IN RE: the MARRIAGE OF: Heather N. NAGEL (2018)

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2 Heather N. Conner (Conner) appeals from an order of the Twelfth Judicial District Court, Hill County, amending the parenting plan for her minor son, S.N. We affirm.

¶3 Conner and Cody J. Nagel (Nagel), S.N.'s father, entered into a stipulated parenting plan on October 21, 2013, before S.N. reached school-age. The parenting plan alternated parenting time on a weekly basis. At around the same time Nagel moved in with and became engaged to his girlfriend, Conner began expressing concern that Nagel's girlfriend's children, who are younger than S.N., subjected S.N. to physical abuse. As a result, Conner took S.N. to the emergency room on at least four separate occasions, continuously expressing concern that S.N. suffered abuse while in Nagel's care. Medical professionals examined S.N., but did not find evidence that S.N. was actually abused. The medical professionals nonetheless reported the family to the Havre Police Department and the Department of Public Health and Human Services, Child and Family Services Division (the Department) which each initiated an investigation.

¶4 Before S.N. reached school-age, Conner and Nagel disagreed about whether to enroll S.N. into first grade at a school located in Havre, Montana, where Nagel lived, or Great Falls, Montana, where Conner lived. Conner moved the District Court to amend the parenting plan based on a change in circumstances that she believed required a modification. Conner requested the court amend S.N.'s custodial arrangement during the school year by designating her home to be S.N.'s primary residence and allow Nagel visitation every-other weekend in order to facilitate S.N.'s enrollment into first grade at a school in Great Falls.

¶5 Subsequently, Nagel also moved the District Court to amend the parenting plan based on a change in circumstances he believed required a modification. Nagel requested the court amend S.N.'s custodial arrangement during the school year by designating his home to be S.N.'s primary residence and allow Conner visitation every-other weekend. Nagel based his request on Conner's willful and consistent attempts to frustrate his contact with S.N. by making “repeated false allegations against [Nagel] in order to alienate him from his son.” This conduct, Nagel argued, included needlessly taking S.N. to the emergency room for suspected, but unsubstantiated physical abuse; enrolling S.N. into kindergarten in Great Falls without consulting him; refusing his attempts to contact S.N. on the phone; limiting Nagel's parenting time by re-scheduling the time set for their weekly exchanges; and scheduling S.N. to participate in activities located in Great Falls during Nagel's parenting time in Havre.

¶6 The District Court agreed with Conner and Nagel that changed circumstances and S.N.'s best interest required an amendment and initially amended the parenting plan to allow S.N. to attend a school in Havre for fall semesters and a school in Great Falls for Spring semesters. Both parties agreed that spending one semester in each location was not in S.N.'s best interest. Ultimately, on July 19, 2017, the District Court amended the parenting plan by designating Nagel's home in Havre to be S.N.'s primary residence during the school year and allowing Conner visitation every-other weekend and more visitation during the summer months. Conner appeals.

¶7 We review the findings of fact underlying a court's decision to amend a parenting plan for clear error. In re Marriage of Klatt, 2013, MT 17, ¶ 12, 368 Mont. 290, 294 P.3d 391. When findings upon which a decision is predicated are not clearly erroneous, we will reverse a district court's decision regarding a parenting plan amendment only when the appellant demonstrates a clear abuse of discretion. In re Marriage of Brockington, 2017 MT 92, ¶ 18, 387 Mont. 260, 400 P.3d 205. A court abuses its discretion by acting arbitrarily, without employing conscientious judgment, or exceeds the bounds of reason, resulting in substantial injustice. Brockington, ¶ 18.

¶8 In her opening, and only, brief on appeal, Conner, represented by counsel, attempts to raise four issues contesting Nagel's ability to parent S.N. or provide continuous and stable care for S.N. and argues that the District Court failed to consider S.N.'s educational or developmental needs. Generously construed, the sum of Conner's arguments on appeal is that the District Court erred in amending the parties' parenting plan under § 40-4-219, MCA. We disagree.

¶9 Section 40-4-219(1), MCA, provides:

The court may in its discretion amend a prior parenting plan if it finds, upon the basis of facts that have arisen since the prior plan or that were unknown to the court at the time of entry of the prior plan, that a change has occurred in the circumstances of the child and that the amendment is necessary to serve the best interest of the child.

Under § 40-4-219(1), MCA, in exercising its discretion to amend a parenting plan, the court may consider criteria listed in § 40-4-212(1), MCA, in addition to criteria listed in § 40-4-219(1), MCA. Under § 40-4-212(1), MCA, “The court shall consider all relevant parenting factors, which may include but are not limited to: ․ (h) continuity and stability of care; [and] (i) developmental needs of the child.” Under § 40-4-219(1)(d)(ii), MCA, one criterion a court may consider in amending a parenting plan is whether one parent has willfully and consistently attempted to frustrate or deny contact with the child by the other parent.

¶10 Here, the District Court held a hearing on the parties' competing motions to amend the parenting plan after S.N. completed first grade by attending the first semester at a school in Havre and the second semester at a school in Great Falls. The parties presented several witnesses and testified themselves. Nagel and Conner both testified that their communications, through email, phone calls, and My Family Wizard, were problematic. The Department hired Dr. Michael Bütz to evaluate S.N., Conner, and Nagel pursuant to its investigation into the reported allegations of abuse. Dr. Bütz, a forensic clinical neuro-psychologist, testified about his opinion, formed pursuant to his evaluations, that Conner subjected S.N. to a form of psychological abuse called parental alienation. Further, witnesses testified Conner potentially “coached” S.N. about what to say to Dr. Bütz and what not to say to his counselor in Havre.

¶11 Nagel testified that he thought S.N. struggled in the first grade because he switched schools mid-year, was young for his grade, and only attended kindergarten part-time. Nagel testified that it was in S.N.'s best interest to repeat the first grade in order for S.N. to mature and progress scholastically. Nagel testified that he and S.N. work on his school work, reading, and other educational activities daily when S.N. is in Havre. Nagel testified that he intended to continue to have S.N. participate in counseling in Havre. Nagel testified that S.N. seemed moodier, quicker to anger, and anxious when he lived with Conner in Great Falls. Nagel testified that Conner and he should be able to disagree on things, but wanted these disagreements to stay between the two of them and not extend to S.N. Nagel testified that while in Conner's care, Nagel attempted to contact Conner and S.N., but was unsuccessful, and had no contact with, or updates about, S.N. for a period of three months. Nagel testified that a guardian ad litem the District Court appointed to represent S.N.'s best interest recommended S.N. spend one semester in each location, but in the alternative, recommended S.N. primarily reside with Nagel in Havre because his closest community ties are to Havre.

¶12 In its final order amending the parties' parenting plan and awarding Nagel primary residential custody, the District Court stated, “Over the course of time, [Conner] has made accusations against various individuals regarding abuse towards [S.N.] This Court and investigating personnel have found these complaints to be unsubstantiated.” Moreover, the District Court noted that, “Dr. Michael Bütz testified at length regarding [S.N.] and both parents. Dr. Bütz testified he was concerned about [Conner's] ability to parent [S.N.] as the primary parent, as a result, in part, of her narcissistic personality behaviors.” The District Court's order concluded that amending the parties' parenting plan was in S.N.'s best interest and amended S.N.'s primary residence to be Nagel's home in Havre.

¶13 Statutes afforded the District Court discretion in amending the parties' parenting plan based on its consideration of criteria and conclusion that there was a change of circumstances requiring an amendment. We review the District Court's determination for clear error or an abuse of discretion. The District Court considered evidence that Nagel provided consistent help with S.N. completing homework and attending counseling. See § 40-4-212(1)(h), MCA. The District Court considered evidence that it was in S.N.'s best interest to repeat the first grade in Havre. See § 40-4-212(1)(i), MCA. The court also considered evidence tending to show Conner willfully and consistently attempted to frustrate Nagel's relationship with S.N. by raising unsubstantiated claims S.N. suffered abuse while in Nagel's care and denied Nagel's attempts to communicate with S.N. See § 40-4-219(1)(d)(ii), MCA. Based on our review of the record and our consideration of §§ 40-4-212(1)(h-i) and 40-4-219(1)(d)(ii), MCA, we cannot conclude the District Court clearly erred or abused its discretion in amending the parties' parenting plan and designating Nagel as S.N.'s primary residential custodian.

¶14 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. This appeal presents no constitutional issues, no issues of first impression, and does not establish new precedent or modify existing precedent.

¶15 Affirmed.

Justice Laurie McKinnon delivered the Opinion of the Court.

We concur: MIKE McGRATH, C.J. JAMES JEREMIAH SHEA, J. INGRID GUSTAFSON, J. BETH BAKER, J.