Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Grandparent-Grandchild Contact of T.B.

Supreme Court of Montana

June 13, 2017

RACHEL BURKE, Respondent and Appellee. MICHAEL BURKE AND CHRISTINE TEAGUE, Petitioners and Appellants,

          Submitted on Briefs: May 31, 2017

         APPEAL FROM District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DR-15-275(D) Honorable David M. Ortley, Presiding Judge.

          For Appellants: Jamie J. McKittrick, Wells & McKittrick, PC, Missoula, Montana

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


          Mike McGrath Chief Justice.

         ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

         ¶2 Michael Burke and Christine Teague appeal from a December 1, 2016 District Court order granting summary judgment in favor of Rachel Burke. We affirm.

         ¶3 Michael Burke and Christine Teague (Grandparents) are the paternal grandparents of T.B., L.B., H.B., and K.B. (the children). Rachel Burke (Burke) is the children's mother. The parents divorced in 2014. The children's father (Father) later committed suicide in Burke's Kalispell home, within earshot of the two older children. The Grandparents are separated; Michael lives in Missoula and Christine lives in North Dakota. Because of the history of family trauma, Burke had requested supervised visitation. Burke and Grandparents have been unable to agree on visitation between the children and Grandparents. Grandparents filed a Petition for Grandparent/Extended Family Visitation on April 30, 2015, attaching the affidavits of Michael Burke, Christine Teague, and Erin Krause. Burke filed a M. R. Civ. P. 12(b)(6) Motion to Dismiss for failure to state a claim upon which relief could be granted. The District Court converted it, by order of the Court, into a Motion for Summary Judgment and provided notice to the parties to file briefs and responses. On December 1, 2016, the District Court granted summary judgment in favor of Burke. The Grandparents appeal.

         ¶4 The District Court's conversion of the Motion to Dismiss into a Motion for Summary Judgement was error. Following the conversion, the parties filed additional pleadings and briefs. The District Court order granted summary judgment, but also made extensive findings of fact. A motion for summary judgment may be granted only if no genuine issues of material fact are present. Roe v. City of Missoula, 2009 MT 417, ¶ 14, 354 Mont. 1, 221 P.3d 1200. The District Court's ruling should have been reached based on the Motion to Dismiss as filed, and we will review the issue as if the court had granted the Motion to Dismiss.

         ¶5 We review de novo a district court's ruling on a motion to dismiss pursuant to M. R. Civ. P. 12(b)(6). Hall v. State, 2006 MT 37, ¶ 10, 331 Mont. 171, 130 P.3d 601. The determination of whether a complaint states a claim is a conclusion of law, and the district court's conclusions of law are reviewed for correctness. Guest v. McLaverty, 2006 MT 150, ¶ 2, 332 Mont. 421, 138 P.3d 812. In an order to dismiss, if as a matter of law, under any view of the alleged facts, plaintiffs cannot prevail, "affirmance of the District Court is commanded." Commonwealth Edison Co. v. State, 189 Mont. 191, 194, 615 P.2d 847, 849 (1980).

         ¶6 This Court will construe the complaint in the light most favorable to the Grandparents. Guest, ¶ 2. The well-pleaded allegations are treated as admitted. Guest, ¶ 2. A motion to dismiss allows a district court to only examine whether a claim has been adequately stated in the complaint. Hoveland v. Petaja, 252 Mont. 268, 270, 828 P.2d 392, 393 (1992). From the petition, we ascertain the following facts: Grandparents are the biological paternal grandparents to T.B., L.B., H.B., and K.B. Grandparents are loving and caring individuals who seek to have a relationship with their grandchildren after the death of their son. The Grandparents have spent considerable time with the children attending religious, extracurricular, and sports activities. Grandparents and the children spent holidays and special occasions together. Grandparents provided monetary support and gifts to the children. Grandparents (particularly Michael) spent significant time with the children after the parents' divorce, as Father was living with Michael. The petition also notes that Burke has the children involved in grief counseling with the Nurturing Center in Kalispell. Burke told the Grandparents that the center had advised her "that contact was not in the children's best interest" at that time. Grandparents believe Burke is improperly denying them access to and communication with the children. Grandparents believe Burke will cut them out of the children's lives absent a court order for visitation.

         ¶7 Section 40-9-102, MCA, provides the basis in law for a grandparent's right to reasonable contact with a grandchild. Where a parent objects to the grandparent-grandchild contact, the District Court must determine if that parent is "fit." Section 40-9-102(2), MCA. Here, there is no question of the parental fitness of Burke. Both parties have stipulated Burke is a fit parent. Once determined fit, the statute creates a presumption that the parent's wishes are in the best interest of the child. Section 40-9-102(4), MCA.

         ¶8 To overcome the parental presumption, the petitioner must provide the district court with clear and convincing evidence that the contact is in the best interest of the child. Section 40-9-102(4), MCA; Glueckert v. Glueckert, 2015 MT 107, ¶ 10, 378 Mont. 507, 347 P.3d 1216. Clear and convincing evidence is more than a mere preponderance of the evidence, and requires evidence that is definite, clear and convincing. Glueckert, ¶ 10.

         ¶9 The District Court concluded that the Grandparents did not overcome the parental presumption. Viewing the alleged facts most favorably to the Grandparents and treating the asserted facts as true, we are unable to conclude the District Court's final order was incorrect. The evidence submitted by the Grandparents shows a strong bond between them and the children. However, it is not enough that there has been contact in the past between the Grandparents and the children. It is not enough that Grandparents find fault with Burke's parental decision regarding contact. The Grandparents have not alleged sufficient facts to ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.