                                                                                           February 28 2012


                                           DA 11-0379

                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                           2012 MT 45



IN RE THE MARRIAGE OF
CHARLES ANTHONY WHYTE,

               Petitioner and Appellant,

         and

LEANAH LOUISE COUVILLION,

               Respondent and Appellee.


APPEAL FROM:           District Court of the Twenty-First Judicial District,
                       In and For the County of Ravalli, Cause No. DR 02-175
                       Honorable Jeffrey H. Langton, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Michael L. Hayes; Hays & Hayes, P.L.L.P.; Hamilton, Montana

                For Appellee:

                       Linda Osorio St. Peter; St. Peter Law Offices, P.C.; Missoula, Montana



                                                    Submitted on Briefs: December 21, 2011

                                                                Decided: February 28, 2012


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Charles Whyte appeals from an Order Amending Parenting Plan entered by the

Twenty-First Judicial District Court, Ravalli County. We reverse and remand. We

address the following issues:

¶2     1. Did the District Court err in amending the parties’ parenting plan?

¶3     2. Did the District Court err in delegating to C.A.W. the power to amend the

parenting plan in the future?

                  FACTUAL AND PROCEDURAL BACKGROUND

¶4     Charles Whyte (Charles) and Leanah Couvillion (Leanah) were married in July

1996 and had one child, C.A.W., during their marriage, born in January 2000. The

parties divorced in 2003. On May 22, 2003, the parties stipulated to a final parenting

plan, which was incorporated into their divorce decree. Under this initial parenting plan,

the parties shared equal parenting time and agreed that when C.A.W. started

kindergarten, they would change the plan to implement a school schedule. In August

2005, the parties entered into a Stipulated Final Amended Parenting Plan (Parenting

Plan), which detailed their parenting arrangements for C.A.W.’s school years.1

¶5     The Parenting Plan called for C.A.W. to live primarily with Leanah in

Frenchtown, visiting Charles on weekends and during the summer, until he started sixth




1
  The parties signed the Stipulated Final Amended Parenting Plan on August 25, 2005 and
followed it diligently thereafter but did not file the document with the court until March of 2011.
Neither party raises any issue with regard to the delay in filing the plan.

                                             2
grade, at which time the arrangement would switch, and he would reside primarily with

Charles in Hamilton. The Parenting Plan provided:

       School Schedule: During the school year [C.A.W.] will reside primarily
       with Leanah from Kindergarten [sic] through fifth grade and visit his father
       on the weekends and all days that there is no school, as he is still young and
       the parties agree it would be in [C.A.W.]’s best interest to have the
       influence of the mother primarily during these young years. [C.A.W.] will
       then reside primarily with Charles from his sixth grade year until he
       graduates high school and will visit his mother on the weekends and all
       days that there is no school, as he will be growing into adolescence and the
       parties agree it would be in [C.A.W.]’s best interest to have the influence of
       the father primarily during these adolescent years.

¶6     The parties followed this plan from 2005 forward. However, in February 2011,

during C.A.W.’s fifth grade year and as the change in residency arrangements was

approaching, Leanah filed a motion to amend the Parenting Plan. She requested that the

residency arrangement be revised so that C.A.W. would continue to live with her, rather

than primarily residing with Charles. Leanah attached a letter to her motion explaining

her reasons for requesting an amendment. She stated that C.A.W. was shy when he

attended kindergarten, and she has worked with him to be more social by participating in

the Boy Scouts. Leanah stated that she “feel[s] removing him from Frenchtown School

would cause [C.A.W.] a significant amount of stress and that by putting him in a whole

new school with a new student body, [C.A.W.] will regress back into a shy child.” She

also noted that C.A.W. is receiving extra help at the Frenchtown School and that she is

“concerned that moving him will challenge [C.A.W.] in a way that could be difficult for

him to recover from in a short amount of time and that his grades and self esteem will

suffer.”
                                         3
¶7       The District Court conducted a hearing on Leanah’s motion on May 20, 2011.

The parties were both asked to describe their living situations and their relationships with

C.A.W.      Charles testified that he had remarried since the divorce and had three

stepchildren who were ages 9, 12, and 16. He owns a four-bedroom, two-bathroom

house on four acres of land in Hamilton. When C.A.W. stays with Charles, he shares a

room with his stepbrother, although the home has an office that could be converted into a

bedroom for C.A.W. if necessary. Charles has maintained employment as a fencing

contractor.    He noted that the family enjoys watching movies together, riding

four-wheelers, having game night, going to church, and especially enjoy watching UFC

martial arts fights. They often invite guests to their home to watch the fights and are

generally a “pretty active bunch of people.” Charles stated that upon C.A.W.’s move to

Hamilton, C.A.W. could continue to participate in Boy Scouts, an activity with which

C.A.W. is very involved in Frenchtown, and that C.A.W. already knows boys in the

troop.

¶8       Charles acknowledged that C.A.W. expressed a desire to stay in school in

Frenchtown with his current friends, but offered that C.A.W. has known all along that he

would have to make the transition to a new school in sixth grade. Charles opined, “he

wants to stay in the school because he has established friends there and – but, you know,

I think the majority of it is a fear that he has of change . . . .” C.A.W., eleven years old at

the time of trial, and his twelve-year-old stepsister would be attending the same school in

Hamilton, and Charles noted, “both [of] them together would sit and talk about it, and

                                           4
they both seemed excited to me because they’d be going to the same school.” A friend of

Charles’ family testified that “[C.A.W.] has a lot of friends here. He has a lot of people

who love him.”

¶9    Leanah testified that for about a year she has lived in a two-bedroom basement

duplex apartment in Frenchtown. She was unemployed but recently attained her high

school diploma and was taking online classes to become a medical coder. Her boyfriend

of over one year lives with her and C.A.W., and Leanah testified that C.A.W. and her

boyfriend get along very well. She testified to several previous unhealthy relationships

that led her to move to Missoula for a period of time. She was remarried for a while, and

this man was “particularly hard on [C.A.W.].” She also lived with another man who “had

a drinking problem and [Leanah] didn’t want him around.” Despite Leanah’s moves,

C.A.W. has remained enrolled in the Frenchtown school district.

¶10   Leanah testified that C.A.W. has had some difficulty with reading. She admitted

on cross-examination that she received several notifications from the school that C.A.W.

wasn’t turning in his homework and had excessive afternoon absences but stated the

reading problem has improved since she received those notifications and that she has

talked to C.A.W. about the absences.

¶11   The court also spoke with C.A.W. in camera. C.A.W. expressed concern that the

environment at his father’s house would not be conducive to doing school work because

there is “nowhere to be alone, so like if I had homework or anything, it would be too loud

and stuff. And when I’m at my mom’s, it’s just quiet where I can do it.” When the court

                                         5
asked C.A.W. if he needs it to be quiet when he studies, he replied, “[s]ometimes, yeah.”

C.A.W. also expressed concern that he would not have alone time because his younger

stepbrother followed him around. In seeming contradiction to Charles’ actual work

schedule as a fencing contractor—he is laid off during winter and works long hours in the

summer—C.A.W. told the court he thought he would see his father more if the current

schedule was maintained, i.e., permitting C.A.W. to be with his father in the summer and

on weekends during the school year.

¶12    The District Court granted Leanah’s motion to amend the Parenting Plan. The

practical effect of the amendment was to continue the status quo, under which C.A.W.

would continue to reside with his mother during the school year and visit his father on

weekends, while primarily residing with his father during the summer and visiting his

mother on summer weekends. Further, the District Court ruled by oral pronouncement

that C.A.W. would determine future residential decisions by writing a letter to his parents

by July 15 of every year advising them where he would like to stay. The District Court

held that C.A.W.’s wishes “will prevail until he ages out,” noting “I think he’s mature

enough that his wishes would likely be in his best interests.”

¶13    Charles appeals.

                               STANDARD OF REVIEW

¶14    In determining whether the amendment of a parenting plan is appropriate, we

review a district court’s findings of fact to determine whether they are clearly erroneous.

In re Marriage of D’Alton, 2009 MT 184, ¶ 7, 351 Mont. 51, 209 P.3d 251 (citing In re

                                          6
Marriage of Oehlke, 2002 MT 79, ¶ 9, 309 Mont. 254, 46 P.3d 49). “Findings are clearly

erroneous if they are not supported by substantial evidence, the court misapprehends the

effect of the evidence, or this Court’s review of the record convinces it that a mistake has

been made.” Oehlke, ¶ 17 (citations and quotations omitted). If the findings of fact upon

which the decision to amend are predicated are not clearly erroneous, then we will only

overturn the district court if there is a clear abuse of discretion. D’Alton, ¶ 7 (citing

Oehlke, ¶ 9). A district 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 Marriage of Guffin, 2010 MT 100, ¶ 20, 356 Mont. 218, 232

P.3d 888 (citation omitted). Conclusions of law are reviewed for whether they are

correct. Guffin, ¶ 20.

                                      DISCUSSION

¶15    1. Did the District Court err in amending the parties’ parenting plan?

¶16    Charles argues that Leanah did not satisfy her burden under the statute to prove

there has been a change in circumstances or her burden of proving that amending the

Parenting Plan was necessary for the child’s best interest. Charles argues that all of the

changes in circumstances were expressly contemplated by the parties at the time they

entered into the Parenting Plan, and thus, under the statute, a change warranting

amendment of the plan has not been demonstrated. The statute governing amendment of

parenting plans provides:

       Amendment of parenting plan – mediation. (1) The court may in its
       discretion amend a prior parenting plan if it finds, upon the basis of facts
                                         7
      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, MCA.

¶17   At the hearing, Leanah was asked by Charles’ counsel what she believed were the

changed circumstances warranting an amendment of the Parenting Plan. She responded,

“Well, the circumstances that have changed is [sic] he’s older.” She conceded that at the

time she agreed to the Parenting Plan, it was understood that C.A.W. would be older at

the time the switch in residential custody would take effect. She also agreed it was

foreseeable that C.A.W. would be changing schools from Frenchtown to Hamilton at the

time his residency would change.

¶18   For her appellate briefing, Leanah has retained counsel and shifted the emphasis of

her argument from C.A.W.’s increase in age to his needs as a student who appreciates a

quiet environment in which to complete his homework. She notes that Charles has three

stepchildren in his home and argues that, in light of C.A.W.’s reading difficulties, he

might have difficulty completing his school work and succeeding in school while living

with Charles.   Charles responds that the parties knew at the time they entered the

agreement that the contemplated change in schools could initially be stressful until

C.A.W. became acclimated to the change.




                                        8
¶19    At the conclusion of the hearing, the District Court provided its reasoning in a

ruling from the bench:

       And it’s clear to me that both parents are fit and proper parents here. I
       don’t think there’s any issue about that. But we have had a change of
       circumstances in the sense that the agreement was made when he was just a
       little tyke, and now he’s about to enter middle school and has a mind of his
       own and his wishes are entitled to greater—certainly greater weight now
       than they would have been when he was younger . . . . And he does at this
       point seem to greatly appreciate the—what he called a calmer atmosphere
       or more privacy in Frenchtown, and he does state that that was helpful to
       him for his school work. And so I respect the fact that there is a contract
       here, but on the other hand, if the contract dealt with property issues, I
       would be the first one to enforce it, but when it’s dealing with children, you
       have to consider the best interest of the child as you go along, and I think
       right now it would—if I were to enforce the Agreement and require him to
       move the next school year in Hamilton, that he—it would be, I think, a very
       stressful thing for him . . . . So I’m going to grant the modification and
       allow him to—or maintain the current arrange—the arrangement that’s
       current prevail [sic].

Thus, the District Court’s reasoning was based upon C.A.W.’s increase in age, the greater

weight to which his wishes should be entitled, and the calmer atmosphere or greater

privacy C.A.W. enjoyed at his mother’s house for doing schoolwork.2

¶20    While each parenting case is unique to its own circumstances, D’Alton raised

similar issues and provides guidance. There, the father sought a change in the parenting

plan, offering that circumstances had changed in the six years since the parenting plan

had been entered because “both children are now in school and the children’s nanny was

terminated so that she is no longer ‘a stabilizing force in the children’s relationship,’” and

2
  The District Court’s written order consisted of a form order wherein boxes were checked
indicating that findings of fact and conclusions of law in the generic language of the statute were
entered. No reasoning or reference to facts specific to this case was provided in the written
order.
                                             9
that the mother had attempted to frustrate the father’s contact with the children. D’Alton,

¶ 10. Relevant to the issues here, we noted approvingly the District Court’s statement

that “[i]f the passage of six (6) years and the children both being in school is sufficient to

warrant an amendment, then the courts would be flooded with motions to amend

parenting plans in most if not all cases.” D’Alton, ¶ 11. We added, “[i]ndeed, the mere

aging of children so that they are now in school could hardly be considered ‘unknown to

the court at the time of entry of the prior plan’ as required by § 40-4-219(1), MCA.”

D’Alton, ¶ 11. We agreed with the District Court that “these changed circumstances ‘do

not satisfy the initial threshold criteria’” under the statute for conducting a hearing on the

matter. D’Alton, ¶ 11. Our discussion regarding the change of the children’s age and

school attendance applies with even more force here, where the parties’ agreement

expressly contemplated that C.A.W. would age and change schools when he reached

sixth grade.   These circumstances were known all along and were the basis of the

agreement that the parties followed for six years.

¶21    At most, the only factual finding that could be considered a change of

circumstance is the court’s oral finding that C.A.W. enjoys greater peacefulness and

privacy for doing schoolwork at Leanah’s home. We acknowledge Leanah’s concerns

that the change in residency could cause stress for C.A.W. and disrupt his progress, but

no findings of fact addressing these potential problems were made by the court.

¶22    It is at this juncture that the Dissenting Opinion yields to the temptation to search

for evidence to support the District Court’s decision, citing to testimony obviously

                                          10
negative to Charles, such as “fighting,” “yelling,” and “cussing” asserted to have

occurred in his home. Dissent, ¶ 39. However, this is not our function as an appellate

court. We have no idea whether the District Court considered this evidence to be credible

or factual, and it is not our duty to make such determinations. Indeed, if anything, the

implication from the District Court’s order is just the opposite—that it discounted such

evidence by finding that “it’s clear to me that both parents are fit and proper parents here.

I don’t think there’s any issue about that.” The Dissenting Opinion improperly usurps the

fact finding function. Further, the Dissenting Opinion criticizes our mention of the

District Court’s use of a form order developed to assist litigants. Dissent, ¶ 41. We find

no fault with the use of the form itself, but such forms do not bear this Court’s

imprimatur immunizing them from review or guaranteeing they will always successfully

serve the purpose for which they are intended.

¶23    We are well aware that a district court has “broad discretion when considering the

parenting of a child. ‘Child custody cases often present the court with difficult decisions.

We must presume that the court carefully considered the evidence and made the correct

decision.’”   In re Marriage of Tummarello, 2012 MT 18, ¶ 34, 363 Mont. 387,

___P.3d___ (citing In re Parenting of N.S., 2011 MT 98, ¶ 18, 360 Mont. 288, 253 P.3d

863). However, as we recognized in D’Alton, cases involving amendment of existing

parenting plans must satisfy an initial statutory threshold of changed circumstances.

D’Alton, ¶ 11.      The statute promotes stability for the children and discourages

unnecessary litigation over parenting plans.      Our cases have commonly considered

                                         11
changes in circumstances of a more substantial nature. See, Sian v. Kooyer, 2010 MT

178, 357 Mont. 215, 239 P.3d 121 (a change of circumstances was found when father

became disabled, moved out of state, and lost his employment); In re Marriage of Clay,

2007 MT 228, 339 Mont. 147, 168 P.3d 665 (changes in circumstance established by

mother moving and having to drive 90 miles each way to deliver the children to and from

school and households); In re Marriage of Carter, 2003 MT 19, 314 Mont. 84, 63 P.3d

1124 (mother moved out of state), In re Marriage of Nies, 2003 MT 100, 315 Mont. 260,

68 P.3d 697 (mother made unsubstantiated accusations that father sexually abused the

child and repeatedly frustrated the father’s visitation); In re Marriage of Robison, 2002

MT 207; 311 Mont. 246, 53 P.3d 1279 (mother was moving from state, and if she chose

to stay in state, amendment entered reflected the parties’ actual practices); In re Marriage

of Burk, 2002 MT 173, 310 Mont. 498, 51 P.3d 1149 (children were living with

grandparents rather than with father as ordered in parenting plan).

¶24    The parties had a longstanding parenting plan that was forward-looking and

reflected their agreement that C.A.W. would live primarily with Leanah until he reached

sixth grade, at which time the schedule would flip, and C.A.W. would live primarily with

Charles. The parties followed the plan for six years with the expectation, particularly on

Charles’ part, that the plan would be followed as agreed. We understand that this is not

strictly a contractual matter, as even the best laid plans for the care of a child may

become ineffective over time.      Still, the parties’ commitments do mean something,

especially when, as here, they are faithfully followed over many years and work well. On

                                         12
this record, we conclude that the District Court’s determination of changed circumstances

required by § 40-4-219(1), MCA, was not supported by the evidence and that the

statutory threshold was therefore not satisfied. See D’Alton, ¶ 11. The specific error here

is that the District Court’s findings entered from the evidence it received were

insufficient to establish the statutory standard for amendment of the parenting plan.

Consequently, the District Court’s amendment of the Parenting Plan is reversed.

¶25    We note that C.A.W. is currently in the middle of his sixth grade year. In his

briefing, Charles has requested, if he were to prevail, that C.A.W. not be required to

change schools during the school year but that the change take effect at the beginning of

C.A.W.’s seventh grade year. We agree and order that this matter be remanded for entry

of an order by the District Court incorporating this relief.

¶26    2. Did the District Court err in delegating to C.A.W. the power to modify the

parenting plan in the future?

¶27    The District Court held as follows:

       But I think [C.A.W.] should also have the opportunity each summer to
       make a decision by mid summer [sic] as to whether he wants to maintain
       that or whether he wants to come and reverse the situation, so I think he’s
       mature enough that his wishes would likely be in his best interests, so the
       past arrangement will continue in effect. But then by July 15th each year,
       he’ll be required to notify both his parents whether he wants that to
       continue or whether he’d like to reverse the living arrangements, and then
       that will prevail until he ages out.

¶28    Section 40-4-212, MCA, provides that the court shall determine a parenting plan

in accordance with the best interest of the child, in consideration of “all relevant

parenting factors.” Section 40-4-212(1), MCA. Further, § 40-4-219(1), MCA, provides
                                          13
that “[i]n determining the child’s best interest under this section, the court may, in

addition to the criteria in 40-4-212, also consider whether . . . (c) the child is 14 years of

age or older and desires the amendment . . . .” Under these provisions, whether a

parenting plan is appropriate is a legal conclusion that can only be made by a court.

While 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. Here, C.A.W. was only eleven. The District Court’s

holding that C.A.W. will annually determine his own residential arrangements is

reversed.

¶29    The order amending the Parenting Plan is vacated, the Parenting Plan is reinstated,

and this matter is remanded for entry of an order consistent herewith.

                                                  /S/ JIM RICE


We concur:

/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ MICHAEL E WHEAT




Justice James C. Nelson, concurring.

¶30    I join the Court’s Opinion. Where two undisputedly fit parents have agreed in

writing to a reasonable parenting plan that takes into account the changing needs of their

child and the opportunity for both parents to influence the child’s development as the

                                          14
child ages, that agreement should be enforced absent persuasive proof of harm to the

child.

¶31      We have recited the principle so often that it has become mantra: The right of a

natural parent to parent one’s child is a constitutionally protected, fundamental liberty

interest. See Steab v. Luna, 2010 MT 125, ¶ 22, 356 Mont. 372, 233 P.3d 351; In re

Custody & Parental Rights of D.A., 2008 MT 247, ¶ 18, 344 Mont. 513, 189 P.3d 631.1 I

suggest that if we really believe this principle, then it follows that in cases where, as here,

there are fit natural parents and some unanticipated harm will not befall the child,

parenting decisions should actually be made by the parents and not by the government.

The case at bar presents none of the serious sorts of changes in circumstances that we

have—properly—determined implicate the strict requirements of § 40-4-219(1), MCA.

Opinion, ¶¶ 23-24.

¶32      To the contrary, the parents here, quite reasonably and responsibly, anticipated and

agreed that C.A.W. would benefit from the influence of his mother in his early years and

from the influence of his father after the fifth grade. There is absolutely no evidence that

this decision, made by the natural parents, is now unfounded or antithetical to the child’s

best interests. Indeed, there has been no change in circumstances. Rather, the parents

anticipated and resolved the very circumstances which have now been presented to the

District Court as “changed” circumstances.



         1
         This principle of law is so well established and so often cited that the cases are
legion, and a lengthy string cite will add nothing to the discussion.
                                          15
¶33     The fact that C.A.W. must change schools is a circumstance that children are often

faced with—their parents move; their parents divorce; school district boundaries change;

the parents want the child to attend one school over another for any number of reasons.

Changing their child’s school is the sort of decision that parents make. The fact is that

children often benefit from changing schools, and there is no persuasive evidence in this

case that C.A.W. will not survive—and grow from—this change in his life. More to the

point, change is something that we all had to, and have to, learn to cope with. Changes,

even those that seem initially unpleasant, are the stuff of life and life’s lessons that need

to be learned. And if C.A.W. needs peace and quiet in which to study, there is no reason

to believe that his father will not—as would any fit and loving parent—accommodate that

need.

¶34     In my view, Leanah’s grounds and “evidence” for amending the parenting plan

here are meritless. Neither meets the strict standards we have set under § 40-4-219(1),

MCA. In the final analysis, it is the job of fit, natural parents to parent their child. It is

the parents’ job to make decisions about the child’s schooling, and to make all of the

other decisions that parents make as their child ages. Parenting is not the job of district

courts or this Court in circumstances where both parents are fit, capable, and loving, and

where there is no persuasive evidence of harm to the child.

¶35     Here, the District Court inserted itself into a parenting decision that was not its to

make under either the facts or the law in this case. The District Court clearly abused its




                                          16
discretion in crediting Leanah’s grounds and “evidence” and in amending the parenting

plan.

¶36     I concur completely in the Court’s decision.



                                                 /S/ JAMES C. NELSON


Justice Beth Baker, dissenting.

¶37     As the Court acknowledges (Opinion, ¶ 23), we apply a presumption in child

custody cases “that the court carefully considered the evidence and made the correct

decision.” In re Marriage of Everett, 2012 MT 8, ¶ 29, 363 Mont. 296, ___ P.3d ___

(quoting N.S., ¶ 18); Marriage of Tummarello, ¶ 34. Unless this Court can determine

from the record that the findings upon which a modification decision is predicated are

clearly erroneous, we do not disrupt the decision of a district court in a child custody

matter absent a clear abuse of discretion. Jacobsen v. Thomas, 2006 MT 212, ¶ 13, 333

Mont. 323, 142 P.2d 859; In re Arneson-Nelson, 2001 MT 242, ¶ 22, 307 Mont. 60, 36

P.3d 874; In re J.M.D., 259 Mont 468, 473, 857 P.2d 708, 712 (1993).

¶38     Unquestionably, a finding of changed circumstances is a “prerequisite” to

amending a prior parenting plan. Jacobsen, ¶ 17. But that is a factual finding, which—

like all other factual findings—is reviewed for clear error. Jacobsen, ¶ 13. The appellant

faces the high hurdle of demonstrating abuse of discretion and must show that the district

court acted “arbitrarily without employment of conscientious judgment or exceeded the

bounds of reason resulting in substantial injustice.” Albrecht v. Albrecht, 2002 MT 227,
                                         17
¶ 7, 311 Mont. 412, 56 P.3d 339. “Arbitrary” is synonymous with a “failure to exercise

honest judgment,” “depending on the will alone[,]” or “without consideration and regard

for facts and circumstances presented.” Black’s Law Dictionary 104 (6th ed., West

1990).

¶39      To say the District Court here acted either unreasonably or arbitrarily without

employment of conscientious judgment gives insufficient effect to our standards of

review, dismisses the role of the trial judge, and presumes appellate judges collectively

can make a better judgment about a child’s life from reading a transcript. Judge Langton

held a hearing at which both parties were present in person. He watched them on the

witness stand and observed their testimony. He heard testimony from other witnesses for

the parties, including Leanah’s friend and child care provider who related (without

objection) C.A.W.’s fears and concerns that he would regress in the successes for which

he had fought to improve his grades. He interviewed eleven-year-old C.A.W. in his

chambers. Discounting his factual finding that the circumstances of this family had

changed does not give appropriate deference to Judge Langton or a fair reading to the

record. In the time since Charles and Leanah divorced, Charles married a woman with

three children who live with them full-time; there are often arguments in Charles’s family

home, which C.A.W. described to Judge Langton as “fighting,” “yelling,” and “cussing”;

C.A.W.’s development between his preschool years to fifth grade resulted in struggles

with academics, but he showed progress with the help of teachers at the school he has

attended since first grade; and C.A.W. told the judge he wants to live in his mother’s

                                        18
home with a calmer environment where he feels it is easier for him to do homework.

These circumstances have arisen since the prior plan and were unknown to the court at

the time the plan was entered. Section 40-4-219(1), MCA; Jacobsen, ¶ 16. We have

cited the blending of families as one factor a district court may consider. Clay, ¶¶ 25-26.

Neither the court nor C.A.W.’s parents could have anticipated C.A.W.’s needs upon the

blending of Charles’s family and as C.A.W. matriculated through school. As Judge

Langton observed, unlike the typical request to modify a parenting plan, Leanah’s request

sought to preserve the child’s status quo, which the court determined was in C.A.W.’s

best interests.

¶40      While the evidence in the record is limited, it is a gross overstatement to say the

district court acted arbitrarily in determining these new factors in C.A.W.’s life amounted

to a change in the circumstances of the child for purposes of § 40-4-219(1), MCA. The

statute expressly grants the district courts discretion to make that determination; it does

not list specific factors that must be found before such a change may be deemed

sufficient or require that a change in circumstances be “substantial”—a factor the Court

has imported in its analysis here. Opinion, ¶ 23; see § 1-2-101, MCA. The statute sets

no threshold other than that the amendment be necessary to serve the best interest of the

child. Section 40-4-219(1), MCA. Judge Langton was in a far better position than are

we to decide the change was sufficient to keep the parties’ current parenting schedule in

place.




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¶41       We must remember that the focus of any parenting plan proceeding is not the

parents’ lives, or whether the parents are staying true to agreements they made years

earlier affecting their child. The focus is the child, and what is in that child’s best

interest. Robison, ¶ 27 (the burden of proof under § 40-4-219, MCA, is the best interests

of the child standard). In making that determination, the trial court considers the criteria

stated in § 40-4-212, MCA.

          These criteria include the wishes of the child’s parent or parents; the wishes
          of the child; 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 interests; the child’s adjustment to
          home, school and community; and continuity and stability of care.

Guffin v. Plaisted-Harman, 2010 MT 100, ¶ 29, 356 Mont. 218, 232 P.3d 888 (quoting

Robison, ¶ 28).            Judge Langton looked carefully at the wishes of C.A.W. when

interviewing him in chambers; learned about his relationship with his step-siblings; and

heard testimony on the importance of continuity and stability in his home, school, and

community. Judge Langton made his determination based upon a conscientious review

of these factors. While the Court faults him for checking boxes on a form order, such

forms were created by a Commission of this Court in an effort to facilitate the handling of

pro se family law matters by district courts increasingly burdened with cases brought by

self-represented litigants in such matters.1 Judge Langton’s reasoning was reflected in

his comments from the bench, in which—as the Court quotes (Opinion, ¶ 19)—he made

clear his ruling was based on the best interest of the parties’ child, the child’s wishes, and


1
    http://courts.mt.gov/supreme/boards/self_represented_litigants/approved.mcpx (last accessed 02/23/2012).
                                                     20
the different environments at the two households. We do not require specific findings on

each factor in the statute, only that the district court “set forth the ‘essential and

determining facts upon which [it] rested its conclusion on the custody issue.’”

Carter, ¶ 14 (citations omitted). And we have held the district court’s findings on a

modification petition will be upheld as long as they imply a finding of change in

circumstances. Burk, ¶ 11. This is consistent with our application of the doctrine of

implied findings in reviewing findings of fact.      That doctrine provides that “where

‘findings [of fact] are general in terms, any findings not specifically made, but necessary

to the [determination], are deemed to have been implied, if supported by the evidence.’”

In re Transfer of Location for Mont. All-Alcoholic Bevs. Resort, 2008 MT 165, ¶ 29, 343

Mont. 331, 184 P.3d 324 (quoting Caplis v. Caplis, 2004 MT 145, ¶ 32, 321 Mont. 450,

91 P.3d 1282, and State v. Wooster, 2001 MT 4, ¶ 18, 304 Mont. 56, 16 P.3d 409). Here,

the evidence supports the District Court’s finding of changed circumstances.

¶42    Again, we have consistently refrained that the district judge is in a superior

position to this Court in making such assessments. In re J.M.D., 259 Mont. at 473, 857

P.2d at 712; In re Marriage of Graham, 2008 MT 435, ¶ 8, 347 Mont. 483, 199 P.3d 211

(citing Czapranski v. Czapranski, 2003 MT 14, ¶ 10, 314 Mont. 55, 63 P.3d 499). The

presumption of the district court’s careful consideration and correct decision making in

this arena has been upheld many times. In re Marriage of Hedges, 2002 MT 204, ¶ 17,

311 Mont. 230, 53 P.3d 1273 (noting our “firm belief” that the trial court is in a better

position than this Court); In re Marriage of McKenna, 2000 MT 58, ¶ 17, 299 Mont. 13,

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996 P.2d 386 (“it is not this Court’s role to second-guess the fact-finding function of the

District Court” as the trial court is in a better position to resolve child custody issues).

While the Court expresses concern that allowing the parents to upend their prior

agreement will invite more modification proceedings, consider the impact of this Court’s

willingness to substitute its judgment for that of the district courts in determining a

child’s best interest.

¶43    The Court agrees with Charles’s contention that D’Alton compels reversal of

Judge Langton’s order. There, applying the same abuse of discretion standard, we found

the father had not met his burden of showing that the district court’s findings were clearly

erroneous, nor did he substantiate his claim that the court abused its discretion. D’Alton,

¶ 11. We upheld the District Court’s conclusion that the mere “passage of six (6) years”

and the termination of the children’s nanny were insufficient to support a finding of

changed circumstances. D’Alton, ¶ 11. Our holding was not that a child’s development

can never be considered a factor for purposes of “changed circumstances.” Rather, we

simply refused to substitute our judgment for that of the fact-finder, holding instead that

the district court did not act without employment of conscientious judgment in making its

conclusion in that particular set of circumstances. We should do the same here.

¶44    Upholding the District Court’s findings in this case properly gives credence to our

standards of review. Application of our standards of review does not always produce

identical results in what may seem to be similar cases. Compare N.W. Truck & Trailer

Sales v. Dvorak, 265 Mont. 327, 332-35, 877 P.2d 31, 34-36 (1994) (District Court did

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not abuse its discretion in ruling that the litigant demonstrated excusable neglect and

good cause justifying an extension of time for filing a notice of appeal) with Sadowsky v.

City of Glendive, 259 Mont. 419, 423, 856 P.2d 556, 559 (1993) (District Court did not

abuse its discretion in ruling that the litigant failed to demonstrate excusable neglect or

good cause justifying an extension of time for filing a notice of appeal). The facts

present in D’Alton are not the same as those presented here. Like N.W. Truck and

Sadowsky demonstrate, the standard of review serves as a check on abuse of a district

court’s authority, but not as a means of imposing what we think might be a better result

were we in the district judge’s position.

¶45    The law can be a poor mechanism for crafting solutions to disputes that have their

genesis in personal relationships. But it is the best dispute-resolution system there is, and

the sole recourse for separated families. The system only works if we give appropriate

deference to those in a position to watch, listen, observe and judge the human interactions

and communications on which those relationships are built. The bottom line is that, in an

ordinary custody case such as this, the Montana Supreme Court should not be deciding

where a child attends the sixth (or seventh) grade.

¶46    Finally, I disagree that Judge Langton gave veto power to C.A.W. over his

residential schedule. While the court stated during the hearing that the child was to write

a letter to his parents each summer, the written parenting plan that was entered by the

court and controls the parenting of C.A.W. adopted Leanah’s proposed residential

schedule and said nothing about an automatic modification at the child’s wishes. Any

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change in the parenting plan would have to be presented by motion and determined by

the court. Section 40-4-219, MCA.

¶47   I respectfully dissent.

                                             /S/ BETH BAKER




Chief Justice Mike McGrath and Justice Brian Morris join in the dissenting Opinion of
Justice Baker.


                                             /S/ MIKE McGRATH
                                             /S/ BRIAN MORRIS




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