In Re the Marriage of Tade

938 P.2d 673, 282 Mont. 449, 54 St.Rep. 426, 54 State Rptr. 426, 1997 Mont. LEXIS 87
CourtMontana Supreme Court
DecidedMay 15, 1997
Docket96-489
StatusPublished
Cited by2 cases

This text of 938 P.2d 673 (In Re the Marriage of Tade) 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 the Marriage of Tade, 938 P.2d 673, 282 Mont. 449, 54 St.Rep. 426, 54 State Rptr. 426, 1997 Mont. LEXIS 87 (Mo. 1997).

Opinion

CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Michelle Tade appeals from the order of the Seventeenth Judicial District Court, Valley County, modifying primary residential custody of her son. We affirm.

We address the following issues:

1. Did the District Court abuse its discretion when it designated Michael as primary residential parent?

2. Did the District Court abuse its discretion when it awarded custody because Michelle moved to Billings to further her education?

BACKGROUND

Michael Hlad and Michelle Tade were married and had one child, Aaron, who was born in 1991. In 1994, the Hlads’ marriage was dissolved by decree of the District Court. Incorporated into the decree was a custody agreement which provided that the parties would have joint custody of Aaron, with physical custody shared on an equal basis, alternating weekly. At that time the parties both lived, as they had during their marriage, in Glasgow, Montana. The parties also agreed to review custody in one year and to modify it if appropriate.

In 1995, Michelle was accepted to Montana State University-Billings. However, she and Michael were unable to agree on a change in Aaron’s custody arrangement. Michelle petitioned for modification, requesting primary physical custody of Aaron based on her anticipated substantial change in circumstances.

At the modification hearing, Michelle testified on the importance of consistency of herself as Aaron’s primary physical custodial parent. Michael testified about Aaron’s ties to home, school, community, and *451 family located in Glasgow. The court heard testimony that Michelle had been Aaron’s primary care provider for three years. When Aaron was three years old and the shared custody plan went into effect, Michael provided primary care on an equal basis for one year. Family members testified that Michael and Michelle are from the Glasgow area and both have close relationships with Aaron.

Following the hearing, the District Court issued findings of fact and conclusions of law. The court granted Michael primary residential custody of Aaron during the school year, with Michelle to have nine days of visitation per month. During the summer, Michelle will have primary residential custody with Michael receiving one monthly weekend visitation.

Michelle appeals from the order modifying custody.

DISCUSSION

1. Did the District Court abuse its discretion when it designated Michael as primary residential parent?

This Court recently explained the jurisdictional requirements for a district court to approve a request for modification of a joint custody decree:

[I]n custody modification cases [,] if a request for modification of a joint custody decree would have the effect of substantially changing the primary residence of the parties’ children, the court, before engaging in modification, must first find that the requirements of [§ 40-4-219, MCA] have been met. If the court finds that (1) “a change has occurred in the circumstances of the child or the child’s custodian,” § 40-4-219(1), MCA, and (2) further finds that the custodial parent and the child or children have moved or are going to move from one location to a different location ... and that this move will hinder the effectiveness of the existing custody arrangement, then (3) § -219’s jurisdictional requirements shall be deemed to have been met, and the court may proceed to modify the custody arrangement according to the “best interest” criteria set out in § 40-4-212, MCA.

In re Marriage ofSyverson (1997), [281 Mont. 1], 931 P.2d 691, 702.

The District Court found that it had jurisdiction to modify custody based on a change in circumstances arising from Michelle’s move to Billings, Montana, and that the change made the previous custody plan no longer practical. Neither party disputes these findings. Therefore, we must determine whether the District Court erred when it modified primary residential custody because, as Michelle *452 claims, the court did not apply the primary care presumption contained at § 40-4-212(3)(a), MCA.

Section 40-4-212(3)(a), MCA, states:

(3) The following are rebuttable presumptions and apply unless contrary to the best interests of the child:
(a) Custody should be granted to the parent who has provided most of the primary care during the child’s life.

The District Court made the following relevant findings in support of its order modifying custody:

Aaron has an interaction and interrelationship with other significant persons in his life who reside and make their home in ... or around the community of Glasgow. Aaron’s home has always been in Glasgow ... a significant community in [his] life. [Michelle’s attending college] is a significant adjustment in her life and represents added stress, and that in turn will be an adjustment for Aaron to also make. Aaron has shown a great ability to make adjustments. The time that Michelle has to spend with Aaron [in Billings] [should not] have school interference and work interference as a significant factor .... Michelle has been a very stable person in Aaron’s life. [T]he circumstances under which this decree is given represent the time and effort that [Michelle] must give to further her education and to finance it. [0]nce she’s completed [her] education, that will represent a change in circumstances that might be sufficient to consider modification.

We will reverse a court’s decision to modify custody only where an abuse of discretion is clearly demonstrated. Syverson, 931 P.2d at 703 (citation omitted). Michelle maintains that she was Aaron’s primary caregiver during the first three years of his life and that the District Court abused its discretion when it modified custody because it misunderstood § 40-4-212(3)(a), MCA, and failed to weigh it properly with other statutory criteria. More specifically, Michelle argues that the court considered she and Michael shared primary care of Aaron equally since their divorce, rather than considering that she “provided most of Aaron’s primary care ‘during the child’s life.’ ”

Michelle cites In re Marriage of Abrahamson (1996), 278 Mont. 336, 924 P.2d 1334, in support of her argument that the District Court inadequately considered § 40-4-212(3)(a), MCA. In Abrahamson, we held that “District courts should be cognizant of § 40-4-213(3)(a), MCA, and should take appropriate steps to ensure that it is, in all applicable cases, adequately considered.” Abrahamson, 924 P.2d at *453 1338. Abrahamson is distinguishable from Michelle’s situation. There, a custody agreement designated the mother as primary residential custodian. In the Hlads’ custody agreement incorporated as part of their original dissolution decree, however, there was no designation of a primary caregiver or custodian.

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Related

Czapranski v. Czapranski
2003 MT 14 (Montana Supreme Court, 2003)
In Re the Custody of D.M.G.
1998 MT 1 (Montana Supreme Court, 1998)

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Bluebook (online)
938 P.2d 673, 282 Mont. 449, 54 St.Rep. 426, 54 State Rptr. 426, 1997 Mont. LEXIS 87, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-tade-mont-1997.