                                                                                               03/27/2018


                                           DA 17-0505
                                                                                           Case Number: DA 17-0505

                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2018 MT 59



IN RE THE MARRIAGE OF:

TRACY L. SCHILLING,

               Petitioner and Appellant,

         And

JOHN R. SCHILLING, JR.,

               Respondent and Appellee.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause No. DR-12-611
                        Honorable Karen S. Townsend, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Lucy Hansen, Judnich Law Office, Missoula, Montana

                 For Appellee:

                        Richard A. Reep, Reep, Bell, Laird & Jasper, P.C., Missoula, Montana



                                                    Submitted on Briefs: March 7, 2018

                                                                Decided: March 27, 2018


Filed:

                        __________________________________________
                                          Clerk
Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1     Tracy L. Schilling (Tracy) appeals from the March 14, 2017 order of the Fourth

Judicial District Court, Missoula County, denying Tracy’s Motion to Amend Parenting

Plan, determining Tracy failed to establish a changed circumstance. The order further

granted John R. Schilling, Jr.’s, (John) Motion for Child Support Calculation and Motion

for Attorney Fees. The court later assessed attorneys’ fees and costs in the amount of

$20,534.14. We reverse and remand.

¶2     We restate the issues on appeal as follows:

       1. Did the District Court err in concluding there was no change in circumstance
          pursuant to § 40-4-219(1), MCA, that would require a hearing?

       2. Did the District Court err in awarding Appellee attorneys’ fees and costs?

       3. Did the District Court err in amending child support and concluding the
          amended support should commence as of April 1, 2016?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3     Tracy and John were previously married and divorced. They have one child

together, N.K.S., currently 12 years old. At the time of their divorce, they entered into a

Stipulated Parenting Plan, which was drafted by John’s attorney as Tracy was not

represented by counsel. That Stipulated Parenting Plan provided John would serve as the

sole custodian of N.K.S. The Stipulated Parenting Plan contemplated Tracy would be

moving away from the Missoula area and when she did so she would have parenting time

on designated holidays, specified time during summers, and other time “by agreement of

the parties.” Tracy moved to Idaho shortly thereafter and from March 2013 through March

2016 N.K.S. resided with John in Missoula. Tracy traveled to Missoula as often as she


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could to spend time with N.K.S. Tracy submitted into evidence her calendars whereby she

asserts she exercised 132 overnights with N.K.S. in 2014, 114 overnights in 2015 and 25

overnights in the first 3 months of 2016. She asserts she also spent several additional days

each year in Missoula with N.K.S. John does not believe Tracy exercised as much time

with N.K.S. as she asserts. Although the parties dispute the exact time Tracy spent with

N.K.S. after she moved to Idaho, they both admit it was considerably more than the

specified holiday and summer time set forth in the Stipulated Parenting Plan.

¶4     On March 4, 2016, John filed a Notice of Intent to Move with N.K.S. to West

Yellowstone, Montana. In his Notice, John asserted that amendment of the parenting plan

was not necessary as he did not anticipate his change of residence would have a significant

impact on Tracy’s parenting time. Tracy did not agree with John’s assertion and filed an

objection to John’s Notice. In her objection, Tracy asserted John’s move would add an

additional 300 miles distance between her and N.K.S., significantly affecting her ability to

see and spend time with N.K.S. At the time of filing her objection, she also filed a Motion

to Amend [Stipulated] Parenting Plan asserting a number of concerns regarding John’s

parenting.

¶5     On July 22, 2016, the District Court held a hearing for the limited purpose of

considering John’s relocation to West Yellowstone with N.K.S. and its effect on Tracy’s

contact. Further, the District Court heard arguments regarding whether Tracy met the

threshold requirement of a change in circumstance under § 40-4-219(1), MCA, to amend

the parenting plan. The District Court, ruling from the bench, found John’s move to West

Yellowstone had not negatively impacted Tracy’s visitation with N.K.S. because John


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would drive N.K.S. to Missoula for the parental exchanges. The District Court issued its

order on March 14, 2017, finding Tracy had not established the prerequisite of a change in

circumstance, which would allow the District Court to consider amending the parenting

plan. The District Court then determined John to be the prevailing party and, as such,

determined John was entitled to an award of attorneys’ fees and costs. The District Court

also concluded amendment of child support was appropriate since more than three years

had elapsed since the court’s prior child support order. Ultimately, the District Court

ordered Tracy to pay $583.00 per month in child support commencing April 1, 2016, and

to pay John’s attorneys’ fees and costs of $20,534.14.

                               STANDARD OF REVIEW

¶6     We review the underlying findings in support of a district court’s decision to modify

a parenting plan under the clearly erroneous standard. Guffin v. Plaisted-Harman, 2010

MT 100, ¶ 20, 356 Mont. 218, 232 P.3d 888 (citation omitted). We review a district court’s

conclusions of law to determine if they are correct. In re the Parenting of C.J., 2016 MT

93, ¶ 12, 383 Mont. 197, 369 P.3d 1028 (citation omitted). A district court has broad

discretion when considering the parenting of a child, and we must presume the court

carefully considered the evidence and made the correct decision. C.J., ¶ 13 (citation

omitted). 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. C.J.,

¶ 13 (citation omitted).




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                                       DISCUSSION

¶7      1. Did the District Court err in concluding there was no change in circumstance
        pursuant to § 40-4-219(1), MCA, that would require a hearing?

¶8      In pertinent part § 40-4-219(1), MCA, provides:

        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.

The pivotal question is whether John’s relocation with N.K.S. from Missoula, Montana, to

West Yellowstone, Montana, constitutes a change in circumstances of N.K.S. requiring the

District Court to have a hearing to determine if amendment of the parenting plan is

necessary to serve N.K.S.’s best interests.

¶9      Tracy asserts John’s relocation to West Yellowstone is a significant change in

circumstance for N.K.S. as it substantially impacts N.K.S.’s contact with her. She asserts

from March 2013 through March 2016, prior to John’s move to West Yellowstone, she

exercised substantial parenting of N.K.S. During this time, Tracy asserts she parented

N.K.S. as follows:

      2014: 132 overnights and an additional 14 days.

      2015: 114 overnights and an additional 7 days.

      2016 (January through April): 25 overnights and an additional 5 days.

The time Tracy has parented N.K.S. after the parties’ dissolution through to the time when

John and N.K.S. moved to West Yellowstone has significantly exceeded the specific

periods of parenting provided to her in the parties’ Stipulated Parenting Plan and Order.



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¶10    John asserts his relocation to West Yellowstone is not a change in circumstance as

he intends to bring N.K.S. to Missoula for Tracy to exercise her parenting time. Tracy

counters that since John moved, not only has she been precluded from exercising the

additional time with N.K.S. the parties have historically agreed to, but John has not

consistently brought N.K.S. to Missoula and has instead required she meet him in Butte or

drive to West Yellowstone to pick up N.K.S.

¶11    The parties’ Stipulated Parenting Plan and Order provides Tracy shall enjoy

parenting on particular holidays and summer time and additional time “by agreement of

the parties.” The District Court noted, “that any additional parenting time exercised by

Tracy beyond what was spelled out in the Parenting Plan was by agreement of the parties.”

The District Court concluded John’s move to West Yellowstone did not negatively impact

Tracy’s parenting time with N.K.S. “according to the stipulated Parenting Plan because

John would drive NKS to Missoula for the parental exchanges provided for in the

Stipulated Plan.” The District Court’s order denying Tracy’s Motion to Amend Parenting

Plan implies Tracy will not be entitled to exercise the additional time she has historically

exercised with N.K.S. as such will no longer be mutually agreed to by the parties. It follows

that this lack of mutual agreement is occasioned by the fact John no longer resides in

Missoula and would have to drive nearly 300 miles each way to take N.K.S. to Missoula.

¶12    Merely because the parties’ Stipulated Parenting Plan provides they may mutually

agree on additional parenting time for Tracy does not mean the additional time they have

historically agreed upon should not be considered in determining whether Tracy’s

parenting time is negatively impacted by John’s move or in determining if there has been


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a change in N.K.S.’s circumstances as a result of John’s move. When a parenting plan

provides for additional time as the parties may agree, the court should consider the

additional time agreed to by the parties and whether it is of such nature, extent, and duration

to constitute a de facto modification of the original parenting schedule in itself.

¶13    In considering Tracy’s parenting time, she has enjoyed parenting time under the

particular periods set forth in the parties’ Stipulated Parenting Plan and the additional time

to which she and John have historically mutually agreed. The evidence shows John’s

relocation to West Yellowstone has reduced the amount of time N.K.S. spends with Tracy

and is a change in N.K.S.’s circumstance. Indeed, the District Court found John’s move

constituted a significant enough change, along with the passage of time, to warrant

modification of child support to include expenses related to John’s travel from West

Yellowstone to Missoula to effectuate Tracy’s parenting time. The evidence in the present

case establishes as a matter of law a change in N.K.S.’s circumstances has occurred as a

result of John’s move to West Yellowstone. As such, the District Court erred in concluding

otherwise. We reverse and remand for hearing and determination of whether amendment

of the parenting plan is in N.K.S.’s best interests.

¶14    2. Did the District Court err in awarding Appellee attorney fees and costs?

¶15    The parties’ Stipulated Parenting Plan, drafted by John’s attorney, provides two

enforcement paragraphs:

       10.     ENFORCEMENT. This Parenting Plan shall be made an integral
       part of any decree of dissolution of marriage provided by law or equity. This
       Parenting Plan shall be binding upon the parties, their personal
       representatives, heirs, and assigns. Should any action be commenced to



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       enforce, modify, or interpret any provision contained herein, the court, as a
       cost of suit, shall award reasonable attorneys’ fees to the successful party.

       14.    ENFORCEMENT. Should either party be required to retain the
       services of counsel to enforce any provision of this Parenting Plan, the
       prevailing party in any proceeding shall be entitled to recover from the
       non-prevailing party his or her attorneys’ fees and costs.

Tracy asserts these two paragraphs are conflicting as they offer different terms for the

award of attorney fees and, further, are ambiguous in the treatment of attorney fees. Tracy

argues both provisions appear to be applicable to “Enforcement,” but the case does not

involve an enforcement action. She asserts this case involves an objection to relocating

N.K.S. to West Yellowstone as well as her Motion to Amend [Stipulated] Parenting Plan.

Finally, she asserts she was not represented by counsel at the time she entered into the

Stipulated Parenting Plan and, as John’s attorney drafted the document, the ambiguity

should be resolved in her favor. Conversely, John asserts paragraphs 10 and 14 are not in

conflict and, at most, are redundant.

¶16    The District Court found these provisions were not inconsistent and John was

entitled to recover his attorneys’ fees and costs for enforcing the existing parenting plan

and recovering child support.

¶17    The District Court erred in concluding the action involved enforcing the existing

parenting plan. John filed his Notice of Intent to Move advising he intended to move with

N.K.S. to West Yellowstone, Montana, on April 1, 2016, and that he did not anticipate any

modification to the visitation schedule agreed to by the parties as he intended to bring

N.K.S. to Missoula to effectuate the visiting schedule agreed to by the parties. Tracy

objected to John’s move asserting the move would significantly reduce the time she spends


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with N.K.S. and then also filed a Motion to Amend the Final Parenting Plan. This matter

involved consideration of John’s Notice to Move and Tracy’s objection thereto and

whether John’s move with N.K.S. constituted a change in circumstance warranting further

consideration as to whether amendment of the parenting plan was in N.K.S.’s best interests.

As previously discussed, the District Court erred in not considering the additional parenting

time the parties historically agreed to in concluding the move would not negatively impact

Tracy’s contact with N.K.S. and, as such, was not a changed circumstance. As we reversed

on that issue above and have remanded back to the District Court for hearing and

determination of whether amending the parenting plan is in N.K.S.’s best interests, it is

appropriate to vacate the award of attorneys’ fees and costs. Determination as to whether

the enforcement paragraphs contained in the parties’ Stipulated Parenting Plan are

applicable or in conflict is, at best, premature. We vacate the award of attorneys’ fees and

costs and remand to the District Court for further consideration consistent with this

Opinion.

¶18    3. Did the District Court err in amending child support and concluding the
       amended support should commence as of April 1, 2016?

¶19    At the time the parties entered into their Stipulated Parenting Plan, they agreed given

“the earning capacity of each parent and the allocation of the income tax exemption, as

well as the parties’ arrangement for health care costs and premiums and daycare costs, no

support shall be paid by Mother to Father.” The District Court noted that since Admin.

R. M. 37.62.2103 and 37.62.2117 allow for recalculation of child support if more than three

years has passed since child support was established, it was appropriate to grant John’s



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request for calculation of child support and ordered Tracy to commence paying child

support April 1, 2016.

¶20    Tracy asserts the District Court erred with regard to ordering child support and in

commencing it when it did. She asserts John did not make a motion for child support such

that she was not on notice it was at issue. Tracy further asserts the District Court acted

arbitrarily in calculating child support by failing to conduct a hearing and failing to rely on

verified evidence of the parties’ financial circumstances and cost of health insurance

coverage.

¶21    It is noted that the Rules cited by the District Court deal with situations where child

support is calculated and ordered by the Child Support Enforcement Division, which did

not occur here. Regardless, the evidence supports reviewing child support based on John’s

loss of employment in Missoula, obtaining new employment in West Yellowstone,

attendant changes to health insurance, and the long-distance travel costs incurred by both

parents resulting from John’s move.

¶22    Further, the District Court did not err in concluding John made a sufficient request

for child support to put Tracy on notice it was at issue, nor did it err in concluding child

support should commence April 1, 2016. John specifically requested calculation of

appropriate child support in his March 25, 2016 Combined Response. This was served on

Tracy, via mail to her counsel of record, on March 25, 2016. This effectively put Tracy on

notice of John’s request for child support.

¶23    Section 40-4-208(1), MCA, permits modification of support “only as to installments

accruing subsequent to actual notice to the parties of the motion for modification.” Based


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on this, the District Court properly determined child support should commence April 1,

2016, the first full month after Tracy received notice of John’s request to calculate

appropriate child support.

¶24    Child support is not only dependent upon the financial circumstances of the parties

and cost of health insurance, but on the residential schedule of the parenting plan and the

long-distance visitation costs the parties will incur to effectuate the parenting schedule. As

we have remanded this case to the District Court for hearing and determination as to

whether amendment of the parenting plan is in N.K.S.’s best interests, it is appropriate to

vacate the monthly child support calculated by the District Court and remand the

calculation of child support to the District Court for further consideration consistent with

this Opinion.

                                      CONCLUSION

¶25    The District Court’s finding there was no change in circumstance pursuant to

§ 40-4-219(1), MCA, with John’s move nearly 300 miles further away was clearly

erroneous. Thus, this matter is reversed and remanded to the District Court for hearing and

consideration as to whether amendment of the parenting plan is necessary to meet N.K.S.’s

best interests. As we reverse and remand on this issue, it is necessary to vacate the award

of attorneys’ fees and costs and the monthly child support amount and remand for further

consideration of these matters consistent with this Opinion.



                                                  /S/ INGRID GUSTAFSON




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We Concur:
/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ JIM RICE
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
/S/ BETH BAKER




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