Marriage of Dalgarno

2016 MT 142N

• Court: Montana Supreme Court
• Decided: June 7, 2016
• Docket: 15-0522
• Status: Published

Opinion

June 7 2016

DA 15-0522 Case Number: DA 15-0522

IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 142N

IN RE THE MARRIAGE OF:

TIFFANY MAE DALGARNO,

Petitioner and Appellant,

v.

DONALD CRAIG DALGARNO,

Respondent and Appellee.

APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. DDR 08-417 Honorable Dirk M. Sandefur, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Tonja Schaff Kostelecky, Falcon, Lester & Schaff, P.C.; Great Falls, Montana

For Appellee:

Jeffrey S. Ferguson, Jeffrey S. Ferguson Law Office, PLLC; Great Falls, Montana

Submitted on Briefs: May 4, 2016

Decided: June 7, 2016

Filed:

__________________________________________ Clerk Justice Jim Rice delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2 Tiffany Dalgarno (Tiffany) appeals an order from the Eighth Judicial District

Court, Cascade County, adopting the standing master’s report that amended the parenting

plan between Tiffany and Donald Craig Dalgarno (Craig). The parties were previously

married, and have three minor children together. Tiffany argues that a sufficient change

of circumstances to amend the parenting plan has not been demonstrated, and that the

amended parenting plan is not in the children’s best interest.

¶3 “Two standards of review are relevant in cases involving both a standing master

and the district court: the standard the district court applies to the master’s report and the

standard we apply to the district court’s decision. We review a district court’s decision

de novo to determine whether it applied the correct standard of review to a standing

master’s findings of fact and conclusions of law. A district court reviews a standing

master’s findings of fact for clear error, and its conclusions of law to determine if they

are correct.” Davis v. Davis, 2016 MT 52, ¶ 4, 382 Mont. 378, 367 P.3d 400 (internal

quotation marks and citations omitted) (citing In re Marriage of Kostelnik, 2015 MT 283,

¶ 15, 381 Mont. 182, 357 P.3d 912; and In re G.J.A., 2014 MT 215, ¶ 11, 376 Mont. 212,

331 P.3d 835).

2 ¶4 Previous to the dissolution, the parties lived in Harlowton and the two oldest

children were enrolled in school there. The marriage between the parties was dissolved

on November 5, 2008, and the court approved an agreed-upon parenting plan at that time.

Tiffany moved to Geraldine and entered the children in school there. Under the plan, the

children resided primarily with Tiffany during the school year, and were with Craig for

three weekends per month and during the summer. In April 2013, this arrangement was

modified by a stipulation that designated which weekends the children were to stay with

Craig.

¶5 Before the 2013-2014 academic year started, Tiffany moved from Geraldine back

to Harlowton and enrolled the children in school there. The Master found that the

children “did fairly well in school in Harlowton,” although one child received additional

help. The next spring, in March 2014, Tiffany again moved with the children, this time

to Great Falls, and the children finished the remainder of the school year there. The

Master found Tiffany’s testimony that an immediate move to Great Falls was necessary

to secure employment was not credible. Tiffany’s employment with a bank in Great Falls

was terminated during her probationary period.

¶6 In May 2014, Craig filed a Motion to Modify Parenting Plan and Child Support,

and the Master conducted a hearing on the motion. The Master found that Tiffany and

Craig both have a close and loving relationship with the children and that each is a fit and

capable parent. The Master found that the children have close relationships with family

and friends in both Harlowton and Great Falls, and that Tiffany’s testimony that the

children do not have friends in Harlowton was not credible. The Master found that the

3 parties do not communicate well, and that, while “neither Craig nor Tiffany are effective

co-parents, Tiffany is particularly negative about Craig and about the time the children

spend with him. Tiffany’s attitude has cause[d] her to behave in a way that disrupts the

relationship between the children and Craig.”

¶7 Tiffany argues that there was no threshold change in circumstances necessary to

amend the parenting plan. The Master reasoned that Tiffany had “demonstrated

instability” and that she had “moved multiple times. These moves have required the

minor children to attend three different schools in two academic years. Tiffany’s

inability to maintain a stable residence was not contemplated by the court or the parties

when the Agreed Parenting Plan and Stipulation and Order were entered and approved.

Craig has established that there is a change in circumstances . . . .” The District Court

held that “to the extent that the finding of fact is that it was uncontemplated or

unanticipated at the time of the stipulation that mother would move multiple times and

thereby change the circumstances of the child, that finding of fact is supported by

substantial credible evidence.” It is a notable undercurrent of the case, as determined by

the Master, that “Tiffany undermines Craig’s contact with the children b[y] both

undermining Craig himself and by undermining the children’s time with Craig.”

¶8 Addressing the factors to be considered in determining the children’s best

interests, the Master found Tiffany’s testimony was not credible in several regards, the

children were well adjusted in Harlowton, as in Great Falls, and Tiffany was seeking “to

undermine the quality of the children’s life in Harlowton.” Even while noting that

Tiffany had the constitutional right to travel for which she could not be penalized, and

4 that her moves were not presumed to be contrary to the children’s best interest, the

Master determined that Tiffany “has demonstrated a significant lack of stability” that

“has resulted in disruption in the children’s education.” The Master also reasoned that

“Tiffany’s hostility toward the children’s time with Craig is not in the children’s best

interest,” which contrasted with Craig’s cooperation in allowing Tiffany additional time

with the children during summer periods when he had the children, which weighed in

favor of an amendment to the parenting plan. The Master considered that the oldest

child, S.L.D., expressed a preference for living with Tiffany. The District Court likewise

noted S.L.D.’s wishes, but concluded that the Master’s findings of fact were supported by

substantial evidence and were not clearly erroneous, and affirmed the Master’s

conclusions of law.

¶9 As we have held, “A party seeking to modify a parenting plan pursuant to

§ 40-4-219, MCA, carries a heavy burden of proof [to show of a change in

circumstances].” In re D’Alton, 2009 MT 184, ¶ 11, 351 Mont. 51, 209 P.3d 251

(internal quotations marks and brackets omitted) (citing In re Marriage of Oehlke, 2002

MT 79, ¶ 17, 309 Mont. 254, 46 P.3d 49). However, we also acknowledge that “a district

court has ‘broad discretion when considering the parenting of a child. Child custody

cases often present the court with difficult decisions. We must presume that the court

carefully considered the evidence and made the correct decision.’” In re Whyte, 2012

MT 45, ¶ 23, 364 Mont. 219, 272 P.3d 102 (internal quotation marks omitted) (citing In

re Parenting of N.S., 2011 MT 98, ¶ 18, 360 Mont. 288, 253 P.3d 863). This case indeed

presented a difficult decision for the Master and the District Court, as the Master

5 acknowledged that both parents “have a close and loving relationship with the minor

children. Each is a fit and capable parent who provides an appropriate home for the

children.” But the Master had to make a determination, and its findings and conclusions

are supported by substantial evidence in the record.

¶10 We recently found no error in a case involving a district court’s determination that

a mother moving from one county to another was not a sufficient “change in

circumstances that created an obligation to modify the Parenting Plan.” In re Parenting

of C.M.R., 2016 MT 120, ¶ 19, ___ Mont. ___, ___ P.3d ___. However, this case is

easily distinguishable; Tiffany moved not once, but three times since the original

parenting plan was entered, disrupting the children’s academic progress, and purposefully

disrupting the children’s relationship with Craig. A parent changing locations does not

automatically demonstrate a change in circumstances for amendment of a parenting plan,

but consideration of all the facts and circumstances here leads us to conclude that the

determinations of the Master and the District Court were not in error.

¶11 Tiffany argues the District Court erred in affirming witness credibility

determinations in several of the Master’s findings that mentioned Tiffany negatively.

The District Court essentially conducted an appellate review of the Master’s order, for

“[t]he findings of fact in a standing master’s report must be reviewed by a district court

for clear error, giving due deference to the broad discretion of the Master to assess the

relative credibility of the witnesses and the weight of the evidence.” Patton v. Patton,

2015 MT 7, ¶ 41, 378 Mont. 22, 340 P.3d 1242 (citations and quotation marks omitted).

Although Tiffany’s counsel stresses the exact wording of the testimony to argue for error,

6 the record overall is sufficient to support the Master’s findings. As stated above, we have

acknowledged that the factfinder is better equipped to make determinations as to witness

credibility and to weigh evidence. See Whyte, ¶ 23. While Tiffany obviously disagrees

with the result, the Master was tasked with a difficult decision, and had to make a ruling

for one parent or the other. The District Court recognized this, and upon its review,

noted, “This is not a trial de novo. This Court would err if it simply substituted its

judgment for that of the Master.”

¶12 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. We assign no

error to either the Master or the District Court under the appropriate standards of review.

¶13 Affirmed.

/S/ JIM RICE

We concur:

/S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ JAMES JEREMIAH SHEA