In Re the Marriage of Robison

No. 00-744

IN THE SUPREME COURT OF THE STATE OF MONTANA

2002 MT 207

IN RE THE MARRIAGE OF

JILL D. ROBISON,

Petitioner and Appellant,

and

DIXON L. ROBISON,

Respondent and Respondent.

APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable James E. Purcell, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Mark P. Yeshe, Attorney at Law, Helena, Montana

For Respondent:

C. Kathleen McBride, Corette, Pohlman & Kebe, Butte, Montana

Submitted on Briefs: April 19, 2001

Decided: September 10, 2002
Filed:

__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1 Jill D. Robison (Jill) appeals an order of the District Court for the Second Judicial

District, Silver Bow County, granting Dixon L. Robison's (Dixon's) motion to amend the

parties' parenting plan to provide that the children will reside with Dixon in Butte if Jill

moves outside the Butte vicinity. We affirm.

¶2 Jill raises the following issues on appeal:

¶3 1. Whether the District Court's order violated Jill's constitutional right to travel.

¶4 2. Whether the District Court abused its discretion in amending the parties' parenting
plan.

Factual and Procedural Background

¶5 Jill and Dixon married in 1982. They have three children: Ashlee, born August 24,

1985; Lauren, born December 2, 1992; and Tanner, born October 6, 1995. The family

moved to Butte in 1994. Both Jill and Dixon are doctors. Dixon is a dermatologist and has

his own practice in Butte. Jill is a pediatrician and has practiced with other physicians on a

part-time basis while living in Butte.

¶6 Jill and Dixon divorced in March 1999. Prior to their divorce, the parties' entered into

a Final Parenting Plan and a Property Settlement Agreement which allowed Jill to remain in

the family home. The parenting plan provided that the children were to reside with Jill, but

that Dixon was to have two overnights with the children per week. In addition, the parenting

plan provided that holidays were to be shared and summers split in whatever way maximized

each parent's free time with the children.

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¶7 In the spring of 2000, Jill informed Dixon that she planned to move to Kamiah, Idaho

with the children. As a result, Dixon filed with the District Court his Motion to Amend the

Parenting Plan. On May 18, 2000, the District Court issued an order preventing Jill from

removing the children from Montana without Dixon's consent or an order of the court.

¶8 Jill and Dixon reached a stipulation on June 5, 2000, that provided for their sharing

time with the children during that summer. The stipulation also named Dr. Diane Zuniga, a

psychiatrist, as the court's expert. On June 30, 2000, Jill provided Dixon with her Notice of

Intent to Move. The notice advised that Jill intended to move to Idaho on or after August 15,

2000. The notice also stated that Jill intended to remarry shortly after the move and that she

intended to forego employment and remain at home until Tanner entered kindergarten. As a

result of Jill's notice, Dixon filed a renewed motion to amend the parenting plan on July 28,

2000.

¶9 The District Court conducted a hearing in this matter on July 31, 2000. While Dr.

Zuniga did not testify at the hearing, the report she prepared following several interviews

with the family, both as a group and with each family member individually, was admitted

into evidence. In her report, Dr. Zuniga stated that the children love and need both parents,

and that both Jill and Dixon strongly agree that the children need to have regular contact with

and the support of the other parent. Dr. Zuniga also noted that Dixon's parents live in Butte

and they have been involved in the care of the children, especially Tanner. Dr. Zuniga

recommended shared or joint custody and that the children remain together and not be

separated. She also stated that the ideal situation would "require Jill to remain in close

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proximity to the father's home or place of work in order for the shared custody arrangements

to work."

¶10 Dixon testified at the hearing that his biggest concern about Jill moving the children to

Idaho was that he would be less involved and less of a parental influence. He also testified

that if Jill remained in Butte, he wanted to revise the parenting plan so that the children

would spend every other week with him, and, if Jill moved to Idaho, he wanted the children

to reside with him in Butte.

¶11 Jill testified that she is moving to Idaho, not only because her fiancé lives there, but

because the schools are superior and she has an employment opportunity there. She would

be a consulting pediatrician and would work her own hours, make more money, and not be

on call.

¶12 On August 15, 2000, the District Court entered its Findings of Fact, Conclusions of

Law and Order wherein the court adopted Dr. Zuniga's recommendations and concluded that

the children's best interests were served by their remaining in Butte. The court ordered that

Jill's residence would be considered the children's primary residence if Jill remained in Butte.

However, the parenting plan would change to alternating weeks with each parent. The court

further concluded that if Jill moved to Idaho, the children would remain in Butte with Dixon.

¶13 On September 7, 2000, Dixon filed a Motion for Contempt and Motion for

Enforcement of Parenting Plan as Amended. In his motion, Dixon contended that Jill took

the children to Idaho on August 27, 2000, in contravention of the District Court's August 15,

2000 order and refused to return them to Butte. Consequently, Dixon was forced to travel to

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Idaho to pick up the two youngest children and bring them back to Butte. The oldest child,

Ashlee, refused to return to Butte.

¶14 On September 19, 2000, the District Court found Jill in contempt for not returning

Ashlee to Butte to reside with her father. Thereafter, in November 2000, Jill and Dixon

entered into a Stipulation and Agreement Between Parties to amend the District Court's

August 15, 2000 Findings of Fact, Conclusions of Law and Order as they related to the

transportation of the children. In the stipulation, the parties tacitly recognized Ashlee's desire

to live in Idaho. The District Court "approved and ratified" the stipulation on December 11,

2000, pending the decision of this Court as to Jill's appeal of the District Court's August 15,

2000 order granting Dixon's motions to amend the parenting plan.

Standard of Review

¶15 We review a district court's findings regarding custody to determine whether those

findings are clearly erroneous. Pankratz v. Teske, 2002 MT 112, ¶ 8, 309 Mont. 499, ¶ 8, 48

P.3d 30, ¶ 8 (citing In re Custody of Arneson-Nelson, 2001 MT 242, ¶ 15, 307 Mont. 60, ¶

15, 36 P.3d 874, ¶ 15). Findings are clearly erroneous if they are not supported by

substantial evidence, the court misapprehends the effect of the evidence, or this Court's

review of the record convinces it that a mistake has been made. Pankratz, ¶ 8. We will

reverse a district court's decision relating to custody only where an abuse of discretion is

clearly demonstrated. Pankratz, ¶ 8. See also In re Marriage of McKenna, 2000 MT 58,

¶ 14, 299 Mont. 13, ¶ 14, 996 P.2d 386, ¶ 14; In re Marriage of Baer, 1998 MT 29, ¶ 18, 287

Mont. 322, ¶ 18, 954 P.2d 1125, ¶ 18. The test for an abuse of discretion is whether the

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district court acted arbitrarily without the employment of conscientious judgment or

exceeded the bounds of reason resulting in substantial injustice. In re Marriage of Meeks

(1996), 276 Mont. 237, 242, 915 P.2d 831, 834. Our review as to questions of law is plenary.

In re Custody of D.M.G., 1998 MT 1, ¶ 10, 287 Mont. 120, ¶ 10, 951 P.2d 1377, ¶ 10 (citing

In re Marriage of Syverson (1997), 281 Mont. 1, 15-16, 931 P.2d 691, 700).

Issue 1.

¶16 Whether the District Court's order violated Jill's constitutional right to travel.

¶17 Jill argues on appeal that she has a constitutional right to relocate with the children

and that that right can be abridged only on the basis of a substantial showing of a compelling

state interest. Jill further argues that Dixon had the heavy burden of showing that the

children would be adversely affected by a move to Idaho and that Dixon did not meet that

burden. Consequently, Jill maintains that she could not be restricted from moving merely

because it might be best for the children if both parents lived in the same town.

¶18 Dixon argues, on the other hand, that Jill's right to travel "does not trump the best

interest[s] of the children." Hence, Dixon contends that the District Court did not violate

Jill's right to travel as Dixon provided legally sufficient proof that the best interests of the

children would be most appropriately served by their remaining in Butte.

¶19 In support of her arguments, Jill relies on our prior decisions in In re Marriage of Cole

(1986), 224 Mont. 207, 729 P.2d 1276, and In re Custody of D.M.G., 1998 MT 1, 287 Mont.

120, 951 P.2d 1377. In Cole, the parties, Marilyn and James, divorced after twelve years of

marriage. In its decree of dissolution, the District Court awarded the parties joint custody of

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their two minor boys, one of whom had Down's Syndrome manifested by learning and

physical disabilities. Marilyn was to be the custodial parent for the nine and a half months of

the school year and James was to be the custodial parent for two and a half months during the

summer. When Marilyn expressed a desire to move to Tampa, Florida because of the

advanced employment opportunities available in the Tampa area, James sought a court order

restricting her from moving outside the State of Montana with the children. However, the

District Court refused to place a travel restriction upon Marilyn during the time in which she

had custody of the children. Cole, 224 Mont. at 209, 729 P.2d at 1278.

¶20 On appeal, we determined in Cole, that courts must balance the custodial parent's

fundamental right to travel with the best interests of the child. To that end, we noted the

following:

As a fundamental right, the right to travel interstate can only be
restricted in support of a compelling state interest. We believe that furtherance
of the best interests of a child, by assuring the maximum opportunities for the
love, guidance and support of both natural parents, may constitute a
compelling state interest worthy of reasonable interference with the right to
travel interstate. We caution, however, that any interference with this
fundamental right must be made cautiously, and may only be made in
furtherance of the best interests of the child. To that end, we require the parent
requesting the travel restriction to provide sufficient proof that a restriction is,
in fact, in the best interests of the child.

Cole, 224 Mont. at 213, 729 P.2d at 1280-81 (internal citations omitted).

¶21 Thus, Jill contends that Cole requires that more than a mere best interest showing must

be made. Cole is distinguishable from the case sub judice, however, because Cole was based

partly on the presumption that custody should be granted to the parent who provided most of

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the primary care during the child's life. That idea was codified in 1995 at § 40-4-212(3)(a),

MCA, however, language to that effect was subsequently deleted from § 40-4-212, MCA, by

the 1997 Legislature. Hence, a presumption in favor of the parent providing primary care of

the child, no longer exists.

¶22 Furthermore, unlike the case before us on appeal, considerable testimony by

counselors, teachers, the family doctor and two court appointed investigators led the Court in

Cole to conclude that Marilyn continue as the primary custodial parent and that it was in the

best interests of the child with Down's Syndrome to maintain one residence during the school

year. Cole, 224 Mont. at 211-12, 729 P.2d at 1279. Moreover, the Court found, based on

testimony from one of the children's counselors, that Tampa was likely to provide a more

complete line of services for handicapped children than was available in Montana. Cole, 224

Mont. at 212, 729 P.2d at 1289.

¶23 Similarly, D.M.G., the other case cited by Jill, is also distinguishable from the case

sub judice. In D.M.G., Tammy, the children's mother, relocated to Salem, Oregon with her

two minor children because of the availability of better job opportunities and the nearness of

family in Salem. The children's father, Michael, did not try to stop Tammy from moving the

children to Salem. However, a few months after the move, Michael filed a petition for

custody and visitation. By that time, Tammy was permanently employed as a shipping clerk.

She was self-supporting and her employment included medical, dental and retirement

benefits. Tammy and the children lived in their own home and Tammy's mother, who also

lived in Salem, assisted Tammy with the children in the mornings before they went to pre-

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school and day care. D.M.G., 287 Mont. at 122-23, 951 P.2d at 1379.

¶24 The District Court awarded the parties joint custody of their children and provided

that, in the event Tammy returns to the Helena area, she is to have primary physical custody

of the children. However, if the parties continue to live in separate states, primary physical

custody would be alternated between the parties on a two-year basis. D.M.G., 287 Mont. at

122, 951 P.2d at 1379. On appeal, this Court reversed, holding that the District Court abused

its discretion in effectively requiring Tammy to relocate or lose custody in the absence of

sufficient proof of a compelling nature to interfere with her constitutional right to travel.

D.M.G., 287 Mont. at 132-33, 951 P.2d at 1385.

¶25 While we conclude that the basic constitutional principals in D.M.G.--the fundamental

nature of the right to travel and the need to demonstrate a compelling interest before violating

that right--are still viable, we note that the facts in the present case are distinguishable from

D.M.G.

¶26 In D.M.G., prior to her move to Salem, Tammy received assistance from AFDC. She

began working and took courses to better herself. In Salem, Tammy was able to find better

employment and provide a home and benefits for the children. In the case sub judice, Jill is

not being required to relocate after moving and making a better life for herself. The record

establishes that Jill is not moving to build her career. Rather, she has chosen to move to an

area unfamiliar to her or to the children and that Jill has chosen not to work. Jill is quitting

her job as a pediatrician which paid her more than $100,000 per year to move to a town with

no hospital. Neither does Jill or her fiancé, whom she intends to live with after she moves to

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Idaho, have any family in Kamiah.

¶27 Furthermore, D.M.G. was based on a statute that has now been repealed by the

Montana Legislature. That statute, § 40-6-231, MCA (repealed Sec. 39, Ch. 343, L. 1997),

provided that a parent entitled to the custody of a child had the right to change his or her

residence "subject to the power of the proper court to restrain a removal which would

prejudice the rights or welfare of the child." In its place, the Legislature amended §§ 40-4-

217 and 219, MCA. Those statutes now provide in pertinent part:

(1) A parent who intends to change residence shall, unless precluded
under 40-4-234, provide written notice to the other parent.
(2) If a parent's change in residence will significantly affect the child's
contact with the other parent, notice must be served personally or given by
certified mail not less than 30 days before the proposed change in residence
and must include a proposed revised residential schedule. Proof of service
must be filed with the court that adopted the parenting plan. Failure of the
parent who receives notice to respond to the written notice or to seek
amendment of the residential schedule pursuant to 40-4-219 within the 30-day
period constitutes acceptance of the proposed revised residential schedule.

Section 40-4-217, MCA.

(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:
....
(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.

Section 40-4-219, MCA (emphasis added). Thus, contrary to Jill's assertion that the parent

resisting the move must show that the move would be disadvantageous for the child or that

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the child would be harmed by the move, the burden of proof is still the best interests of the

child standard.

¶28 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.

¶29 In this case, the District Court found that Dixon has a well established support system

for the children in the community including Dixon's parents who have a close relationship

with the parties' three children, as well as neighbors, friends with children of similar ages,

day care providers and teachers. Jill, on the other hand, has no relatives in Idaho, nor does

her fiancé. The District Court's determination reflects the criteria in § 40-4-212, MCA,

specifically subsections (1)(c) and (d) regarding the children's interactions with family

members and other individuals, and the children's adjustment to home, school and

community. Jill has not established that the District Court's findings are clearly erroneous.

¶30 Accordingly, we hold that the District Court was correct in concluding that the best

interests of the children outweighed Jill's fundamental right to travel.

Issue 2.

¶31 Whether the District Court abused its discretion in amending the parties' parenting

plan.

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¶32 In its August 15, 2000 order, the District Court amended the parenting plan to provide

that, if Jill remained in Butte, her residence would be considered the children's primary

residence, however, the children would spend alternating weeks with each parent rather than

the current arrangement of two nights each week with their father. The court reasoned that

this would decrease the amount of communication necessary to juggle "the almost daily

changing schedule."

¶33 Jill argues on appeal that the District Court abused its discretion in changing the

parenting plan to alternating weeks with each parent as there was no evidence to show that

such a modification served the children's best interests. She claims that the only evidence in

support of this plan was Dixon's testimony that that is what he would prefer. Jill maintains

that while Dr. Zuniga recommended that Jill remain the primary parent, nowhere in Dr.

Zuniga's report did she recommend that the children spend every other week with their father.

Thus, Jill contends that the court's findings were clearly erroneous and should be revised.

¶34 As we noted in our discussion in the previous issue, § 40-4-219(1), MCA, provides

that a parenting plan may be amended if a change has occurred in the circumstances of the

child and the amendment is necessary to serve the best interests of the child. In this case,

evidence was presented and the District Court found that between overnights, dinner,

evenings and additional days with the children, Dixon had had significant contact with the

children on 238 days in the 1999 calendar year and that through May of the 2000 calendar

year he had had significant contact with the children on 92 days. Moreover, since school let

out in June 2000 through the date of the July 31, 2000 hearing, the children had been with

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Dixon a majority of the time. Thus, the District Court's amendment of the final parenting

plan to alternating weeks reflects the reality of the parties' actual parenting arrangement since

their divorce and would provide for continuity and stability of care as contemplated by § 40-

4-212(1)(h), MCA.

¶35 There was also testimony that Dixon and Jill had difficulty communicating at times

following the divorce which led to miscommunications and situations which upset the

children. Dixon testified that the more structured and predictable schedule of alternating

weeks would serve to eliminate communication problems between the parties and would

alleviate the unpredictability which in the past had caused the children considerable anxiety.

Dixon noted in his brief on appeal, and we agree, that amending the parenting plan to reflect

a situation in which the children have flourished, while eliminating the tension and confusion

of constant schedule changes between the parents can only be in the children's best interests.

¶36 Accordingly, we hold that the District Court did not abuse its discretion in amending

the parties' parenting plan to allow for alternating weeks with each parent if Jill continued to

reside in Butte.

¶37 Affirmed.

/S/ JAMES C. NELSON

We Concur:

/S/ KARLA M. GRAY
/S/ TERRY N. TRIEWEILER

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/S/ JIM REGNIER
/S/ JIM RICE

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