Brown v. Brown, DA 16-0085

• Docket Nº: DA 16-0085
• Citation: 384 P.3d 476, 2016 MT 299, 385 Mont. 369
• Case Date: November 22, 2016
• Court: United States State Supreme Court of Montana

385 Mont. 369
384 P.3d 476
2016 MT 299

In re the Marriage of: Emily A. Brown, Petitioner and Appellee,
v.
John O. Brown, Respondent and Appellant.

DA 16-0085

Supreme Court of Montana.

Submitted on Briefs: September 21, 2016
Decided: November 22, 2016

For Appellant: Jason T. Holden, Katie R. Ranta, Faure Holden Attorneys at Law, P.C., Great Falls, Montana.

For Appellee: Amy O. Duerk, Simon Law Office, Missoula, Montana.

Justice Patricia Cotter delivered the Opinion of the Court.

385 Mont. 370

¶ 1 John Brown appeals from an order of the Montana Twelfth Judicial District Court, Hill County, denying his motions to modify the parenting plan and child support agreement he entered with his former wife, Emily. Although Emily does not cross-appeal, she requests an award of fees associated with the appeal. We affirm the District Court's denial of John's motions and deny Emily's request for fees.

ISSUES

¶ 2 We address the following issues on appeal:

1. Did the District Court err in denying John's motions to modify child support and amend the parenting plan without a hearing?

2. Is Emily entitled to attorney's fees associated with the appeal?

BACKGROUND

¶ 3 The District Court entered a decree dissolving the marriage of John and Emily Brown in November 2012. The decree incorporated by reference a separation agreement signed by the parties that provided a parenting plan and child support for their daughter, the sole child of their marriage. The agreement obligated John to pay $1000 per month in child support through the end of 2012 and $750 per month thereafter. The agreement

384 P.3d 478

also provided that each party had “the right to modify child support payments every two years.”

¶ 4 The parenting plan designated Emily as the primary parent. John and Emily agreed their daughter would live with Emily and attend school in Missoula during the school year. John was entitled to spend one weekend each month of the school year with their daughter in Missoula, and for the majority of the summer, their daughter would live with John in Havre. The parenting plan further provided that “[a] motion to amend this plan to change the school location or schedule ... prior to September, 2013, is vexatious and not in the best interests of the child.”

385 Mont. 371

¶ 5 On February 3, 2014, John filed a motion to modify his child support obligation, citing § 40–4–208, MCA. In his motion, John claimed his “income and financial circumstances have changed significantly.” John explained that “[h]e does not earn the income he once did and he can no longer afford the $750.00 per month payment.” The motion did not elaborate on why or to what extent his income had fallen. John asked for a hearing on his motion and a scheduling order to exchange financial information with Emily.

¶ 6 On February 18, 2014, Emily filed a brief opposing John's motion. Emily argued John's motion was premature under the terms of their agreement and that John had failed to raise sufficient facts to show the substantial and continuing change in circumstances required by § 40–4–208, MCA. After receiving several time extensions, John filed a memorandum and affidavit supporting his motion on March 12, 2014, in which he asserted that § 40–4–208, MCA, allowed the court to modify his child support obligation upon a showing of changed circumstances. According to the memo, John “believes he has shown such a circumstance and will show such a circumstance.” John explained that his declining income was out of his control and noted that the price of gas was at “historic lows.” John again requested a hearing and a scheduling order.

¶ 7 On April 24, 2015, John filed a motion to amend the parenting plan. In his affidavit supporting the motion, John asked the District Court to review the plan because his contact with his daughter “is essentially a non-school year schedule” and “is not substantial and continuing.” John did not claim Emily had breached the parenting plan, but he expressed his belief that it was in his daughter's best interest to spend every other weekend with him during the school year. John again requested a hearing. Emily opposed the motion, arguing again that John had failed to show a substantial change in circumstances.

¶ 8 A discovery dispute ensued when Emily sought to compel John to produce financial records. This dispute further delayed a hearing on John's motions. On August 10, 2015, the parties stipulated to a scheduling order that set September 24 as the date for a hearing on the outstanding motions. Emily filed a status report on September 17 in which she relayed information obtained in discovery about several instances of high-value transactions in John's personal checking account. Premised upon these facts, Emily argued John's financial condition had not changed for the worse and asked the District Court to deny the pending motions and vacate the hearing. Based on Emily's status report, the District Court vacated the hearing but did not rule

385 Mont. 372

on the motions. Instead, the District Court gave John until November 16, 2015, to respond to Emily's status report.

¶ 9 John's response to the status report again asserted that it would be in his daughter's best interest to spend more time with him. Regarding the modification to his child support obligation, John claimed that he was “entitled to a reduction as the parties agreed to adjust child support in two (2) years and [Emily] is making more money today and [John] is making less money today.” As before, John did not provide any explanation of how or why his income had fallen, beyond the vague statement that his “income has declined because of the continued historic lows of natural gas prices.”

¶ 10 On December 15, 2015, the District Court conducted a case management conference with the parties via telephone. Following that conference, the District Court issued the order denying John's motions that serves

384 P.3d 479

as the basis for this appeal. In the order, the District Court stated that “the parties [sic] counsel agreed that no hearing was needed on the pending motions,” although John maintains that neither he nor his counsel withdrew his multiple requests for a hearing. On the basis of the motions, briefs, and affidavits discussed above, the District Court concluded that John had not shown a substantial change in circumstances or provided a basis for modifying his child support obligations. Accordingly, the District Court denied John's...