DA 17-0041

IN THE SUPREME COURT OF THE STATE OF MONTANA

2017 MT 249

IN RE THE PARENTING OF:

R.J.N. and H.E.N.,

 Minor Children.

CHELLIE NEWMAN,

 Petitioner and Appellant,

 and

WILLIAM H. NEWMAN,

 Respondent and Appellee.

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and For the County of Gallatin, Cause No. DR-07-12C

Honorable John C. Brown, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jeremy S. Yellin, Attorney at Law, Havre, Montana

For Appellee:

John P. Nesbitt, Jr., Attorney at Law, Bozeman, Montana

Submitted on Briefs: August 30, 2017

 Decided: October 10, 2017

Filed:

__________________________________________

Clerk

10/10/2017

Case Number: DA 17-0041
2

Justice Jim Rice delivered the Opinion of the Court. 

¶1 Chellie Newman (Chellie) appeals the summary dismissal of her petition to modify 

the parenting plan for her two sons with William Newman (William), by the Eighteenth 

Judicial District Court, Gallatin County. We affirm, addressing the following issue: 

Did the District Court err by dismissing the petition to modify the parenting plan 

without conducting a hearing?

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Chellie and William were married in 1999 and had two children together, R.J.N. 

and H.E.N. The marriage was dissolved in 2007, and the parties’ stipulated parenting plan 

was approved and ordered. 

¶3 In 2011, Chellie gave notice of her intention to move to California, and proposed a 

parenting plan amendment that would substantially restrict William’s time with the

children. In response, William also moved to modify the parenting plan. The Standing 

Master conducted a hearing on the proposed modifications and, on January 10, 2013, 

entered findings of fact, conclusions of law and an order adopting an amended parenting 

plan that provided the children would spend a majority of their time with William. The 

Master concluded that a threshold change of circumstances necessitating a hearing had 

occurred because of Chellie’s intention to relocate to California with the children, and her 

asserted “acts of parental alienation” against William. The Master found that Chellie had 

“engaged in various acts which are forms of parental alienation,” including refusing to 

allow William to exercise his scheduled time with the children despite his repeated 

requests, and found that there was “strong evidence that Father’s relationship with his 
3

children has been severely damaged as a result of [Chellie’s] proposed relocation to 

California with the children.” 

¶4 In February 2015, Chellie moved to modify the 2013 Amended Parenting Plan. Her 

motion stated “[t]he basis for this motion is that R.J.N. will be fifteen [15] years of age as 

of April, 2015, and H.E.N. is twelve [12] years of age, and both children desire a change 

from the children residing primarily with [William] to a new parenting plan where they 

reside primarily with [Chellie.]” Her supporting affidavit simply reiterated the children’s 

ages and their desire to live primarily with Chellie. William moved to dismiss Chellie’s 

motion, arguing that it failed to demonstrate changed circumstances necessary for a hearing 

to be conducted on modification of the parenting plan. The Master entered an order 

summarily denying Chellie’s motion. Chellie filed objections, arguing the Master should 

have held an evidentiary hearing and conducted an in camera interview of the children. 

After briefing and a hearing in which argument was received, the District Court affirmed 

the order, reasoning that “Chellie failed to meet the threshold showing for a hearing, and 

the Standing Master correctly granted [William’s] Motion to Dismiss. . . .” Chellie appeals.

STANDARD OF REVIEW

¶5 When considering parenting plan modifications, we review conclusions of law for 

whether they are correct. In re Marriage of Guffin, 2010 MT 100, ¶ 20, 356 Mont. 218, 

232 P.3d 888. Two standards of review are relevant in a case involving both a standing 

master and the district court: the standard the district court applies to the master's report 

and the standard we apply to the district court’s decision. In re Marriage of Davis, 2016 
4

MT 52, ¶ 4, 382 Mont. 378, 367 P.3d 400 (citing In re Marriage of Kostelnik, 2015 MT 

283, ¶ 15, 381 Mont. 182, 357 P.3d 912). We review a district court’s decision de novo to 

determine whether it applied the correct standard of review to a standing master’s findings 

of fact and conclusions of law. Kostelnik, ¶ 15 (citing In re Marriage of Patton, 2015 MT 

7, ¶ 17, 378 Mont. 22, 340 P.3d 1242). A district court reviews a standing master’s findings 

of fact for clear error, Patton, ¶ 24, and its conclusions of law to determine if they are 

correct. Patton, ¶ 43.

DISCUSSION

¶6 Did the District Court err by dismissing the petition to modify the parenting plan 

without conducting a hearing?

¶7 Chellie argues that because one of the children was fourteen years of age, and 

wished to reside primarily with her, these circumstances provided sufficient grounds to 

warrant a hearing on her proposed modification to the parenting plan. William responds 

that the Standing Master and District Court correctly concluded Chellie did not satisfy her 

burden under the statute to establish a change in circumstances necessary to justify a 

hearing on modification. 

¶8 Section 40-4-219(1), MCA, provides the standards for modification of a parenting 

plan, requiring a change of circumstances to have occurred and a finding that an 

amendment is necessary to serve the best interest of the child:

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. 
5

As provided, these standards are to be satisfied “upon the basis of facts that have arisen 

since the prior plan or that were unknown to the court at the time of the entry of the prior 

plan.” Section 40-4-219(1), MCA.

¶9 Pursuant to § 40-4-220(1), MCA, the party seeking modification “must file a motion 

and supporting affidavit showing cause for modification.” In re Marriage of D’Alton, 2009 

MT 184, ¶ 9, 351 Mont. 51, 209 P.3d 251. Requests for parenting plan modifications “must 

satisfy an initial statutory threshold of changed circumstances.” In re Marriage of Whyte, 

2012 MT 45, ¶ 23, 364 Mont. 219, 272 P.3d 102; D’Alton, ¶ 9. A demonstration of changed 

circumstances is a “prerequisite” to amendment of a parenting plan, and “a district court 

may not modify an existing custody arrangement” without such a finding. In re Marriage 

of Jacobsen, 2006 MT 212, ¶ 17, 333 Mont. 323, 142 P.2d 859 (citing In re Marriage of

Oehlke, 2002 MT 79, ¶ 12, 309 Mont. 254, 46 P.3d 49). The party seeking modification 

of a parenting plan “carries a heavy burden of proof.” D’Alton, ¶ 11. Section 40-4-220(1), 

MCA, provides that a court “shall deny the motion unless it finds that adequate cause for 

hearing the motion is established by the affidavits, based on the best interest of the child, 

in which case it shall set a date for hearing . . . .” 

¶10 Here, Chellie argues the District Court erred in denying her request for a hearing. 

The District Court concluded that the assertions in Chellie’s motion and affidavit about 

R.J.N.’s age and the children’s desire to live primarily with her “do not constitute a 

sufficiently changed circumstance warranting a hearing under § 40-4-220(1), MCA.” It 

cited our statement in D’Alton that “the mere aging of children so that they are now in 
6

school could hardly be considered ‘unknown to the court at the time of the entry of the 

prior plan’ as required by § 40-4-219(1), MCA,” D’Alton, ¶ 11, to conclude that “[t]he 

mere passage of time is not sufficient to establish a changed circumstance of the child.”

¶11 We recognize that one of the statutory criteria in determining a child’s best interest 

is whether “the child is 14 years of age or older and desires the amendment,” which the 

District Court may discretionarily consider and weigh. Section 40-4-219(1)(c), MCA. 

While we have not adopted a blanket rule that the aging of a child, in conjunction with 

consideration of his or her desires, can never constitute a change in circumstances 

warranting a hearing on modification, we agree with the District Court’s conclusion that 

such a change was not demonstrated here. The parties’ parenting plan was recently revised 

after substantial litigation, and though the children’s wishes were not expressly considered 

at that time, their ages were noted and their circumstances were extensively assessed. 

Chellie’s pleadings simply noted the children’s current ages and their desire to live 

primarily with her. With nothing more, Chellie’s assertions appeared to merely return the 

case to the core issue litigated shortly before, in 2013: Chellie’s desire to have the children 

move with her to California, a plan that was found at that time to have “severely damaged” 

the children’s relationship with William. 

¶12 A district court has “broad discretion when considering the parenting of a child.” In 

re Marriage of Tummarello, 2012 MT 18, ¶ 34, 363 Mont. 387, 270 P.3d 28. However, in 

a modification context, such discretion is contoured by an initial determination of changed 

circumstances, a legal conclusion. See, e.g., Jacobsen, ¶ 17; Oehlke, ¶ 12; Whyte, ¶ 28. 
7

The statute promotes stability for the children and discourages unnecessary litigation over 

parenting plans. Whyte, ¶ 23. We conclude the District Court correctly concluded that the 

Standing Master’s decision dismissing the petition was legally correct as failing to 

demonstrate a change in circumstances.

¶13 Affirmed.

/S/ JIM RICE

We concur: 

/S/ MIKE McGRATH

/S/ MICHAEL E WHEAT

/S/ BETH BAKER

Justice Beth Baker, concurring.

¶14 In light of the statutory standards for amendment of a parenting plan and our case 

law, the circumstances of this case—particularly the recent litigation over the parenting 

plan—did not mandate a hearing as a matter of law on Chellie’s petition, and I agree with 

the Court’s disposition of her appeal. But today’s decision should not be read to minimize 

the expressed wishes of teenaged children who are coping with their separated families.

¶15 I agree with most of what Justice McKinnon expresses in her Dissent. The problem 

is that § 40-4-219, MCA, requires a showing of changed circumstances “and that the 

amendment is necessary to serve the best interest of the child.” (Emphasis added.) The 
8

statute provides that a teenage child’s wishes are to be considered “[i]n determining the 

child’s best interest,” not in determining whether there has been a change in circumstances. 

Section 40-4-219(1), MCA. We thus have held that age alone does not automatically 

qualify as a “changed circumstance” sufficient to justify a parenting plan amendment. See 

D’Alton, ¶ 11 (concluding that children’s “changed circumstances” of being six years older 

than at time of parenting plan did not “satisfy the initial threshold criteria for this Court to 

order a show cause hearing to amend the parenting plan”); Whyte, ¶ 24 (holding that change 

in child’s age did not constitute a “changed circumstance” sufficient to justify district 

court’s amendment of the parties’ parenting plan). But as a child grows up, that child’s 

circumstances may change in myriad ways that no one thought about when the parenting 

plan was adopted. Developments in a child’s life, seemingly routine from a court’s 

perspective, may have significant consequences to an adolescent at a vulnerable time in 

life. The child’s wishes are entitled to serious consideration in order to protect the best 

interest of the child, even if it means dragging the court back into the family’s affairs. 

¶16 In light of the language and interpretation of the statute, parents who want to 

maintain control over the governance of their own family may be able to prevent ongoing 

court involvement by negotiating parenting plans in the first place that acknowledge the 

importance of their children’s changing needs and desires as the children grow up. For 

example, parents could agree to an opportunity for review of the plan and of the child’s 

best interest if the child expresses a desire to change the plan after turning fourteen. This 

assumes, of course, that the parents start with the child’s best interest truly at heart and 
9

maintain that focus on putting the child’s interest first. That is key to the success of any 

parenting plan. To guard against manipulation, the parenting plan could include a 

requirement that the moving party pay the other parent’s attorney fees if the court 

determines that a modification request is not pursued in good faith based on the child’s best 

interest.

¶17 It is important that parties have effective and equal access to the courts to resolve 

contentious parenting disputes, or in cases where collaborative solutions are not 

appropriate given the family’s dynamics. But court processes can be inadequate means to 

handle “the custody and placement of innocent children.” In re Brockington, 2017 MT 92, 

¶ 37, 387 Mont. 260, 400 P.3d 205 (McGrath, C.J., dissenting); see also Whyte, ¶ 45 (Baker, 

J., dissenting). Participants in our justice system must continue to find ways to help 

families recognize the best interest of their children and meet the needs of all family 

members without court intervention. If court intervention is needed, the district court is in 

the best position to determine the weight to be given a child’s expressed desires. See In re 

Marriage of Graham, 2008 MT 435, ¶ 8, 347 Mont. 483, 199 P.3d 211; In re Marriage of 

Burk, 2002 MT 173, ¶¶ 20-24, 310 Mont. 498, 51 P.3d 1149. In most cases the court at 

least should consider those desires before summarily denying a motion to amend. Here,

however, Chellie’s petition fell short of what we have required to compel a hearing. 

/S/ BETH BAKER
10

Justice Laurie McKinnon, dissenting.

¶18 Section 40-4-219, MCA, is the statute in Montana dedicated to amending parenting 

plans. A court may amend a parenting plan if it finds, upon the basis of facts that have 

arisen since the prior parenting plan, that: (1) a change in the circumstances of the child 

has occurred, and (2) the amendment is necessary to serve the best interests of the child. 

Section 40-4-219(1), MCA. Section 40-4-219, MCA, directs the court in its substantive 

analysis of whether an amendment is necessary. Importantly, § 40-4-219(1)(c), MCA, 

expressly provides that the court may consider that “the child is 14 years of age or older 

and desires the amendment.” Other statutory factors warranting further inquiry by the 

court, which are also expressly set forth, are whether “the parents agree to the amendment,” 

§ 40-4-219(1)(a), MCA; whether “the child has been integrated into the family of the 

petitioner with consent of the parents,” § 40-4-219(1)(b), MCA; whether “one parent has 

willfully and consistently . . . refused to allow the child to have any contact with the other 

parent” or “attempted to frustrate or deny contact with the child . . . ,” § 40-4-219(1)(d), 

MCA; and, whether one parent has changed “the child’s residence in a manner that 

significantly affects the child’s contact with the other parent,” § 40-4-219(1)(e), MCA. 

The Legislature enumerated these specific considerations on equal footing and priority, 

thus indicating that a child who is 14 years of age is entitled to have his or her wishes 

considered for purposes of amending a parenting plan. Importantly, § 40-4-219(1)(c), 

MCA, which is set forth in a statute dedicated to amending a parenting plan, is distinct 

from the requirement that the court consider “the wishes of the child” when determining 
11

the child’s best interests at the initial parenting plan proceeding pursuant to § 40-4-212, 

MCA. Section 40-4-212(1)(b), MCA.

¶19 Section 40-4-220, MCA, provides the procedure for invoking the provisions of 

§ 40-4-219, MCA. Section 40-4-220(1), MCA, requires that, in the absence of agreement, 

the party seeking an amendment must file an affidavit setting forth facts supporting the 

amendment. Here, Chellie gave notice in February 2015 that she wanted to amend the 

2013 parenting plan on the basis that R.J.N. was almost 15 years old and H.E.N. was 12 

years old, and both wanted to reside primarily with Chellie. At the time the District Court 

affirmed the Standing Master’s dismissal of Chellie’s petition, R.J.N. was close to 17 years 

old and H.E.N. was 14 years old. Chellie’s motion was supported by an affidavit indicating 

that both R.J.N. and H.E.N. wished to amend the parenting plan. No opposing affidavit 

was filed by William.

¶20 I would conclude that Chellie’s motion and affidavit, together with the express 

provision of § 40-4-219(1)(c), MCA, presented “adequate cause for hearing [Chellie’s] 

motion” and that a hearing on an order to show cause should have been granted. Section

40-4-220(1), MCA. The District Court, however, concluded on the basis of In re Whyte

that “despite R.J.N.’s age and apparent desire to amend the Parenting Plan (even if 

established at an evidentiary hearing), these facts alone do not constitute a sufficiently 

changed circumstance warranting a hearing under § 40-4-220(1), MCA.” The District 

Court observed that “Chellie failed to cite any case, nor has this Court come across any 

such Montana case in its research, that supports Chellie’s position.” 
12

¶21 In my opinion, the provisions of § 40-4-219(1)(c), MCA, supported Chellie’s 

request and she did not need to recite authority from this Court to merit further inquiry into 

her children’s wishes. This Court, however, states it agrees “with the District Court’s 

conclusion that such a change [of circumstances] was not demonstrated here” and that 

“Chellie’s pleadings simply noted the children’s current ages and their desire to live 

primarily with her.” Opinion, ¶ 11. Where no opposing affidavit contests the applicability 

of § 40-4-219(1)(c), MCA, or sets forth other facts relevant to the children’s best interests, 

Chellie has met the threshold inquiry of demonstrating the children desire an amendment 

and there is adequate cause for a hearing. We are not addressing here whether an amended 

parenting plan should have been granted; rather, we are deciding whether a hearing should 

have been ordered because a child 14 years of age or older desired an amendment. Indeed, 

filed with Chellie’s motion was a request that the court inquire into the children’s wishes 

in the privacy of the court’s chambers. 

¶22 Importantly, the District Court did not base its decision on the findings this Court 

makes: that the parenting plan was recently revised after substantial litigation; that the 

children’s wishes were not expressly considered in previous litigation, but their 

circumstances were extensively assessed; and that Chellie’s assertions appeared to merely 

return the case to the core issue litigated in 2013. Opinion, ¶ 11. None of these findings 

were made or even noted by the District Court. The District Court determined, as a matter 

of law, that a child who is 14 years of age and desires an amendment has not met the 

threshold inquiry of demonstrating a substantial change in circumstances. To be more 
13

precise, the District Court reviewed the Standing Master’s order dismissing Chellie’s 

petition for the reasons “set forth in [William’s] Motion and Reply.” I cannot accept that 

this gave adequate consideration to Chellie’s motion in light of the specific statutory 

provision requiring an adolescent’s wishes be heard.

¶23 In In re Whyte, a trial court granted a Mother’s motion to amend a parenting plan 

and this Court reversed. In re Whyte, ¶¶ 12, 24. The trial court expressly considered the 

wishes of an eleven year old child and other circumstances in the child’s life. In re Whyte, 

¶ 12. We vacated the amended parenting plan, concluding that the evidence the trial court 

received was “insufficient to establish the statutory standard for amendment of the 

parenting plan.” In re Whyte, ¶ 24. In our analysis of § 40-4-219(1)(c), MCA, we stated, 

“[w]hile consideration of the child’s desires is statutorily required when the child is 14 

years old, the ultimate decision is for the court to make, based upon the evidence, and 

cannot be delegated to the child.” In re Whyte, ¶ 28 (emphasis added). Thus, in In re 

Whyte we expressly stated that § 40-4-219(1)(c), MCA, requires a court consider the child’s 

desires when the child is fourteen years old. We determined the provision did not apply to 

the parenting plan at issue in In re Whyte because the child was only eleven years old. In 

re Whyte, ¶ 28. Here, in contrast, Chellie provided an affidavit that the children, at least 

one of them older than 14, desired an amendment pursuant to § 40-4-219(1)(c), MCA. No 

opposing evidence was presented. It is patently clear that the District Court dismissed the 

petition on what it believed was a matter of law. Although we add facts to our decision 

which were not articulated by the District Court so the court’s dismissal might be justified, 
14

our conclusion that Chellie has not met her threshold statutory burden conveys to an 

adolescent that his or her growth, maturity, and desire to direct and take control of his or 

her own life is not worthy of a hearing and consideration by the court. I am very much 

opposed to the suggestion that a child’s voice does not merit consideration by a court in a 

parenting proceeding, particularly when the Legislature has concluded otherwise. 

¶24 In 1983 the Legislature added what is now § 40-4-219(1)(c), MCA. SB 371, 48th 

Leg. (Mont. 1983). The provision, introduced as Senate Bill 371, was titled, “An Act 

Providing that if it is in the Best Interest of the Child, a Child Custody Decree May be 

Modified When a Child Aged 14 Years or Older Desires that it be Modified; Amending 

Section 40-4-219, MCA.” Proponents of the provision expressed concern that, under the 

existing statutory framework, a child of appropriate age was disenfranchised from 

expressing his or her wishes and desires as to a parenting plan amendment. Senate 

Committee on Judiciary Hearing, Exhibit A, 1 (February 11, 1983). Proponents believed 

that “our young people have a right to input their desires requesting a custody modification 

upon a court.” Senate Judiciary Committee Hearing, Exhibit A, 1 (February 11, 1983). 

The Senate intended the provision to “allow a 14-year-old child to express their desires as 

to which parent they are placed with” without binding the court to the child’s desires. 

Senate Judiciary Committee Hearing Minutes, 4 (February 15, 1983). The House of 

Representatives noted that the provision would not permit a child to choose who he or she 

lived with “as a matter of right,” but instead the provision would allow a judge to take a 

child’s desire “into consideration once the child reaches [age 14].” House Judiciary 
15

Committee Hearing Minutes, 6 (March 14, 1983). Despite subsequent amendments to 

§ 40-4-219, MCA, a child of age 14 or older still has the right to express his or her desire 

for an amended parenting plan pursuant to § 40-4-219(1)(c), MCA, and we must ensure 

that right is protected.

¶25 Contested parenting proceedings are hard for everyone—the parents, the family, the 

witnesses, the court; but most particularly, the children for whom the proceedings are 

designed to serve and protect. The proceeding should not shut out the voice of the very 

individual upon which the proceeding is focused. While the court obviously is not required 

to adopt a parenting plan consistent with the child’s wishes, it is nonetheless important for 

the child that he or she is heard by the court. Given the contentious nature and substantial 

amount of litigation in these proceedings, as noted by the Court, it would seem particularly 

appropriate that the voices and wishes of R.J.N. and H.E.N.—here, two adolescents—be 

heard, through any means the court deemed appropriate. At least, in such a fashion, they 

would have the benefit of knowing that their wishes were heard and considered. In my

opinion and as explained above, this was what the Legislature contemplated when it 

allowed for the amendment of a parenting plan to consider the wishes of a child who is 14 

years of age or older. Section 40-4-219(1)(c), MCA.

¶26 I respectfully dissent from the Court’s decision that Chellie’s motion and 

uncontroverted affidavit did not establish adequate cause for a hearing.

/S/ LAURIE McKINNON