Johnson v. Batey (In re Z.D.L.-B.), DA 15–0559.
| Decision Date | 12 July 2016 |
| Docket Number | No. DA 15–0559.,DA 15–0559. |
| Citation | 2016 MT 164,384 Mont. 65,375 P.3d 378 |
| Parties | In the Matter of the Parenting of Z.D.L.-B., Jessica Jeanne Johnson, fka Jessica Jeanne Lawrence, Petitioner and Appellant, v. Daniel William Batey, Respondent and Appellee. |
| Court | Montana Supreme Court |
For Appellant: Alice J. Hinshaw, Michelle H. Vanisko, Hinshaw Law Firm, PLLC, Helena, Montana.
For Appellee: Roberta Cross Guns, Attorney at Law, Ulm, Montana.
delivered the Opinion of the Court.
¶ 1 Z.D.L.-B. () is the 12–year–old son of Jessica Jeanne Johnson (Jessica), and Daniel William Batey (Daniel). Jessica appeals the Findings of Fact, Conclusions of Law, and Final Parenting Plan entered by the First Judicial District Court, Lewis and Clark County. The Final Parenting Plan named Daniel as the primary care provider, after Jessica had been Z's primary provider. We affirm and address the following issues:
¶ 2 Z was born in 2003 to Jessica and Daniel, who were then both in high school. From birth, Jessica was the primary care provider for Z, with assistance from Daniel and their respective families. Jessica and Daniel did not marry and, after their romantic relationship ended, the parties managed to parent Z without significant court intervention. Jessica petitioned for a parenting plan in 2005, and the court adopted a Stipulated Parenting Plan. In 2007, the parents filed a Stipulated First Amended Parenting Plan (referred to herein as the “Amended Plan”), which was also adopted by the court. It remained in force until the events described below.
¶ 3 The Amended Plan provided that Z would reside primarily with Jessica, while spending alternating weekends, designated holidays, and birthdays with Daniel, “regardless if the parents are living in the same community or not.” Both parties acknowledge that, while they adhered more or less to the Amended Plan, they were flexible in the time each would spend with Z.
¶ 4 After both parties attended Helena College of Technology, Daniel moved to Missoula in 2006. In 2008, shortly after the Amended Plan was adopted, Jessica moved to Butte with Z, who attended school there until 2011. In 2011, Jessica moved to Wise River, and Z attended school there. Jessica moved to the Missoula area in 2012, finding a place to live in Frenchtown. Z attended Target Range Elementary School in Missoula for a time, until Jessica started to homeschool him. The homeschooling period did not last long, and thereafter, Z attended the Frenchtown public schools until October 2014. During the time that both parties lived in the Missoula area, Daniel began exercising more time with Z, in excess of the time provided in the Amended Plan.
¶ 5 By the fall of 2014, Daniel had moved back to Helena, and was working there. Although the parties hotly contest the characterization of the transfer of Z that took place in Helena, a simplified version is as follows: Jessica decided to move back to Helena, and asked Daniel if Z could live with him in anticipation of her relocation to the area. Daniel, taking this request to mean that Z would live with him for the remainder of the school year, agreed, and enrolled Z at Hawthorne Elementary School in the fall of the 2014–2015 academic year. Jessica maintains that both parties understood that Z would live with Daniel only through the end of the current semester, stating: “So it was my intention that, at winter break, I would retrieve [Z] and put him in school wherever I decided to live at that time.” Upon her move to Helena, Jessica initially lived with her father, who resided within the city limits, while she was looking for employment.
¶ 6 An incident occurred on November 18, 2014, at Hawthorne Elementary School. Daniel had set up a meeting with Z's fifth grade teacher to discuss Z's progress and needs, and informed Jessica, who declined to attend the meeting because Daniel's girlfriend was going to be there. Nonetheless, the parties agreed that Jessica could pick up Z early from school that day in order to have dinner with him.
¶ 7 Before the scheduled parent-teacher meeting began, Jessica arrived at the school and found Z outside of his classroom with his teacher. Jessica approached the teacher, who asked her some identifying questions. Jessica informed the teacher who she was, that she was there to pick up Z, and that she wasn't sure she wanted Z to continue attending school there. School officials did not recognize Jessica because she was not registered with the principal's office, and therefore were reluctant to release Z to her care. Jessica became angry, and school officials called law enforcement and Daniel to respond at the school. The situation eventually de-escalated, and Jessica left the school with Z.
¶ 8 However, Jessica then withdrew Z from enrollment at Hawthorne School, and contacted Rossiter Elementary School and Jim Darcy Elementary School about possible enrollment of Z. Ultimately, Z was not enrolled at either school, because several days later, Jessica moved from Helena to Wolf Creek to live with her mother. The District Court found that “[a]fter several days in which [Z] did not attend school and/or was unaware which school he would eventually attend, Jessica enrolled [Z] in the Wolf Creek School....” Jessica admits that she did not consult Daniel about removing Z from Hawthorne School or about enrolling him at the Wolf Creek School, because she felt she was “within [her] right in the parenting plan.”
¶ 9 On November 19, 2014, the day after the incident at Hawthorne School, Daniel filed a pro se emergency Motion to Amend the Amended Plan. After obtaining counsel, he filed a Renewed Motion to Implement Interim Parenting Plan, supported by affidavits, on December 15, 2014. Daniel's basis for his motion was that the Amended Plan was “outdated and irrelevant to our current circumstances[,]” and that Jessica's multiple moves and frequent changes in schools, especially in light of the most recent incident at Hawthorne School, were disruptive to Z's stability. Daniel's proposed parenting plan named him as the primary residential parent. The District Court appointed a guardian ad litem for Z on December 19, 2014, and conducted a hearing on August 10, 2015, taking testimony from both parents, the guardian ad litem, Z's fifth grade teacher at Wolf Creek, and Z's maternal grandmother. Jessica testified that she had moved into a house she had purchased in Dearborn in May 2015, and was hoping to enroll Z in the Cascade County School. Jessica indicated that she had toured the school with Z, and had given him the impression that he would be attending that school in the upcoming fall as a sixth grader.
¶ 10 The District Court entered its Findings of Fact, Conclusions of Law, and Final Parenting Plan on August 14, 2015, naming Daniel as the primary residential parent and providing that Jessica would have parenting time every other weekend and designated holidays, and for alternating three-week periods in the summer. Jessica appeals.
¶ 11 Jessica argues on appeal that the District Court modified the Amended Plan without first making a finding of changed circumstances, as required by § 40–4–219(1), MCA
. “[W]here the allegation is that the district court made no such [required] findings in the first place and the issue is whether the court's action conforms to statutory requirements, we are presented with a question of law, which we review de novo. ” Jacobsen v. Thomas, 2006 MT 212, ¶ 13, 333 Mont. 323, 142 P.3d 859 (citing In re T.H., 2005 MT 237, ¶ 35, 328 Mont. 428, 121 P.3d 541 ).
¶ 12 Jessica argues on appeal that the District Court's findings of fact are clearly erroneous.
We review the findings in support of a district[ ] decision to modify a parenting plan under the clearly erroneous standard. Conclusions of law are reviewed for correctness, and we will only reverse a district court's decision where an abuse of discretion has been clearly demonstrated. In other words, a district court's decision “will not be disturbed on appeal unless there is a mistake of law or a finding of fact not supported by substantial credible evidence that would amount to a clear abuse of discretion.” The test for abuse of discretion is whether the trial court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice.
Guffin v. Plaisted–Harman, 2010 MT 100, ¶ 20, 356 Mont. 218, 232 P.3d 888
(quoting In re S.P., C.P., H.M., J.M., and Y.M., 241 Mont. 190, 194, 786 P.2d 642, 644 (1990) ) (citations omitted).
¶ 13 1. Did the District Court err by modifying the parenting plan because changed circumstances did not exist to justify modification of the existing parenting plan?
¶ 14 Jessica argues that, because the District Court failed to make a specific finding that a change in circumstances had occurred, the court did not have jurisdiction to modify the parenting plan.
, provides:
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....
¶ 16 Jessica correctly notes that the District Court did not enter a finding expressly addressing a “change in circumstances.” While it is preferable that district courts enter such a finding, and we urge courts to do...
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