In re Klatt, DA 12–0205.

• Decision Date: 29 January 2013
• Docket Number: No. DA 12–0205.,DA 12–0205.
• Parties: In re the MARRIAGE OF Sheila KLATT, Petitioner and Appellee, and Shiloh W.B. Klatt, Respondent and Appellant.
• Court: Montana Supreme Court

368 Mont. 290

294 P.3d 391

In re the MARRIAGE OF Sheila KLATT, Petitioner and Appellee, and Shiloh W.B. Klatt, Respondent and Appellant.

No. DA 12–0205.

Supreme Court of Montana.

Submitted on Briefs Nov. 28, 2012.

Decided Jan. 29, 2013.

For Appellant: Shiloh W.B. Klatt, self-represented, Ennis, Montana.

For Appellee: Christopher J. Gillette; Law Office of Christopher J. Gillette; Bozeman, Montana.

Justice BETH BAKER delivered the Opinion of the Court.

[368 Mont. 291]¶ 1 Shiloh Klatt appeals the Fifth Judicial District Court's order amending a prior parenting plan and granting to his former spouse, Sheila Klatt, primary custody of their three children. We affirm.

¶ 2 We address the following issues on appeal:

¶ 3 1. Did the District Court comply with § 40–4–219, MCA, when it amended the prior parenting plan?

¶ 4 2. Did the District Court err in determining the best interest of the Klatt children?

PROCEDURAL AND FACTUAL BACKGROUND

¶ 5 Shiloh and Sheila Klatt were married in Gallatin County, Montana, in 1993. Between the years of 1998 and 2002, the Klatts had a daughter and two sons: C.J.K., T. S.K. and C.S.K., respectively. In June 2006, after Sheila filed a petition for dissolution of their marriage, the Klatts entered a Marital Dissolution Agreement and Parenting Plan (June 2006 Parenting Plan), which provided in part that “the parties shall share alternate two weeks of parenting with the minor children, with all the children being together whenever possible. The parties shall each enjoy five weeks of uninterrupted parenting a year to allow for vacation time with the minor children.” At that time, Sheila was a non-practicing licensed cosmetologist, who stayed at home full-time to care for the children. Shiloh worked as a self-employed certified public accountant (CPA) and agreed to pay maintenance and child support to Sheila pursuant to the parenting plan. Following entry of the parenting plan, Shiloh often took the children on extended international trips during his parenting time.

¶ 6 On September 28, 2009, Sheila filed a motion to modify the June 2006 Parenting Plan. She stated that the Klatts had not followed the plan due to Shiloh's business activities and personal trips, which caused a significant decrease in his visitation with the children. Particularly during tax season—January through April—when Shiloh's professional activities increased, the children resided with Sheila on a full-time basis. Her motion alleged, “[t]he fact that the children are and have been spending substantially less time with their father than what is allowed in the existing parenting plan constitutes a substantial change of circumstances as contemplated by § 40–4–219[,] MCA.” Shiloh filed a response denying that his business and personal trips had decreased his parenting time. He alleged that Sheila remained underemployed and, as a result of her financial difficulties, the parties had agreed to increase Shiloh's work during tax season so that he could provide additional support to the family.

¶ 7 After attending mediation in January 2010, the parties stipulated to hiring Christopher Hahn, Ph.D., as Guardian ad Litem and Parenting Plan Coordinator. They stipulated that Dr. Hahn would, among other things, “have some of the authority ordinarily reserved to the Court to make decisions clarifying, augmenting, implementing, adapting, and to a certain extent, interpreting and modifying the court-ordered parenting plan when the parents disagree.” They agreed that Dr. Hahn would “base all decisions on the best interests of the children.” The District Court's April 2, 2010 order appointed Dr. Hahn as Guardian ad Litem, directed him to prepare a report of his observations of the family by June 4, 2010, and stated that the court would “review the results” of the Klatts' stipulation rather than mandate conformance to its terms. Dr. Hahn filed an Initial Report on June 4, 2010, stating that he had limited opportunity to observe the Klatts, particularly the interaction of the children with their father, and that he would file additional reports as he gathered information and spent more time with the family.

¶ 8 On October 25, 2010, Shiloh agreed to a temporary child residency arrangement, under which the Klatt children would reside with Sheila from September 1, 2010, through May 31, 2011, but would have varying weekend visitation with Shiloh. Beginning June 1, 2011, the children would continually alternate between three weeks with Shiloh and two weeks with Sheila until August 31, 2011, when the arrangement would expire.

¶ 9 On October 20, 2011, after observing the Klatt family for about one and one-half years, Dr. Hahn filed a full report. He recommended that “the parenting plan be amended to reflect the changes that were made by stipulation for the 2010/2011 school year.” Dr. Hahn now had observed closely the interactions between the children and each parent, had on numerous occasions communicated individually with the Klatt children and each parent, and also had met once with the whole family. Dr. Hahn's report revealed that the Klatt children “strongly preferred” residing with their mother and emphasized, “[i]t is remarkable how strong, constant, and unified the opinions of the children have been throughout the duration of my term as parenting plan coordinator. They have never wavered in their basic wishes.” For that reason, Dr. Hahn suggested that the “wishes of the child,” under § 40–4–212(1)(b), MCA, would be a “particularly relevant” factor in determining the best interest of the Klatt children. According to Dr. Hahn, the children expressed frustration with Shiloh's failure to provide for their basic needs and described experiences while in their father's care that caused them apprehension, fear, and anger—including an incident when Shiloh became angry while driving on the interstate highway and slammed on the brakes so hard that his vehicle, in which the children were passengers, spun 180 degrees in the roadway. Dr. Hahn concluded in summary, “I believe that the children would want more time with their Dad if their basic parenting needs are better met by him, but at the present time and for the entire period of time that I have been involved with this case, the children are highly frustrated and sometimes angry about the time they have to spend with their Dad.”

¶ 10 On December 16, 2011, Shiloh filed a motion to dismiss Dr. Hahn and rescind the contract appointing him as Guardian ad Litem. He requested that the District Court strike Dr. Hahn's October 2011 report, as it was made after the court-ordered date of June 4, 2010, and was based on “factual misstatements.” Sheila filed a response on December 30, 2011, reiterating her reasons for requesting an amendment to the parenting plan and suggesting that the District Court adopt Dr. Hahn's recommendations. On January 9, 2012, Shiloh filed a petition to hold Sheila in contempt under § 3–1–501(e), MCA, for failing to follow the court's orders and the June 2006 Parenting Plan. He alleged that Sheila had prevented, obstructed, or frustrated his contact with the children, in particular his communication with their thirteen-year-old daughter, C.J.K. His supporting affidavit stated that Sheila had blocked calls from Shiloh to C.J.K., would not allow C.J.K. to speak with Shiloh alone, and, in January 2012, supported C.J.K.'s refusal to stay with Shiloh, in disregard of the June 2006 Parenting Plan.

¶ 11 The District Court held a hearing on February 13, 2012, in which it heard testimony from Sheila, Shiloh, Dr. Hahn and other witnesses, and questioned the parties. At the conclusion of the hearing, the court discussed on the record the § 40–4–212, MCA, factors used to determine the best interest of the child. The court found the evidence did not support Shiloh's allegation that Sheila had obstructed his communication and contact with the children and stated that “respect” had become an issue central to the family. The court stated that mutual anger existed between the children and their father, which could adversely affect the children, and noted the incident where Shiloh “slammed on the [brakes], the vehicle spun around and scared the kids badly.” The court also stated that credible evidence indicated that “at least from time to time, if not constantly, the children are frightened.” Shiloh had conceded during the hearing that he had on occasion over-disciplined the children. The court agreed with Dr. Hahn that the wishes of the children and the § 40–4–212, MCA, factors, including continuity and stability of care, were “cogent here” and expressed concern that if the historical divergence from the parenting plan continued, the children would experience a lack of structure and consistency. On February 29, 2012, the District Court ordered a new parenting plan providing that the children primarily would reside with Sheila during the school year and granting Shiloh visitation on one weekday each week and every other weekend.

STANDARD OF REVIEW

¶ 12 We review for clear error the findings of fact underlying a district court's decision to modify a parenting plan. In re Marriage of Banka, 2009 MT 33, ¶ 9, 349 Mont. 193, 201 P.3d 830 (citing Jacobsen v. Thomas, 2006 MT 212, ¶ 13, 333 Mont. 323, 142 P.3d 859). If its findings are not clearly erroneous, “we will reverse the district court's decision only where an abuse of discretion is clearly demonstrated.” Jacobsen, ¶ 13 (citing In re Marriage of Oehlke, 2002 MT 79, ¶ 9, 309 Mont. 254, 46 P.3d 49). We review de novo whether a court's action conforms to statutory requirements. Jacobsen, ¶ 13.

¶ 13 We have repeated on numerous occasions that the trial court's decision is to be accorded great deference because it “is in a better position than this Court to resolve child custody issues.” In re Marriage of Wilson, 2009 MT 203, ¶ 15, 351 Mont. 204, 210 P.3d 170 (quoting In re Marriage of McKenna, 2000 MT 58, ¶ 17, 299 Mont. 13, 996 P.2d 386);...