                                                                                             06/13/2017


                                             DA 16-0749
                                                                                         Case Number: DA 16-0749

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                            2017 MT 147N



IN RE THE GRANDPARENT-GRANDCHILD
CONTACT OF T.B., L.B., H.B. AND K.B.
_________________________________________

MICHAEL BURKE AND CHRISTINE TEAGUE,

              Petitioners and Appellants,

         v.

RACHEL BURKE,

              Respondent and Appellee.



APPEAL FROM:           District Court of the Eleventh Judicial District,
                       In and For the County of Flathead, Cause No. DR-15-275(D)
                       Honorable David M. Ortley, Presiding Judge


COUNSEL OF RECORD:

                For Appellants:

                       Jamie J. McKittrick, Wells & McKittrick, PC, Missoula, Montana

                For Appellee:

                       Katherine P. Maxwell, Maxwell Law, PLLC, Kalispell, Montana



                                                     Submitted on Briefs: May 31, 2017

                                                               Decided: June 13, 2017


Filed:

                       __________________________________________
                                         Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


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

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Michael Burke and Christine Teague appeal from a December 1, 2016 District Court

order granting summary judgment in favor of Rachel Burke. We affirm.

¶3     Michael Burke and Christine Teague (Grandparents) are the paternal grandparents

of T.B., L.B., H.B., and K.B. (the children). Rachel Burke (Burke) is the children’s mother.

The parents divorced in 2014. The children’s father (Father) later committed suicide in

Burke’s Kalispell home, within earshot of the two older children. The Grandparents are

separated; Michael lives in Missoula and Christine lives in North Dakota. Because of the

history of family trauma, Burke had requested supervised visitation.            Burke and

Grandparents have been unable to agree on visitation between the children and

Grandparents. Grandparents filed a Petition for Grandparent/Extended Family Visitation

on April 30, 2015, attaching the affidavits of Michael Burke, Christine Teague, and Erin

Krause. Burke filed a M. R. Civ. P. 12(b)(6) Motion to Dismiss for failure to state a claim

upon which relief could be granted. The District Court converted it, by order of the Court,

into a Motion for Summary Judgment and provided notice to the parties to file briefs and




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responses. On December 1, 2016, the District Court granted summary judgment in favor

of Burke. The Grandparents appeal.

¶4     The District Court’s conversion of the Motion to Dismiss into a Motion for

Summary Judgement was error. Following the conversion, the parties filed additional

pleadings and briefs. The District Court order granted summary judgment, but also made

extensive findings of fact. A motion for summary judgment may be granted only if no

genuine issues of material fact are present. Roe v. City of Missoula, 2009 MT 417, ¶ 14,

354 Mont. 1, 221 P.3d 1200. The District Court’s ruling should have been reached based

on the Motion to Dismiss as filed, and we will review the issue as if the court had granted

the Motion to Dismiss.

¶5     We review de novo a district court’s ruling on a motion to dismiss pursuant to

M. R. Civ. P. 12(b)(6). Hall v. State, 2006 MT 37, ¶ 10, 331 Mont. 171, 130 P.3d 601.

The determination of whether a complaint states a claim is a conclusion of law, and the

district court’s conclusions of law are reviewed for correctness. Guest v. McLaverty, 2006

MT 150, ¶ 2, 332 Mont. 421, 138 P.3d 812. In an order to dismiss, if as a matter of law,

under any view of the alleged facts, plaintiffs cannot prevail, “affirmance of the District

Court is commanded.” Commonwealth Edison Co. v. State, 189 Mont. 191, 194, 615 P.2d

847, 849 (1980).

¶6     This Court will construe the complaint in the light most favorable to the

Grandparents. Guest, ¶ 2. The well-pleaded allegations are treated as admitted. Guest,

¶ 2. A motion to dismiss allows a district court to only examine whether a claim has been

adequately stated in the complaint. Hoveland v. Petaja, 252 Mont. 268, 270, 828 P.2d 392,

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393 (1992). From the petition, we ascertain the following facts: Grandparents are the

biological paternal grandparents to T.B., L.B., H.B., and K.B. Grandparents are loving and

caring individuals who seek to have a relationship with their grandchildren after the death

of their son. The Grandparents have spent considerable time with the children attending

religious, extracurricular, and sports activities.    Grandparents and the children spent

holidays and special occasions together. Grandparents provided monetary support and

gifts to the children. Grandparents (particularly Michael) spent significant time with the

children after the parents’ divorce, as Father was living with Michael. The petition also

notes that Burke has the children involved in grief counseling with the Nurturing Center in

Kalispell. Burke told the Grandparents that the center had advised her “that contact was

not in the children’s best interest” at that time. Grandparents believe Burke is improperly

denying them access to and communication with the children. Grandparents believe Burke

will cut them out of the children’s lives absent a court order for visitation.

¶7     Section 40-9-102, MCA, provides the basis in law for a grandparent’s right to

reasonable contact with a grandchild. Where a parent objects to the grandparent-grandchild

contact, the District Court must determine if that parent is “fit.” Section 40-9-102(2),

MCA. Here, there is no question of the parental fitness of Burke. Both parties have

stipulated Burke is a fit parent. Once determined fit, the statute creates a presumption that

the parent’s wishes are in the best interest of the child. Section 40-9-102(4), MCA.

¶8     To overcome the parental presumption, the petitioner must provide the district court

with clear and convincing evidence that the contact is in the best interest of the child.

Section 40-9-102(4), MCA; Glueckert v. Glueckert, 2015 MT 107, ¶ 10, 378 Mont. 507,

                                              4
347 P.3d 1216. Clear and convincing evidence is more than a mere preponderance of the

evidence, and requires evidence that is definite, clear and convincing. Glueckert, ¶ 10.

¶9     The District Court concluded that the Grandparents did not overcome the parental

presumption. Viewing the alleged facts most favorably to the Grandparents and treating

the asserted facts as true, we are unable to conclude the District Court’s final order was

incorrect. The evidence submitted by the Grandparents shows a strong bond between them

and the children. However, it is not enough that there has been contact in the past between

the Grandparents and the children. It is not enough that Grandparents find fault with

Burke’s parental decision regarding contact. The Grandparents have not alleged sufficient

facts to override the parental presumption.      As a matter of law, under the factual

circumstances alleged, Grandparents cannot prevail. Commonwealth, 189 Mont. at 194,

615 P.2d at 849.

¶10    As we have previously stated, “we will uphold a district court when it reaches the

correct result, regardless of the court's reasoning.” Smith v. Farmers Union Mut. Ins. Co.,

2011 MT 216, ¶ 26, 361 Mont. 516, 260 P.3d 163 (citing Stevens v. Novartis Pharms.

Corp., 2010 MT 282, ¶ 28, 358 Mont. 474, 247 P.3d 244). The Grandparents have failed

to meet the high bar required to establish a statutory right to reasonable contact under

§ 40-9-102, MCA. Burke’s motion to dismiss should have been granted.

¶11    As a final note, we recognize that Burke has a fundamental liberty interest to make

decisions concerning the care and custody of her children. Snyder v. Spaulding, 2010 MT

151, ¶ 19, 357 Mont. 34, 235 P.3d 578. However, everyone in this family has experienced

a tragic loss. We clarify that this decision does not make one party the winner and one

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party the loser. We encourage all parties involved to focus on the children and work to

provide a visitation regimen that is in the best interest of the children.

¶12    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the

Court, the case presents a question controlled by settled law or by the clear application of

applicable standards of review.

¶13    Affirmed.


                                                   /S/ MIKE McGRATH


We Concur:

/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
/S/ JIM RICE




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