March 22 2011
DA 10-0470
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 50
IN RE THE PARENTING OF A.P.P.,
a minor child.
GERALD GRICE and ANGELINA MYERS,
Petitioners and Appellees,
v.
BRIAN WILLIAM PRICE,
Respondent and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DR-10-0791
Honorable Russell C. Fagg, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Patrick C. Sweeney, Attorney at Law, Billings, Montana
For Appellee:
Paul C. Collins, Gary M. Connelley, Tyler T. Norwood, Crowley
Fleck, PLLP, Billings, Montana
Submitted on Briefs: February 16, 2011
Decided: March 22, 2011
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Brian Price is the biological father of a minor child, A.P.P. A.P.P.’s mother,
Judith Grice, is deceased. Brian appeals the Thirteenth Judicial District Court’s ruling
granting a parental interest to A.P.P.’s step-father, Gerald Grice, and visitation rights to
A.P.P.’s adult half-sister, Angelina Myers. We affirm.
ISSUE
¶2 The dispositive issue on appeal is:
¶3 Did the District Court abuse its discretion in finding that Gerald was entitled to
parenting rights and Angelina was entitled to visitation rights with A.P.P.?
FACTUAL AND PROCEDURAL BACKGROUND
¶4 Brian and Judith began dating in 1998. At that time, Judith had two children
from a previous marriage, Angelina, born 1991, and J.M., born 1993. Judith gave birth to
A.P.P. in late 2000. Brian and Judith subsequently married in May 2003 and divorced in
January 2007. After the divorce, Judith had primary custody of all three children and
Brian had visitation rights with A.P.P. and child support obligations for her.
¶5 Gerald Grice and Judith began dating in August 2008 and Gerald moved in with
Judith and the children in October 2008. Gerald and Judith married in July 2009. Two
months after their marriage, Judith was killed in a motorcycle accident. Presuming that
Brian had heard about Judith’s death through the news or mutual friends of Brian and
Judith, neither Gerald nor the children contacted him. All three children remained with
Gerald. However, on November 6, 2009, having just learned of Judith’s death, Brian
demanded the return of A.P.P. from Gerald. Gerald took A.P.P. to Brian who, in March
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2010, moved out of state with her, subsequently proclaiming he did so to keep Gerald and
Angelina from being able to see her.
¶6 In July 2010, Gerald and Angelina petitioned for a determination of parental
interest and visitation rights. After a hearing, the District Court concluded that (1) Brian
had engaged in conduct that was contrary to his child-parent relationship with A.P.P.; (2)
Gerald had established a child-parent relationship with A.P.P.; and (3) it was in A.P.P.’s
best interests to continue her relationship with her step-father and sister. The District
Court granted to Gerald and Angelina parenting/visitation time with A.P.P. Brian
appeals.
STANDARD OF REVIEW
¶7 We review a district court’s interpretation and application of statutes for
correctness. We review a district court’s findings of fact to determine whether the
findings are clearly erroneous. We will affirm the district court’s decision when
substantial credible evidence supports the findings, unless there has been a clear abuse of
discretion. We view the evidence in the light most favorable to the prevailing party.
Additionally, the trial court determines the credibility of witnesses and the weight
assigned to their respective testimony. We do not consider whether evidence supports
findings that are different from those made by the district court. We confine our review
to the determination of whether substantial credible evidence supports the findings
actually made by the district court. Kulstad v. Maniaci, 2009 MT 326 ¶¶ 50-52, 352
Mont. 513, 220 P.3d 595 (internal citations and paragraph breaks omitted).
DISCUSSION
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¶8 Did the District Court abuse its discretion in finding that Gerald was entitled to
parenting rights and Angelina was entitled to visitation rights with A.P.P.?
¶9 Section 40-4-228, MCA, governs the award of a child-parent interest and
visitation rights to a third-party nonparent. Under this statute, a court may award a
parental interest to a person other than a natural parent when it is shown by clear and
convincing evidence that (1) the natural parent has engaged in conduct that is contrary to
the child-parent relationship; (2) the nonparent has established a child-parent relationship;
and (3) it is in the best interest of the child to continue that nonparent relationship.
Section 40-4-228(2), MCA. A court may award visitation rights to a third-party
nonparent based upon the best interests of the child. Section 40-4-228(3), MCA.
¶10 First, we address Gerald’s petition for a determination of a parental interest. The
District Court found that Brian engaged in conduct contrary to his parental relationship
with A.P.P. It noted that prior to Judith’s death, Brian had missed significant numbers of
visits with A.P.P. to which he was entitled under the divorce and custody agreement.
Weeks and months passed without Brian seeing A.P.P., despite his having regular
visitation rights every other weekend as well as specific holidays and summer time
visitation. The court also found that Brian failed to make all of the child support
payments he was obligated to make. According to the District Court, these findings
constituted evidence that Brian engaged in conduct contrary to the child-parent
relationship.
¶11 The record contains sufficient evidence to support these findings. It is
undisputed that Brian missed many visitation opportunities. In fact, Brian acknowledged
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missing numerous visitations but claimed these absences were primarily caused by
Judith. Angelina and Gerald disputed that Judith kept A.P.P. from seeing her father. As
we have repeatedly held, when presented with conflicting evidence it is the district
court’s role to weigh and resolve such conflicts and to judge the credibility of witnesses.
State v. Hurlbert, 2009 MT 221, ¶ 40, 351 Mont. 316, 211 P.3d 869 (citations omitted).
To the extent the District Court relied on this evidence or weighed it in favor of Gerald
and Angelina, we neither reweigh it nor disturb it.
¶12 The court also found, based upon a document from the Montana Department of
Health and Human Services Child Support Enforcement Division, that Brian had paid
only 25-30% of the child support he owed for A.P.P. Again, while Brian disputed this,
the District Court had sufficient evidence to reach this finding.
¶13 Relying on In re A.R.A., 277 Mont. 66, 919 P.2d 388 (1996) and Girard v.
Williams, 291 Mont. 49, 966 P.2d 1155 (1997), both cases superseded by statute as stated
in Kulstad, Brian argues that missed visitations and unpaid child support are insufficient
reasons to “change custody from a natural part [sic] to a step parent prior to the
enactment of M.C.A. § 40-4-228.” Brian opines that “[i]n both of those cases the
fundamental constitutional right to parent outweighed the deficient conduct.”
Presumably, though not expressly, Brian submits that his failure to pay full child support
and meet all visitation opportunities does not constitute “conduct that is contrary to the
child-parent relationship” and is insufficient reason to give Gerald and Angelina
parenting and visitation rights under § 40-4-228, MCA.
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¶14 We find the two cases relied upon by Brian to be distinguishable on multiple
grounds. In A.R.A., the natural parents of A.R.A. divorced and remarried other people.
Subsequently, A.R.A.’s custodial parent, her biological mother, died. A.R.A.’s natural
father sought custody of her as did A.R.A.’s step-father under § 40-4-221, MCA (1995),
entitled “Determination of custody upon death of custodial parent.” The district court,
applying § 40-4-212, MCA (1996), found that it was in A.R.A.’s best interests to
continue living with her step-father and her half-brother with whom she had developed
close relationships. A.R.A., 277 Mont. at 68, 919 P.2d at 390-91. A.R.A.’s natural father
appealed, asserting that the court’s use of the “best interests” test abrogated his
constitutional right to parent his child. A.R.A., 277 Mont. at 70, 919 P.2d at 391.
¶15 Despite the natural father being behind on child support payments and missing
many visitation opportunities, we ruled A.R.A.’s natural father had a constitutional right
to raise her and that this right could not be infringed based solely on a “best interests of
the child” analysis. We determined that § 40-4-221, MCA (1995), was unconstitutional
“to the extent that it allows the granting of a § -221 petition prior to the termination of the
natural parent’s constitutional rights.” A.R.A., 277 Mont. at 72, 919 P.2d at 392.
Therefore, we held, as we had in previous cases, “the [d]istrict [c]ourt erred in awarding
custody of A.R.A. to [step-father] based on the best interest of the child test in view of
the fact there were no allegations of abuse and neglect or dependency on the part of
[natural father].” A.R.A., 277 Mont. at 72, 919 P.2d at 392.
¶16 While this case is somewhat factually similar to the case at bar, it is legally
distinguishable. First, the cases require application and interpretation of different statutes
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from different years. A.R.A. dealt with the 1995 versions of §§ 40-4-212 and -221, MCA.
The case currently before us focuses on the requirements of § 40-4-228, MCA, enacted in
1999 to address parenting and visitation matters between a natural parent and a third
party. Additionally, unlike in A.R.A., we are not here addressing the constitutionality of a
statute. Section 40-4-228, MCA, has been declared constitutional under Kulstad and In
re the Parenting of L.F.A., 2009 MT 363, 353 Mont. 220, 220 P.3d 391. Furthermore,
and significantly, Gerald is not seeking exclusive custody of A.P.P.; therefore, Brian’s
constitutional right to parent A.P.P. is not threatened with termination. A.R.A. is
therefore inapposite.
¶17 Girard is also distinguishable on facts, issues and law. In Girard, we addressed
the legal issue of whether nonparents had standing to seek permanent and full custody
over two children when the natural father was also seeking permanent and full custody.
We concluded that without a showing that the natural parent had voluntarily relinquished
his rights to custody of his children under § 40-4-211(4)(b), MCA, (1997), the nonparents
did not have standing. Given the wholly different legal focus, Girard is not helpful
authority for Brian.
¶18 Applying the requisites of § 40-4-228, MCA, we will not disturb the District
Court’s finding that Brian engaged in conduct that was contrary to his parental
relationship with A.P.P. as it is supported by substantial credible evidence and is not a
clear abuse of discretion.
¶19 In addition to finding that Brian had acted in a manner contrary to a child-parent
relationship, the court also found that Gerald had established a child-parent relationship
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with A.P.P. as defined in § 40-4-211, MCA—a finding that is required by
§ 40-4-228(2)(b), MCA. Section 40-4-211(6), MCA, states that a “child-parent
relationship” between a child and a nonparent “means a relationship that”:
(a) exists or did exist, in whole or in part, preceding the filing of an
action under this section, in which a person provides or provided for the
physical needs of a child by supplying food, shelter, and clothing and
provides or provided the child with necessary care, education, and
discipline;
(b) continues or existed on a day-to-day basis through interaction,
companionship, interplay, and mutuality that fulfill the child's
psychological needs for a parent as well as the child’s physical needs; and
(c) meets or met the child’s need for continuity of care by providing
permanency or stability in residence, schooling, and activities outside of the
home.
¶20 Undisputed evidence was presented to the District Court that Gerald financially
supported A.P.P., regularly helped her with her homework, attended her sporting events
and school activities, provided transportation to school and other places, prepared meals
for her, and took care of her while her mother worked. Based on this evidence, we
conclude the District Court did not err in finding that Gerald had established a
child-parent relationship with A.P.P.
¶21 Brian also challenges the District Court’s granting of visitation rights to
Angelina without an express finding of the existence of a child-parent relationship
between Angelina and A.P.P. We note, however, that Angelina sought only visitation
rights, not parenting rights. Nothing in § 40-4-228, MCA, which addresses both parental
interests and visitation rights, requires a third party seeking only visitation rights to first
demonstrate the existence of a child-parent relationship. In fact, § 40-4-228(3), MCA,
provides that visitation rights may be ordered “based on the best interests of the child.”
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¶22 The court was presented throughout this proceeding with written and oral
testimony of Angelina’s close relationship with her younger sister and how Angelina bore
much of the responsibility for young A.P.P. when Brian and Judith were together or when
Judith was at work. The record reflects that Angelina continued in this strong care-giving
role after Brian and Judith divorced, when taking care of the younger children while
Judith was working. She testified that it was only when Gerald joined their family and
developed a father-like relationship with A.P.P., that she was relieved of some of the
earlier responsibilities for A.P.P. The evidence establishes that Angelina nonetheless
continued to maintain a close relationship with A.P.P. to their mutual benefit, and seeks
to continue that relationship as the two sisters grow older.
¶23 After hearing testimony from all the parties except A.P.P., the District Court
determined that it was in A.P.P.’s best interests to maintain her relationships with Gerald
and Angelina while residing with her father. The court ruled that Gerald was entitled to
parental rights and visitation and that Angelina was entitled to visitation. The evidence in
this case supports the District Court’s findings and, as such, the findings are not clearly
erroneous, nor did the court abuse its discretion in reaching its conclusions based upon
those findings. Moreover, the District Court’s application and interpretation of the
applicable statutes was not incorrect.
CONCLUSION
¶24 For the foregoing reasons, we affirm the judgment of the District Court.
/S/ PATRICIA COTTER
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We concur:
/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ JAMES C. NELSON
/S/ MICHAEL E WHEAT
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