06/13/2017
DA 16-0749 Case Number: DA 16-0749
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 147N
IN RE THE GRANDPARENT-GRANDCHILD CONTACT OF T.B., L.B., H.B. AND K.B. _________________________________________
MICHAEL BURKE AND CHRISTINE TEAGUE,
Petitioners and Appellants,
v.
RACHEL BURKE,
Respondent and Appellee.
APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DR-15-275(D) Honorable David M. Ortley, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Jamie J. McKittrick, Wells & McKittrick, PC, Missoula, Montana
For Appellee:
Katherine P. Maxwell, Maxwell Law, PLLC, Kalispell, Montana
Submitted on Briefs: May 31, 2017
Decided: June 13, 2017
Filed:
__________________________________________ Clerk Chief Justice Mike McGrath 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 Michael Burke and Christine Teague appeal from a December 1, 2016 District Court
order granting summary judgment in favor of Rachel Burke. We affirm.
¶3 Michael Burke and Christine Teague (Grandparents) are the paternal grandparents
of T.B., L.B., H.B., and K.B. (the children). Rachel Burke (Burke) is the children’s mother.
The parents divorced in 2014. The children’s father (Father) later committed suicide in
Burke’s Kalispell home, within earshot of the two older children. The Grandparents are
separated; Michael lives in Missoula and Christine lives in North Dakota. Because of the
history of family trauma, Burke had requested supervised visitation. Burke and
Grandparents have been unable to agree on visitation between the children and
Grandparents. Grandparents filed a Petition for Grandparent/Extended Family Visitation
on April 30, 2015, attaching the affidavits of Michael Burke, Christine Teague, and Erin
Krause. Burke filed a M. R. Civ. P. 12(b)(6) Motion to Dismiss for failure to state a claim
upon which relief could be granted. The District Court converted it, by order of the Court,
into a Motion for Summary Judgment and provided notice to the parties to file briefs and
2 responses. On December 1, 2016, the District Court granted summary judgment in favor
of Burke. The Grandparents appeal.
¶4 The District Court’s conversion of the Motion to Dismiss into a Motion for
Summary Judgement was error. Following the conversion, the parties filed additional
pleadings and briefs. The District Court order granted summary judgment, but also made
extensive findings of fact. A motion for summary judgment may be granted only if no
genuine issues of material fact are present. Roe v. City of Missoula, 2009 MT 417, ¶ 14,
354 Mont. 1, 221 P.3d 1200. The District Court’s ruling should have been reached based
on the Motion to Dismiss as filed, and we will review the issue as if the court had granted
the Motion to Dismiss.
¶5 We review de novo a district court’s ruling on a motion to dismiss pursuant to
M. R. Civ. P. 12(b)(6). Hall v. State, 2006 MT 37, ¶ 10, 331 Mont. 171, 130 P.3d 601.
The determination of whether a complaint states a claim is a conclusion of law, and the
district court’s conclusions of law are reviewed for correctness. Guest v. McLaverty, 2006
MT 150, ¶ 2, 332 Mont. 421, 138 P.3d 812. In an order to dismiss, if as a matter of law,
under any view of the alleged facts, plaintiffs cannot prevail, “affirmance of the District
Court is commanded.” Commonwealth Edison Co. v. State, 189 Mont. 191, 194, 615 P.2d
847, 849 (1980).
¶6 This Court will construe the complaint in the light most favorable to the
Grandparents. Guest, ¶ 2. The well-pleaded allegations are treated as admitted. Guest,
¶ 2. A motion to dismiss allows a district court to only examine whether a claim has been
adequately stated in the complaint. Hoveland v. Petaja, 252 Mont. 268, 270, 828 P.2d 392,
3 393 (1992). From the petition, we ascertain the following facts: Grandparents are the
biological paternal grandparents to T.B., L.B., H.B., and K.B. Grandparents are loving and
caring individuals who seek to have a relationship with their grandchildren after the death
of their son. The Grandparents have spent considerable time with the children attending
religious, extracurricular, and sports activities. Grandparents and the children spent
holidays and special occasions together. Grandparents provided monetary support and
gifts to the children. Grandparents (particularly Michael) spent significant time with the
children after the parents’ divorce, as Father was living with Michael. The petition also
notes that Burke has the children involved in grief counseling with the Nurturing Center in
Kalispell. Burke told the Grandparents that the center had advised her “that contact was
not in the children’s best interest” at that time. Grandparents believe Burke is improperly
denying them access to and communication with the children. Grandparents believe Burke
will cut them out of the children’s lives absent a court order for visitation.
¶7 Section 40-9-102, MCA, provides the basis in law for a grandparent’s right to
reasonable contact with a grandchild. Where a parent objects to the grandparent-grandchild
contact, the District Court must determine if that parent is “fit.” Section 40-9-102(2),
MCA. Here, there is no question of the parental fitness of Burke. Both parties have
stipulated Burke is a fit parent. Once determined fit, the statute creates a presumption that
the parent’s wishes are in the best interest of the child. Section 40-9-102(4), MCA.
¶8 To overcome the parental presumption, the petitioner must provide the district court
with clear and convincing evidence that the contact is in the best interest of the child.
Section 40-9-102(4), MCA; Glueckert v. Glueckert, 2015 MT 107, ¶ 10, 378 Mont. 507,
4 347 P.3d 1216. Clear and convincing evidence is more than a mere preponderance of the
evidence, and requires evidence that is definite, clear and convincing. Glueckert, ¶ 10.
¶9 The District Court concluded that the Grandparents did not overcome the parental
presumption. Viewing the alleged facts most favorably to the Grandparents and treating
the asserted facts as true, we are unable to conclude the District Court’s final order was
incorrect. The evidence submitted by the Grandparents shows a strong bond between them
and the children. However, it is not enough that there has been contact in the past between
the Grandparents and the children. It is not enough that Grandparents find fault with
Burke’s parental decision regarding contact. The Grandparents have not alleged sufficient
facts to override the parental presumption. As a matter of law, under the factual
circumstances alleged, Grandparents cannot prevail. Commonwealth, 189 Mont. at 194,
615 P.2d at 849.
¶10 As we have previously stated, “we will uphold a district court when it reaches the
correct result, regardless of the court's reasoning.” Smith v. Farmers Union Mut. Ins. Co.,
2011 MT 216, ¶ 26, 361 Mont.
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06/13/2017
DA 16-0749 Case Number: DA 16-0749
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 147N
IN RE THE GRANDPARENT-GRANDCHILD CONTACT OF T.B., L.B., H.B. AND K.B. _________________________________________
MICHAEL BURKE AND CHRISTINE TEAGUE,
Petitioners and Appellants,
v.
RACHEL BURKE,
Respondent and Appellee.
APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DR-15-275(D) Honorable David M. Ortley, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Jamie J. McKittrick, Wells & McKittrick, PC, Missoula, Montana
For Appellee:
Katherine P. Maxwell, Maxwell Law, PLLC, Kalispell, Montana
Submitted on Briefs: May 31, 2017
Decided: June 13, 2017
Filed:
__________________________________________ Clerk Chief Justice Mike McGrath 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 Michael Burke and Christine Teague appeal from a December 1, 2016 District Court
order granting summary judgment in favor of Rachel Burke. We affirm.
¶3 Michael Burke and Christine Teague (Grandparents) are the paternal grandparents
of T.B., L.B., H.B., and K.B. (the children). Rachel Burke (Burke) is the children’s mother.
The parents divorced in 2014. The children’s father (Father) later committed suicide in
Burke’s Kalispell home, within earshot of the two older children. The Grandparents are
separated; Michael lives in Missoula and Christine lives in North Dakota. Because of the
history of family trauma, Burke had requested supervised visitation. Burke and
Grandparents have been unable to agree on visitation between the children and
Grandparents. Grandparents filed a Petition for Grandparent/Extended Family Visitation
on April 30, 2015, attaching the affidavits of Michael Burke, Christine Teague, and Erin
Krause. Burke filed a M. R. Civ. P. 12(b)(6) Motion to Dismiss for failure to state a claim
upon which relief could be granted. The District Court converted it, by order of the Court,
into a Motion for Summary Judgment and provided notice to the parties to file briefs and
2 responses. On December 1, 2016, the District Court granted summary judgment in favor
of Burke. The Grandparents appeal.
¶4 The District Court’s conversion of the Motion to Dismiss into a Motion for
Summary Judgement was error. Following the conversion, the parties filed additional
pleadings and briefs. The District Court order granted summary judgment, but also made
extensive findings of fact. A motion for summary judgment may be granted only if no
genuine issues of material fact are present. Roe v. City of Missoula, 2009 MT 417, ¶ 14,
354 Mont. 1, 221 P.3d 1200. The District Court’s ruling should have been reached based
on the Motion to Dismiss as filed, and we will review the issue as if the court had granted
the Motion to Dismiss.
¶5 We review de novo a district court’s ruling on a motion to dismiss pursuant to
M. R. Civ. P. 12(b)(6). Hall v. State, 2006 MT 37, ¶ 10, 331 Mont. 171, 130 P.3d 601.
The determination of whether a complaint states a claim is a conclusion of law, and the
district court’s conclusions of law are reviewed for correctness. Guest v. McLaverty, 2006
MT 150, ¶ 2, 332 Mont. 421, 138 P.3d 812. In an order to dismiss, if as a matter of law,
under any view of the alleged facts, plaintiffs cannot prevail, “affirmance of the District
Court is commanded.” Commonwealth Edison Co. v. State, 189 Mont. 191, 194, 615 P.2d
847, 849 (1980).
¶6 This Court will construe the complaint in the light most favorable to the
Grandparents. Guest, ¶ 2. The well-pleaded allegations are treated as admitted. Guest,
¶ 2. A motion to dismiss allows a district court to only examine whether a claim has been
adequately stated in the complaint. Hoveland v. Petaja, 252 Mont. 268, 270, 828 P.2d 392,
3 393 (1992). From the petition, we ascertain the following facts: Grandparents are the
biological paternal grandparents to T.B., L.B., H.B., and K.B. Grandparents are loving and
caring individuals who seek to have a relationship with their grandchildren after the death
of their son. The Grandparents have spent considerable time with the children attending
religious, extracurricular, and sports activities. Grandparents and the children spent
holidays and special occasions together. Grandparents provided monetary support and
gifts to the children. Grandparents (particularly Michael) spent significant time with the
children after the parents’ divorce, as Father was living with Michael. The petition also
notes that Burke has the children involved in grief counseling with the Nurturing Center in
Kalispell. Burke told the Grandparents that the center had advised her “that contact was
not in the children’s best interest” at that time. Grandparents believe Burke is improperly
denying them access to and communication with the children. Grandparents believe Burke
will cut them out of the children’s lives absent a court order for visitation.
¶7 Section 40-9-102, MCA, provides the basis in law for a grandparent’s right to
reasonable contact with a grandchild. Where a parent objects to the grandparent-grandchild
contact, the District Court must determine if that parent is “fit.” Section 40-9-102(2),
MCA. Here, there is no question of the parental fitness of Burke. Both parties have
stipulated Burke is a fit parent. Once determined fit, the statute creates a presumption that
the parent’s wishes are in the best interest of the child. Section 40-9-102(4), MCA.
¶8 To overcome the parental presumption, the petitioner must provide the district court
with clear and convincing evidence that the contact is in the best interest of the child.
Section 40-9-102(4), MCA; Glueckert v. Glueckert, 2015 MT 107, ¶ 10, 378 Mont. 507,
4 347 P.3d 1216. Clear and convincing evidence is more than a mere preponderance of the
evidence, and requires evidence that is definite, clear and convincing. Glueckert, ¶ 10.
¶9 The District Court concluded that the Grandparents did not overcome the parental
presumption. Viewing the alleged facts most favorably to the Grandparents and treating
the asserted facts as true, we are unable to conclude the District Court’s final order was
incorrect. The evidence submitted by the Grandparents shows a strong bond between them
and the children. However, it is not enough that there has been contact in the past between
the Grandparents and the children. It is not enough that Grandparents find fault with
Burke’s parental decision regarding contact. The Grandparents have not alleged sufficient
facts to override the parental presumption. As a matter of law, under the factual
circumstances alleged, Grandparents cannot prevail. Commonwealth, 189 Mont. at 194,
615 P.2d at 849.
¶10 As we have previously stated, “we will uphold a district court when it reaches the
correct result, regardless of the court's reasoning.” Smith v. Farmers Union Mut. Ins. Co.,
2011 MT 216, ¶ 26, 361 Mont. 516, 260 P.3d 163 (citing Stevens v. Novartis Pharms.
Corp., 2010 MT 282, ¶ 28, 358 Mont. 474, 247 P.3d 244). The Grandparents have failed
to meet the high bar required to establish a statutory right to reasonable contact under
§ 40-9-102, MCA. Burke’s motion to dismiss should have been granted.
¶11 As a final note, we recognize that Burke has a fundamental liberty interest to make
decisions concerning the care and custody of her children. Snyder v. Spaulding, 2010 MT
151, ¶ 19, 357 Mont. 34, 235 P.3d 578. However, everyone in this family has experienced
a tragic loss. We clarify that this decision does not make one party the winner and one
5 party the loser. We encourage all parties involved to focus on the children and work to
provide a visitation regimen that is in the best interest of the children.
¶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. In the opinion of the
Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review.
¶13 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ MICHAEL E WHEAT /S/ JAMES JEREMIAH SHEA /S/ DIRK M. SANDEFUR /S/ JIM RICE