Changing Child’s Surname: Best Interests

Changing Child’s Surname: Best Interests

Mom and dad divorce in 2004. Mom moves to Billings and obtained temporary order of protection (TOP) against Dad, which preserves, however, Dad’s contact rights with the children. Mom remarries in 2007 and takes the surname of her husband. Court suspends Dad’s contact with the children in 2011. Mom files pro se petition to change the children’s surnames to the surname of her husband and herself, which was granted. Dad not served properly and files Rule 60 complaint.

District Court found improper service of the earlier petition for name change, but granted the surname change for the children.

• ·       Dad had not seen the children for nine years.
• ·       The children had been using their stepfather’s surname already.
• ·       The children wanted to use their stepfather’s surname.
• ·       The children resided in a household with younger half siblings with that surname.

Affirmed. Dad argued it was not his fault that he had become estranged from the children. However, the Court found that whether it was his fault or not was unimportant, but a strict best interests test.

Tucker v. Tucker 2014 MT 115

Survivor Benefit Plan = Insurance, not retirement

Daniel and Rachel Bushnell divorced in 2009. They signed a Settlement Agreement awarding half Dan’s Army National Guard retirement earned during the marriage.

In 2012, Rachel filed a motion claiming Dan had breached the Agreement because he refused to name her as the Survivor in his Survivor Benefit Plan which included a Survivor Annuity. The issue was whether the Annuity was part of the retirement benefits Rachel was awarded under the agreement. The District Court said “yes”. The Montana Supreme Court said “no.”

The Supreme Court held:

• District Courts generally have the power to award survivor annuities.
• This Settlement Agreement, however, did not do so.
• An annuity is in the nature of an insurance policy.
• The Settlement Agreement did not specifically reference the survivor benefits or the annuity.
• The Settlement Agreement awarded retirement benefits “earned during the marriage” and this annuity was not earned during the marriage (it would spring into existence on Dan’s death).
• The Settlement Agreement said insurance policies were the property of the party whose life was insured.
•  Because the Settlement Agreement, a contract under 40-4-201(5) M.C.A. did not provide for Rachel to get the annuity, it could only be awarded to her based upon a finding of unconscionability. 40-4-201 (3) M.C.A. which the District Court failed to do.

Reversed.

Marriage of Bushnell 2014 MT 130

VALUING POKER GAME BUSINESS AND PARSING A HEAD INJURY AWARD

Novak v. Novak 2014 MT 62

Husband had a 1/2 interest in a business that ran a poker game at a Great Falls tavern. Two CPA's opined hugely different values for the business. The district court found a value very much toward the low end, but between the two values. Wife had received a serious head injury falling from a horse. She had received $97,000 insurance proceeds for her injuries. She was fully disabled, suffering from grand mal seizures and other serious on-going medical problems. She had spent all but $15,000 of the award, purchasing a car and paying other expenses. She requested maintenance which was denied by the district court. The district court found that by virtue of her status as wife, she would in the future receive a portion of husband's retirement and that by virtue of her disabilities, she would receive SSDI. Their disabled son, who lived with Wife, destroyed items awarded to Husband. Each filed post decree contempt motions. Wife's motion was based on husband not doing anything to get her a portion of his military retirement, which was denied because the decree just noted that she was entitled to that by operation of law and technically the husband had not been ordered to do anything to get her those benefits. Husband's motion was granted for her failure to protect husband's items from their son's malicious destruction of those items. Husband was awarded attorney fees in conjunction with his contempt motion. Wife's request for attorney fees was denied.

Wife appealed.

Valuation. The Supreme Court affirmed the district court business valuation.

1. There is no rigid rule for valuing goodwill.
2. The Wife's expert ignored several factors: the risk that a rival poker game could open and the fact that the revenues from the Husband's poker game were declining. Husband's expert ignored the declining income. 
3. When faced with big differences between valuations, the district court was required to state reasons for its valuation decision -- which the district court did here.
4. Wife had claimed husband skimmed income, but the proof was insufficient. 

Maintenance. The Supreme Court reversed the district court denial of maintenance.

1. Wife was indisputably unemployable.
2. When the effect of denying maintenance is to make a spouse a ward of the state, the district court should award maintenance if possible. So the district court's consideration of her eligibility for SSDI was wrong.
3. The district court found wife had essentially blown the majority of her award. The Supreme Court found this wrong too: they classified this as "marital misconduct" which is barred from consideration.
4. The district court found that the $97,000 was income to wife. The Supreme Court found several flaws with this: Wife had obvious and on-going serious medical problems which would offset a lot of the money. Part of the $97,000 may have been for loss of future earnings, which should have been parsed -- but in fairness to the district court, neither side offered any testimony on that issue.
5. The district court validly considered Wife's portion of Husband's retirement, but by itself that was clearly too little to meet her needs.
6. The district court did not consider Husband's allocated debts which might reduce or eliminate his ability to pay -- which the district court could consider on remand.

Attorney Fees. The Supreme Court reversed the district court's denial of attorney fees to Wife, but affirmed the award of attorney fees to Husband.

1. There are 3 basic factors to consider under 40-4-110: necessity, reasonableness, competent evidence. Here the district court erred in determining Wife's income for maintenance purposes which also impacted "necessity". The fact that she had received $97,000 was not proper when considering the attorney fee award either.
2. Because Wife had been found in contempt for her failure to safeguard the items awarded to Husband from malicious destruction by their son, an attorney fee award for Husband's contempt motion was proper.

EDUCATIONAL SURROGATE PARENT OF ADULT

 In Re C.S. 2014 MT 74

This is an interesting and unusual case. The foster father of a special ed student enrolled in the Butte Public Schools disagreed with the education plan for the student. The student had turned 18 and ran away from the home of his biological mom, leading to the appointment of the foster father. Under the federal Individuals with Disabilities Education Act (IDEA), the student was entitled to the appointment of a "surrogate parent" through the school district. The school district appointed another adult, who approved the educational plan the foster father had disputed. The foster father filed a motion with the court to substitute himself as the surrogate parent. The district court denied his motion. The Supreme Court reversed, finding that the Montana Statute implementing IDEA, Section 20-7-461 M.C.A. and the relevant part of the federal law, Section 20 U.S.C. 1415(m)(2), only authorized the appointment of a stranger to the child if a parent was not available. The end result: the appointment of the foster father as "surrogate parent".

The Supreme Court found that the student's "...biological mother's rights were extinguished when he turned eighteen" leaving the foster father as the only "parent" with legal rights to care for the student, hence his right to appointment as "surrogate parent".

IRAQ VETERAN NAILED BY CSED CREDIT REPORT

An Air Force serviceman and his girlfriend had a child. He provided support while active duty voluntarily. His support was enforced through a CSED order in 2004. In 2008, while he was still active military and serving in Iraq, mom applied to CSED for a child support increase. 5 months later when he was stateside on leave, he consented to the increase. CSED made the award retroactive and provided the retroactive portion be paid over a 24 month period as provided in Section 40-5-309 M.C.A.

CSED sent him notice that they would report his arrearage as a bad debt and delinquent, then did so. The labels “bad debt” and “delinquent” on his credit report barred him employment with government entities including the Department of Homeland Security and the Seattle Police Department. He sued in State District Court. The Montana Supreme Court found that a child support arrearage is not a delinquency and is not a bad debt. But the serviceman had failed to exhaust administrative remedies to challenge CSED’s characterization of the retroactive portion of the award, so the Court upheld the dismissal of his lawsuit on procedural grounds.

While upholding the dismissal, the Court was very critical of CSED for not helping the serviceman understand his possible remedies – even though they were not required under the law to do so.

“¶ 35 While being bound by statutory and procedural bars to reach the conclusions we do, we recognize the resulting injustice. A servicemember who has both an exemplary record in the military and an exemplary record in his payment of child support has been branded a “delinquent” obligor in the eyes of potential employers. Consequently, he has lost significant career opportunities—opportunities that would have benefited his child as well as himself. It appears that CSED had opportunities to help Kenck understand and protect his rights but did not do so. For example, CSED could have implemented § 40–5–262(3), MCA, allowing it to consider Kenck’s payment record, the availability of other remedies and other matters relevant to determining whether to release the administrative arrearage information to the credit reporting agencies. There is no evidence that it considered this discretionary opportunity.

 ¶ 36 Moreover, Kenck visited the Billings CSED office within days of being discharged from the USAF, contesting the characterization of his child support account as delinquent and the reporting of his arrearage to the consumer reporting companies in the first place. It does not appear that CSED assisted Kenck in understanding what steps he could take to challenge the inaccurate report, nor did it advise him that such actions must be taken within 90 days of his discharge.”

The Court took the extraordinary action of directing the district court to order CSED to give notice of the opinion to the credit reporting agencies and monitor CSED’s compliance.

Nope, You Can't Back Out Now

This was a two year marriage. Husband and Wife signed a settlement agreement following a nine hour settlement conference. The agreement was filed. The District Court approved the agreement and incorporated it in the Final Decree. Husband appealed on two grounds: 1) the District Court finding that the agreement was not unconscionable; and 2) that the summons issued did not include the temporary restraining order required by Section 40-4-121(3) MCA.

The Supreme Court found that Husband had failed to challenge the findings before filing his appeal and indeed acquiesed in those findings. Husband's failure to object before the District Court to the approval of the agreement or the other findings in the decree were fatal to his claim on appeal.

The Decree expressly vacated any temporary restraining orders. So Husband's claim that the clerk failed to comply with the statute requiring the automatic economic restraining order on appeal was moot.

Affirmed.

Smith v. Barger, 2012 MT 225N

"Trigger" the Horse not listed. Equitable not equal. Judges get to decide credibility.

John and Dana lived together in Grass Range for 2 1/2 years, then broke up. They bought things during their cohabitation and co-mingled some, but not all of their money.

John sued Dana for return of property and for a TRO after she left. During a preliminary hearing, the trial court allowed Dana the use of the 2001 pickup and a horse trailer to assist her move to Billings and to allow her to work as a horse trainer.

Later, during the final hearing, the parties disputed the value of their joint account at the time of their breakup, the value of assets, and the condition of the pickup before Dana had use of it for the 6 months between the initial hearing and final hearing. John appealed claiming he got far less than Dana. Dana pointed out that there was a lot more money in their joint account one week before separation than John claimed (which remained with John) and that John had failed to list his horse "Trigger" as an asset.

The Montana Supreme Court affirmed in a noncite opinion. Citing Marriage of Harris, 2006 MT 63, the Court noted that "equitable" does not necessarily mean "equal". Citing Hood v. Hood, 2012 MT 158 at paragraph 42, the Court noted that trial judges are in the best position to decide the credibility of witnesses, decide what weight to give such testimony and to decide what is equitable under the circumstances -- and the the Supreme Court will not simply substitute its judgment for that of the trial judge.