                                                                                             07/12/2016


                                          DA 15-0559
                                                                                         Case Number: DA 15-0559

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2016 MT 164



IN THE MATTER OF THE
PARENTING OF Z.D.L.-B.,

JESSICA JEANNE JOHNSON, fka
JESSICA JEANNE LAWRENCE,

              Petitioner and Appellant,

         v.

DANIEL WILLIAM BATEY,

              Respondent and Appellee.



APPEAL FROM:           District Court of the First Judicial District,
                       In and For the County of Lewis and Clark, Cause No. ADR-2005-27
                       Honorable Mike Menahan, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Alice J. Hinshaw, Michelle H. Vanisko, Hinshaw Law Firm, PLLC,
                       Helena, Montana

                For Appellee:

                       Roberta Cross Guns, Attorney at Law, Ulm, Montana


                                                  Submitted on Briefs: June 8, 2016

                                                             Decided: July 12, 2016


Filed:

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

¶1    Z.D.L.-B. (referred to herein simply as “Z”) is the 12-year-old son of Jessica

Jeanne Johnson (Jessica), and Daniel William Batey (Daniel).          Jessica appeals the

Findings of Fact, Conclusions of Law, and Final Parenting Plan entered by the First

Judicial District Court, Lewis and Clark County. The Final Parenting Plan named Daniel

as the primary care provider, after Jessica had been Z’s primary provider. We affirm and

address the following issues:

      1. Did the District Court err by modifying the parenting plan because changed
      circumstances did not exist to justify modification of the existing parenting plan?

      2. Were the District Court’s findings of fact related to Z’s best interests clearly
      erroneous?

      3. Did the District Court err in denying Jessica’s request for attorney fees and
      costs?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶2    Z was born in 2003 to Jessica and Daniel, who were then both in high school.

From birth, Jessica was the primary care provider for Z, with assistance from Daniel and

their respective families. Jessica and Daniel did not marry and, after their romantic

relationship ended, the parties managed to parent Z without significant court intervention.

Jessica petitioned for a parenting plan in 2005, and the court adopted a Stipulated

Parenting Plan. In 2007, the parents filed a Stipulated First Amended Parenting Plan

(referred to herein as the “Amended Plan”), which was also adopted by the court. It

remained in force until the events described below.




                                            2
¶3     The Amended Plan provided that Z would reside primarily with Jessica, while

spending alternating weekends, designated holidays, and birthdays with Daniel,

“regardless if the parents are living in the same community or not.”          Both parties

acknowledge that, while they adhered more or less to the Amended Plan, they were

flexible in the time each would spend with Z.

¶4     After both parties attended Helena College of Technology, Daniel moved to

Missoula in 2006. In 2008, shortly after the Amended Plan was adopted, Jessica moved

to Butte with Z, who attended school there until 2011. In 2011, Jessica moved to Wise

River, and Z attended school there. Jessica moved to the Missoula area in 2012, finding a

place to live in Frenchtown. Z attended Target Range Elementary School in Missoula for

a time, until Jessica started to homeschool him. The homeschooling period did not last

long, and thereafter, Z attended the Frenchtown public schools until October 2014.

During the time that both parties lived in the Missoula area, Daniel began exercising

more time with Z, in excess of the time provided in the Amended Plan.

¶5     By the fall of 2014, Daniel had moved back to Helena, and was working there.

Although the parties hotly contest the characterization of the transfer of Z that took place

in Helena, a simplified version is as follows: Jessica decided to move back to Helena,

and asked Daniel if Z could live with him in anticipation of her relocation to the area.

Daniel, taking this request to mean that Z would live with him for the remainder of the

school year, agreed, and enrolled Z at Hawthorne Elementary School in the fall of the

2014-2015 academic year. Jessica maintains that both parties understood that Z would

live with Daniel only through the end of the current semester, stating: “So it was my

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intention that, at winter break, I would retrieve [Z] and put him in school wherever I

decided to live at that time.” Upon her move to Helena, Jessica initially lived with her

father, who resided within the city limits, while she was looking for employment.

¶6     An incident occurred on November 18, 2014, at Hawthorne Elementary School.

Daniel had set up a meeting with Z’s fifth grade teacher to discuss Z’s progress and

needs, and informed Jessica, who declined to attend the meeting because Daniel’s

girlfriend was going to be there. Nonetheless, the parties agreed that Jessica could pick

up Z early from school that day in order to have dinner with him.

¶7     Before the scheduled parent-teacher meeting began, Jessica arrived at the school

and found Z outside of his classroom with his teacher. Jessica approached the teacher,

who asked her some identifying questions. Jessica informed the teacher who she was,

that she was there to pick up Z, and that she wasn’t sure she wanted Z to continue

attending school there. School officials did not recognize Jessica because she was not

registered with the principal’s office, and therefore were reluctant to release Z to her care.

Jessica became angry, and school officials called law enforcement and Daniel to respond

at the school. The situation eventually de-escalated, and Jessica left the school with Z.

¶8     However, Jessica then withdrew Z from enrollment at Hawthorne School, and

contacted Rossiter Elementary School and Jim Darcy Elementary School about possible

enrollment of Z. Ultimately, Z was not enrolled at either school, because several days

later, Jessica moved from Helena to Wolf Creek to live with her mother. The District

Court found that “[a]fter several days in which [Z] did not attend school and/or was

unaware which school he would eventually attend, Jessica enrolled [Z] in the Wolf Creek

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School . . . .” Jessica admits that she did not consult Daniel about removing Z from

Hawthorne School or about enrolling him at the Wolf Creek School, because she felt she

was “within [her] right in the parenting plan.”

¶9     On November 19, 2014, the day after the incident at Hawthorne School, Daniel

filed a pro se emergency Motion to Amend the Amended Plan. After obtaining counsel,

he filed a Renewed Motion to Implement Interim Parenting Plan, supported by affidavits,

on December 15, 2014. Daniel’s basis for his motion was that the Amended Plan was

“outdated and irrelevant to our current circumstances[,]” and that Jessica’s multiple

moves and frequent changes in schools, especially in light of the most recent incident at

Hawthorne School, were disruptive to Z’s stability. Daniel’s proposed parenting plan

named him as the primary residential parent. The District Court appointed a guardian ad

litem for Z on December 19, 2014, and conducted a hearing on August 10, 2015, taking

testimony from both parents, the guardian ad litem, Z’s fifth grade teacher at Wolf Creek,

and Z’s maternal grandmother. Jessica testified that she had moved into a house she had

purchased in Dearborn in May 2015, and was hoping to enroll Z in the Cascade County

School. Jessica indicated that she had toured the school with Z, and had given him the

impression that he would be attending that school in the upcoming fall as a sixth grader.

¶10    The District Court entered its Findings of Fact, Conclusions of Law, and Final

Parenting Plan on August 14, 2015, naming Daniel as the primary residential parent and

providing that Jessica would have parenting time every other weekend and designated

holidays, and for alternating three-week periods in the summer. Jessica appeals.



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                               STANDARD OF REVIEW

¶11    Jessica argues on appeal that the District Court modified the Amended Plan

without first making a finding of changed circumstances, as required by § 40-4-219(1),

MCA. “[W]here the allegation is that the district court made no such [required] findings

in the first place and the issue is whether the court’s action conforms to statutory

requirements, we are presented with a question of law, which we review de novo.”

Jacobsen v. Thomas, 2006 MT 212, ¶ 13, 333 Mont. 323, 142 P.3d 859 (citing In re T.H.,

2005 MT 237, ¶ 35, 328 Mont. 428, 121 P.3d 541).

¶12    Jessica argues on appeal that the District Court’s findings of fact are clearly

erroneous.

              We review the findings in support of a district[] [court’s] decision to
       modify a parenting plan under the clearly erroneous standard. Conclusions
       of law are reviewed for correctness, and we will only reverse a district
       court’s decision where an abuse of discretion has been clearly
       demonstrated. In other words, a district court’s decision “will not be
       disturbed on appeal unless there is a mistake of law or a finding of fact not
       supported by substantial credible evidence that would amount to a clear
       abuse of discretion.” The test for abuse of discretion is whether the trial
       court acted arbitrarily without employment of conscientious judgment or
       exceeded the bounds of reason resulting in substantial injustice.

Guffin v. Plaisted-Harman, 2010 MT 100, ¶ 20, 356 Mont. 218, 232 P.3d 888 (quoting In

re S.P., C.P., H.M., J.M., and Y.M., 241 Mont. 190, 194, 786 P.2d 642, 644 (1990))

(citations omitted).




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                                     DISCUSSION

¶13 1. Did the District Court err by modifying the parenting plan because changed
circumstances did not exist to justify modification of the existing parenting plan?

¶14   Jessica argues that, because the District Court failed to make a specific finding that

a change in circumstances had occurred, the court did not have jurisdiction to modify the

parenting plan.

¶15   Section 40-4-219(1), MCA, provides:

      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. . . .

¶16   Jessica correctly notes that the District Court did not enter a finding expressly

addressing a “change in circumstances.” While it is preferable that district courts enter

such a finding, and we urge courts to do so, we have previously held that this omission

does not necessarily constitute reversible error. In re Marriage of Burk, 2002 MT 173,

¶ 11, 310 Mont. 498, 51 P.3d 1149. Here, the District Court made a number of findings

demonstrating that a change in circumstances had occurred, including noting the guardian

ad litem’s “greatest and over-riding concern for [Z] is that he has been subjected to

numerous disruptions in his social and educational development precipitated by Jessica’s

frequent moves.” The District Court also found that “[i]n recent years Daniel grew

concerned that [Z] was experiencing difficulty adjusting, as evidenced by his educational

performance in the classroom.” Although the District Court did not use the language of

the guardian ad litem—that “[s]ix schools, in six towns, in six years is [sic] too much”—


                                            7
the point it made was nonetheless the same. We are satisfied that the District Court

sufficiently supported its decision to modify the Amended Plan with findings indicating

that changed circumstances existed that required review and consideration of a

modification of the parenting plan.

¶17     Jessica points to language of the Amended Plan that “makes it clear that the parties

anticipated that one or both of them may move and specifically provided for that

possibility. Because the [Amended] Plan contemplated that the parties might move when

it was adopted by the district court, moving is not a changed circumstance.” She further

argues that because the parties agreed on changes in Z’s schooling, such changes do not

constitute a change in circumstance.1

¶18     This Court recognizes that parents move and that children need to change schools

as a family relocates. These circumstances arise commonly. Parenting plans may even

contemplate a future change in schools for a child. See, e.g., In re Whyte, 2012 MT 45,

364 Mont. 219, 272 P.3d 102. Such changes do not, by themselves, constitute a change

in circumstances necessitating an amendment to an existing parenting plan. See Ramberg

v. Massey (In re C.M.R.), 2016 MT 120, 383 Mont. 398, ___ P.3d ___. However, if

moving occurs in a manner that becomes disruptive to the child or to the functioning of

the parenting plan, it may constitute a change in circumstances requiring review of the

plan.

1
  Jessica argues that “most of these [school] transfers were agreed to by Daniel,” but her
testimony indicates she also initiated changes in Z’s schools without consulting Daniel: “I mean,
I’d also enrolled [Z] in schools before that I had informed Daniel this is where I live. This is the
school he’s going to attend. And it was not whether he was in agreement or not. It was just – I
informed him. And he was like, okay. So it’s the past.”
                                                 8
¶19     Here, the District Court heard testimony outlining Z’s multiple changes in living

arrangements and school enrollments over the years. The court heard Daniel’s testimony

that “I’ve had these concerns that I’ve talked about for a number of years. . . . Mainly

him moving around and having, you know, difficulties definitely socially. I mean, [Z]

has had very few friends in his life.” The guardian ad litem testified that “it’s perplexing

to me the number of times that Jessica’s chosen to change his [Z’s] educational

environment. That really was my primary concern[,]” and that “I just think the constant

moving is so hard on [Z].” Thus, there was evidence to support the District Court’s

findings that Z had experienced detrimental effects from the number of moves and

changes in schools, necessitating review of the parenting plan.

¶20     Finally, Jessica argues that the District Court did not explicitly address whether

the Amended Plan was “outdated,” as Daniel alleged in his motion for modification.

However, Jessica acknowledged in her pleadings to the District Court that “the current

parenting plan needs to be revised,” consistent with our determination here that there was

a sufficient showing of a change in circumstances to consider modifying the parenting

plan.

¶21 2. Were the District Court’s findings of fact related to Z’s best interests clearly
erroneous?

¶22     Jessica argues that the District Court’s findings of fact were clearly erroneous,

claiming that “the record as a whole does not support the [D]istrict [C]ourt’s findings.”

We address Jessica’s specific contentions in turn.




                                             9
       a. Z was experiencing difficulty adjusting to school.

¶23    Jessica argues that “[t]here was simply nothing in the record upon which the

[D]istrict [C]ourt could have reasonably concluded” that Z’s school performance was

suffering due to Jessica’s parenting or living situation. We disagree. The record includes

testimony from Z’s fifth grade teacher at Wolf Creek School, who testified that when Z

was first enrolled, she gave him an academic assessment. Although acknowledging Z’s

reading strength, she testified, “But in math, I definitely saw he was pretty far behind.”

Jessica also testified that Z was experiencing difficulty in math, and had been

recommended for extra tutoring “to prepare [him] for 6th grade.” Jessica testified that Z

would forget homework tasks and assignments, despite the use of a planner. There was

substantial credible evidence to support the District Court’s finding that “[Z] was

experiencing difficulty adjusting, as evidenced by his educational performance in the

classroom.” See Guffin, ¶ 20.

     b. It was not in Z’s best interest when Jessica removed him without warning from
Hawthorne Elementary School.

¶24    Following a detailed discussion of the November 18, 2014 incident where Jessica

removed Z from Hawthorne School and enrolled him in Wolf Creek School several days

later, the court found: “Although Jessica is an involved and attentive parent, it was not in

the best interest of [Z] to remove him from attending Hawthorne Elementary School

without a fixed residence, secure employment, and a school prepared to admit him.”

Jessica argues that “[t]here are no facts on the record to support any of these findings.”

Again, we disagree.     At the hearing, Jessica’s counsel asked her why she didn’t


                                            10
immediately enroll Z at the Wolf Creek School after removing him from Hawthorne

School, but rather first contacted two other elementary schools. She answered, “Because I

was still, you know, I was, kind of, temporarily living at my dad’s house. . . . As well as

I was still hunting for a job.” There was substantial credible evidence before the District

Court to support its finding. See Guffin, ¶ 20.

       c. Daniel is better equipped to provide a stable environment for Z.

¶25    Jessica argues the District Court erred “in modifying the [Amended] Plan on the

basis that Daniel was better equipped to provide a stable environment for Z.” Choosing

which parent will provide the healthiest environment for a child is a difficult decision for

a court. “We have specifically recognized the District Court’s broad discretion when

considering the parenting of a child. ‘Child custody cases often present the court with

difficult decisions. We must presume that the court carefully considered the evidence

and made the correct decision.’” In re Marriage of Tummarello, 2012 MT 18, ¶ 34, 363

Mont. 387, 270 P.3d 28 (citing Hilliard v. Smith (In re Parenting of N.S.), 2011 MT 98,

¶ 18, 360 Mont. 288, 253 P.3d 863). The decision here was no doubt a difficult one for

the District Court. However, Jessica fails to account for the evidence offered by the

guardian ad litem’s report that when Z was first enrolled at Hawthorne, his teacher

reported that he “was guarded as the new kid in class, but that Dan[iel] made several

successful efforts to create opportunities for socialization.” The guardian ad litem also

noted that she had spent several hours with Z and Daniel, and “observed a tender, patient

relationship.” Jessica’s recent actions causing disruption clearly contrasted with evidence

of Daniel’s calming effect. Although Jessica strongly disagrees with the District Court’s

                                             11
findings, the court relied upon this evidence in finding that Daniel was better equipped at

this time to provide a stable environment for Z, and we will defer to its discretion. See

Tummarello, ¶ 34.

¶26      Jessica also argues generally that the District Court’s August 2015 Final Parenting

Plan is not in Z’s best interest. Section 40-4-212(1)(a)-(m), MCA, lists relevant factors

for a district court to consider when determining the best interest of a child. The District

Court did not address the factors in an itemized fashion, but as we have previously stated,

“The statute lists many factors for the district court to consider in its determination of a

child’s best interest, and although it need not make specific findings pertaining to each

factor, a district court must consider the guidelines in the statute.” In re Marriage of

Baer, 1998 MT 29, ¶ 19, 287 Mont. 322, 954 P.2d 1125 (citing In re Marriage of DeWitt,

273 Mont. 513, 516, 905 P.2d 1084, 1086 (1995)). The District Court did make detailed

findings regarding the difficulty that Z had with adjusting, as evidenced by a struggling

academic performance,2 the environment and relationship that Daniel fostered while Z

was living with him,3 and the contrary effect on Z’s best interest when Jessica removed

him from Hawthorne and relocated and re-enrolled him in yet another location.4 The

District Court’s findings of fact were supported by substantial evidence and the court did

not abuse its discretion in its analysis of the best interests of the child.

2
    See § 40-4-212(1)(h), MCA (“continuity and stability of care”).
3
    See § 40-4-212(1)(i), MCA (“developmental needs of the child”).
4
  See § 40-4-212(1)(c), MCA (“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”).
                                                 12
¶27 3. Did the District Court err in denying Jessica’s request for attorney fees and
costs?

¶28    Jessica’s argument that the District Court erred in denying her attorney fees raises

the application of § 40-4-212(4), MCA, which provides as follows:

       The following are rebuttable presumptions and apply unless contrary to the
       best interest of the child:
       (a) A parenting plan action brought by a parent within 6 months after a
           child support action against that parent is vexatious.
       (b) A motion to amend a final parenting plan pursuant to 40-4-219 is
           vexatious if a parent seeks to amend a final parenting plan without
           making a good faith effort to comply with the provisions of the
           parenting plan or with dispute resolution provisions of the final
           parenting plan.

Jessica further cites to § 40-4-219(5), MCA, which provides: “Attorney fees and costs

must be assessed against a party seeking frivolous or repeated amendment if the court

finds that the amendment action is vexatious and constitutes harassment.” Jessica thus

argues that because Daniel filed his motion within six months of a child support action,

and without offering to mediate as provided in the Amended Plan, the statutory

“vexatious presumptions” apply and the District Court was mandated to award her

attorney fees and costs.

¶29    We initially note that it is not clear from the plain language of the statute that the

presumption in § 40-4-212(4)(a), MCA, applies here. That section presumes that “a

parenting plan action” brought within six months of a child support action is vexatious.

In contrast, the next subsection, § 40-4-212(4)(b), MCA, presumes that a “motion to

amend a final parenting plan” is vexatious without a good faith effort to comply with the

existing parenting plan. If § 40-4-212(4)(a), MCA, is referring to an original parenting


                                             13
plan, in contrast to the reference in § 40-4-212(4)(b), MCA, to a motion to amend an

existing parenting plan, then Jessica filed the original parenting plan action in 2005, nine

years before Daniel’s motion here. However, we need not resolve this issue of statutory

interpretation here, for the following reasons.

¶30    Even if the statute is applicable, it makes the presumption rebuttable. The District

Court clearly found that Daniel’s motions were not vexatious, but meritorious. The clear

implication of the District Court’s order is that Daniel rebutted the vexatious

presumptions. The record reveals that Jessica provided slim evidence that a child support

action had been initiated within the previous six months, testifying only that she had

made a report of Daniel being in arrears. On direct examination, her counsel asked her:

       Q. Okay. Have you ever reported the child support issue to the Child
       Support Enforcement Division?
       A. Yes.
       Q. When did you do that?
       A. June of 2014.

No other evidence of a “child support action” was introduced.

¶31    Then, on direct examination, Daniel’s counsel asked him about his motivation for

filing his motions to amend the parenting plan:

       Q. And is – was it this incident [at Hawthorne School] that prompted you
       then to come to the Court and seek a new parenting plan?
       A. I believe that I had filed a motion when things first – when things first
       arose with the incident at Hawthorne. But I began pursuing a new
       parenting plan once he had been moved to Wolf Creek.

Daniel also stated, “I really just want some stability for my son. I want him to be able to

have a really great social life. I want him to have friends . . . . And I really want a stable

home life that he will be able to focus the way that he needs to.” Daniel’s original pro se

                                             14
motion was filed on November 19, 2014, the day immediately following the

November 18, 2014 incident at Hawthorne School, supporting his testimony that his

purpose was to provide stability for Z. The District Court ultimately agreed that Daniel

had good reason to seek modification of the parenting plan, a conclusion inconsistent

with acting vexatiously.

¶32   The rebuttable presumption provided for in § 40-4-212(4)(b), MCA, applies to

cases involving a “motion to amend a final parenting plan.” The record likewise rebuts

any presumption that Daniel acted vexatiously by failing to act in good faith or to pursue

mediation. Jessica’s reckless actions in withdrawing Z from enrollment in Hawthorne

School, without notice, and creating uncertainty about Z’s future, justified Daniel’s

immediate appeal to the courts for assistance. After his motion was filed, both parties

moved to vacate hearing dates so that they could pursue mediation, stating they were

pursuing “a mutually agreeable parenting plan.” The record shows that Daniel engaged

in multiple efforts to resolve the dispute outside of the courtroom, rebutting any

presumption that he had not acted in good faith or had failed to honor the mediation

provision of the Amended Plan.

¶33   Affirmed.

                                                /S/ JIM RICE

We Concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
/S/ BETH BAKER



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