In re Atkinson

348 P.3d 172 (Table)

In re the MARRIAGE OF Christina Jean ATKINSON, f/k/a Christina Jean Rannebarger, Petitioner and Appellant and Robert Nicholas RANNEBARGER, Respondent and Appellee.

No. DA 14–0060.

Supreme Court of Montana.

Submitted on Briefs Nov. 6, 2014.

Decided Dec. 30, 2014.

For Appellant: Erik M. Moore, Attorney at Law, Billings, Montana.

For Appellee: Jeff A. Turner, Towe, Ball, Mackey, Sommerfeld & Turner, PLLP, Billings, Montana.

Opinion

Chief Justice MIKE McGRATH delivered the Opinion of the Court.

¶ 1 Pursuant to Section I, Paragraph 3(d), 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 Christina Atkinson appeals from the order of the Thirteenth Judicial District Court, Yellowstone County, granting a motion to modify a parenting plan. Christina argues that the District Court abused its discretion by adopting the proposed parenting plan of Robert. She maintains that the District Court failed to properly consider and apply the statutory factors governing custody determinations and ignored evidence showing the best interests of the children were served by residing with her. We affirm.

¶ 3 Christina Atkinson and Robert Rannebarger divorced in January 2009. The parties have two minor children, T.R. and B.R. The original parenting plan named Christina as the primary custodial parent of the children. Robert moved to Colorado in September 2009 and has remained there since.

¶ 4 In October 2011, Christina asked Robert to take the children to Colorado. Christina had suffered a miscarriage and was troubled with depression and suicidal thoughts. Under the new, informal agreement, the children visited Christina during holidays. During a visit for Christmas in 2012, Christina decided to keep the children and did not return them to Robert in Colorado. Christina then reinstated a claim for child support with the Child Support Enforcement Division (CSED). CSED determined that Robert was current on his support obligations.

¶ 5 While in her care, Christina enrolled the boys in counseling with therapist Flor Lopez. In July 2013, Christina obtained a temporary order of protection against Robert and included the children on the order. The basis of the order was allegations of threatening and vulgar text messages. In October 2013, Robert moved to amend the parties' parenting plan.

¶ 6 On January 21, 2014, following a hearing, the District Court issued its Findings of Fact, Conclusions of Law and Order in which it adopted Robert's amended parenting plan. The plan provides that T.R. and B.R. reside primarily with Robert in Colorado. The children visit Christina during certain holidays and summer vacations.

¶ 7 We review for clear error the findings of fact underlying a district court's decision to modify a parenting plan. In re Klatt, 2013 MT 17, ¶ 12, 368 Mont. 290, 294 P.3d 391. If the findings are not clearly erroneous, “we will reverse the district court's decision only where an abuse of discretion is clearly demonstrated.” Klatt, ¶ 12 (citations omitted). This Court reviews de novo the issue of whether the court's actions conform to the statutory requirements. Klatt, ¶ 12.

¶ 8 A court may amend an existing parenting plan if it finds that “a change has occurred in the circumstances and that the amendment is necessary to serve the best interests of the child.” Section 40–4–219, MCA ; In re Marriage of Oehlke, 2002 MT 79, ¶ 14, 309 Mont. 254, 46 P.3d 49. In determining the best interest of the child, the court considers a non-exhaustive list of factors including: the wishes of the parents; the child's adjustment to home, school, and community; the mental and physical health of all individuals involved; physical abuse or threats of physical abuse; continuity and stability of care; and the developmental needs of the child. Section 40–4–212, MCA. Additionally, the court may consider the effect of one parent's refusal to allow the other parent contact with the child. Section 40–4–219(1)(d), MCA. Although the court is not required to make a specific finding on each of the factors, it must note the “essential and determining” facts upon which it rests its conclusions. In re Marriage of Merriman, 247 Mont. 491, 493, 807 P.2d 1351, 1353 (1991).

¶ 9 The District Court's findings are not clearly erroneous. The court found that substantial...