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In re Marriage of Schilling

Supreme Court of Montana

March 27, 2018

IN RE THE MARRIAGE OF: TRACY L. SCHILLING, Petitioner and Appellant, And JOHN R. SCHILLING, JR., Respondent and Appellee.

          Submitted on Briefs: March 7, 2018

          APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DR-12-611 Honorable Karen S. Townsend, Presiding Judge

          For Appellant Lucy Hansen, Judnich Law Office, Missoula, Montana

          For Appellee Richard A. Reep, Reep, Bell, Laird & Jasper, P.C., Missoula, Montana

          Ingrid Gustafson Justice

         ¶1 Tracy L. Schilling (Tracy) appeals from the March 14, 2017 order of the Fourth Judicial District Court, Missoula County, denying Tracy's Motion to Amend Parenting Plan, determining Tracy failed to establish a changed circumstance. The order further granted John R. Schilling, Jr.'s, (John) Motion for Child Support Calculation and Motion for Attorney Fees. The court later assessed attorneys' fees and costs in the amount of $20, 534.14. We reverse and remand.

         ¶2 We restate the issues on appeal as follows:

1. Did the District Court err in concluding there was no change in circumstance pursuant to § 40-4-219(1), MCA, that would require a hearing?
2. Did the District Court err in awarding Appellee attorneys' fees and costs?
3. Did the District Court err in amending child support and concluding the amended support should commence as of April 1, 2016?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 Tracy and John were previously married and divorced. They have one child together, N.K.S., currently 12 years old. At the time of their divorce, they entered into a Stipulated Parenting Plan, which was drafted by John's attorney as Tracy was not represented by counsel. That Stipulated Parenting Plan provided John would serve as the sole custodian of N.K.S. The Stipulated Parenting Plan contemplated Tracy would be moving away from the Missoula area and when she did so she would have parenting time on designated holidays, specified time during summers, and other time "by agreement of the parties." Tracy moved to Idaho shortly thereafter and from March 2013 through March 2016 N.K.S. resided with John in Missoula. Tracy traveled to Missoula as often as she could to spend time with N.K.S. Tracy submitted into evidence her calendars whereby she asserts she exercised 132 overnights with N.K.S. in 2014, 114 overnights in 2015 and 25 overnights in the first 3 months of 2016. She asserts she also spent several additional days each year in Missoula with N.K.S. John does not believe Tracy exercised as much time with N.K.S. as she asserts. Although the parties dispute the exact time Tracy spent with N.K.S. after she moved to Idaho, they both admit it was considerably more than the specified holiday and summer time set forth in the Stipulated Parenting Plan.

         ¶4 On March 4, 2016, John filed a Notice of Intent to Move with N.K.S. to West Yellowstone, Montana. In his Notice, John asserted that amendment of the parenting plan was not necessary as he did not anticipate his change of residence would have a significant impact on Tracy's parenting time. Tracy did not agree with John's assertion and filed an objection to John's Notice. In her objection, Tracy asserted John's move would add an additional 300 miles distance between her and N.K.S., significantly affecting her ability to see and spend time with N.K.S. At the time of filing her objection, she also filed a Motion to Amend [Stipulated] Parenting Plan asserting a number of concerns regarding John's parenting.

         ¶5 On July 22, 2016, the District Court held a hearing for the limited purpose of considering John's relocation to West Yellowstone with N.K.S. and its effect on Tracy's contact. Further, the District Court heard arguments regarding whether Tracy met the threshold requirement of a change in circumstance under § 40-4-219(1), MCA, to amend the parenting plan. The District Court, ruling from the bench, found John's move to West Yellowstone had not negatively impacted Tracy's visitation with N.K.S. because John would drive N.K.S. to Missoula for the parental exchanges. The District Court issued its order on March 14, 2017, finding Tracy had not established the prerequisite of a change in circumstance, which would allow the District Court to consider amending the parenting plan. The District Court then determined John to be the prevailing party and, as such, determined John was entitled to an award of attorneys' fees and costs. The District Court also concluded amendment of child support was ...


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