Montana Family Law Blog

ANALYSIS

2005-06-27T14:33:00.000-07:00

ANALYSIS

COMMON LAW MARRIAGE

2005 MT 145 In Re Adoption of CWD and CDD

2005-06-18T17:23:00.000-07:00

No. 04-388

IN THE SUPREME COURT OF THE STATE OF MONTANA

2005 MT 145

IN RE THE ADOPTION OF C.W.D.
and C.D.D., Minors,

D.J.R.,

Petitioner and Respondent.

v.

P.K.D.,
Respondent and Appellant,

APPEAL FROM: District Court of the Fifth Judicial District,
In and For the County of Jefferson, Cause No. DA-03-0089
Honorable Loren Tucker, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

P.K.D., pro se, Helena, Montana

For Respondent:

Brad L. Belke, Attorney at Law, Butte, Montana

Submitted on Briefs: May 24, 2005

Decided: June 7, 2005

Filed:

__________________________________________
Clerk

Chief Justice Karla M. Gray delivered the Opinion of the Court.

1 P.K.D. appeals from the order of the Fifth Judicial District Court, Jefferson County, granting D.J.R.’s petition to terminate P.K.D.’s parental rights to his children, C.W.D. and C.D.D. We affirm.
2 The issue on appeal is whether the District Court erred in granting the petition to terminate P.K.D.’s parental rights.
BACKGROUND
3 P.K.D. and E.D.R. were married in August of 1996, and had two children together, C.W.D. and C.D.D. The marriage was dissolved by order of the Second Judicial District Court, Silver Bow County, on July 27, 2001. In its dissolution order, the Second Judicial District Court reserved its determination regarding a final parenting plan and child support matters pending receipt of a report from the guardian ad litem involved in the case and ordered that the interim parenting plan would remain in effect in the meantime. It appears that the interim parenting plan designated E.D.R. as the children’s primary residential custodian, but did not provide for payment of any child support by either party. No further action was taken in the dissolution proceeding and, as a result, the Second Judicial District Court has never entered an order requiring either P.K.D. or E.D.R. to pay child support.

4 Shortly after entry of the dissolution order, E.D.R. entered into a common-law marriage with D.J.R. The marriage subsequently was solemnized in June of 2003. On April 4, 2003, D.J.R. petitioned to adopt C.W.D. and C.D.D. The petition alleged that D.J.R. was the children’s stepfather and that their mother, E.D.R., had filed a written consent to the adoption. The petition also alleged that P.K.D. did not consent to the adoption, but that his parental rights should be terminated for failure to provide support for the children. In conjunction with the adoption petition, D.J.R. also petitioned the District Court to terminate P.K.D.’s parental rights to the children pursuant to § 42-2-608(1)(c), MCA, based on the allegation that P.K.D. was unfit to parent in that, although able to do so, he had failed to contribute to the children’s support for an aggregate period of one year prior to the filing of the termination petition. P.K.D. responded to both petitions, denying the allegations that he was able, and had failed, to provide support for the children and generally denying the allegations of the adoption petition.
5 The District Court held a hearing on the petition to terminate on March 31, 2004, following which it entered its findings of fact, conclusions of law and order terminating P.K.D.’s parental rights to C.W.D. and C.D.D. P.K.D. appeals from the District Court’s order terminating his parental rights.
STANDARD OF REVIEW

6 In reviewing a district court’s termination of parental rights pursuant to § 42-2-608, MCA, we review the court’s findings of fact to determine whether they are clearly erroneous and its conclusions of law to determine whether they are correct. In re Adoption of C.R.N., 1999 MT 92, 7, 294 Mont. 202, 7, 979 P.2d 210, 7. The termination of parental rights involves a fundamental liberty interest and, consequently, an order purporting to terminate parental rights must be supported by clear and convincing evidence. Adoption of C.R.N., 7.
DISCUSSION
7 Did the District Court err in granting the petition to terminate P.K.D.’s parental rights?
8 Generally, a child may not be adopted without the written consents of both birth parents. See § 42-2-301, MCA. However, written consent to adoption is not required from a parent whose parental rights have been judicially terminated. Section 42-2-302(1), MCA. Parental rights to a child may be judicially terminated by a variety of means, including the granting of a petition for termination based on a court’s determination that the parent is unfit. Sections 42-2-607(2) and -608, MCA.
9 Here, D.J.R. asserted in the District Court that P.K.D.’s parental rights to the children should be terminated for unfitness and, if P.K.D.’s parental rights were terminated, his consent to the adoption was not required. D.J.R. based his allegation that P.K.D. was unfit on § 42-2-608(1)(c), MCA, which authorizes a district court to terminate a person’s parental rights for purposes of making a child available for adoption if “it is proven to the satisfaction of the court that the parent, if able, has not contributed to the support of the child for an aggregate period of 1 year before the filing of a petition for adoption.” D.J.R. asserted that, although P.K.D. was able to do so, he had not contributed to the support of his children at all between the time of the dissolution of his marriage to E.D.R. in July of 2001, and the filing of the petition for adoption approximately 21 months later.

10 In its order terminating P.K.D.’s parental rights, the District Court found that, from April 1, 2000, through April 4, 2003, P.K.D. provided no support for his children except during a brief period in which he provided in-kind support contributions by providing food and shelter when the children visited him on several occasions. These visits ceased more than one year before the adoption petition was filed. The court further found that the only payments P.K.D. made for support, medical bills and medical insurance for the children occurred after the adoption petition was filed on April 4, 2003. Additionally, the court found that P.K.D. has been employed full-time by the United States government since July 1, 2002, and had been employed on a part-time basis prior to that date while he was attending school. Based on these findings, the District Court concluded that P.K.D. was able to support his children for an aggregate period in excess of one year immediately preceding the date on which the adoption petition was filed, but failed to do so. Consequently, the court further concluded that, pursuant to § 42-2-608(1)(c), MCA, P.K.D. was unfit to be a parent. Therefore, the court ordered the termination of P.K.D.’s parental rights to his children. P.K.D. asserts that the District Court’s conclusion that he was able to provide support for his children is erroneous.

11 P.K.D. does not dispute that he failed to provide support for his children for an aggregate period of one year prior to the filing of the adoption petition on April 4, 2003. Nor does he dispute that, during the nine-month period between July 1, 2002, and April 4, 2003, he was employed full-time and had the ability to provide support for his children. He asserts, however, that D.J.R. failed to establish by clear and convincing evidence that he was able to provide support during any period prior to July 1, 2002, and, therefore, failed to establish his inability to provide support for an aggregate one-year period as required by § 42-2-608(1)(c), MCA. P.K.D. contends that, prior to July 1, 2002, he was a full-time college student and did not have sufficient funds to be “able” to provide support for his children.
12 We focus, therefore, on whether the record contains evidence that P.K.D. failed to provide support for the children although able to do so during any three months prior to July of 2002, to establish the aggregate one-year period required by § 42-2-608(1)(c), MCA. In that regard, P.K.D. testified that, in the year prior to July of 2002, he had been a full-time college student and, while attending school, he received loans and grant money which paid for his housing, food and school costs. P.K.D. also testified, however, that between March of 2001 and April of 2002, while attending college, he worked part-time for the Montana Bureau of Mines and Geology. This earned money was over and above the grants and loans which paid for his housing, food and school costs. P.K.D. testified that he did not use any of the money earned from his part-time employment to pay support for his children.

13 We have held that, in determining whether a parent was able to contribute to the support of a child, a district court must consider various factors including the parent’s ability to earn income, the parent’s willingness to earn an income and support the child, the availability of employment and the parent’s use of funds to provide himself only with the bare necessities before contributing to the support of the child. Adoption of C.R.N., 15. P.K.D.’s testimony regarding his part-time employment while attending college establishes that he had the ability and willingness to earn income and that employment was available. His testimony also establishes, however, that he was unwilling to use that income to support his children. His grants and loans provided him with the bare necessities of housing and food, in addition to paying the costs of his education. He did not use the additional monies from his part-time employment to contribute toward the support of his children.
14 We conclude that the District Court’s determination that P.K.D. was able to provide support for his children during an aggregate one-year period prior to the filing of the petition for adoption is correct. As a result, we further conclude that the District Court correctly determined that P.K.D. was unfit to parent pursuant to § 42-2-608(1)(c), MCA, because he failed to contribute to the support of his children for an aggregate period of one year before the filing of the petition for adoption although he had the ability to do so. We hold, therefore, that the District Court did not err in granting the petition to terminate P.K.D.’s parental rights.
15 Affirmed.
/S/ KARLA M. GRAY

We concur:

/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ BRIAN MORRIS
/S/ JIM RICE

2005 MT 145 ANALYSIS

2005-06-18T17:22:00.000-07:00

2005 MT 145 In Re Adoption of CWD and CDD
1. Natural parents were married then divorced. District Court adopted only an interim parenting plan at the time of the divorce. No order was ever entered requiring either parent to pay child support, although the mother was the primary caretaker of the child under the interim plan.
2. Divorce final in 2001. Almost immediately, mom enters common law marriage with another man.
3. Mom and stepdad petition for adoption by stepdad and termination of natural dad’s parental rights. Then a month later mom and stepdad solemnize their marriage
4. District Court found the natural dad unfit because he had failed to pay child support for an aggregate of one year. The Supreme Court affirmed.
5. The Supreme Court, citing In re Adoption of C.R.N., 1999 MT 92, 294 Mont. 202, 979 P.2d 210, stated that, “The termination of parental rights involves a fundamental liberty interest and, consequently, an order purporting to terminate parental rights must be supported by clear and convincing evidence.”
6. Dad had a job for part of the time and before that he was a student with GRANTS AND LOANS plus a part time job. Thus he had the ability to support his children.
7. The standard in determining whether dad had the ability to support the children is based on him having the ability to pay for his own support only to the extent of the bare necessities. Here even while dad was going to school, his loans and grants provided those bare necessities. The part time job was extra income that could have been used to support the children.

2005 MT 68 IN RE PARENTING OF DAH

2005-06-09T12:25:00.000-07:00

No. 04-487

IN THE SUPREME COURT OF THE STATE OF MONTANA

2005 MT 68

IN RE THE PARENTING OF D.A.H. and G.M.H.,
Minor Children

F.H. and W.H.,

Petitioners and Appellants,

v.

C.P.H.,

Respondent and Respondent.

APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark, Cause No. ADR 2004-43
The Honorable Dorothy McCarter, Judge presiding.

COUNSEL OF RECORD:

For Appellants:

Miriam G. Luse, Attorney at Law, Helena, Montana

For Respondent:

Joan Hunter, Attorney at Law, Helena, Montana

Submitted on Briefs: February 23, 2005

Decided: March 22, 2005

Filed:

__________________________________________
Clerk

Justice Patricia O. Cotter delivered the Opinion of the Court.

1 F.H. and W.H., the maternal grandparents of D.A.H. (D.H.) and G.M.H. (G.H.), appeal the First Judicial District Court’s dismissal of their action for want of jurisdiction. We affirm.
ISSUE
2 The dispositive issue before this Court is whether the grandparents have standing to bring this action.
FACTUAL AND PROCEDURAL BACKGROUND
3 S.H. and C.P.H. (C.H.) are the biological parents of D.H. and G.H. In May 2003, the family moved from Washington to Maine. On August 18, 2003, C.H. assaulted S.H., who required a short hospital stay for her injuries. Upon release from the hospital, S.H. sought a temporary protective order which was issued by a Maine court on August 20, 2003. On the following day, S.H. fled with her children to Oregon where her parents, F.H. and W.H., lived. She and the children have resided with her parents since that time.

4 On August 29, 2003, C.H. filed for divorce in Maine. S.H. was served with the divorce papers and answered the complaint. On September 9, 2003, S.H. applied to an Oregon court for a protective order. On November 7, 2003, the Maine court assumed jurisdiction and a temporary Order was entered by the court granting custody to C.H. On November 20, 2003, the children, their mother and their grandparents moved from Oregon to Helena, Montana, where the children started intensive therapy for post-traumatic stress disorder. Also, D.H., who was six years old at the time, started public school for the first time.
5 On January 8, 2004, the Maine court ordered S.H. to return the children to Maine on or before February 15, 2004. On February 6, 2004, the grandparents filed an emergency ex parte motion under § 40-7-204, MCA, in the First Judicial District Court of Montana, requesting that the District Court issue an order blocking the Maine Order to return the children. On March 8, 2004, the Montana District Court entered a jurisdictional order accepting jurisdiction of the children. Subsequently, in accordance with § 40-7-204(4), MCA, of the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), the Montana District Court communicated with the Maine court. As a result of this communication, the District Court entered an order declining jurisdiction, dismissing the case and remanding the matter to the Maine court. The grandparents filed a timely appeal.
STANDARD OF REVIEW
6 We review a district court’s decision to decline jurisdiction for an abuse of discretion. Riley v. Amundsen (In re Custody of N.G.H.), 2004 MT 162, 12, 322 Mont. 20, 12, 92 P.3d 1215, 12 (citing In re Marriage of Fontenot, 2003 MT 242, 11, 317 Mont. 298, 11, 77 P.3d 206, 11).
DISCUSSION

7 As a general rule, we decline to address on appeal an issue not raised by the parties before the District Court. See Armstrong v. State, 1999 MT 261, 4, 296 Mont. 361, 4, 989 P.2d 364, 4; Mortgage Source, Inc. v. Strong, 2003 MT 205, 14 , 317 Mont. 37, 14, 75 P.3d 304, 14. Questions of standing, however, are an exception to that rule. Standing is a threshold requirement of every case and may be raised by this Court sua sponte or, as in this case, by the parties in their appeal briefs. Armstrong, 4.

8 Standing is a person’s right to make a legal claim or seek judicial enforcement of a duty or right. Black’s Law Dictionary, Seventh Edition. Standing is closely linked to a court’s jurisdiction--a court that would otherwise have jurisdiction to hear and decide a matter will not have jurisdiction if a person without standing attempts to bring the action. See Edwards v. Burke, 2004 MT 350, 324 Mont. 358, 102 P.3d 1271. Moreover, because Montana law recognizes the importance of the rights involved in the natural parent-child relationship, the legislature has enacted a variety of statutory schemes pertaining to custody of children and the manner in which a third party, non-parent, may intercede in the parent-child relationship. Girard v. Williams, 1998 MT 231, 17, 291 Mont. 49, 17, 966 P.2d 1155, 17. See Title 41, Chapter 3, MCA (termination of parental rights for abuse and neglect); Title 40, Chapter 6, MCA (the Uniform Parentage Act); and Title 40, Chapter 4, MCA (the Uniform Marriage and Divorce Act)(UMDA). We stated in Girard that when determining whether a non-parent has standing to intervene and petition for custody, we must first determine whether the underlying proceeding is a custody action or some other type of parental rights action. Girard, 27. In the case before us, W.H. and F.H. sought emergency relief under the UCCJEA, claiming that custody of D.H. and G.H. should remain with their family in Montana. Therefore, this is a custody proceeding and, in accordance with Girard, non-parent standing will be determined under the UMDA. Girard, 31.
9 Section 40-4-211, MCA, defines a court’s jurisdictional authority for child custody or parenting proceedings under the UMDA. Section 40-4-211(4)(a) and (b), MCA, identify those persons who may commence parenting proceedings. In addition to allowing a parent to do so, § 40-4-211(4)(b), MCA, allows a parenting plan proceeding to be commenced in district court “by a person other than a parent if the person has established a child-parent relationship with the child, by filing a petition for parenting in the county in which the child resides or is found.”
10 F.H. and W.H. argue that they have developed the necessary “child-parent relationship” with D.H. and G.H. They cite the definition for “child-parent relationship” found in § 40-4-211(6), MCA, and provide numerous examples to prove that such a relationship existed. What they have not done, however, is satisfy the statutory predicate which requires the filing of a petition for parenting in the county in which the child is found, followed by the notice to all interested parties, court-ordered investigation, and hearings contemplated by § 40-4-211, et. seq., MCA. It is undisputed that the grandparents have not filed such a petition.

11 The petition filed before the District Court in this matter sought to keep the children with the grandparents by invoking the District Court’s emergency jurisdiction under § 40-7-204(4), MCA. However, the grandparents sought more than temporary emergency jurisdiction; they also sought--and claim on appeal that the court erred in denying--a custody determination. The UCCJEA is not intended to be a vehicle whereby persons with no legal right to custody may sidestep the statutory pre-requisites to obtaining parental rights. Here, no petition for the establishment of parenting rights has been filed, nor has either biological parent voluntarily relinquished custody to the grandparents or had their parental rights terminated. Thus, the grandparents cannot make the predicate showing that they are entitled to custody of these children in the first instance. We therefore conclude that they do not have standing to gain custody of the children under the UCCJEA.
12 The dissent maintains that we have disregarded the best interests of the children in reaching our decision. We have not. We agree there is evidence to suggest that the father may not be the best of custodians for the children; such factors make decisions like this very difficult to make. However, the fact remains that a party claiming entitlement to custody must comply with the procedural requisites noted above. If, as the Dissent argues, the best interests of the children were the sole factor deserving consideration, then any person asserting the best interests of the children would arguably have standing to gain their custody, notwithstanding the fact that legal custody of such children rested with a stranger to the proceeding.

13 It is not this Court that placed this case in the posture we now find ourselves facing. While it appears the mother did file a petition to intervene in the proceedings two months after the grandparents commenced these proceedings, she did so in support of their petition, and not as a parent asserting her own custodial rights. Moreover, there is no question that the grandparents are seeking not just emergency protection, but outright legal custody of the children. Under such circumstances, we cannot simply ignore the statutory requirement that the person asserting custodial rights first demonstrate a right to custody under the law. We do not rejoice in the decision we make here; however, it is not our office to render the custody statutes passed by the legislature superfluous.
14 Based upon the foregoing, we conclude that F.H. and W.H. do not have standing to bring this emergency custody determination. Therefore, although the District Court declined jurisdiction for reasons other than those stated here, we conclude the court reached the correct decision. As we have frequently stated, we will affirm district court decisions which reach the right result, regardless of the court’s reasoning. Phillips v. City of Billings (1988), 233 Mont. 249, 252, 758 P.2d 772, 774.
CONCLUSION
15 For the foregoing reasons, we affirm the District Court.

/S/ PATRICIA O. COTTER

We Concur:

/S/ KARLA M. GRAY
/S/ JIM RICE
/S/ JAMES C. NELSON

Justice Brian Morris dissents.

16 In its rush to elevate the form of § 40-4-211(4)(b), MCA, requiring a non-parent to file a petition establishing a “child-parent relationship,” over the intent of the Uniform Marriage and Divorce Act, the Court loses sight of the primary purpose of custody determination proceedings under Title 40, Chapter 4, part 2–to further and protect the best interests of the child. The Court’s decision also wrongly imputes to the grandparents deceptive designs regarding the temporary emergency jurisdiction of the court under Title 40, Chapter 7, part 2 and the custody of the children where the record contains no evidence of any such intention.
17 The Court dismisses the grandparents’ appeal for lack of standing. The Court bases its decision on the grandparents’ failure to satisfy the statutory predicate requiring the filing of a petition for parenting establishing their “child-parent relationship” with the children. The majority ignores, however, evidence presented to the District Court that the grandparents had fulfilled the “child-parent relationship” requirements and relies instead on the absence of a petition establishing the same.

18 Under § 40-4-211(4)(b), MCA, a parenting plan proceeding may be commenced in district court “by a person other than a parent if the person has established a child-parent relationship with the child, by filing a petition for parenting in the county in which the child resides or is found.” A “child-parent relationship” under § 40-4-211(6), MCA, requires that a person provide for the physical needs of a child by supplying food, shelter, and clothing as well as the necessary care, education and discipline that continues on a day-to-day basis through interaction and companionship that fulfill the child’s psychological needs. Section 40-4-211(6), MCA. A court determines the best interests of a child by considering, inter alia, the wishes of the child and his or her parents, the child’s adjustment to home, school and community, the mental and physical health of all individuals involved and the physical abuse or threat of physical abuse by one parent against the other parent or the child. Section 40-4-212, MCA.
19 The record indicates that the grandparents had developed a “child-parent relationship” with the children. In addition to housing and feeding the children on a day-to-day basis, they have enrolled the boys, ages 5 and 6, in intensive psychological therapy to combat their post-traumatic stress disorder and depression resulting from the physical and emotional abuse they suffered at their father’s hands. The grandparents also discipline and care for the children after their frequent and violent outbursts, often manifested through inappropriate sexual activity and masturbation and aggressive behavior towards adults and each other. It is no stretch to say that the grandparents provide not only the primary care for these children, but in their “child-parent relationship,” also foster loving concern for the children’s best interests. To deny the grandparents care of the children for failure to produce a petition establishing a “child-parent relationship” disregards the statutory intent of furthering and protecting the best interests of the children.

20 The Court also imputes misleading intentions to the grandparents’ appeal for temporary emergency jurisdiction where none exist. The Court believes the grandparents, in invoking the District Court’s temporary emergency jurisdiction, actually sought a custody determination. The Court concludes that the grandparents’ failure to file a petition establishing their “child-parent relationship” with the children prevents them from seeking a custody determination. The fact that the mother filed a petition to intervene as a party in support of the grandparents on April 14, 2004, should have alleviated the Court’s fear that the grandparents were seeking an end run around the normal custody proceedings. The District Court dismissed the grandparents’ petition on May 3, 2004, however, without ever ruling on the mother’s attempt to intervene. Nevertheless, the Court ignores the jurisdictional statutes under Title 40, Section 7, part 2, that provide a district court temporary emergency jurisdiction in particular circumstances.
21 Under § 40-7-204(1), MCA, a district court possesses temporary emergency jurisdiction if the child is present in the state or it is necessary in an emergency to protect the child from abuse. In this instance, the record indicates that the father had emotionally and physically abused both the children and their mother during their three-month stay in Maine. The mother’s injuries were so severe that she remained hospitalized for three days after one attack and obtained a protective order against the father. The Court downplays the severity of the mother’s injuries when it refers to her “short hospital stay.” 3. In fact, the mother spent three of her 108 days in Maine in the hospital.

22 The children not only witnessed their father’s violent attacks against their mother, but also continued to suffer the effects of his violence towards them, as exhibited through their post-traumatic stress disorders and aggressive and abusive behavior. Moreover, the children’s therapist concluded from the children’s admissions concerning their father and his abusive nature that it would be very detrimental for the children to return to Maine given the anxiety and depression they exhibit.
23 Similarly, under § 40-7-201(a) and (b), MCA, the children failed to live in any one state pertinent to the proceedings for more than six months prior to the filing so the District Court had jurisdiction to make an initial child custody determination. The children stayed in Maine only for three months before their father’s violence forced their mother to flee with them to their grandparents. The family actually stayed at the house of another women and her two children during their 108 days in Maine. The father, himself, could not satisfy Maine’s own 6-month residency requirement when he filed for divorce from the mother on August 29, 2003. Title 19A Me. Rev. Stat. Ann. § 901(a) (2004). At that point, he had resided in Maine for fewer than four months.
24 Further, considerable doubt surrounds the validity of the Maine court’s decision of November 7, 2003, to assume jurisdiction and make an initial child custody determination considering the children’s brief stay in Maine and their abrupt departure on August 20, 2003. Title 19A Me. Rev. Stat. Ann. § 1745 (2004). By contrast, substantial evidence regarding the children’s care, protection, training and personal relationships remains within Montana, including their mother, grandparents, therapists and school teachers, rather than in Maine, where the children spent three months of their young lives. Section 40-7-201(b)(ii), MCA. As such, any jurisdictional determination should have considered the children’s welfare and their continuing improvements in the community.

25 The Court disregards the best interests of the children when it requires the grandparents to file a petition evidencing a “child-parent relationship” before proceeding to the merits of the case. The mother sought to intervene in this same proceeding before the District Court dismissed the case and she surely had standing to bring the petition. See Section 40-4-211(4)(a), MCA, and § 40-7-204(1), MCA.
26 In all matters involving minor children, we have consistently held that the primary guide remains the best interests of the minor child. Firman v. Firman (1980), 187 Mont. 465, 468, 610 P.2d 178, 180. The Court’s opinion effectively abandons that principle. This outcome seems particularly jarring in light of our admonition to district courts “to give priority to the safety of victims of domestic violence when considering jurisdictional issues under the UCCJEA.” In re Marriage of Stoneman, 2003 MT 25, 26, 314 Mont. 139, 26, 64 P.3d 997, 26.
27 I respectfully dissent.

/S/ BRIAN MORRIS

2005 MT 57 MARRIAGE OF OLSON

2005-06-09T12:22:00.000-07:00

No. 03-684

IN THE SUPREME COURT OF THE STATE OF MONTANA

2005 MT 57

IN RE THE MARRIAGE OF

THOMAS C. OLSON,

Petitioner and Appellant,

and

SYDNEY OLSON,

Respondent, Respondent and Cross-Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DR 2002-1118,
Honorable G. Todd Baugh, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

William J. O’Connor II, O’Connor and O’Connor, Billings, Montana

For Respondent:

Calvin J. Stacey, Stacey & Funyak, Billings, Montana

Submitted on Briefs: May 19, 2004

Decided: March 8, 2005

Filed:

__________________________________________
Clerk

Justice Jim Rice delivered the Opinion of the Court.

1 Thomas C. Olson (Thomas) appeals from the order entered by the Thirteenth Judicial District Court, Yellowstone County, denying his motion to modify the maintenance agreement entered pursuant to the dissolution of the marriage with his former wife, Sydney Olson (Sydney). We affirm.
2 We address the following issues on appeal:
3 Did the District Court abuse its discretion in concluding that Thomas failed to meet his burden of establishing that the original maintenance agreement was unconscionable?
4 Did the District Court err in failing to hold a hearing and consider appropriate factors in awarding Sydney attorney fees?
FACTUAL AND PROCEDURAL BACKGROUND
5 Thomas and Sydney were married in 1964 and subsequently divorced in 1988. Upon dissolution of their marriage, they entered into a Property Settlement Agreement (Agreement) which included a maintenance provision stating as follows:
Beginning December 5, 1988, [Thomas] shall pay as maintenance to [Sydney] the sum of $2,500.00 per month for a period of four years and six months . . . . Thereafter, he shall pay to [Sydney] the sum of $2,000.00 per month for an additional period of four years and six months . . . . These payments shall terminate absolutely on the death, marriage or cohabitation of [Sydney], but shall be a liability of [Thomas’s] estate in the event of his death. Following the final payment of $2,000.00 per month, required above, [Thomas] shall thereafter pay maintenance of $1,500.00 per month . . . until the earliest occurrence of [Sydney’s] marriage, cohabitation or death, or [Thomas’s] death.

When [Thomas] reaches age 65 the amount of maintenance payable to [Sydney], if any, shall be redetermined in light of the investment and other income of each party . . . .

Prior to signing the agreement, the parties crossed out the word “cohabitation” in both places where it occurs in this provision and initialed these changes, thus eliminating cohabitation as an event which would immediately terminate the maintenance payments. The agreement was then approved in that form by the District Court on November 23, 1988.
6 In 1993, Sydney began to cohabit with Jack Lamb (Jack) and has continuously cohabited with him since that time.
7 On October 18, 2002, Thomas filed a motion to modify maintenance, requesting that the District Court terminate his monthly payment obligation because Sydney’s financial circumstances changed for the better, and because her relationship with Jack was essentially “like a marriage in every way other than the legal solemnization of signing a marriage license.”
8 On September 4, 2003, the District Court issued its order denying Thomas’s motion for modification and awarding $750.00 to Sydney for attorney fees and costs incurred. Judgment was entered on September 23, 2003. Thereafter, Thomas filed an appeal therefrom, and Sydney filed a cross-appeal, contending that the District Court should have awarded her a larger sum to cover her attorney fees and expenses.
STANDARD OF REVIEW

9 We apply a clearly erroneous standard in reviewing a district court’s findings of fact regarding maintenance modification. In re Marriage of Schmieding, 2003 MT 246, 14, 317 Mont. 320, 14, 77 P.3d 216, 14. Findings are clearly erroneous if they are not supported by substantial evidence, if the district court misapprehends the effect of the evidence, or if our review of the record convinces us a mistake has been committed. In re Marriage of Brown (1997), 283 Mont. 269, 272, 940 P.2d 122, 124. We review a district court’s conclusions of law to determine whether they are correct. In re Marriage of Bartsch, 2004 MT 99, 13, 321 Mont. 28, 13, 88 P.3d 1263, 13.
10 We review a district court’s determinations regarding substantial and continuing changed circumstances and unconscionability for an abuse of discretion. Schmieding, 14. The test for an abuse of discretion is whether the trial judge acted arbitrarily, without employment of conscientious judgment, or has exceeded the bounds of reason resulting in substantial injustice. Schmieding, 14.
DISCUSSION
11 Did the District Court abuse its discretion in concluding that Thomas failed to meet his burden of establishing that the original maintenance agreement was unconscionable?

12 The Montana Legislature has set forth the standards for modification of maintenance agreements in § 40-4-208, MCA, which provides in pertinent part:
(2) (a) Except as provided in 40-4-251 through 40-4-258, whenever the decree proposed for modification does not contain provisions relating to maintenance or support, modification under subsection (1) may only be made within 2 years of the date of the decree.
(b) Except as provided in 40-4-251 through 40-4-258, whenever the decree proposed for modification contains provisions relating to maintenance or support, modification under subsection (1) may only be made:
(i) upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable; [or]
(ii) upon written consent of the parties[.]

(Emphasis added.) Section 40-4-208, MCA, does not define the term “unconscionable,” and we have declined to create a definition. Brown, 283 Mont. at 272, 940 P.2d at 123. Instead, our interpretation of unconscionability is made subject to the underlying facts on a case-by-case basis. Schmieding, 36.
13 Thomas argues that it is unconscionable to continue the allowance of maintenance payments to Sydney because: (1) she is able to meet her own financial needs and to support herself; (2) Sydney has a bachelor’s degree and therefore has the ability to be employed; (3) Sydney cohabits with Jack who pays the mortgage on the home and makes all other substantial household payments; (4) Sydney owns extensive investment properties; (5) upon Jack’s death, Sydney will inherit the home in which they currently cohabit; and (6) for all “practical purposes,” Sydney has entered into a de facto marriage with Jack. In sum, Thomas contends that Sydney has been living a lifestyle of leisure, is essentially “married” to Jack, and that maintenance is therefore no longer necessary due to these changed circumstances. Thomas urges this Court to apply its equitable powers to “do justice” and terminate the maintenance payments.

14 Sydney responds by arguing that Thomas failed to introduce evidence to show a substantial change in circumstances so as to make the terms of the maintenance agreement unconscionable. Sydney contends that her circumstances have essentially remained the same for several years, with the exception that she is now sixty-years old, and it would therefore be more difficult for her to obtain employment. Sydney notes that she is not remarried and is spending all of the maintenance received on the “necessities of life.” Sydney argues that, contrary to Thomas’s arguments, it is Thomas’s situation that recently changed when he voluntarily decided to “slow down at work” in preparation for retirement so that he could “enjoy life.” However, Sydney argues that none of these circumstances justify a modification of the maintenance award since Thomas is in good health and could return to work on a full-time basis.
15 It is undisputed that the parties voluntarily entered into the Agreement in 1988. The parties specifically considered and deleted the cohabitation provision from the Agreement. Additionally, the parties agreed that maintenance would continue until Thomas reached the age of sixty-five, at which time the District Court would re-evaluate the maintenance provisions. Hence, cohabitation, by itself, may not be asserted as an event terminating maintenance in this case. Therefore, Thomas’s de facto marriage argument fails because it is uncontested that neither a marriage license nor a marriage relationship exists. Sydney’s relationship with Jack thus does not trigger maintenance modification pursuant to the Agreement. Furthermore, we agree with the District Court’s conclusion that Thomas’s voluntary retirement is not a valid reason to discontinue maintenance payments, and, therefore, we conclude that the District Court did not abuse its discretion when it determined that the changes in circumstances here did not render the terms of the original maintenance agreement unconscionable.

16 Thomas next contends that the District Court erred in disallowing the use of parol evidence to explain and clarify the intention of the parties in entering the agreement. Thomas argues that the crossed-out provisions regarding cohabitation make the agreement ambiguous. Thomas takes issue with the District Court’s finding that “Dr. Olson and Ms. Olson, specifically by interlineation in their agreement, considered and deleted cohabitation as a basis for termination of maintenance.” Thomas argues that there was nothing clear about it, nor were the notations interlineations. Thomas explains the markings were “merely an initialed crossing through the word ‘cohabitation’ in two places.” Thomas also claims that parol evidence should be used to show that the marital estate was to be distributed equally, and that the court has the responsibility to “do right” in equity with regards to the maintenance issue.
17 The parol evidence rule precludes the admission of extrinsic evidence of an unambiguous integrated writing in any situation involving parties to the instrument when the rights and duties created by the document are the dispositive issue. Habets v. Swanson, 2000 MT 367, 24, 303 Mont. 410, 24, 16 P.3d 1035, 24. We interpret the intent of parties to a contract from only the contract when the terms are unambiguous. Tvedt v. Farmers Ins. Group of Cos., 2004 MT 125, 24, 321 Mont. 263, 24, 91 P.3d 1, 24.
18 We conclude that the maintenance provisions at issue are clear and that the provisions crossed-out and initialed by the parties are likewise unambiguous. Based upon the plain meaning of the provisions for terminating maintenance, and consistent with our reasoning aforementioned, we conclude that extrinsic evidence may not be used to explain the intention of the parties, that the agreement provisions for terminating maintenance have not been triggered under the facts of this case, and that the District Court did not err in concluding that the circumstances did not warrant a modification of the agreement.
19 Did the District Court err in failing to hold a hearing and consider appropriate factors in awarding Sydney attorney fees?

20 Sydney argues that the District Court erred by not holding a hearing and considering all of the factors outlined in Swenson v. Janke (1995), 274 Mont. 354, 908 P.2d 678, in determining attorney fees. Sydney contends the District Court improperly “set a cap” for attorney fees at $750.00 without hearing evidence as to the amount of attorney fees incurred in the defense of this matter. Thomas responds to Sydney’s cross-appeal by moving that it be dismissed for her failure to timely file her brief. However, we deny that request.
21 This Court will not disturb a district court’s determination as to attorney fees absent an abuse of discretion. In re Marriage of Swanson, 2004 MT 124, 13, 321 Mont. 250, 13, 90 P.3d 418, 13. Although we have held that a district court may consider the Swenson factors when awarding fees in a dissolution proceeding pursuant to contract–that is, pursuant to a settlement agreement, see In re Marriage of Mease, 2004 MT 59, 58, 320 Mont. 229, 58, 92 P.3d 1148, 58–no such contract provision was at issue here, and the District Court thus acted pursuant to § 40-4-110, MCA, which provides that a court may discretionarily order payment of fees after considering the resources of the parties. Further, the District Court’s order, after awarding fees to Sydney, added that “if a hearing on costs and attorney fees is necessary, please advise.” The record reveals no request for a hearing or for consideration of additional information in response to this order. Thus, we conclude that the District Court did not abuse its discretion by failing to hold a hearing or consider the Swenson factors.
22 Affirmed.
/S/ JIM RICE

We concur:

/S/ JAMES C. NELSON
/S/ PATRICIA O. COTTER
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART

2005 MT 39 IN RE CONSERVATORSHIP OF KLOSS

2005-06-09T12:21:00.000-07:00

No. 04-442

IN THE SUPREME COURT OF THE STATE OF MONTANA

2005 MT 39

IN RE THE CONSERVATORSHIP OF
ALICE P. KLOSS,

APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade, Cause No. CDP 2003-144,
The Honorable Kenneth R. Neill, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Joseph C. Engel, III, Attorney at Law, Great Falls, Montana

For Respondent:

Robert F. James, Cathy J. Lewis, Ugrin, Alexander, Zadick & Higgins, Great Falls, Montana

Submitted on Briefs: February 2, 2005

Decided: February 22, 2005
Filed:

__________________________________________
Clerk

Justice Brian Morris delivered the Opinion of the Court.
1 Alice Kloss (Kloss) appeals from an order of the Eighth Judicial District Court, Cascade County, denying her motion to dismiss a petition filed by a third-party seeking appointment of a conservator for her. We affirm.
2 We must decide whether Robert James (James), an attorney for an adverse party in a related case, has standing to petition for a conservatorship of Kloss pursuant to § 72-5-401, MCA.
BACKGROUND
3 Kloss is a 97 year old widow without any children or grandchildren. Until 1998, when Kloss fell and broke her legs, hip, and pelvis, forcing her move from her apartment to an assisted living facility in Great Falls, she had no living relatives in Montana. Kloss requested, due to her injuries, that Kenneth Parrent (Parrent), Kloss’s 71 year old nephew, move from Colorado to Great Falls, to assist in the care of Kloss’s affairs. Kloss executed an unlimited power of attorney for Parrent to manage her assets, worth approximately $963,500, and Parrent later became sole trustee of Kloss’s living trust.

4 Kloss filed suit against her brokerage firm, Edward Jones and its local manager, Paul Husted (Husted), alleging they tortiously caused her to execute a charitable remainder trust. Parrent retained Joseph Engel, III, (Engel) to prosecute the action and to represent both Kloss and Parrent’s interests. Our decision in Kloss v. Edward D. Jones & Co., 2002 MT 129, 310 Mont. 123, 54 P.3d 1, emerged from Kloss’s action, where we decided that Kloss had not waived her constitutional right to a jury trial by executing a brokerage service agreement that contained a mandatory arbitration provision. We held that the brokerage service agreement constituted a contract of adhesion and, therefore, the mandatory arbitration provision could not be enforced. Kloss v. Edward D. Jones & Co., 29, 32. The parties settled all claims in the underlying suit four months before James filed his petition for the appointment of a conservator in this matter.
5 James and Cathy Lewis (Lewis) represented Edward Jones and Husted in Kloss v. Edward D. Jones & Co. During the discovery process, James and Lewis learned that Kloss’s estate had been depleted of more than $800,000 under Parrent’s management, with over $400,000 being paid to Parrent and Engel for their services. James also learned that Parrent had previously petitioned the court to be appointed conservator of Kloss’s estate and that when Kloss’s other family members from Colorado and Washington were notified of Parrent’s petition, they wrote letters to the court expressing their objections to Parrent’s management of Kloss’s financial matters. Based on this information, James, in consultation with the other partners in his firm, sought appointment of a conservator for Kloss. James filed the petition separately and in a different court from the Kloss v. Edward D. Jones & Co. litigation, and his petition did not seek to have himself or any member of his firm appointed conservator.

6 Kloss objected on the grounds that James, as counsel for an adverse party, could not be considered “interested in [Mrs. Kloss’s] welfare” under § 72-5-401, MCA, and, therefore, lacked standing to petition for a conservatorship on her behalf. The District Court denied Kloss’s motion after holding a hearing on the petition where it heard testimony from Kloss, James, Parrent, a court-appointed visitor, Kloss’s new broker at Dain Rauscher, and an employee at the facility where Kloss lives. The District Court ordered appointment of a conservator to represent Kloss and to investigate “any potential claims that may be made against individuals who were involved with Mrs. Kloss and her affairs over the last several years.” Kloss appeals.
STANDARD OF REVIEW
7 We conduct plenary review of a district court’s conclusions of law to determine whether the court’s conclusions are correct as a matter of law. Williams v. Schwager, 2002 MT 107, 22, 309 Mont. 455, 22, 47 P.3d 839, 22 (citations omitted).
DISCUSSION

1 Under § 72-5-401, MCA, regarding the appointment of guardians or conservators, “any person who is interested in [the protected person’s] . . . welfare . . . may petition for the appointment of a conservator.” (Emphasis added). Kloss urges us to interpret “person who is interested in” under § 72-5-401, MCA, to be “interested person” under the more general definitions of the Uniform Probate Code. This interpretation, Kloss contends, limits those who may petition for a conservatorship to those who have a property right in or claim against the estate. See § 72-1-103(25), MCA, (defining “interested person” as including “heirs, devisees, children, spouses, creditors, beneficiaries, and any others having a property right in or a claim against a . . . protected person”); In re Estate of Miles v. Miles, 2000 MT 41, 46, 298 Mont. 312, 46, 994 P.2d 1139, 46 (holding that an “interested person,” in order to have standing, must have a property right in or claim against the estate); In re Estates of Esterbrook and Simmons, 2003 MT 317, 7, 318 Mont. 275, 7, 80 P.3d 419, 7 (interpreting “[a] person who is furnishing or supplying any money for support or care of a person for whom a conservator has been appointed is a person interested in the welfare of the protected person” under § 72-5-413(4), MCA, as an “interested person” under § 72-1-103(25), MCA).
2 We decline in this instance, however, to accept Kloss’s offer to change the language in § 72-5-401, MCA, from “any person who is interested” to “interested person.” Section 72-1-103, MCA, provides that the definition of “interested person” applies unless the context otherwise requires. Further, § 72-1-103(25), MCA, provides that, in addition to having a property right in or a claim against the protected person, the meaning of interested person, “may vary from time to time and must be determined according to the particular purposes of and matter involved in any proceeding.” We determine this matter to be one of those times.

3 The District Court found, and we agree, that the legislature broadly defined those who have standing to petition the court on behalf of another under § 72-5-401, MCA. When interpreting a statute, we seek to implement the objectives the legislature sought to achieve, and if the legislative intent can be determined from the plain language of the statute, the plain language controls. In re Co-Guardianship of D.A., JR., 2004 MT 302, 14, 323 Mont. 442, 14, 100 P.3d 650, 14. We further recognize that conservatorship proceedings exist to promote the best interests of the protected person. Estate of Bayers, 2001 MT 49, 14, 304 Mont. 296, 14, 21 P.3d 3, 14. The plain language of § 72-5-401, MCA, reads broadly enough to include those interested in the welfare of the protected person. James, under these facts, sought to protect Kloss from the continued rapid depletion of her estate; the depletion of which she had no knowledge according to her testimony at the hearing.
4 The District Court concluded that James’s representation of Kloss’s adversary in a separate action does not preclude him from acting in Kloss’s best interests. The court noted that a conservatorship proceeding, being similar to a guardianship proceeding, is not an adversarial matter. Bayers, 14. No error arises from the District Court’s analysis under the facts of this case. The record clearly shows that James developed an interest in Kloss’s welfare through the knowledge he gained by working on Kloss v. Edwards D. Jones & Co. James discovered facts that led him to believe that Parrent and Engel had depleted Kloss’s estate at an alarming rate and to Kloss’s detriment.
5 Kloss also has failed to demonstrate that James had a conflict of interest in petitioning for appointment of a conservator. James received no compensation for pursuing the conservatorship and nothing in the record suggests that James’s clients, Edward Jones and Husted, benefitted. The fact that James represented adverse interests in a related case does not, in and of itself, disqualify him from petitioning for a conservatorship under § 72-5-401, MCA. We agree with the District Court that James filed the petition to protect Kloss and not for any other or improper purpose.

6 Kloss further invites us to decide that James lacked standing because he has no personal stake in the outcome of the controversy. This argument closely mirrors her “interested person” argument. Kloss points out that we have held when distributing estates, a party does not have standing unless it possesses a personal stake in the outcome. See In re Estate of Goick (1996), 275 Mont. 13, 19, 909 P.2d 1165, 1169 (overruled on other grounds by Lockhead v. Weinstein, 2003 MT 360, 16, 319 Mont. 62, 16, 81 P.3d 1284, 16). We do not have in this instance, however, a matter where James must possess a personal stake. James has not requested the District Court to distribute an estate, but rather requested that Kloss and her estate be protected from further alleged exploitation.
7 Kloss also argues James’s petition constitutes a collateral attack on Kloss v. Edward D. Jones & Co. and was designed “to wear down and intimidate the elderly Mrs. Kloss . . . so she would not have the stomach or stamina for trial” in that matter. We again point out that James filed the petition seeking a conservator for Kloss four months after Kloss v. Edward D. Jones & Co. settled.

8 Kloss further contends that James’s petition contains “outrageous accusations against both her nephew and attorney.” According to the testimony and evidence presented at the hearing to dismiss the petition, however, the value of Kloss’s estate had suffered a precipitous decline under Parrent’s supervision with substantial sums paid to Parrent and Engel for their services. In fact, it appears that, under their watch, the value of Kloss’s estate declined by more than $800,000. Parrent is Kloss’s declared dependent, lives in Kloss’s house with his fiancé, and he testified at the hearing that he is entirely dependent on Kloss’s estate for his living expenses and income. Kloss, by contrast, testified that she was unaware that Parrent allegedly used her money for his own personal legal matters and may have transferred much of her estate into technology stocks, when her previous investments generally involved low-risk investments designed to provide her daily living expenses. As for Engel, he allegedly charged both an hourly fee and a contingency fee for the same work and received more than $200,000 in fees, although Kloss testified that she had paid Engel only several thousand dollars.
9 Finally, we note that the record shows that Parrent had argued that Kloss was competent to manage her financial affairs during the Kloss v. Edward D. Jones & Co. litigation and even obtained a doctor’s opinion to that effect. On the other hand, Parrent petitioned that he be appointed conservator of Kloss’s estate. Parrent must have believed that Kloss needed a conservator to protect her estate based upon her inability to manage her financial affairs. Although the court never held a hearing on Parrent’s petition, a number of Kloss’s relatives expressed grave concerns to the court about Parrent’s possible appointment. Now Parrent has expended more of Kloss’s money to pay Engel to oppose James’s petition to protect Kloss’s assets when Parrent earlier believed that she needed such protection, albeit with him serving as conservator.

10 Based on these allegations, and the fact that Kloss’s estate has been depleted by more than $800,000, we conclude James qualified as “interested” in Kloss’s welfare under § 72-5-401, MCA, and had standing, under these circumstances, to petition for a conservatorship for Kloss. The District Court concluded that Kloss needed a conservator to investigate “any potential claims that may be made against individuals who were involved with Mrs. Kloss and her affairs over the last several years.” This conservator will investigate whether James’s petition was designed to intimidate Kloss or whether his “outrageous accusations” regarding the conduct of Parrent and Engel withstand scrutiny.
11 We conclude, therefore, that the District Court correctly concluded that James had standing to petition for the appointment of a conservator for Kloss pursuant to § 72-5-401, MCA.

/S/ BRIAN MORRIS

We Concur:

/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ JIM RICE

2005 MT 24 MARRIAGE OF SCHOENTHAL

2005-06-07T16:16:00.000-07:00

No. 04-126

IN THE SUPREME COURT OF THE STATE OF MONTANA

2005 MT 24

IN RE THE MARRIAGE OF

SHANE WILLIAM SCHOENTHAL,

Petitioner and Appellant,

and

LEANN JEAN SCHOENTHAL,

Respondent and Respondent.

APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead, Cause No. DR 2000-589 A,
The Honorable Ted O. Lympus, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Paula M. Johnson-Gilchrist, Attorney at Law, Whitefish, Montana

For Respondent:

George B. Best, Attorney at Law, Kalispell, Montana

Submitted on Briefs: July 7, 2004

Decided: February 15, 2005
Filed:

__________________________________________
Clerk

Justice John Warner delivered the Opinion of the Court.
1 Shane Schoenthal (“Shane”) and LeAnn Siderius Schoenthal (“LeAnn”) were married July 4, 1995. The marriage produced one child. The District Court entered a decree of dissolution and distribution of the marital estate on September 19, 2003. Thereafter, Shane filed a Rule 59(g), M.R.Civ.P., motion to alter or amend judgment. The District Court denied this motion as untimely. Shane also filed a motion for relief from judgment under Rule 60, M.R.Civ.P., which was denied. Shane appeals the denial of his post-trial motions and challenges the District Court’s property distribution. We affirm the District Court in part, and reverse and remand for further proceedings.
2 Shane presents twelve issues on appeal. The first five issues address the denial of Shane’s Rule 59, M.R.Civ.P., motion to amend the decree because it was untimely; and the denial of his Rule 60, M.R.Civ.P., motion for relief from the decree. Then, Shane attempts to raise seven additional issues on appeal. These latter seven issues concern whether the District Court abused its discretion in distributing the marital estate. Because we affirm the District Court’s conclusion that Shane’s Rule 59 motion was untimely, the challenges to the District Court’s property distribution were not timely appealed and are not properly before this Court. Thus, they will not be addressed. We restate and address the issues before us as follows:
3 1. Did the District Court err in concluding Shane’s motion for post-trial relief under Rule 59 was untimely?

4 2. Did the District Court abuse its discretion in not granting Shane’s Rule 60(a), M.R.Civ.P., motion to correct clerical mistakes?
5 3. Did the District Court abuse its discretion in not granting Shane relief under Rule 60(b)(1) or 60(b)(6), M.R.Civ.P.?
FACTUAL AND PROCEDURAL BACKGROUND
6 Shane and LeAnn were married on July 4, 1995. One child was born of the marriage. The parties separated in February of 2000 and a Petition for Parenting Plan and Dissolution was filed in November of 2000.
7 On September 19, 2003, the District Court entered its findings of fact and conclusions of law dissolving the marriage, determining custody, setting child support, and distributing the marital estate. Notice of entry of judgment was filed and mailed to Shane’s counsel on September 26, 2003. On October 16, 2003, Shane, through counsel, filed a Rule 59, M.R.Civ.P., motion to reconsider, for a new trial, and to alter or amend judgment. LeAnn objected to the motion as untimely. On November 21, 2003, Shane replied to LeAnn’s objection that his Rule 59 motion was untimely, and included in such reply a motion under Rule 60, M.R.Civ.P., for relief from the September 19, 2003, decree. On December 9, 2003, the District Court entered its order denying Shane’s Rule 59 motion as untimely, and denying all relief under Rule 60, M.R.Civ.P. Shane appeals the District Court’s December 9, 2003, order.
8 Additional facts are set forth below as necessary.
STANDARD OF REVIEW

9 We review discretionary trial court rulings to determine whether a district court abused its discretion. Johnson v. Hamilton, 2003 MT 199, 9, 317 Mont. 24, 9, 75 P.3d 778, 9. “This standard may be applied to rulings on post-trial motions, which ‘encompa[ss] the power of choice among several courses of action, each of which is considered permissible.’” Johnson, 9 (citations omitted).
DISCUSSION
ISSUE 1
10 Did the District Court err in concluding Shane’s motion for post-trial relief under Rule 59 was untimely?
11 Rule 59(b) and 59(g), M.R.Civ.P., provide that motions for a new trial or to alter and amend a judgment must be served within ten days after service of the notice of entry of judgment. Concerning the time to file such motions we have held:
Rule 6(a), M.R.Civ.P., provides that when a rule calls for less than eleven days, Saturdays and Sundays are not counted. However, we held in DeTienne that Saturdays and Sundays would not be excluded from the initially added three days which are allowed for mailing and that these days would be counted prior to the counting of the prescribed period for serving a motion.

Dunkelberger v. Burlington Northern R. Co. (1994), 265 Mont. 243, 247, 876 P.2d 218, 220.

12 Notice of entry of judgment was entered and mailed on September 26, 2003. From this date Shane had ten days to file his Rule 59, M.R.Civ.P., motion. Pursuant to Rule 6(a), M.R.Civ.P., intermediate Saturdays, Sundays and holidays are excluded from the ten day computation. In this instance, Monday, October 13, 2003, was also excluded as under § 1-1-216, MCA, Columbus Day is a legal holiday. Further, because the notice of entry of judgment was mailed, Shane had an additional three days. Rule 6(e), M.R.Civ.P. Calculating the time in accordance with the above mentioned rules and DeTienne Assoc. Ltd. Partnership v. Montana Rail Link, Inc. (1993), 261 Mont. 238, 241-42, 862 P.2d 1106, 1108, Shane’s motion for a new trial or to alter or amend the judgment needed to be filed on or before October 14, 2003. Here, Shane filed his Rule 59 motion on October 16, 2003.
13 Although Shane urges this Court to overrule DeTienne, and conclude that his Rule 59(g) motion was timely, we decline to do so.
14 Under Rule 5(a)(1), M.R.App.P., notice of appeal must be filed within 30 days from the date of the entry of the judgment or order appealed from. Because Shane’s Rule 59, M.R.Civ.P., motion was untimely, it did not toll the time period for Shane to appeal the District Court’s decree of September 19, 2003. Rule 5(a)(4), M.R.App.P. The time to file an appeal concerning the matters decided in the September 19, 2003, decree expired and the decree became final, subject only to Shane’s motion for relief under the various provisions of Rule 60, M.R.Civ.P. A Rule 60, M.R.Civ.P., motion, however, may not be used as a substitute for appeal. Donovan v. Graff (1991), 248 Mont. 21, 25, 808 P.2d 491, 494; see also Lussy v. Dye (1985), 215 Mont. 91, 93, 695 P.2d 465, 466 (“The proper avenue for seeking redress from an allegedly erroneous decision, solely on the basis that it is erroneous, is the appeal process”).
ISSUE 2
15 Did the District Court abuse its discretion in not granting Shane’s Rule 60(a), M.R.Civ.P., motion to correct clerical mistakes?

16 Shane argues that although a Rule 59, M.R.Civ.P., motion may be untimely, under some circumstances we have allowed an untimely Rule 59 motion to be considered as a timely Rule 60, M.R.Civ.P., motion.
[A] motion that is made under Rule 59, which is not timely and hence may not properly be considered under that Rule, may, nevertheless, be considered as a motion under Rule 60 when it states grounds for relief under this latter rule.

Ring v. Hoselton (1982), 197 Mont. 414, 424, 643 P.2d 1165, 1171 (citations omitted). Shane filed a motion for relief from the September 19, 2003, decree under Rule 60(a), (b)(1), (6), M.R.Civ.P., within 60 days of the notice of entry of judgment. Thus, it was within the discretion of the District Court to grant him relief, guided by applicable precedent.
17 Shane has averred that he is entitled to relief from alleged clerical errors made by the District Court under Rule 60(a), which provides:
(a) Clerical mistakes in judgments, orders or other parts of the record, and in pleadings, and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party after such notice, if any, as the court orders.

18 Rule 60(a) is only for the purpose of correcting clerical mistakes.
Rule 60, M.R.Civ.P., permits a court to correct "clerical mistakes" in judgments, orders, pleadings, or "other parts of the record" upon motion of a party or its own initiative. Rule 60(a), M.R.Civ.P. The court may also "on motion and upon such terms as are just," and for a variety of reasons, relieve parties from judgments or final orders. Rule 60(b), M.R.Civ.P.

Rule 60(a), M.R.Civ.P., which permits the correction of clerical errors, is of occasional use to judges and lawyers but seldom has a crucial effect. The courts have not permitted it to be used to relitigate matters already decided or to change what the court has deliberately done. It simply allows the doing, at a later date, of what was originally intended but not accomplished.

In re Marriage of Cannon (1985), 215 Mont. 272, 274-75, 697 P.2d 901, 902, citing William F. Crowley, Montana Pleading and Practice Forms, 275 (1983).

19 “Rule 60(a) preserves the common-law power of District Courts to correct clerical errors in judgments at any time, since correction of such error by definition does not alter the substantive rights of the parties.” Thomas v. Thomas (1980), 189 Mont. 547, 550, 617 P.2d 133, 135. Clerical mistakes and errors are those errors which misrepresent the court's original intention. Muri v. Frank, 2001 MT 29, 12, 304 Mont. 171, 12, 18 P.3d 1022, 12. It is not the purpose of Rule 60(a) to set aside a judgment actually rendered nor change what was originally intended. State v. Owens (1988), 230 Mont. 135, 138, 748 P.2d 473, 474, citing Dahlman v. Dist. Court., Seventeenth Jud. Dist. (1985), 215 Mont. 470, 473, 698 P.2d 423, 425. In Thomas v. Thomas, 189 Mont. at 550-51, 617 P.2d at 135-36, we readopted State ex rel. Union Bank & Trust Co. v. Dist. Court (1939), 108 Mont. 151, 156, 91 P.2d 403, 406, regarding the use of Rule 60(a), M.R.Civ.P., to correct omissions:
In case of an omission or error in the record, the power exists in the court to amend such record so that it shall conform to the actual facts and truth of the case; but a court cannot amend its record to correct a judicial error or to remedy the effect of judicial non-action . . . The authority of a court to amend its record by a nunc pro tunc order is to make it speak the truth, but not to make it speak what it did not speak but ought to have spoken . . . Errors into which the court itself falls can be corrected only by motion for a new trial or by appeal.

That orders made by a court through mistake, inadvertence, want of sufficient consideration, oversight or otherwise, where they affect the substantial rights of litigants are judicial errors and cannot be corrected or removed by summary action of the court which made them . . . . [Internal citations omitted.]

20 Shane argues that the District Court made a number of clerical errors in its findings of fact because it adopted LeAnn’s proposed findings that were not supported by the record, were contrary to the record and that the District Court omitted certain necessary findings. Thus, Shane claims the decree cannot express the true intention of the District Court.
21 Specifically, Shane asserts correctable errors under Rule 60(a), M.R.Civ.P., as follows:
22 The District Court’s finding of fact No. 11 provides that Shane is obligated for 70% of non-covered medical and related health care expenses and LeAnn is obligated for the remaining 30%. Shane asserts that this is a “clerical error” in that it differs from the calculations of Mr. Bourdeau, an expert retained by the parties to calculate child support. However, there is no clerical error here. The District Court made its decision based on the record and that decision is reflected in the decree.
23 The District Court’s findings of fact No. 15 and 16 assign earnings of at least $70,000 to Shane and $45,000 to LeAnn. Shane asserts that this is a “clerical error” in that it differs from the calculations of Mr. Bourdeau. Again, this is not a clerical error. The District Court had evidence before it and the decree announced the District Court’s decision.
24 Shane argues that the calculation of an $8,000 child support arrearage is supported by neither the testimony or the exhibits, and was mistakenly adopted based solely on LeAnn’s proposed findings of fact. The record contains evidence regarding past child support and calculations upon which the District Court could compute an arrearage. This decision by the District Court is not the result of a clerical error.

25 Shane argues that the District Court should clarify the schedule by which the parties will alternate claiming the child as an exemption for income tax purposes. However, the District Court did so at page 8 of its Findings of Fact, Conclusions of Law and Decree of Dissolution wherein it provided that Petitioner (Shane) “shall be entitled to claim the minor child as a dependent for state and federal income tax purposes in even numbered years.” There is no clerical error.
26 The District Court’s finding of fact No. 21 values Shane’s shop equipment and business equipment. Shane argues that this finding of fact contains a clerical error in that a date of separation value is assigned but no value is deducted as of the date of the parties’ marriage. In fact, the District Court’s finding indicates that during the marriage Petitioner acquired shop equipment and business equipment having a value of $8,980. There is no clerical error.
27 Shane further argues that the District Court, by oversight, made no provision for payment of one-half of an expert accountant’s fee that the parties agreed to divide. In addition, Shane asserts that the District Court failed to award a bow to either party. The District Court received testimony that the bow in question was a gift from LeAnn to Shane and that after the parties’ separation LeAnn retrieved the bow from Shane’s possession and gifted it to her son. Shane argues that the bow belongs to him. LeAnn argues that the bow is not available for distribution. The District Court did not make any determination regarding the payment of the expert’s fee and whether the bow is a part of the marital estate. These omissions are properly matters for appeal or a timely motion to alter or amend the judgment and are not clerical errors correctable under Rule 60(a), M.R.Civ.P. See Thomas, 189 Mont. 547, 550-52, 617 P.2d 133, 135-36.

28 The District Court’s finding of fact No. 26 states that debts on a parcel of real property that is a part of the marital estate totaled $61,302. Shane points out that the record shows that such debt on the date of separation was not $61,302, the amount stated by the Court, but $69,962, a difference of $8,660. Shane’s exhibits show that the debt totaled $69,962 at the time the parties separated. There appears no support in the evidence for the $61,302 figure found by the District Court. LeAnn has not called either the District Court or this Court’s attention to any evidence that would show the District Court did not simply make a mistake. This may indeed be a clerical error correctable under Rule 60(a), M.R.Civ.P.
29 The intention of the District Court was to equitably divide the marital estate. To this end it calculated the estate’s value, and provided for payment of fees and costs. However, it appears the District Court may have made at least one clerical error which could be corrected under Rule 60(a), M.R.Civ.P.
30 The District Court, in its order denying Shane’s Rule 60 motion, was correct when it stated that by such motion Shane was basically seeking to have the decree set aside for insufficiency of the evidence. Such was obviously the thrust of the motion, as well as of this appeal. However, Shane did, along with his Rule 59 and Rule 60(b) motions, request that the District Court correct possible clerical mistakes. To the extent it did not consider possible errors within the purview of Rule 60(a), the District Court abused its discretion. We conclude we must remand the matter set forth in 28 for the District Court to consider whether an error exists, and if so, whether it may be corrected under Rule 60(a), M.R.Civ.P.
ISSUE 3

31 Did the District Court abuse its discretion in not granting Shane relief under Rule 60(b)(1) or 60(b)(6), M.R.Civ.P.?
32 Pursuant to Rule 60(b), M.R.Civ.P.:
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; . . . or (6) any other reason justifying relief from the operation of the judgment.

33 A "mistake" is defined for Rule 60(b) purposes, as "some unintentional act, omission, or error arising from ignorance, surprise, imposition, or misplaced confidence." In re Marriage of Broere (1994), 263 Mont. 207, 209, 867 P.2d 1092, 1094.
"[M]istake," "inadvertence," and "excusable neglect" require some justification for an error beyond mere carelessness or ignorance of the law on the part of the litigant or his attorney . . .

[Moreover], relief is afforded under subsection (6) of Rule 60(b) in extraordinary situations when circumstances go beyond those covered by the first five subsections or when a party in whose favor judgment was entered has acted improperly. [Internal citations omitted.]

In re Marriage of Castor (1991), 249 Mont. 495, 499-500, 817 P.2d 665, 667-68.
34 Shane has not shown that his attorney’s miscalculation of the time limit to file a motion under Rule 59, M.R.Civ.P., or indeed, to file a timely appeal of the District Court’s findings and conclusions, constitutes a mistake, inadvertence, or excusable neglect beyond mere carelessness or ignorance of the law. As such, relief is not proper under Rule 60(b)(1), M.R.Civ.P.
35 Shane also argues that he is entitled to relief from the judgment under Rule 60(b)(6). However,

It is not the intent of Rule 60(b)(6) to be a substitute for appeal. The substance of a motion for relief under Rule 60(b)(6) must be something more than a request for rehearing or a request that the District Court change its mind. It must be shown that something prevented a full presentation of the cause or an accurate determination on the merits and that for reasons of fairness and equity redress is justified.

Lussy, 215 Mont. at 93, 695 P.2d at 466.

36 Here, Shane has not alleged that he was somehow prevented from a full presentation of his case. Rather, he is arguing that the District Court’s decision to deny his motions must be reversed because the District Court refused to change its mind.
37 The District Court concluded that under the present circumstances, Shane’s untimely Rule 59, M.R.Civ.P., motion should not be treated as a timely Rule 60(b), M.R.Civ.P., motion because it determined that Shane’s “motion does not state grounds for relief under Rule 60(b)(1) or (6).” In this instance the Rule 59 motion to amend the decree or grant a new trial was untimely because counsel miscalculated the time requirements. This mistake does not constitute incapacity, gross neglect, or misconduct of counsel causing such prejudice that the District Court abused its discretion in refusing to grant Rule 60(b) relief. Shane has not been denied his day in court. See Lussy, 215 Mont. at 93, 695 P.2d at 466.
CONCLUSION

38 The District Court is affirmed as to its conclusion that Shane’s Rule 59, M.R.Civ.P., motion was untimely. The District Court did not abuse its discretion in denying relief under Rule 60(b), M.R.Civ.P., and such denial is affirmed. We reverse the District Court’s denial of Shane’s request for relief under Rule 60(a), M.R.Civ.P., and remand for consideration of whether the amount of the debt referenced in 28 is correctly stated in the decree, and if it is not, for the District Court to make necessary amendments so the decree correctly states its intention.

/S/ JOHN WARNER

We Concur:

/S/ JAMES C. NELSON
/S/ PATRICIA O. COTTER
/S/ JIM RICE

2005 MONTANA FAMILY LAW CASES

2005-06-07T16:05:00.000-07:00

Here is a list of 2005 Montana Supreme Court cases relevant to Family Law Issues:

Marriage of Lawrence 2005 MT 125
Marriage of Noble 2005 MT 113
Marriage of Olson 2005 MT 111
Marriage of Hannum 2005 MT 98N
Marriage of Payer 2005 MT 89
In Re the Parenting of D.A.H. and G.M.H. 2005 MT 68
In Re the Custody and Parental Rights of C.J.K. 2005 MT 67
Marriage of Olson 2005 MT 57
Marriage of Epperson 2005 MT 46
Marriage of Bock 2005 MT 40 2005 MT 40
Conservatorship of Kloss 2005 MT 39
Schoenthal and Schoenthal 2005 MT 24

CASE COMMENTARY

2005-05-28T14:40:00.000-07:00

MARRIAGE OF BOCK

highlighted 1

2005 MT 40 Marriage of Bock

2005-05-28T14:37:00.000-07:00

No. 03-629

IN THE SUPREME COURT OF THE STATE OF MONTANA

2005 MT 40

IN RE THE MARRIAGE OF

JOHN W. BOCK,

Petitioner and Appellant,

MARIANNE C. SMITH, f/k/a

MARIANNE C. S. BOCK,

Respondent and Respondent.

APPEAL FROM: The District Court of the Fourth Judicial District,

In and For the County of Missoula, Cause No. DR 99-427,

Honorable Douglas G. Harkin, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Byron Wade Boggs, Attorney at Law, Missoula, Montana

For Respondent:

Cynthia K. Thiel, Boone & Karlberg, Missoula, Montana

Submitted on Briefs: December 15, 2004

Decided: February 22, 2005

Filed:

__________________________________________

Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

1 John Bock (Bock) appeals from the District Court’s distribution of the marital estate, award of child custody to his ex-wife Marianne Smith (Smith), conclusion of law making the order of protection permanent, and order temporarily amending the parenting plan. We affirm the first three and dismiss on the last issue.

2 We address the following issues on appeal:

3 1. Whether the District Court abused its discretion in distributing the marital estate, including the award to Smith of one-half of Bock’s PERS account.

4 2. Whether the District Court abused its discretion in awarding primary custody of the children to Smith.

5 3. Whether the District Court abused its discretion in making the order of protection permanent.

6 4. Whether the District Court erred in temporarily amending the parenting plan on December 17, 2003.

FACTUAL AND PROCEDURAL BACKGROUND

7 Bock and Smith married in 1989. Their union produced three boys, born in 1990, 1993, and 1997. For most of their marriage the couple resided in Missoula, Montana,but when they could not find suitable employment they moved to Tulsa, Oklahoma, in 1998. Both worked for the same company in Tulsa for a number of months before the company declared bankruptcy. In May 1999, shortly after both lost their jobs, Smith took the children and drove back to Missoula. Around the same time she let Bock know that she did not wish to continue in the marriage. Bock later initiated this dissolution proceeding.

8 Smith alleges that over the course of their marriage Bock subjected her and the children to repeated emotional abuse, and subjected the children to occasional physical abuse. Bock counters that there was no abuse of any kind, and he cites several witnesses who testified at trial that they never saw any signs of abuse. Smith’s abuse allegations are largely based on her own testimony, although the allegations find support in the reports and testimony of psychologists who interviewed Smith, the children, and Bock, and concluded that there is reason to believe that Bock has been abusive.

9 Very shortly after moving back to Missoula, Smith petitioned for, and was granted, an order of protection that limited Bock’s contact with Smith and the children. Although Bock was allowed some phone contact with the children and was later awarded occasional visits with them, he violated the order of protection repeatedly, sometimes calling Smith several times a day. The order of protection is still in effect, and since it was first put in place Bock has been convicted of three misdemeanor counts for violating its terms.

10 After Smith and the children left Tulsa, Bock moved in with his parents in Michigan where he still resides rent-free. Soon after moving he obtained a job with the State of Michigan. Smith worked a few different jobs in Missoula before retraining herself in software design. After three years of living in Missoula, Smith moved with the children to where her mother lives in Pennsylvania. During Smith’s time back in Missoula, and also since her move to Pennsylvania, Bock has enjoyed limited visits with the children, usually by visiting the area where Smith and the children are living.

11 Following the trial below, the District Court awarded primary custody of the children to Smith and distributed the marital estate. At the time of separation the couple owned a home in Tulsa as well as a van. In addition, Bock still has a PERS retirement account from his days working for the University of Montana. The value of Bock’s PERS contributions made during the marriage was $38,960.83. After Smith returned to Missoula, taking the van with her, Bock made payments on the mortgage until the home sold, and, at first, made payments on the van. However, after some time, he ceased making payments on the van, and, since Smith could not afford to make the payments, the van was repossessed. Bock also made payments on the children’s COBRA insurance until he included them in his health insurance at his job in Michigan. Even so, during the first few months of separation, Bock did not provide any child support for Smith and the children.

12 The court held that Bock was responsible for the children’s medical, dental, and counseling debts, and that Smith was entitled to half of the marital portion of the PERS account. The court also held that Smith was not liable for a “loan” that Bock’s father (William Bock) gave the family during their marriage nor for funds William Bock loaned to Bock after the separation.

13 Some months after the District Court’s dissolution decree, and while this appeal was pending in this Court, Smith moved for an emergency amendment to the parenting plan. The court granted that motion, issuing an order temporarily amending Bock’s visitation rights. Bock appeals from that order as well as the earlier distribution of the marital estate, award of custody, and conclusion of law making permanent the order of protection.

STANDARD OF REVIEW

14 In a dissolution proceeding, this Court reviews the District Court’s findings to determine if they are clearly erroneous. In re Marriage of Herrera, 2004 MT 40, ¶ 18, 320 Mont. 71, ¶ 18, 85 P.3d 781, ¶ 18. “A finding is clearly erroneous if it is not supported by substantial evidence, if the district court misapprehended the effect of the evidence, or if our review of the record convinces us the district court made a mistake.” Marriage of Herrera, ¶ 18. In reviewing discretionary district court rulings, such as the distribution of a marital estate or the valuation of those distributions, we review for abuse of discretion. Siefke v. Siefke, 2000 MT 281, ¶ 7, 302 Mont. 167, ¶ 7, 13 P.3d 937, ¶ 7. In cases awarding child custody, we review whether the District Court’s findings of fact are clearly erroneous. If clear error is not apparent, we will uphold the decision below unless the court abused its discretion. McDermott-Yeargin v. McDermott, 2003 MT 283, ¶ 9, 318 Mont. 13, ¶ 9, 79 P.3d 245, ¶ 9 (citing Czapranski v. Czapranski, 2003 MT 14, ¶ 10, 314 Mont. 55, ¶ 10, 63 P.3d 499, ¶ 10) .

DISCUSSION

ISSUE ONE

15 Whether the District Court abused its discretion in distributing the marital estate, including the award to Smith of one-half of Bock’s PERS account.

16 The District Court found that Smith was due one-half of the portion of Bock’s PERS account resulting from contributions made during the marriage. In light of the distribution of the other assets in the marital estate, Bock argues that the court erred in not awarding him the entirety of the PERS account. Bock contends that the District Court erred in finding that he failed to support the children in the past and in finding that Smith was not liable for the funds that William Bock loaned to the couple before separation.

17 Each party testified at length regarding the support, and lack of support, that Bock gave to Smith and the children after Smith took them back to Missoula. The record supports Bock’s claims that he paid the mortgage on the Tulsa house until it sold, initially made some payments on the family van that Smith took with her, and made COBRA insurance payments for the children before he found a job in Michigan. However, Smith’s claim that Bock did not provide support for living expenses after the initial separation is also supported, as is the claim that he ceased making payments on the van, which led to its repossession. Taking all of this evidence into account, we conclude that the District Court was not clearly erroneous and did not abuse its discretion in finding that Bock failed to support the children when he was financially able.

18 William Bock testified that when he gave $27,000 to the couple during their marriage, it was understood to be a “loan” that must be repaid. Smith’s testimony indicated that she understood the funds were a gift intended to help the struggling couple rather than a loan. William Bock kept a list of funds that he had “loaned” to the family and this was offered as evidence that he expected to be paid back. However, Smith gave credible testimony that she did not know of this list and that she had no reason to know that the family was expected to pay the funds back. One amount supposedly “loaned” was the cost of a flight for William Bock to see Smith and her youngest son in Seattle when her son was there for medical reasons. Smith stated that William Bock simply showed up unannounced. At the time Smith merely considered this an act of kindness and not a “loan” she would have to later repay.

19 John Bock cites Siefke and Marriage of Stewart (1988), 232 Mont. 40, 757 P.2d 765, for authority in contending that Smith shares responsibility in repaying the “loan” from his father. Neither of these cases assist Bock in his argument. In Siefke we upheld the district court’s finding that an advance on the husband’s inheritance was not part of the marital estate. Siefke, ¶ 15. Similarly, the “loan” Bock received from his father should not be a part of this marital estate. In Stewart the husband took out loans, and we upheld the district court’s finding that the wife shared in the debt even though she purported to be unaware of the loans. Stewart, 232 Mont. at 42-43, 757 P.2d at 767. However, unlike the instant case, the loans in Stewart were bona fide debts. Here, there exists substantial credible evidence that the loan could just as easily have been understood to be a gift. Therefore, we determine that the District Court was not clearly erroneous and did not abuse its discretion in concluding that Smith does not owe William Bock for any funds loaned to his son.

20 Bock further contends that the District Court erroneously relied on Finding of Fact 24 in distributing the estate. Because this finding relates to “emotional abuse” that Smith “believes” she suffered over the course of her marriage, Bock argues that such a finding is irrelevant in a no-fault proceeding. Whatever the merits of this contention, the District Court did not rely on Finding 24 in distributing the marital estate but only on child custody matters. Thus, Bock’s contention fails.

21 We therefore uphold the District Court’s distribution of the marital estate, including Bock’s PERS account. Smith is entitled to half of the portion of the account attributable to contributions made during the marriage.

ISSUE TWO

22 Whether the District Court abused its discretion in awarding primary custody of the children to Smith.

23 Bock contends that the District Court erred in awarding primary custody of the children to Smith. This state uses the “best interests of the child” standard in awarding custody. Section 40-4-212, MCA, enumerates the factors relevant to the standard. Bock contends that he should be awarded primary custody because on several of those factors the evidence weighs in favor of him. He argues that Smith has been unable to provide the children with a stable home, to keep a stable job, or to consistently get the children to school on time. Further, he asserts that she has been in “virtually constant counseling” for most of her life and has opposed Bock’s visitation with the children. Additionally, Bock contends that the District Court’s findings relating to possible abuse Smith and the children suffered are clearly erroneous.

24 There is substantial credible evidence that the deficiencies Bock cites were, at least partially, caused by his own actions. On at least one occasion Smith moved residences because she feared for her safety because Bock, in violation of an order of protection, obtained her street address. Much, if not most, of her counseling since marrying Bock 16 years ago can be credibly attributed to emotional abuse he has inflicted upon her. Smith has opposed visitation when Bock has violated court orders, sometimes repeatedly and on innumerable instances, or where there is evidence that the children fear meeting with him. Smith has had trouble holding a stable job, but she has gone to great lengths to retrain herself as a software programmer and has cared for her children remarkably well in spite of her employment and monetary difficulties. The children were often tardy to class when attending school in Missoula, but since the move to Pennsylvania have kept a spotless attendance record.

25 The issue of abuse is, of course, especially important. Bock contends that the District Court’s findings relating to abuse during the marriage are clearly in error. The District Court did not go so far as to say Bock abused his ex-wife or children but did find that he has had trouble with overly-disciplining the children in the past, and that Smith’s allegations of emotional abuse “have a valid factual basis.” Bock’s briefing ignores and belittles the detailed account Smith gave of ongoing emotional abuse and of the analyses of multiple psychologists detailing the children’s fear of their father. Smith recounted how Bock would yell and sometimes slap the children in anger and how near the end of their marriage he would imply that he was ready to physically harm her if she did not do what he demanded. One psychologist, Dr. Hergenrather, testified that the two older children feared their father and that this created a great deal of anxiety, and even depression, for them.

26 In addition to his own testimony, Bock presented testimony from his parents and from friends who have all observed Bock and the children together, both before and after the couple separated. This testimony contradicted the statements of Smith and the psychologists. His witnesses said that they had never observed Bock treat Smith or the children with anger, and that Smith never complained of abuse during the marriage.

27 Given this conflicting evidence regarding abuse we conclude that the District Court’s findings are supported by the record. “‘Even when there is a conflict in the evidence, we will uphold the court’s evidence where there is substantial credible evidence to uphold its findings of fact and conclusions of law.’” Jefferson County ex rel. Bd. of Comm’rs v. McCauley Ranches, 1999 MT 333, ¶ 31, 297 Mont. 392, ¶ 31, 994 P.2d 11, ¶ 31 (quoting Lorenz v. Estate of Schilling (1989), 236 Mont. 82, 84, 768 P.2d 869, 870). We also conclude that the court’s findings that Bock failed to consistently provide financial support, and that, in their current environment, “[t]he children are making excellent grades in school and are healthy, happy, and well maintained” are supported by the record. Therefore, the District Court did not abuse its discretion in awarding primary custody to Smith with scheduled visitation to Bock.

ISSUE THREE

28 Whether the District Court abused its discretion in making the order of protection permanent.

29 When first separating from Bock, Smith obtained an order of protection limiting Bock’s contact with her and the children. In the District Court’s conclusions of law the court made the order of protection permanent. “The decision to continue, amend or make permanent an order of protection is for the District Court to determine, and we will not overturn its decision absent an abuse of discretion.” Schiller v. Schiller, 2002 MT 103, ¶ 24, 309 Mont. 431, ¶ 24, 47 P.3d 816, ¶ 24 (citing Stoneman v. Drollinger, 2000 MT 274, ¶ 53, 302 Mont. 107, ¶ 53, 14 P.3d 12, ¶ 53). Section 40-15-204, MCA, states, “The court may, on the basis of the respondent’s history of violence, the severity of the offense at issue, and the evidence presented at the hearing, determine that to avoid further injury or harm, the petitioner needs permanent protection. The court may order that the order of protection remain in effect permanently.” Bock contends that he has no “history of violence,” and that therefore the order of protection was improperly granted and made permanent.

30 Contrary to Bock’s statements, Smith presented substantial credible evidence detailing a “history of violence,” including the abusive behavior discussed above and the fact that Bock had been convicted of three counts of violating the order of protection. Given this evidence we conclude that the District Court did not abuse its discretion in making the order of protection permanent.

ISSUE FOUR

31 Whether the District Court erred in temporarily amending the parenting plan on December 17, 2003.

32 On December 10, 2003, Smith made an emergency motion to temporarily amend the parenting plan. The children were due to visit their father over the Christmas holiday. She alleged that when the children had visited their father the previous summer the two youngest suffered a deterioration in their mental health. Smith contended that she did not bring her “emergency” motion earlier because the evidence of the deterioration became particularly apparent in late November 2003. She argued that the two children should not be allowed to visit with their father unless supervised, until a psychological evaluation could be made of the children.

33 The court noted that Smith was “conveniently late” in requesting relief, but nevertheless granted the motion because “the Court cannot risk the harm to the children in the event Petitioner’s concerns prove well-founded.” Because of unrelated matters, a hearing on the issue was not held for over two months. At the hearing, the parties stipulated to a visitation schedule, and there is nothing in the record to indicate that the merits of the emergency order were even discussed.

34 Bock asks us to rule on the merits of the December 17, 2003, order so we may “prevent future abuses such as this from occurring” and “set down clear guidelines” for similar cases. He does not contend that this Court can now fashion any relief regarding the December 2003, visit, nor does he specifically say that “future abuses” might occur in his case. Instead he merely argues that the matter is one of importance “to prevent future abuses such as this . . . .” In doing this Bock asks us to give an advisory opinion, something we cannot do. Northfield Ins. Co. v. Montana Ass’n of Counties, 2000 MT 256, ¶ 18, 301 Mont. 472, ¶ 18, 10 P.3d 813, ¶ 18 (“A determination of the issue . . . would constitute an advisory opinion and courts have no jurisdiction to issue such opinions.”). Therefore, we do not address the merits of the December 17, 2003, order.

CONCLUSION

35 We affirm the District Court’s distribution of the marital estate, award of custody, and conclusion of law making the order of protection permanent.

/S/ W. WILLIAM LEAPHART

We Concur:

/S/ KARLA M. GRAY

/S/ PATRICIA O. COTTER

/S/ JOHN WARNER

/S/ JIM RICE