IN RE MARRIAGE OF OEHLKE

• Decision Date: 26 April 2002
• Docket Number: No. 00-855.,00-855.
• Citation: 309 Mont. 254,46 P.3d 49,2002 MT 79
• Parties: In re the MARRIAGE OF Herbert W. OEHLKE, Petitioner/Appellant/Cross-Respondent, and Carri L. Oehlke, Respondent/Appellee/Cross-Appellant.
• Court: Montana Supreme Court

46 P.3d 49

309 Mont. 254

2002 MT 79

In re the MARRIAGE OF Herbert W. OEHLKE, Petitioner/Appellant/Cross-Respondent, and

Carri L. Oehlke, Respondent/Appellee/Cross-Appellant.

No. 00-855.

Supreme Court of Montana.

Submitted on Briefs November 8, 2001.

Decided April 26, 2002.

For Appellant: Shari M. Gianarelli, Gianarelli Law Office, Conrad, Montana.

For Respondent: Kirk D. Evenson, Marra, Wenz & Johnson, Great Falls, Montana. Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 The marriage of Herbert Oehlke (Herbert) and Carri Oehlke (Carri) was dissolved pursuant to a decree issued in October, 1996. As part of the dissolution, the parties entered into a Child Custody, Support, and Property Settlement Agreement, which designated Carri as the primary custodian of the couple's only child. On April 26, 2000, Herbert filed a Petition for Amendment to Parenting Plan. Following a hearing, the District Court denied Herbert's petition and also denied Carri's request for attorney's fees. Herbert appeals the court's denial of his petition to amend and Carri cross-appeals the court's denial of attorney's fees. We affirm.

¶ 2 The following issues are presented for our review:

1. Whether the District Court erred when it denied the father's petition to amend the parenting plan; and

2. Whether the District Court erred when it denied the mother's request for attorney's fees.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 Herbert and Carri were married in 1993, and have one minor child, a daughter, born in 1994. In 1996, Herbert and Carri sought dissolution of their marriage. As part of the dissolution, on September 6, 1996, Herbert and Carri executed a Child Custody, Support, and Property Settlement Agreement (Agreement).

¶ 4 Under the Agreement, Carri was designated the primary care giver during the school year, while in the summers their daughter would live with Herbert and also stay with him during agreed vacations. The Agreement provided that:

Both Husband and Wife are fit and proper persons to be granted the joint care, custody and control of their minor child ... however, at the time Wife completes her nursing studies, Wife intends, and Husband agrees that Wife shall have the primary custody of the minor child ... taking the said minor child with her to her intended out-of-state residence in Minnesota. After Wife has completed her nursing studies and moved out of the State of Montana, Husband shall have physical custody for the summer school vacation, alternating holidays as contemplated below in the section entitled "Visitation" and as may be agreed upon and arranged by the parties.

The section concerning visitation provided that if either parent would be absent for more than seven days, the other parent had first preference to assume supervision of their daughter. Moreover, the visitation section of the Agreement provided that:

Wife is further amenable to and agrees that Husband shall have extended visitation with the minor child ... prior to enrollment in school, during Husband's off-season from the labor-intensive seasons for farming, generally being April through October. In the months from November through March, when Husband can make satisfactory arrangements as may be agreed upon by the parties, he shall have extended visitation and physical custody of the minor child.

¶ 5 The District Court found that the Agreement was not unconscionable and accordingly approved and adopted it in the divorce decree dated October 7, 1996. Concerning custody, the court concluded in the decree that the parents shall have joint custody "as provided in the ... Agreement and subject to the provisions of said Agreement."

¶ 6 Following the divorce, the child primarily resided with Carri in Minnesota, and Herbert had visitation during some holidays, summer vacations, and various other times as the parties agreed. In December of 1999, Carri contacted Herbert and told him their daughter wanted to spend more time with him, and that Carri, a registered nurse, had decided to return to school in a Nurse/Anesthetist Program to hopefully improve the hours she was working. Herbert picked up their daughter from Carri's in December with the understanding she would stay with him for an undetermined period of time. At the hearing, Herbert testified that it was not unusual for him to have their daughter for undefined periods of time. Carri understood the arrangement to be that the child would stay with Herbert through the school year and return with Carri to Minnesota in the summer.

¶ 7 In April of 2000, when Carri came to Montana to visit, Herbert approached her about changing the parenting plan so he would be the permanent primary physical custodian, with Herbert having custody during the school year and Carri having custody over the summer. By seeking designation as the primary physical custodian, Herbert sought to prevent Carri from shifting their child's residence back and forth. Carri did not agree to the change, and Herbert subsequently filed a petition to amend the parenting plan, since he was concerned Carri would not return their daughter at the end of the summer. At the end of the school year, the child returned to Minnesota.

¶ 8 On September 18, 2000, the District Court held a hearing on the petition where both parents, as well as others, testified. The court entered its Order Denying Request to Modify Parenting Plan on October 2, 2000. In its order, the District Court concluded the jurisdictional prerequisite of changed circumstances was absent and that it therefore was without authority to modify the parenting plan. The District Court also denied Carri's request for attorney's fees based on its finding that Herbert's petition was not frivolous, vexatious, or meant to harass Carri.

STANDARD OF REVIEW

¶ 9 When we review a district court's findings related to a modification of custody, the standard of review is whether those findings are clearly erroneous. In re Paternity and Custody of A.D.V., 2001 MT 74, ¶ 8, 305 Mont. 62, ¶ 8, 22 P.3d 1124 ¶ 8. When findings upon which a decision is predicated are not clearly erroneous, we will reverse a district court's decision regarding modification of custody only where an abuse of discretion is clearly demonstrated. A.D.V., ¶ 8, 22 P.3d 1124 (citing In re Marriage of Abrahamson (1996), 278 Mont. 336, 340, 924 P.2d 1334, 1337).

DISCUSSION

Issue 1

¶ 10 Did the District Court err when it dismissed the father's petition to amend the parenting plan?

¶ 11 Herbert claims the District Court incorrectly required him to show a change of circumstances before it would consider his petition to modify the parenting plan, arguing that Herbert's petition sought only to make a de facto modification permanent, and did not seek to change the primary residence of their daughter. In the alternative, Herbert argues that he did demonstrate a sufficient change in circumstances to meet the jurisdictional threshold of § 40-4-219(1), MCA. Finally, Herbert argues that the District Court's findings are not supported because the court improperly interpreted the Agreement when it concluded the Agreement contemplated transferring physical custody of the parties' daughter.

¶ 12 The finding of changed circumstances is a jurisdictional prerequisite, and without such a finding, a district court may not modify an existing custody arrangement. In re Marriage of Syverson (1997), 281 Mont. 1, 16-17, 20, 931 P.2d 691, 701, 702 (citing In re Marriage of Johnson (1994), 266 Mont. 158, 166, 879 P.2d, 689, 694); and In re Marriage of Boyer (1995), 274 Mont. 282, 286, 908 P.2d 665, 667. If a request for modification of a joint custody decree would have the effect of substantially changing the primary residence of the parties' children, the court, before engaging in modification, must first find that the requirements of § 40-4-219, MCA, have been met. Syverson, 281 Mont. at 20, 931 P.2d at 702.

¶ 13 We conclude Herbert's proposed amended parenting plan was not merely a de facto modification of the parenting plan. Herbert's amended plan would have the effect of substantially changing the primary residence of the child, and accordingly we conclude he must meet the jurisdictional threshold of § 40-4-219, MCA.

¶ 14 Under § 40-4-219, MCA, a court may proceed to modify a 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.

¶ 15 In its order, the District Court found that Herbert made "no allegation in his petition that circumstances have changed." The court also noted that, for the proposition that circumstances had changed, Herbert relied only on the December 1999 arrangement, "loose though it was, to have the minor child reside with [him] rather than [Carri] for a period of time while [Carri] resolved pending job opportunities." The court noted the Agreement provided that Herbert "may have `physical custody ... as may be agreed upon and arranged by the parties,'" and also cited the visitation provision that gave one of the parents first preference for supervising their daughter if the other parent would be absent for more than seven days. The court concluded these provisions were "flexible and reasonable."

¶ 16 Herbert argues that evidence introduced at the hearing was sufficient to demonstrate a change in circumstances. Herbert notes that his daughter was enrolled and doing well in school, had integrated into his family and developed significant relationships with his family and Carri's extended family who lived nearby. He also cites to concerns about his daughter's eating habits and possible eating disorder that he speculated stemmed from Carri's eating disorder. Finally, Herbert references that Carri was expecting a baby, planning to remarry, and continues to...