                  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

                                            5
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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