In Re The Marriage Of Amber Guffin

• Decision Date: 04 May 2010
• Docket Number: No. DA 09-0444.,DA 09-0444.
• Citation: 356 Mont. 218,2010 MT 100,232 P.3d 888
• Parties: In re The MARRIAGE OF Amber GUFFIN, f/k/a Amber Plaisted-Harman, Petitioner and Appellant,v.Thomas PLAISTED-HARMAN, Respondent and Appellee.
• Court: Montana Supreme Court

356 Mont. 218

232 P.3d 888

2010 MT 100

In re The MARRIAGE OF Amber GUFFIN, f/k/a Amber Plaisted-Harman, Petitioner and Appellant,v.Thomas PLAISTED-HARMAN, Respondent and Appellee.

No. DA 09-0444.

Supreme Court of Montana.

Submitted on Briefs March 17, 2010.

Decided May 4, 2010.

For Appellant: Jeff A. Turner, Towe, Ball, Enright, Mackey & Sommerfeld, PLLP, Billings, Montana.

For Appellee: J. Dennis Corbin, Attorney at Law, Miles City, Montana.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Petitioner Amber Guffin (Amber) appeals from an order adopting an Amended Final Parenting Plan issued in the Seventh Judicial District Court, Hon. Richard A. Simonton presiding. For the reasons set forth below, we reverse the decision of the District Court.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 Amber and respondent Thomas Plaisted-Harman (Thomas) were married in November 2001, in Kalispell, Montana. The parties had two children while living in Kalispell. In February 2006, the parties moved to Terry, Montana, so that Thomas could take a trucking job. In September 2007, Amber and Thomas separated. In November 2007, Thomas quit his trucking job and took a job managing a ranch two hours away from the family in Ekalaka, Montana.

¶ 3 Thomas and Amber filed a self-represented and joint parenting plan before the District Court in February 2008. A decree of dissolution was entered by the District Court on February 28, 2008. This parenting plan had the children residing primarily with Amber, with Thomas parenting the children every other weekend and during Christmas vacation and other holidays, and during summer vacation.

¶ 4 After the dissolution, Amber decided she wanted to move back to Kalispell, where most of her family and her boyfriend reside. In March 2008, she told Thomas of her plans. In June 2008, she moved back to Kalispell and moved in with her boyfriend, while Thomas kept the children with him for his summer parenting time. Thomas subsequently filed a motion to amend the parenting plan. Amber did not provide written notice to Thomas of her plans to move, as required under § 40-4-217, MCA, until after Thomas had filed his motion to amend ¶ 5 The matter of amending the parenting plan was heard before the District Court. Both parties were represented by counsel and presented testimony and evidence. After the hearing, the District Court entered an order amending the parenting plan and making Thomas the primary residential custodial parent. Under the amended plan, Amber would parent the children one weekend per month during the school year, during the Thanksgiving weekend, Easter and spring break, and during much of the summer recess. The parents would divide Christmas break with the children. In his order, Judge Simonton explicitly stated that Amber should have to “pay the price” of reduced parental contact since she was the one who decided to move to Kalispell.

¶ 6 Amber appealed Judge Simonton's decision. In In re the Marriage of Amber Guffin, f/k/a Amber Plaisted-Harman v. Thomas Plaisted-Harman, 2009 MT 169, 350 Mont. 489, 209 P.3d 225, a unanimous panel of this Court reversed, holding that Amber had a constitutionally-guaranteed right to travel and could not be penalized by Judge Simonton for her exercise of this right. In re Marriage of Guffin, ¶ 11. We stated:

This right to intrastate travel is the same right that Thomas exercised when the family moved to Terry so that he could take a trucking job, and the same right that he exercised when he moved to Ekalaka to work on the ranch. Amber has no less a right to move to pursue her life goals than Thomas had to pursue his. The District Court may not penalize Amber for exercising her right to travel by removing her as the primary custodial parent of the children, and it was an abuse of discretion to do so. Any decision as to the custody of the children must be based upon a careful examination of what is in their best interests. In the Matter of the Marriage of Robinson [ Robison ], 2002 MT 207, ¶ 20, 311 Mont. 246, 53 P.3d 1279.

In re Marriage of Guffin, ¶ 12.

¶ 7 This matter was remanded to the District Court. The District Court gave the parties the opportunity to submit additional proposed findings or briefs, and both parties declined to do so. The District Court entered Amended Findings of Fact, Conclusions of Law, and Parenting Plan on July 9, 2009, again designating Thomas as the primary residential custodial parent, and ordering that the children would reside with him in Ekalaka. Amber was to parent the children one weekend per month during the normal school year, and have the children primarily reside with her during the summer recess. Amber was also to parent the children during Thanksgiving, Easter, and spring break. Amber and Thomas would divide most of the other holiday times occurring throughout the year. The Amended Final Parenting Plan was in essence the same one entered by the District Court prior to remand from this Court. The District Court did however, enter additional findings of fact and conclusions of law in support of its decision, which are the subject of the present appeal.

¶ 8 The District Court found that Thomas and Amber made a joint decision as a family to move to Terry, Montana, in 2006. The District Court found that most of Amber's family lives in the Kalispell area. The District Court noted Amber's concerns about Thomas' parenting ability, her claims that he had missed approximately one-half of his scheduled parenting times prior to the Court's initial revision of the parenting plan, and her concern that the youngest child appeared to be regressing in his potty training. It noted Amber's concerns about the children's safety with Thomas, and her claim that the older child had been disciplining the younger child, instead of Thomas fulfilling this role. The District Court also noted Thomas' testimony that he considered Amber to be a good mother and a fit parent, as well as his assertions that the environment in Ekalaka was positive for the children, and that he would be available to be with them due to the nature of his ranch work. Thomas also stated that his parents and neighbors could help him with the children if needed.

¶ 9 In its consideration of the best interests of the children pursuant to the factors under § 40-4-212, MCA, the District Court essentially concluded that both parents were fit, and that the developmental needs of the children would be met by either parent. However, with regard to whether the children would have “frequent and continuing contact with both parents” under § 40-4-212(1)( l ), MCA, the District Court intimated that Amber's decision to move to Kalispell was not done in the best interests of the children, and noted that Amber failed to provide the required written notice of her intent to move in compliance with statutory notice requirements. Judge Simonton also described the impact on the children of the physical separation of the parents as follows:

Each parent testified that he or she would insure the interaction and interrelationship of the children with the other parent as well as others who significantly affect their best interests. Admittedly, at the time of the hearing, the children did not have many friends in Ekalaka. The parental grandparents live near Terry and a maternal aunt lives in Miles City. It appears that the rest of the relatives, including maternal grandparents, live in the Kalispell area. The children's interaction with the Kalispell relatives will be limited. By choice of the family in 2006 it was limited when they moved to Terry. That move was jointly made by both parents presumably looking out for the best interests of the children. Amber's move to Kalispell was a

unilateral decision which necessarily affects the relationship of one parent with the children.

(Emphasis in original.)

¶ 10 The District Court remarked that there were relative advantages and disadvantages for the children of living in Ekalaka when compared with Kalispell, but stated that it was “not going to resolve that dispute.” On balance, the District Court did not conclude that either location would have any significant advantages or disadvantages for the children, nor did it conclude that the children would not be able to adjust and thrive in the care of either parent.

¶ 11 Section 40-4-219, MCA, describes the circumstances under which a parenting plan can be amended. The statute reads in pertinent part as follows:

40-4-219. Amendment of parenting plan-mediation. (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;

(c) the child is 14 years of age or older and desires the amendment;

(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.

(2) A court may modify a de facto parenting arrangement in accordance with the factors set forth in 40-4-212.

(3) The court shall presume a parent is not acting in the child's best interest if the parent does any of the acts specified in subsection (1)(d) or (8).

¶ 12 Specifically, § 40-4-219(1)(e), MCA, allows the amendment of a parenting plan when “one parent has changed or intends to change the child's...