No. 04-246
IN THE SUPREME COURT OF THE STATE OF MONTANA
2005 MT 111
IN RE THE MARRIAGE OF
KAY OLSON nka KAY EMMERT,
Petitioner and Appellant,
v.
JAMES OLSON,
Respondent and Respondent.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake, Cause No. DR 00-136
The Honorable C. B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Michael H. Keedy, Henning & Keedy, Kalispell, Montana
For Respondent:
James Olson, pro se, Cut Bank, Montana
Submitted on Briefs: August 31, 2004
Decided: May 4, 2005
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court
¶1 Kay Olson (Kay) appeals an order of the District Court for the Twentieth Judicial
District, Lake County, denying her motion to modify the parties’ parenting plan. We
remand.
¶2 Kay raises the following issues on appeal:
¶3 1. Are the trial court’s findings clearly erroneous?
¶4 2. Did the trial court err in failing to provide specific findings as to the presumption
specified in § 40-4-219(3), MCA, and in failing to apply that presumption?
¶5 3. In the alternative, should this matter be remanded to the trial court for a parenting
evaluation?
Factual and Procedural Background
¶6 The District Court entered a Decree of Dissolution of the parties’ marriage on
January 9, 2002, granting the parties joint custody of their daughter, Jamie, born
December 10, 1996. Jim was designated the primary custodial parent and Kay was awarded
reasonable and liberal visitation rights.
¶7 Sometime in the fall of 2002, Jim was terminated from his job as a police officer in
Cut Bank. Jim contacted Kay and informed her that he was on medication and unable to care
for Jamie. Consequently, on October 30, 2002, Kay and Jim entered into a Stipulated
Modified Parenting Plan wherein they agreed that Kay would become the primary custodial
parent. The new parenting plan specified that Jamie would reside with Kay during the
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school year and that Jamie would visit Jim for eight weeks each summer. Each parent was
entitled to have Jamie on alternating weekends during the custody of the other parent.
¶8 In addition, the new parenting plan stipulated that neither parent was to pay child
support to the other during the time Jim remained unemployed. However, once Jim became
employed, he was to pay child support as provided in the Montana Child Support Guidelines.
The parenting plan also required that both parents notify the other parent in writing of any
changes in residence, of employers, or of health insurance coverage.
¶9 On February 24, 2004, Kay sought a modification of the parties’ Stipulated Modified
Parenting Plan, requesting that Jim’s visitation rights be changed from unsupervised to
supervised. The time and duration of the visits were to remain the same.
¶10 The District Court granted Kay’s motion on an interim basis and directed that Jim
appear on March 17, 2004, to show cause why the interim plan should not be made
permanent. The order further specified that Jim was not to contact his daughter pending the
hearing on Kay’s motion.
¶11 At the hearing in this matter, Kay testified that from October 2002, to the time of the
hearing, Jim moved from place to place and worked at several jobs for short periods of time.
Contrary to the provisions of the parenting plan, Jim failed to notify Kay each time he
changed residences or jobs. Kay stated that this became a significant problem in the summer
of 2003 when Jim failed to return Jamie to Kay after Jim’s summer visitation ended. Kay
testified that since she had no address for Jim, she had to enlist the aid of the police who
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were able to locate Jim and Jamie after randomly searching the neighborhood where relatives
thought Jim lived.
¶12 During part of this summer 2003 visitation, Jim rented a house in Great Falls next to
Kandi Gaskins (Gaskins). Gaskins testified at the hearing that she became friendly with Jim
and Jamie during the time they lived next door and that from what she observed, Jim was not
properly providing for Jamie. Gaskins stated that she provided Jim and Jamie with groceries
after Jamie complained on several occasions that she was hungry or that she had not eaten.
In addition, Gaskins testified that she bought Jamie a pair of shoes because Jamie’s shoes had
become too small and that Gaskin’s mother bought $80.00 worth of clothing for Jamie.
¶13 Gaskins further testified that she loaned Jim several pieces of furniture because, other
than a bed for Jamie, he had none. After Jim received an eviction notice and prior to his
moving away, Jim sold the furniture Gaskins had loaned him to surrounding neighbors to
raise money. After some difficulties, Gaskins was able to retrieve the furniture from the
neighbors.
¶14 Gaskins also testified to an incident in August 2003, when Jim entered her home
uninvited. Consequently, Gaskins filed a report with the Great Falls Police Department. In
that report, Gaskins stated that Jim seemed very depressed and that he acted as if the world
was against him. She also stated in that report that Jim had told her that he wanted to
become a truck driver and that once he did that, he planned to steal Jamie away from Kay.
Moreover, Gaskins testified that after Jamie was removed from his custody, Jim alluded to
suicide.
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¶15 Kay testified at the hearing that there were other problems during the 2003 summer
visitation. According to the parenting plan, Kay was entitled to custody of Jamie on
alternating weekends during Jim’s summer visitation, however, except for one weekend, Jim
denied Kay the right to see Jamie. In addition, during the 2003 summer visitation, Kay
testified that Jim’s brother informed her that he was taking care of Jamie for a few days
because Jim had been hospitalized for drinking while using medication.
¶16 Jim did not testify at the hearing. Instead Jim, acting pro se, called two witnesses,
William Barron (Barron) and Daniel Burns (Burns). Barron, the Lake County Sheriff
Coroner, testified that he had known Jim for many years and that he had never seen Jim
abuse alcohol or use illegal drugs. Barron also testified that he had observed Jim and Jamie
together and that they seemed very close.
¶17 Burns, who employs Jim at both the motel and the car dealership that Burns owns in
Cut Bank, testified that he had never had the opportunity to observe Jim and Jamie together.
Burns did testify that Jim was a great employee and that he had never seen Jim abuse alcohol
or drugs.
¶18 The District Court issued its Order Denying Petitioner’s Motion to Modify Parenting
Plan on March 22, 2004. The District Court’s Findings of Fact consisted of the following:
1. That Petitioner presented no facts that have arisen since the prior
parenting plan which cause a change in the circumstances of the minor child
of the parties.
2. That there has been no change of circumstances that both parties
continue their vindictiveness toward the other party contrary to the best
interest of their daughter as previously determined by this Court.
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Based on these findings, the court concluded that Kay had failed in her burden under § 40-4-
219, MCA, to show that facts had arisen since the prior parenting plan which would
constitute a change in circumstances sufficient to necessitate an amendment of the parenting
plan to serve the best interests of the child. Consequently, the court denied Kay’s motion
to modify and ordered that the Stipulated Modified Parenting Plan remain in full force and
effect. Kay appeals.
Discussion
¶19 Kay argues on appeal that the District Court’s findings are clearly erroneous; that the
District Court erred in failing to provide specific findings as to the presumption specified in
§ 40-4-219(3), MCA, and in failing to apply that presumption; and, in the alternative, that
this matter should be remanded to the District Court for a parenting evaluation.
¶20 We review a district court’s findings relating to custody modification to determine
whether those findings are clearly erroneous. In re Custody of Arneson-Nelson, 2001 MT
242, ¶ 15, 307 Mont. 60, ¶ 15, 36 P.3d 874, ¶ 15 (citing In re Marriage of Johnson (1994),
266 Mont. 158, 166, 879 P.2d 689, 694). Findings are clearly erroneous if they are not
supported by substantial evidence, the court misapprehends the effect of the evidence, or this
Court’s review of the record convinces it that a mistake has been made. Arneson-Nelson,
¶ 15. In the case sub judice, we are unable to determine from the District Court’s cursory
findings whether they are supported by substantial evidence or whether the court
misapprehended the effect of the evidence.
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¶21 Moreover, § 40-4-219(1), MCA, provides that a district court may amend a 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 this case, the court found
that Kay had presented “no facts that have arisen since the prior parenting plan which cause
a change in the circumstances of the minor child of the parties.” The court made this
determination without any reference to § 40-4-219(3), MCA, which provides that “[t]he court
shall presume a parent is not acting in the child’s best interest if the parent does any of the
acts specified in subsection (1)(d) or (8).” Subsection (8) of § 40-4-219, MCA, is not
applicable here, however, subsection (1)(d) is. It provides:
In determining the child’s best interest under this section, the court may, in
addition to the criteria in 40-4-212, also consider whether:
....
(d) 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), MCA. Nothing in the findings of the trial court indicate that it
considered these presumptions.
¶22 Accordingly, we remand this case to the District Court for detailed findings of fact
and conclusions of law.
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¶23 Remanded for further proceedings consistent with this Opinion.
/S/ JAMES C. NELSON
We Concur:
/S/ KARLA M. GRAY
/S/ PATRICIA O. COTTER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
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