DA 08-0583

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 241N

KIMBERLY F. LaVALLEY, n/k/a CUNNINGHAM,

Petitioner and Appellant,

v.

JACK LEE LaVALLEY,

Respondent and Appellee.

APPEAL FROM: District Court of the Eighth Judicial District,

In and For the County of Cascade, Cause No. CDR 03-384

Honorable Kenneth R. Neill, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Antonia Prudich Marra; Marra, Sexe, Evenson & Bell, P.C.;

Great Falls, Montana

For Appellee:

Daniel L. Falcon; Falcon, Lester & Schaff, P.C.; Great Falls, Montana

Submitted on Briefs: May 28, 2009

Decided: July 21, 2009

Filed:

__________________________________________

Clerk

July 21 2009
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Justice W. William Leaphart delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court 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 Kimberly LaValley, n/k/a Kimberly Cunningham, appeals from orders of the

Eighth Judicial District Court, Cascade County, granting a motion to modify a parenting

plan regarding two minor children she has with her former husband, Jack LaValley, and

awarding Jack attorney fees. We affirm.

¶3 Kimberly and Jack were divorced by a final decree of dissolution of marriage on

September 3, 2003. The parties have two minor children, D.L. and K.L. The parenting

plan incorporated into the final decree provided that the parties would share custody of

the children, alternating custody every other week.

¶4 In 2008, Kimberly notified Jack that she intended to move to Colorado Springs,

Colorado where her current husband, an officer in the United States Air Force, has been

transferred. Jack objected to the notice and moved to modify the parenting plan. Jack

requested that the parties’ children remain in Great Falls where they attend school and

have numerous relatives in the area. At the time, D.L. was eleven years old and K.L. was

eight years old.
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¶5 The District Court conducted a hearing on the motion to modify the parenting plan

on October 8, 2008. At the hearing, Jack requested that the court sanction Kimberly for

allegedly tampering with a witness who had been scheduled to testify on Jack’s behalf.

The witness, a teacher at D.L. and K.L.’s elementary school, sought to be excused from

testifying after Kimberly made derogatory statements about the teacher to the school’s

principal and the assistant superintendent for elementary schools. The teacher appeared

at the hearing but her testimony was excluded after the District Court determined that

Jack’s case would not be prejudiced by the absence of her testimony.

¶6 On October 23, 2008, the District Court issued its Findings of Fact, Conclusions of

Law and Order in which it adopted an amended parenting plan providing that D.L. and

K.L. would reside with Jack in Great Falls during the school year and with Kimberly in

Colorado Springs during the summer. Separately, the District Court awarded Jack

attorney fees, concluding that Kimberly’s “conduct was for the purpose of causing the

witness not to testify” and that her “conduct was outrageous and her explanation not

credible or satisfactory.”

¶7 Kimberly raises the following issues on appeal:

¶8 1. Whether the District Court erred in modifying the parenting plan when it made

Jack the primary caretaker of the parties’ minor children.

¶9 2. Whether the District Court erred in awarding Jack attorney fees as a sanction

for Kimberly’s actions regarding a potential witness.

¶10 We review the findings of fact underlying a court’s decision to modify a parenting

plan to determine whether they are clearly erroneous. Jacobsen v. Thomas, 2006 MT
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212, ¶ 13, 333 Mont. 323, 142 P.3d 859. If the findings are not clearly erroneous, then

we will overturn the court’s decision to modify the parenting plan only if there is a clear

abuse of discretion. Jacobsen, ¶ 13. We review a district court’s grant or denial of

attorney fees for an abuse of discretion. In re D’Alton, 2009 MT 184, ¶ 7, 351 Mont. 51,

209 P.3d 251.

¶11 At its discretion, a court may modify a parenting plan when it finds that the

children’s circumstances have changed and when modification of the existing plan will

serve the best interests of the children. Section 40-4-219, MCA. Further, § 40-4-212,

MCA, lists the relevant factors that a district court must consider when determining

whether the best interests of the children are served, including the wishes of the children,

the interaction and relationship between the children and their family, continuity and

stability of care, and the children’s adjustment to home, school, and community. While a

court is not required to make specific findings for each factor, it must set forth the

essential and determinative factors upon which its decision is based. In re Marriage of

Merriman, 247 Mont. 491, 493, 807 P.2d 1351, 1353 (1991).

¶12 Kimberly claims the District Court erred in making Jack, the children’s father, the

primary caretaker of D.L. and K.L. because it ignored testimony from a counselor that it

would be detrimental for the youngest child to be separated from his mother. She claims

the District Court’s findings of fact misstated or misapprehended the evidence introduced

at the hearing, particularly as to its finding that there was evidence of manipulation on the

mother’s part.
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¶13 The District Court’s findings of fact were not clearly erroneous. The court did not

have any concerns with respect to either parent, finding that each loved their children and

provided adequate homes. Further, the court found that both parents were deeply

involved in the children’s lives. However, the court also found that for purposes of

continuity, the children’s interests would be best served by remaining enrolled in the

same school, staying involved in the same activities, and continuing their relationships

with friends and relatives in the area. The court also considered that K.L., the youngest

child, wanted to go with his mother to Colorado but found that there was evidence of

manipulation on the mother’s part and that K.L. was more susceptible to such

manipulation.

¶14 With respect to attorney fees, Kimberly argues that because the witness ultimately

appeared at the hearing, there was no reason for the District Court to sanction her for

calling the potential witness’s employers. While attorney fees are not typically awarded

without express statutory or contractual authority, we have determined that an award of

attorney fees is appropriate when there is evidence of bad faith or malicious behavior.

Teamsters Union Local No. 2, Int’l Bhd. of Teamsters v. C.N.H. Acquisitions, Inc., 2009

MT 92, ¶ 27, 350 Mont. 18, 204 P.3d 733 (citing Terra West Townhomes v. Stu Henkel

Realty, 2000 MT 43, ¶ 40, 298 Mont. 344, 996 P.2d 866). The District Court did not

abuse its discretion in awarding attorney fees because it was clear that Kimberly, through

her own admissions at the hearing on October 8, 2008, attempted to intimidate a potential

witness by making derogatory statements that were unrelated to the parenting proceeding
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to the witness’s employers in an effort to keep the witness from testifying. It is irrelevant

that the teacher ultimately appeared at the hearing.

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

our 1996 Internal Operating Rules, as amended in 2003, which provides for

memorandum opinions. It is manifest on the face of the briefs and record before us that

the District Court did not err in the disposition of this matter.

¶16 Affirmed.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ MIKE McGRATH

/S/ JAMES C. NELSON

/S/ PATRICIA COTTER

/S/ JOHN WARNER