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                                                                No. 00-184



                           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             2001 MT 151N




IN RE THE MARRIAGE OF

DAWN LEONA BROADBENT,



Petitioner and Respondent,



v.



RONALD LESLIE BROADBENT,



Respondent and Appellant.




APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable Russell C. Fagg, Judge presiding.




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COUNSEL OF RECORD:



For Appellant:



Mark D. Parker, Casey Heitz, Parker Law Firm, Billings, Montana



For Respondent:



Linda Harris, Harris Law Firm, P.C., Billings, Montana




Submitted on Briefs: May 17, 2001

Decided: August 9, 2001

Filed:




__________________________________________

Clerk



Justice Jim Regnier delivered the Opinion of the Court.

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


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        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.   ¶Ronald Broadbent appeals from the Order and Memorandum issued by the
        Thirteenth Judicial District Court, Yellowstone County, denying his motion to alter
        or amend. We affirm in part, reverse in part, and remand for proceedings consistent
        with this opinion.
   3.   ¶Ron raises the following issues in his appeal:
   4.   ¶1. Whether the District Court abused its discretion by deciding the parenting
        schedule prior to Ron's presentation of evidence?
   5.   ¶2. Whether the District Court erred by issuing inconsistent child custody schedules?
   6.   ¶3. Whether the District Court erred when it denied Ron a dependency exemption?

                                                         BACKGROUND

   1. ¶Dawn and Ron Broadbent were married on December 17, 1994, in Billings,
      Montana. The parties had one child, Kyle, who was born on February 8, 1996. On
      April 8, 1998, Dawn filed a Petition for Dissolution. The District Court held a non-
      jury trial on December 3, 1998, and issued its Findings of Fact and Conclusions of
      Law, which included a Final Parenting Plan, on December 14, 1998. The court
      entered a Final Decree of Dissolution of Marriage on November 12, 1999.
   2. ¶On December 7, 1999, Ron filed a motion to alter or amend seeking modification
      of the parenting arrangement of the parties and related child support provisions. In a
      supporting affidavit, Ron averred that he had modified his work schedule to account
      for the District Court's concerns regarding his lack of sleep during certain visitation
      periods, that he had custody of Kyle for over 50% of the time, and that an informal
      custodial arrangement reached by the parties differed from that ordered by the court.
      Dawn responded that the informal custodial arrangement reached by the parties was
      actually the product of a unilateral decision by Ron to take every other Thursday off
      and to assume custody of Kyle on those days. The District Court issued an order on
      January 25, 2000, denying Ron's motion to alter or amend. The court determined
      that Ron's motion was really a motion to alter or amend the Final Parenting Plan
      and, as such, must be pursued pursuant to the alternative dispute resolution
      provision of the plan.
   3. ¶On January 31, 2000, Dawn filed a motion for order enforcing the parenting plan


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        and motion for contempt for Ron's failure to follow the custodial schedule
        established in the Final Parenting Plan issued on December 14, 1998. The court held
        a show cause hearing on Dawn's motions on February 24, 2000, at which time the
        parties stipulated that they would comply with the terms of the Final Parenting Plan.
        Ron appeals from the District Court's denial of his motion to alter or amend and all
        other judgments and orders contained therein. Dawn has not filed a responsive brief.

                                                  STANDARD OF REVIEW

    1. ¶Our standard of review for a district court's award of child custody is whether the
        district court's findings are clearly erroneous. When the findings are supported by
        substantial credible evidence, we will affirm the district court's decision unless a
        clear abuse of discretion is shown. In re Marriage of Baer, 1998 MT 29, ¶ 18, 287
        Mont. 322, ¶ 18, 954 P.2d 1125, ¶ 18.

                                                              ISSUE ONE

    1. ¶Whether the District Court abused its discretion by deciding the parenting schedule
       prior to Ron's presentation of evidence?
    2. ¶At the end of Dawn's presentation of her case on her petition for dissolution, during
       Dawn's counsel's redirect examination of Dawn, the following exchange occurred:

Q. If I understand [Ron's] testimony, he says he sleeps four or five hours on Sunday
between his shift. He then is prepared to go in excess of 24 hours?



A. Yes.



Q. Do you think it's in Kyle's best interests?



A. No.



The Court: You don't have to go any further. I have made up [my] mind on the parenting

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plan, so-- I shouldn't say I have made up my mind. I have a good inclination.



    1. ¶Ron insists that the District Court's statement, prior to hearing the presentation of
       his case, demonstrates that the court acted arbitrarily and showed a lack of concern
       for Ron's parenting rights. Ron requests that we grant him a new trial in order to
       allow him to present all relevant evidence to the court.
    2. ¶The District Court's statement, without more, is not sufficient evidence that the
       court's final parenting plan was arbitrary. Significantly, the court's statement was
       made after Ron had already testified concerning parenting issues in Dawn's case in
       chief. Furthermore, Ron has not pointed us to any evidence which the court
       arbitrarily ignored when it determined a child custody schedule. In fact, it appears
       that the court attempted to account for the relevant evidence, namely Ron's work
       schedule, in establishing a final parenting plan. The court found that Ron's work
       schedule required him to work Sunday night until Monday morning and accordingly
       provided that Kyle should be with Dawn Monday evening and night to allow Ron to
       rest and to provide the best possible environment for Kyle.

                                                             ISSUE TWO

    1. ¶Whether the District Court erred by issuing inconsistent child custody schedules?
    2. ¶Ron observes that the District Court issued two inconsistent custody schedules. In
       its Final Parenting Plan, adopted pursuant to its Findings of Fact and Conclusions of
       Law issued on December 14, 1998, the District Court provided that Ron have
       custody of Kyle on Mondays from 7:00 a.m. until 4:30 p.m., Tuesday mornings
       through Thursday afternoons, and Friday mornings from 7:00 a.m. until 12:30 p.m.
       However, in its Final Decree of Dissolution of Marriage issued on November 12,
       1999, the court provided that Ron have custody of Kyle on Mondays at 7:00 a.m.
       until Wednesday afternoons, and Thursdays and Fridays from 7:00 a.m. to 12:30 p.
       m. Ron contends that these inconsistent orders require us to remand the matter back
       to the District Court for a new trial. We disagree that a new trial is necessary.
    3. ¶There seems to be no explanation for the difference between the District Court's
       differing custody schedules. The record does not contain evidence of any hearings
       held or pleadings filed between the District Court's issuance of its Final Parenting
       Plan on December 15, 1998, and the court's issuance of its Final Decree of
       Dissolution of Marriage on November 12, 1999. However, we note that the parties
       have stipulated below after the Decree was entered that they would comply with the

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       provisions of the Final Parenting Plan. This stipulation was further made the subject
       of an order entered by the court on March 10, 2000. Accordingly, the inconsistency
       between the two custody schedules appears for all intents and purposes to be a non-
       issue.
    4. ¶However, we remand this matter to the District Court for an opportunity to clarify
       the reason for the inconsistency between the two custody schedules. If the court
       determines that the Final Parenting Plan does not contain the correct custody
       schedule, the court shall provide the parties with an opportunity to respond. If the
       Final Parenting Plan does indeed contain the correct custody schedule, and Ron
       disagrees with that schedule, then Ron must first seek to resolve any problems he
       has with that custody schedule pursuant to the alternative dispute resolution
       provision of the Final Parenting Plan.

                                                            ISSUE THREE

    1. ¶Whether the District Court erred when it denied Ron a dependency exemption?
    2. ¶The District Court provided in its Final Parenting Plan:

Solely for the purpose of all other state and federal statutes which require a designation or
determination of custody, [Dawn] should be designated the parent with whom the child is
scheduled to reside a majority of time as a custodian of the child. However, this
designation should not effect [sic] either parent's rights and responsibilities under this
parenting plan. In absence of such designation, the parent with whom the child is
scheduled to reside the majority of the time should be deemed to be the custodian of the
child solely for the purposes of such federal and state statutes. Such designation should
change from time to time between the parties as ordered by the Court.



    1. ¶Ron contends that the District Court mistakenly designated Dawn as the parent to
       receive the designation and should have alternated the designation between the
       parents based upon the nearly 50-50 custody split concerning Kyle.
    2. ¶Ron's contention of error appears to be based solely on the court's inconsistent
       orders concerning child custody. Once again, we remand to the District Court for an
       opportunity to clarify the reason for the inconsistency between the two custody
       schedules. If the District Court determines that the Final Parenting Plan does not
       contain the correct custody schedule, the court shall provide the parties with an
       opportunity to respond on the issue of the dependency designation.

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    3. ¶Affirmed in part, reversed in part, and remanded for proceedings consistent with
        this opinion.



/S/ JIM REGNIER



We Concur:



/S/ KARLA M. GRAY

/S/ PATRICIA COTTER

/S/ TERRY N. TRIEWEILER

/S/ JIM RICE

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART




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