Perry v. Pliley

05/26/2020

DA 18-0626
Case Number: DA 18-0626

IN THE SUPREME COURT OF THE STATE OF MONTANA
2020 MT 133N

IN RE THE PARENTING OF K.R.C.W.,

DANIEL W. PERRY,

Petitioner and Appellant,

and

KRISTYN M. PLILEY,

Respondent and Appellee.

APPEAL FROM: District Court of the Seventeenth Judicial District,
In and For the County of Valley, Cause No. DR-2016-43
Honorable Yvonne Laird, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jami L. Prins, Attorney at Law, Arlee, Montana

For Appellee:

Jason M. Scott, P. Mars Scott Law Office, Missoula, Montana

Submitted on Briefs: May 6, 2020

Decided: May 26, 2020

Filed:

cir-641.—if
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶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 Daniel Perry appeals the Seventeenth Judicial District Court’s order amending the

parties’ parenting plan to provide primary residential custody of his now twelve-year-old

child K.R.C.W. with Kristyn Pliley. We affirm.

¶3 From the time K.R.C.W. was born to Daniel and Kristyn until age seven, he resided

with Kristyn in Glasgow.1 At that time, he went to live with Daniel in Miles City because

of Kristyn’s drug use. Kristyn entered and completed drug treatment. The District Court

entered a parenting plan in February 2017 providing that K.R.C.W. would reside primarily

with Daniel during the school year and with Kristyn one weekend per month and during

the summer. Kristyn moved to amend the parenting plan in March 2018. The District

Court held a hearing in May at which both parties appeared without counsel. Each gave

testimony, and the court asked questions.2 The District Court entered an order a week later,

making findings of fact from the parties’ testimony. The court noted Kristyn’s concerns

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Kristyn and her family reside in St. Marie. K.R.C.W. would attend school in Glasgow, and the
District Court referred to Kristyn’s home as “Glasgow” for purposes of its rulings. We do the
same.
2
Although the Valley County Clerk of District Court made an extensive minute entry of the
May 21, 2018 hearing, there is no transcript of the hearing in the appellate record.
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about K.R.C.W.’s behavioral issues and that Daniel was looking at a move to Billings for

a better job opportunity. The court mentioned Kristyn’s concern about allegations

regarding a child sexual assault committed by another child in Daniel’s home, found that

no evidence “[o]ther than Kristyn’s assertions, based on hearsay,” was presented on the

point, and noted that Daniel disputed the allegation.

¶4 Based on the evidence presented, the District Court ordered that K.R.C.W. would

finish school in Miles City and then spend the summer with Kristyn as reflected in the

parenting plan. In the meantime, it directed that an assessment evaluation be done, with

Youth Dynamics, Inc., if possible, “with an emphasis on [K.R.C.W.’s] parenting

arrangements and educational needs” and to “determine [his] needs and wants . . . with a

focus on his primary residential location.” The court ordered that the evaluation be

completed by mid-July.

¶5 Daniel filed his Notice of Intent to Move to Billings on July 9, 2018.

Youth Dynamics completed an extensive assessment and filed it with the District Court as

directed. The assessment reported the evaluator’s discussions with K.R.C.W. and with

both parents and included reports of the child’s psychological testing. The evaluation noted

that K.R.C.W. valued and should have time with both parents but wanted to live with his

mother in Glasgow. The District Court convened a second hearing on August 6, 2018.

¶6 Both parties represented themselves at the hearing on Kristyn’s motion. The court

questioned each of them. It rejected Kristyn’s attempt to introduce into evidence a letter

containing allegations that the son of Daniel’s domestic partner had sexually assaulted a

young boy. But the court did allow Kristyn to testify that she had concerns about it because

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Daniel did not seem to have taken the allegations seriously. And the District Court also

questioned Daniel about it. He said he was “pretty sure” his fiancée was aware of the

allegations against her son, but that he had no direct knowledge of the specifics. Daniel

testified that there had been no charges filed, no police reports or investigations, and he

wasn’t concerned because he sees the boy interact with the other children in his home and

has not observed any problems.

¶7 The trial court acknowledged at the hearing that the case presented difficult choices;

it expressed concern that Kristyn had experienced a relapse in May 2018, but it was

impressed with the steps she is taking to get past her addiction. The court discussed the

child’s medical condition and its concern that the condition would need careful monitoring.

The court commended Daniel that he “really stepped up” when K.R.C.W. needed him, but

it also expressed concern about Daniel’s apparent lack of concern or follow-up regarding

the allegations against the son of his fiancée. The court relied on the report of Youth

Dynamics and the evidence that K.R.C.W. had childhood friends and familiarities in

Glasgow, whereas Billings would be a complete change for him. The District Court

entered an order on August 21, 2018, providing for K.R.C.W. to reside primarily with

Kristyn during the school year and awarding Daniel one weekend per month and all

summer (except one weekend per month), as well as alternating holidays. We granted

Daniel leave to file an out-of-time appeal.

¶8 Daniel argues on appeal that there was no change of circumstances as required by

law that would justify modifying the existing parenting plan and that the District Court

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erroneously based its decision on Kristyn’s hearsay testimony about the purported

sexual assault that was nothing more than her unsubstantiated allegation.

¶9 “A district court has broad discretion when considering the parenting of a child, and

we must presume the court carefully considered the evidence and made the correct

decision.” Northcutt v. McLaughlin (In re G.M.N.), 2019 MT 18, ¶ 11, 394 Mont. 112,

433 P.3d 715 (citation omitted). This Court does not reweigh conflicting evidence or

substitute its judgment for that of the district court; we instead evaluate findings of fact to

determine “whether they are sufficiently comprehensive and pertinent to the issues to

provide a basis for decision, and whether they are supported by the evidence presented.”

In re G.M.N., ¶ 11 (citations omitted). Absent clear error, we review a district court’s

decision regarding a parenting plan for an abuse of discretion. In re G.M.N., ¶ 11.

“A demonstration of changed circumstances is a ‘prerequisite’ to amendment of a parenting

plan, and ‘a district court may not modify an existing custody arrangement’ without such

a finding.” Newman v. Newman (In re R.J.N.), 2017 MT 249, ¶ 9, 389 Mont. 68, 403 P.3d

675.

¶10 Addressing Daniel’s first allegation, we conclude that the District Court found a

change in circumstances sufficient to warrant consideration of an amended parenting plan

and that its finding was supported by the evidence. After Daniel indicated that he intended

to move, the court ordered an evaluation, directing the evaluator to determine K.R.C.W.’s

needs and wants “with a focus on his primary residential location.” The court directed the

assessment to address “if it would be disruptive for K.R.C.W. to move from Miles City,

Montana[,] to Billings, Montana[,] or if it would be better to move K.R.C.W. from Miles

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City, Montana[,] to Glasgow, Montana.” Though the final order did not expressly conclude

that “a change ha[d] occurred in the circumstances of the child” as § 40-4-219(1), MCA,

requires, the District Court implicitly so found. See Caplis v. Caplis, 2004 MT 145, ¶ 32,

321 Mont. 450, 91 P.3d 1282 (citations omitted) (noting that where “findings are general

in terms, any findings not specifically made, but necessary to the [determination], are

deemed to have been implied, if supported by the evidence.”). Daniel’s move triggered a

substantial change in K.R.C.W.’s circumstances because the child would be moving no

matter what, either to an entirely new community with his father or back to Glasgow to

live with his mother.

¶11 Second, Daniel alleges that the District Court’s consideration of Kristyn’s hearsay

testimony about the alleged sexual assault was error. The court did not admit any

documents or allow Kristyn to testify about the assault without “firsthand information.”

The court did mention its concern that Daniel had not followed up on the allegation. Its

findings do not reflect that it relied on Kristyn’s hearsay statement, however, and we

decline to reverse on that ground. “At every stage of the proceeding, the court must

disregard all errors and defects that do not affect any party’s substantial rights.” M. R. Civ.

P. 61; see Serrania v. LPH, Inc., 2015 MT 113, ¶ 35, 379 Mont. 17, 347 P.3d 1237. The

District Court heard extensive testimony from both parties at two separate hearings and

considered a lengthy evaluation report, covering the entirety of K.R.C.W.’s circumstances,

and made its decision from that record.

¶12 At the time of the hearing, K.R.C.W. was residing with Kristyn in Glasgow for the

summer. The District Court noted Kristyn’s testimony, also reflected in the evaluation,

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that he “loves being in Glasgow and has a lot of friends,” and that Glasgow was essentially

where he had “grown up” and was at home. It also noted concerns she raised about

K.R.C.W.’s ability to make friends and to adapt to a bigger school in Billings. The District

Court considered Daniel’s belief that his son would prosper in Billings because it has more

to offer than Glasgow and noted Daniel’s testimony that he “understands [Kristyn’s]

concerns about safety.” The court relied on the independent evaluation it ordered and

properly considered K.R.C.W.’s wishes in determining his best interests. Section 40-4-

212(1)(b), MCA. In the final analysis, the District Court determined: “A ten-year-old boy

has been moved around the State and now the parties are asking the Court to make him

move again. Regardless of the Court’s decision, the child will have to move and switch

schools, again. Constant disruption in the child’s life is not in his best interests.”

¶13 We will not substitute our judgment for the trial court’s if the record contains

substantial credible evidence to support its decision to amend a parenting plan.

Matter of D.C.N.H., 2020 MT 119, ¶ 21, 400 Mont. 59, ___ P.3d ___. “The question is

not whether there was sufficient evidence to enable the lower court to reach a different

conclusion, but rather whether the conclusion that it did reach is supported by substantial

evidence.” Matter of D.C.N.H., ¶ 21 (citations omitted). Even without reliance on

Kristyn’s hearsay testimony, we conclude that the record as a whole contains substantial

credible evidence to sustain the District Court’s findings, and it did not act arbitrarily or

without conscientious exercise of judgment in directing that K.R.C.W. reside primarily

with Kristyn during the school year.

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¶14 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the

Court, the issue is controlled by the clear application of pertinent standards of review. On

the whole, the District Court’s findings of fact are not clearly erroneous. It did not abuse

its discretion in amending the parenting plan, and its order is affirmed.

/S/ BETH BAKER

We Concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ DIRK M. SANDEFUR
/S/ JIM RICE

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