increased distance between the parents'
homes.
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¶5 In May of 2001, Kelly moved the District Court to modify the
parenting plan again and to designate her as the children's
residential parent. In support of her motion, she filed an
affidavit stating that, for the preceding 20 months, the children
had been living with Jack's parents in Eureka while Jack worked
long hours out of town as a logger. She stated Jack returned to
Eureka primarily on weekends, spending very little time with the
children and leaving their care to his parents. She further
averred that she had visited the children for 5 to 7 days every two
months or so over the past two years, contacted them by telephone
at least twice a week, and had them with her in Washington during
the summer months. She alleged the children's home environment in
Eureka was both verbally and physically abusive.
¶6 The District Court held a hearing on Kelly's motion to modify
at which it heard testimony from Jack, Kelly and numerous other
witnesses, and received a number of exhibits into evidence. Kelly
presented evidence which supported the statements in her affidavit.
Jack presented evidence that the children were content and well-
cared-for in his parents' household. He also argued Kelly was not
a suitable custodial parent because she smoked cigarettes, had
corporally punished the children, and was cohabitating with a man
with whom she had a new baby and whose two children from a previous
marriage also would be included in their household.
¶7 In detailed findings and conclusions, the District Court
determined Jack had basically turned the children over to his
parents to raise and had not continued to "put the children first."
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The court found that, even when Jack was in town and not working,
such as during the six to eight weeks of "spring breakup" each
year, the children continued to live with his parents. The court
found Kelly had made significant strides to straighten out her life
and had continued to demonstrate "a fairly remarkable devotion to
the children under fairly difficult circumstances." Ultimately,
the District Court found the children's best interests would be
served by granting Kelly's motion to modify and designating her as
the residential parent. Jack appeals.
DISCUSSION
¶8 Did the District Court make the necessary findings, are the
findings made clearly erroneous and did the court abuse its
discretion in modifying the parenting plan?
¶9 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. Jack contends the court failed to make a
finding regarding a change in circumstances, the change in
circumstances which existed was not based on "new" facts, and the
court erred in finding the change was necessary to serve the best
interests of the children.
¶10 Jack argues first that the District Court failed to make the
finding regarding a change in the children's circumstances required
by § 40-4-219(1), MCA. In its Findings of Fact, Conclusions of Law
and Order, however, the District Court expressly found that its
1998 Parenting Plan placed the children's legal residence "with
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Jack at his residence in/near Eureka, Montana." It further found
that, soon after the Parenting Plan was entered, Jack moved the
children into his parents' home. Finally, the District Court found
that, at the time the original Parenting Plan was modified in 2000
at Jack's request, it was not aware that the children already had
been moved into Jack's parents' home. In this latter regard, Jack
concedes on appeal that he did not apprise the court of that fact
during the modification proceeding in 2000.
¶11 The District Court's unchallenged findings state, as matters
of fact, that Jack moved the children's residence after the
original parenting plan and that it was not aware of that move at
any time prior to Kelly's motion to modify in 2001. While lacking
the statutory "change in circumstances" language, we conclude the
District Court's findings clearly state the component parts of a
change in circumstances finding--namely, facts arising after the
1998 plan and unknown to the court at the time of the amendment of
the plan in 2000-- required by § 40-4-219(1), MCA. Moreover, Jack
cites to no authority--and we know of none--rendering a court's
failure to use the actual "change in circumstances" language of the
statute reversible error. An express finding using the statutory
language certainly is preferable. However, we have held that a
court's failure to specifically use those words in findings which
otherwise imply a finding of change in circumstances was, at most,
harmless error. See In re Custody of Arneson-Nelson, 2001 MT 242,
¶ 30, 307 Mont. 60, ¶ 30, 36 P.3d 874, ¶ 30.
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¶12 Jack also asserts that, because Kelly failed to challenge the
arrangement--of which she was aware--during his modification
proceeding in 2000, the District Court erred in considering the
placement of the children with his parents as the basis for the
change in circumstances. The District Court stated, however, that
even if Kelly were aware of the arrangement between Jack and his
parents at the time of the modification in 2000, it was not aware
of the children's placement with Jack's parents at that time. As a
result, the court properly ruled that the this modification
pursuant to Kelly's motion was permissible under the portion of §
40-4-219(1), MCA, which allows modification on a finding of changed
circumstances based on facts "unknown to the court at the time of
entry of the prior plan."
¶13 Jack also relies on several of our cases for the proposition
that a default judgment precludes relitigation of custody
proceedings which do not meet the threshold change of circumstances
requirement of § 40-4-219, MCA. His interpretation of the cases is
correct, but the cases do not help him here.
¶14 By its terms, the change in circumstances requirement
contained in § 40-4-219, MCA, applies to modifications of all
parenting plans. Our cases merely recognize that, even if the
original plan and decree were entered by default, a showing of
substantial change in the child's circumstances is required to meet
the statutory requirements for modification. See In re Marriage of
Hay (1990), 241 Mont. 372, 376-77, 786 P.2d 1195, 1198; In re
Custody of Andre (1988), 234 Mont. 80, 85, 761 P.2d 809, 812;
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Svennungsen v. Svennungsen (1974), 165 Mont. 161, 166, 527 P.2d
640, 643. In other words, even where an original decree is
uncontested, the defaulting parent must satisfy the requirements of
§ 40-4-219, MCA, for a modification. Thus, the issue is not
whether the original or 2000 modification was contested. The issue
is whether, in the present case, Kelly met the change of
circumstances requirement. As discussed above, that requirement is
met in this case.
¶15 Jack next makes a number of assertions relating to findings of
fact made by the District Court. Specifically, Jack objects to the
court's findings reprimanding him for hitting the children with a
piece of kindling and for leaving the children in his parents'
care.
¶16 Our standard of review of a district court's findings of fact
is whether they are clearly erroneous. A finding is clearly
erroneous if it is not supported by substantial evidence, if the
trial court has misapprehended the effect of the evidence, or if
this Court's review of the record convinces it that a mistake has
been made. In re Marriage of Johnson (1994), 266 Mont. 158, 166-
67, 879 P.2d 689, 694 (citations omitted). District court findings
are presumed correct and the appellant has the burden of
establishing error. DeVoe v. State (1997), 281 Mont. 356, 363, 935
P.2d 256, 260 (citation omitted). Jack does not argue a lack of
substantial evidence to support the above findings and has not
established that the findings are otherwise clearly erroneous.
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¶17 Jack also contends the District Court erred by failing to make
certain findings. He contends the court essentially condoned
Kelly's admission that she had disciplined the children by hitting
them with a belt and disregarded that she had established a new
relationship with a man who had custody of his two children from a
previous relationship and with whom she had a 19-month-old child,
and that she planned to provide child care by hiring an unlicensed
23-year-old baby sitter with two small children of her own.
¶18 A court need not make findings on every piece of evidence, but
only the essential and determining factors upon which its
determination is based. In re Marriage of Drake, 2002 MT 127, ¶
23, 310 Mont. 114, ¶ 23, 49 P.3d 38, ¶ 23 (citation omitted). The
fact that the District Court made no findings on Kelly's discipline
with a belt and her choice of babysitter is not dispositive.
Moreover, the District Court addressed Kelly's relationship with
her boyfriend, finding that "Kelly has a 19 month child with her
boyfriend (whom she claims to be planning to marry), and she now
has her boyfriend's two children to help raise." The court also
stated it was impressed with Kelly's boyfriend's "devotion to Kelly
and to her children." Thus, while the court found that some of
Kelly's circumstances are "somewhat troubling, the Court has no
doubt that Kelly is prepared to provide the parental love and
attention that Jack has seemed so reluctant to provide."
¶19 Jack also contends the District Court did not consider his
evidence about the good care provided the children by his parents,
thereby abusing its discretion. The record reflects otherwise.
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The court clearly considered Jack's evidence. It found that,
"[e]ven if Jack's parents are providing a good home for the
children, Kelly's rights cannot be subjugated to those of the
grandparents." The court was correct. A modification of a
parenting plan is based on the best interests of the children with
regard to the respective parents. See § 40-4-219, MCA. In
unchallenged findings, the District Court found that Jack has been
an indifferent parent, is not adequately committed to his children
and, basically, has abandoned the children. In light of these
findings, Jack's contentions regarding the quality of care his
parents provide are of little relevance.
¶20 Jack's final argument relates to whether the District Court
demonstrated sufficient consideration of the best interest of the
child factors set forth in §§ 40-4-212 and 40-4-219, MCA. In
ruling on a motion to modify a parenting plan, the court may
consider the factors set forth in § 40-4-219(1), MCA, in addition
to considering "all relevant parenting factors" pursuant to § 40-4-
212(1), MCA. The district court need not make a specific finding
on each statutory factor, but must show that it considered each
element by making specific findings regarding the best interests of
the children. In re Marriage of Arrotta (1990), 244 Mont. 508,
513, 797 P.2d 940, 943 (citation omitted).
¶21 Jack is correct in pointing out that the District Court did
not expressly address in its findings such statutory factors as the
wishes of the children; the interaction and interrelationship of
the children with their paternal grandparents and cousins; the
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children's adjustment to home, school and community; or continuity
of care. He is not correct that the court failed to consider those
factors and his evidence relating thereto. Indeed, the District
Court stated it had considered the "best interest" factors set
forth at §§ 40-4-212 and 40-4-219, MCA.
¶22 Jack also contends the court did not address the physical
health of the individuals involved and, specifically, the
daughter's asthma in relation to her mother's and mother's
boyfriend's smoking or whether one parent knowingly failed to
financially support the children. However, the court found Kelly's
testimony that she does not smoke in the house convincing. It
further found that, while Kelly is not entirely current on her
share of the children's medical and dental bills, that failure is
largely attributable to factors other than a knowing or willful
failure to pay.
¶23 The District Court also made findings in addition to those
discussed previously. It found that "[t]he bottom line is that for
the past 2½ years the children have been farmed out to their
grandparents while Jack has shown a lack of commitment to the
children. At the same time, Kelly has made significant strides in
her own life and has consistently shown that she is devoted to her
children." Furthermore, after considering the other statutory
factors relating to the children's best interests, the court stated
that "none of the factors identified in those statutes, alone or
taken together, outweigh the fact in this case that Jack has
basically abandoned his children, and Kelly stands willing and able
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to provide a good home for the children." Jack does not address
these findings and we conclude they are supported by substantial
evidence and are not otherwise clearly erroneous.
¶24 A trial court's modification of custody or a parenting plan
will be reversed only upon a showing of clear abuse of discretion.
See In re Marriage of Hunt (1994), 264 Mont. 159, 164, 870 P.2d
720, 723. An abuse of discretion occurs only when the court "acted
arbitrarily without employment of conscientious judgment or
exceeded the bounds of reason resulting in substantial injustice."
In re Marriage of Meeks (1996), 276 Mont. 237, 242, 915 P.2d 831,
834 (citation omitted). Based on the record before us, it cannot
be said that the court acted arbitrarily without employment of
conscientious judgment or exceeded the bounds of reason resulting
in substantial injustice. We hold, therefore, that the District
Court did not abuse its discretion in modifying the parenting plan.
¶25 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ PATRICIA COTTER
/S/ JIM REGNIER
/S/ JAMES C. NELSON
/S/ JIM RICE
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