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                                                                 No. 99-561



                           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                               2000 MT 91N




IN THE MATTER OF THE GUARDIANSHIP

OF WILSON JESSIE WYNNE,

an incapacitated and protected person.




APPEAL FROM: District Court of the Twelfth Judicial District,

In and for the County of Hill,

Honorable John Warner, Judge Presiding




COUNSEL OF RECORD:



For Appellant:



Carl White, Havre, Montana




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For Respondent:



Frank Altman, Altman & Boucher, Havre, Montana



Jeff Ferguson, Great Falls, Montana



Submitted on Briefs: March 23, 2000

Decided: April 11, 2000



Filed:




__________________________________________

Clerk



Chief Justice J. A. Turnage 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 but 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 noncitable cases
       issued by this Court.
    2. ¶Wilson Jessie Wynne appeals the appointment of her daughter Nancy McDonagh
       as her guardian and conservator, in the Twelfth Judicial District Court, Hill County.

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        We affirm.
   3.   ¶The issues are whether the court erred in denying Wynne's motion to dismiss;
        whether the court erred in precluding Wynne's counsel from examining witnesses or
        presenting argument; and whether the court erred in allocating the burden of proof.
   4.   ¶Wynne's motion to dismiss this proceeding was based upon her contention that
        venue was properly in Arizona, her permanent place of residence, rather than in Hill
        County, Montana, where she was temporarily located. She concedes, however, that
        the court had personal jurisdiction over her because she was present in Montana,
        and subject matter jurisdiction because she was incapacitated and in need of
        protection. The court denied the motion to dismiss on those bases. No evidence was
        presented that a proceeding for guardianship or conservatorship had been initiated
        elsewhere. We hold that the District Court did not err in denying Wynne's motion to
        dismiss.
   5.   ¶As the hearing began, Wynne's attorney advised the court that he might be called
        as a witness. The court therefore ruled that Wynne's counsel would be excluded
        from examining and cross-examining witnesses, with the exception that the court
        would consider any specific requests by him to question specific witnesses.
        Although Wynne's attorney made no such request during the hearing and did not
        object to the stipulation of settlement which was eventually proposed to the court,
        Wynne asserts on appeal that the court denied her right to counsel by precluding her
        attorney from having any contact with her and by not taking evidence on whether
        he had been denied contact with her.
   6.   ¶The court's ruling that Wynne's counsel could not examine and cross-examine
        witnesses without a specific request as to a specific witness did not preclude him
        from making the arguments now made to this Court concerning the settlement
        agreement reached or his purported lack of contact with Wynne during trial. We
        will not hold a district court in error based on an argument not raised below. Unified
        Industries, Inc. v. Easley, 1998 MT 145, ¶ 15, 289 Mont. 255, ¶ 15, 961 P.2d 100, ¶
        15. Because counsel failed to raise these matters in the District Court, we do not
        consider them further.
   7.   ¶Counsel also asserts that he was precluded from arguing that the petition for
        guardianship was deficient because it did not specify whether a full or limited
        guardianship was sought, as required under § 72-5-319, MCA. In light of the
        document filed by Wynne's counsel nominating her niece, Judy Rutledge, as her
        full guardian; the ample support in the record for the appointment of a full guardian;
        and the fact that McDonagh was appointed full guardian; we conclude that this
        argument is frivolous.

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   8. ¶Finally, Wynne argues that the District Court erred in placing upon her the burden of proving
      that she was capable of choosing the person whom she wished to serve as her guardian and
      conservator. She asserts that under § 72-5-421(5), MCA, she should have been presumed to have
      the capacity to make a nomination.
   9. ¶The record does not reveal any ruling by the District Court that Wynne was presumed
      incompetent to nominate her guardian. Moreover, Rutledge, the nominee proposed by Wynne's
      attorney, effectively withdrew her petition by agreeing during trial that McDonagh should be
      appointed. Because this question has therefore been rendered moot, we do not further consider it.
      See Turner v. Mountain Engineering and Const., Inc. (1996), 276 Mont. 55, 59, 915 P.2d 799,
      802.
  10. ¶The judgment of the District Court is affirmed.


/S/ J. A. TURNAGE



We concur:



/S/ KARLA M. GRAY

/S/ W. WILLIAM LEAPHART

/S/ WILLIAM E. HUNT, SR.

/S/ TERRY N. TRIEWEILER




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