Jacobsen v. Thomas

No. 05-149

IN THE SUPREME COURT OF THE STATE OF MONTANA

2006 MT 212

IN RE THE MARRIAGE OF

ARNE JOHN JACOBSEN,

Petitioner and Respondent,

v.

MINNIE LARUE (JACOBSEN) THOMAS,

Respondent and Appellant.

APPEAL FROM: The District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause DR 01-69,
Honorable John W. Larson, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

P. Mars Scott, P. Mars Scott Law Offices, Missoula, Montana

William T. Jennings, Bailey & Jennings, LC, Orem, Utah

For Respondent:

Evonne Smith Wells and Torian Donahoe, Attorneys at Law,
Missoula, Montana

Clare E. Anderson, Anderson & Anderson, PLLP, Missoula, Montana
(Guardian Ad Litem)

Submitted on Briefs: February 8, 2006

Decided: August 29, 2006

Filed:

__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1 Minnie LaRue Thomas (“LaRue”), formerly Minnie LaRue Jacobsen, appeals the

judgment of the District Court for the Fourth Judicial District, Missoula County, which

modified the parties’ parenting plan. On appeal, LaRue objects to the modification on

four independent grounds related to the circumstances and manner in which the District

Court adopted the new plan. Because we find her second assignment of error dispositive,

we do not consider the other three.

¶2 The sole issue under review, therefore, is whether the District Court erred when it

modified the parenting plan without taking testimony, hearing evidence, and entering

findings of fact and conclusions of law regarding a change in circumstances or the

statutory criteria set forth in §§ 40-4-212 and -219, MCA.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 The parenting plan at issue in this case has been the subject of protracted litigation

in the District Court, as well as a previous appeal to this Court (see Jacobsen v. Thomas,

2004 MT 273, 323 Mont. 183, 100 P.3d 106). On May 14, 2001, the District Court

entered a decree dissolving LaRue’s marriage to Arne John Jacobsen (“Arne”).

Incorporated into the decree was a stipulated parenting plan for the parties’ two children

(Jonah, born March 1997, and Savannah, born August 1998), pursuant to which LaRue

and Arne were to share parenting of the children equally on an alternating week schedule.

¶4 Following contempt motions filed by Arne in May and July 2001, the District

Court appointed a guardian ad litem (“GAL”) for the children. In due course, the GAL

recommended that Arne be made the primary residential parent of the children at the

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location of his choice. The court held hearings in October and November 2001, after

which it vacated the stipulated parenting plan, issued a holiday season parenting

schedule, and granted Arne’s request to relocate with the children to Park City, Utah.

¶5 Eleven months later, in October 2002, following numerous proceedings in the

District Court, the submission of a final report by the GAL, and a final hearing held

August 20, 2002, the District Court issued an order naming Arne as the primary caregiver

and adopting a parenting plan proposed by Arne. 1 Pursuant to this plan, the children

were to reside with Arne during the school year and with LaRue during the summer

months, with additional visitation dates by the non-residential parent (LaRue during the

school year and Arne during the summer months) specified in the plan.

¶6 LaRue appealed the District Court’s order. Among other things, she claimed that

modification of the stipulated parenting plan was improper because the District Court had

not found that there was a change in circumstances warranting a modification and

because the District Court had failed to properly assess the best interests of the children.

See Jacobsen, ¶ 41. We affirmed on September 28, 2004, holding (with respect to this

particular claim) that while the District Court had not used the “change of circumstances”

language, the reality that a change in circumstances had occurred was implicit in the

court’s findings, see Jacobsen, ¶ 44, as was the court’s assessment of the best interests of

the children, see Jacobsen, ¶ 45.

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The court’s twenty-four-page order was supported by extensive findings of fact, a
comprehensive assessment of most of the “best interest of the child” and “parenting”
factors (see § 40-4-212(1), MCA), and conclusions of law.

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¶7 Meanwhile, LaRue filed a motion to appoint a special master to assist her and

Arne in resolving their ongoing co-parenting conflicts. On June 18, 2004, the District

Court appointed Liz Dalton, with whom the parties had contracted on another occasion.

The court specified that Ms. Dalton’s authority and responsibilities were limited to the

terms of the Special Master Agreement which, with respect to a parenting plan, provided

that “[d]uring the contract term, Ms. Dalton will assist us design a Parenting Plan that

will guide our long-term success as co-parents.” The Agreement also stated, however,

that Ms. Dalton “will honor all prior court orders and will not redesign any provision of a

parenting plan unless [LaRue and Arne] agree to a modification.”

¶8 The events giving rise to the present appeal took place in November and

December 2004. On November 17, Ms. Dalton emailed the GAL concerning two recent

incidents involving LaRue and a dispute over her midweek visitations. Specifically, Ms.

Dalton alleged that two days earlier, LaRue had “refused to leave my home-office

following her 4 p.m. appointment . . . until I had written or faxed a ‘decision’ in her

favor.” The situation apparently was resolved approximately five hours later when

LaRue’s boyfriend arrived at Dalton’s home and persuaded LaRue to leave. In addition,

Ms. Dalton related an incident wherein LaRue allegedly attempted to take the children

from school at an unscheduled time and, in the process, injured the school principal. Ms.

Dalton indicated that she was “considering suspending LaRue’s parenting time until we

can clearly draft an order (as a team effort) that spells out her parenting time in such a

manner that she will agree to.” Ms. Dalton requested a conference call to discuss the

matter further.

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¶9 The next day (November 18, 2004), based on Ms. Dalton’s email, the GAL filed in

the District Court a motion captioned “Emergency Ex Parte Motion for Order Suspending

Parenting Time for Mother.” Given “the severity of the incidents” described above and

the fact that LaRue’s next scheduled parenting time began that same day (November 18),

the GAL requested that “LaRue’s parenting time be suspended by this Court immediately

until a team conference call can be held which can further delineate and clarify LaRue’s

responsibilities, and that plan agreed to by the parties or ordered by this Court.” The

District Court granted the GAL’s motion on November 18 and further ordered that LaRue

appear before the court on December 13, 2004, “to show Cause why this Order should

not be made permanent.”

¶10 At the December 13 hearing, however, the District Court did not address the show

cause issue. Rather, the court focused on a report and proposed parenting plan (dated

December 13, 2004) that Ms. Dalton had faxed to the parties and the court earlier that

day. Both Arne and the GAL were in agreement with Ms. Dalton’s recommendations

(which included making Arne’s residence the children’s “primary residence” and

restricting LaRue’s summer time to “up to 4 weeks” with the children); however,

LaRue’s counsel raised a number of matters requiring clarification. Thus, the judge

referred the parties and their respective counsel to his chambers to contact Ms. Dalton by

telephone and work on the unresolved issues. The court also stated that it intended to

adopt the elements of Ms. Dalton’s report, though it was not adopting the report “as

evidence,” and that “[i]f [the parties] need to submit written amendments later or

something comes to mind that you now see or hear or [the GAL] sees or hears, you’ll all

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have the same time frame to respond, and then I can enter the final order.” Lastly, the

court stated that it would be entering a temporary order that day incorporating Ms.

Dalton’s report with any modifications agreed upon by the parties.

¶11 The record does not disclose whether the parties in fact conferred with Ms. Dalton

in the District Judge’s chambers and, if so, what the outcome of that conference was.

LaRue indicates in her briefs that the parties did not reach an agreement, that they

returned home, and that they did not go back before the court for a hearing. In any event,

the next action taken by the District Court was the entry on December 29, 2004, of an

order stating only that the December 13, 2004, parenting plan developed by Ms. Dalton

“is hereby adopted and made final.” The next day, however, the court issued a second

order vacating the court’s November 18, 2004, order (which had suspended LaRue’s

parenting time) and stating that Ms. Dalton’s December 13, 2004, parenting plan would

govern “until otherwise determined by the court.”

¶12 Given the apparent conflict between these two orders, the GAL filed a Request for

Clarification. On March 3, 2005, the court issued an order clarifying that the December

30, 2004, order “is an interim order documenting the oral order of the Court as of the

December 13, 2004 hearing” and that the December 29, 2004, order adopting Ms.

Dalton’s parenting plan “is the final order of the Court.” LaRue filed a timely notice of

appeal from the court’s December 29, 2004, order.

STANDARD OF REVIEW

¶13 Our usual standard of review with respect to parenting plan modifications is as

follows: we review the findings underlying a district court’s decision to modify a

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parenting plan to determine whether those findings are clearly erroneous; and when the

findings upon which the modification decision is predicated are not clearly erroneous, we

will reverse the district court’s decision only where an abuse of discretion is clearly

demonstrated. In re Marriage of Oehlke, 2002 MT 79, ¶ 9, 309 Mont. 254, ¶ 9, 46 P.3d

49, ¶ 9. In a case such as this, however, where the allegation is that the district court

made no such findings in the first place and the issue is whether the court’s action

conforms to statutory requirements, we are presented with a question of law, which we

review de novo. See In re T.H., 2005 MT 237, ¶ 35, 328 Mont. 428, ¶ 35, 121 P.3d 541,

¶ 35 (“We review a district court’s interpretation and application of statutes for

correctness.”); Wombold v. Assoc. Financial Services Co., 2004 MT 397, ¶ 30, 325 Mont.

290, ¶ 30, 104 P.3d 1080, ¶ 30 (“Issues of statutory interpretation are reviewed de

novo.”); cf. State v. Williams, 2003 MT 136, ¶ 8, 316 Mont. 140, ¶ 8, 69 P.3d 222, ¶ 8

(“Where . . . the issue on appeal is whether the trial court followed the statutory

requirements for a sentence revocation, the question is a matter of law, and our review is

plenary.”).

DISCUSSION

¶14 Did the District Court err when it modified the parties’ parenting plan without
taking testimony, hearing evidence, and entering findings of fact and conclusions
of law regarding a change in circumstances or the statutory criteria set forth in
§§ 40-4-212 and -219, MCA?

¶15 LaRue argues that that the District Court did not comply with the statutory criteria

governing modifications to parenting plans. She points out that the court did not take any

testimony, receive any evidence, or hear any arguments at the December 13, 2004,

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hearing. As noted above, the District Court stated at that hearing that it was “not

adopting [Ms. Dalton’s] report as evidence” (emphasis added). Nor did the court enter

any findings of fact and conclusions of law in conjunction with its December 29, 2004,

order adopting Ms. Dalton’s parenting plan. The court’s failure to do so, LaRue

concludes, is error. We agree.

¶16 Section 40-4-219(1), MCA, provides, in relevant part, that a District Court

may in its discretion amend a prior 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. [Emphasis added.]

As this language makes clear, in order to modify the parties’ existing parenting plan the

District Court was required first to find (1) that a change had occurred in Jonah’s and/or

Savannah’s circumstances and (2) that an amendment to the parenting plan was necessary

to serve the children’s best interests. (Section 40-4-212(1), MCA, sets forth a number of

factors that a court shall consider in determining “the best interest of the child.”) These

two findings, in turn, were required to be based on facts that had arisen since the prior

plan was entered or that were unknown to the court at the time the prior plan was entered.

¶17 Arne observes that “LaRue did not file any motions or notices requesting a hearing

so that she could present testimony and evidence. Nor did she file any written

amendments or specific objections to the December 13 parenting plan [proposed by Ms.

Dalton]. LaRue did not request that the district court schedule another hearing so that she

could present testimony and evidence.” The GAL similarly points out that “neither party

filed any objection or amendment in the twelve days before the court adopted [Ms.

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Dalton’s] parenting plan as its final order.” However, this overlooks the requirements of

the statute. In In re Marriage of Oehlke, 2002 MT 79, 309 Mont. 254, 46 P.3d 49, we

characterized the statutory finding of changed circumstances as a “prerequisite” to

amending a prior parenting plan and stated that “a district court may not modify an

existing custody arrangement” without such a finding. Oehlke, ¶ 12.

¶18 As far as we can discern from the record, the District Court did not abide by the

foregoing requirements of Oehlke and § 40-4-219(1), MCA. There is no explicit

indication that the court found, based on new or previously unknown facts, a change in

circumstances and then determined, in conformance with § 40-4-212(1), MCA, that

adoption of the new plan was necessary to serve the best interests of the children. In

contrast to its order of October 29, 2002 (see note 1, supra), the court’s December 29,

2004, order consisted of a single sentence: “IT IS HEREBY ORDERED that the

attached Parenting Plan developed by Elizabeth A. Dalton, Esq., is hereby adopted and

made final.” This is insufficient to satisfy the statute.

¶19 “Adequate findings and conclusions are essential for without them this Court is

forced to speculate as to the reasons for the District Court’s decision. Such a situation is

not a healthy basis for review.” Jones v. Jones (1980), 190 Mont. 221, 224, 620 P.2d

850, 852. In re Marriage of Converse (1992), 252 Mont. 67, 826 P.2d 937, illustrates

this point. There was nothing in the record in Converse demonstrating that the statutory

criteria for making custody determinations had been considered by the district court. We

observed that “[i]f some or all of the factors were considered during the off the record

conference between the trial judge and counsel for the parties, this is not reflected in the

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record. Even if the relevant factors had been considered, there was nothing in the trial

court’s findings indicating the basis for the custody decision in relation to the factors.”

Converse, 252 Mont. at 71, 826 P.2d at 940. Given that a district court’s findings should,

“at a minimum, set forth the essential and determining facts upon which the [court] rested

its conclusion on the custody issue,” Converse, 252 Mont. at 71, 826 P.2d at 939 (internal

quotation marks omitted), we remanded the case to the district court “to receive evidence

relative to the statutory factors necessary for a determination of custody and for explicit

findings setting forth at least the essential and determining facts upon which the District

Court rests its conclusion on custody,” Converse, 252 Mont. at 72, 826 P.2d at 940

(emphasis added; internal quotation marks omitted). See also In re Marriage of Keating

(1984), 212 Mont. 462, 467, 689 P.2d 249, 252 (observing that an award of custody

cannot be upheld “[a]bsent an indication that the trial court considered all of the

statutorily mandated factors” and remanding the case to the district court “for appropriate

findings . . . .”).

¶20 Our holding in Converse mandates the same result here. Given the absence in the

record of any findings by the District Court—let alone the prerequisite finding of a

change in circumstances—supporting its December 29, 2004, order, the court’s purported

modification of the parties’ parenting plan is invalid.

¶21 Lastly, we would simply note that the District Court’s “clarification” order of

March 3, 2005 (subsequent to the order at issue in this case), purported to grant LaRue’s

July 30, 2004, motion to “transfer jurisdiction” of the action to the courts of Utah.

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However, no argument has been made with regard to this issue, and we decline to address

it.

¶22 We therefore remand this case to the District Court to receive evidence relative to

the statutory requirements necessary to modify an existing parenting plan and to enter

findings setting forth the facts upon which the court rests its final determination, and for

further proceedings as may be required.

¶23 Reversed and remanded.

/S/ JIM RICE

We concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ BRIAN MORRIS

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