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In re Marriage of Brockington

Supreme Court of Montana

April 18, 2017

IN RE THE MARRIAGE OF: DARIN BROCKINGTON, Petitioner and Appellee, and DEBORAH BROWN, Respondent and Appellant.

          Submitted on Briefs: March 22, 2017

         APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DR-06-110(C) Honorable Heidi Ulbricht, Presiding Judge

          For Appellant: Katherine P. Maxwell, Maxwell Law, PLLC, Kalispell, Montana

          For Appellee: Peter F. Carroll, Attorney at Law, Kalispell, Montana

          Laurie McKinnon Justice

         ¶1 Deborah Brown (Deborah) appeals an order entered in the Eleventh Judicial District Court on June 3, 2016, amending the parenting plan for her minor child, A.E.B. Deborah also appeals an order entered August 4, 2016, holding her in contempt and assessing costs and attorney's fees for the contempt proceedings against her, although the District Court has not yet determined the reasonableness of fees or assessed costs. We affirm the District Court's order amending the parenting plan and dismiss, without prejudice, Deborah's appeal of the contempt order.

         ¶2 We restate the dispositive issues as:

1. Whether the District Court abused its discretion in determining the amended parenting plan was in the best interests of A.E.B.
2. Whether Deborah's appeal of the separate order of contempt is from a final judgment.

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 Darin Brockington (Darin) and Deborah are the parents of A.E.B., born in 2000. Their marriage was dissolved in 2007 and an Order Establishing Parenting Plan was entered on August 6, 2008 (2008 Plan). The 2008 Plan provided that A.E.B. would reside primarily with Deborah and that Darin, who serves in the United States Army as a Lieutenant Colonel, would have parenting time "both in Montana and his place of residence, wherever that may be." Both Darin and Deborah have remarried. Darin lives with his wife, Donna, in Manassas, Virginia, along with Donna's children from a previous marriage. Deborah currently resides in Kalispell, Montana, with her husband, Jeff, and A.E.B.

         ¶4 The District Court noted that both parents are exceptional in their parenting abilities and their devotion to their daughter. Nonetheless, there has been great acrimony between Darin and Deborah with respect to their co-parenting obligations. In particular, Darin and Deborah have been unable to agree on the appropriate amount of time Darin should spend with A.E.B., as well as where Darin's parenting time should take place. Darin has lived in other locations besides Virginia, depending on where he is stationed in the Army, including in Mons, Belgium. The 2008 Plan provided that Darin have parenting time with A.E.B. any time he was in Montana, for a period not to exceed ten days. Aside from certain holidays and alternating birthdays, Darin was to exercise the majority of his parenting time in the summer. The 2008 Plan provided specifically for the summers of 2008, 2009, and 2010, with visits varying in length from 43 to 49 days. These summer visits were to take place at Darin's residence, wherever that was.

         ¶5 Although the 2008 Plan did not address summer visits for the years following 2010, the parties assumed the visits would continue every summer. Thus, in 2011 A.E.B. spent 48 days with her father in Virginia; and in the summers of 2013 and 2014, A.E.B. spent 49 days in Mons, Belgium. For the 2012 summer, which was when Darin moved to Belgium, Darin requested A.E.B. spend only 18 days with him in Virginia prior to his relocation. The understanding between Darin and Deborah remained that A.E.B. would always return from Darin's care in sufficient time for her to attend the first day of school in Montana.

         ¶6 Notwithstanding the parties' ability to arrange summer visitations beyond the particular years identified in the 2008 Plan, disputes between Darin and Donna over co-parenting obligations apparently existed as early as 2006, prompting the District Court to appoint Nancy Smith (GAL) to be A.E.B.'s guardian ad litem in 2006.[1] In the 2008 Plan, the District Court ordered that "[i]n the event there needs to be some form of dispute resolution regarding the parenting plan in the future, that the GAL shall be the first resource in resolving disputes between parties[.]"[2] Since her appointment, the GAL has made several recommendations to the court regarding parenting time.

         ¶7 Darin covets his parenting time. He has always felt that A.E.B. should spend more time with him, not less. The record on appeal shows that it is not unusual for him to spend substantial time and money on the travel and logistics necessary for him to parent A.E.B. Even while he resided in Belgium, he ensured he did not lose his allotted time with A.E.B. by securing for her a military passport and paying for her airfare to Belgium. Darin also takes advantage of provisions in the 2008 Plan allowing him to parent in Montana for continuous periods not to exceed ten days. Darin has traveled to Montana to exercise parenting time, renting a car and securing a hotel room to spend time with A.E.B. These trips not only cost him money, but deplete the leave he accrues in the Army.

         ¶8 Deborah's home with Jeff, as A.E.B.'s primary residence, has been beneficial for A.E.B. She excels at school and is active in extracurricular activities like volleyball and basketball. She has friends and is, in most ways, a well-adjusted teenager. She attends church regularly and volunteers when she can to serve at its concession stand. She also works on occasion at her mother's hardware store. She is not immune from teenage tribulations, however, and the record reflects that she has become expressive of her desire to be more independent and to make decisions for herself. In this regard, A.E.B. has expressed that she wants to spend more time in Montana during the summers, despite Darin's wishes that he have more time with her. Although they enjoy certain activities together, A.E.B. has expressed that her stepmother Donna is prone to anger, and that her father and Donna must often work when she visits, leaving her in the care of her stepsiblings or structured day-camps. The 2008 Plan also mandates that A.E.B. regularly call Darin at certain times during the week. A.E.B. does not enjoy these mandatory calls and would enjoy texting, Skyping, and emailing Darin instead. Overall though, A.E.B. primarily complains that her summers away with Darin interfere with her life in Kalispell, which results in her friends accruing experiences during the summer to which she cannot relate when she returns to Montana.

         ¶9 Deborah filed a motion to amend the 2008 Plan on April 21, 2014, several months shy of A.E.B.'s fourteenth birthday. Deborah alleged that a change of circumstances had occurred and that A.E.B.'s best interests necessitated amending the parenting plan. Specifically, Deborah sought the amendment based on A.E.B.'s desire to stay in Kalispell over the summers and noted that A.E.B. "reached a stage in her development when social activities, sports, events, jobs and friendships [in] Kalispell, Montana are of significant and increasing importance[.]" Darin responded to the motion by requesting its dismissal or, alternatively, a referral to the GAL for closer review. The District Court denied Deborah's motion and referred the matter to the GAL for recommendations, to be filed by September 15, 2014, when A.E.B. would be at least fourteen. Over the summer of 2014, while A.E.B. visited Darin in Mons, Belgium, the GAL conducted her investigation, communicating with A.E.B. by Skype and email. After concluding her investigation, the GAL filed recommendations with the District Court, along with her own motion to adopt her recommendations as an interim parenting plan. The GAL recommended that Darin's parenting time occur only in Montana; that his time be reduced in the summer to either one or two weeks, which must be exercised in Montana; and that A.E.B.'s mandatory phone calls to him cease. The GAL's proposed "Final Parenting Plan" also contained the following provision: "In the event there needs to be some form of dispute resolution regarding the parenting plan in the future, Nancy M. Smith, GAL, shall be the first resource to mediate the dispute. The parties shall follow any written recommendation of the GAL pending further order of the court." On December 2, 2014, Deborah filed a motion to adopt the GAL's recommended parenting plan.

         ¶10 On December 18, 2014, Darin filed a motion to stay any proceedings pursuant to the Servicemembers Civil Relief Act, 50 U.S.C.S. §§ 3901, et seq. (SCRA), which allows for the stay of civil proceedings while members of the military serve abroad. Darin, nonetheless, clearly objected to the GAL's recommendations. The District Court granted Darin's motion to ...


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