No. 01-407 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2003 MT 19 

IN RE THE MARRIAGE OF 

MARINA CARTER, 

Petitioner and Respondent, 

and 

AUSTIN ROGER CARTER, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, Cause No. DR-97-232, 

Honorable Mike Salvagni, Judge Presiding 

COUNSEL OF RECORD: 

For Appellant: 

Ronald Waterman, Gough, Shanahan, Johnson & Waterman, 

Helena, Montana 

For Respondent: 

Magdalena C. Bowen, Bowen & Parker, Bozeman, Montana 

Submitted on Briefs: November 1, 2001 

 Decided: February 13, 2003 

Filed: 

__________________________________________ 

Clerk 
2 

Justice Jim Rice delivered the Opinion of the Court. 

¶1 Austin Roger Carter (Roger) appeals the final parenting plan 

entered by the Eighteenth Judicial District Court, Gallatin County. 

 We affirm the order of the District Court. 

¶2 We address the following issues on appeal: 

¶3 1. Whether the final parenting plan adopted by the District 

Court was in the best interest of the children and supported by 

substantial evidence. 

¶4 2. Whether Respondent is entitled to attorney fees in 

defending this appeal. 

FACTUAL AND PROCEDURAL BACKGROUND

¶5 Roger and Marina Harris (Marina) were married in October 1993 

and separated in June 1997. Two children were born during the 

marriage. A dissolution proceeding was initiated in 1997, and a 

final decree, including parenting plan, was adopted by the District 

Court on June 1, 1999. 

¶6 Eight days after the final parenting plan was approved, Marina 

advised Roger that she was engaged to be married and was moving 

with the children to Salt Lake City, Utah. Marina’s move 

necessitated changes in the parenting plan, some of which were 

resolved by mediation, but others were brought before the District 

Court in a hearing held on April 6, 2000. At the hearing, Dr. 

Charles Kelly (Dr. Kelly), a psychologist who had previously 

performed a parenting plan evaluation in 1998 and was called by 

Marina, opined that it was in the children’s best interest to 

reside with Marina and further, that traveling on alternating 
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weekends from Salt Lake City to Belgrade, Montana, to be with Roger 

was stressful for the children and not in the best interest of 

their relationship with Roger. Based on the evidence presented at 

the hearing, the District Court issued an interim parenting plan 

which provided a parenting schedule through June 2001. The interim 

parenting plan adopted by the District Court was date specific and 

provided Roger contact with the children about twice per month, for 

three to five days each time. 

¶7 On June 27, 2000, Roger filed a Motion to Amend the Interim 

Order. Roger proposed a parenting plan that would provide him more 

contact with the children. The proposal contemplated that Roger 

would relocate to Utah and have custody of the children 50 percent 

of the time. 

¶8 The District Court held a hearing on January 26, 2001, to 

establish a final parenting plan. After hearing evidence, the 

District Court denied Roger’s proposed parenting plan, adopting a 

final parenting plan which named Marina as the primary custodial 

parent and providing that the children would reside with her the 

majority of time. Based on the assumption that Roger would reside 

in Utah, Roger was provided parenting time with the children every 

other week from Wednesday after school until Sunday morning and one 

night a week during the alternate week. The parenting plan also 

provided a schedule for holidays and summers. Roger appeals. 

STANDARD OF REVIEW

¶9 When we review a district court’s findings related to the 

modification of a parenting plan regarding custody and visitation, 
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the standard of review is whether those findings are clearly 

erroneous. In Re the Marriage of Oehlke, 2002 MT 79, ¶ 9, 309 

Mont. 254, ¶ 9, 46 P.3d 49, ¶ 9. When findings upon which a 

decision is predicated are not clearly erroneous, we will reverse a 

district court’s decision regarding a parenting plan only where an 

abuse of discretion is “clearly demonstrated.” Oehlke, ¶ 9. 

DISCUSSION

¶10 Was the final parenting plan adopted by the District Court in 

the best interest of the children and supported by substantial 

evidence?

¶11 The district court is required to determine child custody 

matters in accordance with the best interest of the child. Section 

40-4-212, MCA (1999), provides in relevant part: 

(1) The court shall determine the parenting plan in 

accordance with the best interest of the child. The 

court shall consider all relevant parenting factors, 

which may include by are not limited to: 

(a) the wishes of the child’s parent or parents; 

. . . 

(c) the interaction and interrelationship of the child with 

the child’s parent or parents and siblings and with any other 

person who significantly affects the child’s best interest; 

(d) the child’s adjustment to home, school, and community; 

(e) the mental and physical health of all individuals 

involved; . . . 

(h) continuity and stability of care[.] 

Section 40-4-219, MCA (1999), provides the following direction in 

regard to amendment of a parenting plan: 

(1) 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. In determining the child’s best 
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interest under this section, the court may, in addition 

to the criteria in 40-4-212, also consider whether: 

(a) the parents agree to the amendment; 

(b) the child has been integrated into the family of the 

petitioner with consent of the parents; ... 

(d) one parent has willfully and consistently: 

(i) refused to allow the child to have any contact 

with the other parent; or 

(ii) attempted to frustrate or deny contact with the 

child by the other parent; or 

(e) one parent has changed or intends to change the 

child’s residence in a manner that significantly affects 

the child’s contact with the other parent. 

¶12 Roger argues that both parents should have frequent and 

continuing contact with the children, and the only way to satisfy 

the requirement that the best interest of the children be served is 

to allow each parent to have contact with the children 50 percent 

of the time. Roger does not maintain that 50/50 parenting contact 

is appropriate in all cases, but that it is appropriate in this 

case, because both parents agree that the other parent possesses 

the necessary and appropriate parenting skills to properly care for 

the physical and emotional needs of the children. Roger maintains 

that there is no evidence in the record and no justification for 

limiting his parenting contact with his children to an every other 

long weekend. Roger claims the District Court did not provide any 

rationale for its arbitrary decision to restrict his contact with 

the children. 

¶13 Roger argues that the District Court was required to consider 

and discuss the factors set forth in §§ 40-4-212 and 40-4-219, MCA, 

and demonstrate in its findings that it had evaluated the facts, in 

light of the statute. Roger contends the District Court failed to 

carry out this function, offering that “the District Court merely 
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recited the rote findings that Roger’s parenting proposal was ‘not 

in the best interests of the children’.” According to Roger, the 

District Court provided no indication that it even considered the 

statutory factors set forth above. Thus, Roger concludes that the 

record did not support the District Court’s Order, that the 

District Court abused its discretion, and this Court should reverse 

the parenting plan. 

¶14 In a marriage dissolution proceeding, the district court is 

required to determine child custody matters in accordance with the 

best interest of the child. See §§ 40-4-212 and 40-4-219, MCA. 

While a district court must consider the several statutory factors 

listed in § 40-4-212, MCA, we have held that the court is not 

required to make specific findings regarding each and every factor 

listed in the statute. In Re the Marriage of McKenna, 2000 MT 58, 

¶ 15, 299 Mont. 13, ¶ 15, 996 P.2d 386, ¶ 15, and In Re the 

Marriage of Anderson (1993), 260 Mont. 246, 252, 859 P.2d 451, 455. 

 This Court stated in Anderson that: 

The custody determination must be based on substantial 

evidence relating to the statutory factors and [the 

evidence] must be set forth explicitly in the findings. 

The findings should, at a minimum, set forth the 

“essential and determining facts upon which the District 

Court rested its conclusion on the custody issue.” 

Anderson, 260 Mont. at 252-53, 859 P.2d at 455, quoting In Re the 

Marriage of Converse (1992), 252 Mont. 67, 71, 826 P.2d 937, 939. 

¶15 The parties submitted substantially different parenting plans. 

 Marina proposed a parenting plan similar to the June 1, 1999, 

parenting plan, which allowed Roger contact with the children every 

other week for a long weekend and one night during the week he did 
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not have the children. Roger, on the other hand, submitted a 

parenting plan in which the children alternated between the 

parties, two weeks with him and then two weeks with Marina. In 

considering the children’s adjustment to their home, school, and 

community, the District Court found it was important for the 

children to have continuity and consistency in the parenting 

environment, which was consistent with Dr. Kelly’s report and 

testimony. In its findings of fact, the District Court noted that 

“Dr. Kelly indicates [Marina] is the primary parent and the 

children should not spend lengthy times away from [Marina].” 

Further, the District Court found that “[Roger’s] proposal of 

rotating the children’s residency every two weeks is not in the 

best interests of the children based on Dr. Kelly’s evaluation of 

the children.” 

¶16 The District Court also found both Roger and Marina were able 

parents and that neither had acted neglectfully or abusively toward 

the children, adding that “[b]oth parties are good, loving parents 

and neither parent offers criticism of the other’s parenting skills 

or abilities to parent the children.” Dr. Kelly indicated there 

was no mental or physical problems that prevented either parent 

from being an effective parent. In addressing the developmental 

needs of the children, the District Court relied on Dr. Kelly’s 

recommendation that the children should reside primarily with one 

parent and that the children should not be separated from the 

primary parent for lengthy periods of time. The schedule in the 

final parenting plan reflects this recommendation. 
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¶17 In denying Roger’s proposed parenting schedule, the District 

Court also considered the inability of the parties to communicate 

well regarding the children. The District Court entered a finding 

that the parties have had “obvious and continuing” communication 

difficulties. Roger’s proposal of rotating the children’s 

residence every two weeks would require more positive communication 

between Roger and Marina, which the District Court determined was 

not likely to occur. The District Court stated: 

The parties have had a history of difficult 

communications with each other and there continues to be 

animosity between the parties. Petitioner indicates the 

parties do not communicate well regarding issues of the 

children as evidenced by Respondent’s Motion for 

Contempt, criminal complaints and other ongoing 

difficulties between the parties. . . . [Roger’s] 

proposal of rotating the children’s residence every two 

weeks is not in the best interests of the children based 

on Dr. Kelly’s evaluation of the children and the obvious 

and continuing communication difficulty between the 

parties. 

¶18 The District Court also found that both Marina and the 

children were very active in their church, noting “[h]owever, 

[Roger] is not active in the LDS Church and has not attended for 

over a year.” 

¶19 Based on our review of the record, we conclude that the 

District Court acted in accordance with §§ 40-4-212 and 40-4-219, 

MCA, and properly considered the best interest of the children when 

it issued its final parenting plan on March 22, 2001. The record 

reflects that the District Court considered the statutory factors, 

made appropriate findings that are supported by substantial 

evidence, set forth findings that explained the basis of the 
9 

court’s decision, and entered an independent judgment regarding the 

parenting of the children. 

¶20 In addition to challenging the District Court’s assessment of 

the children’s best interest, Roger faults the District Court’s 

consideration of, or failure to consider, certain evidence. First, 

relying on § 40-4-219(1)(d)(ii), MCA, which allows consideration of 

a parent’s attempt to frustrate contact between the children and 

the other parent, Roger argues that the District Court failed to 

consider Marina’s attempt to frustrate Roger’s contact with the 

children. In 1999, eight days after a final parenting plan was 

adopted and approved by the District Court, Maria announced she was 

moving with the children from Idaho to Salt Lake City, Utah. 

According to Roger, this move caused him to lose 29 days of 

parenting. Then, in July 2000 there was an instance of custodial 

interference. Roger traveled to Utah to be with his children and 

Marina delayed the delivery of the children to Roger for two to 

four hours, preventing his daughter from attending a birthday party 

which Roger and his family had planned for her. Roger contends 

these actions by Marina were not given appropriate consideration by 

the District Court. 

¶21 However, in the same order in which it adopted the parenting 

plan, the District Court made eleven separate findings regarding 

Roger’s allegations of custodial interference, including the 

details of the two-hour delay in the parenting exchange which 

occurred on July 15, 2000. The District Court determined that 

Marina was in violation of the parenting plan by delaying the 
10 

exchange of the children, and found her in contempt therefor, but 

also indicated that no other instances of custodial interference 

had occurred thereafter. It is apparent from the District Court’s 

simultaneous findings regarding the custodial interference and the 

parenting plan that it adequately considered the custodial 

interference issue and incorporated its impressions therefrom into 

the parenting plan, as the court’s order included an assessment of 

the parties’ ability to communicate with each other in regard to 

the children. 

¶22 Roger next claims that the District Court erred by relying on 

the evaluation and report of Dr. Kelly. Dr. Kelly had testified 

during a hearing on an interim parenting plan in April 2000 that 

his earlier recommendations should be re-evaluated in light of 

Marina’s custodial interference. However, this re-evaluation did 

not occur. Therefore, Roger contends that, without a reevaluation, Dr. Kelly’s opinion should be removed from the District 

Court’s consideration. Roger further contends that the District 

Court should not have relied on Dr. Kelly’s report because it 

failed to consider a parenting situation in which he and Marina 

resided in the same community, which Roger’s proposal had 

contemplated. 

¶23 Dr. Kelly generally supported restriction of Roger’s parenting 

time with the children, believing that the long distance travel 

between Salt Lake City and Belgrade was not in the children’s best 

interest. However, as Roger correctly points out, by the time of 

the hearing on the final plan, the issue of the children traveling 
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between Salt Lake City and Belgrade was removed by Roger’s proposal 

to relocate to Utah. 

¶24 Nonetheless, we do not conclude that the District Court erred 

in considering Dr. Kelly’s testimony. Although Dr. Kelly was a 

witness for Marina, Roger had every opportunity to consult with Dr. 

Kelly after Dr. Kelly’s testimony in April 2000 to obtain a reevaluation or additional information in response to the proposed 

change in Roger’s residence, but he did not do so. Roger also had 

the opportunity to consult another expert to refute Dr. Kelly’s 

recommendations and support his proposed parenting plan, but, 

again, he did not do so. Under these circumstances the District 

Court was entitled to rely on Dr. Kelly’s evaluation and 

recommendations to the extent they were still relevant, which the 

District Court did. 

¶25 Further, the failure of Dr. Kelly’s report to consider the 

proposed change in Roger’s residence does not affect the District 

Court’s findings that Marina was the primary parent, that the 

children should not spend lengthy periods away from her, that 

Marina and the children were both actively involved with their 

church and Roger was not, and that the parties did not communicate 

well regarding the children, which were the bases of the District 

Court’s conclusion that Roger’s plan was not in the best interest 

of the children. 

¶26 The District Court considered the relevant evidence presented, 

including the testimony of the parents and the expert, and reached 

an independent decision on the best interest of the children. The 
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District Court crafted a parenting plan in which the children 

continued to have primary time with Marina with Roger having 

contact Wednesday evening through Sunday morning every other week, 

time during the alternating week, as well as holidays and summer. 

We determine that the District Court’s conclusion that its final 

parenting plan was in the best interest of the children is 

supported by substantial evidence and not an abuse of discretion. 

¶27 Is Respondent entitled to attorney fees in defending this 

appeal?

¶28 Marina asserts that we should award her attorney fees and 

costs pursuant to Rule 32, M.R.App.P., on the grounds that Roger’s 

appeal was taken without substantial or reasonable grounds. Rule 

32, M.R.App.P., provides: 

If the supreme court is satisfied from the record and the 

presentation of the appeal in a civil case that the same 

was taken without substantial or reasonable grounds, such 

damages may be assessed on determination thereof as under 

the circumstances are deemed proper. 

As a general rule, this Court will not impose sanctions pursuant to 

Rule 32, M.R.App.P., unless the appeal is entirely unfounded and 

intended to cause delay, or unless counsel’s actions otherwise 

constitute an abuse of the judicial system. In Re the Marriage of 

Snow, 2002 MT 143, ¶ 31, 310 Mont. 260, ¶ 31, 49 P.3d 610, ¶ 31. 

In this case, even though we did not rule in Roger’s favor, his 

appeal was not entirely unfounded or intended to cause delay, and 

did not constitute an abuse of the judicial system. Accordingly, 

we do not award Marina her attorney fees and costs on appeal. 

¶29 Affirmed. 
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/S/ JIM RICE 

We concur: 

/S/ KARLA M. GRAY 

/S/ PATRICIA COTTER 

/S/ TERRY N. TRIEWEILER 

/S/ JIM REGNIER