EASTON v EASTON

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No. 13763 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 LINDA G. EASTON, Plaintiff and Respondent, -vsMIKE G. EASTON, Defendant and Appellant. Appeal from: District Court of the Sixth Judicial District, Honorable LeRoy L. McKinnon, Judge presiding. Counsel of Record: For Appellant: Smith Law Firm, Helena, Montana James Sewell argued, Helena, Montana For Respondent : Michael J. Whalen argued, Billings, Montana Submitted: IfiN 2 Filed: ? % a t December 12, 1977 Decided: JAN p n '77% 1d.3 Mr. J u s t i c e oJohn Conway Harrison d e l i v e r e d t h e Opinion of t h e Conr t : This i s an appeal by defendant Mike G. Easton from t h e f i n d i n g s , conclusions and order of t h e D i s t r i c t Court, Park County, dated January 26, 1977. Judge LeRoy L. McKinnon denied defendant's p e t i t i o n f o r modification of t h e divorce decree and o t h e r r e l i e f a g a i n s t p l a i n t i f f , found defendant i n contempt of c o u r t , and ordered defendant t o pay p l a i n t i f f ' s a t t o r n e y f e e s i n t h i s matter. This c a s e involves a custody c o n f l i c t over t h e p a r t i e s ' minor c h i l d and v i s i t a t i o n r i g h t s . The custody d i s p u t e has r a g d nonstop s i n c e t h e e n t r y of t h e o r i g i n a l D i s t r i c t Court's f i n d i n g s of f a c t and conclusions of law dated June 30, 1975. Due t o t h e deep mire c r e a t e d by t h e p a r t i e s ' p e r s i s t e n t l e g a l maneuvering, a chronological summary of t h i s m a t t e r ' s progression through t h e D i s t r i c t Court i s provided. O June 30, 1975, f i n d i n g s of f a c t and conclusions of law n were entered by t h e D i s t r i c t Court. By t h i s judgment, p l a i n t i f f was awarded custody of t h e minor female c h i l d . Defendant was granted v i s i t a t i o n with h i s daughter two weekends per month, a l t e r n a t e holidays and s i x weeks during t h e summer. Defendant was required t o provide $100 c h i l d support per month. On J u l y 29, 1975, p l a i n t i f f moved t o amend t h e f i n d i n g s of f a c t and conclusions of law t o provide reasonable a t t o r n e y fees. The f i n d i n g s and conclusions were amended a s requested on August 19, 1975. P l a i n t i f f then f i l e d a p e t i t i o n t o amend, supplement and c l a r i f y t h e amended f i n d i n g s of f a c t and conclus i o n s of law and requested a r e s t r a i n i n g o r d e r . A hearing was held on t h i s p e t i t i o n October 3, 1975. O October 20, 1975, the n D i s t r i c t Court entered i t s findings of f a c t and conclusions of law, whereby i t modified the v i s i t a t i o n r i g h t s of defendant. Defendant countered by moving t o amend the findings and conclusions on October 27, 1975. Defendant sought t o r e s t o r e h i s v i s i t a t i o n r i g h t s a s o r i g i n a l l y determined. on t h i s motion. N hearing took place o I n March 1976, defendant requested the D i s t r i c t Court t o s e t a hearing on defendant's motion t o amend. The D i s t r i c t Court denied t h a t request, s t a t i n g the time f o r amending the findings of f a c t and conclusions of law had passed. Additionally a p r a c t i c a l problem e x i s t e d , i n t h a t no t r a n s c r i p t had been made of t h e proceedings. A t no time subsequent t o t h e o r i g i n a l hearing on divorce was a record made, nor was a c o u r t r e p o r t e r present t o make a record on t h e subsequent p e t i t i o n s t o modify, u n t i l t h e hearing held November 22, 1976. During the October 3, 1975, hearing, both p a r t i e s s t i p u l a t e d t o proceed without a court r e p o r t e r . Judge A.B. Martin, i n h i s April 6 , 1976, l e t t e r t o defendant's attorney a s of t h a t d a t e , c l e a r l y s t a t e d t h a t although counsel had been advised i t was t h e i r r e s p o n s i b i l i t y t o secure a court r e p o r t e r , none was present a t t h e October 3, 1975 hearing. Defendant responded by p e t i t i o n i n g f o r modification of the order entered October 20, 1975, by Judge A. B. Martin. After both p a r t i e s d i s q u a l i f i e d numerous D i s t r i c t Court judges and f i l e d numerous motions, the matter was f i n a l l y heard November 22, 1976. O January 26, 1977, the findings, conclusions and order of Judge n LeRoy L. McKinnon were entered. t i o n and o t h e r r e l i e f was denied. of court. Defendant's p e t i t i o n f o r modificaDefendant was found i n contempt P l a i n t i f f was awarded attorney f e e s according t o t h e provisions of s e c t i o n 48-327 and 48-339(3), R.C.M. t h i s order defendant appeals. 1947. From Defendant r a i s e s seven issues f o r review. Did the D i s t r i c t Court e r r : 1 ) I n not requiring t h a t a stenographic record be made of the October 3, 1975 hearing? 2) I n modifying defendant's v i s i t a t i o n r i g h t s by i t s findings of f a c t and conclusions of law entered on October 20, 1975? 3) By refusing t o consider defendant's motion t o amend findings of f a c t and conclusions of law and t o e n t e r a d d i t i o n a l findings da ted October 27, 1975? 4) I n not granting custody of the minor c h i l d t o defendant a s requested i n defendant' s p e t i t i o n f o r modification? 5) I n f a i l i n g t o appoint counsel f o r t h e dependent minor c h i l d a s requested by defendant? 6) B f a i l i n g t o interview the minor c h i l d and order y t h a t an i n v e s t i g a t i o n and report concerning c u s t o d i a l arrangements f o r the minor c h i l d be made? 7) I n awarding attorney f e e s t o p l a i n t i f f ? Issues 1,2 and 3. These i s s u e s p e r t a i n t o D i s t r i c t Court proceedings p r i o r t o the November 22, 1976 hearing and a r e combined f o r discussion. During o r a l argument before t h i s Court, defendant's present counsel argued t h a t by v i r t u e of t h i s appeal t h i s Court has j u r i s d i c t i o n t o review a l l p r i o r D i s t r i c t Court a c t i o n s concerning t h i s cause. W disagree. e This Court i s with- out j u r i s d i c t i o n t o consider t h e correctness of the decree of divorce and r e s t r a i n i n g order dated October 22, 1975, and t h e l e t t e r order of Judge Martin dated April 14, 1976. N appeal o was taken t o t h i s Court from t h e decree of divorce nor from t h e order of A p r i l 14 within t h e time allowed by Rule 5 , M.R.App. Civ.P. Montana law i s well s e t t l e d t h a t an untimely n o t i c e of of appeal i s a j u r i s d i c t i o n a l d e f e c t which renders t h i s Court powerless t o hear t h e appeal. 9 Z e l l v. Z e l l , (1977), - . Mont 565 P.2d 311, 34 St.Rep. 492, 493. A d d i t i o n a l l y , t h e n o t i c e of appeal f i l e d on February 14, 1977, s t a t e s t h a t defendant i s appealing from t h e d e c i s i o n and judgment entered on January 26, 1977. Rule 4 ( c ) , M.R.App.Civ.P., provides t h a t t h e n o t i c e of appeal " s h a l l d e s i g n a t e t h e judgment o r o r d e r appealed from." The judgment from which defendant appeals i s c l e a r l y t h e judgment entered January 26, 1977, by Judge McKinnon. Of f u r t h e r n o t e , t h i s Court takes exception t o defendant's f i r s t issue. W e t r u s t t h a t through inadvertence defendant's p r i o r counsel r a i s e d t h i s i s s u e . Upon a c l o s e review of t h e D i s t r i c t Court record, t h i s Court f i n d s t h a t counsel f o r t h e defendant s t i p u l a t e d before t h e D i s t r i c t Court t o proceed with t h e October 3, 1975, hearing without t h e presence of a c o u r t reporter. Counsel s u r e l y knows t h e term "waiver" i s g e n e r a l l y defined a s a voluntary and i n t e n t i o n a l relinquishment of a known r i g h t , claim o r p r i v i l e g e . v. Anderson, (1976), Farmers Elevator Company of Reserve Mont . 9 552 P.2d 63, 33 St.Rep. 614, 618. I s s u e 4. On Januaqy 26, 1977, Judge LeRoy L. McKinnon e n t e r e d t h e following conclusion of law: "1. The evidence does n o t j u s t i f y t h e modific a t i o n of t h e divorce decree h e r e i n w i t h i n t h e 1947, a s amended meaning of Section 48-339, R.C.M. 11 o r otherwise. S e c t i o n 48-339(2)(c), R.C.M. 1947, p r o h i b i t s modifica- t i o n of t h e custody decree w i t h i n two y e a r s a f t e r i t s d a t e of entry unless : 11 ( c ) the c h i l d ' s present environment endangers s e r i o u s l y h i s physical, mental, moral o r emotional h e a l t h , and the harm l i k e l y t o be caused by a change of environment i s outweighed by i t s advantages t o him." Defendant brought h i s p e t i t i o n t o modify the custody decree within two years of i t s d a t e of entry. Accordingly, defendant had the burden t o meet t h e requirements of s e c t i o n 48-339(2)(c). This he did not do. During defendant's presentation of evidence, the D i s t r i c t Court repeatedly requested defendant t o present evidence j u d t i f y i n g modification of the divorce decree. The D i s t r i c t Court s t a t e d : "THE COURT: Well, you a r e intending t o t i e i n , and we have been going q u i t e a while here and we have nothing on t h e grounds, the change of c i r cumstances, which j u s t i f i e s the motion." This Court f i n d s the questions of the D i s t r i c t Court p e r t i n e n t and persuasive. The incidents r e l i e d upon by defendant t o j u s t i f y h i s p e t i t i o n s were i n each case explained and contradicted by p l a i n t i f f ' s evidence. This Court has s t a t e d t h a t t h e D i s t r i c t Court i s i n t h e b e s t p o s i t i o n t o judge the weight and c r e d i b i l i t y of t h e witnesses, e s p e c i a l l y where t h e r e i s a c o n f l i c t of t e s t i mony. M i l l e r v. Fox, (1977), St.Rep. - . Mont , 571 P.2d 804, 34 1367, 1370. Defendant attempted t o show p l a i n t i f f neglected the h e a l t h c a r e of t h e c h i l d . This contention was refuted by p l a i n t i f f . I n f a c t , p l a i n t i f f presented medical b i l l s f o r the c h i l d ' s h e a l t h c a r e , which had been s e n t t o defendant but not paid. The p r i o r divorce decree ordered defendant t o pay reasonable medical c o s t s f o r t h e minor c h i l d . Defendant additionally based his petition on the grounds the child's emotional health was endangered while in plaintiff's custody. Defendant states he is concerned over his daughter's mental and emotional well-being. While defendant makes this statement, his actions belie his words. The record reveals defendant refused to pay court ordered child support. He also refused to return the child to plaintiff after the court allowed summer visit had ended. The necessity of obtaining court assistance to regain custody of the child produced a traumatic end to the child's summer visit. On July 9, 1976, two deputy sheriffs were required to serve defendant with Judge A.B. Martin's order transferring the child from the custody of defendant to plaintiff. AEter being served with the order, defendant twice refused to turn over the child and revealed considerable hostility in complying with the order. Even though defendant was aware of the prior divorce decree granting custody to plaintiff and he had in his possession the July 7, 1976 order of Judge Martin, defendant prolonged the whole procedure for over an hour. The minor child was at all times present and visibly upset during this hour long episode. De- fendant' s actions clearly added to this emotionally upsetting experience for the child. Defendant had the burden to overcome the presumption of correctness of the District Court's decision. done. This was not Unless there is a clear abuse of discretion by the trial court, a decision on custody will not be overruled on appeal. Brooks v. Brooks, (1976), Rep. 1114, 1116. Mont . , 556 P.2d 901, 33 St. Issue 5. This i s s u e lacks merit because i t was not raised a t t r i a l . Defendant's attorney i n h i s October 27, 1976 l e t t e r t o Judge W.W. Lessley s t a t e d : " e have a l s o made motions f o r t h e Court t o W seek professional advice, t o interview t h e c h i l d , and f o r appointment of counsel. "Some of these I would l i k e t o r e t a i n , and some I would t o dismiss." A t t h e November 22, 1976 hearing, defendant was allowed t o proceed on a l l i s s u e s which he wished t o present. Nowhere i n the t r i a l t r a n s c r i p t did defendant r a i s e . t h i s issue. This Court w i l l not consider f o r t h e f i r s t time on appeal an i s s u e which was n o t r a i s e d i n the D i s t r i c t Court. , 560 Mont. (1977), Issue 6. Johnson v. Johnson, P.2d 1331, 34 St.Rep. 101, 103. This i s s u e does not merit consideration. The only i s s u e before the D i s t r i c t Court was whether t h e divorce decree should be modified within two years from i t s d a t e of entry. Section 48-339, R.C.M. 1947, c l e a r l y s e t s f o r t h the circum- stances under which modification i s possible and t h e burden the moving p a r t y must meet. Defendant f a i l e d t o c l e a r the funda- mental hurdle of meeting h i s burden a s the moving party. De- fendant did not show the c h i l d ' s present environment endangers s e r i o u s l y her physical, moral, or emotional h e a l t h . The Uni- form Marriage and Divorce Act was enacted by t h e Montana l e g i s l a t u r e i n 1975. The r a t i o n a l e behind adopting s e c t i o n 48-339 was t o c r e a t e some s t a b i l i t y f o r t h e c h i l d . Mont . , 560 Holm v. Holm, (1977), P.2d 905, 908, 34 St.Rep. 118, 121. allow modification of the custody decree without meeting To the burden on the moving party would make a mockery out of s e c t i o n 48-339 and t h e r a t i o n a l e behind it. Contrary t o defendant's claim, t h e r e was no i s s u e of ''determining custody" . & Custody had been determined. I f there had been an issue of "determining custody", s e c t i o n 48-334, 1947, c l e a r l y s t a t e s t h e court may interview t h e c h i l d R.C.M. t o a s c e r t a i n the c h i l d ' s wishes. N duty i s placed on t h e o D i s t r i c t Court t o interview t h e c h i l d . During the November 22, 1976 hearing, the minor c h i l d was immediately a v a i l a b l e t o t h e D i s t r i c t Court t o interview, i f so desired. The D i s t r i c t Court declined t o interview, s t a t i n g : "MR. GILBERT: Your Honor, a t t h i s time I would renew our motions t h a t the Court interview the c h i l d , have an i n v e s t i g a t i o n conducted of the background of both p a r t i e s t o t h i s lawsuit, and seek professional advice i f the Court deems i t necessary., Further, I w i l l f i l e herein a request f o r proposed findings of f a c t and conclusions of law, your Honor. "THE COURT: Well, t h e Court doesn't f e e l t h a t any m a t e r i a l change a f f e c t i n g the welfare of the c h i l d has m been shown, and I a not sure t h a t i t would serve any u s e f u l purpose t o interview t h i s c h i l d . To walk i n cold t o interview someone l i k e t h i s who i s already tense and nervous about an interview, I a t l e a s t don't m think I a p a r t i c u l a r l y good a t t h a t . I r e a l l y don' t believe it would serve much purpose. * * *" Issue 7. This i s s u e challenges the granting of a t t o r n e y fees t o p l a i n t i f f . I n the findings, conclusions and order of January 26, 1977, the D i s t r i c t Court i n i t s Finding No. 3, found : "3. The a c t i o n upon the p a r t of the defendant, Mike G. Easton, i n seeking modification of the divorce decree upon t h e grounds s e t f o r t h i n t h e p e t i t i o n on f i l e h e r e i n , taking i n t o account t h e proof made by t h e defendant, was vexatious and c o n s t i t u t e d harassment against the p l a i n t i f f , Linda G. Easton." The D i s t r i c t Court then entered i t s conclusion of law No. 4: should be required t o pay t o Whalen, counsel f o r the p l a i n t i f f , t h e within t h i r t y (30) days of the e n t r y of t h i s order under the f a c t s h e r e i n and t h e provisions of s e c t i o n 48-327 and 48-339, subdivision (3) , R.C.M. 1947, a s amended." The award t o p l a i n t i f f was based on s e c t i o n s 48-327 and 48-339(3). Section 48-327 allows the D i s t r i c t Court t o consider t h e f i n a n c i a l resources of both p a r t i e s and t o order one party t o pay f o r t h e c o s t of maintaining o r defending any proceeding t o t h e o t h e r party. Section 48-339(3) allows attorney f e e s and c o s t s t o be assessed against a party seeking modification, i f t h e court f i n d s t h a t modification a c t i o n vexatious and c o n s t i t u t i n g harassment. The D i s t r i c t Court had before i t t h e r e l a t i v e f i n a n c i a l conditions of the p a r t i e s . The D i s t r i c t Court was afforded the opportunity of seeing the witnesses, hearing them t e s t i f y , and thus was i n a p o s i t i o n t o understand and construe t h e t e s t i mony i n l i g h t of a l l surrounding circumstances. (1968), 152 Mont. 170, 176, 448 P.2d 133. Davis v. Smith, Therefore, the D i s t r i c t Court was i n the b e s t position t o judge whether the p e t i t i o n was vexatious and c o n s t i t u t e d harassment. W a f f i r m the D i s t r i c t Court's award of attorney f e e s e under s e c t i o n s 48-327 and 48-339(3). I n a d d i t i o n , t h i s Court awards t o p l a i n t i f f a d d i t i o n a l fees f o r s e r v i c e s rendered i n defending t h i s appeal. This Court d i r e c t s defendant t o pay Michael J . Whalen, counsel f o r p l a i n t i f f , the s m of $750.00. u The judgment of the D i s t r i c t Court i s affirmed. W C o n . e Justices. Mr. Justice Daniel J. Shea concurring i n part and dissenting i n part: I concur i n t h i s Opinion, but not i n a l l that i s said there i n . n

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