Parenting of K.A.R.
This text of 2009 MT 73N (Parenting of K.A.R.) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
March 11 2009
DA 08-0105
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 73N
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.
APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DR 07-0373 Honorable Gregory R. Todd, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Michelle R. Lee, Harper & Hilario, Billings, Montana
For Appellees:
Jeff A. Turner, Towe, Ball, Enright, Mackey & Sommerfeld, Billings, Montana
Submitted on Briefs: November 26, 2008
Decided: March 10, 2009
Filed:
__________________________________________ Clerk Justice John Warner delivered the Opinion of the Court.
¶1 Pursuant to Section 1, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be cited
as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and
its case title, Supreme Court cause number and disposition shall be included in this Court’s
quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 D.E.R. appeals from a parenting plan order regarding his 12-year old daughter,
K.A.R., which was entered January 24, 2008, by the District Court of the Thirteenth Judicial
District, Yellowstone County. The plan generally provides that K.A.R.’s maternal
grandparents, D.R. and A.R. (Grandparents), shall for the present have residential custody of
her in Montana and D.E.R. shall have telephone contact with her and supervised visitation
until unsupervised visitation is approved by K.A.R.’s mental health professionals. The plan
also provides for increasing visitation, most likely leading to visitation at D.E.R.’s home in
Louisiana.
¶3 D.E.R. argues that the ordered parenting plan must be vacated and this case remanded
for entry of a new parenting plan because the District Court did not enter sufficient findings
of fact and conclusions of law to justify its decision and did not adequately consider his
parental rights as guaranteed by the U.S. and Montana Constitutions.
¶4 K.A.R. was born in Louisiana November 19, 1996, to J.M.R. (Mother). K.A.R.’s
mother relinquished custody of her and on April 2, 1997, the Louisiana Thirtieth Judicial
2 District Court formally granted custody of K.A.R. to the Grandparents. Shortly thereafter,
the Grandparents, along with K.A.R. and her Mother, moved to Montana.
¶5 D.E.R. did not know he had a daughter in Montana and thus was not in the picture
until 2006, when the Grandparents applied for Medicaid benefits for K.A.R. As part of the
process to secure Medicaid payments, D.E.R. was contacted, it was determined that he is
K.A.R.’s father, and he has been ordered to pay child support. Upon learning of K.A.R.’s
existence, D.E.R. asked for in-person contact with her, which was denied by the
Grandparents. Grandparents then filed a petition in the District Court to transfer the
Louisiana custody order to Montana and to establish a revised parenting plan. The Montana
District Court assumed jurisdiction and after two hearings entered the parenting plan which
is the subject of this appeal.
¶6 The first hearing in the District Court was held on August 23, 2007. At this hearing,
the District Court stated that if either party wished to raise the issue of whether continuation
of custody of K.A.R. with her Grandparents violated constitutional principles it expected
briefs before the next hearing. Based on the testimony and exhibits, the District Court also
made oral findings of fact which it stated on the record, set an interim parenting plan, and set
a final hearing. The District Court found that it would not be fair to K.A.R. for D.E.R. to
take her back to Louisiana at that time because she did not know him. It also found that
visitation should occur but should not proceed too fast. It found that D.E.R. deserved a
chance to try to establish a relationship with her, but because K.A.R. had mental health
issues the matter would be complicated. 3 ¶7 The final hearing to establish a parenting plan was held on December 7, 2007. The
District Court made oral findings of fact at the conclusion of this hearing to the effect that
because of K.A.R.’s age and psychological makeup it was necessary to proceed slowly. The
District Court announced that a written order would be filed later. No motion or briefs
concerning constitutional issues had been filed.
¶8 On January 24, 2008, the District Court issued its order establishing a parenting plan
whereby D.E.R. would at first have supervised visitation, later unsupervised visitation, and
in time visits in Louisiana. The District Court also found that the parenting plan would need
to be reviewed and modified depending on whether the Grandparents were more cooperative
with D.E.R. having contact with K.A.R., and whether D.E.R. lived up to his parental
obligations. The District Court did not enter specific findings concerning D.E.R.’s parental
rights vis-à-vis the U.S. and Montana Constitutions as no motion to do so had been filed.
¶9 D.E.R. contends on appeal that the District Court did not set forth sufficient findings
of fact and conclusions of law. M. R. Civ. P. 52(a) provides that in actions tried without a
jury the District Court shall find the facts specially and state separately its conclusions of
law. Rule 52(a) also says that it is sufficient if the findings of fact and conclusions of law are
stated orally and recorded in open court following the close of the evidence. The reasons for
requiring findings of fact are to aid the trial judge’s process of adjudication; for purposes of
res judicata and estoppel by judgment; and as an aid to the appellate court on review. In re
Marriage of Lawrence, 2005 MT 125, ¶ 15, 327 Mont. 209, 112 P.3d 1036 (citing In re
Marriage of Barron, 177 Mont. 161, 164, 580 P.2d 936, 938 (1978)). 4 ¶10 On a motion to modify or amend a parenting plan, we require that the District Court
set forth findings of fact and conclusions of law. Marriage of Lawrence, ¶¶ 16-17. This
does not mean that the District Court needs to enter specific findings as to each element in
§ 40-4-212, MCA. However, it must set forth “the essential and determining facts upon
which its conclusions rest.” Marriage of Lawrence, ¶ 18.
¶11 We have reviewed the record of the hearings of August 23 and December 7, 2007, and
the District Court’s written order of January 24, 2008. We conclude that the District Court’s
oral findings of fact combined with its written order set forth the essential and determining
facts upon which its conclusions rest and that they are sufficient for our review.
¶12 While his counsel mentioned that D.E.R. would be filing a motion and brief
concerning a violation of his constitutional rights, D.E.R. did not do so. D.E.R. now
contends on appeal that his constitutional right to parent has been violated. This Court does
not consider an issue presented for the first time on appeal. In re A.N.W., 2006 MT 42, ¶ 41,
331 Mont. 208, 130 P.3d 619 (citing In re T.E., 2002 MT 195, ¶ 20, 311 Mont. 148, 54 P.3d
38). In order to preserve a claim or objection for appeal, an appellant must first raise that
Free access — add to your briefcase to read the full text and ask questions with AI
Related
Cite This Page — Counsel Stack
2009 MT 73N, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parenting-of-kar-mont-2009.