May 4 2010
DA 09-0444
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 100
IN RE THE MARRIAGE OF
AMBER GUFFIN, f/k/a AMBER
PLAISTED-HARMAN,
Petitioner and Appellant,
v.
THOMAS PLAISTED-HARMAN,
Respondent and Appellee.
APPEAL FROM: District Court of the Seventh Judicial District,
In and For the County of Prairie, Cause No. DR 2008-001
Honorable Richard A. Simonton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jeff A. Turner, Towe, Ball, Enright, Mackey & Sommerfeld, PLLP,
Billings, Montana
For Appellee:
J. Dennis Corbin, Attorney at Law, Miles City, Montana
Submitted on Briefs: March 17, 2010
Decided: May 4, 2010
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Petitioner Amber Guffin (Amber) appeals from an order adopting an Amended
Final Parenting Plan issued in the Seventh Judicial District Court, Hon. Richard A.
Simonton presiding. For the reasons set forth below, we reverse the decision of the
District Court.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Amber and respondent Thomas Plaisted-Harman (Thomas) were married in
November 2001, in Kalispell, Montana. The parties had two children while living in
Kalispell. In February 2006, the parties moved to Terry, Montana, so that Thomas could
take a trucking job. In September 2007, Amber and Thomas separated. In November
2007, Thomas quit his trucking job and took a job managing a ranch two hours away
from the family in Ekalaka, Montana.
¶3 Thomas and Amber filed a self-represented and joint parenting plan before the
District Court in February 2008. A decree of dissolution was entered by the District
Court on February 28, 2008. This parenting plan had the children residing primarily with
Amber, with Thomas parenting the children every other weekend and during Christmas
vacation and other holidays, and during summer vacation.
¶4 After the dissolution, Amber decided she wanted to move back to Kalispell, where
most of her family and her boyfriend reside. In March 2008, she told Thomas of her
plans. In June 2008, she moved back to Kalispell and moved in with her boyfriend, while
Thomas kept the children with him for his summer parenting time. Thomas subsequently
filed a motion to amend the parenting plan. Amber did not provide written notice to
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Thomas of her plans to move, as required under § 40-4-217, MCA, until after Thomas
had filed his motion to amend.
¶5 The matter of amending the parenting plan was heard before the District Court.
Both parties were represented by counsel and presented testimony and evidence. After
the hearing, the District Court entered an order amending the parenting plan and making
Thomas the primary residential custodial parent. Under the amended plan, Amber would
parent the children one weekend per month during the school year, during the
Thanksgiving weekend, Easter and spring break, and during much of the summer recess.
The parents would divide Christmas break with the children. In his order, Judge
Simonton explicitly stated that Amber should have to “pay the price” of reduced parental
contact since she was the one who decided to move to Kalispell.
¶6 Amber appealed Judge Simonton’s decision. In In re the Marriage of Amber
Guffin, f/k/a Amber Plaisted-Harman v. Thomas Plaisted-Harman, 2009 MT 169, 350
Mont. 489, 209 P.3d 225, a unanimous panel of this Court reversed, holding that Amber
had a constitutionally-guaranteed right to travel and could not be penalized by Judge
Simonton for her exercise of this right. In re Marriage of Guffin, ¶ 11. We stated:
This right to intrastate travel is the same right that Thomas exercised
when the family moved to Terry so that he could take a trucking job, and
the same right that he exercised when he moved to Ekalaka to work on the
ranch. Amber has no less a right to move to pursue her life goals than
Thomas had to pursue his. The District Court may not penalize Amber for
exercising her right to travel by removing her as the primary custodial
parent of the children, and it was an abuse of discretion to do so. Any
decision as to the custody of the children must be based upon a careful
examination of what is in their best interests. In the Matter of the Marriage
of Robinson, 2002 MT 207, ¶ 20, 311 Mont. 246, 53 P.3d 1279.
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In re Marriage of Guffin, ¶ 12.
¶7 This matter was remanded to the District Court. The District Court gave the
parties the opportunity to submit additional proposed findings or briefs, and both parties
declined to do so. The District Court entered Amended Findings of Fact, Conclusions of
Law, and Parenting Plan on July 9, 2009, again designating Thomas as the primary
residential custodial parent, and ordering that the children would reside with him in
Ekalaka. Amber was to parent the children one weekend per month during the normal
school year, and have the children primarily reside with her during the summer recess.
Amber was also to parent the children during Thanksgiving, Easter, and spring break.
Amber and Thomas would divide most of the other holiday times occurring throughout
the year. The Amended Final Parenting Plan was in essence the same one entered by the
District Court prior to remand from this Court. The District Court did, however, enter
additional findings of fact and conclusions of law in support of its decision, which are the
subject of the present appeal.
¶8 The District Court found that Thomas and Amber made a joint decision as a
family to move to Terry, Montana, in 2006. The District Court found that most of
Amber’s family lives in the Kalispell area. The District Court noted Amber’s concerns
about Thomas’ parenting ability, her claims that he had missed approximately one-half of
his scheduled parenting times prior to the Court’s initial revision of the parenting
plan, and her concern that the youngest child appeared to be regressing in his potty
training. It noted Amber’s concerns about the children’s safety with Thomas, and her
claim that the older child had been disciplining the younger child, instead of Thomas
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fulfilling this role. The District Court also noted Thomas’ testimony that he considered
Amber to be a good mother and a fit parent, as well as his assertions that the environment
in Ekalaka was positive for the children, and that he would be available to be with them
due to the nature of his ranch work. Thomas also stated that his parents and neighbors
could help him with the children if needed.
¶9 In its consideration of the best interests of the children pursuant to the factors
under § 40-4-212, MCA, the District Court essentially concluded that both parents were
fit, and that the developmental needs of the children would be met by either parent.
However, with regard to whether the children would have “frequent and continuing
contact with both parents” under § 40-4-212(1)(l), MCA, the District Court intimated that
Amber’s decision to move to Kalispell was not done in the best interests of the children,
and noted that Amber failed to provide the required written notice of her intent to move
in compliance with statutory notice requirements. Judge Simonton also described the
impact on the children of the physical separation of the parents as follows:
Each parent testified that he or she would insure the interaction and
interrelationship of the children with the other parent as well as others who
significantly affect their best interests. Admittedly, at the time of the
hearing, the children did not have many friends in Ekalaka. The parental
grandparents live near Terry and a maternal aunt lives in Miles City. It
appears that the rest of the relatives, including maternal grandparents, live
in the Kalispell area. The children’s interaction with the Kalispell relatives
will be limited. By choice of the family in 2006 it was limited when they
moved to Terry. That move was jointly made by both parents presumably
looking out for the best interests of the children. Amber’s move to
Kalispell was a unilateral decision which necessarily affects the relationship
of one parent with the children.
(Emphasis in original.)
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¶10 The District Court remarked that there were relative advantages and disadvantages
for the children of living in Ekalaka when compared with Kalispell, but stated that it was
“not going to resolve that dispute.” On balance, the District Court did not conclude that
either location would have any significant advantages or disadvantages for the children,
nor did it conclude that the children would not be able to adjust and thrive in the care of
either parent.
¶11 Section 40-4-219, MCA, describes the circumstances under which a parenting plan
can be amended. The statute reads in pertinent part as follows:
40-4-219. Amendment of parenting plan -- mediation. (1) The
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. 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:
(a) the parents agree to the amendment;
(b) the child has been integrated into the family of the petitioner with
consent of the parents;
(c) the child is 14 years of age or older and desires the amendment;
(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; or
(e) one parent has changed or intends to change the child’s residence
in a manner that significantly affects the child’s contact with the other
parent.
(2) A court may modify a de facto parenting arrangement in
accordance with the factors set forth in 40-4-212.
(3) The 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).
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¶12 Specifically, § 40-4-219(1)(e), MCA, allows the amendment of a parenting plan
when “one parent has changed or intends to change the child’s residence in a manner that
significantly affects the child’s contact with the other parent.” The District Court entered
the following finding under this factor:
Amber’s move to Kalispell would change the children’s residence in
a manner that would significantly affect their contact with their father. The
Court originally found that both Thomas and Amber were good parents.
The Court found that Amber’s decision to move with the children to
Kalispell, 700 miles from their father, would necessarily affect the
relationship between the father and the children. This was a conscious,
intentional decision by Amber. The Court also believes that at the time the
parties agreed to a parenting plan, February 1, 2008, Amber at least
considered moving. She testified that she made the final decision in
February 2008. She did not advise the Court or Thomas of that decision at
the time of the hearing [on] February 22, 2008. She would have the Court
believe that during the six days between that hearing until the end of the
month, she made her final decision to move. While there is no evidence to
indicate that her failure to advise her husband or the Court of that decision
on February 22, 2008, was to gain some advantage in taking the children
with her, the burden of changing an existing parenting plan is greater than
initially establishing a parenting plan. The Court can only guess whether
Thomas would have agreed to the original parenting plan had he known
Amber planned to take the children 700 miles from him so that the terms of
the original parenting plan could not practically be exercised. The Court
certainly would not have approved the original parenting plan knowing that
it could not be exercised with the children 700 miles from their father.
¶13 The District Court noted that § 40-4-219(3), MCA, creates a presumption that a
parent is not acting in the best interests of the children if that parent attempts to frustrate
or deny contact with the child by the other parent. However, the District Court rightly
observed that this presumption does not apply to § 40-4-219(1)(e), MCA. Judge
Simonton nevertheless concluded that “[i]n this case, the Court finds that Amber’s move
to Kalispell would effectively deny contact with Thomas under the terms of the original
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parenting plan entered into less than one week prior to her decision to move.” Judge
Simonton then concluded his findings as follows:
This Court is not denying Amber the right to change her residence as
she wills. To say that Amber’s decision in choosing between moving or
leaving her children with Thomas is a restriction on her right to travel,
ignores the requirement that the Court consider frequent and continuing
contact between the parents and children as being in the children’s best
interests, and that parenting plan amendments must consider whether
parental moves significantly affect the children’s contact with the other
parent.
¶14 In its conclusions of law, the District Court noted that § 40-4-219, MCA, provides
that a parenting plan can be amended when there is a change in circumstances and the
amendment is necessary to serve the best interests of the children. Furthermore, the
District Court concluded that under § 40-4-212, MCA, it was required to consider the fact
that Amber changed her residence in a manner that significantly affected the children’s
contact with Thomas. The District Court also noted that it had to consider the purpose
and objectives of a final parenting plan pursuant to § 40-4-233, MCA, as well as the
applicability of the criteria in § 40-4-234, MCA.
¶15 Turning to these criteria, the District Court concluded that each parent was fit to
care for the children, and that it was in the best interests of the children to have maximal
time with each parent. The District Court also concluded that Amber had legitimate
reasons for moving back to Kalispell, and that a significant portion of the children’s lives
had been spent in Kalispell. The District Court then returned to the issue of the timing of
Amber’s decision to move to Kalispell in relation to the District Court’s decision to grant
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the amended parenting plan in the prior proceedings. On this point, Judge Simonton
concluded as follows:
In remanding this case, our Supreme Court focused on Amber’s
constitutional right to travel and concluded that the U.S. Constitution
guarantees the right to travel within Montana as well as interstate. It notes
that Amber should not be penalized for exercising her right to travel any
more so than Thomas was penalized when the family moved to Terry or
when Thomas moved to Ekalaka. There is a difference. The family chose
to move to Terry from Kalispell and the family stayed together as a result
of the move. The family agreed that Thomas could work in Ekalaka. The
decision by Amber to move to Kalispell was unilateral. That move would
not keep the family together or in close proximity, and it effectively
changed the parenting plan that was agreed upon just one week before
Amber’s decision to move.
(Emphasis in original.)
¶16 The District Court went on to examine two cases from other jurisdictions which
dealt with situations analogous to the case at bar (see In Re the Marriage of Ciesluk, 113
P.3d 135 (Colo. 2005); In the Matter of the Marriage of Fedorov, 206 P.3d 1124 (Or.
App. 2009)), gleaning therefrom that the focus in “relocation” cases should be on the best
interests of the child, with each parent viewed on an “equal footing” with respect to the
structure of a parenting plan. So saying, the District Court stated:
Amber’s constitutional right to travel is not impeded. To say that
she is being punished by not allowing her to take the children with her, in
fact, elevates her constitutional right to travel above the constitutional
rights of Thomas and the children to grow up with each other and to
maintain a father/child relationship. Admittedly, the children’s relationship
with their mother will be impaired by her move to Kalispell. That is her
choice. For Amber to say that her move to Kalispell was not influenced by
her desire to move in with her boyfriend is not credible. For her to not
reveal her plans in advance to her husband and to the Court prior to an
initial parenting decision is unconscionable. Thomas testified that he
agreed to the original parenting plan only because he and the children
would be close and he would be able to exercise parenting. That is
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confirmed by the terms of the parenting plan and the testimony at the time
of the dissolution hearing.
¶17 Accordingly, the District Court concluded that the Amended Final Parenting Plan,
awarding primary custody to Thomas, and granting Amber one weekend per month, most
of the summer recess, Thanksgiving, Easter, and spring break, and a relatively equal
division of holiday time, was in the best interests of the children.
¶18 On appeal, Amber argues that the District Court abused its discretion in awarding
primary custody to Thomas and urges this Court to reverse the District Court’s decision.
Thomas argues the District Court should be affirmed. We state the issue on appeal as
follows:
¶19 Did the District Court clearly abuse its discretion in modifying the parenting plan
in this case?
STANDARD OF REVIEW
¶20 We review the findings in support of a district’s decision to modify a parenting
plan under the clearly erroneous standard. In re Marriage of Oehlke, 2002 MT 79, ¶ 9,
309 Mont. 254, 46 P.3d 49. Conclusions of law are reviewed for correctness, and we will
only reverse a district court’s decision where an abuse of discretion has been clearly
demonstrated. In re Marriage of Oehlke, ¶ 9. In other words, a district court’s decision
“will not be disturbed on appeal unless there is a mistake of law or a finding of fact not
supported by substantial credible evidence that would amount to a clear abuse of
discretion.” In re S.P., C.P., H.M., J.M., K.M., and Y.M., Youths in Need of Care, 241
Mont. 190, 194, 786 P.2d 642, 644 (1990) (quotation omitted). The test for abuse of
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discretion is whether the trial court acted arbitrarily without employment of conscientious
judgment or exceeded the bounds of reason resulting in substantial injustice. State v.
Baker, 2004 MT 393, ¶ 13, 325 Mont. 229, 104 P.3d 491.
DISCUSSION
¶21 Amber contends that Judge Simonton ignored this Court’s ruling in In re Marriage
of Guffin. In support, she refers to the portions of Judge Simonton’s order recited above,
for the proposition that the District Court continues to punish her for deciding to move to
Kalispell. Amber also contends that Judge Simonton punished her for the timing of her
decision to move, even though none of the statutory criteria in §§ 404-4-212 and -219,
MCA, called for consideration of that factor. In this connection, Amber argues that the
issue of the propriety of her notice to Thomas is a “red herring” which should not
influence the ultimate decision in this case.
¶22 Amber maintains that there was no evidence presented to the District Court
demonstrating that having the children primarily reside with her in Kalispell—as
contemplated under Amber’s proposed plan—would have significantly affected Thomas’
time with the children, or that it was against their best interests to move with her to
Kalispell. Amber notes that while she and Thomas were still married and Thomas
worked as a trucker, he was away from the family for up to 15 days at a time, leaving
Amber as the sole caregiver for the children. After the parties separated in November
2007, Thomas quit his trucking job and moved to Ekalaka, roughly two hours away from
where she and the children resided. Amber argues that the record demonstrates this was
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not a family decision, but was made unilaterally by Thomas after the parties’ separation,
contrary to the findings of the District Court.
¶23 Under their original self-represented parenting plan, Amber was the primary
custodial parent with Thomas receiving alternating weekends, summer visitation, and
split and alternating holiday visitation. As Amber notes, the District Court acknowledged
that evidence was presented showing Thomas missed up to 50% of his scheduled
visitation time due to work and weather. In essence, therefore, Amber contends that if
the District Court had retained the original plan, Thomas’ actual time with the children
would have been only slightly affected, as he would have received just two fewer days
with them per month than he previously exercised. In fact, Amber argues that Thomas
would receive more time under her plan since he would receive additional break and
summer time with the children.
¶24 The mainstay of Amber’s argument is that the District Court failed to consider the
best interests of the children in its decision. Thomas conceded and the District Court
agreed that she was a fit parent and a good mother. Yet, under the District Court’s
decision, the children went from spending 26 to 29 days per month with Amber as their
primary caregiver, to only two days per month. Amber argues that the primary basis for
this decision was her choice to move back to Kalispell, and not the children’s best
interests.
¶25 Finally, Amber contends that the District Court made inconsistent and erroneous
findings in its final order and Amended Final Parenting Plan. For example, Amber
argues that Thomas’ decision to move to Ekalaka was a unilateral decision he made after
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the parties had separated, and not a family decision as the District Court found. Amber
also contends that the timing of her decision to move was not done to gain an advantage
over Thomas, and was not “unconscionable” as concluded by the District Court. Amber
gave Thomas ample notice so that he could file for a modification of the parenting plan.
Further, Amber notes that the District Court found she had legitimate reasons for moving
to Kalispell, that her boyfriend had a positive relationship with the children, and that
Amber would not have entered into a relationship which adversely affected the
children— yet the Court inexplicably found that her explanation regarding the decision to
move to Kalispell was “not credible.” These and other findings of the District Court were
inherently inconsistent, she maintains, and are illustrative of the District Court’s mistaken
focus on extraneous factors.
¶26 Thomas argues the District Court did not clearly abuse its discretion. He
maintains the District Court did not penalize Amber for exercising her constitutional right
to travel, but that the “reason for that travel must somehow fit into the equation.”
Thomas also argues that the failure of Amber to follow the notice requirements in
§ 40-4-217, MCA, was properly considered by the District Court. Thomas argues that
the “District Court was not totally convinced that Amber’s move to Kalispell was in good
faith,” and that her credibility regarding the basis of her decision to move and its timing
was “doubtful.” Thomas argues that these credibility determinations should not be
disturbed.
¶27 Additionally, Thomas asserts that the District Court properly took account of all
the criteria in § 40-4-219, MCA, when evaluating the best interests of the children,
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including Amber’s decision to move and how it affected the children’s contact with him.
He maintains that his parenting plan maximized the time with each parent and enhanced
the parent/child bond in the face of Amber’s decision to move. He argues that his
flexible work schedule at the ranch allowed him more time with the children, while
Amber’s proposed schedule did not provide him adequate parenting time.
¶28 Section 40-4-219, MCA, discusses the circumstances under which a district court
can exercise its discretion to modify a prior parenting plan. See Opinion, ¶ 11. It details
the criteria to be considered by the District Court, in addition to those set forth at
§ 40-4-212, MCA. Section 40-4-219(3), MCA, states that a court presumes a parent is
not acting in a child’s best interest if a parent engages in any of the conduct specified in
subsections (1)(d) or (8) of the statute; however, as the District Court acknowledged, this
presumption does not apply to § 40-4-219(1)(e), MCA. Nevertheless, concluding that
Amber’s move “effectively” denied Thomas contact with the children, the District Court
implicitly invoked the presumption that Amber’s decision to move was not done in the
best interests of the children. See Opinion, ¶¶ 12-13.
¶29 Given the District Court’s fixation on the timing and motivation behind Amber’s
decision to move, as well as its “unilateral” character, we are forced to conclude that the
District Court has again chosen to penalize Amber for her decision to move, instead of
focusing on the best interests of the children and the statutorily-mandated objectives and
purposes of a parenting plan. As this Court made clear in In Re Marriage of Guffin,
Amber simply cannot be penalized for deciding to move to Kalispell; instead, “[a]ny
decision as to the custody of the children must be based upon a careful examination of
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what is in their best interests.” In re Marriage of Guffin, ¶ 12. As we stated in In re
Marriage of Robinson:
When determining the best interests of a child, the court must
consider relevant parenting factors including, but not limited to, the criteria
in § 40-4-212, MCA. These criteria include the wishes of the child’s parent
or parents; the wishes of the child; the interaction and interrelationship of
the child with the child’s parent or parents and siblings and with any other
person who significantly affects the child’s best interests; the child’s
adjustment to home, school and community; and continuity and stability of
care.
In re Marriage of Robinson, ¶ 28.
¶30 The Legislature explicitly exempted the change in residence provisions of
§ 40-4-219(1)(e), MCA, from any presumption that the moving parent is acting against a
child’s best interests simply because he or she changes her residence in a manner that
significantly affects the child’s contact with the other parent. Nonetheless, it is evident
from the language of its order that the District Court utilized § 40-4-219(1)(e), MCA, to
trigger a presumption against the moving parent. This is flatly prohibited by this Court’s
remand in In Re Marriage of Guffin, and the plain language of the statute itself. In those
cases in which a parent relocates and a parenting plan is modified pursuant to
§ 40-4-219(1)(e), MCA, the guiding principle remains the best interest of the child. See
In re Marriage of Robinson, ¶ 27. While a change of residence by one parent which
significantly affects that child’s contact with the other can be considered by the district
court in determining whether to grant the modification of a parenting plan, and how the
plan should ultimately be structured, it can raise the presumption that the moving parent
was acting against the best interests of the children only if the district court also
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concludes that the criteria under § 40-4-219(1)(d), MCA, are satisfied—which did not
occur here. As the District Court did not find that Amber “willfully and consistently”
attempted to frustrate or deny Thomas contact with her children in deciding to move, (see
§ 40-4-219(1)(d)(ii), MCA), it could not as a matter of law invoke the presumption that
she was acting against the children’s best interests under § 40-4-219(3), MCA, based
solely on her decision to move. This is a mistake of law amounting to a clear abuse of
discretion. In re S.P, 241 Mont. at 194, 786 P.2d at 644. Accordingly, we conclude the
District Court committed a clear abuse of discretion in its adoption of the Amended Final
Parenting Plan.
¶31 Further, we conclude that Amber’s failure to strictly comply with the notice
requirements of § 40-4-217, MCA, does not bear on the ultimate and fundamental
question of what type of parenting plan is in the best interests of the children. There is no
dispute that Amber notified Thomas of her intent to move three months before she did so,
roughly six months before the children would have otherwise been returned to her under
the parties’ agreed parenting plan, thereby giving Thomas ample time to weigh his
options and file any motion he deemed necessary.
¶32 Thomas asserted and the District Court agreed that Amber was a fit parent and a
good mother, that she had supportive family in Kalispell, and that the children had a
positive relationship with Amber’s boyfriend. Against this backdrop, the District Court’s
focus on Amber’s decision to move as “unilateral,” and its finding that her failure to
follow the notice procedures in § 40-4-217, MCA, was “unconscionable,” demonstrates
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that the District Court was swayed more by her decision to move than it was by the
children’s best interests. We therefore reverse.
¶33 Upon remand, the district court considering this issue should focus solely on the
best interests of the children pursuant to §§ 40-4-212 and -219, MCA, and the purposes
and objectives of a parenting plan. In this connection, the court may consider Amber’s
relocation, among other statutory factors, in considering whether to modify the parenting
plan. However, unless a district court finds that Amber’s decision to move exemplifies a
“willful and consistent” attempt to frustrate or deny Thomas contact with the children,
her decision to move cannot be held against her, nor can it be considered as being against
the best interests of the children.
¶34 We appreciate the difficulty of fashioning a fair and workable parenting plan
under the geographical circumstances here presented. Our decision today should not be
construed as mitigating for or against any particular parenting plan; rather, it is simply a
reaffirmation of what the district court’s focus must be when faced with the prospect of
amending a parenting plan.
CONCLUSION
¶35 We conclude the District Court clearly abused its discretion in adopting the
Amended Final Parenting Plan. We therefore reverse and remand for further proceedings
consistent with this Opinion.
/S/ PATRICIA O. COTTER
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We concur:
/S/ MIKE McGRATH
/S/ W. WILLIAM LEAPHART
/S/ MICHAEL E WHEAT
/S/ JAMES C. NELSON
Justice Brian Morris dissents.
¶36 I would not determine on the record presented that the District Court clearly
abused its discretion in amending the parenting plan by designating Thomas as the
primary custodial parent. In re Marriage of Oehlke, ¶ 9. I dissent.
/S/ BRIAN MORRIS
Justice Jim Rice joins in the foregoing dissent.
/S/ JIM RICE
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