Preview:

NO.

96-091

IN THE SUPREME COURT OF THE STATE OF MONTANA 1996

IN RE MARRIAGE OF JAMES ALAN ABRAHAMSON, Petitioner and MICHELLE SHERRIE ABRAHAMSON, Respondent and Appellant. and Respondent, 011~ tit3

19%

APPEAL

FROM:

District Court of the First Judicial District, In and for the County of Lewis and Clark, The Honorable Thomas C. Honzel, Judge presiding.

COUNSEL OF RECORD: For Appellant: James P. Reynolds, Sherwood, Helena, For Respondent: John L. Helena, Hollow, Montana Attorney at Law, Reynolds, Montana Mot1 and

Submitted Filed:

on Briefs: Decided:

June October

27,

1996 8, 1996

Justice The District County, residential Court appeals judgment

Terry

N. Trieweiler James the to of First 5

delivered Abrahamson, Judicial

the

opinion filed
a

of

the

Court. in the

respondent, Court pursuant custody James' District the District of

motion

District (f), child, MCA,

in to

Lewis modify The

and Clark primary District

40-4-219(l) the parties'

Jordin. Michelle We affirm

granted the of

motion. Court's Court. is

The appellant, judgment.

Abrahamson, the order and

The issue it granted

on appeal

whether motion

the

District to modify

Court

erred of

when the

James child.

Abrahamson's

custody

parties'

FACTUAL BACKGROUND In decree Custody, granted of the of December the 1992, the Court. parties' marriage into Agreement. of as visitation parties told James Jordin, the primary rights. remained James filed that in she Helena. might with custody be the and was that dissolved decree is by a

District

Incorporated Settlement custody

Support, the parties

and Property joint designated legal

The agreement the sole child

marriage,

Michelle

residential

custodian, After However, moving District a restraining the matter to in

and provided the dissolution,

James with both Michelle Utah. he moved for

January Salt Lake

1995, City,

a motion of

Court,

in which order

a modification from leaving Court.

to prevent be heard by

Michelle the District

Helena

before

could

Subsequently,

Michelle to

filed

her

objections and visitation.

to James'

motions,

and her

own motion

amend custody In March to

1995, change dated

Michelle Jordin's

provided residence 3, 1995, University Investigation. that Lake

James from

with

formal to the

notice Utah. purpose

of In of

her

intent

Montana that

an affidavit her in
move

February the of

she stated of Utah In her City for

was to Federal

attend Bureau 1995,

and pursue a second was to

a career affidavit, enroll in She rate a

the

dated

April

28, justice that,

she stated at Salt

purpose

a criminal also stated

course in order

Community the in-state

College. tuition to However,

to qualify grants, than

and certain resident Michelle Phoenix hearing, whether of

higher Utah to

education no Utah, School later

she was required June 1, 1995. in At it is the the

become after

moved Business she she

she instead in Salt

enrolled Lake City. and classes.

University
time

of of as the to

was not ever did, jointly Michelle clinical

attending in fact,

school, attend

disputed

The parties which Hale, allowed a licensed

submitted to
move

an order to Utah, worker, report. the motion and

to

the

District that

Court Donna

provided conduct

social a custody heard

would

a custody

evaluation The September At the

and prepare District 21, 1995. Court

to

modify

custody

on

hearing, life by

James

sought

to establish that Jordin's custody

that best

Michelle interest

leads would James

an unstable be served

and therefore, a modification of

the

arrangement.

3

testified would Jordin; as the
allow

about him

a number to spend

of

subjects: with

his Jordin; his

work his

schedule

and how it with to serve with network Michelle's to

time

relationship and desire

his

strengths

as a parent;

ability his the family concern as well to

primary since has to in

residential the dissolution; He parent

custodian; and expressed Jordin,

relationship support about as her several of

Michelle Jordin ability her made role by

Helena.

effectively as a parent.

commitment allegations pornographic fact

He also including with the mens'

responded his

Michelle, his

possession women,

materials, he had taken to shower. Denise friends Michelle Blankenship needs, testified "never and of

relationships into

several locker

and the

that club

Jordin

room at the

athletic

Blankenship Michelle had been, while on

and

Kristi she lived

Rivenes, in

both

of

whom

were that

Helena,

testified as a to

occasion,

inadequate inattentive

parent. Jordin's Rivenes

described impatient that Michelle of Jordin

Michelle with Jordin was first." evidence would not an

as being

on several irresponsible

occasions. parent

because

she

thought Michelle

presented

to

support

her best

contention interest. Stanton, parent, Karl He stated

that Paula

a

custody Fenton, Treanna that

modification Jennifer Olson she has all a

be in Jordin's Meehan, Michelle with is

Lamach, testified strong also

Roweena that relationship testified

Debbie a good

and and Lieb, that

Jordin.

Michelle's

boyfriend,

on her behalf.

4

he has developed was doing well with to

a strong in Utah. Jordin; her

relationship Michelle's her work abilities

with

Jordin, testimony as a parent; her

and that described her

Jordin her reasons as divorce. a

relationship for moving and

Utah; her

schedule; with
James

availability
since

parent; Michelle well not since be in

relationship that both she

the doing of

asserted moving Jordin's the

and

Jordin

were

extremely

to Utah, best

and that interest. there

a modification

custody

would

Throughout testimony Salt Lake of relating City.

hearing, to Michelle's

was purchase

a significant of in a tanning

amount salon for

of in the

Michelle but

had

engaged

negotiations another. purchase Furthermore, day job disputed the best and work those purchase interest. her

purchase Robbins but that

one salon, that

ultimately

purchased to

Denise salon, Robbins at
claims,

testified Michelle that during

Michelle the

had sought contract. to keep her Michelle regarding to Jordin's

breached

testified salon and

Michelle nights that was

planned

the

and weekends. the evidence

asserted salon

of

the James

tanning asserted, that also

irrelevant that the

however, lacked

evidence

was relevant, to

and established James, the evidence to not Utah. allow

Michelle contradicted it

stability. Michelle's

According stated that her purpose work

for

moving would

And finally, her to

established

schedule

be an effective Hale, her a

and available licensed evaluation. clinical

parent. social Her report worker, concluded testified that both

Donna regarding

custody

5

Michelle evidence report share residential The designated the parties

and of

James

genuinely with while

love

Jordin,

and

that

there

was

no her to

endangerment that,

either both Michelle

parent. parents should

Ultimately, should be continue the

recommended joint legal custodian. District

custody,

primary

Court

granted

James' residential legal

motion

to

modify

custody, that a

James as the primary should schedule. to Court District motion, this occurred It is well not Michelle's a motion Court, James Court retain joint

custodian, custody, and

ordered established

visitation

Subsequent filed not with before of this the that

appeal to strike

from

that

judgment,

James

materials for

and references sanctions. actions part of Rule will In in the 9, not Johnson

and alleges

a request that that district that in the

support placing record

"Michelle's were court this record 272, not

before of what

materials the

before

violate Court on appeal. 273.

M.R.App.P." consider

established contained 1, 3,

any evidence (19951, is to James'

v. Killingsworth James' that stricken. motion refers

271 Mont.

894 P.2d

Therefore, reply Products brief is

granted, James' request

and the operation for

portion of

of Michelle's Jordin is River

sanctions

denied.

DISCUSSION Did modify the District Court err when it granted James' motion to

custody?

6

When modification findings 265, is 270,

we

review of

a

District the

Court's standard of

findings review is

related whether

to those

a

custody,

are

clearly

erroneous. 619, not to 622.

hreMarriageofElseu

(1995), upon which reverse where 271 Mont. an at

271 Mont. a decision a District abuse 270, of 895

895 P.2d are

When findings erroneous, custody

predicated

clearly modify

we will only
Elser ,

Court's discretion P.2d at

decision is 622. clearly

demonstrated.

On appeal, it: her (1) failed

Michelle to report; adopt

asserts the (2)

that

the District

Court

erred Hale

when in

recommendations misapprehended failed to apply

made by Donna the the effect of

custody

certain forth in

proffered

Download 4d87d54e-c049-4b8a-aa79-89a6af63ff0a.pdf

Montana Law