                                                                                             July 24 2012


                                           DA 11-0136

                     IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2012 MT 158



TENILLE M. HOOD,

              Petitioner and Appellee,

         v.

JOHN D. HOOD,

              Respondent and Appellant.




APPEAL FROM:            District Court of the Thirteenth Judicial District,
                        In and For the County of Yellowstone, Cause No. DR 05-202
                        Honorable G. Todd Baugh, Presiding Judge


COUNSEL OF RECORD:


                For Appellant:

                        Garth S. McCarty, Garth McCarty Law Firm, PC, Glenwood Springs,
                        Colorado


                For Appellee:

                        Jason S. Ritchie, Kyle A. Gray, Holland & Hart, LLP, Billings, Montana



                                                    Submitted on Briefs: April 4, 2012

                                                                Decided: July 24, 2012


Filed:

                        __________________________________________
                                          Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1     John Hood appeals a decision of the District Court for the Thirteenth Judicial

District, Yellowstone County, denying John’s motion to amend the parties’ parenting

plan. We affirm.

¶2     John raises the following issue on appeal: Did the District Court err by denying

John’s Motion to Amend Parenting Plan? And, in support of this issue, John contends

that the District Court abused its discretion by:

       1. Interviewing the minor children in camera, over John’s objection, and then

supporting its ruling in large part on the information obtained during the in camera

interview;

       2.    Deciding that the children had adjusted well to their home, school and

community in Utah in the absence of supporting evidence;

       3. Not requiring Tenille Hood to provide her medical records, and ruling that the

mental and physical health of the parties was not an issue and was evenly balanced

between the parties;

       4. Not enforcing its March 23, 2009 order; and

       5. Failing to rule that Tenille was not credible as a matter of law.

                          Factual and Procedural Background

¶3     The parties in this case have had a great deal of difficulty working out parenting

and visitation arrangements even though they lived in the same city for several years

following their divorce. Their relationship, as characterized by Tenille in her brief on

appeal, has been “acrimonious in the extreme.” At one time, the parties went so far as to


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file cross-motions for orders of protection against each other. And, on several occasions

throughout these proceedings, the District Court Judge expressed his frustration with the

parties’ failure to effectively communicate with each other over the parenting of their

children. While there have been numerous motions and petitions filed by both sides in

this matter, the following summary of facts will only detail the motions, petitions and

court decisions necessary to explain the current proceedings.

¶4      John and Tenille were married in November 1999 in Billings, Montana. They

have three girls and one boy ranging in age from 9 to 14 years old. During the marriage,

Tenille was primarily responsible for taking care of the children while John worked.

John and Tenille separated in 2004 and divorced in May 2005. Tenille was awarded

primary custody of the children.

¶5      In 2006, John moved to modify the parties’ parenting plan, but before a final

decision was reached on that issue, Tenille notified the court and John that she intended

to move to Utah with the children on or about August 15, 2008. John moved for an

emergency show-cause hearing to determine whether the move to Utah would be in the

children’s best interests. This hearing was postponed several times at the request of

Tenille or her counsel. On September 17, 2008, John filed a Motion for Contempt

asserting that Tenille had refused to allow him visitation with the children since March

2008.

¶6      The District Court conducted hearings on the various pending motions on

October 10 and December 18, 2008. During the hearings, Tenille testified that her

parents were selling their house in Billings and moving to Utah, and that her parents’


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support was so essential to her parenting that it was in the children’s best interests for her

and the children to accompany her parents to Utah. Tenille also testified that her brother

and his family live in Tooele, Utah, and that she would be taking over the lease on her

brother’s house since he and his wife were planning to purchase a home of their own.

¶7     In addition, Tenille asserted that, after 12 years of being on public assistance, she

intended to obtain her G.E.D. as soon as she moved to Utah, and that she planned to get a

job. Tenille also told the court that her move to Utah was necessary because, after she

obtained her G.E.D., she intended to return to school to obtain a degree in a field that was

not taught at the schools in Montana.

¶8     The District Court rendered its Decision on March 24, 2009, wherein the court

noted that both parties have “checkered pasts” regarding substance abuse, but that

substance abuse was not currently an issue for either party. The court also noted that

even though the best thing for the children would be for both parents to live in the same

community, there was good reason for Tenille to move to Utah where her family could

provide assistance with the children while Tenille completed her education and got a job.

The court stated, however, that, as of the hearing, Tenille had no job, was on public

assistance, and was not going to school, and that if that was to be her lifestyle, she should

stay in Billings where the children could have more contact with their father.

¶9     Nevertheless, the court stated that it would not prevent Tenille from moving to

Utah with the children, and that it intended to retain jurisdiction to require Tenille to live

in Billings unless she undertakes to complete her education and get a job. The court

ordered that a parenting plan be prepared showing Tenille as the primary residential


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parent living in Utah, and that John should have reasonable visitation including six weeks

of visitation with the children during the summer.

¶10    Tenille and the children moved to Utah in April 2009. But, instead of taking over

the lease on Tenille’s brother’s house as she had told the court, Tenille and the children

lived with Tenille’s brother and his family for eight weeks until Tenille obtained a home

of her own.

¶11    On June 25, 2009, the District Court adopted Tenille’s proposed parenting plan.

The court noted, however, that the parenting plan should be modified to provide for

additional reasonable visitation to which the parties shall from time to time mutually

agree, and to permit the parties to mutually agree to modify visitation times and travel

arrangements.    Thus, the court ordered that a final parenting plan be prepared and

submitted.

¶12    John began filing motions and supplements to motions in October 2009 to hold

Tenille in contempt of court and to reopen the matter regarding the parties’ parenting plan

contending that Tenille failed to abide by the parenting plan and continued to frustrate

John’s contact with the children. On March 24, 2010, John filed a Motion to Amend

Parenting Plan wherein he asserted that after living in Utah for almost one year and

contrary to Tenille’s promises to the court, Tenille failed to get her G.E.D., failed to get a

job, and failed to enroll in college.

¶13    In addition, John noted that the other reasons Tenille gave for moving to Utah had

also proved to be unfounded. Tenille’s parents did not move to Utah as Tenille had

represented to the court, and, not only did Tenille not take over the lease on her brother’s


                                              5
house in Utah, Tenille’s brother and his family moved back to Billings. Thus, John asked

the court to require Tenille and the children to move back to Billings, and to require that

the children spend equal time with each parent, or, if the court allowed Tenille to remain

in Utah, to grant John primary residential custody of the children in Billings.

¶14    In her response to John’s motion, Tenille stated that she did obtain her G.E.D. and

has enrolled in college, but that she does not have a job and still receives public

assistance. She also stated that her parents did not move to Utah because they were

unable to sell their home in Billings. Tenille pointed out that the children are thriving in

their new home, school and community in Utah, and that it would not be in their best

interests to force them to return to Billings.

¶15    The District Court held several days of hearings in this matter in July, August,

September, and December 2010, wherein both parties offered testimony and exhibits. In

addition, the court interviewed three of the parties’ children in chambers. After both

parties submitted proposed findings of fact and conclusions of law, the court entered its

Decision on Modification on February 15, 2011.

¶16    In its decision, the District Court weighed the factors set forth in § 40-4-212,

MCA, regarding the best interests of the children, and determined that because Tenille

has always been the primary residential parent, she should continue as the primary

residential custodian of the children. Consequently, the court denied John’s Motion to

Amend Parenting Plan. In reaching this decision, the court pointed out that although

Tenille “underperformed and neglected to follow through on the things she asserted were

the basis for her move to Utah,” it would not require her to move back to Billings, but


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that she should seriously consider doing so to facilitate visitation. The court further

stated that “unless the intent is to frustrate visitation, anyone, including parents, can travel

and live wherever they want.”

¶17    John appeals the District Court’s Decision on Modification.

                                    Standard of Review

¶18    We review the findings of fact underlying a district court’s decision to modify a

parenting plan to determine whether those findings are clearly erroneous. In re Marriage

of D’Alton, 2009 MT 184, ¶ 7, 351 Mont. 51, 209 P.3d 251 (citing In re Marriage of

Oehlke, 2002 MT 79, ¶ 9, 309 Mont. 254, 46 P.3d 49). If the underlying findings are not

clearly erroneous, then we will overturn the district court’s decision only if there is a

clear abuse of discretion. D’Alton, ¶ 7.

                                           Discussion

¶19    Did the District Court err by denying John’s Motion to Amend Parenting Plan?

¶20    John argues on appeal that the District Court’s decision was wholly unsupported

by the evidence, and that it acted arbitrarily at various times during the proceedings

culminating with its “arbitrary” conclusion that Tenille should be allowed to remain in

Utah with the children despite her failure to comply with the court’s previous decision.

Tenille argues on the other hand that John failed to meet any of the burdens of proof that

Montana law imposes on him in order to receive the relief he requested, namely

modification of the parenting plan. She also argues that John fails to address the primary

issue in this case—the best interests of the children. However, John contends that it is

not his burden to persuade this Court how the children’s best interests are best served.


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¶21   A trial 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. . . .

Section 40-4-219(1), MCA.      Moreover, this Court has repeatedly held that a party

seeking to modify a parenting plan pursuant to § 40-4-219, MCA, carries a heavy burden

of proof. Oehlke, ¶ 17 (citing In re Marriage of Gallagher, 266 Mont. 358, 361-62, 880

P.2d 1303, 1306 (1994)); see also D’Alton, ¶ 11.

¶22   A finding of changed circumstances “is a jurisdictional prerequisite, and without

such a finding, a district court may not modify an existing custody arrangement.”

Oehlke, ¶ 12 (citing In re Marriage of Syverson, 281 Mont. 1, 16-17, 20, 931 P.2d 691,

701, 702 (1997)).    In the instant case, the District Court determined that Tenille’s

underperformance in Utah was a change in circumstances of the children, thereby

meeting one factor of the test set forth in § 40-4-219, MCA.

¶23   The other factor of this test requires an analysis of whether the parenting plan

modification is necessary to serve the best interest of the children. “A district court is

required to determine child custody matters in accordance with the best interests of the

child, considering a variety of statutory factors.” In re Marriage of Guffin, 2009 MT 169,

¶ 7, 350 Mont. 489, 209 P.3d 225 (citing § 40-4-212, MCA; Czapranski v. Czapranski,

2003 MT 14, ¶ 11, 314 Mont. 55, 63 P.3d 499).

¶24   Moreover, we have pointed out that child custody cases often present a district

court with difficult decisions, and we must presume that the court carefully considered


                                            8
the evidence and made the correct decision since the district court sits in the best position

to evaluate the best interest of the child. In re N.S., 2011 MT 98, ¶ 18, 360 Mont. 288,

253 P.3d 863 (citing Toavs v. Buls, 2006 MT 68, ¶ 13, 331 Mont. 437, 133 P.3d 202).

¶25    In its Decision on Modification, the District Court weighed the factors set forth in

§ 40-4-212, MCA, as they related to the best interests of the children in this case, and

found the following:

       (a) The wishes of the parents – evenly balanced here.

       (b) The wishes of the children – the children have a good relationship with
           both parents. They are happy and well adjusted (in spite of the short
           comings of their parents). They like their school, friends, home and
           community in Utah. They like their Dad and Billings, too, and mostly
           get along well with him and his fiancé (live-in fiancé of three years
           with marriage contemplated in August, 2011) but find Dad’s home a
           little crowded: Dad and his four children, fiancé and her two children.
           On balance the children of the parties favor staying in Utah. This
           factor is a little in favor of Mom.

       (c) Interaction and interrelationship of the children with their parents,
           siblings, and others. These four children get along well with one
           another and both parents and Dad’s fiancé and her children. However,
           on balance, they favor Mom’s residence in Utah. This factor also
           favors Mom but is, in this case, not much different than the preceding
           factor.

       (d) Children’s adjustment to home, school and community. Again, this is
           similar to preceding factors but does favor Mom in Utah. These
           children are well adjusted to home, school and community in Utah but
           would probably do as well in Billings.

       (e) Mental and physical health of all involved. There are no issues here
           and this factor is evenly balanced.

       (f) Physical abuse or threat of physical abuse – any such that may have
           occurred between the parents in the past is now remote and no longer
           an issue. There has been no physical abuse of the children. This factor
           is now evenly balanced.


                                             9
       (g) Chemical dependency – no issue – evenly balanced.

       (h) Continuity and stability of care – Mom has been the primary care
           provider for many years. This factor favors her.

       (i) Developmental needs of children – This factor is evenly balanced. The
           parents have been and are (with some disagreement, of course)
           adequately addressing these needs.

       (j) Birth-related costs – not an issue – evenly balanced.

       (k) Child support – not an issue – evenly balanced.

       (l) Frequent and continuing contact with the children – given that this is a
           long distance parenting arrangement, the non-residential parent of
           school-age children is necessarily shorted on visitation. This factor
           favors Dad.

       (m) Adverse effects on the children from continuous and vexatious
           Parenting Plan amendment action. Even if the frequency of litigation
           in this case was viewed as continuous and/or vexatious, the litigation
           seems to have had no adverse effects on the children, at least not yet.
           This factor is evenly balanced.

¶26    The District Court also found that there were other applicable factors in

determining the best interests of the children. To that end, the court pointed out that

       Dad is a hard worker, somewhat rigid and less flexible than Mom. Mom is
       oriented to the children, does not work (though she does volunteer work)
       and lives off the charity of her fellow citizens. In Aesop’s fable, he is more
       akin to the ant and she the grasshopper.

¶27    On appeal, John raises five arguments relating to the District Court’s findings and

to the denial of his motion to amend the parenting plan. He asserts that the District Court

abused its discretion: (1) by interviewing the parties’ minor children in camera; (2) by

determining that the children had adjusted well to their home, school and community in

Utah in the absence of supporting evidence; (3) by not requiring Tenille to provide her



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medical records; (4) by not enforcing its March 23, 2009 Order; and (5) by failing rule

that Tenille was not credible as a matter of law. We will address each of these issues in

turn.

                   1. Interviewing the parties’ minor children in camera

¶28     John asserts that the Judge wrongly interviewed three of the parties’ four children

to ascertain whether they wished to continue to live in Utah with Tenille or to return to

Montana to live with John. John also claims that he was denied the right to confront the

witnesses against him when his counsel was not allowed to question the children.

¶29     Tenille points out that it was John who originally filed a motion asking the Judge

to conduct the interviews of the children, and that John changed his mind after his expert

witness testified that it would put the children “more in the middle.” Even so, Tenille

asserts that it was because John continued to attempt to testify about the wishes of the

children that the Judge decided to interview them in chambers.

¶30     Section 40-4-214(1), MCA, places the decision to interview children in the

discretion of the court, not the parties:

               The court may interview the child in chambers to ascertain the
        child’s wishes as to residence and parental contact. The court may permit
        counsel to be present at the interview. The court shall cause a record of the
        interview to be made and to be part of the record in the case.

In addition, we have stated that while “it is often important for the judge to discover the

attitudes and wishes of the child,” “[n]othing in § 40-4-214, MCA, requires the court to

give the parties an opportunity to cross-examine the child.” N.S., ¶ 38 (quoting Matter of

M.L.H., 220 Mont. 288, 292-93, 715 P.2d 32, 34-35 (1986)).



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¶31    Here, the judge recorded his interview with each child and made it a part of the

record in this case as required by § 40-4-214, MCA. We hold that the court did not abuse

its discretion when it interviewed the children in chambers, or when it refused to allow

John’s counsel to cross-examine the children.

         2. Children’s adjustment to their home, school and community in Utah

¶32    John asserts that there was a lack of evidence in the record to support the District

Court’s conclusion that the children have adjusted well to their home, school and

community in Utah. He complains that Tenille failed to submit the children’s report

cards or school records to support her contention that since moving to Utah, the children

are doing better in school, and that their grades and behavior have improved. However,

John has failed to proffer any evidence to contradict Tenille’s assertions. And, in their in

camera interviews with the Judge, three of the children reported that they liked their

school, friends, home and community in Utah. Consequently, we hold that the District

Court did not abuse its discretion by finding that the children “are happy and well

adjusted” and that they “like their school, friends, home and community in Utah.”

                               3. Tenille’s medical records

¶33    John complains that Tenille failed to disclose her medical records despite the

District Court’s order to do so. However, John admitted in his brief on appeal that he

wanted the medical information to attack Tenille’s credibility regarding the issue of

whether she could have obtained employment in Utah.

¶34    Side issues unrelated to the best interest of the child are irrelevant and cannot

support modification of a parenting plan. Marriage of Guffin v. Plaisted-Harman, 2010


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MT 100, ¶¶ 31-33, 356 Mont. 218, 232 P.3d 888. Therefore, we hold that the District

Court was correct in finding that there were no issues involving the mental and physical

health of the parties, and that this factor was evenly balanced.

                      4. Enforcing the court’s March 23, 2009 Order

¶35    John argues that the District Court failed to enforce its March 23, 2009 Order

when it did not require Tenille to move back to Billings. John states in his reply brief

that Tenille was allowed to move to Utah only under specific conditions defined by the

District Court’s Order. He contends that Tenille has willfully defied that Order for the

past three years. And, although John argues that this issue does not implicate Tenille’s

fundamental right to travel, we disagree.

¶36    We have noted previously that

       “the custodial parent who bears the burdens and responsibilities of raising
       the child is entitled, to the greatest possible extent, to the same freedom to
       seek a better life for herself or himself and the children as enjoyed by the
       noncustodial parent . . . [but that] . . . the custodial parent’s freedom is
       qualified by the special obligations of custody, the state’s interest in
       protecting the best interests of the child and the competing interests of the
       noncustodial parent.”

Matter of Custody of D.M.G., 1998 MT 1, ¶ 21, 287 Mont. 120, 951 P.2d 1377 (quoting

In re Marriage of Cole, 224 Mont. 207, 213, 729 P.2d 1276, 1280 (1986)).

¶37    Both the United States Supreme Court and this Court have recognized that the

right of interstate travel is a basic constitutional freedom. D.M.G., ¶ 12 (citing Memorial

Hospital v. Maricopa County, 415 U.S. 250, 254, 94 S. Ct. 1076, 1080 (1974)). While

this right is not mentioned in the federal constitution, the Supreme Court has determined

that “it is a right so fundamental and elementary that it was conceived from the beginning


                                             13
‘to be a necessary concomitant of the stronger Union the Constitution created.’ ”

D.M.G., ¶ 12 (quoting United States v. Guest, 383 U.S. 745, 758, 86 S. Ct. 1170, 1178

(1966)). The Supreme Court described it as the right “to migrate, resettle, find a new job,

and start a new life.” D.M.G., ¶ 12 (quoting Shapiro v. Thompson, 394 U.S. 618, 629, 89

S. Ct. 1322, 1328 (1969), overruled on other grounds, Edelman v. Jordan, 415 U.S. 651,

94 S. Ct. 1347 (1974)).

¶38    The Supreme Court also determined that because the right of interstate travel is

fundamental, a classification which operates to penalize those persons who exercise this

right must be justified by a compelling state interest. D.M.G., ¶ 12 (citing Memorial

Hospital, 415 U.S. at 258, 94 S. Ct. at 1082). Similarly, this Court stated:

              “We believe that furtherance of the best interests of a child, by
       assuring the maximum opportunities for the love, guidance and support of
       both natural parents, may constitute a compelling state interest worthy of
       reasonable interference with the right to travel interstate. We caution,
       however, that any interference with this fundamental right must be made
       cautiously, and may only be made in furtherance of the best interests of the
       child. To that end, we require the parent requesting the travel restriction to
       provide sufficient proof that a restriction is, in fact, in the best interests of
       the child.”

D.M.G., ¶ 22 (quoting Cole, 224 Mont. at 213, 729 P.2d at 1280-81) (internal citations

omitted).

¶39    In this case, Tenille argues that John bases the purported error on this issue solely

on the argument that Tenille should be punished for underperforming on her

commitments since moving to Utah. She maintains that in making this argument, John

has failed to show how it is in the best interests of the children to uproot them and force

them to move back to Montana. Tenille also points out that although she did not do so in


                                              14
the time frame that she originally related to the District Court, she obtained her GED in

March 2010, and she enrolled in classes at Utah State University in May 2010.

¶40       We conclude that John failed in his burden to prove that the best interests of the

children would require Tenille to relocate to Billings, and we hold that the District Court

did not abuse its discretion in refusing to interfere with Tenille’s fundamental right to

travel.

                                    5. Tenille’s credibility

¶41       John argues that the District Court abused its discretion by ignoring the issue of

Tenille’s credibility in the face of substantial and convincing evidence of her

untruthfulness. John further argues that the children’s best interests are not served by

allowing them to live with Tenille who John contends sets a terrible example for the

children as she is chronically unemployed and on public assistance.

¶42       The credibility of witnesses is a matter of fact left to the discretion of the trial

court, not a matter of law. “The district court determines the credibility of the witnesses

and the weight assigned to their respective testimony.” N.S., ¶ 25 (citing Kulstad v.

Maniaci, 2009 MT 326, ¶ 52, 352 Mont. 513, 220 P.3d 595; In re Marriage of McKenna,

2000 MT 58, ¶ 17, 299 Mont. 13, 996 P.2d 386). We will not substitute our judgment for

that of the district court on such matters since it is the duty and function of the district

court to resolve conflicts in the evidence. Oehlke, ¶ 21 (citing In re Marriage of Pearson,

1998 MT 236, ¶ 51, 291 Mont. 101, 965 P.2d 268).




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                                        Conclusion

¶43    We noted previously in this Opinion that a party seeking to modify a parenting

plan pursuant to § 40-4-219, MCA, carries a heavy burden of proof. Oehlke, ¶ 17 (citing

Gallagher, 266 Mont. at 361-62, 880 P.2d at 1306); see also D’Alton, ¶ 11. We conclude

that in this case, John failed in his burden to prove that the best interests of the parties’

children would be better served by requiring Tenille to relocate to Billings or, if she

refused to do so, by granting primary physical custody of the children to John.

¶44    Accordingly, we hold that the District Court did not err in denying John’s Motion

to Amend Parenting Plan.

¶45    Affirmed.



                                                                   /S/ JAMES C. NELSON



We Concur:


/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
/S/ JIM RICE




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