In re S.W.B.S.

2019 MT 1, 432 P.3d 709, 394 Mont. 52
CourtMontana Supreme Court
DecidedJanuary 2, 2019
DocketDA 18-0150
StatusPublished
Cited by3 cases

This text of 2019 MT 1 (In re S.W.B.S.) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re S.W.B.S., 2019 MT 1, 432 P.3d 709, 394 Mont. 52 (Mo. 2019).

Opinion

Justice Laurie McKinnon delivered the Opinion of the Court.

**55¶1 Michala Berube (Mother) appeals from an order of the Eleventh Judicial District Court, Flathead County, amending her parenting plan with Bryan Sinram (Father). While Mother presents nine issues on appeal, we summarize her arguments and restate the dispositive issue as:

Did the District Court err in amending the parties' parenting plan?

¶2 We conclude the District Court did not err and therefore affirm its order amending the parties' parenting plan.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 S.W.B.S. was born to Mother and Father in December 2012. Mother and Father never married and, in 2015, when S.W.B.S. was two years old, the District Court approved the parties' stipulated parenting plan (Initial Parenting Plan). Both parents lived in Kalispell and the plan's residential schedule provided that Mother would parent four days a week while Father would parent three days a week. The residential schedule contained a holiday schedule that contemplated S.W.B.S. entering school; it provided specific arrangements for spring and winter breaks "applicable when kindergarten begins" and clarified that "school attendance takes priority over the holiday" schedule. The residential schedule also contained a subsection entitled "School (when applicable)" and delineated instances in which the parties could remove S.W.B.S. from school.

¶4 The plan further provided that Mother and Father would make certain parenting decisions-specifically those regarding S.W.B.S.'s schooling and healthcare-together. If the parties were unable to agree upon those parenting decisions, the plan provided that they were to make a good-faith effort to resolve the issues through dispute resolution processes before bringing their disagreements to the court. The plan also contained a provision entitled "Modification" (Modification Provision), which provided:

The parties agree that the above schedule shall be reviewed and modified as necessary if there are significant change in circumstances or when the minor child begins kindergarten to consider the developmental changes, needs, and best interest of the child at that time. They shall begin discussions of a schedule at least 6 months prior to the start of kindergarten. Both parties agree that the above schedule must be modified to some extent so that both parents may enjoy a full weekend parenting time with the child.

¶5 After the District Court approved the Initial Parenting Plan, Mother had two more children and moved to Columbia Falls. As **56S.W.B.S. aged, Mother and Father continuously disagreed on notable parenting decisions, such as whether S.W.B.S. should attend preschool and whether S.W.B.S. should be vaccinated. The parties tried to mediate the issues but could not agree. Therefore, in May 2017, Father filed a motion to permit school enrollment, amend the parenting plan, and modify child support. Specifically, Father wished to enroll S.W.B.S. in preschool and vaccinate him. Father also sought an amended residential schedule, as contemplated by the Initial Parenting Plan's Modification Provision, in anticipation of S.W.B.S. beginning kindergarten the next fall. Mother objected to Father's motion. The District Court held a hearing regarding Father's motion in August 2017.

¶6 Ultimately, the District Court denied Father's request to enroll S.W.B.S. in preschool and granted his request to vaccinate S.W.B.S. The District Court further determined *712that, in light of its Modification Provision, the Initial Parenting Plan's residential schedule should change as soon as S.W.B.S. entered kindergarten. The District Court memorialized those decisions in an order modifying the parenting plan. That document contained a few clerical errors, and in October 2017, the District Court issued a corrected order (October 2017 Order).

¶7 In its October 2017 Order, the court cited § 40-4-219(1), MCA, the statute governing amendments to parenting plans, which requires the court to find that a change occurred in the child's circumstances and that an amendment is in the child's best interest. Instead of finding a change in circumstances, the District Court relied on the Initial Parenting Plan's Modification Provision to justify its amendment. The court further concluded it was in S.W.B.S.'s best interest to amend the Initial Parenting Plan's residential schedule as soon as he started kindergarten. The new residential schedule provided that beginning in the fall of 2018, S.W.B.S. would reside primarily with Father during the school year, spending time with Mother on alternating weekends from Thursday after school until Sunday evening, with a mid-week visit on opposite weeks. During summer break, Mother would parent from Tuesday afternoon until Friday afternoon, and Father would parent from Friday afternoon until Tuesday afternoon.

¶8 The District Court instructed Father's counsel to prepare a proposed amended parenting plan reflecting the court's determinations, submit the proposal to Mother's counsel, and then submit the proposal to the court for final review and approval. Father's counsel submitted multiple proposals to Mother's counsel, but Mother did not believe any of the proposals accurately reflected the court's October 2017 Order. Father filed a proposed amended parenting plan **57in early-January 2018 embodying what he considered to reflect the court's rulings. Mother subsequently filed a notice of objection to Father's proposed amended parenting plan.

¶9 In response, the District Court issued a supplemental order in January 2018 regarding miscellaneous parenting plan issues. In the supplemental order, the court found that Mother should parent for most of S.W.B.S.'s summer vacation and, accordingly, ordered the school-year schedule to reverse from June 12 until August 31 each year with Mother parenting the majority of the time. In February 2018, the District Court approved an amended parenting plan that took into account its October 2017 Order and January 2018 supplemental order (Amended Parenting Plan). Mother appeals the District Court's decision to amend the Initial Parenting Plan.

STANDARD OF REVIEW

¶10 When reviewing a district court's decision to modify a parenting plan, we review its findings of fact for clear error. Jacobsen v. Thomas , 2006 MT 212, ¶ 13, 333 Mont. 323, 142 P.3d 859. Findings are clearly erroneous if they are not supported by substantial evidence, the court misapprehended the effect of the evidence, or our review of the record convinces us that a mistake was made. In re Marriage of Oehlke , 2002 MT 79, ¶ 17, 309 Mont. 254,

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Cite This Page — Counsel Stack

Bluebook (online)
2019 MT 1, 432 P.3d 709, 394 Mont. 52, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-swbs-mont-2019.