                                                                                           June 26 2012


                                            DA 11-0567

                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2012 MT 136N



IN RE THE MARRIAGE OF:

DAVIE LIN LLOYD,

               Petitioner and Appellant,

         and

BRETT CAMARON LLOYD,

               Respondent and Appellee.



APPEAL FROM:            District Court of the First Judicial District,
                        In and For the County of Lewis and Clark, Cause No. ADR 2010-487
                        Honorable Dorothy McCarter, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        KD Feeback, Gough, Shanahan, Johnson & Waterman, PLLP, Helena,
                        Montana

                 For Appellee:

                        Joan Hunter, Hunter Law Office, Helena, Montana


                                                   Submitted on Briefs: May 23, 2012

                                                              Decided: June 26, 2012



Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not serve

as precedent. Its case title, cause number, and disposition shall be included in this Court’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2     Davie Lin Lloyd (Davie) appeals from a Parenting Plan Order entered by the First

Judicial District Court, Lewis and Clark County. We affirm.

¶3     We first considered this case in 2011 when Davie appealed an order from the District

Court declining to transfer jurisdiction over the parties’ child custody proceeding to

Kentucky. In re Lloyd, 2011 MT 133, 361 Mont. 22, 255 P.3d 166. The underlying facts are

set forth in detail in Lloyd, and will be discussed here only as they pertain to this appeal.

¶4     Davie and Brett Camaron Lloyd (Brett) were married in 1997, and are the parents of

one minor child, M.K.L. On September 10, 2004, the Thirteenth Judicial District Court

issued a decree of dissolution and parenting plan, which awarded Davie residential custody

and included an attorney’s fees provision. After the dissolution, Davie moved with M.K.L.

from Texas to Oklahoma to Kentucky, and finally, to Florida. In the summer of 2009, the

parties’ communication disintegrated when they disagreed over Brett’s summer visitation

and as a result, M.K.L. never visited Brett that summer. Due to this communication

breakdown, Brett initiated legal proceedings in Montana to enforce the parenting plan.

¶5     As part of the proceedings in the First Judicial District Court, Brett filed a motion for

immediate transfer of custody of M.K.L. from Davie to Brett. The District Court held a

hearing on Brett’s motion on September 7, 2010. During the hearing, the District Court
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required the parties to appoint a guardian ad litem to represent M.K.L. A guardian ad litem

was never appointed. After this hearing, the District Court issued a decision and order of

jurisdiction, which eventually resulted in our decision in Lloyd.

¶6     After we resolved the jurisdictional question, the District Court held a hearing on the

final parenting issues on August 8, 2011, and on August 10, 2011, the District Court entered

its Parenting Plan Order. The Order gave Brett residential custody of M.K.L., and included a

provision requiring that for each vacation M.K.L. would be transferred to the parent with

visitation rights on the evening of the last day of school before the break and would remain

with that parent until the evening before school would resume.

¶7     On August 11, 2011, Brett filed a request that the District Court enforce the attorney’s

fees provision in the 2004 Parenting Plan and award Brett his attorney’s fees. The District

Court approved that request on August 16, 2011, and on August 24, 2011, Davie filed an

M. R. Civ. P. 60(b) motion for relief from the judgment awarding attorney’s fees. Counsel

for Brett submitted an affidavit containing a statement of attorney’s fees on August 29, 2011,

to which Davie did not object. On September 21, 2011, the District Court denied Davie’s

motion and approved the amount of the fees.

¶8     Our standard of review for a district court’s award of child custody is whether the

district court’s findings are clearly erroneous. In re Marriage of Baer, 1998 MT 29, ¶ 18,

287 Mont. 322, 954 P.2d 1125. We will affirm the district court’s decisions when the

findings are supported by substantial credible evidence, unless a clear abuse of discretion is

shown. Baer, ¶ 18. The district court is required to determine child custody matters in

accordance with the best interests of the child. Section 40-4-212, MCA; Baer, ¶ 19.
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¶9     We review a district court’s award of attorney’s fees for an abuse of discretion. In re

Marriage of Damschen, 2011 MT 297, ¶ 39, 363 Mont. 19, 265 P.3d 1245. A district court

abuses its discretion when it acts arbitrarily without employment or conscientious judgment

or so exceeds the bounds of reason as to work a substantial injustice. Damschen, ¶ 39.

¶10    Davie argues that the District Court’s following Findings of Fact are not supported by

substantial credible evidence, and are, therefore, clearly erroneous:

       3. Since 1999, the parties have not been able to communicate effectively with
       respect to the parenting plan.

       4. Since 1999, Davie lived and worked in the state of Kentucky and recently
       relocated to St. George Island, Florida. She works as a CEO for rural
       hospitals, which requires her to relocate every few years. In relocating to
       Florida, she failed to give Brett the required notice of intent to relocate and
       refused to give him her residential address, until this Court ordered her to
       reveal that information at the present hearing.

       5. Davie’s explanations as to why she has impeded Brett’s access to M.K.L.
       has [sic] little if any credibility with this Court. The reality is that she does not
       want Brett to be involved in M.K.L.’s life.

       6. Brett continues to reside in Helena, is employed, and has a stable lifestyle.

       7. As set forth in this Court’s previous orders, Davie has intentionally
       withheld M.K.L. from Brett and has frustrated his attempts to locate her and
       her child.

       8. Evidence received at this hearing indicates that Davie’s actions have not
       changed and that she has no interest in facilitating a relationship between Brett
       and their daughter. For example, she recently brought M.K.L. to Montana to
       spend time with her extended family members, but never let Brett know that
       his daughter was in the state. Davie never attempted to bring M.K.L. and
       Brett together so that he could have some parenting time with his daughter.
       Davie’s actions indicate that she believes her extended family is more
       important to M.K.L. than the child’s own father.

                                           .     .    .

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       11. The Court concludes that M.K.L. should be allowed to develop and
       maintain a healthy and close relationship with her father. Evidence indicates
       that she is comfortable with her father, and that there are no issues that would
       preclude such a relationship.

¶11    After reviewing the record, we conclude that the District Court’s decision to change

the residential custody of M.K.L. is not a clear abuse of discretion because the court’s

findings of fact are supported by substantial credible evidence and are not clearly erroneous.

¶12    Davie additionally argues a guardian ad litem should have been appointed. At the

September 7, 2010, transfer of custody hearing, the District Court recognized that it might be

best to have a guardian ad litem represent M.K.L. The court also realized that it would be

difficult to employ a guardian ad litem due to Davie and Brett living in separate states.

Davie contacted a guardian ad litem, but the guardian was unavailable to meet with the

parties prior to the hearing on August 8, 2011. In the end, a guardian ad litem was never

appointed. Davie now argues that this constitutes clear error due to the court originally

ordering the appointment of a guardian ad litem, but not enforcing its order.

¶13    A district court “may appoint a guardian ad litem to represent the interests of a minor

dependent child with respect to the child’s support, parenting, and parental contact,” § 40-4-

205(1), MCA (emphasis added), but it is not required to do so. We have consistently held

that § 40-4-205, MCA, is not a mandatory statute, and the appointment of a guardian ad

litem is therefore discretionary with the court. See In re Arneson-Nelson, 2001 MT 242, ¶

34, 307 Mont. 60, 36 P.3d 874. Accordingly, the District Court’s ultimate decision not to

require a guardian ad litem is one of judicial discretion and we conclude that there clearly

was not an abuse of discretion.

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¶14    Davie next argues that the parenting plan will cause M.K.L. to miss school for each

custodial transfer that takes place during the school year because M.K.L. would have to miss

school to travel from Montana to Florida for visitation. In support of her position, Davie

cites In re Marriage of Gersovitz, 238 Mont. 506, 507-08, 779 P.2d 883, 884 (1989), for the

proposition that it is never in the best interests of the child to miss school. Brett contends

Gersovitz is distinguishable because the facts are different, and M.K.L. would not be missing

nearly as much school as in Gersovitz. Brett additionally argues that, even if M.K.L. misses

some school, it is in her best interest not to be “haul[ed] . . . out of school, activities and

friendship” every time Davie moves. The District Court’s decision regarding visitation is

one of judicial discretion and there clearly was not an abuse of discretion.

¶15    Davie also argues that the District Court erred when it awarded Brett attorney’s fees

for two reasons. First, Davie asserts that due to the fact that the 2004 Parenting Plan was

categorically ignored, Brett should be deemed to have waived his right to seek compliance

thereof. Second, Davie argues that Brett should be precluded from receiving attorney’s fees

because he refused to mediate, thereby forcing the parenting plan issue to court. Brett

counters by arguing that he has tried to enforce the majority of the provisions in the 2004

Parenting Plan, but that Davie has placed restrictive conditions on him, has delayed the

process, and has withheld his parenting time from him. The District Court’s decision

awarding attorney’s fees to Brett is one of judicial discretion and there clearly was not an

abuse of discretion.

¶16    We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our

Internal Operating Rules, which provides for noncitable memorandum opinions.
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¶17   Affirmed.

                          /S/ MICHAEL E WHEAT



We Concur:


/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ BRIAN MORRIS




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