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In re Marriage of Nagel

Supreme Court of Montana

June 26, 2018

IN RE THE MARRIAGE OF: HEATHER N. NAGEL, n/k/a HEATHER N. CONNER, Petitioner and Appellant, and CODY J. NAGEL, Respondent and Appellee.

          Submitted on Briefs: May 30, 2018

          District Court of the Twelfth Judicial District, In and For the County of Hill, Cause No. DR-13-005 Honorable Daniel A. Boucher, Presiding Judge

          For Appellant: Roberta Cross Guns, Attorney at Law, Ulm, Montana

          For Appellee: Jennifer E. Forsyth, Hi-Line Law, PLLC, Havre, Montana

          LAURIE MCKINNON, 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 Heather N. Conner (Conner) appeals from an order of the Twelfth Judicial District Court, Hill County, amending the parenting plan for her minor son, S.N. We affirm.

         ¶3 Conner and Cody J. Nagel (Nagel), S.N.'s father, entered into a stipulated parenting plan on October 21, 2013, before S.N. reached school-age. The parenting plan alternated parenting time on a weekly basis. At around the same time Nagel moved in with and became engaged to his girlfriend, Conner began expressing concern that Nagel's girlfriend's children, who are younger than S.N., subjected S.N. to physical abuse. As a result, Conner took S.N. to the emergency room on at least four separate occasions, continuously expressing concern that S.N. suffered abuse while in Nagel's care. Medical professionals examined S.N., but did not find evidence that S.N. was actually abused. The medical professionals nonetheless reported the family to the Havre Police Department and the Department of Public Health and Human Services, Child and Family Services Division (the Department) which each initiated an investigation.

         ¶4 Before S.N. reached school-age, Conner and Nagel disagreed about whether to enroll S.N. into first grade at a school located in Havre, Montana, where Nagel lived, or Great Falls, Montana, where Conner lived. Conner moved the District Court to amend the parenting plan based on a change in circumstances that she believed required a modification. Conner requested the court amend S.N.'s custodial arrangement during the school year by designating her home to be S.N.'s primary residence and allow Nagel visitation every-other weekend in order to facilitate S.N.'s enrollment into first grade at a school in Great Falls.

         ¶5 Subsequently, Nagel also moved the District Court to amend the parenting plan based on a change in circumstances he believed required a modification. Nagel requested the court amend S.N.'s custodial arrangement during the school year by designating his home to be S.N.'s primary residence and allow Conner visitation every-other weekend. Nagel based his request on Conner's willful and consistent attempts to frustrate his contact with S.N. by making "repeated false allegations against [Nagel] in order to alienate him from his son." This conduct, Nagel argued, included needlessly taking S.N. to the emergency room for suspected, but unsubstantiated physical abuse; enrolling S.N. into kindergarten in Great Falls without consulting him; refusing his attempts to contact S.N. on the phone; limiting Nagel's parenting time by re-scheduling the time set for their weekly exchanges; and scheduling S.N. to participate in activities located in Great Falls during Nagel's parenting time in Havre.

         ¶6 The District Court agreed with Conner and Nagel that changed circumstances and S.N.'s best interest required an amendment and initially amended the parenting plan to allow S.N. to attend a school in Havre for fall semesters and a school in Great Falls for Spring semesters. Both parties agreed that spending one semester in each location was not in S.N.'s best interest. Ultimately, on July 19, 2017, the District Court amended the parenting plan by designating Nagel's home in Havre to be S.N.'s primary residence during the school year and allowing Conner visitation every-other weekend and more visitation during the summer months. Conner appeals.

         ¶7 We review the findings of fact underlying a court's decision to amend a parenting plan for clear error. In re Marriage of Klatt, 2013, MT 17, ¶ 12, 368 Mont. 290, 294 P.3d 391. When findings upon which a decision is predicated are not clearly erroneous, we will reverse a district court's decision regarding a parenting plan amendment only when the appellant demonstrates a clear abuse of discretion. In re Marriage of Brockington, 2017 MT 92, ¶ 18, 387 Mont. 260, 400 P.3d 205. A court abuses its discretion by acting arbitrarily, without employing conscientious judgment, or exceeds the bounds of reason, resulting in substantial injustice. Brockington, ¶ 18.

         ¶8 In her opening, and only, brief on appeal, Conner, represented by counsel, attempts to raise four issues contesting Nagel's ability to parent S.N. or provide continuous and stable care for S.N. and argues that the District Court failed to consider S.N.'s educational or developmental needs. Generously construed, the sum of Conner's arguments on appeal is that the ...


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