February 10 2009
DA 07-0501
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 33
IN RE THE MARRIAGE OF:
LISA JANE BANKA,
Petitioner and Appellant,
and
DOUGLAS CHARLES BANKA,
Respondent and Appellee.
APPEAL FROM: District Court of the Ninth Judicial District,
In and for the County of Pondera, Cause No. DR 99-24
Honorable E. Wayne Phillips, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jeremy S. Yellin, Attorney at Law, Havre, Montana
For Appellee:
Shari M. Gianarelli, Attorney at Law, Conrad, Montana
Submitted on Briefs: April 30, 2008
Decided: February 10, 2009
Filed:
__________________________________________
Clerk
Justice John Warner delivered the Opinion of the Court.
¶1 In connection with the dissolution of their marriage in 2001, Lisa Banka (Lisa) and
Douglas Banka (Douglas) agreed to a parenting plan concerning their two children which
was then ordered by the District Court. This parenting plan was modified in February 2006
to provide Douglas with only supervised visitation. Following another Motion to Modify
Parenting Plan filed in February 2007, the District Court for the Ninth Judicial District,
Pondera County, issued two written orders. Lisa Banka appeals these orders which modified
the February 2006 parenting plan. We conclude that we must reverse and remand as the
orders appealed from are not supported by findings of fact or conclusions of law.
¶2 Petitioner and Respondent were married on June 6, 1992. They had two children.
The marriage was dissolved September 11, 2001, and a parenting plan was established. Lisa
lives in Shelby. Douglas lives south of Conrad. The 2001 parenting plan provided that
Douglas was to have the children with him two out of three weekends. During the summer,
the children were to reside with Douglas beginning the first weekend of summer break and
ending four days before school was to resume. Lisa would have the children with her two
out of three weekends and for two weeks during the summer. Holidays were alternated.
Lisa was denominated primary caregiver for the two children.
¶3 The District Court found Douglas in contempt of court for violating an order not to
discuss counseling records with the children and, as a result, modified the September 2001
parenting plan in February of 2006 to provide that Douglas was to have only supervised
parenting time.
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¶4 Douglas later moved to modify the February 2006 parenting plan. On April 25, 2007,
the District Court held a hearing on Douglas’s motion. At the hearing, Lisa conceded that
visitation with Douglas did not have to be supervised but argued the new parenting plan
should not otherwise be substantially modified. The trial judge discussed the matter with
counsel on the record, heard from three of the proposed witnesses, and announced its
decision from the bench.
¶5 The District Court eliminated the requirement of supervised visitation, reinstated
weekend overnight parenting times and the summer parenting time schedule, and ordered
alternating holidays with the children. The new parenting plan essentially reverted back to
the arrangement in the 2001 parenting plan. The District Court also ordered consultation
with a family counselor and an evaluation of the children.
¶6 The District Court stated on the record that the new parenting plan was to be a
permanent schedule, requiring for modification that a change has occurred in the
circumstances of the children and that the amendment is necessary to serve the best interests
of the children. Section 40-4-219, MCA. The District Court also ordered an evaluation of
the parties and children, stated it reserved the right to amend the parenting plan following
such evaluation, and stated that the parents would have the opportunity to request a hearing
on any modifications.
¶7 On May 2, 2007, the District Court entered its written order establishing the new
parenting plan pronounced from the bench at the April 25 hearing. The District Court
entered no findings of fact or conclusions of law supporting this written order.
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¶8 On July 18, 2007, following the evaluation, without a further hearing, the District
Court issued a second written order modifying the May 2007 parenting plan. It prohibited a
child’s contact with the absent parent while with the other parent. It mandated family
therapy and modified the summer parenting schedule. The District Court entered no findings
of fact or conclusions of law supporting its July 18, 2007, order.
¶9 When considering parenting plan modifications, we review the findings of fact
underlying a district court’s decision to modify a parenting plan for whether they are clearly
erroneous. Jacobsen v. Thomas, 2006 MT 212, ¶ 13, 333 Mont. 323, 142 P.3d 859. If these
underlying findings are not clearly erroneous, then we will overturn the District Court only if
there is a clear abuse of discretion. Jacobsen, ¶ 13. Here, however, no findings of fact were
entered. Adequate findings of fact and conclusions of law are required, as without them this
Court is forced to speculate as to the reasons for the District Court’s decision. Jacobsen,
¶ 19; Jones v. Jones, 190 Mont. 221, 224, 620 P.2d 850, 852 (1980).
¶10 The Montana Rules of Civil Procedure require that a district court “shall find the facts
specially and state separately its conclusions of law thereon.” M. R. Civ. P. 52(a). Rule
52(a) requires findings of fact which are a recordation of the essential and determining facts
upon which the district court rested its conclusions of law and without which the district
court’s judgment would lack support. In re Marriage of Barron, 177 Mont. 161, 164, 580
P.2d 936, 938 (1978). If the record does not contain the essential facts underlying the
decision, this Court cannot conduct a meaningful review on appeal and we must remand to
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allow the district court to issue additional findings that clarify its rationale. In re Marriage
of Mills, 2006 MT 149, ¶¶ 20-21, 332 Mont. 415, 138 P.3d 815.
¶11 The record does seem to indicate that these parents insist on promoting a selfish
agenda aimed at tearing each other down in the eyes of their children. However, as we are
unable to ascertain what essential and determining facts the District Court relied upon when
fashioning a parenting plan, we must remand to the District Court for entry of findings of
fact and conclusions of law which underlie its decisions to modify the last existing plan and
support the parenting arrangements ordered.
¶12 Remanded for entry of findings of fact, conclusions of law, and an order establishing
a parenting plan.
/S/ JOHN WARNER
We Concur:
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
/S/ BRIAN MORRIS
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