                                                                                            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

specific claim or objection in the district court. In re T.E., ¶ 20. The issue of whether

granting the grandparents residential custody is a violation of D.E.R.’s constitutional rights is

not properly before us.

¶13    Our review of the entire record reveals that the District Court’s findings of fact are

sufficient and supported by substantial credible evidence. The legal basis of the parenting

plan ordered by the District Court is apparent from the record and is likewise sufficient.
                                               5
¶14   Affirmed.

                          /S/ JOHN WARNER



We Concur:


/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS




                            6
