In re Marriage of D'Alton

• Decision Date: 27 May 2009
• Docket Number: No. DA 08-0624.,DA 08-0624.
• Citation: 2009 MT 184,209 P.3d 251,351 Mont. 51
• Parties: In re the MARRIAGE OF William A. D'ALTON, Petitioner and Appellant, and Moira Murphy D'Alton, Respondent and Appellee.
• Court: Montana Supreme Court

209 P.3d 251

2009 MT 184

351 Mont. 51

In re the MARRIAGE OF William A. D'ALTON, Petitioner and Appellant, and Moira Murphy D'Alton, Respondent and Appellee.

No. DA 08-0624.

Supreme Court of Montana.

Submitted on Briefs May 6, 2009.

Decided May 27, 2009.

For Appellant: William A. D'Alton (self-represented), Billings, Montana.

For Appellee: Kevin T. Sweeney, Attorney at Law, Billings, Montana.

Chief Justice MIKE McGRATH delivered the Opinion of the Court.

¶ 1 William A. D'Alton (Bill) appeals from orders of the Thirteenth Judicial District Court, Yellowstone County, dismissing his motion to modify the parenting plan regarding his two children with ex-wife Moira Murphy D'Alton (Moira), awarding attorney fees to Moira, and rejecting Bill's argument that he has satisfied a home-equity loan obligation. We affirm.

¶ 2 Bill presents the following issues for review:

¶ 3 Whether the District Court erred by dismissing Bill's motion to amend the parenting plan.

¶ 4 Whether the District Court erred by granting Moira attorney fees.

¶ 5 Whether the District Court erred by "rejecting" Bill's position on the issue of the home-equity payment.

BACKGROUND

¶ 6 Bill and Moira married on April 20, 1995. Bill filed for dissolution of marriage on November 6, 2001. Bill and Moira have two minor children. On April 17, 2002, the District Court issued its findings of fact and conclusions of law, dissolving the marriage and ordering a parenting plan that granted custody of the children principally with Moira for ten days every two weeks, and with Bill for the remaining four days of every two weeks. On May 16, 2008, Bill filed a motion to amend the parenting plan to allow a week-to-week custody arrangement. On July 15, 2008, the District Court denied Bill's motion to amend the parenting plan. Finally, on November 10, 2008, the District Court awarded Moira attorney fees as the successful party in parenting modification litigation and resolved a dispute regarding a loan obligation allocated in the dissolution order. Bill appeals from both District Court orders.

STANDARD OF REVIEW

¶ 7 When considering parenting plan modifications, we review the findings of fact underlying a district court's decision to modify a parenting plan for whether they are clearly erroneous. In re Marriage of Oehlke, 2002 MT 79, ¶ 9, 309 Mont. 254, 46 P.3d 49. If these underlying findings are not clearly erroneous, then we will overturn the district court only if there is a clear abuse of discretion. Marriage of Oehlke, ¶ 9. We review a district court's grant or denial of attorney fees for abuse of discretion. In re Marriage of Gorton & Robbins, 2008 MT 123, ¶ 45, 342 Mont. 537, 182 P.3d 746. We review a district court's determination of whether a property settlement agreement is unconscionable for abuse of discretion. Marriage of Gorton & Robbins, ¶ 20.

DISCUSSION

¶ 8 Whether the District Court erred by dismissing Bill's motion to amend the parenting plan.

¶ 9 Pursuant to § 40-4-219(1), MCA, parenting plan modifications require a change in the child's circumstances and must be necessary to serve the best interest of the child:

The court may in its discretion amend a prior parenting plan if it finds, upon the basis of facts that have arisen since the prior plan or that were unknown to the court at the time of entry of the prior plan, that a change has occurred in the circumstances of the child and that the amendment is necessary to serve the best interest of the child.

The party seeking to amend a parenting plan must file a motion and supporting affidavit showing cause for modification. Section 40-4-220(1), MCA. "The court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the affidavits, based on the best interests of the child...." Section 40-4-220(1), MCA. See Marriage of Oehlke, ¶ 12.

¶ 10 Bill argues that the children's changed circumstances are that six years later both children are now in school and the children's nanny was terminated so that she is no longer "a stabilizing force in the children's relationship." Bill further alleges that Moira has willfully and consistently attempted to frustrate his contact with the children, contrary to the children's best interest under § 40-4-219(1)(d), MCA. Specifically, Bill claims that Moira called the sheriff to retrieve a cell phone that the children had left at his house and called an ambulance when their daughter reported having a stomach ache.

¶ 11 We agree with the District Court's conclusions that these changed circumstances "do not satisfy the initial threshold criteria for this Court to order a show cause hearing to amend the parenting plan." The District Court noted that "[i]f the passage of six (6) years and the children both being in school is sufficient to warrant an amendment, then the courts would be flooded with motions to amend parenting plans in most if not all cases." Indeed, the mere aging of children so that they are now in school could hardly be considered "unknown to the court at the time of entry of the prior plan" as required by § 40-4-219(1), MCA. Similarly, termination of the nanny is not a changed circumstance requiring modification of the parenting plan to serve the best interests of the children. The District Court's inquiry was appropriately focused on the best interests of the children, not Bill or Moira. Bill did not convince the District Court, nor this Court, that any modification to the existing parenting plan is required to serve the children's best interest. "[A] party seeking to modify a parenting plan pursuant to § 40-4-219, MCA, carries a heavy burden of proof." Marriage of Oehlke, ¶ 17. Bill has not met his burden of showing that the District Court's findings were clearly erroneous nor has he supplied any indication that the District Court abused its discretion.

¶ 12 Whether the District Court erred by granting Moira attorney fees.

¶ 13 Bill's sole justification for reversing the District Court's award of attorney fees and...