                                            No. 01-407

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                            2003 MT 19



IN RE THE MARRIAGE OF

MARINA CARTER,

               Petitioner and Respondent,

         and

AUSTIN ROGER CARTER,

               Respondent and Appellant.




APPEAL FROM:          District Court of the Eighteenth Judicial District,
                      In and for the County of Gallatin, Cause No. DR-97-232,
                      Honorable Mike Salvagni, Judge Presiding


COUNSEL OF RECORD:

               For Appellant:

                      Ronald Waterman, Gough, Shanahan, Johnson & Waterman,
                      Helena, Montana

               For Respondent:

                      Magdalena C. Bowen, Bowen & Parker, Bozeman, Montana



                                                    Submitted on Briefs: November 1, 2001

                                                              Decided: February 13, 2003

Filed:

                      __________________________________________
                                        Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1     Austin Roger Carter (Roger) appeals the final parenting plan

entered by the Eighteenth Judicial District Court, Gallatin County.

 We affirm the order of the District Court.

¶2     We address the following issues on appeal:

¶3     1.     Whether the final parenting plan adopted by the District

Court was in the best interest of the children and supported by

substantial evidence.

¶4     2.      Whether    Respondent      is    entitled    to     attorney   fees   in

defending this appeal.
                      FACTUAL AND PROCEDURAL BACKGROUND

¶5     Roger and Marina Harris (Marina) were married in October 1993

and separated in June 1997.               Two children were born during the

marriage.       A dissolution proceeding was initiated in 1997, and a

final decree, including parenting plan, was adopted by the District

Court on June 1, 1999.

¶6     Eight days after the final parenting plan was approved, Marina

advised Roger that she was engaged to be married and was moving

with    the    children     to   Salt    Lake    City,     Utah.      Marina’s   move

necessitated changes in the parenting plan, some of which were

resolved by mediation, but others were brought before the District

Court in a hearing held on April 6, 2000.                    At the hearing, Dr.

Charles Kelly (Dr. Kelly), a psychologist who had previously

performed a parenting plan evaluation in 1998 and was called by

Marina, opined that it was in the children’s best interest to

reside with Marina and further, that traveling on alternating


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weekends from Salt Lake City to Belgrade, Montana, to be with Roger

was stressful for the children and not in the best interest of

their relationship with Roger.   Based on the evidence presented at

the hearing, the District Court issued an interim parenting plan

which provided a parenting schedule through June 2001.    The interim

parenting plan adopted by the District Court was date specific and

provided Roger contact with the children about twice per month, for

three to five days each time.

¶7   On June 27, 2000, Roger filed a Motion to Amend the Interim

Order.   Roger proposed a parenting plan that would provide him more

contact with the children.    The proposal contemplated that Roger

would relocate to Utah and have custody of the children 50 percent

of the time.
¶8   The District Court held a hearing on January 26, 2001, to

establish a final parenting plan.      After hearing evidence, the

District Court denied Roger’s proposed parenting plan, adopting a

final parenting plan which named Marina as the primary custodial

parent and providing that the children would reside with her the

majority of time.   Based on the assumption that Roger would reside

in Utah, Roger was provided parenting time with the children every

other week from Wednesday after school until Sunday morning and one

night a week during the alternate week.       The parenting plan also

provided a schedule for holidays and summers.      Roger appeals.
                         STANDARD OF REVIEW

¶9   When we review a district court’s findings related to the

modification of a parenting plan regarding custody and visitation,



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the standard of review is whether those findings are clearly

erroneous.   In Re the Marriage of Oehlke, 2002 MT 79, ¶ 9, 309

Mont. 254, ¶ 9, 46 P.3d 49, ¶ 9.          When findings upon which a

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

district court’s decision regarding a parenting plan only where an

abuse of discretion is “clearly demonstrated.”     Oehlke, ¶ 9.
                             DISCUSSION

¶10   Was the final parenting plan adopted by the District Court in

the best interest of the children and supported by substantial

evidence?

¶11   The district court is required to determine child custody

matters in accordance with the best interest of the child.   Section

40-4-212, MCA (1999), provides in relevant part:

           (1) The court shall determine the parenting plan in
     accordance with the best interest of the child.       The
     court shall consider all relevant parenting factors,
     which may include by are not limited to:
     (a) the wishes of the child’s parent or parents;
     . . .
     (c) 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 interest;
     (d) the child’s adjustment to home, school, and community;
     (e) the mental and physical health of all individuals
involved;
     . . .
     (h) continuity and stability of care[.]

Section 40-4-219, MCA (1999), provides the following direction in

regard to amendment of a parenting plan:

           (1) 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. In determining the child’s best


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      interest under this section, the court may, in addition
      to the criteria in 40-4-212, also consider whether:
      (a) the parents agree to the amendment;
      (b) the child has been integrated into the family of the
      petitioner with consent of the parents; ...
      (d) one parent has willfully and consistently:
           (i) refused to allow the child to have any contact
      with the other parent; or
           (ii) attempted to frustrate or deny contact with the
      child by the other parent; or
      (e) one parent has changed or intends to change the
      child’s residence in a manner that significantly affects
      the child’s contact with the other parent.

¶12   Roger argues that both parents should have frequent and

continuing contact with the children, and the only way to satisfy

the requirement that the best interest of the children be served is

to allow each parent to have contact with the children 50 percent

of the time.    Roger does not maintain that 50/50 parenting contact

is appropriate in all cases, but that it is appropriate in this

case, because both parents agree that the other parent possesses

the necessary and appropriate parenting skills to properly care for

the physical and emotional needs of the children.    Roger maintains

that there is no evidence in the record and no justification for

limiting his parenting contact with his children to an every other

long weekend.    Roger claims the District Court did not provide any

rationale for its arbitrary decision to restrict his contact with

the children.
¶13   Roger argues that the District Court was required to consider

and discuss the factors set forth in §§ 40-4-212 and 40-4-219, MCA,

and demonstrate in its findings that it had evaluated the facts, in

light of the statute.    Roger contends the District Court failed to

carry out this function, offering that “the District Court merely



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recited the rote findings that Roger’s parenting proposal was ‘not

in the best interests of the children’.”         According to Roger, the

District Court provided no indication that it even considered the

statutory factors set forth above.        Thus, Roger concludes that the

record   did   not   support   the   District   Court’s   Order,   that   the

District Court abused its discretion, and this Court should reverse

the parenting plan.

¶14   In a marriage dissolution proceeding, the district court is

required to determine child custody matters in accordance with the

best interest of the child.          See §§ 40-4-212 and 40-4-219, MCA.

While a district court must consider the several statutory factors

listed in § 40-4-212, MCA, we have held that the court is not

required to make specific findings regarding each and every factor

listed in the statute.     In Re the Marriage of McKenna, 2000 MT 58,

¶ 15, 299 Mont. 13, ¶ 15, 996 P.2d 386, ¶ 15, and In Re the

Marriage of Anderson (1993), 260 Mont. 246, 252, 859 P.2d 451, 455.

 This Court stated in Anderson that:
      The custody determination must be based on substantial
      evidence relating to the statutory factors and [the
      evidence] must be set forth explicitly in the findings.
      The findings should, at a minimum, set forth the
      “essential and determining facts upon which the District
      Court rested its conclusion on the custody issue.”

Anderson, 260 Mont. at 252-53, 859 P.2d at 455, quoting In Re the

Marriage of Converse (1992), 252 Mont. 67, 71, 826 P.2d 937, 939.

¶15   The parties submitted substantially different parenting plans.

 Marina proposed a parenting plan similar to the June 1, 1999,

parenting plan, which allowed Roger contact with the children every

other week for a long weekend and one night during the week he did


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not have the children.             Roger, on the other hand, submitted a

parenting      plan   in   which    the   children     alternated   between     the

parties, two weeks with him and then two weeks with Marina.                     In

considering the children’s adjustment to their home, school, and

community, the District Court found it was important for the

children to have continuity and consistency in the parenting

environment, which was consistent with Dr. Kelly’s report and

testimony.      In its findings of fact, the District Court noted that

“Dr.   Kelly    indicates    [Marina]     is    the    primary   parent   and   the

children should not spend lengthy times away from [Marina].”

Further, the District Court found that “[Roger’s] proposal of

rotating the children’s residency every two weeks is not in the

best interests of the children based on Dr. Kelly’s evaluation of

the children.”
¶16    The District Court also found both Roger and Marina were able

parents and that neither had acted neglectfully or abusively toward

the children, adding that          “[b]oth parties are good, loving parents

and neither parent offers criticism of the other’s parenting skills

or abilities to parent the children.”                 Dr. Kelly indicated there

was no mental or physical problems that prevented either parent

from being an effective parent.               In addressing the developmental

needs of the children, the District Court relied on Dr. Kelly’s

recommendation that the children should reside primarily with one

parent and that the children should not be separated from the

primary parent for lengthy periods of time.                The schedule in the

final parenting plan reflects this recommendation.



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¶17    In denying Roger’s proposed parenting schedule, the District

Court also considered the inability of the parties to communicate

well regarding the children.        The District Court entered a finding

that the parties have had “obvious and continuing” communication

difficulties.        Roger’s    proposal    of    rotating     the    children’s

residence every two weeks would require more positive communication

between Roger and Marina, which the District Court determined was

not likely to occur.       The District Court stated:

       The   parties   have   had   a   history   of   difficult
       communications with each other and there continues to be
       animosity between the parties. Petitioner indicates the
       parties do not communicate well regarding issues of the
       children as evidenced by Respondent’s Motion for
       Contempt,   criminal   complaints   and   other   ongoing
       difficulties between the parties. . . . [Roger’s]
       proposal of rotating the children’s residence every two
       weeks is not in the best interests of the children based
       on Dr. Kelly’s evaluation of the children and the obvious
       and continuing communication difficulty between the
       parties.
¶18    The   District   Court   also   found     that   both   Marina   and   the

children were very active in their church, noting “[h]owever,

[Roger] is not active in the LDS Church and has not attended for

over a year.”

¶19    Based on our review of the record, we conclude that the

District Court acted in accordance with §§ 40-4-212 and 40-4-219,

MCA, and properly considered the best interest of the children when

it issued its final parenting plan on March 22, 2001.                 The record

reflects that the District Court considered the statutory factors,

made   appropriate      findings   that    are   supported     by    substantial

evidence, set forth findings that explained the basis of the




                                       8
court’s decision, and entered an independent judgment regarding the

parenting of the children.

¶20   In addition to challenging the District Court’s assessment of

the children’s best interest, Roger faults the District Court’s

consideration of, or failure to consider, certain evidence.      First,

relying on § 40-4-219(1)(d)(ii), MCA, which allows consideration of

a parent’s attempt to frustrate contact between the children and

the other parent, Roger argues that the District Court failed to

consider Marina’s attempt to frustrate Roger’s contact with the

children.    In 1999, eight days after a final parenting plan was

adopted and approved by the District Court, Maria announced she was

moving with the children from Idaho to Salt Lake City, Utah.

According to Roger, this move caused him to lose 29 days of

parenting.   Then, in July 2000 there was an instance of custodial

interference.   Roger traveled to Utah to be with his children and

Marina delayed the delivery of the children to Roger for two to

four hours, preventing his daughter from attending a birthday party

which Roger and his family had planned for her.          Roger contends

these actions by Marina were not given appropriate consideration by

the District Court.
¶21   However, in the same order in which it adopted the parenting

plan, the District Court made eleven separate findings regarding

Roger’s   allegations   of   custodial   interference,   including   the

details of the two-hour delay in the parenting exchange which

occurred on July 15, 2000.       The District Court determined that

Marina was in violation of the parenting plan by delaying the



                                   9
exchange of the children, and found her in contempt therefor, but

also indicated that no other instances of custodial interference

had occurred thereafter.            It is apparent from the District Court’s

simultaneous findings regarding the custodial interference and the

parenting      plan    that    it    adequately       considered       the   custodial

interference issue and incorporated its impressions therefrom into

the parenting plan, as the court’s order included an assessment of

the parties’ ability to communicate with each other in regard to

the children.
¶22    Roger next claims that the District Court erred by relying on

the evaluation and report of Dr. Kelly.                     Dr. Kelly had testified

during a hearing on an interim parenting plan in April 2000 that

his earlier recommendations should be re-evaluated in light of

Marina’s custodial interference.                 However, this re-evaluation did

not   occur.      Therefore,        Roger        contends    that,     without   a   re-

evaluation, Dr. Kelly’s opinion should be removed from the District

Court’s consideration.          Roger further contends that the District

Court should not have relied on Dr. Kelly’s report because it

failed to consider a parenting situation in which he and Marina

resided   in     the    same    community,         which     Roger’s    proposal     had

contemplated.

¶23   Dr. Kelly generally supported restriction of Roger’s parenting

time with the children, believing that the long distance travel

between Salt Lake City and Belgrade was not in the children’s best

interest.      However, as Roger correctly points out, by the time of

the hearing on the final plan, the issue of the children traveling



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between Salt Lake City and Belgrade was removed by Roger’s proposal

to relocate to Utah.

¶24   Nonetheless, we do not conclude that the District Court erred

in considering Dr. Kelly’s testimony.           Although Dr. Kelly was a

witness for Marina, Roger had every opportunity to consult with Dr.

Kelly after Dr. Kelly’s testimony in April 2000 to obtain a re-

evaluation or additional information in response to the proposed

change in Roger’s residence, but he did not do so.         Roger also had

the opportunity to consult another expert to refute Dr. Kelly’s

recommendations and support his proposed parenting plan, but,

again, he did not do so.      Under these circumstances the District

Court   was   entitled   to   rely   on   Dr.   Kelly’s   evaluation   and

recommendations to the extent they were still relevant, which the

District Court did.
¶25   Further, the failure of Dr. Kelly’s report to consider the

proposed change in Roger’s residence does not affect the District

Court’s findings that Marina was the primary parent, that the

children should not spend lengthy periods away from her, that

Marina and the children were both actively involved with their

church and Roger was not, and that the parties did not communicate

well regarding the children, which were the bases of the District

Court’s conclusion that Roger’s plan was not in the best interest

of the children.

¶26   The District Court considered the relevant evidence presented,

including the testimony of the parents and the expert, and reached

an independent decision on the best interest of the children.          The



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District Court crafted a parenting plan in which the children

continued to have primary time with Marina with Roger having

contact Wednesday evening through Sunday morning every other week,

time during the alternating week, as well as holidays and summer.

We determine that the District Court’s conclusion that its final

parenting   plan   was   in   the   best   interest   of   the   children   is

supported by substantial evidence and not an abuse of discretion.

¶27   Is Respondent entitled to attorney fees in defending this

appeal?

¶28   Marina asserts that we should award her attorney fees and

costs pursuant to Rule 32,      M.R.App.P., on the grounds that Roger’s

appeal was taken without substantial or reasonable grounds.             Rule

32, M.R.App.P., provides:

      If the supreme court is satisfied from the record and the
      presentation of the appeal in a civil case that the same
      was taken without substantial or reasonable grounds, such
      damages may be assessed on determination thereof as under
      the circumstances are deemed proper.

As a general rule, this Court will not impose sanctions pursuant to

Rule 32, M.R.App.P., unless the appeal is entirely unfounded and

intended to cause delay, or unless counsel’s actions otherwise

constitute an abuse of the judicial system.           In Re the Marriage of

Snow, 2002 MT 143, ¶ 31, 310 Mont. 260, ¶ 31, 49 P.3d 610, ¶ 31.

In this case, even though we did not rule in Roger’s favor, his

appeal was not entirely unfounded or intended to cause delay, and

did not constitute an abuse of the judicial system.              Accordingly,

we do not award Marina her attorney fees and costs on appeal.

¶29   Affirmed.



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                                 /S/ JIM RICE
We concur:

/S/   KARLA M. GRAY
/S/   PATRICIA COTTER
/S/   TERRY N. TRIEWEILER
/S/   JIM REGNIER




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