NO. 95-243
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
IN RE A.R.A., a minor child.
PATRICK ERGER,
Petitioner and Respondent,
v.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert W. Holmstrom, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Rodd A. Hamman (argued) and Robin A. Wolff,
Calton Hamman & Wolff, Billings, Montana
For Respondent:
Damon L. Gannett (argued), Gannett,
Anderson & Liechty, Billings, Montana
For Amicus Curiae:
Hon. Joseph P. Mazurek, Attorney General,
Patricia A. Jordan, Assistant Attorney
General (argued), Helena, Montana
Submitted: April 30, 1996
Decided: June 20, 1996
Filed:
Justice Charles E. Erdmann delivered the opinion of the Court.
This is an appeal from a decision of the Thirteenth Judicial
District Court, Yellowstone County, awarding custody of A.R.A. to
Patrick J. Erger. We reverse and remand to the District Court for
proceedings consistent with this opinion.
We restate the issues as follows:
1. Did the District Court err in awarding custody of the
child to a stepparent over a natural parent based on the best
interest of the child test?
2. Did the District Court err in failing to set forth
reasons for denial of attorney fees?
FACTS
Tracy Erger and William (Bill) Askren were married in 1983.
A.R.A. was born to them in 1987. Tracy and Bill divorced in 1989
when A.R.A. was nineteen months old. In the divorce decree, Tracy
was awarded custody of A.R.A. and Bill was given reasonable rights
of visitation. Bill was ordered to pay child support in the amount
of $200 per month but became delinquent on those payments. Bill
moved out of state and was not able to exercise his visitation
rights to their full extent. He did, however, keep in touch by
telephone and saw A.R.A. approximately once a year for extended
periods.
Bill remarried in 1989 to Colleen. They had a daughter in
1990 and were expecting another child at the time of trial.
Colleen's daughter from a previous marriage also lives with them.
Colleen works as a secretary for the Salt Lake County Sheriff's
Department and Bill, while not employed, attends a junior college
and is studying to become a paralegal.
Tracy married Patrick in 1990 and they had a son, Joshua, in
February 1992. In September 1992, Patrick was transferred to
Billings and Tracy, A.R.A., and Joshua moved shortly thereafter.
Tracy was killed in an airplane crash on December 18, 1992. In her
will, Tracy had named Patrick as A.R.A.'s guardian.
Bill, as the surviving natural parent, came to Billings to
pick up A.R.A. Patrick refused to relinquish physical custody of
A.R.A. to Bill and petitioned the court for custody pursuant to
§ 40-4-221, MCA. The District Court held a hearing on the matter
and ordered that Patrick was the appropriate individual to have
custody under the best interest of the child test even though he
was not the natural father. From that order, Bill appeals.
ISSUE 1
Did the District Court err in awarding custody of the child to
a stepparent over a natural parent based on the best interest of
the child test?
Patrick requested a custody hearing pursuant to § 40-4-221,
MCA. That section provides:
(1) Upon the death of a parent granted custody of
a child, custody shall pass to the noncustodial parent
unless one or more parties named in subsection (2)
request a custody hearing. The noncustodial parent shall
be a party in any proceeding brought under this section.
(2) upon the death of a parent granted custody of
a child, any of the following parties may request a
custody hearing and seek custody of the child:
3
ibi . the
. surviving spouse of the deceased custodial
parent;
Cc) a person nominated by the will of the deceased
custodial parent;
. .
i3i The hearing and determination of custody shall
be governed by this part.
According to part 2 of Title 40, Chapter 4, Montana Code
Annotated, a court shall determine custody pursuant to the best
interest of the child. Section 40-4-212, MCA. The factors
relevant to the child's best interest include the following:
(a) the wishes of the child's parent or parents as
to custody;
(b) the wishes of the child as to a custodian;
(c) the interaction and interrelationship of the
child with the child's parent or parents and siblings and
with any other person who may significantly affect the
child's best interest;
Cd) the child's adjustment to home, school, and
community;
(e) the mental and physical health of all
individuals involved;
(f) physical abuse or threat of physical abuse by
one parent against the other parent or the child; and
(57) chemical dependency, as defined in 53-24-103,
or chemical abuse on the part of either parent.
. The following
i4j . are rebuttable presumptions:
(a) A knowing failure to pay birth-related costs
that theperson is able to pay is not in the best
interest of the child.
(b) Failure to pay child support that the person is
able to pay is not in the best interest of a child in
need of the child support.
The District Court found that there was a close relationship
between Patrick and A.R.A.; that A.R.A. was attached to her brother
Joshua; that Patrick's parenting skills are superior to those
possessed by Bill; that A.R.A. would be adversely affected by
changing schools, therapists, and her primary residence; and that
4
it was in her best interest that she remain in Billings in the
family unit to which she had grown accustomed. Based on these
findings, the court determined that A.R.A.'s best interest
warranted the award of her custody to Patrick.
Bill contends that the court's use of the best interest of the
child test in awarding custody to a stepparent abrogates his
constitutional right to parent his child. Patrick concedes that
Bill has a constitutional right to parent his child but argues that
A.R.A.'s fundamental liberty interest and right to privacy in the
association with her family is also constitutionally protected.
Patrick maintains that the District Court properly balanced the
rights of both Bill and A.R.A. in using the best interest of the
child test as directed by § 40-4-221, MCA.
The interpretation and application of a statute to a
particular set of circumstances are matters of law. Denial of App.
for Iss. of Beer/Wine Lit. (1994), 267 Mont. 298, 301, 883 P.Zd
833, 835. We will therefore review the District Court's
interpretation of § 40-4-221, MCA, for its correctness. See
Babcock v. Wonnacott (1994), 268 Mont. 149, 151, 885 P.2d 522, 524.
The District Court interpreted § 40-4-221, MCA, as giving the
court the authority to award custody to a stepparent rather than a
surviving natural parent using the best interest of the child test.
A statute is to be construed according to the plain meaning of its
language. Norfolk Holdings v. Dept. of Revenue (1991), 249 Mont.
40, 43, 813 P.2d 460, 461. However, it is paramount that we give
5
such construction to the statute as will preserve the
constitutional rights of the parties. LaFountaine v. State Farm
Mut. Auto. Ins. (19851, 215 Mont. 402, 406-07, 698 P.2d 410, 413.
We recognized the constitutional rights of a natural parent to
parent his or her child in In re Doney (1977), 174 Mont. 282, 570
P.2d 575
This careful protection of parental rights is not
merely a matter of legislative grace, but is
constitutionally required. Stanley v. Illinois, 405 U.S. 645,
92 s.ct. 1208, 31 L.Ed.2d 551 (1972). II* * * The
integrity of the family unit has found protection in the
Due Process Clause of the Fourteenth Amendment, Meyerv.
Nebraska, supra [262 U.S. 3901, at 399, [43 S.Ct. 6251, 67
L.Ed. [1042], at 1045, the Equal Protection Clause of the
Fourteenth Amendment, Skinner 1z Oklahoma, supra [316 U.S.
5351, at 541 162 S.Ct. 11101, 86 L.Ed. 116551, at 1660,
and the Ninth Amendment, Griswoldv. Connecticut, 381 U.S. 479,
496, 85 S.Ct. 1678, 14 L.Ed.2d 510, 522 (1965) (Goldberg,
J., concurring) .'I Stanley, 405 U.S. at 651, 92 S.Ct. at
1213, 31 L.Ed.2d at 559.
Doney, 570 P.2d at 577. In a line of cases following Doney, we
again stressed the constitutional protection of a natural parent's
right to the custody of his or her child. Babcock, 885 P.2d at
524; In re M.G.M. (1982), 201 Mont. 400, 406, 654 P.2d 994, 998;
Pierce v. Pierce (1982), 198 Mont. 255, 260, 645 P.2d 1353, 1356;
In re Aschenbrenner (1979), 182 Mont. 540, 544, 597 P.2d 1156,
1160. This constitutional protection is based upon the integrity
of the family unit which necessarily includes the child's right to
be with his or her natural parent. Stanley v. Illinois (1972), 405
U.S. 645, 652, 92 S. Ct. 1208, 1213, 31 L. Ed. 2d 551, 559.
6
Consequently, the state's ability to intrude upon the
parent/child relationship must be guarded. Schultz v. Schultz
(1979), 184 Mont. 245, 247, 602 P.2d 595, 596; Doney, 570 P.2d at
577. For that reason, N [a] finding of abuse, neglect, or
dependency is the jurisdictional prerequisite for any court-ordered
transfer of custody from a natural parent to a third party."
Babcock, 885 P.2d at 524. Therefore, where a surviving parent does
not voluntarily relinquish custody, the best interest of the child
test can be used only after a showing of dependency or abuse and
neglect by the natural parent. M.G.M., 654 P.2d at 998;
Aschenbrenner, 597 P.2d at 1162.
Contrary to the above analysis, we have held that it was not
error for a district court to apply the best interest of the child
test rather than the dependency, abuse, and neglect test as set
forth in Donev to determine custody between the natural father and
the maternal grandmother. Brost v. Glasgow (1982), 200 Mont. 194,
199, 651 P.2d 32, 34. In Brost
-I we held that the 1979 Legislature,
in § 40-4-221, MCA, changed the test to be used in determining
custody when a custodial parent dies. Brost , 651 P.2d at 34. We
again refused to require the stricter Donev standard in favor of
the best interest of the child test in In re C.G. (1987), 228 Mont.
118, 740 P.2d 1139.
However, in Aschenbrenner and Henderson v. Henderson (1977),
174 Mont. 1, 568 P.2d 177, we held that the Uniform Marriage and
Divorce Act (Title 40, Chapters 1 and 4) does not diminish the
7
constitutionally protected rights of a natural parent to the
custody of his or her child. Aschenbrenner, 597 P.2d at 1163;
Henderson, 568 P.2d at 181-82. It follows that an amendment to the
Uniform Marriage and Divorce Act, however limited, cannot infringe
upon those same rights. Therefore, the use of the best interest of
the child test, as referred to in 5 40-4-221, MCA, is improper in
that any showing that a nonparent may be able to provide a better
environment than can a natural parent is irrelevant to the question
of custody between the two in view of the constitutional rights of
a parent to custody. Babcock, 885 P.2d at 524; Aschenbrenner, 597
P.2d at 1162. Accordingly, 5 40-4-221, MCA, is unconstitutional to
the extent that it allows the granting of a § -221 petition prior
to the termination of the natural parent's constitutional rights.
We therefore overrule Brost and In re C.G. in their use of the best
interest of the child test to award custody to a nonparent over a
natural parent absent a finding of abuse and neglect or dependency.
While we recognize that § 40-4-221, MCA, gives a nonparent
standing to request a custody hearing, that section does not give
the district court authority to deprive a natural parent of his or
her constitutionally protected rights absent a finding of abuse and
neglect or dependency. Accordingly, we hold that the District
Court erred in awarding custody of A.R.A. to Patrick 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 Bill.
8
We therefore reverse the District Court and award custody of A.R.A.
to Bill, the natural father.
ISSUE 2
Did the District Court err in failing to set forth reasons for
denial of attorney fees?
The District Court denied attorney fees to Bill but did not
set forth reasons for the denial. A district court may award
attorney fees pursuant to § 40-4-110, MCA. In the past, we have
held that a district court must indicate in the findings of fact,
conclusions of law, or order why attorney fees were not awarded.
In re Marriage of Gallinger (1986), 221 Mont. 463, 471, 719 P.2d
777, 782 (citing Lewis v. Lewis (1982), 198 Mont. 51, 55, 643 P.2d
604, 606). We said that a court's failure to set forth specific
findings constituted remandable error. Gallinaer, 719 P.2d at 782.
However, we later considered that rule much too harsh to be
applied on a general basis, and we held that a more appropriate
standard of review for a decision not to award attorney fees is
abuse of discretion. Gallinqer, 719 P.2d at 783. In the present
case, the record indicates that the District Court was informed of
both parties' financial resources as required by § 40-4-110, MCA.
Based on that information, the District Court determined that the
parties would pay their own attorney fees. That information has
not changed. Notwithstanding the fact that we are granting custody
of A.R.A. to Bill, we determine the District Court did not abuse
its discretion in directing the parties to pay their own attorney
fees.
Reversed in part and affirmed in part.
We concur:
10
-.
Justice James C. Nelson specially concurs.
I concur in our opinion on both issues 1 and 2. I write
separately because I believe that several points not addressed in
our opinion deserve mention.
First, it is only fair to point out that both Henderson v.
Henderson (1977), 174 Mont. 1, 568 P.2d 177, and Matter of
Guardianship of Doney (1977), 174 Mont. 282, 570 P.2d 575, were
decided prior to the enactment of § 40-4-221, MCA, in 1979.
Accordingly, the constitut-ional principles enunciated in those
cases and relied upon here were neither considered nor addressed in
the context of this statute.
Second, Brost v. Glasgow (1982), 200 Mont. 194, 651 P.2d 32,
and Matter of Paternity of C.G. (1987), 228 Mont. 118, 740 P.2d
1139, were decided strictly on the basis of § 40-4-221, MCA. While
in both cases we mentioned Donev, in neither Brost nor C.G. did we
address the constitutionality of the best interest test mandated by
this statute in light of our prior adoption of the principles
enunciated in Stanley v. Illinois (1972), 405 U.S. 645, 92 S.Ct.
1208, 31 L.Ed.2d 551. Having now done that, Brost and C.G. are
correctly overruled.
Third, notwithstanding that we have overruled Brost and C.G.
we have not discussed nor attempted to deal with other cases, which
remain good law, wherein we have permitted persons other than
biological parents to seek or obtain custody of a child to the
exclusion of a natural parent without prior termination of the
natural parent's rights. I make no pretention that this list is
11
all-inclusive, but see, for example: In re Custody of R.R.K.
(1993), 260 Mont. 191, 859 P.2d 998 (grandparents entitled to seek
custody of child under 5 40-4-211, MCA; § 40-4-212 controls); In re
Marriage of K.E.V. (1994); 267 Mont. 323, 883 P.2d 1246 (child
awarded to non-biological father on the basis of equitable
estoppel; neither natural mother's nor natural father's rights
terminated); and Matter of Paternity of Adam (1995), 273 Mont. 351,
903 P.2d 207 (non-biological father allowed to adopt the child over
objection of natural father on basis of presumption of paternity
under Montana's Uniform Parentage Act, Title 40, Chapter 6, MCA;
best interest test controls).
I mention these cases here only from the standpoint that in
the instant case we properly have grounded our decision in the
fundamental constitutional rights implicit in the biological
parent/child relationship and have rejected a statutory scheme that
permits the invasion of that relationship absent there first being
proof or demonstration of the loss, forfeiture or termination of
those rights. The cases referred to in the preceding paragraph
were decided under different statutory schemes, and/or on different
factual scenarios and without the constitutional question at issue
here. Hence, while, arguably, it is not proper that we discuss or
analyze these and similar decisions here, nevertheless, it begs the
question whether such decisions remain viable in the face of other
statutory schemes or legal theories that, like 5 40-4-221, MCA,
permit custody to be awarded to a person other than a biological
parent absent the rights pf the natural parent(s) being first
12
terminated or otherwise forfeited. Obviously, those skirmishes
remain to be fought on future battlefields. Given our decision
here, however, this may be an area of statutory law that should be
addressed and clarified by the legislature
Finally, it seems to me that the approach we have articulated
in the instant case is as follows:
1. Section 40-4-221, MCA, and, by implication,
other statutes that allow persons other than biological
parents to seek custody of a child to the exclusion of a
natural parent, do no more than provide a basis for
standing to file a custody petition, assuming that the
petitioner meets the statutory criteria specified.
2. In order for such a person to prevail on his or
her petition, however, the petitioner must prove that:
(a) the rights of the natural parent(s) have
been lost via:
(i) terminationforabuse, dependencyor
neglect (Title 41, Chapter 3, MCA);l or
(ii) death of both natural parents or the
surviving natural parent (§ 40-4-221, MCA); or
(iii) some other statutory basis or
procedure on which parental rights have been forfeited,
relinquished, abandoned or terminated or have otherwise
ceased to exist; and
(b) the best interest of the child will be
served by granting the petition.
If the petitioner does not prove or demonstrate one of the
subparagraphs under 2(a) above, then the court will not reach 2(b)
1
I note that our statutory and case law provide that
petitions alleging abuse and neglect must be brought by the county
attorney, the attorney general, or an attorney hired by Department
of Health and Public Services with the consent of either of those
two officials. Section 41-3-401(l), MCA; Pierce v. Pierce (19821,
198 Mont. 255, 261, 645 P.2d 1353, 1357; Babcock v. Wonnacott
(1994), 268 Mont. 149, 154, 885 P.2d 522, 525.
13
(best interest of the child). I~f 2 (a) i s proven or demonstrated,
but Z(b) is not, then the petition will still be denied. In this
Case, 2(a) has not been proven or demonstrated and, accordingly,
Bill is entitled to custody of his daughter.
Justice Karla M. Gray joins in the foregoing special concurrence.
14
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