                                                                                                10/10/2017


                                            DA 17-0041
                                                                                            Case Number: DA 17-0041

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                            2017 MT 249


IN RE THE PARENTING OF:

R.J.N. and H.E.N.,

                Minor Children.

CHELLIE NEWMAN,

                Petitioner and Appellant,

         and

WILLIAM H. NEWMAN,

                Respondent and Appellee.

APPEAL FROM:            District Court of the Eighteenth Judicial District,
                        In and For the County of Gallatin, Cause No. DR-07-12C
                        Honorable John C. Brown, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Jeremy S. Yellin, Attorney at Law, Havre, Montana

                 For Appellee:

                        John P. Nesbitt, Jr., Attorney at Law, Bozeman, Montana



                                                    Submitted on Briefs: August 30, 2017

                                                                Decided: October 10, 2017


Filed:

                        __________________________________________
                                          Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Chellie Newman (Chellie) appeals the summary dismissal of her petition to modify

the parenting plan for her two sons with William Newman (William), by the Eighteenth

Judicial District Court, Gallatin County. We affirm, addressing the following issue:

      Did the District Court err by dismissing the petition to modify the parenting plan
without conducting a hearing?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶2     Chellie and William were married in 1999 and had two children together, R.J.N.

and H.E.N. The marriage was dissolved in 2007, and the parties’ stipulated parenting plan

was approved and ordered.

¶3     In 2011, Chellie gave notice of her intention to move to California, and proposed a

parenting plan amendment that would substantially restrict William’s time with the

children. In response, William also moved to modify the parenting plan. The Standing

Master conducted a hearing on the proposed modifications and, on January 10, 2013,

entered findings of fact, conclusions of law and an order adopting an amended parenting

plan that provided the children would spend a majority of their time with William. The

Master concluded that a threshold change of circumstances necessitating a hearing had

occurred because of Chellie’s intention to relocate to California with the children, and her

asserted “acts of parental alienation” against William. The Master found that Chellie had

“engaged in various acts which are forms of parental alienation,” including refusing to

allow William to exercise his scheduled time with the children despite his repeated

requests, and found that there was “strong evidence that Father’s relationship with his
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children has been severely damaged as a result of [Chellie’s] proposed relocation to

California with the children.”

¶4     In February 2015, Chellie moved to modify the 2013 Amended Parenting Plan. Her

motion stated “[t]he basis for this motion is that R.J.N. will be fifteen [15] years of age as

of April, 2015, and H.E.N. is twelve [12] years of age, and both children desire a change

from the children residing primarily with [William] to a new parenting plan where they

reside primarily with [Chellie.]” Her supporting affidavit simply reiterated the children’s

ages and their desire to live primarily with Chellie. William moved to dismiss Chellie’s

motion, arguing that it failed to demonstrate changed circumstances necessary for a hearing

to be conducted on modification of the parenting plan. The Master entered an order

summarily denying Chellie’s motion. Chellie filed objections, arguing the Master should

have held an evidentiary hearing and conducted an in camera interview of the children.

After briefing and a hearing in which argument was received, the District Court affirmed

the order, reasoning that “Chellie failed to meet the threshold showing for a hearing, and

the Standing Master correctly granted [William’s] Motion to Dismiss. . . .” Chellie appeals.

                                 STANDARD OF REVIEW

¶5     When considering parenting plan modifications, we review conclusions of law for

whether they are correct. In re Marriage of Guffin, 2010 MT 100, ¶ 20, 356 Mont. 218,

232 P.3d 888. Two standards of review are relevant in a case involving both a standing

master and the district court: the standard the district court applies to the master's report

and the standard we apply to the district court’s decision. In re Marriage of Davis, 2016

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MT 52, ¶ 4, 382 Mont. 378, 367 P.3d 400 (citing In re Marriage of Kostelnik, 2015 MT

283, ¶ 15, 381 Mont. 182, 357 P.3d 912). We review a district court’s decision de novo to

determine whether it applied the correct standard of review to a standing master’s findings

of fact and conclusions of law. Kostelnik, ¶ 15 (citing In re Marriage of Patton, 2015 MT

7, ¶ 17, 378 Mont. 22, 340 P.3d 1242). A district court reviews a standing master’s findings

of fact for clear error, Patton, ¶ 24, and its conclusions of law to determine if they are

correct. Patton, ¶ 43.

                                      DISCUSSION

¶6    Did the District Court err by dismissing the petition to modify the parenting plan
without conducting a hearing?

¶7     Chellie argues that because one of the children was fourteen years of age, and

wished to reside primarily with her, these circumstances provided sufficient grounds to

warrant a hearing on her proposed modification to the parenting plan. William responds

that the Standing Master and District Court correctly concluded Chellie did not satisfy her

burden under the statute to establish a change in circumstances necessary to justify a

hearing on modification.

¶8     Section 40-4-219(1), MCA, provides the standards for modification of a parenting

plan, requiring a change of circumstances to have occurred and a finding that an

amendment is necessary to serve the best interest of the child:

       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.
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As provided, these standards are to be satisfied “upon the basis of facts that have arisen

since the prior plan or that were unknown to the court at the time of the entry of the prior

plan.” Section 40-4-219(1), MCA.

¶9     Pursuant to § 40-4-220(1), MCA, the party seeking modification “must file a motion

and supporting affidavit showing cause for modification.” In re Marriage of D’Alton, 2009

MT 184, ¶ 9, 351 Mont. 51, 209 P.3d 251. Requests for parenting plan modifications “must

satisfy an initial statutory threshold of changed circumstances.” In re Marriage of Whyte,

2012 MT 45, ¶ 23, 364 Mont. 219, 272 P.3d 102; D’Alton, ¶ 9. A demonstration of changed

circumstances is a “prerequisite” to amendment of a parenting plan, and “a district court

may not modify an existing custody arrangement” without such a finding. In re Marriage

of Jacobsen, 2006 MT 212, ¶ 17, 333 Mont. 323, 142 P.2d 859 (citing In re Marriage of

Oehlke, 2002 MT 79, ¶ 12, 309 Mont. 254, 46 P.3d 49). The party seeking modification

of a parenting plan “carries a heavy burden of proof.” D’Alton, ¶ 11. Section 40-4-220(1),

MCA, provides that a court “shall deny the motion unless it finds that adequate cause for

hearing the motion is established by the affidavits, based on the best interest of the child,

in which case it shall set a date for hearing . . . .”

¶10    Here, Chellie argues the District Court erred in denying her request for a hearing.

The District Court concluded that the assertions in Chellie’s motion and affidavit about

R.J.N.’s age and the children’s desire to live primarily with her “do not constitute a

sufficiently changed circumstance warranting a hearing under § 40-4-220(1), MCA.” It

cited our statement in D’Alton that “the mere aging of children so that they are now in
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school could hardly be considered ‘unknown to the court at the time of the entry of the

prior plan’ as required by § 40-4-219(1), MCA,” D’Alton, ¶ 11, to conclude that “[t]he

mere passage of time is not sufficient to establish a changed circumstance of the child.”

¶11    We recognize that one of the statutory criteria in determining a child’s best interest

is whether “the child is 14 years of age or older and desires the amendment,” which the

District Court may discretionarily consider and weigh. Section 40-4-219(1)(c), MCA.

While we have not adopted a blanket rule that the aging of a child, in conjunction with

consideration of his or her desires, can never constitute a change in circumstances

warranting a hearing on modification, we agree with the District Court’s conclusion that

such a change was not demonstrated here. The parties’ parenting plan was recently revised

after substantial litigation, and though the children’s wishes were not expressly considered

at that time, their ages were noted and their circumstances were extensively assessed.

Chellie’s pleadings simply noted the children’s current ages and their desire to live

primarily with her. With nothing more, Chellie’s assertions appeared to merely return the

case to the core issue litigated shortly before, in 2013: Chellie’s desire to have the children

move with her to California, a plan that was found at that time to have “severely damaged”

the children’s relationship with William.

¶12    A district court has “broad discretion when considering the parenting of a child.” In

re Marriage of Tummarello, 2012 MT 18, ¶ 34, 363 Mont. 387, 270 P.3d 28. However, in

a modification context, such discretion is contoured by an initial determination of changed

circumstances, a legal conclusion. See, e.g., Jacobsen, ¶ 17; Oehlke, ¶ 12; Whyte, ¶ 28.

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The statute promotes stability for the children and discourages unnecessary litigation over

parenting plans. Whyte, ¶ 23. We conclude the District Court correctly concluded that the

Standing Master’s decision dismissing the petition was legally correct as failing to

demonstrate a change in circumstances.

¶13   Affirmed.



                                                /S/ JIM RICE


We concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ BETH BAKER




Justice Beth Baker, concurring.

¶14   In light of the statutory standards for amendment of a parenting plan and our case

law, the circumstances of this case—particularly the recent litigation over the parenting

plan—did not mandate a hearing as a matter of law on Chellie’s petition, and I agree with

the Court’s disposition of her appeal. But today’s decision should not be read to minimize

the expressed wishes of teenaged children who are coping with their separated families.

¶15   I agree with most of what Justice McKinnon expresses in her Dissent. The problem

is that § 40-4-219, MCA, requires a showing of changed circumstances “and that the

amendment is necessary to serve the best interest of the child.” (Emphasis added.) The

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statute provides that a teenage child’s wishes are to be considered “[i]n determining the

child’s best interest,” not in determining whether there has been a change in circumstances.

Section 40-4-219(1), MCA. We thus have held that age alone does not automatically

qualify as a “changed circumstance” sufficient to justify a parenting plan amendment. See

D’Alton, ¶ 11 (concluding that children’s “changed circumstances” of being six years older

than at time of parenting plan did not “satisfy the initial threshold criteria for this Court to

order a show cause hearing to amend the parenting plan”); Whyte, ¶ 24 (holding that change

in child’s age did not constitute a “changed circumstance” sufficient to justify district

court’s amendment of the parties’ parenting plan). But as a child grows up, that child’s

circumstances may change in myriad ways that no one thought about when the parenting

plan was adopted. Developments in a child’s life, seemingly routine from a court’s

perspective, may have significant consequences to an adolescent at a vulnerable time in

life. The child’s wishes are entitled to serious consideration in order to protect the best

interest of the child, even if it means dragging the court back into the family’s affairs.

¶16    In light of the language and interpretation of the statute, parents who want to

maintain control over the governance of their own family may be able to prevent ongoing

court involvement by negotiating parenting plans in the first place that acknowledge the

importance of their children’s changing needs and desires as the children grow up. For

example, parents could agree to an opportunity for review of the plan and of the child’s

best interest if the child expresses a desire to change the plan after turning fourteen. This

assumes, of course, that the parents start with the child’s best interest truly at heart and

                                           8
maintain that focus on putting the child’s interest first. That is key to the success of any

parenting plan.   To guard against manipulation, the parenting plan could include a

requirement that the moving party pay the other parent’s attorney fees if the court

determines that a modification request is not pursued in good faith based on the child’s best

interest.

¶17    It is important that parties have effective and equal access to the courts to resolve

contentious parenting disputes, or in cases where collaborative solutions are not

appropriate given the family’s dynamics. But court processes can be inadequate means to

handle “the custody and placement of innocent children.” In re Brockington, 2017 MT 92,

¶ 37, 387 Mont. 260, 400 P.3d 205 (McGrath, C.J., dissenting); see also Whyte, ¶ 45 (Baker,

J., dissenting). Participants in our justice system must continue to find ways to help

families recognize the best interest of their children and meet the needs of all family

members without court intervention. If court intervention is needed, the district court is in

the best position to determine the weight to be given a child’s expressed desires. See In re

Marriage of Graham, 2008 MT 435, ¶ 8, 347 Mont. 483, 199 P.3d 211; In re Marriage of

Burk, 2002 MT 173, ¶¶ 20-24, 310 Mont. 498, 51 P.3d 1149. In most cases the court at

least should consider those desires before summarily denying a motion to amend. Here,

however, Chellie’s petition fell short of what we have required to compel a hearing.


                                                  /S/ BETH BAKER




                                          9
Justice Laurie McKinnon, dissenting.

¶18    Section 40-4-219, MCA, is the statute in Montana dedicated to amending parenting

plans. A court may amend a parenting plan if it finds, upon the basis of facts that have

arisen since the prior parenting plan, that: (1) a change in the circumstances of the child

has occurred, and (2) the amendment is necessary to serve the best interests of the child.

Section 40-4-219(1), MCA. Section 40-4-219, MCA, directs the court in its substantive

analysis of whether an amendment is necessary. Importantly, § 40-4-219(1)(c), MCA,

expressly provides that the court may consider that “the child is 14 years of age or older

and desires the amendment.” Other statutory factors warranting further inquiry by the

court, which are also expressly set forth, are whether “the parents agree to the amendment,”

§ 40-4-219(1)(a), MCA; whether “the child has been integrated into the family of the

petitioner with consent of the parents,” § 40-4-219(1)(b), MCA; whether “one parent has

willfully and consistently . . . refused to allow the child to have any contact with the other

parent” or “attempted to frustrate or deny contact with the child . . . ,” § 40-4-219(1)(d),

MCA; and, whether one parent has changed “the child’s residence in a manner that

significantly affects the child’s contact with the other parent,” § 40-4-219(1)(e), MCA.

The Legislature enumerated these specific considerations on equal footing and priority,

thus indicating that a child who is 14 years of age is entitled to have his or her wishes

considered for purposes of amending a parenting plan. Importantly, § 40-4-219(1)(c),

MCA, which is set forth in a statute dedicated to amending a parenting plan, is distinct

from the requirement that the court consider “the wishes of the child” when determining

                                          10
the child’s best interests at the initial parenting plan proceeding pursuant to § 40-4-212,

MCA. Section 40-4-212(1)(b), MCA.

¶19    Section 40-4-220, MCA, provides the procedure for invoking the provisions of

§ 40-4-219, MCA. Section 40-4-220(1), MCA, requires that, in the absence of agreement,

the party seeking an amendment must file an affidavit setting forth facts supporting the

amendment. Here, Chellie gave notice in February 2015 that she wanted to amend the

2013 parenting plan on the basis that R.J.N. was almost 15 years old and H.E.N. was 12

years old, and both wanted to reside primarily with Chellie. At the time the District Court

affirmed the Standing Master’s dismissal of Chellie’s petition, R.J.N. was close to 17 years

old and H.E.N. was 14 years old. Chellie’s motion was supported by an affidavit indicating

that both R.J.N. and H.E.N. wished to amend the parenting plan. No opposing affidavit

was filed by William.

¶20    I would conclude that Chellie’s motion and affidavit, together with the express

provision of § 40-4-219(1)(c), MCA, presented “adequate cause for hearing [Chellie’s]

motion” and that a hearing on an order to show cause should have been granted. Section

40-4-220(1), MCA. The District Court, however, concluded on the basis of In re Whyte

that “despite R.J.N.’s age and apparent desire to amend the Parenting Plan (even if

established at an evidentiary hearing), these facts alone do not constitute a sufficiently

changed circumstance warranting a hearing under § 40-4-220(1), MCA.” The District

Court observed that “Chellie failed to cite any case, nor has this Court come across any

such Montana case in its research, that supports Chellie’s position.”

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¶21    In my opinion, the provisions of § 40-4-219(1)(c), MCA, supported Chellie’s

request and she did not need to recite authority from this Court to merit further inquiry into

her children’s wishes. This Court, however, states it agrees “with the District Court’s

conclusion that such a change [of circumstances] was not demonstrated here” and that

“Chellie’s pleadings simply noted the children’s current ages and their desire to live

primarily with her.” Opinion, ¶ 11. Where no opposing affidavit contests the applicability

of § 40-4-219(1)(c), MCA, or sets forth other facts relevant to the children’s best interests,

Chellie has met the threshold inquiry of demonstrating the children desire an amendment

and there is adequate cause for a hearing. We are not addressing here whether an amended

parenting plan should have been granted; rather, we are deciding whether a hearing should

have been ordered because a child 14 years of age or older desired an amendment. Indeed,

filed with Chellie’s motion was a request that the court inquire into the children’s wishes

in the privacy of the court’s chambers.

¶22    Importantly, the District Court did not base its decision on the findings this Court

makes: that the parenting plan was recently revised after substantial litigation; that the

children’s wishes were not expressly considered in previous litigation, but their

circumstances were extensively assessed; and that Chellie’s assertions appeared to merely

return the case to the core issue litigated in 2013. Opinion, ¶ 11. None of these findings

were made or even noted by the District Court. The District Court determined, as a matter

of law, that a child who is 14 years of age and desires an amendment has not met the

threshold inquiry of demonstrating a substantial change in circumstances. To be more

                                          12
precise, the District Court reviewed the Standing Master’s order dismissing Chellie’s

petition for the reasons “set forth in [William’s] Motion and Reply.” I cannot accept that

this gave adequate consideration to Chellie’s motion in light of the specific statutory

provision requiring an adolescent’s wishes be heard.

¶23    In In re Whyte, a trial court granted a Mother’s motion to amend a parenting plan

and this Court reversed. In re Whyte, ¶¶ 12, 24. The trial court expressly considered the

wishes of an eleven year old child and other circumstances in the child’s life. In re Whyte,

¶ 12. We vacated the amended parenting plan, concluding that the evidence the trial court

received was “insufficient to establish the statutory standard for amendment of the

parenting plan.” In re Whyte, ¶ 24. In our analysis of § 40-4-219(1)(c), MCA, we stated,

“[w]hile consideration of the child’s desires is statutorily required when the child is 14

years old, the ultimate decision is for the court to make, based upon the evidence, and

cannot be delegated to the child.” In re Whyte, ¶ 28 (emphasis added). Thus, in In re

Whyte we expressly stated that § 40-4-219(1)(c), MCA, requires a court consider the child’s

desires when the child is fourteen years old. We determined the provision did not apply to

the parenting plan at issue in In re Whyte because the child was only eleven years old. In

re Whyte, ¶ 28. Here, in contrast, Chellie provided an affidavit that the children, at least

one of them older than 14, desired an amendment pursuant to § 40-4-219(1)(c), MCA. No

opposing evidence was presented. It is patently clear that the District Court dismissed the

petition on what it believed was a matter of law. Although we add facts to our decision

which were not articulated by the District Court so the court’s dismissal might be justified,

                                         13
our conclusion that Chellie has not met her threshold statutory burden conveys to an

adolescent that his or her growth, maturity, and desire to direct and take control of his or

her own life is not worthy of a hearing and consideration by the court. I am very much

opposed to the suggestion that a child’s voice does not merit consideration by a court in a

parenting proceeding, particularly when the Legislature has concluded otherwise.

¶24    In 1983 the Legislature added what is now § 40-4-219(1)(c), MCA. SB 371, 48th

Leg. (Mont. 1983). The provision, introduced as Senate Bill 371, was titled, “An Act

Providing that if it is in the Best Interest of the Child, a Child Custody Decree May be

Modified When a Child Aged 14 Years or Older Desires that it be Modified; Amending

Section 40-4-219, MCA.” Proponents of the provision expressed concern that, under the

existing statutory framework, a child of appropriate age was disenfranchised from

expressing his or her wishes and desires as to a parenting plan amendment. Senate

Committee on Judiciary Hearing, Exhibit A, 1 (February 11, 1983). Proponents believed

that “our young people have a right to input their desires requesting a custody modification

upon a court.” Senate Judiciary Committee Hearing, Exhibit A, 1 (February 11, 1983).

The Senate intended the provision to “allow a 14-year-old child to express their desires as

to which parent they are placed with” without binding the court to the child’s desires.

Senate Judiciary Committee Hearing Minutes, 4 (February 15, 1983). The House of

Representatives noted that the provision would not permit a child to choose who he or she

lived with “as a matter of right,” but instead the provision would allow a judge to take a

child’s desire “into consideration once the child reaches [age 14].” House Judiciary

                                         14
Committee Hearing Minutes, 6 (March 14, 1983). Despite subsequent amendments to

§ 40-4-219, MCA, a child of age 14 or older still has the right to express his or her desire

for an amended parenting plan pursuant to § 40-4-219(1)(c), MCA, and we must ensure

that right is protected.

¶25    Contested parenting proceedings are hard for everyone—the parents, the family, the

witnesses, the court; but most particularly, the children for whom the proceedings are

designed to serve and protect. The proceeding should not shut out the voice of the very

individual upon which the proceeding is focused. While the court obviously is not required

to adopt a parenting plan consistent with the child’s wishes, it is nonetheless important for

the child that he or she is heard by the court. Given the contentious nature and substantial

amount of litigation in these proceedings, as noted by the Court, it would seem particularly

appropriate that the voices and wishes of R.J.N. and H.E.N.—here, two adolescents—be

heard, through any means the court deemed appropriate. At least, in such a fashion, they

would have the benefit of knowing that their wishes were heard and considered. In my

opinion and as explained above, this was what the Legislature contemplated when it

allowed for the amendment of a parenting plan to consider the wishes of a child who is 14

years of age or older. Section 40-4-219(1)(c), MCA.

¶26    I respectfully dissent from the Court’s decision that Chellie’s motion and

uncontroverted affidavit did not establish adequate cause for a hearing.



                                                  /S/ LAURIE McKINNON

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