In the Matter of Parenting ZDL-B

In the Matter of Parenting ZDL-B, 2016 MT 164 (July 12, 2016) (Rice, J.) (5-0, aff’d)

Issue: (1) Whether the district court erred by modifying the parenting plan because changed circumstances did not exist; (2) whether the district court’s findings regarding the child’s best interests were clearly erroneous; and (3) whether the district court erred in denying mother’s request for attorney fees and costs.

Short Answer: (1) No; (2) no; and (2) no.

Affirmed

Facts: Z was born in 2003 to Jessica and Daniel, both of whom were in high school. Jessica was Z’s primary provider, with help from Daniel and their families. Jessica and Daniel did not marry, and parented Z without significant court intervention. Jessica petitioned for a parenting plan in 2005, and the court adopted a stipulated plan. In 2007, the parties filed a stipulated first amended parenting plan, which was also adopted by the court. Under the amended plan, Z lived primarily with Jessica, spending alternating weekends, designated holidays and birthdays with Daniel, “regardless of whether the parents are living in the same community or not.” Both parties admit they were flexible in their parenting time.

Daniel moved to Missoula in 2006, and Jessica moved to Butte in 2008. Z attended school in Butte until 2011, when Jessica moved to Wise River and Z attended school there. In 2012, Jessica moved to Missoula, and Z attended school until Jessica began homeschooling him. Homeschooling did not last long, and Z began attending school in Frenchtown, where he and Jessica lived. During this time, Daniel began spending more time with Z, in excess of the time allotted in the amended plan.

By the fall of 2014, Daniel had moved back to Helena. Jessica decided to move back as well, and Daniel if Z could live with him in anticipation of her relocating there. Daniel understood her to be asking whether Z could live with him or the remainder of the school year, and agreed. Jessica intended only for Z to live with Daniel until the end of the semester, so that she could then move Z to a school near her new home.

In November 2014, Daniel set up a meeting with Z’s teacher. He told Jessica, who declined to attend because Daniel’s girlfriend would be there. Nonetheless, the parties agreed Jessica could pick Z up early from school that day to have dinner with him. The school did not know Jessica, and she was not registered with them, so they were reluctant to release Z to her. The school called the police and Daniel, and eventually Jessica left with Z.

Jessica  withdrew Z from the school, and several days later moved to Wolf Creek to live with her mother. Eventually, she enrolled him in the Wolf Creek School. She did not consult Daniel about any of these decisions.

Daniel filed a pro se emergency motion to amend the amended parenting plan in November 2014. He claimed that the amended plan was outdated and irrelevant, and that Jessica’s frequent moves and changes in school were disrupting Z’s stability. Daniel’s proposed parenting plan named him as the primary residential parent.

The district court named a GAL for Z in December 2014.

Procedural Posture & Holding: In August 2015, the district court held a hearing, taking testimony from both parents, the GAL, Z’s fifth grade teacher at Wolf Creek, and Jessica’s mother. Jessica testified she had bought a house in Dearborn, and intended to enroll Z in Cascade County School. Four days later, the district court issued findings, conclusions and an order modifying the amended plan, naming Daniel as the primary residential parent and providing for parenting time for Jessica. Jessica appeals and the Supreme Court affirms.

Reasoning: (1) The district court did not make a specific finding that a change in circumstances had occurred. However, the Court finds that other findings indicate changed circumstances, including six school in six town over six year. “[I]f moving occurs in a manner that becomes disruptive to the child or to the functioning of the parenting plan, it may constitute a change in circumstances requiring review of the plan.” ¶ 18.

(2) The Court finds that the district court’s findings were not clearly erroneous regarding Z’s adjustment difficulties in school, Z’s abrupt removal from his school, and that Daniel is better equipped at this time to provide a stable environment for Z. The district court’s findings were supported by substantial evidence and the court did not abuse its discretion in analyzing the best interests of the child.

(3) Jessica contends that because Daniel filed his motion within six months of a child support action, and without offering to mediate as provided in the amended plan, the statutory “vexatious presumptions” apply and the district court was mandated to award her attorney fees and costs. Even if the statute applies here, which the Court does not decide, it creates a rebuttable presumption. The district court found that Daniel’s motion was meritorious, not vexatious. The record shows Daniel tried to resolve the dispute outside of the courtroom.