                                                                                                April 20 2016


                                           DA 15-0542
                                                                                             Case Number: DA 15-0542

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2016 MT 93



IN RE THE PARENTING OF C.J.:

MATTHEW F. TUBAUGH,

              Petitioner and Appellant,

         v.

STEVI JACKSON,

              Respondent and Appellee.



APPEAL FROM:           District Court of the Sixth Judicial District,
                       In and For the County of Park, Cause No. DR-13-60
                       Honorable Brenda Gilbert, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Jason Armstrong, Law Office of Jason Armstrong, P.C., Bozeman,
                       Montana

                For Appellee:

                       Christopher J. Gillette, Law Office of Christopher J. Gillette, PC,
                       Bozeman, Montana



                                                     Submitted on Briefs: March 30, 2016

                                                                 Decided: April 20, 2016


Filed:

                       __________________________________________
                                         Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1       Matthew Tubaugh appeals the findings of fact, conclusions of law, and order of

the Sixth Judicial District Court, Park County, adopting a final parenting plan that

provides Stevi Jackson with primary custody of Matthew’s and Stevi’s son, C.J., and

allows Stevi to relocate to Vermont with C.J. Matthew alleges several errors in the

District Court’s parenting determination. We affirm.

                   PROCEDURAL AND FACTUAL BACKGROUND

¶2       Matthew and Stevi first met in or about 2004 and, although they had an “on and

off” relationship for several years, the parties never lived together. C.J. was born in

August 2012.

¶3       At the time of the District Court proceedings, Stevi resided in Belgrade, Montana,

with C.J., her husband Tom, and the couple’s minor child. She has a degree in early

childhood education and had been employed by Head Start in Bozeman since 2007.

Stevi began her Head Start employment as an assistant teacher and eventually progressed

to serve as both the site supervisor and the technology manager. In July 2015, she was

offered a job as the Children’s Service Manager for a Head Start program in Newport,

Vermont.

¶4       Matthew resides in Livingston with his domestic partner, who was pregnant with

his child at the time of the final parenting plan hearing. Matthew has a daughter, P.J.,

from a previous relationship. He has part-time custody of P.J. Matthew served in the

armed forces, worked as a police officer, and at the time of the hearing was working on a

ranch.
                                          2
¶5        Although the parties dispute whether Matthew was given an opportunity to spend

time with C.J. during the first fifteen months of his life, it is undisputed that Matthew saw

C.J. only once during that time period. Stevi testified that Matthew did not provide her

with any financial assistance during that time; Matthew did not offer any evidence to the

contrary. In July 2014, the District Court ordered Matthew to pay $156 per month in

child support.       A Child Support Enforcement Division debt computation worksheet

admitted at the hearing showed that Matthew was current on child support payments as of

June 2015.

¶6        Prior to C.J.’s birth, Matthew sent Stevi an email stating that “a paternity test will

be required” because he questioned whether or not he was C.J.’s father. After C.J.’s

birth, Matthew continued to contest paternity before eventually filing a paternity action.1

Approximately six months after the court ordered paternity testing, Matthew took a

paternity test. It confirmed that he was C.J.’s father. On June 14, 2013, after receiving

the paternity test results, Matthew filed a petition for establishment of an interim

parenting plan.        While Matthew’s petition was pending, he and Stevi arranged for

supervised visits between himself and C.J at Hearts & Homes in Bozeman. Stevi stopped

the arrangement after three visits because she felt C.J. was demonstrating “very distressed

behavior” during the visits.

¶7        The District Court held a hearing on Matthew’s petition for an interim parenting

plan on February 3, 2014. Following the hearing, the parties attempted to reconcile their

relationship and arranged parenting time on their own.                 The parties’ attempt at

1
    The District Court took judicial notice of the paternity action.
                                                 3
reconciliation eventually failed and, in May 2014, Matthew filed a petition for an

“emergency de facto” parenting plan.

¶8    In July 2014, the District Court issued an order that allowed Matthew two visits

per week with C.J. and required both parties to attend counseling sessions. The court also

appointed counselor Chantelle Plauche to assist in reunifying Matthew and C.J. The

order required the parties to follow Plauche’s “recommendations for improving the

relationship and parental contact between Matthew and [C.J.].”

¶9    Plauche worked with the parties for a year and testified that Matthew’s

relationship with C.J. improved.        Due to the improving relationship, Plauche

recommended a number of times that Matthew incrementally increase his parenting time

with C.J., and Matthew’s parenting time did increase. Plauche eventually recommended

that Matthew be allowed to have C.J. for three days and two nights in a row per week.

¶10   On July 14, 2015, Stevi filed a proposed final parenting plan and a notice of intent

to relocate. Her proposed plan called for C.J. to reside with her in Vermont during the

school year and with Matthew in Livingston during the summer. Matthew also filed a

proposed parenting plan in which C.J. would live with him during the school year and

with Stevi in Vermont during the summer.

¶11   On August 18, 2015, the District Court held a hearing on Stevi’s notice of intent to

relocate and the parties’ respective parenting plans. Stevi, Matthew, and Plauche testified

at the hearing. Matthew also called Katherine McLaughlin as an expert witness to testify

generally regarding childhood development. On August 27, 2015, the District Court

issued its findings of fact, conclusions of law, and order regarding the final parenting
                                         4
plan.   The court’s order largely adopted Stevi’s proposed parenting plan.       Matthew

appeals.

                              STANDARD OF REVIEW

¶12     We review a district court’s findings of fact supporting a parenting plan to

determine whether they are clearly erroneous. In re the Parenting of M.C., 2015 MT 57,

¶ 10, 378 Mont. 305, 343 P.3d 569. A finding of fact is clearly erroneous if it is not

supported by substantial evidence, if the district court misapprehended the effect of the

evidence, or if our review of the record convinces us that the district court made a

mistake. M.C., ¶ 10. We review a district court’s conclusions of law to determine if they

are correct. M.C., ¶ 10.

¶13     A district court has “broad discretion when considering the parenting of a child,

and we must presume that the court carefully considered the evidence and made the

correct decision.” In re the Marriage of Woerner, 2014 MT 134, ¶ 12, 375 Mont. 153,

325 P.3d 1244 (quoting In re Marriage of Crowley, 2014 MT 42, ¶ 44, 374 Mont. 48, 318

P.3d 1031). Accordingly, absent clearly erroneous findings, we will not disturb a district

court’s decision regarding parenting plans unless there is a clear abuse of discretion.

Woerner, ¶ 12.     A district court abuses its discretion if it acts arbitrarily, without

employment of conscientious judgment, or exceeds the bounds of reason resulting in

substantial injustice. Woerner, ¶ 12.

                                        DISCUSSION

¶14     While district courts “have broad discretion when considering the parenting of a

child,” Woerner, ¶ 12, a district court must “determine the parenting plan in accordance
                                          5
with the best interest of the child,” § 40-4-212(1), MCA; Woerner, ¶ 13. District courts

are directed to consider “all relevant parenting factors” in making these determinations.

Section 40-4-212(1), MCA. The statute’s non-exhaustive list of factors includes:

      (a) the wishes of the child’s parent or parents;

      (b) the wishes of the child;

      (c) 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;

      (d) the child’s adjustment to home, school, and community;

      (e) the mental and physical health of all individuals involved;

      (f) physical abuse or threat of physical abuse by one parent against the other
      parent or the child;

      (g) chemical dependency . . . or chemical abuse on the part of either parent;

      (h) continuity and stability of care;

      (i) developmental needs of the child;

      (j) whether a parent has knowingly failed to pay birth-related costs that the
      parent is able to pay, which is considered to be not in the child’s best
      interests;

      (k) whether a parent has knowingly failed to financially support a child that
      the parent is able to support, which is considered to be not in the child’s
      best interests;

      (l) whether the child has frequent and continuing contact with both parents,
      which is considered to be in the child’s best interests unless the court
      determines, after a hearing, that contact with a parent would be detrimental
      to the child’s best interests. . . . ;

      (m) adverse effects on the child resulting from continuous and vexatious
      parenting plan amendment actions.

                                          6
Section 40-4-212(1), MCA. Although “[w]e have encouraged district courts to make

specific findings on each relevant statutory factor,” we require only “that the district court

make findings sufficient for this court to determine whether the court considered the

statutory facts and made its ruling on the basis of the child’s best interests.” Woerner,

¶ 15.

¶15     The District Court found that C.J. is attached primarily to Stevi because she “has

parented him much more of the time, has arranged for his medical and dental care, has

arranged for his play dates and other social interaction, and has provided for his day to

day needs.” The court found further that Stevi did not prevent Matthew from spending

time with C.J. during the first fifteen months of C.J.’s life. The court noted that Matthew

“did not present any evidence that he was actually requesting and pursuing parenting time

with [C.J.] in any significant fashion” during that time period.        Although the court

determined that C.J. “has a secure bond with [Matthew],” it decided that “Stevi should be

entitled to relocate to Newport, Vermont[,] where she has the opportunity to pursue her

career in a setting that has more room for advancement [and] more financial

opportunity.” The court found that the final parenting plan “will deepen” C.J.’s bond

with Matthew by virtue of its longer periods of uninterrupted parenting time, “involve far

fewer parenting exchanges and less exposure to conflict for [C.J.] than what he is

experiencing under the current schedule,” and “involve opportunities for frequent

telephone and Skyping or similar communications.”

¶16     The court next addressed the competing constitutional rights implicated by the

proposed parenting plans—Stevi’s right to travel and Matthew’s right to parent—before
                                          7
analyzing whether it would be in the best interest of C.J. to move to Vermont with Stevi

or to remain in Livingston with Matthew. The court thoroughly considered and made

specific findings on each of the best interest factors set forth in § 40-4-212, MCA. Based

upon its consideration of the factors, the court concluded that it would be in C.J.’s best

interest to adopt a final parenting plan that allowed Stevi to maintain primary custody of

C.J. and relocate to Vermont.

¶17    Matthew first asserts that the District Court’s finding that Stevi did not interfere

with his relationship with C.J. is clearly erroneous. Matthew alleges that the evidence

demonstrates that Stevi “willfully and consistently interfered with [Matthew’s] parenting

time.” Matthew contends that the “reason that C.J. is primarily attached to [Stevi] is

because she has consistently thwarted and interfered with [Matthew’s] ability to exercise

parenting time of any kind[,] not just meaningful parenting time.”            Consequently,

Matthew asserts, the District Court’s finding adversely impacted its consideration of

several of the best interest factors under § 40-4-212, MCA.

¶18    The District Court’s finding provides:

       33. Stevi is the parent to whom [C.J.] is primarily attached. She parented
       him without contact from [Matthew] during the first fifteen months of
       [C.J.’s] life. The lack of contact between [C.J.] and [Matthew] during that
       time frame was not due to interference or blocking the contact on Stevi’s
       part.

The District Court relied on evidence showing that for the first eight months of C.J.’s life,

Matthew contested whether he was C.J.’s father. Although Matthew was ordered to take

a paternity test on October 31, 2012, he did not take the test until April 29, 2013.

Moreover, Matthew admitted that Stevi offered to allow him to visit C.J. so long as she
                                          8
was present, but testified that he refused the opportunity because he did not want Stevi

present during his visits with C.J.     The parties’ testimony substantiates the District

Court’s view that although Stevi has been C.J.’s primary parent, she has made efforts to

have Matthew involved in C.J.’s life.

¶19    It is the District Court’s function to determine “the credibility of the witnesses and

the weight assigned to their respective testimony.” In re the Parenting of N.S., 2011 MT

98, ¶ 25, 360 Mont. 288, 253 P.3d 863. “Whether we would have reached the same

decision as the trial court is not the standard under which we review a court’s order for an

abuse of discretion.” Woerner, ¶ 29 (citing In re Marriage of Lockhead, 2013 MT 368,

¶ 12, 373 Mont. 120, 314 P.3d 915). Rather, “[w]e review whether substantial evidence

in the record supports the court’s findings regardless of whether the evidence could

support a different outcome as well.” Woerner, ¶ 29 (citing Brimstone Mining, Inc. v.

Glaus, 2003 MT 236, ¶ 20, 317 Mont. 236, 77 P.3d 175). Based on our review of the

record, we conclude that the District Court did not misapprehend the effect of the

evidence or clearly make a mistake in finding that Stevi did not interfere with Matthew’s

relationship with C.J. The District Court’s finding of fact is supported by substantial

evidence and is not clearly erroneous.        Accordingly, we disagree with Matthew’s

contention that the District Court’s finding led to an incorrect application of the best

interest factors under § 40-4-212, MCA.

¶20    Next, Matthew alleges that the District Court misstated the law when it concluded

that Matthew “bears a ‘heavy burden’ of establishing that the proposed travel restriction

is consistent with the best interests” of C.J. Matthew contends that the burden of proof
                                          9
for establishing a travel restriction is simply the best interest of the child standard.

Therefore, Matthew claims, the District Court incorrectly required Matthew “to show that

not moving was in C.J.’s best interest.” Matthew claims again that the District Court’s

finding that Stevi did not interfere with his relationship with C.J. is not supported by

substantial evidence. Matthew cites our holding in M.C. that “a parent’s decision to

move may be considered against the best interests of a child if the parent’s decision

exemplifies a willful and consistent attempt to frustrate or deny contact between the child

and his or her other parent.” M.C., ¶ 20 (citation and internal quotations omitted).

Finally, Matthew asserts that the court incorrectly elevated Stevi’s right to travel over

C.J.’s best interests.

¶21    The right to travel “has long been recognized as a fundamental constitutional

right.” M.C., ¶ 12 (citing Shapiro v. Thompson, 394 U.S. 618, 629-31, 89 S. Ct. 1322,

1328-29 (1969), overruled on other grounds by Edelman v. Jordan, 415 U.S. 651, 671,

94 S. Ct. 1347, 1360 (1974)). Accordingly, the right to travel “may be restricted only by

a compelling state interest.” M.C., ¶ 12 (citing Dunn v. Blumstein, 405 U.S. 330, 339, 92

S. Ct. 995, 1001 (1972); In re Marriage of Cole, 224 Mont. 207, 213, 729 P.2d 1276,

1280 (1986)). Advancing the best interest of a child is a compelling state interest. M.C.,

¶ 13 (citing Cole, 224 Mont. at 213, 729 P.2d at 1280). Therefore, “in cases implicating a

parent’s exercise of his or her fundamental right to travel, ‘it is the court’s task to attempt

to reconcile the interests of both parents with the best interests of the child.’” M.C., ¶ 13

(quoting Cole, 224 Mont. at 213, 729 P.2d at 1280). In such cases, we have cautioned:


                                          10
       A restriction on a parent’s fundamental right to travel must be imposed
       cautiously and only when there is sufficient proof that the restriction is in
       the best interest of the child. The parent seeking the restriction must
       provide case-specific proof that the restriction is in the child’s best interest:
       that is, legitimate, case-specific reasons and evidence pertaining to the
       particular child, rather than general discussion about the effects of
       relocation on children of separation or divorce.

M.C., ¶ 14 (internal citations and quotations omitted).

¶22    Our precedent makes clear that Matthew—as the parent seeking to restrict Stevi’s

fundamental right to travel—bears the burden of proving that the restriction is in C.J.’s

best interest. Here, the District Court recognized correctly that Matthew bore such a

burden. The court recognized further its responsibility to consider C.J.’s best interests

and concluded, “Ultimately, in balancing the respective and competing constitutional

rights of the parties and in determining the terms and parameters of any parenting plan,

the Court is bound to consider the best interest standards of the child as contemplated in

§ 40-4-212, MCA.” The court then proceeded to consider, and make specific findings

regarding, each of the best interest factors set forth in § 40-4-212, MCA. We conclude

that the District Court correctly held Matthew to the burden of showing that the travel

restriction was not in C.J.’s best interest, and that it correctly applied the best interest of

the child standard.

¶23    As discussed above, there is substantial evidence supporting the District Court’s

finding that Stevi did not interfere with Matthew’s relationship with C.J. Aside from his

interference argument, Matthew has offered no other “legitimate, case-specific reasons

and evidence” supporting his contention that restricting Stevi’s right to travel is in the


                                          11
best interest of C.J. M.C., ¶ 14. Accordingly, we conclude that the District Court acted

within its broad discretion in allowing C.J. to relocate to Vermont with Stevi.

¶24    For the foregoing reasons, we conclude that the District Court’s findings of fact

were not clearly erroneous and its conclusions of law were correct. We therefore will not

disturb the District Court’s decision regarding C.J.’s parenting plan.

                                     CONCLUSION

¶25    The District Court’s order adopting the final parenting plan is affirmed.



                                                 /S/ BETH BAKER

We concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA




                                         12
