                                                                                             11/22/2016


                                          DA 16-0085
                                                                                       Case Number: DA 16-0085

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2016 MT 299



IN RE THE MARRIAGE OF:

EMILY A. BROWN,

              Petitioner and Appellee,

         v.

JOHN O. BROWN,

              Respondent and Appellant.



APPEAL FROM:           District Court of the Twelfth Judicial District,
                       In and For the County of Hill, Cause No. DR 11-019
                       Honorable David Cybulski, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Jason T. Holden, Katie R. Ranta, Faure Holden Attorneys at Law, P.C.,
                       Great Falls, Montana

                For Appellee:

                       Amy O. Duerk, Simon Law Office, Missoula, Montana



                                                   Submitted on Briefs: September 21, 2016

                                                              Decided: November 22, 2016


Filed:

                       __________________________________________
                                         Clerk
Justice Patricia Cotter delivered the Opinion of the Court.

¶1     John Brown appeals from an order of the Montana Twelfth Judicial District Court,

Hill County, denying his motions to modify the parenting plan and child support

agreement he entered with his former wife, Emily. Although Emily does not cross-

appeal, she requests an award of fees associated with the appeal. We affirm the District

Court’s denial of John’s motions and deny Emily’s request for fees.

                                         ISSUES

¶2     We address the following issues on appeal:

       1. Did the District Court err in denying John’s motions to modify child support
       and amend the parenting plan without a hearing?

       2. Is Emily entitled to attorney’s fees associated with the appeal?

                                    BACKGROUND

¶3     The District Court entered a decree dissolving the marriage of John and Emily

Brown in November 2012. The decree incorporated by reference a separation agreement

signed by the parties that provided a parenting plan and child support for their daughter,

the sole child of their marriage. The agreement obligated John to pay $1000 per month in

child support through the end of 2012 and $750 per month thereafter. The agreement

also provided that each party had “the right to modify child support payments every two

years.”

¶4     The parenting plan designated Emily as the primary parent. John and Emily

agreed their daughter would live with Emily and attend school in Missoula during the

school year. John was entitled to spend one weekend each month of the school year with



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their daughter in Missoula, and for the majority of the summer, their daughter would live

with John in Havre. The parenting plan further provided that “[a] motion to amend this

plan to change the school location or schedule . . . prior to September, 2013, is vexatious

and not in the best interests of the child.”

¶5       On February 3, 2014, John filed a motion to modify his child support obligation,

citing § 40-4-208, MCA.         In his motion, John claimed his “income and financial

circumstances have changed significantly.” John explained that “[h]e does not earn the

income he once did and he can no longer afford the $750.00 per month payment.” The

motion did not elaborate on why or to what extent his income had fallen. John asked for

a hearing on his motion and a scheduling order to exchange financial information with

Emily.

¶6       On February 18, 2014, Emily filed a brief opposing John’s motion. Emily argued

John’s motion was premature under the terms of their agreement and that John had failed

to raise sufficient facts to show the substantial and continuing change in circumstances

required by § 40-4-208, MCA. After receiving several time extensions, John filed a

memorandum and affidavit supporting his motion on March 12, 2014, in which he

asserted that § 40-4-208, MCA, allowed the court to modify his child support obligation

upon a showing of changed circumstances. According to the memo, John “believes he

has shown such a circumstance and will show such a circumstance.” John explained that

his declining income was out of his control and noted that the price of gas was at

“historic lows.” John again requested a hearing and a scheduling order.




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¶7     On April 24, 2015, John filed a motion to amend the parenting plan. In his

affidavit supporting the motion, John asked the District Court to review the plan because

his contact with his daughter “is essentially a non-school year schedule” and “is not

substantial and continuing.” John did not claim Emily had breached the parenting plan,

but he expressed his belief that it was in his daughter’s best interest to spend every other

weekend with him during the school year. John again requested a hearing. Emily

opposed the motion, arguing again that John had failed to show a substantial change in

circumstances.

¶8     A discovery dispute ensued when Emily sought to compel John to produce

financial records. This dispute further delayed a hearing on John’s motions. On August

10, 2015, the parties stipulated to a scheduling order that set September 24 as the date for

a hearing on the outstanding motions. Emily filed a status report on September 17 in

which she relayed information obtained in discovery about several instances of high-

value transactions in John’s personal checking account.       Premised upon these facts,

Emily argued John’s financial condition had not changed for the worse and asked the

District Court to deny the pending motions and vacate the hearing. Based on Emily’s

status report, the District Court vacated the hearing but did not rule on the motions.

Instead, the District Court gave John until November 16, 2015, to respond to Emily’s

status report.

¶9     John’s response to the status report again asserted that it would be in his

daughter’s best interest to spend more time with him. Regarding the modification to his

child support obligation, John claimed that he was “entitled to a reduction as the parties


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agreed to adjust child support in two (2) years and [Emily] is making more money today

and [John] is making less money today.”          As before, John did not provide any

explanation of how or why his income had fallen, beyond the vague statement that his

“income has declined because of the continued historic lows of natural gas prices.”

¶10    On December 15, 2015, the District Court conducted a case management

conference with the parties via telephone. Following that conference, the District Court

issued the order denying John’s motions that serves as the basis for this appeal. In the

order, the District Court stated that “the parties [sic] counsel agreed that no hearing was

needed on the pending motions,” although John maintains that neither he nor his counsel

withdrew his multiple requests for a hearing. On the basis of the motions, briefs, and

affidavits discussed above, the District Court concluded that John had not shown a

substantial change in circumstances or provided a basis for modifying his child support

obligations. Accordingly, the District Court denied John’s motions. John timely appeals.

                              STANDARD OF REVIEW

¶11    We review a district court’s ruling on a motion for modification of child support

for an abuse of discretion. In re Marriage of Pearson, 1998 MT 236, ¶ 29, 291 Mont.

101, 965 P.2d 268. We also apply the abuse of discretion standard to a district court’s

decision not to hold an evidentiary hearing. Harrington v. Energy W. Inc., 2015 MT 233,

¶ 11, 380 Mont. 298, 356 P.3d 441. A court abuses its discretion if it acts arbitrarily

without conscientious judgment or exceeds the bounds of reason, resulting in substantial

injustice. Pearson, ¶ 30.




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                                      DISCUSSION

¶12 1. Did the District Court err in denying John’s motions to modify child support
and amend the parenting plan without a hearing?

¶13    At the outset, we note that the terms of a separation agreement are generally

binding upon the court, except for provisions relating to “support, parenting, and parental

contact with children.” Section 40-4-201(2), MCA. As such, John’s contention that the

separation agreement grants him the right to modify child support and the parenting plan

is not persuasive—the relevant statutes in Title 40, chapter 4, MCA, must be satisfied to

modify child support or a parenting plan. Indeed, John seems to acknowledge this by

citing § 40-4-208, MCA, in his original motion to modify child support.

¶14    It is also important to distinguish between a motion to modify child support and a

motion to modify a parenting plan. Both are at issue in this case and both ultimately

require a showing of changed circumstances, but Montana statutes provide different

standards for evaluating the necessity of the two types of modification. We therefore

address the two motions in turn.

       A. Child Support Modification

¶15    Child support provisions in a dissolution decree may be amended only under

certain, specific conditions.   See § 40-4-208(2)(b), MCA.      One of these conditions

requires “a showing of changed circumstances so substantial and continuing as to make

the terms unconscionable.”         Section 40-4-208(2)(b)(i), MCA.      Unconscionability

determinations are made on a case-by-case basis at the discretion of the district court.

Pearson, ¶ 30.



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¶16    In his motion to modify his child support obligation, John claimed his income and

financial circumstances had changed significantly. More than a month later, John filed a

supporting affidavit that echoed this conclusory refrain and generally blamed the price of

natural gas for his alleged earnings decline. John did not explain how the drop in the

price of gas affected his income or the extent to which his income had declined since the

decree of dissolution.     From this nebulous claim of changed circumstances, John

maintains that he is entitled to an evidentiary hearing.

¶17    John cites Harrington for the proposition that a district court should hold an

evidentiary hearing (1) if there are disputed issues of material fact and (2) if the court

must weigh the credibility of witnesses.          See Harrington, ¶ 11.      While these

considerations would generally counsel in favor of a hearing, we note that John has not

actually mustered a dispute of material fact. Nearly two years had passed between the

filing of the motion to modify child support and the District Court’s denial of the motion.

During this time, John merely made conclusory statements about the need for a child

support modification but did not make a showing of changed circumstances arguably

demonstrating that the existing support order was unconscionable. We are not inclined to

compel the District Court to hold a hearing to find the facts that John has repeatedly

failed to assert. Consequently, we cannot fault the District Court for refusing John’s

requests for an evidentiary hearing, nor can we fault the District Court’s ultimate

conclusion that John failed to show a substantial and continuous change in circumstances

that made his child support obligation unconscionable.




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       B. Parenting Plan Modification

¶18    Montana’s laws governing parenting plans seek to “preserve stability and

continuity of custody for the children.” In re Marriage of Johnson, 266 Mont. 158, 166,

879 P.2d 689, 694 (1994) (internal quotation marks omitted). A district court may amend

a parenting plan

       if it finds, upon the basis of facts that have arisen since the prior plan or that
       were unknown to the court at the time of entry of the prior plan, that a
       change has occurred in the circumstances of the child and that the
       amendment is necessary to serve the best interest of the child.

Section 40-4-219(1), MCA.

¶19    A parent who seeks to amend a parenting plan must “submit, together with the

moving papers, an affidavit setting forth facts supporting the requested plan or

amendment.” Section 40-4-220(1), MCA. It is not enough to simply file the motion

without specifying how the parenting plan should be amended; the requested amendment

must be included with the moving papers. Section 40-4-219(7), MCA. Taken together,

these statutes impose a burden on the parent seeking an amendment to show, through

affidavits submitted with the motion to amend, facts that were unknown to the court

when the parenting plan was adopted or that have since arisen and that necessitate

amendment of the parenting plan.

¶20    The District Court’s order did not cite these statutes, but summarized the law by

noting that “[p]arenting plans can only be modified on a substantial change in

circumstances.” John does not dispute this interpretation of the statute, nor does he allege

Emily has in any way breached their parenting plan. Instead, John argues that the



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settlement agreement specifically allowed modification of the parenting plan after two

years had passed.

¶21    John relies on the following language from the agreement: “A motion to amend

this plan to change the school location or schedule . . . prior to September, 2013, is

vexatious and not in the best interests of the child.” This language simply provides that

any attempt to amend the parenting plan before the stated month is not in the child’s best

interests. It does not grant either party a right to freely amend the plan after September

2013. Moreover, any amendment to the parenting plan must comply with the applicable

statutes. See § 40-4-201(2), MCA. In other words, John, as the movant, was required to

submit a specific, proposed amendment to the parenting plan and an affidavit informing

the District Court of the new facts that necessitated the amendment. See §§ 40-4-219(7)

and -220(1), MCA.

¶22    John did not supply a specific, proposed amendment with his motion. He did file

an affidavit, in which he argues that the parenting schedule during the school year

deprives him of substantial and continuing contact with his child. As the District Court

observed, however, “[t]he fact that the child is now in school and school attendance

interferes with visitation was anticipated by the prior parenting plan, and was to be

expected in the ordinary course of life.” Thus, the District Court concluded John failed to

show the requisite “substantial change in circumstances.” The District Court was not

obliged to hold an evidentiary hearing to give John an opportunity to cure his failure to

raise facts pursuant to § 40-4-220(1), MCA, or submit a proposed amendment in

compliance with § 40-4-219(7), MCA. We therefore conclude the District Court did not


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abuse its discretion in denying John’s motion to amend the parenting plan without first

holding an evidentiary hearing.

¶23    2. Is Emily entitled to attorney’s fees associated with the appeal?

¶24    On appeal, Emily asks this Court to award her attorney’s fees incurred during the

appeal, relying on Cadena v. Fries, 2015 MT 90, 378 Mont. 409, 346 P.3d 347, and M.

R. App. P. 19(5). In Cadena, the parties’ separation agreement provided for an award of

attorney’s fees to the prevailing party. Cadena, ¶ 22. John and Emily’s separation

agreement contains no such provision, so Cadena is inapposite.               We will award

attorney’s fees under M. R. App. P. 19(5) if the appellant’s claims for relief are

“frivolous, vexatious, filed for purposes of harassment or delay, or taken without

substantial or reasonable grounds.”     Although John’s claims lack merit, we cannot

conclude they are frivolous or lacking in good faith. See In re Marriage of Parker, 2013

MT 194, ¶ 54, 371 Mont. 74, 305 P.3d 816.

¶25    Alternatively, Emily asks this Court to sanction John for filing vexatious motions

that constitute harassment, pursuant to § 40-4-219(5), MCA. Emily did not raise this

argument at the District Court, however, and we will not consider it for the first time on

appeal. See JAS, Inc. v. Eisele, 2016 MT 33, ¶ 26, 382 Mont. 200, 367 P.3d 330.

                                     CONCLUSION

¶26    We affirm the order of the District Court and decline to award attorney’s fees

related to the appeal.

                                                 /S/ PATRICIA COTTER




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We Concur:


/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ JIM RICE
/S/ MICHAEL E WHEAT




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