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In re Marriage of Johnson

Supreme Court of Montana

November 27, 2018

IN RE THE MARRIAGE OF: BENETTE ANN JOHNSON, Petitioner and Appellant, and ERIC MICHAEL JOHNSON, Respondent and Appellee. ROGER BERNHARDT and KATHLEEN BERNHARDT, Third Party Petitioners and Appellees, and BENETTE ANN JOHNSON and ERIC MICHAEL JOHNSON, Third Party Respondents and Appellees.

          Submitted on Briefs: September 12, 2018

          District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DR 11-1436 Honorable Gregory R. Todd, Presiding Judge

          For Appellant: Penelope S. Strong, Attorney at Law, Billings, Montana

          For Appellee: Benjamin J. LaBeau, LaBeau Law Firm, PC, Billings, Montana

          For Third Party Petitioners and Appellees: Jeff A. Turner, Towe, Ball, Mackey, Sommerfeld & Turner, P.L.L.P., Billings, 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 Benette Ann Johnson (Mother) appeals from an order of the Thirteenth Judicial District Court, Yellowstone County, granting Eric Michael Johnson's (Father) motion to amend the parties' parenting plan. We affirm.

         ¶3 Mother is the biological parent of A.R.J., who is not Father's biological child but who Father historically treated as his daughter. In 2006, Mother and Father married and later had two children together, K.L.J. and S.S.J. Mother and Father divorced in 2012, at which time the District Court issued a parenting plan. The plan granted Mother primary parenting of the children and provided Father with supervised parenting time based on abuse allegations Mother brought against Father. Thereafter, substantial procedural history exists regarding the parties' parenting of the children, with multiple district court judges and a standing master presiding over the case at various times.

         ¶4 Relevant to this appeal is the District Court's grant of visitation to Mother's adoptive parents, the Bernhardts. In December 2013, the court issued an order granting the Bernhardts grandparent contact and visitation with the children pursuant to § 40-4-228, MCA. The order provided that the children spend five hours each Tuesday with the Bernhardts. Later, in July 2015, the court reaffirmed its December 2013 visitation order and further granted the Bernhardts make-up visitation time for times when the children were unavailable on Tuesday.

         ¶5 Also relevant to this appeal is the District Court's modification of the parties' parenting plan. In June 2014, the court amended the original 2012 parenting plan at Father's request, providing him unsupervised visitation. In 2015, the court appointed a Guardian Ad Litem (GAL). In November 2016, a standing master reaffirmed the June 2014 amended parenting plan. Thereafter, Mother frustrated Father's and the Bernhardts' time with the children, failed to keep Father apprised of the children's medical and educational statuses, and made unsubstantiated allegations of sexual and physical abuse against Father. In May 2017, Father filed a motion and brief asking the District Court to once again amend the parenting plan. Mother opposed the amendment and the court subsequently ordered the GAL to interview the minor children. Mother frustrated the GAL's attempts to interview the children, and on September 27, 2017, the GAL filed a motion for permission to interview the children at Father's residence. The court granted the motion but the GAL was unable to finish his interviews with the children until October 2, 2017.

         ¶6 One day later, on October 3, 2017, the court held its scheduled hearing on Father's motion to amend the June 2014 parenting plan. At the hearing, the GAL testified about the information he was able to compile over Mother's attempts to frustrate his interviews of the children. The court ultimately granted Father's request to amend the parenting plan, finding that a change in circumstances existed due to Mother's alienation of Father and that an amendment was in the children's best interests. The October 2017 parenting plan essentially reversed the parties' previous parenting arrangement. It provided that the children would live primarily with Father and visit Mother. Father worked nights and had a good relationship with the Bernhardts-he often stayed with them during his parenting time. Therefore, the court found that, if Father were called in to work at night when the children were sleeping at the Bernhardts, the Bernhardts could watch the children until the next morning. The court's order also reinforced the Bernhardts' Tuesday afternoon contact and visitation with the children.

         ¶7 Mother appeals the District Court's order modifying the parenting plan, raising three issues. First, Mother argues the District Court abused its discretion by modifying the parenting plan. When reviewing a district court's decision to modify a parenting plan, we review its findings for clear error. Jacobsen v. Thomas, 2006 MT 212, ¶ 13, 333 Mont. 323, 142 P.3d 859. Findings are clearly erroneous if they are not supported by substantial evidence, the court misapprehended the effect of the evidence, or our review of the record convinces us that a mistake was made. In re Marriage of Oehlke, 2002 MT 79, ¶ 17, 309 Mont. 254, 46 P.3d 49. When the findings upon which the court based its decision are not clearly erroneous, we will reverse a district court's decision only where the district court clearly abused its discretion. Oehlke, ¶ 9.

         ¶8 Section 40-4-219, MCA, provides that a court may, in its discretion, amend a prior parenting plan if it finds "that a change has occurred in the circumstances of the child and that the amendment is necessary to serve the best interest of the child." In determining what is in the children's best interest, the court may consider whether "one parent has willfully and consistently: (i) refused to allow the child to have any contact with the other parent; or (ii) attempted to frustrate or deny contact with the child by the other parent." Section 40-4-219(1)(d)(i)-(ii), MCA. The party seeking to modify a parenting plan carries a heavy burden of proof to show a change of circumstances. In re Marriage of D'Alton, 2009 MT 184, ¶ 11, 351 Mont. 51, 209 P.3d 251. However, a district court has broad discretion when considering a child's parenting. Child custody cases present ...

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