June 10 2008
DA 07-0504
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 204N
BRAD COWAN,
Petitioner and Appellant,
v.
ANNA COWAN,
Respondent and Appellee.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DR 05-863
Honorable Russell C. Fagg, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Brian K. Kohn, Attorney at Law; Billings, Montana
For Appellee:
Michelle Renee Lee, Harper & Hilario, Billings, Montana
Submitted on Briefs: May 7, 2008
Decided: June 10, 2008
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be
cited as precedent. It 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 West Group in the quarterly table of noncitable
cases issued by this Court.
¶2 Appellant Brad Cowan (Brad) appeals from the order of the Thirteenth Judicial
District Court, Yellowstone County, amending the parenting plan for his and Appellee
Anna Cowan’s (Anna) minor child.
¶3 Brad and Anna were married in July of 2002 in Louisiana. In December of 2002
Anna gave birth to their son, Byron. Shortly thereafter, the parties relocated to Billings,
Montana. The parties divorced in October 2005 and agreed to a parenting plan in 2006
whereby Brad and Anna would alternate physical custody of Byron every three months.
When the parties began this rotation schedule Anna resided in Louisiana. However, after
spending the first three months away from Byron, Anna relocated to Billings.
¶4 In April of 2007 Anna filed a motion to amend the parenting plan. In her
supporting affidavit Anna stated that she was concerned about Byron’s well-being
because of Brad’s past drug use and the possibility of current drug charges stemming
from an investigation whereby a pound of mushrooms was removed from Brad’s home
2
during a raid in July of 2006 when Byron was present in the home. Anna also alleged
that Brad was abusive toward her on multiple occasions.
¶5 Thereafter, the parties entered a stipulation and an interim parenting plan was
issued in June, 2007, whereby Byron was to reside with Anna while Brad exercised
supervised parenting time on the weekends. The parties also agreed to submit to random
drug testing. At the hearing on the motion to amend the parenting plan, held July 27,
2007, Brad admitted that in July of 2006 there was a drug raid on his house during which
the police broke down his door and subsequently removed a pound of mushrooms and,
that Byron had been present during the raid. Brad also testified about an altercation
between the parties.
¶6 Following testimony by other witnesses, the court concluded that it was in Byron’s
best interests for him to reside primarily with Anna in Louisiana. The court explained its
decision and addressed Brad, stating:
I am sufficiently concerned about A, your drug past, B, your aggressive
tendencies, and C, the fact that basically, you work all day. I mean, that’s
fine, that’s good, but where does that leave Byron? I don’t find that your
ex-wife has nearly the drug past that you do and she doesn’t have the
aggressive tendencies that you do, and that she actually has more
opportunity to give more hands-on, 24-hours a day care to Byron. . . . . I
realize that you’ve told me that you’re not in the drug culture anymore, and
I hope, I wish I could believe you 100%. I’m concerned that [the]
stipulation called for both of you to do a hair follicle test and you haven’t
done yours, and she has. It’s not here in front of me that you are drug
free[.]”
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The court subsequently amended the parenting plan so that Byron would reside primarily
with Anna in Louisiana and Brad would have Byron every summer for nine weeks. Brad
appeals.
¶7 We review modifications to parenting plans to determine whether the district
court’s findings underlying the decision are clearly erroneous. Jacobsen v. Thomas,
2006 MT 212, ¶ 13, 333 Mont. 323, ¶ 13, 142 P.3d 859, ¶ 13. If the findings are not
clearly erroneous, we will only reverse the district court’s decision where there was
clearly an abuse of discretion. Jacobsen, ¶ 13.
¶8 Brad alleges that the “District Judge relied upon the biased conjecture of
unsubstantiated witness testimony by [Anna and g]iven the fact that the District Judge
had already found that [Brad] was already a capable, fit father, it was erroneous for the
Judge to then modify the parenting plan[.]” Specifically, Brad argues that Anna’s
testimony about his drug use and abusive actions were “unsubstantiated and erroneous
allegations” making the District Court’s findings of fact clearly erroneous.
¶9 A review of the record convinces us that the District Court’s findings of fact were
substantiated. Brad admitted that the police broke down his door in a drug raid on his
home and admitted that a pound of mushrooms was seized as a result. Moreover, Brad,
unlike Anna, failed to meet the stipulated agreement requiring random hair follicle
testing. With respect to allegations of abusive behavior, the court was in the best position
to evaluate the credibility of the witnesses and we will not second guess the court’s
determination regarding the strength and weight of the conflicting testimony between
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Brad and Anna. In re Paternity & Custody of A.D.V., 2001 MT 74, ¶ 16, 305 Mont. 62,
¶ 16, 22 P.3d 1124, ¶ 16. The court clearly made a determination to amend the parenting
plan based on what was in Byron’s best interests.
¶10 It is appropriate to decide this case pursuant to our Order of February 11, 2003,
amending Section I.3 of our 1996 Internal Operating Rules and providing for
memorandum opinions. It is manifest on the face of the briefs and the record before us
that the appeal is without merit because the findings of fact are supported by substantial
evidence, the legal issues are clearly controlled by settled Montana law which the District
Court correctly interpreted, and there was clearly no abuse of discretion by the District
Court.
¶11 Affirmed.
/S/ JIM RICE
We concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ BRIAN MORRIS
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Marriage of Cowan
Combined Opinion