In re Marriage of McKenna, No. 99-134.

Docket NºNo. 99-134.
Citation299 Mont. 13, 2000 MT 58, 996 P.2d 386
Case DateMarch 09, 2000
CourtUnited States State Supreme Court of Montana

996 P.2d 386
2000 MT 58
299 Mont. 13

In re the MARRIAGE OF Thomas Anthony McKENNA, Petitioner and Appellant,
and
Sally Jo McKenna, Respondent and Respondent

No. 99-134.

Supreme Court of Montana.

Submitted on Briefs September 2, 1999.

Decided March 9, 2000.


George T. Radovich, Billings, Montana, For Appellant.

Damon L. Gannett, Gannett Law Firm, Billings, Montana, For Respondent.

Justice WILLIAM E. HUNT, SR., delivered the Opinion of the Court.

¶ 1 Thomas Anthony McKenna (Thomas) appeals from the Findings of Fact and Conclusions of Law of the Thirteenth Judicial District Court, Yellowstone County, awarding primary residential custody of the parties' minor child to Sally Jo McKenna (Sally). We affirm.

¶ 2 We are asked to address the question of whether the District Court's decision awarding Sally primary custody of the child during the school year was an abuse of discretion.

996 P.2d 387
Factual and Procedural History

¶ 3 Thomas and Sally were married on September 1, 1990, in Tulare, California. They had one child, Kirsten Marie McKenna (Kirsten), during their marriage. Kirsten was born on December 28, 1993. The parties separated on May 5, 1997, and have lived apart since that time. This case was initiated when Thomas filed a Petition for Dissolution of his marriage to Sally on June 12, 1997. The parties then entered into a Partial Marital and Property Settlement Agreement governing the division of marital property and the allocation of marital liabilities on October 10, 1997. This agreement was filed with the court.

¶ 4 Since separating, Thomas and Sally have mutually agreed to a shared custody arrangement. Kirsten's time has been alternated between the parties so as to provide each parent with approximately one-half of the child's time. The parties' Partial Marital and Property Settlement Agreement contained temporary provisions for the continuation of joint custody of Kirsten pending a final decree of dissolution. The parties further informed the District Court that they desired that the court incorporate all of the terms of their marital property agreement, except the provisions for the equal allocation of Kirsten's time between the parents, into the final decree of dissolution.

¶ 5 Thus, the parties stipulated to a custody investigation by the Yellowstone County Court Services pertaining to the allocation of Kirsten's time. The custody investigation was performed by Sherri Kenck (Kenck), Court Services Family Relations Specialist. Kenck's completed custody investigation, dated January 28, 1998, was submitted to the District Court and received into evidence. In her investigation, Kenck recommended in pertinent part that Thomas and Sally

share joint parenting time. It is recommended that the current schedule remain in place with some provisions made to provide Kirsten with continuity and stability of care. When Kirsten starts school, it is recommended that she return to her mother's home to sleep on the evenings she is with her father. A suggested return time would be 7:30. This will allow Kirsten to have a sense of continuity as she prepares for school each day, but will allow the current schedule to remain in place. During the summer months, it is recommended that the overnight weekday visits resume.

¶ 6 Although the parties initially represented to the District Court that they were willing to accept Kenck's recommendations, a disagreement subsequently developed concerning when the cessation of overnight times with Thomas during weekdays would occur. On October 30, 1998, a hearing was held on the matter of allocating Kirsten's time among the parents. In addition to Kenck, several other experts testified at the hearing, including: Kate Zednick, Licensed Clinical Social Worker (Zednick); Jim Paulson, Licensed Clinical Social Worker (Paulson); and Dr. F. Tom Peterson, Licensed Clinical Psychologist (Dr. Peterson).

¶ 7 At the hearing, Kenck testified that although both parents were very nurturing and close to Kirsten, there were some relationship difficulties between the parents which posed an impediment to Kirsten's long-term adjustment to her parents' divorce. In particular, Kenck observed that communications between Thomas and Sally were marked by frustration, anger, arguing, and the inability to reach agreement and make co-parenting decisions relative to Kirsten. Children of Kirsten's age are particularly susceptible to such a relationship between their parents, according to Kenck, and Kirsten had been exhibiting both physical and emotional reactions to this dynamic between...

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17 practice notes
  • Whyte v. Couvillion, No. DA 11–0379.
    • United States
    • Montana United States State Supreme Court of Montana
    • February 28, 2012
    ...Mont. 230, 53 P.3d 1273 (noting our “firm belief” that the trial court is in a better position than this Court); In re Marriage of McKenna, 2000 MT 58, ¶ 17, 299 Mont. 13, 996 P.2d 386 (“it is not this Court's role to second-guess the fact-finding function of the District Court” as the tria......
  • Hood v. Hood, No. DA 11–0136.
    • United States
    • Montana United States State Supreme Court of Montana
    • July 24, 2012
    ...respective testimony.” N.S., ¶ 25 (citing Kulstad v. Maniaci, 2009 MT 326, ¶ 52, 352 Mont. 513, 220 P.3d 595;In re Marriage of McKenna, 2000 MT 58, ¶ 17, 299 Mont. 13, 996 P.2d 386). We will not substitute our judgment for that of the district court on such matters since it is [365 Mont. 45......
  • Czapranski v. Czapranski, No. 00-471.
    • United States
    • Montana United States State Supreme Court of Montana
    • February 11, 2003
    ...erroneous. In re Marriage of Fishbaugh, 2002 MT 175, ¶ 19, 310 Mont. 519, ¶ 19, 52 P.3d 395, ¶ 19 (citing In re Marriage of McKenna, 2000 MT 58, ¶ 14, 299 Mont. 13, ¶ 14, 996 P.2d 386, ¶ ¶ 11 A district court is required to determine child custody matters in accordance with the best interes......
  • Whyte v. Couvillion, DA 11-0379
    • United States
    • Montana United States State Supreme Court of Montana
    • February 28, 2012
    ...Mont. 230, 53 P.3d 1273 (noting our "firm belief" that the trial court is in a better position than this Court); In re Marriage of McKenna, 2000 MT 58, ¶ 17, 299 Mont. 13,Page 22996 P.2d 386 ("it is not this Court's role to second-guess the fact-finding function of the District Court" as th......
  • Request a trial to view additional results
17 cases
  • Whyte v. Couvillion, No. DA 11–0379.
    • United States
    • Montana United States State Supreme Court of Montana
    • February 28, 2012
    ...Mont. 230, 53 P.3d 1273 (noting our “firm belief” that the trial court is in a better position than this Court); In re Marriage of McKenna, 2000 MT 58, ¶ 17, 299 Mont. 13, 996 P.2d 386 (“it is not this Court's role to second-guess the fact-finding function of the District Court” as the tria......
  • Hood v. Hood, No. DA 11–0136.
    • United States
    • Montana United States State Supreme Court of Montana
    • July 24, 2012
    ...respective testimony.” N.S., ¶ 25 (citing Kulstad v. Maniaci, 2009 MT 326, ¶ 52, 352 Mont. 513, 220 P.3d 595;In re Marriage of McKenna, 2000 MT 58, ¶ 17, 299 Mont. 13, 996 P.2d 386). We will not substitute our judgment for that of the district court on such matters since it is [365 Mont. 45......
  • Czapranski v. Czapranski, No. 00-471.
    • United States
    • Montana United States State Supreme Court of Montana
    • February 11, 2003
    ...erroneous. In re Marriage of Fishbaugh, 2002 MT 175, ¶ 19, 310 Mont. 519, ¶ 19, 52 P.3d 395, ¶ 19 (citing In re Marriage of McKenna, 2000 MT 58, ¶ 14, 299 Mont. 13, ¶ 14, 996 P.2d 386, ¶ ¶ 11 A district court is required to determine child custody matters in accordance with the best interes......
  • Whyte v. Couvillion, DA 11-0379
    • United States
    • Montana United States State Supreme Court of Montana
    • February 28, 2012
    ...Mont. 230, 53 P.3d 1273 (noting our "firm belief" that the trial court is in a better position than this Court); In re Marriage of McKenna, 2000 MT 58, ¶ 17, 299 Mont. 13,Page 22996 P.2d 386 ("it is not this Court's role to second-guess the fact-finding function of the District Court" as th......
  • Request a trial to view additional results

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