APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DR 05-202 Honorable G. Todd Baugh, Presiding Judge
The opinion of the court was delivered by: James C. Nelson
Submitted on Briefs: April 4, 2012
Justice James C. Nelson delivered the Opinion of the Court.
¶1 John Hood appeals a decision of the District Court for the Thirteenth Judicial District, Yellowstone County, denying John's motion to amend the parties' parenting plan. We affirm.
¶2 John raises the following issue on appeal: Did the District Court err by denying John's Motion to Amend Parenting Plan? And, in support of this issue, John contends that the District Court abused its discretion by:
1. Interviewing the minor children in camera, over John's objection, and then supporting its ruling in large part on the information obtained during the in camera interview;
2. Deciding that the children had adjusted well to their home, school and community in Utah in the absence of supporting evidence;
3. Not requiring Tenille Hood to provide her medical records, and ruling that the mental and physical health of the parties was not an issue and was evenly balanced between the parties;
4. Not enforcing its March 23, 2009 order; and
5. Failing to rule that Tenille was not credible as a matter of law. Factual and Procedural Background
¶3 The parties in this case have had a great deal of difficulty working out parenting and visitation arrangements even though they lived in the same city for several years following their divorce. Their relationship, as characterized by Tenille in her brief on appeal, has been "acrimonious in the extreme." At one time, the parties went so far as to file cross-motions for orders of protection against each other. And, on several occasions throughout these proceedings, the District Court Judge expressed his frustration with the parties' failure to effectively communicate with each other over the parenting of their children. While there have been numerous motions and petitions filed by both sides in this matter, the following summary of facts will only detail the motions, petitions and court decisions necessary to explain the current proceedings.
¶4 John and Tenille were married in November 1999 in Billings, Montana. They have three girls and one boy ranging in age from 9 to 14 years old. During the marriage, Tenille was primarily responsible for taking care of the children while John worked. John and Tenille separated in 2004 and divorced in May 2005. Tenille was awarded primary custody of the children.
¶5 In 2006, John moved to modify the parties' parenting plan, but before a final decision was reached on that issue, Tenille notified the court and John that she intended to move to Utah with the children on or about August 15, 2008. John moved for an emergency show-cause hearing to determine whether the move to Utah would be in the children's best interests. This hearing was postponed several times at the request of Tenille or her counsel. On September 17, 2008, John filed a Motion for Contempt asserting that Tenille had refused to allow him visitation with the children since March 2008.
¶6 The District Court conducted hearings on the various pending motions on October 10 and December 18, 2008. During the hearings, Tenille testified that her parents were selling their house in Billings and moving to Utah, and that her parents' support was so essential to her parenting that it was in the children's best interests for her and the children to accompany her parents to Utah. Tenille also testified that her brother and his family live in Tooele, Utah, and that she would be taking over the lease on her brother's house since he and his wife were planning to purchase a home of their own.
¶7 In addition, Tenille asserted that, after 12 years of being on public assistance, she intended to obtain her G.E.D. as soon as she moved to Utah, and that she planned to get a job. Tenille also told the court that her move to Utah was necessary because, after she obtained her G.E.D., she intended to return to school to obtain a degree in a field that was not taught at the schools in Montana.
¶8 The District Court rendered its Decision on March 24, 2009, wherein the court noted that both parties have "checkered pasts" regarding substance abuse, but that substance abuse was not currently an issue for either party. The court also noted that even though the best thing for the children would be for both parents to live in the same community, there was good reason for Tenille to move to Utah where her family could provide assistance with the children while Tenille completed her education and got a job. The court stated, however, that, as of the hearing, Tenille had no job, was on public assistance, and was not going to school, and that if that was to be her lifestyle, she should stay in Billings where the children could have more contact with their father.
¶9 Nevertheless, the court stated that it would not prevent Tenille from moving to Utah with the children, and that it intended to retain jurisdiction to require Tenille to live in Billings unless she undertakes to complete her education and get a job. The court ordered that a parenting plan be prepared showing Tenille as the primary residential parent living in Utah, and that John should have reasonable visitation including six weeks of visitation with the children during the summer.
¶10 Tenille and the children moved to Utah in April 2009. But, instead of taking over the lease on Tenille's brother's house as she had told the court, Tenille and the children lived with Tenille's brother and his family for eight weeks until Tenille obtained a home of her own.
¶11 On June 25, 2009, the District Court adopted Tenille's proposed parenting plan. The court noted, however, that the parenting plan should be modified to provide for additional reasonable visitation to which the parties shall from time to time mutually agree, and to permit the parties to mutually agree to modify visitation times and travel arrangements. Thus, the court ordered that a final parenting plan be prepared and submitted.
¶12 John began filing motions and supplements to motions in October 2009 to hold Tenille in contempt of court and to reopen the matter regarding the parties' parenting plan contending that Tenille failed to abide by the parenting plan and continued to frustrate John's contact with the children. On March 24, 2010, John filed a Motion to Amend Parenting Plan wherein he asserted that after living in Utah for almost one year and contrary to Tenille's promises to the court, Tenille failed to get her G.E.D., failed to get a job, and failed to enroll in college.
¶13 In addition, John noted that the other reasons Tenille gave for moving to Utah had also proved to be unfounded. Tenille's parents did not move to Utah as Tenille had represented to the court, and, not only did Tenille not take over the lease on her brother's house in Utah, Tenille's brother and his family moved back to Billings. Thus, John asked the court to require Tenille and the children to move back to Billings, and to require that the children spend equal time with each parent, or, if the court allowed Tenille to remain in Utah, to grant John primary residential custody of the children in Billings.
¶14 In her response to John's motion, Tenille stated that she did obtain her G.E.D. and has enrolled in college, but that she does not have a job and still receives public assistance. She also stated that her parents did not move to Utah because they were unable to sell their home in Billings. Tenille pointed out that the children are thriving in their new home, school and ...