IN RE THE GRANDPARENT-GRANDCHILD CONTACT OF T.B., L.B., H.B. AND K.B.
RACHEL BURKE, Respondent and Appellee. MICHAEL BURKE AND CHRISTINE TEAGUE, Petitioners and Appellants,
Submitted on Briefs: May 31, 2017
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.
Appellants: Jamie J. McKittrick, Wells & McKittrick, PC,
Appellee: Katherine P. Maxwell, Maxwell Law, PLLC, Kalispell,
McGrath Chief Justice.
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
Michael Burke and Christine Teague appeal from a December 1,
2016 District Court order granting summary judgment in favor
of Rachel Burke. We affirm.
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.
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.
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).
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.
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.
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.
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 ...