Parenting of C.J.

April 20 2016
DA 15-0542
Case Number: DA 15-0542
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 93
IN RE THE PARENTING OF C.J.:
MATTHEW F. TUBAUGH,
Petitioner and Appellant,
v.
STEVI JACKSON,
Respondent and Appellee.
APPEAL FROM: District Court of the Sixth Judicial District,
In and For the County of Park, Cause No. DR-13-60
Honorable Brenda Gilbert, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jason Armstrong, Law Office of Jason Armstrong, P.C., Bozeman,
Montana
For Appellee:
Christopher J. Gillette, Law Office of Christopher J. Gillette, PC,
Bozeman, Montana
Submitted on Briefs: March 30, 2016
Decided: April 20, 2016
Filed:
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 Matthew Tubaugh appeals the findings of fact, conclusions of law, and order of
the Sixth Judicial District Court, Park County, adopting a final parenting plan that
provides Stevi Jackson with primary custody of Matthew’s and Stevi’s son, C.J., and
allows Stevi to relocate to Vermont with C.J. Matthew alleges several errors in the
District Court’s parenting determination. We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
¶2 Matthew and Stevi first met in or about 2004 and, although they had an “on and
off” relationship for several years, the parties never lived together. C.J. was born in
August 2012.
¶3 At the time of the District Court proceedings, Stevi resided in Belgrade, Montana,
with C.J., her husband Tom, and the couple’s minor child. She has a degree in early
childhood education and had been employed by Head Start in Bozeman since 2007.
Stevi began her Head Start employment as an assistant teacher and eventually progressed
to serve as both the site supervisor and the technology manager. In July 2015, she was
offered a job as the Children’s Service Manager for a Head Start program in Newport,
Vermont.
¶4 Matthew resides in Livingston with his domestic partner, who was pregnant with
his child at the time of the final parenting plan hearing. Matthew has a daughter, P.J.,
from a previous relationship. He has part-time custody of P.J. Matthew served in the
armed forces, worked as a police officer, and at the time of the hearing was working on a
ranch.
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¶5 Although the parties dispute whether Matthew was given an opportunity to spend
time with C.J. during the first fifteen months of his life, it is undisputed that Matthew saw
C.J. only once during that time period. Stevi testified that Matthew did not provide her
with any financial assistance during that time; Matthew did not offer any evidence to the
contrary. In July 2014, the District Court ordered Matthew to pay $156 per month in
child support. A Child Support Enforcement Division debt computation worksheet
admitted at the hearing showed that Matthew was current on child support payments as of
June 2015.
¶6 Prior to C.J.’s birth, Matthew sent Stevi an email stating that “a paternity test will
be required” because he questioned whether or not he was C.J.’s father. After C.J.’s
birth, Matthew continued to contest paternity before eventually filing a paternity action.1
Approximately six months after the court ordered paternity testing, Matthew took a
paternity test. It confirmed that he was C.J.’s father. On June 14, 2013, after receiving
the paternity test results, Matthew filed a petition for establishment of an interim
parenting plan. While Matthew’s petition was pending, he and Stevi arranged for
supervised visits between himself and C.J at Hearts & Homes in Bozeman. Stevi stopped
the arrangement after three visits because she felt C.J. was demonstrating “very distressed
behavior” during the visits.
¶7 The District Court held a hearing on Matthew’s petition for an interim parenting
plan on February 3, 2014. Following the hearing, the parties attempted to reconcile their
relationship and arranged parenting time on their own. The parties’ attempt at
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The District Court took judicial notice of the paternity action.
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reconciliation eventually failed and, in May 2014, Matthew filed a petition for an
“emergency de facto” parenting plan.
¶8 In July 2014, the District Court issued an order that allowed Matthew two visits
per week with C.J. and required both parties to attend counseling sessions. The court also
appointed counselor Chantelle Plauche to assist in reunifying Matthew and C.J. The
order required the parties to follow Plauche’s “recommendations for improving the
relationship and parental contact between Matthew and [C.J.].”
¶9 Plauche worked with the parties for a year and testified that Matthew’s
relationship with C.J. improved. Due to the improving relationship, Plauche
recommended a number of times that Matthew incrementally increase his parenting time
with C.J., and Matthew’s parenting time did increase. Plauche eventually recommended
that Matthew be allowed to have C.J. for three days and two nights in a row per week.
¶10 On July 14, 2015, Stevi filed a proposed final parenting plan and a notice of intent
to relocate. Her proposed plan called for C.J. to reside with her in Vermont during the
school year and with Matthew in Livingston during the summer. Matthew also filed a
proposed parenting plan in which C.J. would live with him during the school year and
with Stevi in Vermont during the summer.
¶11 On August 18, 2015, the District Court held a hearing on Stevi’s notice of intent to
relocate and the parties’ respective parenting plans. Stevi, Matthew, and Plauche testified
at the hearing. Matthew also called Katherine McLaughlin as an expert witness to testify
generally regarding childhood development. On August 27, 2015, the District Court
issued its findings of fact, conclusions of law, and order regarding the final parenting
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plan. The court’s order largely adopted Stevi’s proposed parenting plan. Matthew
appeals.
STANDARD OF REVIEW
¶12 We review a district court’s findings of fact supporting a parenting plan to
determine whether they are clearly erroneous. In re the Parenting of 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 convinces us that the district court made a
mistake. M.C., ¶ 10. We review a district court’s conclusions of law to determine if they
are correct. M.C., ¶ 10.
¶13 A district court has “broad discretion when considering the parenting of a child,
and we must presume that the court carefully considered the evidence and made the
correct decision.” In re the Marriage of Woerner, 2014 MT 134, ¶ 12, 375 Mont. 153,
325 P.3d 1244 (quoting In re Marriage of Crowley, 2014 MT 42, ¶ 44, 374 Mont. 48, 318
P.3d 1031). Accordingly, absent clearly erroneous findings, we will not disturb a district
court’s decision regarding parenting plans unless there is a clear abuse of discretion.
Woerner, ¶ 12. A district court abuses its discretion if it acts arbitrarily, without
employment of conscientious judgment, or exceeds the bounds of reason resulting in
substantial injustice. Woerner, ¶ 12.
DISCUSSION
¶14 While district courts “have broad discretion when considering the parenting of a
child,” Woerner, ¶ 12, a district court must “determine the parenting plan in accordance
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with the best interest of the child,” § 40-4-212(1), MCA; Woerner, ¶ 13. District courts
are directed to consider “all relevant parenting factors” in making these determinations.
Section 40-4-212(1), MCA. The statute’s non-exhaustive list of factors includes:
(a) the wishes of the child’s parent or parents;
(b) the wishes of the child;
(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;
(f) physical abuse or threat of physical abuse by one parent against the other
parent or the child;
(g) chemical dependency . . . or chemical abuse on the part of either parent;
(h) continuity and stability of care;
(i) developmental needs of the child;
(j) whether a parent has knowingly failed to pay birth-related costs that the
parent is able to pay, which is considered to be not in the child’s best
interests;
(k) whether a parent has knowingly failed to financially support a child that
the parent is able to support, which is considered to be not in the child’s
best interests;
(l) whether the child has frequent and continuing contact with both parents,
which is considered to be in the child’s best interests unless the court
determines, after a hearing, that contact with a parent would be detrimental
to the child’s best interests. . . . ;
(m) adverse effects on the child resulting from continuous and vexatious
parenting plan amendment actions.
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Section 40-4-212(1), MCA. Although “[w]e have encouraged district courts to make
specific findings on each relevant statutory factor,” we require only “that the district court
make findings sufficient for this court to determine whether the court considered the
statutory facts and made its ruling on the basis of the child’s best interests.” Woerner,
¶ 15.
¶15 The District Court found that C.J. is attached primarily to Stevi because she “has
parented him much more of the time, has arranged for his medical and dental care, has
arranged for his play dates and other social interaction, and has provided for his day to
day needs.” The court found further that Stevi did not prevent Matthew from spending
time with C.J. during the first fifteen months of C.J.’s life. The court noted that Matthew
“did not present any evidence that he was actually requesting and pursuing parenting time
with [C.J.] in any significant fashion” during that time period. Although the court
determined that C.J. “has a secure bond with [Matthew],” it decided that “Stevi should be
entitled to relocate to Newport, Vermont[,] where she has the opportunity to pursue her
career in a setting that has more room for advancement [and] more financial
opportunity.” The court found that the final parenting plan “will deepen” C.J.’s bond
with Matthew by virtue of its longer periods of uninterrupted parenting time, “involve far
fewer parenting exchanges and less exposure to conflict for [C.J.] than what he is
experiencing under the current schedule,” and “involve opportunities for frequent
telephone and Skyping or similar communications.”
¶16 The court next addressed the competing constitutional rights implicated by the
proposed parenting plans—Stevi’s right to travel and Matthew’s right to parent—before
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analyzing whether it would be in the best interest of C.J. to move to Vermont with Stevi
or to remain in Livingston with Matthew. The court thoroughly considered and made
specific findings on each of the best interest factors set forth in § 40-4-212, MCA. Based
upon its consideration of the factors, the court concluded that it would be in C.J.’s best
interest to adopt a final parenting plan that allowed Stevi to maintain primary custody of
C.J. and relocate to Vermont.
¶17 Matthew first asserts that the District Court’s finding that Stevi did not interfere
with his relationship with C.J. is clearly erroneous. Matthew alleges that the evidence
demonstrates that Stevi “willfully and consistently interfered with [Matthew’s] parenting
time.” Matthew contends that the “reason that C.J. is primarily attached to [Stevi] is
because she has consistently thwarted and interfered with [Matthew’s] ability to exercise
parenting time of any kind[,] not just meaningful parenting time.” Consequently,
Matthew asserts, the District Court’s finding adversely impacted its consideration of
several of the best interest factors under § 40-4-212, MCA.
¶18 The District Court’s finding provides:
33. Stevi is the parent to whom [C.J.] is primarily attached. She parented
him without contact from [Matthew] during the first fifteen months of
[C.J.’s] life. The lack of contact between [C.J.] and [Matthew] during that
time frame was not due to interference or blocking the contact on Stevi’s
part.
The District Court relied on evidence showing that for the first eight months of C.J.’s life,
Matthew contested whether he was C.J.’s father. Although Matthew was ordered to take
a paternity test on October 31, 2012, he did not take the test until April 29, 2013.
Moreover, Matthew admitted that Stevi offered to allow him to visit C.J. so long as she
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was present, but testified that he refused the opportunity because he did not want Stevi
present during his visits with C.J. The parties’ testimony substantiates the District
Court’s view that although Stevi has been C.J.’s primary parent, she has made efforts to
have Matthew involved in C.J.’s life.
¶19 It is the District Court’s function to determine “the credibility of the witnesses and
the weight assigned to their respective testimony.” In re the Parenting of N.S., 2011 MT
98, ¶ 25, 360 Mont. 288, 253 P.3d 863. “Whether we would have reached the same
decision as the trial court is not the standard under which we review a court’s order for an
abuse of discretion.” Woerner, ¶ 29 (citing In re Marriage of Lockhead, 2013 MT 368,
¶ 12, 373 Mont. 120, 314 P.3d 915). Rather, “[w]e review whether substantial evidence
in the record supports the court’s findings regardless of whether the evidence could
support a different outcome as well.” Woerner, ¶ 29 (citing Brimstone Mining, Inc. v.
Glaus, 2003 MT 236, ¶ 20, 317 Mont. 236, 77 P.3d 175). Based on our review of the
record, we conclude that the District Court did not misapprehend the effect of the
evidence or clearly make a mistake in finding that Stevi did not interfere with Matthew’s
relationship with C.J. The District Court’s finding of fact is supported by substantial
evidence and is not clearly erroneous. Accordingly, we disagree with Matthew’s
contention that the District Court’s finding led to an incorrect application of the best
interest factors under § 40-4-212, MCA.
¶20 Next, Matthew alleges that the District Court misstated the law when it concluded
that Matthew “bears a ‘heavy burden’ of establishing that the proposed travel restriction
is consistent with the best interests” of C.J. Matthew contends that the burden of proof
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for establishing a travel restriction is simply the best interest of the child standard.
Therefore, Matthew claims, the District Court incorrectly required Matthew “to show that
not moving was in C.J.’s best interest.” Matthew claims again that the District Court’s
finding that Stevi did not interfere with his relationship with C.J. is not supported by
substantial evidence. Matthew cites our holding in M.C. that “a parent’s decision to
move may be considered against the best interests of a child if the parent’s decision
exemplifies a willful and consistent attempt to frustrate or deny contact between the child
and his or her other parent.” M.C., ¶ 20 (citation and internal quotations omitted).
Finally, Matthew asserts that the court incorrectly elevated Stevi’s right to travel over
C.J.’s best interests.
¶21 The right to travel “has long been recognized as a fundamental constitutional
right.” M.C., ¶ 12 (citing Shapiro v. Thompson, 394 U.S. 618, 629-31, 89 S. Ct. 1322,
1328-29 (1969), overruled on other grounds by Edelman v. Jordan, 415 U.S. 651, 671,
94 S. Ct. 1347, 1360 (1974)). Accordingly, the right to travel “may be restricted only by
a compelling state interest.” M.C., ¶ 12 (citing Dunn v. Blumstein, 405 U.S. 330, 339, 92
S. Ct. 995, 1001 (1972); In re Marriage of Cole, 224 Mont. 207, 213, 729 P.2d 1276,
1280 (1986)). Advancing the best interest of a child is a compelling state interest. M.C.,
¶ 13 (citing Cole, 224 Mont. at 213, 729 P.2d at 1280). Therefore, “in cases implicating a
parent’s exercise of his or her fundamental right to travel, ‘it is the court’s task to attempt
to reconcile the interests of both parents with the best interests of the child.’” M.C., ¶ 13
(quoting Cole, 224 Mont. at 213, 729 P.2d at 1280). In such cases, we have cautioned:
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A restriction on a parent’s fundamental right to travel must be imposed
cautiously and only when there is sufficient proof that the restriction is in
the best interest of the child. The parent seeking the restriction must
provide case-specific proof that the restriction is in the child’s best interest:
that is, legitimate, case-specific reasons and evidence pertaining to the
particular child, rather than general discussion about the effects of
relocation on children of separation or divorce.
M.C., ¶ 14 (internal citations and quotations omitted).
¶22 Our precedent makes clear that Matthew—as the parent seeking to restrict Stevi’s
fundamental right to travel—bears the burden of proving that the restriction is in C.J.’s
best interest. Here, the District Court recognized correctly that Matthew bore such a
burden. The court recognized further its responsibility to consider C.J.’s best interests
and concluded, “Ultimately, in balancing the respective and competing constitutional
rights of the parties and in determining the terms and parameters of any parenting plan,
the Court is bound to consider the best interest standards of the child as contemplated in
§ 40-4-212, MCA.” The court then proceeded to consider, and make specific findings
regarding, each of the best interest factors set forth in § 40-4-212, MCA. We conclude
that the District Court correctly held Matthew to the burden of showing that the travel
restriction was not in C.J.’s best interest, and that it correctly applied the best interest of
the child standard.
¶23 As discussed above, there is substantial evidence supporting the District Court’s
finding that Stevi did not interfere with Matthew’s relationship with C.J. Aside from his
interference argument, Matthew has offered no other “legitimate, case-specific reasons
and evidence” supporting his contention that restricting Stevi’s right to travel is in the
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best interest of C.J. M.C., ¶ 14. Accordingly, we conclude that the District Court acted
within its broad discretion in allowing C.J. to relocate to Vermont with Stevi.
¶24 For the foregoing reasons, we conclude that the District Court’s findings of fact
were not clearly erroneous and its conclusions of law were correct. We therefore will not
disturb the District Court’s decision regarding C.J.’s parenting plan.
CONCLUSION
¶25 The District Court’s order adopting the final parenting plan is affirmed.
/S/ BETH BAKER
We concur:
/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
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