No. 03-788
IN THE SUPREME COURT OF THE STATE OF MONTANA
2005 MT 80N
IN RE THE MARRIAGE OF
SAIYIN HAGGERTY,
Petitioner and Respondent,
and
THOMAS B. HAGGERTY,
Respondent and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin, Cause No. DR 00-170
The Honorable John W. Whelan, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Dana C. Christian, Attorney at Law, Livingston, Montana
For Respondent:
Rienne H. McElyea, Berg, Lilly & Tollefsen, P.C., Bozeman, Montana
Submitted on Briefs: April 7, 2004
Decided: March 29, 2005
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent but shall be filed as
a public document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.
¶2 Thomas Bret Haggerty (Bret) appeals two orders from the District Court for the
Eighteenth Judicial District, Gallatin County, denying his Motion to Amend Parenting Plan
and his Motions for Contempt. We affirm.
¶3 We address the following issues on appeal:
¶4 1. Whether the District Court erred when it denied Bret’s Motion to Amend
Parenting Plan.
¶5 2. Whether the District Court erred when it denied Bret’s Motions for Contempt.
¶6 3. Whether the District Court erred when it denied Bret his attorney’s fees and costs.
Factual and Procedural Background
¶7 Saiyin Haggerty (Saiyin) filed for dissolution of the parties’ marriage on May 10,
2000. Bret and Saiyin were married on August 31, 1996, in Bozeman. They have two young
children, T.J., who was born on December 25, 1996, and Sam, who was born on July 3,
2000, after Saiyin filed for dissolution. Saiyin also has a son, Nan, from a previous
relationship.
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¶8 On September 1, 2000, Saiyin filed with the District Court her Notice of Intent to
Move. The following month, she moved to Lynnwood, Washington with the children.
¶9 The parties’ signed their Property Settlement Agreement and their Final Parenting
Plan on August 24, 2001, and, on October 5, 2001, the District Court entered a Final Decree
of Dissolution of Marriage, incorporating the parties’ Property Settlement Agreement and
Final Parenting Plan. The parenting plan provided that the children were to reside with
Saiyin in Washington, but Bret was to have various holidays with the children and the
children would spend time with Bret in Bozeman during their summer vacations. Because
Sam was only a year old at the time the parties divorced, the parenting plan called for
gradual, phased-in visitation with Bret.
¶10 On April 3, 2003, Bret filed, through counsel, a Motion to Amend Parenting Plan to,
among other things, clarify alleged ambiguities in the existing parenting plan and to increase
his contact with his children. Saiyin filed her Counter-Motion to Amend Parenting Plan and
for Modification of Child Support on May 2, 2003.
¶11 Thereafter, Bret elected to proceed pro se and he filed three additional motions:
(1) an Emergency Motion to Allow Minor Child Summer Visitation wherein Bret requested
that he be allowed to deviate from the parenting plan and have his youngest son, Sam,
accompany Sam’s older brother, T.J., during T.J.’s month-long summer visitation with Bret
in Bozeman; (2) a Motion for Contempt of Court wherein Bret contended that Saiyin refused
to provide him with copies of her employer’s dependent health coverage information
regarding the children; and (3) a Motion for Contempt of Court and for Interference with
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Parent-Child Contact wherein Bret contended that Saiyin interfered with his telephone
contact with the children in violation of the parenting plan. Saiyin responded to Bret’s
motions on July 8, 2003, arguing that Bret calls his children almost daily and that his
constant phone calls and his motions are merely a means of harassing her.
¶12 On September 18, 2003, the District Court denied both parties’ motions to amend the
parenting plan on the grounds that there had not been a change in circumstances of the
children that necessitated a modification of the parenting plan to serve the children’s best
interests. The court did not find a need for modification based on any of the § 40-4-219,
MCA, factors or any of the best interest factors of § 40-4-212, MCA. The court granted
Saiyin’s request for a recalculation of child support based on information that one of the
children had changed residences. However, the court subsequently retracted its order
regarding child support upon learning that the child that changed residences was Saiyin’s
child from a previous relationship and not one of the parties’ two children. In a separate
order also filed September 18, 2003, the District Court denied Bret’s motions for contempt
without providing any basis for its determination.
¶13 Bret appeals the District Court’s orders denying his Motion to Amend Parenting Plan
and his Motions for Contempt.
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Standard of Review
¶14 Our standard of review of a district court’s findings regarding the modification of a
parenting plan is whether those findings are clearly erroneous. Jacobsen v. Thomas, 2004
MT 273, ¶ 10, 323 Mont. 183, ¶ 10, 100 P.3d 106, ¶ 10 (citing In re Marriage of Oehlke,
2002 MT 79, ¶ 9, 309 Mont. 254, ¶ 9, 46 P.3d 49, ¶ 9). A district court’s findings are clearly
erroneous if they are not supported by substantial credible evidence, if the trial court has
misapprehended the effect of the evidence, or if a review of the record leaves this Court with
the definite and firm conviction that a mistake has been committed. In re Estate of
Kindsfather, 2005 MT 51, ¶ 15, ___ Mont. ___, ¶ 15, ___ P.3d ___, ¶ 15 (citing Galassi v.
Lincoln County Bd. of Com’rs, 2003 MT 319, ¶ 7, 318 Mont. 288, ¶ 7, 80 P.3d 84, ¶ 7).
¶15 When the findings upon which a decision is based are not clearly erroneous, we will
reverse a district court’s decision regarding modification of custody only when an abuse of
discretion is clearly demonstrated. Jacobsen, ¶ 10. An abuse of discretion occurs when the
district court acts arbitrarily without the employment of conscientious judgment or exceeds
the bounds of reason resulting in substantial injustice. Jacobsen, ¶ 10 (citing In re Marriage
of Robison, 2002 MT 207, ¶ 15, 311 Mont. 246, ¶ 15, 53 P.3d 1279, ¶ 15).
¶16 Our standard of review of a district court’s conclusions of law in a post-divorce
proceeding is whether the court’s interpretation of the law is correct. Schmitz v. Engstrom,
2000 MT 275, ¶ 9, 302 Mont. 121, ¶ 9, 13 P.3d 38, ¶ 9 (citations omitted).
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Issue 1.
¶17 Whether the District Court erred when it denied Bret’s Motion to Amend Parenting
Plan.
¶18 Bret claims that his detailed allegations coupled with Saiyin’s “lack of denials” and
“vague ‘responses’” make the District Court’s plenary denial of hearings and motions
completely unreasonable under any standard. Bret also contends that by denying all of his
motions as well as mediation, the court “blocked all formal and informal avenues to
resolution of obvious conflicts.”
¶19 Under § 40-4-219, MCA, a court may, in its discretion, amend a parenting plan if “it
finds, upon the basis of facts that have arisen since the prior plan or that were unknown to
the court at the time of entry of the prior plan, 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.” Thus, a finding of changed circumstances is a jurisdictional prerequisite, and
without such a finding, a district court may not modify an existing custody arrangement.
Oehlke, ¶ 12 (citations omitted).
¶20 Moreover, a party seeking to modify a parenting plan pursuant to § 40-4-219, MCA,
carries a heavy burden of proof. Oehlke, ¶ 17. See also In re Marriage of Johnson (1994),
266 Mont. 158, 166, 879 P.2d 689, 694 (“party requesting modification under § 40-4-219,
MCA, bears a heavy burden because the statute’s policy is to ‘preserve stability and
continuity of custody for the children.’”).
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¶21 In the case sub judice, the District Court determined that the jurisdictional
prerequisites for modifying the parenting plan under § 40-4-219, MCA, were not met. We
agree. Bret filed his Motion to Amend Parenting Plan on the grounds that the plan was
ambiguous in two areas, that Saiyin had failed to provide him with health insurance
information, and that Saiyin had frustrated telephone contact between Bret and the children.
Bret also based his motion on his desire to spend more time with his children. However,
none of these allegations indicate a change in circumstances of the children necessitating
modification.
¶22 Moreover, while Bret filed several motions with the District Court, he failed to
support any of his motions with an affidavit.
Affidavit practice. (1) Unless the parties agree to an interim parenting
plan or an amended parenting plan, the moving party seeking an interim
parenting plan or amendment of a final parenting plan shall submit, together
with the moving papers, an affidavit setting forth facts supporting the
requested plan or amendment and shall give notice, together with a copy of the
affidavit, to other parties to the proceeding, who may file opposing affidavits.
The court shall deny the motion unless it finds that adequate cause for hearing
the motion is established by the affidavits, based on the best interests of the
child, in which case it shall set a date for hearing on an order to show cause
why the requested plan or amendment should not be granted. [Emphasis
added.]
Section 40-4-220(1), MCA. As Saiyin pointed out in her brief on appeal, merely signing
one’s motion does not amount to a verified complaint or an affidavit. “An ‘affidavit’ is a
written declaration under oath, made without notice to the adverse party.” Section 26-1-
1001, MCA; Sheehy v. Ferda (1988), 235 Mont. 63, 67, 765 P.2d 722, 724; In re Marriage
of Stout (1985), 216 Mont. 342, 347-48, 701 P.2d 729, 732. The crucial component of an
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affidavit is a declaration that statements made therein are made under oath. Continental Oil
Co. v. Jameson (1917), 53 Mont. 466, 468, 164 P. 727, 727. This declaration is missing
from Bret’s motions.
¶23 Bret’s repeated motion filing is exactly the type of conduct § 40-4-220, MCA, was
meant to discourage. The Code Commissioners’ Note to § 40-4-220, MCA, explains the
rationale behind this statute:
This section establishes a procedure for seeking temporary custody or
a modification of a custody decree by motion supported with affidavits. The
procedure is designed to result in denial of the motion without a hearing
unless the court finds that the affidavits establish adequate cause for holding
a hearing. The procedure will thus tend to discourage contests over temporary
custody and prevent repeated or insubstantial motions for modification.
[Emphasis added.]
¶24 In In re Marriage of Allison (1994), 269 Mont. 250, 267, 887 P.2d 1217, 1227-28,
this Court refused to create an exception to the affidavit requirement and held that it was
improper for the district court to grant a motion to modify a custody arrangement when the
moving party failed to file a supporting affidavit with his motion. Similarly, in In re
Marriage of Lundby, 1998 MT 122, ¶ 13, 289 Mont. 74, ¶ 13, 959 P.2d 485, ¶ 13, this Court
held that if the requirements of § 40-4-220(1), MCA, are not met, a district court has no
jurisdiction to consider modifying custody.1
1
Section 40-4-220, MCA, was amended in 1997 and again in 1999, but the 1995
version of § 40-4-220(1), MCA, relied on in Allison and Lundby is, in substance, the
same as the current statute.
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¶25 Accordingly, because Bret failed to support any of his motions with an affidavit as
required by § 40-4-220(1), MCA, and thereby, failed to provide substantial credible evidence
to satisfy the jurisdictional prerequisite in § 40-4-219, MCA, we hold that the District Court
did not err when it denied Bret’s Motion to Amend Parenting Plan.
Issue 2.
¶26 Whether the District Court erred when it denied Bret’s Motions for Contempt.
¶27 Bret argues on appeal that it was arbitrary and clearly erroneous for the District Court
to deny his motions for contempt without a hearing. Although contempt orders by a district
court are final and generally not reviewable by this Court, we make exceptions in marriage
dissolution proceedings. In re Marriage of Baer, 1998 MT 29, ¶ 42, 287 Mont. 322, ¶ 42,
954 P.2d 1125, ¶ 42 (citations omitted). However, our review is limited to whether the
district court acted within its jurisdiction and whether the evidence supports the findings.
Baer, ¶ 42.
¶28 We noted in Baer, that a district court has the responsibility to enforce its own orders
and that a district court’s power to inflict punishment by contempt is necessary to preserve
its dignity and authority. Baer, ¶ 45. Consequently, where a district court has found that
there is no need to enforce compliance with its order or that the actions of a party do not
present a challenge to its dignity and authority, we will not reverse the court’s decision
absent a blatant abuse of discretion. Baer, ¶ 45.
¶29 In its September 18, 2003 order denying the parties’ motions for contempt, the District
Court did not provide any basis for its decision. However, in reviewing the record in this
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case, we find nothing that would lead us to believe that the District Court committed a
blatant abuse of discretion in denying Bret’s motions.
¶30 Accordingly, we hold that the District Court did not err when it denied Bret’s Motions
for Contempt.
Issue 3.
¶31 Whether the District Court erred when it denied Bret his attorney’s fees and costs.
¶32 Bret argues on appeal that the District Court erred in denying him his attorney’s fees
and costs, however, Bret neither requested attorney’s fees and costs in the court below, nor
did the court make any determination in its orders regarding attorney’s fees and costs for
either party. Moreover, all but the first of Bret’s motions were filed pro se, thus Bret did not
incur any attorney’s fees for filing his pro se motions in the District Court.
We “generally will not address either an issue raised for the first time
on appeal or a party’s change in legal theory on appeal because ‘it is
fundamentally unfair to fault the trial court for failing to rule correctly on an
issue it was never given the opportunity to consider.’”
Oehlke, ¶ 30 (citation omitted).
¶33 Furthermore, Bret contends that because Saiyin’s legal positions are “without
substantial or reasonable grounds,” he should receive damages on appeal. In support of his
position, Bret relies on Rule 32, M.R.App.P., which provides as follows:
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Rule 32. Damages for appeal without merit.
If the supreme court is satisfied from the record and the presentation of
the appeal in a civil case that the same was taken without substantial or
reasonable grounds, such damages may be assessed on determination thereof
as under the circumstances are deemed proper.
Since Bret was the party that filed this appeal, Rule 32 does not support his request for
damages from Saiyin.
¶34 Accordingly, we will not consider Bret’s request for attorney’s fees or for damages.
¶35 Affirmed.
/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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