IN RE MARRIAGE OF CARTER

• Decision Date: 13 February 2003
• Docket Number: No. 01-407.,01-407.
• Citation: 63 P.3d 1124,2003 MT 19
• Court: Montana Supreme Court
• Parties: In re the MARRIAGE OF Marina CARTER, Petitioner and Respondent, and Austin Roger Carter, Respondent and Appellant.

63 P.3d 1124

2003 MT 19

In re the MARRIAGE OF Marina CARTER, Petitioner and Respondent, and

Austin Roger Carter, Respondent and Appellant.

No. 01-407.

Supreme Court of Montana.

Submitted on Briefs November 1, 2001.

Decided February 13, 2003.

Ronald Waterman, Gough, Shanahan, Johnson & Waterman, Helena, for Appellant.

Magdalena C. Bowen, Bowen & Parker, Bozeman, for Respondent. Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Austin Roger Carter (Roger) appeals the final parenting plan entered by the Eighteenth Judicial District Court, Gallatin County. We affirm the order of the District Court.

¶ 2 We address the following issues on appeal:

¶ 3 1. Whether the final parenting plan adopted by the District Court was in the best interest of the children and supported by substantial evidence.

¶ 4 2. Whether Respondent is entitled to attorney fees in defending this appeal.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 5 Roger and Marina Harris (Marina) were married in October 1993 and separated in June 1997. Two children were born during the marriage. A dissolution proceeding was initiated in 1997, and a final decree, including parenting plan, was adopted by the District Court on June 1, 1999.

¶ 6 Eight days after the final parenting plan was approved, Marina advised Roger that she was engaged to be married and was moving with the children to Salt Lake City, Utah. Marina's move necessitated changes in the parenting plan, some of which were resolved by mediation, but others were brought before the District Court in a hearing held on April 6, 2000. At the hearing, Dr. Charles Kelly (Dr. Kelly), a psychologist who had previously performed a parenting plan evaluation in 1998 and was called by Marina, opined that it was in the children's best interest to reside with Marina and further, that traveling on alternating weekends from Salt Lake City to Belgrade, Montana, to be with Roger was stressful for the children and not in the best interest of their relationship with Roger. Based on the evidence presented at the hearing, the District Court issued an interim parenting plan which provided a parenting schedule through June 2001. The interim parenting plan adopted by the District Court was date specific and provided Roger contact with the children about twice per month, for three to five days each time.

¶ 7 On June 27, 2000, Roger filed a Motion to Amend the Interim Order. Roger proposed a parenting plan that would provide him more contact with the children. The proposal contemplated that Roger would relocate to Utah and have custody of the children 50 percent of the time.

¶ 8 The District Court held a hearing on January 26, 2001, to establish a final parenting plan. After hearing evidence, the District Court denied Roger's proposed parenting plan, adopting a final parenting plan which named Marina as the primary custodial parent and providing that the children would reside with her the majority of time. Based on the assumption that Roger would reside in Utah, Roger was provided parenting time with the children every other week from Wednesday after school until Sunday morning and one night a week during the alternate week. The parenting plan also provided a schedule for holidays and summers. Roger appeals.

STANDARD OF REVIEW

¶ 9 When we review a district court's findings related to the modification of a parenting plan regarding custody and visitation, the standard of review is whether those findings are clearly erroneous. In Re the Marriage of Oehlke, 2002 MT 79, ¶ 9, 309 Mont. 254, ¶ 9, 46 P.3d 49, ¶ 9. When findings upon which a decision is predicated are not clearly erroneous, we will reverse a district court's decision regarding a parenting plan only where an abuse of discretion is "clearly demonstrated." Oehlke, ¶ 9.

DISCUSSION

¶ 10 Was the final parenting plan adopted by the District Court in the best interest of the children and supported by substantial evidence?

¶ 11 The district court is required to determine child custody matters in accordance with the best interest of the child. Section 40-4-212, MCA (1999), provides in relevant part:

(1) The court shall determine the parenting plan in accordance with the best interest of the child. The court shall consider all relevant parenting factors, which may include by are not limited to:

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

...

(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;

...

(h) continuity and stability of care[.]

Section 40-4-219, MCA (1999), provides the following direction in regard to amendment of a parenting plan:

(1) 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. In determining the child's best interest under this section, the court may, in addition to the criteria in 40-4-212, also consider whether:

(a) the parents agree to the amendment;

(b) the child has been integrated into the family of the petitioner with consent of the parents; ...

(d) one parent has willfully and consistently:

(i) refused to allow the child to have any contact with the other parent; or

(ii) attempted to frustrate or deny contact with the child by the other parent; or

(e) one parent has changed or intends to change the child's residence in a manner that significantly affects the child's contact with the other parent.

¶ 12 Roger argues that both parents should have frequent and continuing contact with the children, and the only way to satisfy the requirement that the best interest of the children be served is to allow each parent to have contact with the children 50 percent of the time. Roger does not maintain that 50/50 parenting contact is appropriate in all cases, but that it is appropriate in this case, because both parents agree that the other parent possesses the necessary and appropriate parenting skills to properly care for the physical and emotional needs of the children. Roger maintains that there is no evidence in the record and no justification for limiting his parenting contact with his children to an every other long weekend. Roger claims the District Court did not provide any rationale for its arbitrary decision to restrict his contact with the children.

¶ 13 Roger argues that the District Court was required to consider and discuss the factors set forth in §§ 40-4-212 and 40-4-219, MCA, and demonstrate in its findings that it had evaluated the facts, in light of the statute. Roger contends the District Court failed to carry out this function, offering that "the District Court merely recited the rote findings that Roger's parenting proposal was `not in the best interests of the children'." According to Roger, the District Court provided no indication that it even considered the statutory factors set forth above. Thus, Roger concludes that the record did not support the District Court's Order, that the District Court abused its discretion, and this Court should reverse the parenting plan.

¶ 14 In a marriage dissolution proceeding, the district court is required to determine child custody matters in accordance with the best interest of the child. See §§ 40-4-212 and 40-4-219, MCA. While a district court must consider the several statutory factors listed in § 40-4-212, MCA, we have held that the court is not required to make specific findings regarding each and every factor listed in the statute. In Re the Marriage of McKenna, 2000 MT 58, ¶ 15, 299 Mont. 13, ¶ 15, 996 P.2d 386, ¶ 15, and In Re the Marriage of Anderson (1993), 260 Mont. 246, 252, 859 P.2d 451, 455. This Court stated in Anderson that:

The custody determination must be based on substantial evidence relating to the statutory factors and [the evidence] must be set forth explicitly in the findings. The findings should, at a minimum, set forth the "essential and determining facts upon which the District Court rested its conclusion on the custody issue."

Anderson, 260 Mont. at 252-53, 859 P.2d at 455, quoting In Re the Marriage of Converse (1992), 252 Mont. 67, 71, 826 P.2d 937, 939.

¶ 15 The parties submitted substantially different parenting plans. Marina proposed a parenting plan similar to the June 1, 1999, parenting plan, which allowed Roger contact with the children every other week for a long weekend and one night during the week he did not have the children. Roger, on the other hand, submitted a parenting plan in which the children alternated between the parties, two weeks with him and then two weeks with Marina. In considering the children's adjustment to their home, school, and community, the District Court found it was important for the children to have continuity and consistency in the parenting environment, which was consistent with Dr. Kelly's report and testimony. In its findings of fact, the District Court noted that "Dr. Kelly indicates [Marina] is the primary parent and the children should not spend lengthy times away from [Marina]." Further, the District Court found that "[Roger's] proposal of rotating the children's residency every two weeks is not in the best interests of the children based on Dr. Kelly's evaluation of the children."

¶ 16 The District Court also found both Roger and Marina were able parents and that neither had acted neglectfully or abusively toward the children, adding that "[b]oth parties are good, loving parents and neither parent offers criticism of the other's parenting skills or abilities to parent the children." Dr. Kelly indicated there was no mental or physical problems that prevented...