IN RE: THE PARENTING OF: E.C.D. (2024)

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion, 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 Mark David Wright appeals from the Thirteenth Judicial District Court, Yellowstone County's March 12, 2024 Order granting Catie Leigh Kelleher an order of protection against him. We affirm.

¶3 Wright and Kelleher have a daughter together named E.C.D. On February 2, 2024, Kelleher filed a Sworn Petition for a Temporary Order of Protection and Request for Hearing. Rather than filing a new action, Kelleher sought the order of protection through the ongoing parenting plan litigation in which she and Wright were engaged. On February 5, 2024, the District Court granted a Temporary Order of Protection and set a hearing date for the Petition. On February 22, 2024, the District Court held a pre-hearing status conference, at which both parties stated they wanted the hearing to be conducted pursuant to Uniform District Court Rule 17—the Informal Domestic Relations Trial process—rather than the formal Rules of Evidence. The District Court explained the relaxed procedures under MUDCR 17's informal rules, but advised the parties that they would still be able to object to the introduction of evidence during the hearing.

¶4 The District Court held the order of protection hearing on February 29, 2024. The District Court questioned Kelleher about the basis for her petition. Kelleher testified that Wright had subjected her to repeated harassing phone calls, drive-by and in-person contact, and that he had violated the Temporary Order of Protection. Kelleher described a history of stalking behavior by Wright and that he had made threats of violence against her.

¶5 After Kelleher finished testifying, the District Court indicated that it would be Wright's turn to testify next. Before continuing, though, the District Court wanted to take a break to allow Wright to confer with his counsel about testifying. The District Court noted that, based on Kelleher's testimony about Wright's actions, if Wright chose to testify he may be exposing himself to criminal liability. The District Court stated that if Wright testified, “it's a full waiver” of his right against self-incrimination. The District Court stated that it was going to take a recess to allow Wright and his counsel “time to discuss or strategize about that.” After the recess, the District Court clarified that because “the sole allegation [in the petition was] based on stalking ․ all the conduct that I'd be asking about would be based on [Kelleher's] testimony regarding that.” The District Court then asked whether Wright wished to testify and Wright's counsel responded: “I talked about it with my client, and he chooses not to testify.” Wright asked to admit some exhibits into evidence and the District Court allowed their admission.

¶6 On March 12, 2024, the District Court issued an Amended Three-Year Order of Protection for Kelleher.

¶7 We review a district court's decision to continue, amend, or make permanent an order of protection for abuse of discretion. In re Marriage of Lockhead, 2013 MT 398, ¶ 12, 373 Mont. 120, 314 P.3d 915.

¶8 Wright presents the issue on appeal as whether the District Court erred by ruling that adoption of the Informal Domestic Relations Trial process pursuant to MUDCR 17 fully waived Wright's constitutional right to assert his privilege against self-incrimination under the U.S. and Montana Constitutions. At the outset, we note that it appears from the record that Wright misapprehended the District Court's advisement. Contrary to Wright's assertion that the District Court ruled that MUDCR 17 “fully waived [Wright's] constitutional right to assert his privilege against self-incrimination under the U.S. and Montana Constitutions,” the District Court in fact expressed just the opposite opinion. In advising Wright that if he testified he may be risking “incriminating himself on something that is criminal,” the District Court noted, “I'm obviously not going to—find that the informal rules trump his constitutional rights.”

¶9 The District Court prudently saw fit to advise Wright that testifying may be exposing himself to criminal liability because Kelleher's testimony indicated criminal conduct on Wright's part, and notwithstanding the informal nature of the proceedings, his exposure to self-incrimination was still present. In order to ensure that Wright understood the implications of testifying and could make an informed decision, the District Court recessed to give Wright an opportunity to confer with his counsel and “discuss or strategize about” whether he should testify. When court resumed, before asking Wright's counsel whether he was going to testify, the District Court clarified that the District Court's examination of Wright would be limited to Kelleher's testimony regarding the alleged stalking conduct. Wright did not seek any further clarification as to the parameters that would be set on his testimony or the extent to which he may be waiving his right against self-incrimination; nor did he lodge any objection. His counsel simply advised: “I talked about it with my client, and he chooses not to testify.”

¶10 Appellants are limited on appeal to those issues that were properly preserved in the district court. State v. Baker, 2000 MT 307, ¶ 12, 302 Mont. 408, 15 P.3d 379. A litigant fails to preserve an argument that a district court's ruling was in error when he or she has the opportunity to object and fails to do so. Baker, ¶ 12. The basis for this general rule is that it is fundamentally unfair to fault the trial court for failing to rule correctly on an issue it was never given the opportunity to consider. Unified Indus., Inc. v. Easley, 1998 MT 145, ¶ 15, 289 Mont. 255, 961 P.2d 100 (citation omitted). The District Court advised the parties at the February 22, 2024 pre-hearing conference that they could object to rulings at the February 29, 2024 hearing notwithstanding the relaxed MUDCR 17 rules. Wright's counsel objected twice during the February 29, 2024 hearing to the introduction of certain evidence. Wright had ample time during the recess to consider whether to object to the District Court's advisement that testifying would constitute a waiver of his right against self-incrimination. Instead, Wright just chose not to testify. Wright failed to preserve the issue he now seeks to raise on appeal. We decline to address this issue.

¶11 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. This appeal presents no constitutional issues, no issues of first impression, and does not establish new precedent or modify existing precedent. The District Court's Order is affirmed.

JAMES JEREMIAH SHEA

We Concur: LAURIE McKINNON BETH BAKER INGRID GUSTAFSON JIM RICE