Parenting of E.L.O. ( 2020 )

IN I 03/17/2020
DA 19-0341
Case Number: DA 19-0341
IN THE SUPREME COURT OF THE STATE OF MONTANA
2020 MT 62N
IN RE THE PARENTING OF:
E.L.O., A Minor Child.
SHANA O'BRIEN,
Petitioner and Appellant,
and E
LUKE LAUTARET, , MAR 1 7 2020
Bowen Greenwood
Clerk of Supreme Court
Respondent and Appellee. State of Kilontana
APPEAL FROM: District Court ofthe Eleventh Judicial District,
In and For the County of Flathead, Cause No. DR-14-192(C)
Honorable Heidi Ulbricht, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Mary-Elizabeth M. Sampsel, Measure Law,P.C., Kalispell, Montana
For Appellee:
Luke Lautaret, Self Represented, Kalispell, Montana
Submitted on Briefs: February 26,2020
Decided: March 17, 2020
Filed:
Clerk
Justice Beth Baker delivered the Opinion ofthe Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, 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 Petitioner Shana O'Brien appeals the Eleventh Judicial District Court's June 6,
2019 Order on Petitioner's Motion for Relief from Orders, together with all of the
underlying orders from which she had sought relief.1 Shana and Respondent Luke
Lautaret have a now six-and-a-half-year-old child together from their prior intimate
relationship. They entered a stipulated parenting plan in April 2014, which Luke sought
to amend less than a year later. The case was referred to the Eleventh Judicial District's
Family Court Services (FCS) program in October 2017; neither party objected at the
time. The order of referral ordered the parties to participate in whatever evaluations or
services were deemed necessary by FCS and to "follow any recommendations of Family
Court pending further Order of the COurt." It further ordered that "the Report and
recommendations of Family Court Services, regarding a parenting plan and parental
contact shall be binding upon the parties' hereto pending entry of a further Order from
this Court." Neither party objected, and both proceeded to cooperate with the process.
1 Shana also appealed the District Court's June 6, 2019 Findings of Fact, Conclusions of Law
and Order on Motions for Contempt, but withdrew her appeal ofthat order in her reply brief.
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¶3 The FCS program submitted a letter to Shana and Luke on December 1, 2017,
directing an interim parenting schedule "in effect immediately." It followed with a
comprehensive confidential report to the court on February 22, 2018, copied to both the
parties and their counsel. Five days later, the District Court entered an order approving
and adopting the report and recommendations and giving the parties thirty days to request
a contested hearing on their proposed parenting plans and the adoption ofthe FCS report.
Shana then retained new counsel and moved to stay the order approving the FCS
recommendation until there could be a hearing. The court denied the stay and set a
hearing for June 14, 2018, which was continued and then continued again until
October 3, 2018. At that October 3 hearing, Shana's counsel questioned the FCS
administrator extensively about the program's processes and moved in open court for
relief, pursuant to M. R. Civ. P. 60(b)(6), from its previous orders dating back to the
initial order for referral to FCS.
¶4 The District Court entered its written order on June 6, 2019, denying Shana's
motion for relief from the FCS referral and its prior orders. Citing Bd. of Comm'rs v.
Eleventh Judicial Dist. Ct., 182 Mont. 463, 470, 597 P.2d 728,732(1979), it held that the
FCS program, created in 1974, is authorized by §§ 3-3-112(1) and 3-2-704, MCA, as a
"suitable process or mode of proceeding" for the District Court to follow to carry out its
statutorily mandated duties. The court stated, "FCS does have legal authority, through
the judges, to make decisions." The District Court also rejected Shana's argument that
FCS failed to apply the "changed circumstances" threshold criterion before revising a
parenting plan under § 40-4-219, MCA. The court stated, "[T]he considerations outlined
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in that statute were not FCS's responsibility. They were the Court's and it was implicit at
the hearings prior to this motion that there had been substantial changes in the
circumstances ofthe child since the 2014 Plan." The court observed that the parties were
not following the 2014 Plan, that both essentially sought amendment to the 2014 Plan,
and that "both at one point or another recognized that referral to FCS was appropriate."
¶5 The District Court concluded:
The Court agrees that some aspects of FCS's information gathering and
report are problematic[,] but the Petitioner was able to confront the FCS
supervisor and made these arguments at the hearing in which she contested
FCS's recommendations. The movant has not shown that something
prevented a full presentation of her cause or an accurate determination on
the merits with respect to the Court's Order for Referral.
¶6 Shana argues that the District Court erred by granting FCS the authority to make
binding recommendations, impermissibly delegating judicial authority. Thereafter,
Shana contends, the District Court erred by accepting and approving the FCS
recommendations carte blanche without first holding a hearing. She maintains further
that the court erred in amending the parenting plan prior to a hearing and without making
any findings, which are required before a court can amend a parenting plan.
¶7 Responding to Luke's argument that she is "attempting an end-run" around the
FCS recommendations by objecting to the process, Shana contends that in this case, the
problem is the process. Notably, however, she was a willing participant in that process
for well over a year, up to the time when the court held its hearing on the final FCS
recommendations. Luke filed a motion for referral to FCS on June 8, 2017. Shana filed
no opposition. He filed another motion for referral to FCS on September 28, 2017.
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Shana filed no opposition. The District Court considered the motion at the October 25,
2017 hearing. Shana, represented by counsel at that hearing, voiced no objection.
Counsel indicated that she would stipulate to the FCS referral but requested that the 2014
stipulated parenting plan remain in place pending that evaluation. Having already
entered interim amendments to the parenting plan several months earlier, the court denied
Shana's request to reinstate the 2014 stipulated plan. When the court's order of referral
issued the next day directing the parties to "fflollow any recommendations of Family
Court pending further Order of the Court," Shana made no objection. And when FCS
issued its December 1, 2017 letter with "bindine recommendations, Shana made no
objection to the District Court. The District Court's February 27, 2018 order adopting
the FCS recommendations "until further order of the Court" provided that either of the
parties could request within 30 days a contested hearing "on their proposed parenting
plan and the adoption of the Report of Family Court Services." Shana filed a request for
hearing on the recommendations, and the court promptly entered an order scheduling a
full-day hearing.
¶8 Bedrock in Montana jurisprudence is the maxim that "[ajcquiescence in error
takes away the right of objecting to it." Section 1-3-207, MCA. "We will not place the
District Court in error 'for an action to which the appealing party acquiesced or actively
participated.'" Horn v. Bull River Country Store Props., 2012 MT 245, ¶ 25, 366 Mont.
491, 288 P.3d 218. Though Shana raises numerous substantive objections to the
operations and authority ofthe Eleventh Judicial District's FCS program, much water has
flowed under the bridge since the District Court's initial order of referral, and we
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conclude that her objections come too late. Shana agreed to FCS involvement and
actively participated in the FCS process up until the October 2018 hearing. The District
Court acknowledged the facial legitimacy of some of Shana's concerns but noted that she
had received opportunity to make a full presentation of her objections to the FCS
recommendations. When Shana filed her appeal, the court had not yet issued a final
parenting plan or an order on the substance of the FCS recommendations to which Shana
objected.
119 We review a district court's ruling on a Rule 60(b)(6) motion for abuse of
discretion. Essex Ins. Co. v. Moose's Saloon, Inc., 2007 MT 202, ¶ 18, 338 Mont. 423,
166 P.3d 451. We have determined to decide this case pursuant to Section I, Paragraph
3(c) of our Internal Operating Rules, which provides for memorandum opinions. Shana's
appeal presents a question resolved by the applicable standard of review. Because Shana
acquiesced in the error of which she now complains, we conclude that the District Court
did not abuse its discretion in denying Shana's motion for Rule 60(b) relief. Its order is
affirmed.
Justi/e
We Concur:
Chief Justice
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Justices
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