                                                                                       January 19 2016


                                          DA 15-0244
                                                                                       Case Number: DA 15-0244

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2016 MT 18N



IN RE THE MARRIAGE OF:

LESTER ALVIN PLOTNER,

              Petitioner and Appellant,

         v.

ALEXANDRA LEA PLOTNER,

              Respondent and Appellee.



APPEAL FROM:           District Court of the Thirteenth Judicial District,
                       In and For the County of Yellowstone, Cause No. DR-14-0273
                       Honorable Gregory R. Todd, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Elizabeth J. Honaker, Honaker Law Firm, Billings, Montana

                For Appellee:

                       Stephen C. Mackey, Yvette K. Lafrentz, Towe, Ball, Mackey, Sommerfeld
                       & Tuner, P.L.L.P., Billings, Montana



                                                   Submitted on Briefs: December 30, 2015
                                                              Decided: January 19, 2016


Filed:

                       __________________________________________
                                         Clerk
Justice Laurie McKinnon delivered the Opinion of the 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     Lester Alvin Plotner (Lester) appeals from an order issued by the Thirteenth

Judicial District Court, Yellowstone County, adopting a final parenting plan and granting

his former spouse, Alexandra Lea Plotner (Alex), primary custody of their two minor

children. Alex requests this Court impose sanctions pursuant to M. R. App. P. 19(5) for

an appeal taken without reasonable grounds. We affirm the decision of the District Court

and deny Alex’s request for sanctions.

¶3     We address the following issues on appeal:

       1. Whether the District Court abused its discretion in entering its findings
           of fact.

       2. Whether the District Court erred in determining the best interests of the
           Plotner children.

       3. Whether the District Court abused its discretion in admitting evidence.

       4. Whether Alex is entitled to attorney’s fees for the cost of this appeal.

¶4     Lester and Alex Plotner were married in Yellowstone County, Montana, in March

2009. They have two minor children born of the marriage, K.P., born in 2008, and A.P.,

born in 2011. Lester is employed full time with the Army National Guard. Alex is

employed full time at Sports Authority and is a part-time member of the Army National


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Guard. The parties separated in December 2013, after which they shared parenting

equally with the children spending alternating weeks with each parent.

¶5     On March 21, 2014, Lester filed a petition for dissolution of marriage and a

proposed parenting plan. He asked that the court adopt the current parenting arrangement

wherein he and Alex would continue to alternate weeks with the children.               Alex

responded with a proposed parenting plan under which she would receive primary

custody, the children would spend alternating weekends and holidays with Lester, and the

children would reside with Lester for a consecutive three-week period in the summer.

After a hearing, the District Court entered findings of fact, conclusions of law, and order

adopting the parenting plan proposed by Alex.

¶6     Lester appeals.

¶7     1. Whether the District Court abused its discretion in entering its findings of fact.

¶8     Lester contends that the District Court abused its discretion in entering several

findings of fact, namely: Finding of Fact 10: Lester has a propensity not to be civil when

communicating with Alex; Finding of Fact 11: Lester refuses to allow Alex to

communicate with the girls when he has them during his week; Finding of Fact 12:

Photos have been posted on Facebook of Lester and various others playing beer pong in

the garage of the marital residence, and of Lester drinking at a bar; and Finding of Fact

13: On May, 10, 2014, during Lester’s week with the children, Lester left the girls in the

care of his brother, who unknowingly permitted A.P. and a friend to wander out of the

house and a substantial distance into the neighborhood.            Ultimately, a neighbor




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discovered the children and they were returned, but not until after the police were notified

of the incident.

¶9     We have carefully reviewed the record and conclude the District Court’s findings

are all supported by substantial evidence. At the hearing, Alex introduced evidence of

email communications from Lester in which he directed several disparaging remarks

towards her, including:

       I can’t stand you . . . . You are dirty.

       Enough with the contacting me on my parenting week. You are harassing

       me. Stop asking, you fucked that up not me. Also, I don’t care if you miss

       them it’s not your week.

Lester further agreed during cross-examination that he referred to Alex as “the dirty

barracks whore” in an email, and that he deliberately attempted to frustrate or deny

contact between the children and Alex during his parenting weeks. Similarly, photos of

Lester and others playing beer pong in his garage and Lester drinking beer at a bar were

introduced into evidence. Lastly, Lester admitted during the hearing that his brother had

lost the children during Lester’s parenting week and they were not returned until a

neighbor found them wandering in the street.          The District Court did not abuse its

discretion in entering its findings of fact.

¶10    2.   Whether the District Court erred in determining the best interests of the
            Plotner children.

¶11    Lester argues that the District Court erred in determining the best interests of his

children by failing to select the parenting plan he proposed.         Lester contends that



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continuing the current parenting arrangement is in the best interests of the children

because it promotes frequent and continuing contact with both parents. Pursuant to

§ 40-4-212, MCA, a district court must “determine the parenting plan in accordance with

the best interest of the child” after considering “all relevant parenting factors.” Section

40-4-212(1), MCA, sets forth a number of factors for a district court to consider,

including “whether the child has frequent and continuing contact with both parents,

which is considered to be in the child’s best interests.” While a district court must

consider the statutorily enumerated factors when making its determination, we have held

it need not make a specific finding as to each. In re the Marriage of Graham, 2008 MT

435, ¶ 19, 347 Mont. 483, 199 P.3d 211.

¶12    Here, the District Court provided express findings as to each of the § 40-4-212(1),

MCA, factors. Specifically, in regard to the statutory factor of “frequent and continuing

contact” the court made extensive factual findings supporting its decision to grant Alex

primary custody. The court explained that the parenting plan proposed by Lester “has not

worked well.” The court found that when the children were with him during his week,

Lester failed to take K.P. to extracurricular activities, refused to take the children to

birthday parties of the children’s friends, and exhibited a pattern of isolating the children

from any contact or communication with their mother. These findings are supported by

substantial evidence.    The District Court adequately considered the children’s best

interests in adopting Alex’s proposed parenting plan.




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¶13    3. Whether the District Court abused its discretion in admitting evidence.

¶14    Lester argues that the District Court abused its discretion in “admitting into

evidence, over objection, certain emails between Lester and Alex, as well as other

exhibits.” Lester contends that he “had requested in discovery the production of all trial

exhibits, and Alex had not produced these.”1 We review a trial court’s decision regarding

the imposition of sanctions for an alleged discovery violation to determine whether the

court abused its discretion. Richardson v. State, 2006 MT 43, ¶ 21, 331 Mont. 231, 130

P.3d 634. In doing so, we will generally “defer to the district court because it is in the

best position to determine both whether the party in question has disregarded the

opponent’s rights, and which sanctions are most appropriate.” Richardson, ¶ 21. In

reviewing whether sanctions are appropriate, we examine “the extent of the prejudice to

the opposing party which resulted from the discovery abuse.” Schuff v. A.T. Klemens &

Son, 2000 MT 357, ¶ 72, 303 Mont. 274, 16 P.3d 1002. During the hearing, Alex offered

eleven exhibits into evidence, Exhibits A through K.               Exhibits A through H were

admitted without objection from Lester. We will not place the District Court in error for

a ruling in which Lester made no objection. In re Marriage of Anderson, 2013 MT 238,

¶ 28, 371 Mont. 321, 307 P.3d 313. In regard to the admission of Exhibits I, J, and K—

which consist of a Google Earth image of Lester’s neighborhood and phone logs of dates

and times of communications between the parties—Lester has failed to sufficiently



1
  It is not entirely clear which “certain emails” and “other exhibits” Lester is arguing the District
Court abused its discretion in admitting. Nonetheless, for purposes of this appeal, we will
assume that Lester is challenging the admission of all the exhibits Alex offered.


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explain on appeal how he was unduly prejudiced by their admission. We conclude that

the District Court did not abuse its discretion in admitting this evidence.

¶15    4. Whether Alex is entitled to attorney’s fees for the cost of this appeal.

¶16    Alex requests that this Court impose sanctions pursuant to M. R. App. P. 19(5) for

an appeal that is frivolous, vexatious, filed for purposes of harassment or delay, or taken

without substantial or reasonable grounds.          To determine whether sanctions are

appropriate under M. R. App. P. 19(5), we generally assess whether the arguments were

made in good faith. Cooper v. Glaser, 2010 MT 55, ¶ 16, 355 Mont. 342, 228 P.3d 443.

While we reject Lester’s arguments, we believe that he exercised his right to appeal the

decision of the District Court in good faith. We decline Alex’s request for attorney’s fees

under M. R. App. P. 19(5).

¶17    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

of the Court, the case presents a question controlled by the standards of review and

settled law.

¶18    Affirmed.

                                                  /S/ LAURIE McKINNON


We concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA




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