                                                                                       June 12 2009


                                            DA 08-0455

                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                           2009 MT 206N



IN RE THE MARRIAGE OF
MARY E. ELINGS, f/k/a, MARY E. YAGER,

               Petitioner and Appellant,

         and

JEFFREY M. YAGER,

               Respondent and Appellee.


APPEAL FROM:           District Court of the Thirteenth Judicial District,
                       In and For the County of Yellowstone, Cause No. DR 03-1214
                       Honorable Susan P. Watters, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       James A. Hubble; Hubble, Ridgeway, Westveer & Perry,
                       Stanford, Montana

                For Appellee:

                       Elizabeth J. Honaker; Honaker Law Firm, Billings, Montana
                       James Graves; Graves & Toennis, Billings, Montana



                                                   Submitted on Briefs: May 19, 2009

                                                              Decided: June 12, 2009


Filed:
                       __________________________________________
                                         Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court 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     The Thirteenth Judicial District Court, Yellowstone County, denied Mary E.

Elings’ motion to modify the parenting plan concerning her child with Jeffrey M. Yager.

Elings appeals.

¶3     The issues are whether the District Court erred in denying Elings’ motion for an

order requiring Yager to submit to a home inspection and interview by Elings’ proposed

expert, in refusing to let the proposed expert testify as an expert and file a report, and in

concluding Elings had failed to prove a change in circumstances of the child necessitating

amendment of the parenting plan to serve the child’s best interests.

¶4     In denying Elings’ motion for an order requiring a home inspection and interview

of Yager by Elings’ proposed expert, the District Court stated Yellowstone County Court

Services had recognized a conflict between Elings’ proposed expert and Yager’s attorney

resulting in the proposed expert not being assigned to do custody evaluations in cases

involving Yager’s counsel and, in any event, the court did not deem it helpful to hear

from a second custody evaluator—a court-appointed custody evaluator had previously
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submitted a report. The court suggested the parties could hire or it could appoint an

evaluator who did not have conflicts with counsel to prepare an updated custody

evaluation. That was not done. As a result, Elings’ proposed expert could offer only a

one-sided opinion. We review evidentiary rulings for abuse of discretion. McDermott v.

Carie, LLC, 2005 MT 293, ¶ 10, 329 Mont. 295, 124 P.3d 168.

¶5     Elings argues the District Court should have made certain findings which it did

not. The existence of evidence which might support a finding does not require a district

court to make that finding. Madison Addition Architectural Comm. v. Youngwirth, 2000

MT 293, ¶ 17, 302 Mont. 302, 15 P.3d 1175. Further, Elings does not challenge as

clearly erroneous any specific findings made by the court. When the findings upon

which a modification decision is predicated are not clearly erroneous, we will reverse the

district court’s decision only where an abuse of discretion is clearly demonstrated.

Jacobsen v. Thomas, 2006 MT 212, ¶ 13, 333 Mont. 323, 142 P.3d 859.

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

our 1996 Internal Operating Rules, as amended in 2003, which provides for

memorandum opinions. The issues on appeal involve matters of judicial discretion, and

Elings has not established an abuse of discretion.

¶7     Affirmed.



                                                 /S/ MIKE McGRATH




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We concur:


/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
/S/ JIM RICE
/S/ W. WILLIAM LEAPHART




Justice Jim Rice, specially concurring.

¶8     I believe Elings’ briefing raises several legitimate concerns about the current

custodial arrangement, but these concerns are pertinent to consideration of the child’s

best interest. Because I cannot conclude that the District Court erred in making the

threshold determination that there had not been a “change in circumstances” required by

statute—especially in view of the short time which had elapsed since adoption of the

previous parenting plan—the issue of the child’s best interest cannot be reached, and I

thus concur in affirming the District Court.



                                                   /S/ JIM RICE




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