Parenting of R.J.N H.E.N.

10/10/2017
DA 17-0041
Case Number: DA 17-0041
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 249
IN RE THE PARENTING OF:
R.J.N. and H.E.N.,
Minor Children.
CHELLIE NEWMAN,
Petitioner and Appellant,
and
WILLIAM H. NEWMAN,
Respondent and Appellee.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DR-07-12C
Honorable John C. Brown, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jeremy S. Yellin, Attorney at Law, Havre, Montana
For Appellee:
John P. Nesbitt, Jr., Attorney at Law, Bozeman, Montana
Submitted on Briefs: August 30, 2017
Decided: October 10, 2017
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Chellie Newman (Chellie) appeals the summary dismissal of her petition to modify
the parenting plan for her two sons with William Newman (William), by the Eighteenth
Judicial District Court, Gallatin County. We affirm, addressing the following issue:
Did the District Court err by dismissing the petition to modify the parenting plan
without conducting a hearing?
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Chellie and William were married in 1999 and had two children together, R.J.N.
and H.E.N. The marriage was dissolved in 2007, and the parties’ stipulated parenting plan
was approved and ordered.
¶3 In 2011, Chellie gave notice of her intention to move to California, and proposed a
parenting plan amendment that would substantially restrict William’s time with the
children. In response, William also moved to modify the parenting plan. The Standing
Master conducted a hearing on the proposed modifications and, on January 10, 2013,
entered findings of fact, conclusions of law and an order adopting an amended parenting
plan that provided the children would spend a majority of their time with William. The
Master concluded that a threshold change of circumstances necessitating a hearing had
occurred because of Chellie’s intention to relocate to California with the children, and her
asserted “acts of parental alienation” against William. The Master found that Chellie had
“engaged in various acts which are forms of parental alienation,” including refusing to
allow William to exercise his scheduled time with the children despite his repeated
requests, and found that there was “strong evidence that Father’s relationship with his
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children has been severely damaged as a result of [Chellie’s] proposed relocation to
California with the children.”
¶4 In February 2015, Chellie moved to modify the 2013 Amended Parenting Plan. Her
motion stated “[t]he basis for this motion is that R.J.N. will be fifteen [15] years of age as
of April, 2015, and H.E.N. is twelve [12] years of age, and both children desire a change
from the children residing primarily with [William] to a new parenting plan where they
reside primarily with [Chellie.]” Her supporting affidavit simply reiterated the children’s
ages and their desire to live primarily with Chellie. William moved to dismiss Chellie’s
motion, arguing that it failed to demonstrate changed circumstances necessary for a hearing
to be conducted on modification of the parenting plan. The Master entered an order
summarily denying Chellie’s motion. Chellie filed objections, arguing the Master should
have held an evidentiary hearing and conducted an in camera interview of the children.
After briefing and a hearing in which argument was received, the District Court affirmed
the order, reasoning that “Chellie failed to meet the threshold showing for a hearing, and
the Standing Master correctly granted [William’s] Motion to Dismiss. . . .” Chellie appeals.
STANDARD OF REVIEW
¶5 When considering parenting plan modifications, we review conclusions of law for
whether they are correct. In re Marriage of Guffin, 2010 MT 100, ¶ 20, 356 Mont. 218,
232 P.3d 888. Two standards of review are relevant in a case involving both a standing
master and the district court: the standard the district court applies to the master's report
and the standard we apply to the district court’s decision. In re Marriage of Davis, 2016
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MT 52, ¶ 4, 382 Mont. 378, 367 P.3d 400 (citing In re Marriage of Kostelnik, 2015 MT
283, ¶ 15, 381 Mont. 182, 357 P.3d 912). We review a district court’s decision de novo to
determine whether it applied the correct standard of review to a standing master’s findings
of fact and conclusions of law. Kostelnik, ¶ 15 (citing In re Marriage of Patton, 2015 MT
7, ¶ 17, 378 Mont. 22, 340 P.3d 1242). A district court reviews a standing master’s findings
of fact for clear error, Patton, ¶ 24, and its conclusions of law to determine if they are
correct. Patton, ¶ 43.
DISCUSSION
¶6 Did the District Court err by dismissing the petition to modify the parenting plan
without conducting a hearing?
¶7 Chellie argues that because one of the children was fourteen years of age, and
wished to reside primarily with her, these circumstances provided sufficient grounds to
warrant a hearing on her proposed modification to the parenting plan. William responds
that the Standing Master and District Court correctly concluded Chellie did not satisfy her
burden under the statute to establish a change in circumstances necessary to justify a
hearing on modification.
¶8 Section 40-4-219(1), MCA, provides the standards for modification of a parenting
plan, requiring a change of circumstances to have occurred and a finding that an
amendment is necessary to serve the best interest of the child:
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.
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As provided, these standards are to be satisfied “upon the basis of facts that have arisen
since the prior plan or that were unknown to the court at the time of the entry of the prior
plan.” Section 40-4-219(1), MCA.
¶9 Pursuant to § 40-4-220(1), MCA, the party seeking modification “must file a motion
and supporting affidavit showing cause for modification.” In re Marriage of D’Alton, 2009
MT 184, ¶ 9, 351 Mont. 51, 209 P.3d 251. Requests for parenting plan modifications “must
satisfy an initial statutory threshold of changed circumstances.” In re Marriage of Whyte,
2012 MT 45, ¶ 23, 364 Mont. 219, 272 P.3d 102; D’Alton, ¶ 9. A demonstration of changed
circumstances is a “prerequisite” to amendment of a parenting plan, and “a district court
may not modify an existing custody arrangement” without such a finding. In re Marriage
of Jacobsen, 2006 MT 212, ¶ 17, 333 Mont. 323, 142 P.2d 859 (citing In re Marriage of
Oehlke, 2002 MT 79, ¶ 12, 309 Mont. 254, 46 P.3d 49). The party seeking modification
of a parenting plan “carries a heavy burden of proof.” D’Alton, ¶ 11. Section 40-4-220(1),
MCA, provides that a court “shall deny the motion unless it finds that adequate cause for
hearing the motion is established by the affidavits, based on the best interest of the child,
in which case it shall set a date for hearing . . . .”
¶10 Here, Chellie argues the District Court erred in denying her request for a hearing.
The District Court concluded that the assertions in Chellie’s motion and affidavit about
R.J.N.’s age and the children’s desire to live primarily with her “do not constitute a
sufficiently changed circumstance warranting a hearing under § 40-4-220(1), MCA.” It
cited our statement in D’Alton that “the mere aging of children so that they are now in
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school could hardly be considered ‘unknown to the court at the time of the entry of the
prior plan’ as required by § 40-4-219(1), MCA,” D’Alton, ¶ 11, to conclude that “[t]he
mere passage of time is not sufficient to establish a changed circumstance of the child.”
¶11 We recognize that one of the statutory criteria in determining a child’s best interest
is whether “the child is 14 years of age or older and desires the amendment,” which the
District Court may discretionarily consider and weigh. Section 40-4-219(1)(c), MCA.
While we have not adopted a blanket rule that the aging of a child, in conjunction with
consideration of his or her desires, can never constitute a change in circumstances
warranting a hearing on modification, we agree with the District Court’s conclusion that
such a change was not demonstrated here. The parties’ parenting plan was recently revised
after substantial litigation, and though the children’s wishes were not expressly considered
at that time, their ages were noted and their circumstances were extensively assessed.
Chellie’s pleadings simply noted the children’s current ages and their desire to live
primarily with her. With nothing more, Chellie’s assertions appeared to merely return the
case to the core issue litigated shortly before, in 2013: Chellie’s desire to have the children
move with her to California, a plan that was found at that time to have “severely damaged”
the children’s relationship with William.
¶12 A district court has “broad discretion when considering the parenting of a child.” In
re Marriage of Tummarello, 2012 MT 18, ¶ 34, 363 Mont. 387, 270 P.3d 28. However, in
a modification context, such discretion is contoured by an initial determination of changed
circumstances, a legal conclusion. See, e.g., Jacobsen, ¶ 17; Oehlke, ¶ 12; Whyte, ¶ 28.
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The statute promotes stability for the children and discourages unnecessary litigation over
parenting plans. Whyte, ¶ 23. We conclude the District Court correctly concluded that the
Standing Master’s decision dismissing the petition was legally correct as failing to
demonstrate a change in circumstances.
¶13 Affirmed.
/S/ JIM RICE
We concur:
/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
Justice Beth Baker, concurring.
¶14 In light of the statutory standards for amendment of a parenting plan and our case
law, the circumstances of this case—particularly the recent litigation over the parenting
plan—did not mandate a hearing as a matter of law on Chellie’s petition, and I agree with
the Court’s disposition of her appeal. But today’s decision should not be read to minimize
the expressed wishes of teenaged children who are coping with their separated families.
¶15 I agree with most of what Justice McKinnon expresses in her Dissent. The problem
is that § 40-4-219, MCA, requires a showing of changed circumstances “and that the
amendment is necessary to serve the best interest of the child.” (Emphasis added.) The
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statute provides that a teenage child’s wishes are to be considered “[i]n determining the
child’s best interest,” not in determining whether there has been a change in circumstances.
Section 40-4-219(1), MCA. We thus have held that age alone does not automatically
qualify as a “changed circumstance” sufficient to justify a parenting plan amendment. See
D’Alton, ¶ 11 (concluding that children’s “changed circumstances” of being six years older
than at time of parenting plan did not “satisfy the initial threshold criteria for this Court to
order a show cause hearing to amend the parenting plan”); Whyte, ¶ 24 (holding that change
in child’s age did not constitute a “changed circumstance” sufficient to justify district
court’s amendment of the parties’ parenting plan). But as a child grows up, that child’s
circumstances may change in myriad ways that no one thought about when the parenting
plan was adopted. Developments in a child’s life, seemingly routine from a court’s
perspective, may have significant consequences to an adolescent at a vulnerable time in
life. The child’s wishes are entitled to serious consideration in order to protect the best
interest of the child, even if it means dragging the court back into the family’s affairs.
¶16 In light of the language and interpretation of the statute, parents who want to
maintain control over the governance of their own family may be able to prevent ongoing
court involvement by negotiating parenting plans in the first place that acknowledge the
importance of their children’s changing needs and desires as the children grow up. For
example, parents could agree to an opportunity for review of the plan and of the child’s
best interest if the child expresses a desire to change the plan after turning fourteen. This
assumes, of course, that the parents start with the child’s best interest truly at heart and
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maintain that focus on putting the child’s interest first. That is key to the success of any
parenting plan. To guard against manipulation, the parenting plan could include a
requirement that the moving party pay the other parent’s attorney fees if the court
determines that a modification request is not pursued in good faith based on the child’s best
interest.
¶17 It is important that parties have effective and equal access to the courts to resolve
contentious parenting disputes, or in cases where collaborative solutions are not
appropriate given the family’s dynamics. But court processes can be inadequate means to
handle “the custody and placement of innocent children.” In re Brockington, 2017 MT 92,
¶ 37, 387 Mont. 260, 400 P.3d 205 (McGrath, C.J., dissenting); see also Whyte, ¶ 45 (Baker,
J., dissenting). Participants in our justice system must continue to find ways to help
families recognize the best interest of their children and meet the needs of all family
members without court intervention. If court intervention is needed, the district court is in
the best position to determine the weight to be given a child’s expressed desires. See In re
Marriage of Graham, 2008 MT 435, ¶ 8, 347 Mont. 483, 199 P.3d 211; In re Marriage of
Burk, 2002 MT 173, ¶¶ 20-24, 310 Mont. 498, 51 P.3d 1149. In most cases the court at
least should consider those desires before summarily denying a motion to amend. Here,
however, Chellie’s petition fell short of what we have required to compel a hearing.
/S/ BETH BAKER
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Justice Laurie McKinnon, dissenting.
¶18 Section 40-4-219, MCA, is the statute in Montana dedicated to amending parenting
plans. A court may amend a parenting plan if it finds, upon the basis of facts that have
arisen since the prior parenting plan, that: (1) a change in the circumstances of the child
has occurred, and (2) the amendment is necessary to serve the best interests of the child.
Section 40-4-219(1), MCA. Section 40-4-219, MCA, directs the court in its substantive
analysis of whether an amendment is necessary. Importantly, § 40-4-219(1)(c), MCA,
expressly provides that the court may consider that “the child is 14 years of age or older
and desires the amendment.” Other statutory factors warranting further inquiry by the
court, which are also expressly set forth, are whether “the parents agree to the amendment,”
§ 40-4-219(1)(a), MCA; whether “the child has been integrated into the family of the
petitioner with consent of the parents,” § 40-4-219(1)(b), MCA; whether “one parent has
willfully and consistently . . . refused to allow the child to have any contact with the other
parent” or “attempted to frustrate or deny contact with the child . . . ,” § 40-4-219(1)(d),
MCA; and, whether one parent has changed “the child’s residence in a manner that
significantly affects the child’s contact with the other parent,” § 40-4-219(1)(e), MCA.
The Legislature enumerated these specific considerations on equal footing and priority,
thus indicating that a child who is 14 years of age is entitled to have his or her wishes
considered for purposes of amending a parenting plan. Importantly, § 40-4-219(1)(c),
MCA, which is set forth in a statute dedicated to amending a parenting plan, is distinct
from the requirement that the court consider “the wishes of the child” when determining
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the child’s best interests at the initial parenting plan proceeding pursuant to § 40-4-212,
MCA. Section 40-4-212(1)(b), MCA.
¶19 Section 40-4-220, MCA, provides the procedure for invoking the provisions of
§ 40-4-219, MCA. Section 40-4-220(1), MCA, requires that, in the absence of agreement,
the party seeking an amendment must file an affidavit setting forth facts supporting the
amendment. Here, Chellie gave notice in February 2015 that she wanted to amend the
2013 parenting plan on the basis that R.J.N. was almost 15 years old and H.E.N. was 12
years old, and both wanted to reside primarily with Chellie. At the time the District Court
affirmed the Standing Master’s dismissal of Chellie’s petition, R.J.N. was close to 17 years
old and H.E.N. was 14 years old. Chellie’s motion was supported by an affidavit indicating
that both R.J.N. and H.E.N. wished to amend the parenting plan. No opposing affidavit
was filed by William.
¶20 I would conclude that Chellie’s motion and affidavit, together with the express
provision of § 40-4-219(1)(c), MCA, presented “adequate cause for hearing [Chellie’s]
motion” and that a hearing on an order to show cause should have been granted. Section
40-4-220(1), MCA. The District Court, however, concluded on the basis of In re Whyte
that “despite R.J.N.’s age and apparent desire to amend the Parenting Plan (even if
established at an evidentiary hearing), these facts alone do not constitute a sufficiently
changed circumstance warranting a hearing under § 40-4-220(1), MCA.” The District
Court observed that “Chellie failed to cite any case, nor has this Court come across any
such Montana case in its research, that supports Chellie’s position.”
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¶21 In my opinion, the provisions of § 40-4-219(1)(c), MCA, supported Chellie’s
request and she did not need to recite authority from this Court to merit further inquiry into
her children’s wishes. This Court, however, states it agrees “with the District Court’s
conclusion that such a change [of circumstances] was not demonstrated here” and that
“Chellie’s pleadings simply noted the children’s current ages and their desire to live
primarily with her.” Opinion, ¶ 11. Where no opposing affidavit contests the applicability
of § 40-4-219(1)(c), MCA, or sets forth other facts relevant to the children’s best interests,
Chellie has met the threshold inquiry of demonstrating the children desire an amendment
and there is adequate cause for a hearing. We are not addressing here whether an amended
parenting plan should have been granted; rather, we are deciding whether a hearing should
have been ordered because a child 14 years of age or older desired an amendment. Indeed,
filed with Chellie’s motion was a request that the court inquire into the children’s wishes
in the privacy of the court’s chambers.
¶22 Importantly, the District Court did not base its decision on the findings this Court
makes: that the parenting plan was recently revised after substantial litigation; that the
children’s wishes were not expressly considered in previous litigation, but their
circumstances were extensively assessed; and that Chellie’s assertions appeared to merely
return the case to the core issue litigated in 2013. Opinion, ¶ 11. None of these findings
were made or even noted by the District Court. The District Court determined, as a matter
of law, that a child who is 14 years of age and desires an amendment has not met the
threshold inquiry of demonstrating a substantial change in circumstances. To be more
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precise, the District Court reviewed the Standing Master’s order dismissing Chellie’s
petition for the reasons “set forth in [William’s] Motion and Reply.” I cannot accept that
this gave adequate consideration to Chellie’s motion in light of the specific statutory
provision requiring an adolescent’s wishes be heard.
¶23 In In re Whyte, a trial court granted a Mother’s motion to amend a parenting plan
and this Court reversed. In re Whyte, ¶¶ 12, 24. The trial court expressly considered the
wishes of an eleven year old child and other circumstances in the child’s life. In re Whyte,
¶ 12. We vacated the amended parenting plan, concluding that the evidence the trial court
received was “insufficient to establish the statutory standard for amendment of the
parenting plan.” In re Whyte, ¶ 24. In our analysis of § 40-4-219(1)(c), MCA, we stated,
“[w]hile consideration of the child’s desires is statutorily required when the child is 14
years old, the ultimate decision is for the court to make, based upon the evidence, and
cannot be delegated to the child.” In re Whyte, ¶ 28 (emphasis added). Thus, in In re
Whyte we expressly stated that § 40-4-219(1)(c), MCA, requires a court consider the child’s
desires when the child is fourteen years old. We determined the provision did not apply to
the parenting plan at issue in In re Whyte because the child was only eleven years old. In
re Whyte, ¶ 28. Here, in contrast, Chellie provided an affidavit that the children, at least
one of them older than 14, desired an amendment pursuant to § 40-4-219(1)(c), MCA. No
opposing evidence was presented. It is patently clear that the District Court dismissed the
petition on what it believed was a matter of law. Although we add facts to our decision
which were not articulated by the District Court so the court’s dismissal might be justified,
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our conclusion that Chellie has not met her threshold statutory burden conveys to an
adolescent that his or her growth, maturity, and desire to direct and take control of his or
her own life is not worthy of a hearing and consideration by the court. I am very much
opposed to the suggestion that a child’s voice does not merit consideration by a court in a
parenting proceeding, particularly when the Legislature has concluded otherwise.
¶24 In 1983 the Legislature added what is now § 40-4-219(1)(c), MCA. SB 371, 48th
Leg. (Mont. 1983). The provision, introduced as Senate Bill 371, was titled, “An Act
Providing that if it is in the Best Interest of the Child, a Child Custody Decree May be
Modified When a Child Aged 14 Years or Older Desires that it be Modified; Amending
Section 40-4-219, MCA.” Proponents of the provision expressed concern that, under the
existing statutory framework, a child of appropriate age was disenfranchised from
expressing his or her wishes and desires as to a parenting plan amendment. Senate
Committee on Judiciary Hearing, Exhibit A, 1 (February 11, 1983). Proponents believed
that “our young people have a right to input their desires requesting a custody modification
upon a court.” Senate Judiciary Committee Hearing, Exhibit A, 1 (February 11, 1983).
The Senate intended the provision to “allow a 14-year-old child to express their desires as
to which parent they are placed with” without binding the court to the child’s desires.
Senate Judiciary Committee Hearing Minutes, 4 (February 15, 1983). The House of
Representatives noted that the provision would not permit a child to choose who he or she
lived with “as a matter of right,” but instead the provision would allow a judge to take a
child’s desire “into consideration once the child reaches [age 14].” House Judiciary
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Committee Hearing Minutes, 6 (March 14, 1983). Despite subsequent amendments to
§ 40-4-219, MCA, a child of age 14 or older still has the right to express his or her desire
for an amended parenting plan pursuant to § 40-4-219(1)(c), MCA, and we must ensure
that right is protected.
¶25 Contested parenting proceedings are hard for everyone—the parents, the family, the
witnesses, the court; but most particularly, the children for whom the proceedings are
designed to serve and protect. The proceeding should not shut out the voice of the very
individual upon which the proceeding is focused. While the court obviously is not required
to adopt a parenting plan consistent with the child’s wishes, it is nonetheless important for
the child that he or she is heard by the court. Given the contentious nature and substantial
amount of litigation in these proceedings, as noted by the Court, it would seem particularly
appropriate that the voices and wishes of R.J.N. and H.E.N.—here, two adolescents—be
heard, through any means the court deemed appropriate. At least, in such a fashion, they
would have the benefit of knowing that their wishes were heard and considered. In my
opinion and as explained above, this was what the Legislature contemplated when it
allowed for the amendment of a parenting plan to consider the wishes of a child who is 14
years of age or older. Section 40-4-219(1)(c), MCA.
¶26 I respectfully dissent from the Court’s decision that Chellie’s motion and
uncontroverted affidavit did not establish adequate cause for a hearing.
/S/ LAURIE McKINNON
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