Mount Hague
April 15th, 2009Summary Dismissal of Motion to Modify Parenting Plan Reversed
April 13th, 2009Parents divorced in in Colorado 1999 with 2 children ages 1 and 3. They agreed to week on/week off parenting plan. Dad moves to California and back twice. Mom moves to Pony, Montana in 2005 and 2 months later, dad moves to McAllister, Montana and resumes the original Colorado parenting schedule. (Google places the two communities, near Ennis Lake, 26 miles apart). In 2007, mom registers the Colorado decree in Montana, then moves to modify the parenting plan. The District Court dismissed her case without hearing.
Reversed. The Montana Supreme Court cited allegations by mom that: 1) current age of the children (11 and 13) and changed needs; 2) children having difficulty at school arising from inconsistent rules and schedules in the 2 households; 3) children having expressed strong desire to change the plan.
The Court found these allegations, if true, “… could warrant modification of the parenting plan pursuant to §40-4-219, MCA.” §40-4-220 MCA requires a trial court to deny a motion to modify a parenting plan “… unless it finds that adequate cause for hearing the motion is established by the affidavits, based on the best interest of the child ….” Neither the Appellant nor the Supreme Court opinion cited this statute, however.
In Re Marriage of Chapman and Panagakis, 2009 MT 119N.
Birth Dates Published By the Court
April 10th, 2009The Montana Supreme Court published In Re Marriage of Chapman and Panagakis, 2009 MT 119N, on April 9, 2009. The decision itself contains the full dates of birth of both children. Section 4.50 (c)(4) of the Rules for Privacy and Public Access to Court Records in Montana states that full birth dates of any person are not to be shown in any public court record. Technically, this inclusion of private information in a court decision does not violate the Privacy Rules, as Section 4.50 (d) places sole responsibility for keeping such information out of court records on the litigant: “It is the responsibility of the filing party to comply with these rules to protect private information.”
This case illustrates the difficulty in sanitizing public court records of information that could lead to identity theft or worse. It is exceedingly easy for these kinds of details to be overlooked. Once published on the internet, however, all court control of this information is lost. These birth dates will be available forever.
4 Attorneys, 3 Custody Evaluations, 3 Hearings = 1 Vexatious Appeal
April 9th, 2009Father and mother adopt a stipulated parenting plan for their 3 year old in 2003. In the spring of 2004 father files a motion for an order of protection against the mother. Denied by the trial court. In the summer of 2004, Father files petition to change the parenting plan. Trial court adopts mother’s proposed amended plan, not father’s. In early 2007, father files petition to change the amended parenting plan. In June of 2008 the trial court again ruled in mother’s favor, amending the plan and holding father in contempt for his failure to follow the prior parenting plan. During the five years between the 2003 stipulated parenting plan and the latest amended parenting plan in 2008, father had employed serially 4 different attorneys. The parents and their child, at father’s insistence, had gone through 3 full custody evaluations.
Father appeals. The Montana Supreme Court not only affirms the trial court holding, but finds the appeal vexatious and awards mother her attorney fees on appeal. The case is In Re Marriage of Sartorie 2009 MT 117N. It’s a non-cite case.
Consequences of Domestic Violence: 6 year old child — 17 foster placements in one year
April 8th, 2009In the Matter of B.S. and G.S. 2009 MT 113, there were numerous incidents of domestic violence witnessed by the 6 year old boy and 3 year old daughter. The parental rights of both the mother and the father were terminated. The mother appealed. Among other things, the mother argued that there was insufficient proof that the children had been abused or neglected because the children had never gone through a psychological examination. See Paragraph 24. The effect of the children’s observations of parental violence, was obvious: “Six-year-old G.S. had been in 17 residential placements during the preceding year, and was possibly headed for “the next level” of inpatient therapeutic treatment due to his extreme levels of violence.” See Paragraph 15.
A tough start in life for these kids. A good decision by the trial court and the Montana Supreme Court.
Comments on Montana Appellate Rule Changes
April 7th, 2009I submitted these proposed additional changes to the Montana Appellate Rules in my letter of March 28, 2009 to the Montana Supreme Court. March 28, 2008 Comments to Proposed Appellate Rule Changes
Mystic Lake
March 27th, 2009
Child Support for Disabled Adult Children
March 26th, 2009In Re Marriage of Clapsaddle, 2009 MT 91N decided March 24, 2009, concerns the limits of withholding. These two pro se parents had 2 children, one of whom was a disabled adult. The trial court granted mom’s motion to withhold child support from dad’s income. Dad had past due support. The trial court imposed a child support withholding order. The amount withheld was limited by the court relying upon 40-5-309(3). Mom argued they should have applied 40-5-416 to establish limits on withholding. The Supreme court affirmed the trial court’s reliance on 40-5-309 saying that was a statute for courts and 40-5-416 was limited to actions before the Montana Child Support Enforcement Division (CSED).
The more interesting thing about the case, however, was that the child support for 2 children included support for a child who was an adult but disabled. Neither parent raised child support for an adult as an issue.
The term “”child”" is not defined in our basic child support statute, 40-4-204 MCA. However, the term is defined in 40-5-201 (2) which reads:
(2) (a) “”Child”" means:
(i) a person under 18 years of age who is not otherwise emancipated, self-supporting, married, or a member of the armed forces of the United States;
(ii) a person under 19 years of age and still in high school;
(iii) a person who is mentally or physically incapacitated if the incapacity began prior to the person’s 18th birthday; or
(iv) in a IV-D case, a person for whom:
(A) support rights are assigned under 53-2-613;
(B) a public assistance payment has been made;
(C) the department is providing support enforcement services under 40-5-203; or
(D) the department has received a referral for IV-D services from an agency of another state or an Indian tribe under the provisions of the Uniform Interstate Family Support Act, the Revised Uniform Reciprocal Enforcement of Support Act, the Uniform Reciprocal Enforcement of Support Act, or Title IV-D of the Social Security Act.
(b) The term may not be construed to limit the ability of the department to enforce a support order according to its terms when the order provides for support to extend beyond the child’s 18th birthday. ”
Typically we think of the term of child support being limited to the 19th birthday of a child if they are still enrolled in high school, relying on the support modification provisions of 40-4-208(5). But you might consider longer term child support if you encounter a case involving a disabled child.
Pilot Peak
March 24th, 2009
Using Initials for Parents’ Names
March 23rd, 2009In two recent cases, a parenting plan case and a divorce case with children, the Montana Supreme Court has required the parties to replace the parents’ names with initials. In Re the Marriage of R.M. and M.M. 2009 MT 52N the Court refused to allow the Appellant’s brief to be filed until the Appellant substituted initials for the names of the parents. Section 4.50 (c)(3) of the Rules for Privacy and Public Access to Court Records in Montana (”Access Rules”) requires children’s names to be redacted from published court records. But there is no mention in the Access Rules of redacting the names of any adults. In its Order issued August 11, 2008 sending the Appellant’s brief back, the Court acknowledged this, but declared “… we realize that the Rules do not require the names of the adult parties to be protected from public access; however, in order to fully comply with Section 4.50(c)(3), it is generally necessary that initials be used in place of the parents’ names as well.”
Further checking confirmed that the Court had returned an Appellee’s Brief in a parenting plan case as well. In Re the Parenting of K.A.R., a Minor, D.R., A.R. and J.M.R., Petitioners and Appellees, and D.E.R. Respondent and Appellant, 2009 MT 73N, decided March 11, 2009, the Court issued its Order returning the Appellee’s brief on July 9, 2008.
Deleting parents names in divorces and parenting plan actions will protect the identities of the children. And I am grateful the Court is obviously taking pains to protect the privacy of our most vulnerable citizens. But this new policy will create other practical problems for the litigants. For one, title companies will find it difficult to independently run title on the homes of the litigants.
