Whyte v. Couvillion, DA 11–0379.

• Decision Date: 28 February 2012
• Docket Number: No. DA 11–0379.,DA 11–0379.
• Citation: 2012 MT 45,272 P.3d 102,364 Mont. 219
• Parties: In re the MARRIAGE OF Charles Anthony WHYTE, Petitioner and Appellant,andLeanah Louise COUVILLION, Respondent and Appellee.
• Court: Montana Supreme Court

2012 MT 45

272 P.3d 102

364 Mont. 219

In re the MARRIAGE OF Charles Anthony WHYTE, Petitioner and Appellant,andLeanah Louise COUVILLION, Respondent and Appellee.

No. DA 11–0379.

Supreme Court of Montana.

Submitted on Briefs Dec. 21, 2011.Decided Feb. 28, 2012.

For Appellant: Michael L. Hayes; Hays & Hayes, P.L.L.P.; Hamilton, Montana.

For Appellee: Linda Osorio St. Peter; St. Peter Law Offices, P.C.; Missoula, Montana.

Justice JIM RICE delivered the Opinion of the Court.

[364 Mont. 220] ¶ 1 Charles Whyte appeals from an Order Amending Parenting Plan entered by the Twenty–First Judicial District Court, Ravalli County. We reverse and remand. We address the following issues:

¶ 2 1. Did the District Court err in amending the parties' parenting plan?

¶ 3 2. Did the District Court err in delegating to C.A.W. the power to amend the parenting plan in the future?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 Charles Whyte (Charles) and Leanah Couvillion (Leanah) were married in July 1996 and had one child, C.A.W., during their marriage, born in January 2000. The parties divorced in 2003. On May 22, 2003, the parties stipulated to a final parenting plan, which was incorporated into their divorce decree. Under this initial parenting plan, the parties shared equal parenting time and agreed that when C.A.W. started kindergarten, they would change the plan to implement a school schedule. In August 2005, the parties entered into a Stipulated Final Amended Parenting Plan (Parenting Plan), which detailed their parenting arrangements for C.A.W.'s school years.¹

¶ 5 The Parenting Plan called for C.A.W. to live primarily with Leanah in Frenchtown, visiting Charles on weekends and during the summer, until he started sixth grade, at which time the arrangement would switch, and he would reside primarily with Charles in Hamilton. The Parenting Plan provided:

School Schedule: During the school year [C.A.W.] will reside primarily with Leanah from Kindergarten [sic] through fifth grade and visit his father on the weekends and all days that there is no school, as he is still young and the parties agree it would be in [C.A.W.]'s best interest to have the influence of the mother primarily during these young years. [C.A.W.] will then reside primarily with Charles from his sixth grade year until he graduates high school and will visit his mother on the weekends and all days that there is no school, as he will be growing into adolescence and the parties agree it would be in [C.A.W.]'s best interest to have the influence of the father primarily during these adolescent years.

¶ 6 The parties followed this plan from 2005 forward. However, in February 2011, during C.A.W.'s fifth grade year and as the change in residency arrangements was approaching, Leanah filed a motion to amend the Parenting Plan. She requested that the residency arrangement be revised so that C.A.W. would continue to live with her, rather than primarily residing with Charles. Leanah attached a letter to her motion explaining her reasons for requesting an amendment. She stated that C.A.W. was shy when he attended kindergarten, and she has worked with him to be more social by participating in the Boy Scouts. Leanah stated that she “feel[s] removing him from Frenchtown School would cause [C.A.W.] a significant amount of stress and that by putting him in a whole new school with a new student body, [C.A.W.] will regress back into a shy child.” She also noted that C.A.W. is receiving extra help at the Frenchtown School and that she is “concerned that moving him will challenge [C.A.W.] in a way that could be difficult for him to recover from in a short amount of time and that his grades and self esteem will suffer.”

¶ 7 The District Court conducted a hearing on Leanah's motion on May 20, 2011. The parties were both asked to describe their living situations and their relationships with C.A.W. Charles testified that he had remarried since the divorce and had three stepchildren who were ages 9, 12, and 16. He owns a four-bedroom, two-bathroom house on four acres of land in Hamilton. When C.A.W. stays with Charles, he shares a room with his stepbrother, although the home has an office that could be converted into a bedroom for C.A.W. if necessary. Charles has maintained employment as a fencing contractor. He noted that the family enjoys watching movies together, riding four-wheelers, having game night, going to church, and especially enjoy watching UFC martial arts fights. They often invite guests to their home to watch the fights and are generally a “pretty active bunch of people.” Charles stated that upon C.A.W.'s move to Hamilton, C.A.W. could continue to participate in Boy Scouts, an activity with which C.A.W. is very involved in Frenchtown, and that C.A.W. already knows boys in the troop.

¶ 8 Charles acknowledged that C.A.W. expressed a desire to stay in school in Frenchtown with his current friends, but offered that C.A.W. has known all along that he would have to make the transition to a new school in sixth grade. Charles opined, “he wants to stay in the school because he has established friends there and—but, you know, I think the majority of it is a fear that he has of change....” C.A.W., eleven years old at the time of trial, and his twelve-year-old stepsister would be attending the same school in Hamilton, and Charles noted, “both [of] them together would sit and talk about it, and they both seemed excited to me because they'd be going to the same school.” A friend of Charles' family testified that “[C.A.W.] has a lot of friends here. He has a lot of people who love him.”

¶ 9 Leanah testified that for about a year she has lived in a two-bedroom basement duplex apartment in Frenchtown. She was unemployed but recently attained her high school diploma and was taking online classes to become a medical coder. Her boyfriend of over one year lives with her and C.A.W., and Leanah testified that C.A.W. and her boyfriend get along very well. She testified to several previous unhealthy relationships that led her to move to Missoula for a period of time. She was remarried for a while, and this man was “particularly hard on [C.A.W.].” She also lived with another man who “had a drinking problem and [Leanah] didn't want him around.” Despite Leanah's moves, C.A.W. has remained enrolled in the Frenchtown school district.

¶ 10 Leanah testified that C.A.W. has had some difficulty with reading. She admitted on cross-examination that she received several notifications from the school that C.A.W. wasn't turning in his homework and had excessive afternoon absences but stated the reading problem has improved since she received those notifications and that she has talked to C.A.W. about the absences.

¶ 11 The court also spoke with C.A.W. in camera. C.A.W. expressed concern that the environment at his father's house would not be conducive to doing school work because there is “nowhere to be alone, so like if I had homework or anything, it would be too loud and stuff. And when I'm at my mom's, it's just quiet where I can do it.” When the court asked C.A.W. if he needs it to be quiet when he studies, he replied, “[s]ometimes, yeah.” C.A.W. also expressed concern that he would not have alone time because his younger stepbrother followed him around. In seeming contradiction to Charles' actual work schedule as a fencing contractor—he is laid off during winter and works long hours in the summer—C.A.W. told the court he thought he would see his father more if the current schedule was maintained, i.e., permitting C.A.W. to be with his father in the summer and on weekends during the school year.

¶ 12 The District Court granted Leanah's motion to amend the Parenting Plan. The practical effect of the amendment was to continue the status quo, under which C.A.W. would continue to reside with his mother during the school year and visit his father on weekends, while primarily residing with his father during the summer and visiting his mother on summer weekends. Further, the District Court ruled by oral pronouncement that C.A.W. would determine future residential decisions by writing a letter to his parents by July 15 of every year advising them where he would like to stay. The District Court held that C.A.W.'s wishes “will prevail until he ages out,” noting “I think he's mature enough that his wishes would likely be in his best interests.”

¶ 13 Charles appeals.

STANDARD OF REVIEW

¶ 14 In determining whether the amendment of a parenting plan is appropriate, we review a district court's findings of fact to determine whether they are clearly erroneous. In re Marriage of D'Alton, 2009 MT 184, ¶ 7, 351 Mont. 51, 209 P.3d 251 (citing In re Marriage of Oehlke, 2002 MT 79, ¶ 9, 309 Mont. 254, 46 P.3d 49). “Findings are clearly erroneous if they are not supported by substantial evidence, the court misapprehends the effect of the evidence, or this Court's review of the record convinces it that a mistake has been made.” Oehlke, ¶ 17 (citations and quotations omitted). If the findings of fact upon which the decision to amend are predicated are not clearly erroneous, then we will only overturn the district court if there is a clear abuse of discretion. D'Alton, ¶ 7 (citing Oehlke, ¶ 9). A district court abuses its discretion when it acts arbitrarily without employment of conscientious judgment or exceeds the bounds of reason resulting in substantial injustice. In re Marriage of Guffin, 2010 MT 100, ¶ 20, 356 Mont. 218, 232 P.3d 888 (citation omitted). Conclusions of law are reviewed for whether they are correct. Guffin, ¶ 20.

DISCUSSION

¶ 15 1. Did the District Court err in amending the parties' parenting plan?

¶ 16 Charles argues that Leanah did not satisfy her burden under the statute to prove there has been a change in circumstances or her burden of proving that amending the Parenting Plan was necessary for the child's best interest. Charles argues that all of the changes in circumstances were expressly...