DENIAL OF GRANDPARENT VISITS: NO BEST INTEREST ANALYSIS NECESSARY?

Glueckert v. Glueckert 2015 MT 107

Mom and dad separate and are getting a divorce. Dad is in the military stationed elsewhere. They have a new baby boy. Before there is any parenting plan between mom and dad and before mom and dad's divorce is final, paternal grandparents file a petition for grandparent contact via Section 40-9-102 MCA when their grandson is 7 months old. The hearing takes place when the grandson is 13 months old. Mom allows paternal grandparents contact, but only in her home and under her supervision. Grandparents want multiple unsupervised contacts per week. Mom opposes the frequency and opposes the request that the visits be unsupervised on the basis of grandparent religious views, attitude toward corporal punishment and fears that the grandparents will bad mouth her. District court finds that mom is a fit parent, that grandparents are safe and appropriate, but rules that the grandparents have failed to overcome the presumption in favor of mom's wishes. Grandparents appeal on the basis that the District Court failed to make findings as to the best interests of the child.

The grandparent visitation statute creates a two part decision tree:

1. If the parent is "unfit" then the grandparents must prove only 1 thing: that grandparent contact is in the best interests of the child.
2. If the parent is "fit" then the grandparents must prove 2 things: A) that grandparent contact is in the best interests of the child; AND B) that the presumption in favor of the parent's wishes has been rebutted.

Proof must be by clear and convincing evidence. Here, the District Court found mom to be a fit parent. Thus the District Court had to start with the presumption in favor of mom's wishes. The District Court found that the grandparents had not overcome this presumption and did not move on to consider what the best interests of the child would require.

The Supreme Court affirmed, ruling that if the parent was fit, if the grandparents either failed to overcome the presumption in mom's favor OR failed to prove the visitation was in the child's best interests their petition could properly be denied. In short, if the parent is fit the Court only has to find one of the additional factors unproven to deny grandparents wishes.

Justice Rice wrote an interesting opinion concurring with the legal analysis, but dissenting from the application of that analysis here. He agreed that if a grandparent fails to overcome the presumption in favor of a parent's wishes, the trial court need not go further and analyze the best interests of the child. But he found that the grandparents HAD rebutted the presumption. Quoting mom's answer on cross, Justice Rice found that she admitted that visits as limited by her were not in her little boy's best interests.

It is hard to see how a trial court could use any standard -- other than best interests of the child -- to analyze whether the presumption had been overcome. In any case, Justice Rice in this case essentially collapsed the fit parent 2 part analysis into 1: he judged the presumption by "best interests."

Here is the grandparent statute in full:

40-9-102. Grandparent-grandchild contact. (1) Except as provided in subsection (7), the district court may grant to a grandparent of a child reasonable rights to contact with the child, including but not limited to rights regarding a child who is the subject of, or as to whom a disposition has been made during, an administrative or court proceeding under Title 41 or this title. The department of public health and human services must be given notice of a petition for grandparent-grandchild contact regarding a child who is the subject of, or as to whom a disposition has been made during, an administrative or court proceeding under Title 41 or this title. 
     (2) Before a court may grant a petition brought pursuant to this section for grandparent-grandchild contact over the objection of a parent whose parental rights have not been terminated, the court shall make a determination as to whether the objecting parent is a fit parent. A determination of fitness and granting of the petition may be made only after a hearing, upon notice as determined by the court. Fitness must be determined on the basis of whether the parent adequately cares for the parent's child. 
     (3) Grandparent-grandchild contact may be granted over the objection of a parent determined by the court pursuant to subsection (2) to be unfit only if the court also determines by clear and convincing evidence that the contact is in the best interest of the child. 
     (4) Grandparent-grandchild contact granted under this section over the objections of a fit parent may be granted only upon a finding by the court, based upon clear and convincing evidence, that the contact with the grandparent would be in the best interest of the child and that the presumption in favor of the parent's wishes has been rebutted. 
     (5) A person may not petition the court under this section more often than once every 2 years unless there has been a significant change in the circumstances of: 
     (a) the child; 
     (b) the child's parent, guardian, or custodian; or 
     (c) the child's grandparent. 
     (6) The court may appoint an attorney to represent the interests of a child with respect to grandparent-grandchild contact when the interests are not adequately represented by the parties to the proceeding. 
     (7) This section does not apply if the child has been adopted by a person other than a stepparent or a grandparent. Grandparent-grandchild contact granted under this section terminates upon the adoption of the child by a person other than a stepparent or a grandparent. 
     (8) A determination pursuant to subsection (2) that a parent is unfit has no effect upon the rights of a parent, other than with regard to grandparent-grandchild contact if a petition pursuant to this section is granted, unless otherwise ordered by the court.

BEST EXPLANATION OF TIME RULE FORMULA

TIME RULE FORMULA: HOW IT EQUALLY DIVIDES FUTURE PAYMENTS

Husband and wife divorce in 2000. They divide their assets by settlement agreement, including husband's Teamster's pension. 13 years later, wife files a motion to adopt a QDRO to allocate her share of the pension. Husband objects to her draft QDRO.

The agreement provided that the pension would be "...equally divided between [them] as of the date of entry of a final decree...."

Wife proposed the following language: 50% multiplied by [Husband's] total hours of benefit service under the Plan earned from the date of marriage to the date of dissolution divided by [Husband's] total hours of benefit service earned up to Alternate Payee's Benefits Commencement Date. Husband proposed different language for the QDRO, essentially arguing that she should receive half of his benefits as if he had quit on the date of the final decree. The trial court adopted wife's QDRO, finding that the Montana Supreme Court only allowed a "lump sum" division based on the present value of future payments or the "time-rule" formula proposed by wife. Husband appeals.

The Supreme Court held that the trial court did the right thing for the wrong reasons. The reasons stated by the trial court were wrong simply because the freedom to contract theoretically would allow other methods of dividing up pension benefits beyond the two stated methods.

The reason the Supreme Court found that the trial court did the right thing by adopting the time-rule formula is the most interesting part of the opinion. Here's the key language:

"There are three conceptual components to the value of the pension, given that the pension has yet to fully vest or to begin paying benefits and that the value of the pension is to be divided at one time and paid in the future.

First, there is the vested monetary value of the pension at dissolution, based on the employer and employee contributions and any growth - from interest or otherwise - to the date of dissolution. 

Second, there is interest that may accrue on the value of the pension between dissolution and when benefit payments are made. See Spawn, ¶ 15; Rolfe, 234 Mont. at 298-99, 766 P.2d at 226. 

Third, there is potential for growth or loss in value that is attributable to sources other than interest. This may include, for example, growth from increased contributions or losses due to termination or early retirement."

The time-rule formula takes all three components into account. Husband's proposed language only takes the first component into account. Literally a dollar 13 years from now is not worth the same as a dollar today. So to equally divide between two spouses the future monthly benefits accruing to one of them, the Court held that: 

"¶16 Equal division of an amount to be paid in deferred installments requires equal division of any interest that may accrue during deferral. Each "spouse is entitled to increases or accruals on her [portion] because of the delay in receiving those payments."
         
Finally, the Court found that before either of them receive any payments, there may be gains other than interest, based on employer contributions and increased contributions based on non-merit pay hikes. The time-rule formula takes this component into account.

("[T]he greater-value later years would not have been possible without the lesser-value earlier years. We cannot say the years after the marriage were more valuable than the years during the marriage."). Neither the post-dissolution potential for loss or gain is represented in the vested monetary value of the pension at dissolution, yet each is part of the value of the pension at dissolution. Only by apportioning this post-dissolution potential to each spouse can the value of the pension at dissolution be equally divided and paid at a point in the future." See paragraph 17.

CROSS APPEAL

There were two smaller points made. The parties had included a "prevailing party" attorney fee paragraph. Wife was not awarded attorney fees despite the fact that she clearly won. But she did not cross appeal. The Court ruled that "...a party must cross-appeal if the party seeks to change any part of the judgment below." Paragraph 25. Husband had included as part of his appeal a claim of trial court error in not awarding him attorney fees. That was not good enough. 

ATTORNEY FEES ON APPEAL

However, the Supreme Court awarded her prevailing party attorney fees on appeal, remanding to the trial court to determine the amount.

CADENA V. FRIES 2015 MT 90

PRIMARY WITH MOM IN MONTANA IF SHE MOVES BACK, PRIMARY WITH DAD IN MONTANA IF SHE DOESN'T

Dad and Mom live together in Missoula with their 1 year old child. They never marry. Dad works long hours. Mom stays home with child. Mom came to Missoula from Ohio to obtain her college education. Mom returns to Ohio to attend her sister's wedding in March, 2013. She says she will come back after the wedding, then does not. She makes a series of excuses for her failure to return. After a month in Ohio Mom tells Dad she's staying in Ohio.

Dad files a parenting plan action in Missoula. The standing master orders Mom to return with their child to Missoula by July 22 and Dad to both purchase a plane ticket for Mom and child -- and to move out of their former joint home so Mom would have a place to stay. Dad gets the plane tickets. Mom doesn't come. There is a telephonic hearing on July 25. Mom could not be reached.

Mom files a parenting action in Ohio and moves the Missoula Court to defer to Ohio claiming inconvenient forum. After an evidentiary hearing in Ohio, Ohio court dismisses for lack of jurisdiction under the UCCJEA. In February, 2014, 11 months after Mom's move to Ohio, the Missoula Court holds a hearing. Dad asks for primary care, but states no objection to Mom having primary care if she returns to live in Missoula.

District Court rules that the child will be in Dad's primary care unless Mom returns to live in Missoula, in which case Mom will enjoy primary care. The Court finds both parents competent and the best interests of the child factors do not strongly favor either parent. But the District Court found that Mom lied to Dad about returning to Montana and made no effort to tell their child about Dad or otherwise foster a relationship between Dad and the child. The Court found that Mom's constitutional right to travel was outweighed by 1) Dad's right to regular contact and 2) the child's right to an on-going relationship with Dad.

Mom appeals. Supreme Court affirms, distinguishing In Re D.M.G. 1998 MT 1, which reached the opposite conclusion.

1. The freedom to travel is a fundamental constitutional right that can only be restricted by a compelling state interest.
2. Best interests of a child can be a compelling state interest.
3. Trial courts are prohibited from "any presumption that the moving parent is acting against a child's best interest simply because he or she changes her residence in a manner that significantly affects the child's contact with the other parent." See ¶17. 
4. This case however, turned on 212(l) which concerns whether the child has frequent and continuing contact with both parents. Although the District Court did not cite this best interests factor, it did make specific fact findings that clearly pointed to this factor. The essence of this decision was that if the child did not live in Missoula, the child simply would not have much of a relationship with dad.
5. The Supreme Court noted that although this was not an amendment case, that "a parent's decision to move may be considered against the best interests of a child if the parent's decision "exemplifies a 'willful and consistent' attempt to frustrate or deny" contact between the child and his or her other parent. The District Court found such attempts present here." That factor appears in Section 40-4-219 (1)(d) MCA. See  ¶20 for the quotation. 

This is the second opinion from the Montana Supreme Court since the 1st of the year in which the case turned on mom's failure to encourage the child's relationship with dad. See Marriage of Marez 2014 MT 333

Here are the central quotations from the opinion.

"¶12 The freedom to travel throughout the United States, and "to migrate, resettle, find a new job, and start a new life," has long been recognized as a fundamental constitutional right. Shapiro v. Thompson, 394 U.S. 618, 629-31, 89 S. Ct. 1322, 1328-29 (1969), overruled on other grounds by Edelman v. Jordan, 415 U.S. 651, 671, 94 S. Ct. 1347, 1360 (1974). The exercise of this fundamental right may be restricted only by a compelling state interest. Dunn v. Blumstein, 405 U.S. 330, 339, 92 S. Ct. 995, 1001 (1972); In re Marriage of Cole, 224 Mont. 207, 213, 729 P.2d 1276, 1280 (1986).

¶13 Such a compelling state interest may be found in "furtherance of the best interests of a child, by assuring the maximum opportunities for the love, guidance and support of both natural parents . . . ." Cole, 224 Mont. at 213, 729 P.2d at 1280. A custodial parent "is entitled, to the greatest possible extent, to the same freedom to seek a better life for himself or herself and the children as enjoyed by the noncustodial parent." Cole, 224 Mont. at 213, 729 P.2d at 1280. This freedom is qualified, however, by "the state's interest in protecting the best interests of the child and the competing interests of the [Page 7] noncustodial parent." Cole, 224 Mont. at 213, 729 P.2d at 1280. Thus, in cases implicating a parent's exercise of his or her fundamental right to travel, "it is the court's task to attempt to reconcile the interests of both parents with the best interests of the child." Cole, 224 Mont. at 213, 729 P.2d at 1280.

¶14 A restriction on a parent's fundamental right to travel must be imposed cautiously and only where there is sufficient proof that the restriction is in the best interest of the child. D.M.G., ¶ 22; Cole, 224 Mont. at 213, 729 P.2d at 1281. The parent seeking the restriction must provide "case-specific proof" that the restriction is in the child's best interest: that is, "legitimate, case-specific reasons and evidence pertaining to the particular child," rather than "general discussion" about the effects of relocation on children of separation or divorce. D.M.G., ¶¶ 24, 30.

19 The District Court did not enter a specific finding with respect to the child's frequent and continuing contact with both parents. Section 40-4-212(1)(l), MCA. The District Court did, however, enter several findings clearly pertaining to this factor. The District Court found that Pirkle refused to bring the child to Montana when ordered by the court to do so, despite Collie agreeing to pay the cost of travel. The District Court found that Pirkle made no efforts to foster a relationship between Collie and the child, and did not explain to M.C. that Collie is her father or encourage her to talk to him. The District Court found that Pirkle had no pictures of Collie in her home and had not given any pictures of M.C. to Collie. The District Court concluded its findings by saying, "despite the Mother's claim that she wants the Father to have a relationship with his [[Page 11] daughter, there have been no active efforts on the part of the Mother to foster ties between Father and daughter."


¶20 The findings here are in significant contrast to the circumstances present in D.M.G., ¶ 26, where the district court found that "[father] visits the children to the extent he is able and remains involved in their lives; and [mother] has not interfered in his efforts." Here, the District Court found that Pirkle had significantly interfered in Collie's ability to remain involved in M.C.'s life after her move to Ohio by not exchanging photos, not talking to M.C. about her father, and refusing to travel to Montana with M.C. even when such travel was court-ordered and paid for. This is the kind of "case-specific proof we required in D.M.G., ¶ 30. Although in this case we address an initial parenting plan, rather than the amendment of a parenting plan, we also find instructive our statements in Guffin II, ¶ 33, that a parent's decision to move may be considered against the best interests of a child if the parent's decision "exemplifies a 'willful and consistent' attempt to frustrate or deny" contact between the child and his or her other parent. The District Court found such attempts present here. The record before the District Court demonstrated that Collie was the parent most likely to facilitate frequent and continuing contact with the other parent. It was therefore appropriate for the District Court to order that, if Collie and Pirkle remained in a long-distance parenting situation, it would be in M.C.'s best interests for Collie to become the primary residential parent. See In re Chamberlin, 2011 MT 253, ¶ 24, 362 Mont. 226, 262 P.3d 1097.

(Bold emphasis added).

In Re Parenting of M. C. 2015 MT 57

NO TITLE NECESSARY FOR TRANSFER OF OWNERSHIP OF BOAT (MOVABLE OBJECT) TO BE EFFECTIVE

Chabots owe money. Weber has judgment against them for $7,500 obtained in late 2013. Chabots own a nice boat, stored in their storage unit. Wheelers buy the boat and trailer for $48,000. Chabots give them a bill of sale in March, 2014. Wheelers pay the money by check. Chabots cash their check. Chabots sign the certificates of title. Wheelers don't. The Wheelers are not ready to pick up the boat and trailer, which remain in the storage unit. Weber obtains writ of execution for the storage unit and goes and gets the boat in May, 2014. Wheelers sue to get their boat back. 

Wheelers win. The Supreme Court held as follows:

"¶10...The statutes in that title dictate the procedures for obtaining certificates of title, but they do not regulate how ownership may be obtained or transferred. See, e.g., § 61-3-220, MCA. Indeed, as used in Title 61, MCA, "owner" is defined as "a person who holds the legal title to a vehicle. . . . [T]he owner is the person in whom is vested the right of possession or control." Section 61-1-101(52), MCA. This definition makes no reference to the certificate of title, which is merely the "verifiable record of ownership." Section 61-1-101(7), MCA (emphasis added). Title 61, MCA, and the certificate of title have no bearing on this appeal.
¶11 Instead, Montana's Uniform Commercial Code (MUCC), Title 30, chapter 2, MCA, provides the rules for determining ownership. The MUCC applies to transactions in goods. Section 30-2-102, MCA. Goods include "all things . . . which are movable at the time of identification to the contract for sale." Section 30-2-105(1), MCA. As a boat and a trailer are movable, the sale of a boat and a trailer is a transaction in goods. Cf. Safeco Ins. Co., 215 Mont. at 200, 695 P.2d at 1313 (holding that an automobile was movable and therefore a good for the purposes of the MUCC). Thus, the MUCC controls our decision in this case.
Page 5
¶12 According to the MUCC, the "rights of unsecured creditors of the seller with respect to goods which have been identified to a contract for sale are subject to the buyer's rights to recover the goods under this chapter (30-2-502 and 30-2-716)." Section 30-2-402(1), MCA. Here, Webber is an unsecured creditor, the Chabots are sellers, and the Wheelers are buyers. Thus, Webber's rights to the boat and trailer were subject to the Wheelers' rights if the goods were identified to the contract of sale between the Chabots and Wheelers.
¶13 If there is no agreement to the contrary, identification occurs "when the contract is made if it is for the sale of goods already existing and identified." Section 30-2-501(1)(a), MCA. Here, the Wheelers and Chabots did not explicitly agree how and when identification to the contract would occur, and the boat and trailer existed and were identified at the time the contract for sale was made. Thus, in this case identification occurred at the time the contract was made.
¶14 As identification happened before Webber seized the boat and trailer, the Wheelers' rights to the boat and trailer are superior to Webber's. Section 30-2-402(1), MCA. The Wheelers, therefore, have the right to recover the boat and trailer. Sections 30-2-402(1) and -716, MCA."

Not a family law case, but interesting -- and it could come up in a family law case sometime.

Wheeler v. Webber 2015 MT 61N

STANDARD OF LIVING FOR MAINTENANCE IS STANDARD DURING MARRIAGE/ NO PROBLEM EXCLUDING TESTIMONY OF SPOUSAL ABUSE

Equitable division of the marital estate and maintenance were the issues in this case. The case turned on the failure of the District Court to rule on wife's post trial motions, ignoring wife's contribution to the marriage as a homemaker and wife's entitlement to maintenance.

This was a 14 year marriage between veterinarian and homemaker. No children. Million dollar estate with only $55,000 in debt. Most of the assets were husband’s premarital property. Wife made significant contributions to the maintenance of husband’s premarital property. Husband is retired. Wife moved out, earned little income and obtained subsidized housing. She received a small maintenance award over 6 months, $11,000 of her medical bills paid by her husband in lieu of maintenance and some property. She received a net worth of $99,000. He received $995,000. Wife suffered from physical ailments and PTSD. She offered testimony about physical abuse from husband, but that testimony not admitted, although she was allowed to testify as to her physical limitations.

District Court referred to standing master who issued findings. Wife objected. Post trial, wife diagnosed with breast cancer. Filed Rule 59 motion before the District Court to take the new development into account in deciding maintenance issue. District Court refused to take additional evidence and simply did not rule on wife's post trial motion for maintenance.

Wife appeals. Reversed.

• Procedurally, the District Court was wrong to rule that it could not accept new evidence following the issuance of the standing master report. The District Court never ruled at all on wife's post trial motions. That was error:
• “¶39 We have previously held that in certain circumstances, when a court does not exercise its discretion in a matter, this itself constitutes an abuse of discretion."
• If notice of appeal filed before disposition of Rule 59 motion is given legal effect on the date the district court denies the motion, or if the court never rules, on the date it is deemed denied.
• The filing of a notice of appeal does not deprive the district court of authority to rule on Rule 59 motion.

• Standing master erred by finding that wife’s homemaker contributions did not matter as much because husband was retired.

“¶49 The Standing Master erred in her assertion that Gail's and Bill's respective stages of life "lessened Gail's contribution" to the marital estate. Nothing in Funk or Tummarello supports the premise that one party's stage of life "necessarily lessen[s]" the other party's contributions to the marital estate. Gail made significant contributions to the maintenance of Bill's premarital property as a homemaker, and her contributions to the property continued after Bill's retirement. The Standing Master erred in weighing the factors of § 40-4-202(1), MCA, in regards to Gail's nonmonetary contributions to the marriage as a homemaker.”

• Standing master erred by not awarding significant maintenance:
• While the master listed several factors that led to a conclusion that the wife could not support herself, master failed to award maintenance.
• The master used the wife’s current budget, a dramatically reduced standard of living, as a reasonable budget for her. Should have used the standard of living established during the marriage.
• The master ordered husband to pay $5,000 of her $30,000 in legal fees and $11,430 of her medical bills “in lieu of maintenance.” This did not fix the problem of her inability to support herself.
• The in lieu of maintenance award can be property, but it must be income producing property:

“¶53 Our statutes and case law do not support the Standing Master's conclusion that Bill's payment of a portion of Gail's debt was appropriate in lieu of maintenance payments. Gail was unable to meet her needs independently, especially given the standard of living established during her marriage. Section 40-4-203(2), MCA. The finding that Gail's monthly expenses were $805 was based on her rent while living in subsidized housing, not the standard of living established during the marriage. Furthermore, a payment of debt is not "income-producing property" which would help Gail meet her own needs in the future. In re Marriage of Tow, 229 Mont. at 486, 748 P.2d at 441.”

• However, the Supreme Court affirmed the standing master's refusal to allow wife to testify that the husband was the cause of her physical disabilities. Maintenance awards must be determined without regard to marital misconduct. The Standing master refused evidence of husband’s abuse, but allowed evidence of wife’s physical and emotional limitations. That is not reversible error, the Supreme Court ruled. However, it cited the In Re Fenzau distinction:

¶58 "The maintenance order must be in amounts and for periods of time that the court considers just, without regard to marital misconduct." Section 40-4-203(2), MCA (emphasis added). However, "a distinction exists between awarding a larger portion of the marital estate in order to penalize marital misconduct, and, on the other hand, considering the medical and financial consequences of marital abuse in the allocation of the marital estate." In re Fenzau, 2002 MT 197, ¶ 26, 311 Mont. 163, 54 P.3d 43.

Patton v. Patton, 2015 MT 7

ATTORNEY FEES GRANTED: NO REQUIREMENT THAT PARTY PREVAIL

Mom and Dad have an autistic child. Mom moves to Washington. They stipulate to a visitation schedule between Dad in Montana and Mom in Washington. Mom is primary residential parent. They divorce on February 25, 2012. They make some informal changes to the plan.

7 months later, on September 26, 2012, Dad files motion to modify the parenting plan and to make himself primary residential parent claiming Mom had failed to place child in speech therapy. Mom responds: 1) change jurisdiction to Washington; 2) modify the plan to say what they had been doing informally but leaving primary residential care with her; and 3) she requests reimbursement of her attorney fees.

7 months after that, on April 26, 2013 the trial court conducts its hearing. Dad partly withdraws his motion for primary switch but requests more speech therapy for child and makeup visitations. Trial court takes a recess because it is apparent Dad has not talked about this with Mom. They confer, but are unable to agree as to all issues.

The trial court 1) denied Mom's change of jurisdiction to Washington; 2) granted Dad's request to require Mom to set up makeup visits for Dad; 3) denied Dad's request for additional speech therapy; and 4) granted Mom's request for attorney fee reimbursement. The trial court ultimately awards Mom $10,359 after separate hearing on reasonableness. Mom's attorney presented expert testimony from another family lawyer that these fees were reasonable.

Dad appeals. Affirmed.

Dad claimed that each party had won some and lost some, so there was no "prevailing" or winning party. He argued that Section 40-4-110 MCA refers to "marital" resources and that it did not apply here. The Supreme Court found that 40-4-110 applies to all of the various chapters of Title 40. The Court noted that previous cases had denied attorney fee awards when there was no prevailing party, per se, but those cases involved the interpretation of settlement agreement paragraphs that specifically referenced the "prevailing party," and were not based on an interpretation of 40-4-110. Here's the critical quotation:

"¶13 It is also important to note that § 40-4-110 does not require a party to prevail to receive attorney's fees. Under § 40-4-110, "attorney fees are based on the respective financial resources of the parties and not based on which party prevailed." In re Marriage of Brownell, 263 Mont. at 85, 865 P.2d at 311. Instead, the district court judge examines what is reasonable in light of each party's circumstances. Awarding Crissy attorney's fees was not unreasonable when Jim changed his position on his motion after eight months and caused the parties to expend considerable expenses to resolve an issue that may have been resolved through direct discussion or mediation."

Weibert v. Weibert 2015 MT 29

DUTIES OF A PARENT OF A CHILD WHO REFUSES TO VISIT THE OTHER PARENT - A CASE OF FIRST IMPRESSION

Mom and dad marry in 1997 and divorce in 2003. They have one child. This case was highly contentious. Multiple filings about custody ensue.

In 2013 after their daughter reached 14 years of age, mom stopped bringing her to visitations. Daughter signed an affidavit with numerous complaints about dad and said she did not want to visit him. Mom filed multiple pleadings. Mom had remarried. As part of the flurry of new pleadings, her new husband petitioned for stepparent adoption.

Dad filed motion to hold mom in contempt for failure to comply with parenting plan after several orders directing the visitation schedule in the parenting plan to be followed -- and mom never brought the child to visit. Mom stated that she left it up to the child and the child did not want to see dad.

The trial court found mom in contempt and issued an order finding that she had committed Rule 11 violations and would be required to pay dad's attorney fees. The trial court also ordered that mom had to obtain the court's permission to file any further pleadings.

Mom appeals. Affirmed and remanded for the trial court to determine attorney fees, as the appeal of the Rule 11 finding was not a final order without the determination of attorney fees.

In this case of first impression, the Supreme Court found that when a parent fails to make reasonable efforts to require a recalcitrant child to attend visitation, the parent has not made a good faith effort to comply with the parenting plan and can be held in contempt.

Ordinarily, contempt orders are not appealable. However in family law cases, they are appealable if issued with an order affecting the substantive rights of the parties. Here the trial court ruled on numerous substantive issues. The trial court may only be reversed for a blatant abuse of discretion, a very high bar. The Supreme Court found no blatant abuse of discretion.

Here is a quotation that summarizes the Court view:

"¶34 A parent is not "a powerless bystander" in the decisions and actions of a child, and has "an obligation to attempt to overcome the child's resistance" to visitation. Rideout, 77 P.3d at 1182. A parent has "a great deal of influence over [a child's] ideas and feelings," which carries with it an affirmative responsibility to nurture in the child a positive regard for his or her other parent. Ermel, 469 A.2d at 685. Although we recognize the difficulty, at times, of compelling a child's compliance with parental—or judicial—directives, a parent must make a good faith effort to do so."

Marriage of Marez 2014 MT 333

COMPLEX TAX CONSEQUENCES SUBJECT TO LATER DO-OVER AFTER IRS RULES?

Missoula divorce involving a single corporation owning a grocery business and a ranch. Long term marriage with three grown children. The most significant issue was taxation. Wife claimed that the ranch could be transferred tax free to a subsidiary corporation, then to her tax free. 

Corporation was a C Corporation until 2010 when S Corporation elected, but with 10 year period of potential tax exposure. Wife's expert testified that an IRS regulated Divisive Reorganization (D Reorg) procedure could be used. Husband owned the corporation 100%. Under IRC 1041 the final transfer to wife of the new subsidiary corporation with the ranch assets only would be tax free. 

Trial Court accepted the Wife's expert opinion, despite contradicting testimony from Husband's corporate accountant that the D Reorg was impossible under tax law, and would result in a $272,000 estimated tax liability that was not taken into account by the trial court. 

The trial court issued an order in response to Husband's motion to amend that said a "... private letter ruling" would now be appropriate and alternative proposals to mitigate tax consequences considered if there is an adverse ruling from the IRS." Husband appeals on various valuation issues, but primarily on the tax issue. Husband argues the trial court failed to specify how or when alternative proposals would be "considered". 

The Supreme Court affirmed. The Supreme Court stated that if there was an adverse letter ruling or the IRS rejected the D Reorg, "Jim could then explore other options, including moving to modify the judgment." Paragraph 26. The Supreme Court did not say how long Husband had to figure this out or what the ultimate result would be. 

They state that the Husband could file a motion to amend the judgment later after a definitive ruling by the IRS to adjust the distribution of the marital estate to incorporate tax consequences. That itself is rife with problems, however. For example, if there is a substantial tax consequence, what valuation date should one use for determining the ultimate distribution to be equitable. If there are intervening valuation changes in the ranch, or the business does poorly – what then? Also, will there be an issue about whether the Husband (who opposes this D Reorg) has done an effective job of presenting this to the IRS when he is on the record stating it cannot be done? Interesting.

Edwards v. Edwards 2015 MT 9