                                       No. 01-773

           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                     2002 MT 138N


In re the Parenting of
CHASE MATTHEW VRANISH.

KIANE KYM LISLE,

          Petitioner/Respondent,

and

MARCO LUCIUS VRANISH,

          Respondent/Appellant.



APPEAL FROM:       District Court of the Fifth Judicial District,
                   In and for the County of Beaverhead,
                   The Honorable Loren Tucker, Judge presiding.


COUNSEL OF RECORD:

          For Appellant:

                   J. Blaine Anderson, Jr., Attorney at Law, Dillon, Montana

          For Respondent:

                   Daniel R. Sweeney, Attorney at Law, Butte, Montana


                                            Submitted on Briefs: February 14, 2002

                                                       Decided:         June   20,   2002
Filed:


                   __________________________________________
                                     Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.

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

Operating Rules, the following decision shall not be cited as precedent but shall be filed as a

public document with the Clerk of the Supreme Court and shall be reported by case title,

Supreme Court cause number, and result to the State Reporter Publishing Company and to

West Group in the quarterly table of noncitable cases issued by this Court.

¶2     Marco Lucius Vranish, the natural father of Chase Matthew Vranish, appeals

from the Findings of Fact, Conclusions of Law, and Court Ordered Parenting Plan

entered by the District Court for the Fifth Judicial District in Beaverhead County,

which modified a temporary parenting plan by changing primary physical custody of

Chase from Marco to the child's natural mother, Kiane Kym Lisle. We affirm the

order of the District Court.

¶3     The sole issue on appeal is whether the District Court erred

when    it    modified       the    parenting       plan     of    Chase     Vranish      and

transferred primary physical custody from the child's father,

Marco, to the child's mother, Kiane.

                     FACTUAL AND PROCEDURAL BACKGROUND

¶4     Marco Lucius Vranish and Kiane Kym Lisle are the natural

parents of Chase Matthew Vranish, born March 3, 1995, in Dillon,

Montana.       The couple resided together in Dillon at the time of

Chase's birth and continued to live together until their separation

in the fall of 1997.               During the first two to three years of

Chase's life, Marco worked outside the home and provided financial


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support    while    Kiane   primarily         cared   for   Chase.      Upon   their

separation, Kiane moved to Bozeman, Montana, to attend Montana

State University.      Marco continued to work and reside in Dillon.

¶5   Both Marco and Kiane sought primary custody of Chase and on

January 23, 1998, a custody hearing was held.                 On January 27, 1998,

the District Court issued a temporary custody award which gave

primary custody of Chase to Marco.                The District Court found that

it was in Chase's best interest to reside primarily with Marco

given the stability of Marco's lifestyle.                     At the time of the

hearing,    Kiane    was    living   in       a   dormitory    at    Montana   State

University and her future plans were uncertain.                On the other hand,

Marco lived in the same two-bedroom house where he and Kiane had

resided during their relationship and was employed in a job he had

worked at for several years.
¶6   Following the award of primary custody to Marco, Marco and

Chase lived alone in Dillon for about nine months.                      Then Marco

married.    In May of 2000, Marco, his wife and Chase moved from

Dillon to Nampa, Idaho.          The move was precipitated by a work-

related injury which forced Marco to pursue job retraining.                    Marco

decided he wanted to attend a computer networking program at a

college in Boise, Idaho.

¶7   Shortly after arriving in Idaho, Marco, his wife and Chase

moved from Nampa to Boise.           Marco and his wife separated after

seventeen months, and divorced two months later.                     At that point,

Marco and Chase moved into the same apartment building in Boise as

Marco's mother (Chase's grandmother).                  Soon thereafter, Marco,



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Marco's mother, and Chase moved into a house which is where they

continue to reside.

¶8    Marco continued to attend classes in Boise at the time of his

appeal.      His class schedule varies depending on the semester, and

he usually does not attend class in the summer.              Marco hopes to

graduate with an associate's degree in June of 2002 and find

employment in either Boise or elsewhere upon graduation.

¶9    Since Marco's move to Idaho, Kiane's ability to visit Chase

has   been    limited   by    the   geographic   distance   between    the   two

parents.     Although Kiane was awarded custody for three weekends per

month pursuant to the 1998 temporary order, she was ordinarily able

to see Chase only one weekend per month.          In several months she was

unable to see Chase at all.         At no time since Marco's move to Idaho

has Kiane been able to exercise the parenting time she was awarded

by the 1998 temporary order.
¶10   For the past three years, Kiane has been employed on a full-

time basis with the Montana Department of Transportation.                    She

usually works regular hours during the winter and, in the summer,

works longer hours but on a more inconsistent basis.                  Kiane has

lived in Butte during that period, where she owns a two-bedroom

house near a local elementary school.

¶11   On September 8, 2000, Kiane filed a motion to modify the

parenting plan, and requested that she be designated as the primary

residential parent.          A hearing was held on Kiane's motion on May

31, 2001.       On June 12, 2001, the District Court modified its

previous temporary parenting plan, and designated Kiane the primary



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parent.      As adopted by the District Court, the parenting plan

designated Kiane as the primary custodial parent during the winter

months, and granted Marco parenting time every other weekend during

the school year, for all but two weeks during the summer, and on

alternating holidays.     On June 14, 2001, the District Court issued

its final judgment with findings of fact and conclusions of law in

support of its decision.        It is from that final judgment that Marco

appealed on July 20, 2001.

                           STANDARD OF REVIEW
¶12    We review a district court's findings of fact relating to

custody   modification    to    determine   whether    those   findings   are

clearly erroneous.      In re Marriage of McClain (1993), 257 Mont.

371, 374, 849 P.2d 194, 196.          Findings are clearly erroneous if

they   are    not   supported    by   substantial     evidence,    the   court

misapprehends the effect of the evidence, or this Court's review of

the record convinces it that a mistake has been made.             McClain, 257

Mont. at 374, 849 P.2d at 196.             If the findings upon which a

decision is predicated are not clearly erroneous, we will reverse

the district court's decision to modify custody only where an abuse

of discretion is clearly demonstrated.         In re Paternity and Custody

of A.D.V., 2001 MT 74, ¶ 8, 305 Mont. 62, ¶ 8, 22 P.3d 1124, ¶ 8.

¶13    The standard of review of a district court's conclusions of

law is whether the court's interpretation of the law is correct.

In re Marriage of Syverson (1997), 281 Mont. 1, 15-16, 931 P.2d

691, 700.

                                  DISCUSSION



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¶14    The sole issue on appeal is whether the District Court erred

when    it    modified   the    parenting       plan   of   Chase   Vranish   and

transferred primary physical custody from the child's father,

Marco, to the child's mother, Kiane.

¶15    Marco contends that the District Court's decision to modify

Chase’s parenting plan was based on clearly erroneous findings of

fact and incorrect conclusions of law.

A.    Findings of Fact

¶16    With   respect    to    the   findings    of    fact,   Marco   challenges

Findings of Fact Nos. 2, 4, and 10.                    Finding of Fact No. 2

provides:
            During the first two or three years of the child's
       life the dominant portion of care for him was provided by
       Mother. From three years of age until approximately six
       years of age the dominant portion of care for him was
       provided by Father.

Marco alleges that both parties provided for Chase's care during

the first two or three years of his life when the parties resided

together in Dillon.       Furthermore, Marco contends that the Court's

finding that the parents each have provided dominant care of Chase

half the time had a substantial impact on the District Court's

decision.

¶17    First, we conclude that the District Court's finding is

supported by substantial evidence and was not clearly erroneous.

In fact, Marco testified as follows:

       Q:     Okay. Marco, Kiane testified that during the first
              three years of Chase's life that she almost
              exclusively raised him. Is that correct?

       A:     For the most part, yes.



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¶18   Second,   consistent   with   the   Legislature's   repeal    of   the

presumption that custody should be awarded to the parent who has

provided most of the child's primary care (see § 40-4-212(3)(b),

MCA (1995)), it does not appear that Finding of Fact No. 2, when

read in the context of the Court's entire decision, was a primary

reason for its decision.

¶19   Marco next challenges Finding of Fact No. 4, which provides:

           Now the situation is reversed. Father is in school.
       He will graduate in June 2002. His future occupation
      and location are uncertain. There are changes in his
      school class schedule from time to time. Since the time
      of the temporary order, Father has lived singly, married,
      singly, and now single with the addition of the child's
      grandmother in his home. In contrast, Mother now has
      steady and permanent full-time employment.     She has a
      certain fixed long term residence.
Marco alleges that the Court's finding that Kiane's situation and

residence are permanent and that Marco's situation and future are

uncertain is clearly erroneous.           However, substantial evidence

again supports the District Court’s finding.           As stated by the

District Court, the situation has basically reversed.              Although

Marco may have more time to spend with Chase because of the

flexibility in his class schedule, his future is uncertain.           On the

other   hand,    Kiane’s   career   and   living   situation   have      both

stabilized.     We conclude that Finding of Fact No. 4 is not clearly

erroneous.

¶20   Finding of Fact No. 10 provides, "There will be no harm to the

child in making a change.     He is not yet in an academic portion of

his school."     Marco contends there were no facts adduced at the

hearing to show that there would be no harm to Chase as a result of



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 changing his primary custodial parent.                Marco contends that

because the law favors continuity and stability in care, a change

in schools is not the only factor to consider when determining

whether harm will result to the child from a change in custody.

¶21   While Marco is correct, we interpret the District Court's

finding as an honest effort to balance all relevant parenting

factors and determine what was in the best interests of Chase, as

required by § 40-4-212, MCA.      We interpret Finding of Fact No. 10

as simply the District Court's recognition of Chase's current

educational situation to the extent that it was a factor.                     The

Court's    reasoning   is   consistent    with    its    responsibility        to

determine the best interests of the child.              The finding that no

harm would occur, in this case, needs to be considered in the

context of all the District Court's findings.            Here, the District

Court was addressing how a change in the parenting plan may impact

Chase’s education.      We find no error in the District Court’s

finding.
B.    Conclusions of Law

¶22   Marco   challenges    Conclusions   of     Law   Nos.   7,   8,   and   9.

Conclusion of Law No. 7 provides:

           Where the child can thrive with either parent and
      where Father has had the benefit of principal residential
      time with the child, an additional minor consideration is
      that equity will be served by allowing Mother an
      opportunity to have principal residential time with the
      child.

Marco contends that the District Court incorrectly considered the

parents' interests in its determination, and, in turn, failed to




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properly consider the changed circumstances and best interests of

the child, as required in § 40-4-212, MCA, and § 40-4-219, MCA.

¶23    In response, Kiane contends that Conclusion of Law No. 7 needs

to be read in relationship to the District Court's Findings of Fact

Nos. 3 through 7, as well as Conclusions of Law Nos. 1 through 4,

which address the change of circumstances and best interests of

Chase.

¶24    We agree that the appropriate inquiry is the best interests of

Chase – not his parents, and that those interests are to be

determined based on the criteria set forth at § 40-4-212, MCA, and

§ 40-4-219, MCA.      However, we also agree that the Findings of Fact

and Conclusions of Law cited by Kiane address the appropriate

statutory criteria.        Therefore, the Court’s conclusion that “an

additional minor consideration is that equity will be served by

allowing Mother an opportunity to have principal residential time

with the child,” is superfluous and was not the primary basis for

its decision.
¶25    Marco   next   contends    that         Conclusion    of   Law   No.   8   was

incorrect.     Conclusion of Law No. 8 provides, "Not all of the

factors enumerated are of equal weight.                     However, all of them

suggest the same conclusion, that Mother should have parenting

opportunities which have been unavailable to her."                 Marco contends

that   Conclusion     of   Law   No.   8       incorrectly   considers    the     best

interests of Kiane, not the best interests of Chase.

¶26    However, as discussed above, Conclusion of Law No. 8 follows

the findings of fact and several other conclusions of law which



                                           9
directly address the statutory criteria dealing with the best

interests of the child.       Furthermore, it is more in the nature of

an observation than a conclusion of law and does not appear to have

been the basis for the District Court's decision.              We, therefore,

conclude that it does not provide a reason to set aside the

District Court's decision.

¶27   Marco also challenges Conclusion of Law No. 9, which provides,

"There will be no harm to the child in making a change.             He is not

yet in an academic portion of his school.              He can thrive with

either parent."       While, again, this is incorrectly identified as a

conclusion of law, Marco contends that there was no evidence to

support it.     According to Marco, without expert testimony, the

District Court could not have found that living with Kiane would

not affect him academically.        However, neither party introduced any

evidence regarding the effect of attending a different school in

the   first   grade    than   the   one    attended   during    kindergarten.

Therefore, the District Court’s inference was probably drawn from

the lack of any contention to the contrary.              Regardless of the

observation denominated in Conclusion of Law No. 9, the District

Court’s finding that the best interests of Chase are served by

modifying the parenting plan to give primary custody to Kiane was

supported by substantial evidence and was not clearly erroneous.
¶28   As a final issue, Marco contends that the District Court

failed to consider several other factors listed in § 40-4-212, MCA.

 Specifically, Marco contends that the District Court ignored the

close and stable relationship between Chase and his grandmother,



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the adjustments Chase had made to his home, school and community in

Idaho, the fact that Marco had been Chase’s primary caretaker for

the    previous    three    years,   that    any   interruption   in     their

relationship      would    detrimentally     effect   the   continuity    and

stability of Chase's care, and that under the 1998 temporary order,

both parents had continuing and frequent contact with Chase.

¶29   Although some relevant factors may not have been expressly set

forth in the District Court's decision, after careful review of the

order we disagree that the relevant factors were not considered.

Based on the temporary nature of the original order and Marco’s

move to Idaho, the District Court had a right to examine Kiane's

request to modify the parenting order and determine the best

interests of the child.         The District Court considered (1) the

changes that had occurred since the 1998 temporary order, (2) the

comparative living situations of both Marco and Kiane, and (3) the

prospects for future stability.
¶30   We conclude that the District Court's findings were not

clearly erroneous and that it correctly applied the law to its

decision.

¶31   For these reasons, we affirm the order of the District Court.


                                            /S/ TERRY N. TRIEWEILER

We Concur:


/S/   KARLA M. GRAY
/S/   PATRICIA COTTER
/S/   JIM REGNIER
/S/   W. WILLIAM LEAPHART




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