McDermott-Yeargin v. McDermott

• Decision Date: 09 October 2003
• Docket Number: No. 02-633.,02-633.
• Citation: 2003 MT 283,79 P.3d 245,318 Mont. 13
• Parties: In re the Marriage of Cheryl L. McDERMOTT-YEARGIN, f/k/a Cheryl McDermott, Petitioner and Appellant, v. Bruce C. McDERMOTT, Respondent and Respondent.
• Court: Montana Supreme Court

79 P.3d 245

2003 MT 283

318 Mont. 13

In re the Marriage of Cheryl L. McDERMOTT-YEARGIN, f/k/a Cheryl McDermott, Petitioner and Appellant, v. Bruce C. McDERMOTT, Respondent and Respondent.

No. 02-633.

Supreme Court of Montana.

Submitted on Briefs June 26, 2003.

Decided October 9, 2003.

Rehearing Denied November 13, 2003.

For Appellant: K. Dale Schwanke, Jardine, Stephenson, Blewett & Weaver, P.C., Great Falls, Montana.

For Respondent: Joan E. Cook, Law Offices of Joan E. Cook, Great Falls, Montana.

Justice JOHN WARNER delivered the Opinion of the Court.

¶ 1 The District Court for the Eighth Judicial District in Cascade County granted Appellant, Cheryl McDermott's, petition for dissolution of her marriage to Respondent, Bruce McDermott. Later, Cheryl moved to modify the parenting provisions of the final decree. In her motion, Cheryl sought to be the primary custodian of the parties' children and in the alternative, she also sought a reduction in her child support payments to Bruce. The District Court denied both requests. Cheryl then filed a motion to amend the findings of fact, conclusions of law, and order, which the District Court also denied. Cheryl appeals both of the District Court's decisions. We affirm.

¶ 2 The issues on appeal are as follows:

¶ 3 1. Did the District Court err in not awarding Cheryl primary custody of the parties' children?

¶ 4 2. Did the District Court err by not reducing Cheryl's child support obligation?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 5 On February 12, 1998, Cheryl petitioned for dissolution of her marriage to Bruce. Prior to the hearing, the parties submitted an agreed parenting plan for their two children, Kyle and Riley. On January 6, 1999, the District Court entered a final decree, incorporating the parenting plan and dissolving the marriage.

¶ 6 On July 24, 2001, Cheryl moved to amend the parenting plan. The original custody schedule she and Bruce had been following provided that the parties alternate weeks with the children. This plan was no longer feasible because Cheryl had moved to Boise, Idaho, from Great Falls, Montana. When Cheryl moved, she and Bruce worked out an arrangement whereby the children would spend the school year with Bruce in Great Falls, and the summers in Boise, with Cheryl.

¶ 7 At the time of the motion, Cheryl had become dissatisfied with the new custody arrangement. The motion sought to reverse the provisions of the arrangement so that Cheryl would have school-year custody of the children, while Bruce would have his visitation in the summers. The motion alleged that Bruce had a temper, was a negative influence on the children, and that Cheryl did not like his use of corporal punishment. She argued that her home would provide a nurturing environment and that there were more "opportunities" for the children in Boise than there are in Great Falls.

¶ 8 On June 6, 2002, the District Court denied Cheryl's motion. She then filed a motion to amend the findings of fact, conclusions of law, and order, which the District Court also denied. On September 23, 2002, Cheryl appealed both of the District Court's decisions.

STANDARD OF REVIEW

¶ 9 With respect to cases establishing or modifying child custody, our standard of review is whether the district court's findings of fact are clearly erroneous. Czapranski v. Czapranski, 2003 MT 14, ¶ 10, 314 Mont. 55, ¶ 10, 63 P.3d 499, ¶ 10. If no clear error is apparent, the district court's decision will be upheld unless the Court abused its discretion. Czapranski, ¶ 10. With respect to cases establishing or modifying obligations for child support, we review a district court's ruling for abuse of discretion. In re Marriage of Syverson (1997), 281 Mont. 1, 9, 931 P.2d 691, 696.

DISCUSSION

¶ 10 Did the District Court err in not awarding Cheryl primary custody of the parties' children?

¶ 11 A significant portion of Cheryl's first argument on appeal concerns the District Court's verbatim use of Bruce's proposed findings of fact and conclusions of law. It is Cheryl's contention that the court did not properly consider the evidence before it, and did not take care to exercise independent judgment. Specifically, Cheryl complains about the court's conclusions 1) that she knowingly failed to financially support her children when she was able to do so; and 2) that there was a de facto parenting agreement. Additionally, Cheryl believes that because the District Court did not make any specific finding that Bruce said demeaning things about her, then the court could not possibly have independently considered the evidence.

¶ 12 We do not agree with Cheryl's assessment. We have previously held that a district court may adopt one party's version of the findings and conclusions if that version is "sufficiently comprehensive and pertinent to the issues to provide a basis for a decision and [is] supported by the evidence." In re Marriage of Jacobson (1987), 228 Mont. 458, 465, 743 P.2d 1025, 1029. We will only find error if it appears that the district court did not exercise independent judgment. Jacobson, 228 Mont. at 465, 743 P.2d at 1029. The District Court heard testimony by witnesses for both sides, reviewed physical evidence, and heard arguments by both attorneys. In fact, the record reflects that Cheryl's attorney specifically questioned the court about its verbatim use of Bruce's proposed findings and conclusions. The court responded that it was aware of the Montana Supreme Court's requirement concerning verbatim use of one party's proposed findings. He then told counsel that he was "satisfied" that the ruling was supported by the evidence. In this case, the District Court committed no error through utilization of Bruce's proposed findings and conclusions, which were thorough and pertinent to the issues at hand.

¶ 13 Broadly stated, the remainder of Cheryl's first argument is that she sometimes does not like the way Bruce acts or the things he says about her, and that she believes Boise is a nicer place to live than Great Falls. She complains loudly that Bruce has said bad things about her in front of the children, and is upset the District Court's findings did not even mention those instances. She recites a laundry list of incidents allegedly perpetrated by Bruce, and quotes several of Bruce's witnesses, largely out of context, in an attempt to bolster her own evidence against him. In essence, Cheryl asserts that the District Court erred in its findings simply because the court did not include any language disparaging to Bruce in its order.

¶ 14 Contrary to Cheryl's assertions, the record shows that the District Court's order is supported by substantial evidence, and that the court reasonably concluded that no change in custody arrangements was necessary. At the hearing, both sides conceded that they do not always get along. Yet, they acknowledged that they both attempt to cooperate when visitation matters are the issue. In its findings the court noted, "that although they attempt to get along for the sake of their children, often their communication results in disagreements and resentment remaining from the time of their marriage.... However, based on the testimony of the witnesses, it appears that [Bruce], as well as [Cheryl] encourage the relationship between their children and the absent parent." At the hearing on the motion to amend, the court evidenced its awareness of the gravity of the issues when it reminded both parents of the negative effects disparaging one another might have on the children, stating, "I would caution both parents to speak only positively of the other parent. Foster a good relationship ... to not do anything to harm the children."

¶ 15 The record contains numerous admissions by Cheryl, her new husband, Bryan Yeargin, and her attorney, that the children are thriving under the arrangement currently in place. When questioned about the boys' progress in school, Cheryl admitted they were doing fine. When questioned about Bruce's cooperation with Cheryl on her visits to Great Falls, Bryan admitted that Bruce always allows the boys to stay with Cheryl for the duration of the visits, and that Bruce has never denied Cheryl access to the boys. Additionally, Bryan stated that before the custody battle began, Bruce had actually stayed with him and Cheryl on occasion and that things usually went very well. He admitted that Bruce has taken Kyle and Riley and Bryan's two sons skiing and that Bryan trusts Bruce with all the children. He acknowledged that he has no complaints about Bruce's participation in, and oversight of, Kyle's and Riley's education. Finally, Bryan even stated that Bruce has gone so far as to reinforce Bryan's role as stepfather to Kyle and Riley.

¶ 16 Montana law requires that the court determine custody and visitation based on the best interests of the children involved. Section 40-4-212, MCA. To facilitate this determination, the statute requires the court consider all parenting factors relevant to the case before it, and the statute lists a number of parenting factors the court should consider. Section 40-4-212, MCA. The district court is not, however, required to make specific findings as to each and every factor delineated in the code. Czapranski, ¶ 11. The District Court's conclusions clearly state that it considered the factors listed in § 40-4-212, MCA. The court went so far as to specify three factors that it found relevant; i.e. continuity of care, developmental needs of the children, and Cheryl's failure to financially support the children when she was able to do so. Each of these factors supports the District Court's decision that the child custody arrangements should remain as they are. The record supports the District Court's decision and we find no error.

¶ 17 Did the District Court err by not reducing Cheryl's child support obligation?

¶ 18 Cheryl argues that the District Court erred in its imposition of what she feels is an unconscionable child support...