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                                                               No. 00-478

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             2001 MT 275N



                                                   IN RE THE MARRIAGE OF

                                                   ROBERT LEE KELLEHER,

                                                      Petitioner and Appellant,

                                                                     and

                                               CHERYL HIGGINS KELLEHER,

                                                   Respondent and Respondent.

                             APPEAL FROM: District Court of the Fifth Judicial District,

                                               In and for the County of Jefferson,

                                     The Honorable Frank M. Davis, Judge presiding.

                                                     COUNSEL OF RECORD:

                                                             For Appellant:

                   Robert C. Kelleher, Sr. a/k/a Robert Lee Kelleher, Butte, Montana (pro se)

                                                            For Respondent:

                Michael D. McLean, Knight, Dahood, McLean & Everett, Anaconda, Montana

                                           Submitted on Briefs: November 2, 2000
                                               Decided: December 19, 2001

                                                                   Filed:


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                                    __________________________________________

                                                                    Clerk




Justice James C. Nelson delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent. The decision shall be filed as
a public document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number, and result to the State Reporter Publishing Company and to
West Group in the quarterly table of non-citable cases issued by this Court.

¶2 The Appellant, Robert Kelleher (Robert), appeals from an order of the District Court of
the Fifth Judicial District, Jefferson County, denying his motion for an order modifying
the previous parenting plan established between Robert and the respondent Cheryl
Kelleher (Cheryl) regarding their son, Joseph Kelleher (Joseph). We affirm.

¶3 We address the following issue on appeal: Did the District Court err in its findings
regarding Joseph's best interest?

                          I. FACTUAL AND PROCEDURAL BACKGROUND

¶4 Robert and Cheryl divorced on December 9th, 1993. The divorce decree indicated that
the parties agreed Cheryl would be Joseph's residential custodian. In 1996, Robert
petitioned the court to modify this agreement. While we are not concerned with this
previous petition here, the parties agreed that Cheryl would remain the residential
custodian when they resolved the 1996 petition. In 2000, Robert filed the petition at issue
in this case and sought residential custody of Joseph, who is now eight years of age.
Robert argued that changes in Joseph's circumstances required modification of the
previous parenting plan. The changes cited by Robert included constant changes in
Joseph's residences (four moves in three years), and changes in Joseph's day care facilities
(three facilities in three years) both of which Robert believed were too disruptive for
Joseph. Robert also cited his discovery that Cheryl was receiving and using Joseph's
substantial monthly Social Security benefits as support. Joseph receives Social Security
benefits of approximately $650 per month under 42 U.S.C. 402(d) (1994), because he is a

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minor dependent of Robert, who is now 78 years of age.

¶5 After a mediation between the parties, Robert and Cheryl agreed that she would remain
the residential custodian. However, the parties could not agree on two issues. These issues
were submitted to the District Court for its determination. These two issues, as presented
to the court by Robert and Cheryl at a hearing on the matter and as described by the court
in its order, were "[w]here the child is to attend school" and the "[a]llocation of the child's
social security benefits."

¶6 Robert asserted that it was in Joseph's best interest to attend private parochial school in
Butte at Butte Central. He also asserted that it was in Joseph's best interest to spend part of
the Social Security benefits on this private school, $200 per month tuition, and save the
rest for Joseph's future education. Robert supported this argument by asserting that
spending part of the money on day care facilities, as Cheryl had been doing, was not in
Joseph's best interest when Robert could avoid day care costs by taking care of Joseph
himself. Cheryl asserted that it was in Joseph's best interest to attend school in Anaconda
because that was the place of his residence and that to require him to go to school in Butte
would add more disruption to his life.

¶7 In its Findings and Order, the District Court first accepted the terms of the mediation as
presented to the court in a settlement memorandum. Further, the court found it was in
Joseph's bests interest for Cheryl to have discretion to use Joseph's Social Security funds
for his present needs. Finally, the court found that it was in Joseph's best interest to attend
school in Anaconda, at least while he was in grade school, because Butte was too far away
from Cheryl, his residential custodian. The court also stated that it had no credible
evidence showing that Butte Central had significantly more merit than the Anaconda
public schools. Robert now appeals the District Court's order.

                        II. LEGAL ISSUES NOT PRESERVED FOR APPEAL

¶8 Before we turn to the appropriate standard of review for this case, we must determine
what issues were properly preserved for appeal. In his brief on appeal, Robert states many
issues for review. In phrasing these issues, Robert mixes questions of fact with questions
of law. The legal issues he presents, with the facts assumed established included in the
questions, are as follows:

        1. [D]oes Joseph have a statutory and constitutional right to the benefits of a private


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        school education? (Also phrased as: Can district court statutorily and
        constitutionally deny Joseph right to attend school offering greater prospect of
        developing his full educational potential?) (Emphasis in original.)

        2. If child's "Entitlement" is his property and father is willing to provide day care
        "for free", does the due process clause of the Fourteenth Amendment of the U.S.
        Constitution require it be spent on his education rather than on day care?

        3. Where statute makes parents liable for support and education of minor child, can
        parents avoid that duty by using child's own estate for support and paying his day
        care costs? (Also phrased as: Do Special Circumstances Enhance Duty to Minor to
        Provide Means to Develop Full Educational Potential?) (Emphasis in original.)

        4. Does Art. X, Section 1 of the Montana Constitution have the same force and
        effect as a Bill of Rights guarantee when it guarantees Joseph a "fundamental right"
        to "develop (his) full educational potential"? (Emphasis added.)

        5. Where Parenting Plan Stipulation makes mother in nomine residential custodian,
        child now spends most of time awake with day care operators, and Stipulation
        signed by mother refers school choice to decision of district court, does court have
        jurisdiction to amend Stipulation appointing father residential custodian during the
        school year? (Also phrased as: Where child spends most of time with day care
        operators but Parenting Plan Stipulation makes mother in nomine residential
        custodian, does Court have jurisdiction to order father to provide room and board
        for child during school year?)

Robert asserts that the issues he raises on appeal were preserved. We disagree. Robert also
asserts that the facts in the lower court were uncontroverted, and therefore, this Court
should have the "plenary power" to consider the legal issues de novo. We disagree.

¶9 The general rule is that issues not raised before the trial court and new legal theories are
not considered by this Court on appeal because it is unfair to fault the trial court on an
issue it was never given an opportunity to consider. Unified Indus., Inc. v. Easley, 1998
MT 145, ¶ 15, 289 Mont. 255, ¶ 15, 961 P.2d 100, ¶ 15 (citing Day v. Payne (1996), 280
Mont. 273, 276, 929 P.2d 864, 866). Our review of the record reveals that none of the
legal questions quoted above were argued before the District Court. Further, the District
Court did not make its ultimate decision based on any determinations of the above legal


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questions.

¶10 While some of these legal questions were presented in the initial brief supporting
Robert's petition to modify the previous parenting plan, the questions were not preserved
for appeal when the parties, following the mediation, represented to the District Court that
the only unresolved issues before the court were the questions of fact which the court
ultimately addressed. Further, Robert's testimony at the hearing on the unresolved issues
regarding his personal belief that Article X, Section 1 of the Montana Constitution entitles
all children to develop their full educational potential and his belief that federal Social
Security benefits are to be used for educational purposes did not preserve the legal
questions either. Although Robert is an attorney, his testimony was not admitted as expert
legal opinion and was merely a reflection of Robert's personal belief that Butte Central
would provide a better education for Joseph than the public schools in Anaconda.

¶11 Therefore, because the issues as presented to the court did not require determination
of any legal questions, but only required the court to find what was in Joseph's best
interest, we will not consider any of the above legal issues in reviewing this appeal. The
factual issues Robert presents on appeal are simply considerations involved in the two
questions presented to the District Court for its decision. Therefore, we will address
whether the District Court erred in its findings in further detail below.

                                              III. STANDARD OF REVIEW

¶12 Our review of a district court's findings relating to custody or visitation modification
determines whether those findings are clearly erroneous. In re Marriage of Elser (1995),
271 Mont. 265, 270, 895 P.2d 619, 622 overruled on other grounds by Porter v.
Galarneau (1996), 275 Mont. 174, 911 P.2d 1143. Similar to our review of findings of
fact in other cases, findings in custody modifications are clearly erroneous if not supported
by substantial evidence, the court misapprehends the effect of the evidence, or this Court's
review of the record convinces it that a mistake has been made. Elser, 271 Mont. at 270,
895 P.2d at 622; see also In re Marriage of Johnson (1994), 266 Mont. 158, 166-67, 879
P.2d 689, 694 (citing Interstate Prod. Credit Assn. v. DeSaye (1991), 250 Mont. 320, 323,
820 P.2d 1285, 1287).

¶13 In this case, Robert seeks what amounts to a custody modification, because Robert
asserts that Joseph should attend school near Robert's place of residence in Butte, that
Joseph's Social Security funds should go towards tuition at Butte Central, that Robert


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should provide day care for Joseph everyday after school, and that Robert should provide
room and board for Joseph during the school year. Robert essentially asked the trial court,
and now this Court, to modify the custody agreement in a way that would significantly
increase his custody of Joseph and would in effect change the sole custody agreement to
one similar to joint custody, in which Robert would be in his words "residential custodian
during the school year." Therefore, the clearly erroneous standard of review for findings
involved in custody modification applies to the instant case.

¶14 The findings of the District Court at issue here concern the findings required by § 40-
4-219, MCA, and § 40-4-212, MCA. Section 40-4-219, MCA, allows amendment of a
parenting plan if the court "finds, upon the basis of facts that have arisen since the prior
plan or that were unknown to the court at the time of entry of the prior plan, that a change
has occurred in the circumstances of the child . . . ." In this case, Cheryl did not dispute
that the facts cited in Robert's initial motion constituted a change in Joseph's
circumstances that qualified under § 40-4-219, MCA, and the court did not make any
specific findings on this issue. Therefore, we do not need to review the threshold "change
in circumstance" requirement of this section and simply note that Robert met this
requirement.

¶15 After finding a change in the circumstances of the child, § 40-4-219, MCA, allows the
court to amend the parenting plan if "the amendment is necessary to serve the best interest
of the child." To determine the child's best interest, the court may consider the criteria in §
40-4-212, MCA. Section 40-4-212, MCA, requires that "the court shall determine the
parenting plan in accordance with the best interest of the child. The court shall consider all
relevant parenting factors . . . ." While no specific statutory factors were listed by the
District Court in this case, the factors listed in § 40-4-212, MCA, that are relevant to this
case include:

        (a) the wishes of the child's parent or parents;

        (b) the wishes of the child;

        (c) the interaction and interrelationship of the child with the child's parent or parents
        and siblings and with any other person who significantly affects the child's best
        interest;

        (d) the child's adjustment to home, school, and community;


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        (e) the mental and physical health of all individuals involved;

        ...

        (h) continuity and stability of care;

        (i) developmental needs of the child;

        ...

        (l) whether the child has frequent and continuing contact with both parents, which is
        considered to be in the child's best interests . . .



Therefore, §§ 40-4-212 and 219, MCA, require our review in this case to determine
whether the District Court's findings regarding Joseph's best interest were clearly
erroneous.

IV. DISCUSSION: Did the District Court err in its findings regarding Joseph's best
interest?

¶16 In this case, the District Court accepted the terms of the mediation as presented to the
court in a settlement memorandum, which designated Cheryl as the residential custodian.
The court then considered two questions, as submitted to it by the parties after their
mediation: "[w]here the child is to attend school" and the "[a]llocation of the child's social
security benefits." On the school question, the District Court determined:

        The Court specifically finds that it would not be in the best interest of a seven year
        old to pass up a school two blocks from his residence and attend school involving 54
        miles of travel each day and especially so in the absence of credible evidence as to
        the relative merits of the two school systems. This could very well change on the
        approach of high school age. The parents are both of the same religious faith, a
        factor that could become important later involving not only the parents but a
        teenager who should have input as to where he attends high school.

On the allocation of Social Security benefits, the court determined that "these benefits
should be utilized at the discretion of the custodial mother commensurate with need."

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A. The Parties' Positions

¶17 On appeal, both parties reassert the arguments they presented to the trial court. On the
school issue, Robert argued that Butte Central has numerous advantages. The advantages
Robert cited include smaller class sizes (15 vs. 20), Spanish instruction starting at the first
grade level, and religious study as part of the regular curriculum. Robert also asserted that
Butte Central would better prepare Joseph for advanced study in sciences and would
increase Joseph's post-secondary options. Finally, Robert noted that Butte Central had
never had significant problems with violence, while Anaconda public schools had
problems with guns and its administration had insufficient resources for additional
security measures, according to the local police. Robert cited an independent study which
found that private schools tended to have more rigorous academics and more exposure to
music and art, greater safety, and fewer students with negative interactions with teachers.
On appeal, Robert supplements these arguments with documents demonstrating that Butte
Central graduates have high grade point averages after high school and after college and
that Butte Central students also have higher than the national average Stanford
Achievement Test results.

¶18 Robert argued that attendance at Butte Central would be easy for Joseph because
Robert lives only a short distance away. Robert argued that because he is semi-retired he
could drive Joseph as necessary and that he had more free time in contrast to Cheryl who
works full time. Robert noted that he could afford to provide housing and food for Joseph
while Joseph attended Butte Central. Robert also noted that Joseph would have to change
schools after first grade in Anaconda, whereas in Butte, Joseph would not have to change
schools until he finished grade school. Robert asserted that Joseph is "extremely" smart
and was bored at Anaconda public schools. Robert pointed out that Joseph's best friend
lives in Butte. Finally, Robert noted that Joseph already spends one evening a week with
him.

¶19 On the issue of the use of Joseph's benefits, Robert asserted that it was not in Joseph's
best interest to use these benefits to pay for day care that Joseph allegedly feared,
especially in light of the fact that Robert had free time during which he could take care of
Joseph. Robert also noted that he was Joseph's primary care giver for the first two years of
his life when Joseph lived in Butte. Robert noted that the day care operators actually spent
more time with Joseph than Cheryl did, and therefore argued the money would be better
used by saving it and allowing Robert to care for Joseph. Robert also asserted that it was
in Joseph's best interest to spend part of this money on tuition at Butte Central and to save

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the rest in order to pay for a college education. Robert noted that the cost of higher
education at Carroll College is currently about $18,000 per year. He also noted that he and
Cheryl and his six other children were all college graduates and that therefore, post-
secondary education would be a priority for Joseph.

¶20 At the hearing, Robert supported his assertions regarding Joseph's best interest with
his own affidavit, affidavits of people in Butte who had contact with Joseph, and with a
copy of the national study on the differences between public and private school education.
On appeal, Robert attached additional support for his arguments such as proof of test
scores from Butte Central. Robert asserts that his testimony is uncontradicted and that his
affidavits and hearing testimony constitute the only sworn evidence before the court.

¶21 On appeal, Robert asks that this Court find the District Court's order clearly erroneous
and order that Robert be Joseph's residential custodian during the school year, that Joseph
attend Butte Central, and that Joseph's Social Security benefits be used to pay for tuition at
Butte Central with the balance saved for future education costs.

¶22 In contrast, Cheryl asserts that Robert did not support his opinion testimony that Butte
Central is a better school than the public schools in Anaconda with the proper evidentiary
support, but only included the national study. Cheryl asserts that Robert therefore failed to
meet his burden to support his motion to change the previous parenting plan. Cheryl notes
that the District Court did not allow her to cross-examine Robert on his opinions regarding
Butte Central because the court stated it had all the information it needed to resolve the
issue. Cheryl also notes that the District Court's final order states that there was an
"absence of credible evidence as to the relative merits of the two school systems."
Therefore, Cheryl argues that the fact that Robert's testimony was uncontradicted does not
demonstrate that the court's findings regarding Joseph's best interest were clearly
erroneous.

¶23 Upon direct questioning by the court at the hearing, Cheryl simply asserted that
because Robert agreed to allow to her to continue to be Joseph's residential custodian in
the mediated settlement agreement, that it was in Joseph's best interest to attend school in
Anaconda where he lived, that Joseph had made friends in Anaconda that he would be
attending school with, and that it would be disruptive for Joseph to drive to Butte every
day for school, especially in light of the fact that there was often bad weather on the road
between Butte and Anaconda during the school year. Cheryl also asserted that because
Joseph is seven years of age and therefore old enough to attend school rather than day

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care, she would begin to save some of the Social Security benefits for Joseph's future
education that would not need to be spent on the free public schools in Anaconda.

¶24 In her brief on appeal, Cheryl also cites In re Marriage of Gersovitz (1989), 238
Mont. 506, 509, 779 P.2d 883, 885, for the proposition that any consideration of religious
education must be considered in the general context of the best interest of the child.
Further, Cheryl argues it is proper for her to use Joseph's Social Security benefits for his
present needs because she alleges Robert does not pay child support. In sum, Cheryl
asserts that the District Court's findings were in Joseph's best interest and were not clearly
erroneous.

¶25 In reviewing the record from the District Court, we note that the proper foundation
was not laid for many of the evidentiary assertions discussed above and therefore these
assertions were not properly admitted according to the Montana Rules of Evidence.
Further, other evidentiary errors were made regarding properly accepting testimony for the
record. However, for purposes of this appeal, we will accept the general facts asserted by
the parties as properly established because that is what the trial court did and these are the
facts upon which the court based its opinion.

B. The District Court Did Not Err In Its Findings Regarding Joseph's Best Interest

¶26 Having reviewed the evidence before the District Court, we hold the court did not err
in finding that it was in Joseph's best interest to remain in Anaconda and attend school and
that it was also in Joseph's best interest that Cheryl have discretion to determine how his
benefits should be used for his present and future needs.

        1. Butte Central or Anaconda Public Schools?

¶27 Our review of prior case law indicates that we have not previously considered parental
disagreements that focus on which school a child should attend. However, our decisions
indicate that a district court should use common sense in considering issues in the best
interest of a child. In re Marriage of Syverson (1997), 281 Mont. 1, 17, 931 P.2d 691, 701.
Further, Syverson also indicated in dicta that a district court should not consider
arrangements where a child has to attend school in two different locations, in order to
preserve a custody arrangement. Syverson, 281 Mont. at 17, 931 P.2d at 701. We have also
upheld the recognition that stability is important to children, so much so that custody be
changed in order to allow them to remain in their current community. In re Marriage of


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Bergner (1986), 222 Mont. 305, 310-11, 722 P.2d 1141, 1145.

¶28 Based on our review of the record and our prior case law, we hold that the District
Court did not err in finding that Joseph should remain in school in Anaconda. The District
Court accepted the terms of the mediated settlement which allowed Cheryl to remain the
residential custodian. Therefore, allowing Joseph to remain with her and attend a school in
the same community in which he lives can hardly be considered clearly erroneous, but
instead provides stability for Joseph.

¶29 We note that in presenting the question on school attendance to the court, Robert was
in essence asking the court to reverse the settlement agreement and make him the
residential custodian. Presenting a court with questions which require it to ignore a
mediation defeats the whole purpose of mediation to further the wishes discussed and
agreed to by the parties. The school question presented to the court in this case attempted
to get the court to accomplish an entirely different purpose, awarding custody, with a
backdoor approach. We will not reverse a district court that resists such attempts to defeat
mediation.

¶30 Further, the court indicated that it had no credible evidence showing that Butte Central
was a significantly better school. Even accepting the evidence submitted by Robert on
appeal that Butte Central's standardized test scores are above the national average, this
evidence does not show Anaconda's schools are necessarily worse. Further, even if Butte
Central were a better school, Anaconda's schools would have to be shown to be
significantly substandard in order to demonstrate to the court that it was in Joseph's best
interest not to stay in the home and town of his residential custodian, Cheryl. As the
District Court stated, it had no credible evidence showing significant differences between
the schools. Therefore, the District Court's finding on the issue of school attendance was
not clearly erroneous.

        2. The Use of Joseph's Social Security Benefits

¶31 We have also not previously addressed the specific question of how a child's federal
Social Security benefits under 42 U.S.C. 402(d)(1994), may be used. However, we have
held that such benefits may be credited against a noncustodial parent's child support
obligation. In re Marriage of Cowan (1996), 279 Mont. 491, 499-502 , 928 P.2d 214, 219-
21. Inherent in this rule is the assumption that such benefits be used to support a child's
present needs. We have also held that the manner in which child support is to be used is


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left to the discretion of the custodial parent. Willoughby v. Loomis (1994), 264 Mont. 44,
51, 869 P.2d 271, 275; In re Marriage of Hopper, 1999 MT 310, ¶ 47, 297 Mont. 225, ¶
47, 991 P.2d 960, ¶ 47. Further, under § 40-6-212, MCA, an allowance may be made to
the parent of a child out of the child's property for the past or future support and education
of the child for the child's benefit.

¶32 While it is true that federal Social Security benefits are intended to provide education
for the recipient, Elam v. Hanson (N.D. Ohio 1974), 384 F.Supp. 549, this limited purpose
only applies to recipients over age 18. For minor age recipients, however, the general
purpose of the federal benefits is to provide "at least some measure of income and security
to those who have lost a wage-earner on whom they depended." Ziskin v. Weinberger (S.
D. Ohio 1973), 379 F.Supp. 124, 126.

¶33 In this case, the record demonstrates that in 1993, the parties initially agreed to a $50
per month child support payment. Later, during Robert's 1996 petition for modification,
the parties did not change this amount, but they recognized that their initial agreement was
not within this state's child support guidelines, as required by § 40-4-204 and § 40-5-209,
MCA. Cheryl currently receives $87.50 per month through a garnishment of Robert's
military benefits. In light of the above precedent, we hold the District Court's finding that
Cheryl had discretion to use these funds was not clearly erroneous because Joseph's Social
Security benefits and the military garnishment provide reasonable monthly support for
Joseph's present needs.

¶34 While we agree that Robert expressed serious concerns regarding Joseph's welfare,
including learning a foreign language at a young age, receiving a religious education,
preparing for advanced study in the sciences, and saving for a college education, we
cannot conclude here that the District Court was clearly erroneous in its order. The court's
order provided for Joseph's stability by allowing him to go to school in Anaconda where
Cheryl lives and it provided reasonable support for his present needs. Further, the court
made clear that the parties could and should continue to work together to address Joseph's
best interest in the future, which could include finding alternative means for providing for
the concerns expressed during the proceedings.

                                                        V. CONCLUSION

     ¶35 We conclude that substantial evidence supports the District Court's findings in
                                  Joseph's best interest.


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¶36 Affirmed.

                                                    /S/ JAMES C. NELSON

                                                               We Concur:

                                                      /S/ KARLA M. GRAY

                                               /S/ W. WILLIAM LEAPHART

                                                         /S/ JIM REGNIER

                                                /S/ TERRY N. TRIEWEILER




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