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
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
Appellant Lucy Hansen, Judnich Law Office, Missoula, Montana
Appellee Richard A. Reep, Reep, Bell, Laird & Jasper,
P.C., Missoula, Montana
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
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?
AND PROCEDURAL BACKGROUND
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.
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.
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 ...