NO. 94-312 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

IN RE THE MARRIAGE OF 

PAMELA ELLEN LONG, n/k/a 

PAMELA ELLEN MALINIAK, 

Petitioner and Respondent, 

and 

EARL ROBERT LONG, 

Respondent and Appellant 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Ted 0. Lympus, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

C. Mark Hash, Hash, O'Brien & Bartlett, 

Kalispell, Montana 

For Respondent: 

Mark R. Sullivan, Attorney at Law, 

Whitefish, Montana 

Submitted on Briefs: November 3, 1994 

Decided : December 6, 1994 

Filed: 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

On September 14, 1993, petitioner Pamela Maliniak filed a 

motion to modify the decree dissolving her marriage to respondent 

Earl Long, and a motion to have him held in contempt in the 

District Court for the Eleventh Judicial District in Flathead 

County. On March 16, 1994, based on a hearing which Earl did not 

attend, the court entered its order in which it found Earl in 

contempt of court; ordered that he pay past due child support; 

maintain health insurance for the children; and pay Pamela's 

attorney fees. Earl moved the court, pursuant to Rule 60, 

M.R.Civ.P., to set aside, alter, or amend the court's judgment. 

The District Court failed to rule on this motion within 45 days, so 

it was deemed denied. Earl appeals from the court's order and 

denial of his motion. We vacate the order of the District Court 

and remand for further proceedings. 

We find the following issue dispositive on appeal: 

Does the fact that no record was made of the March 16, 1994, 

hearing prohibit effective appellate review which requires reversal 

of the order? 

FACTUAL BACKGROUND 

Earl and Pamela's marriage was dissolved on April 16, 1985, in 

the Eleventh Judicial District Court for Flathead County. Because 

Earl was unemployed at the time of the dissolution, the court's 

findings and conclusions provided that he pay $100 per month as 

child support for the parties' three children. The decree also 

included a condition that Earl report to the court within two weeks 

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after he obtained employment so the court could reevaluate his 

child support obligation. In approximately December 1985, Pamela 

began receiving Aid for Families with Dependent Children. 

Therefore, Earl was required to make future payments to the Child 

Support Enforcement Division. Both parties remarried and Earl 

moved to Seattle, where, according to Pamela's affidavit, he 

obtained employment with Boeing, which he did not report to the 

court. 

On September 14, 1993, Pamela moved to modify the decree to 

amend the support obligation pursuant to the Montana Child Support 

Guidelines, requested that the court find Earl in contempt for 

failing to abide by the dissolution decree, and requested that Earl 

be required to maintain health and medical insurance for the three 

children. Pamela's affidavit in support of her motion alleged that 

Earl had been employed by Boeing for at least five years preceding 

her motion. 

Pamela's initial motion was personally served on Earl with a 

notice that a hearing would be held on October 12, 1993. The court 

did not issue a summons or order to show cause. The hearing date 

was extended and Pamela filed another notice that the hearing was 

scheduled for March 16, 1994. The notice did not include a 

certificate indicating it was personally served on Earl; rather, it 

was sent to Sally Rees, a Seattle attorney. Pamela later submitted 

an affidavit which stated that notice was mailed to Earl's personal 

address. Earl did not attend the hearing but sent a response along 

with financial information directly to the court. The court did 
not consider Earl's information because Earl did not send a copy to 

Pamela's attorney. 

The court held the hearing in Earl's absence. Based on the 

evidence presented, the court held that Earl owed $32,044 for past 

due child support; he must maintain health insurance for the 

children; the initial decree is modified to require that he pay 

$756 per month for child support in the future; and Earl must pay 

Pamela's attorney fees and costs. No record was made of this 

hearing. 

On April 1, 1994, Earl moved the District Court pursuant to 

Rule 60, M.R.Civ.P., to set aside, alter, or amend the court's 

March 16, 1994, order. Pamela filed her objection on April 15, 

1994, and the matter was argued on April 25, 1994. Earl's motion 

was not ruled on within 45 days so it was deemed denied as a matter 

of law. 

DISCUSSION 

Does the fact that no record was made of the March 16, 1994, 

hearing prohibit effective appellate review which requires reversal 

of the order? 

Our standard of review for findings of fact in cases where 

child support obligations are modified is whether the District 

Court abused its discretion. InreMarriageofBarnard (1994), 264 Mont. 

103, 106, 870 P.2d 91, 93. Earl argues that, absent a record of 

the proceedings, he is unable to challenge the court's order. In 

addition, Earl claims that this Court is unable to effectively 

review the evidence upon which the court's modification order is 

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based. Pamela responds that a transcript is not required because 

the District Court had uncontroverted evidence that Earl failed to 

notify the court of his employment. Pamela relies on a portion of 

the transcript from the hearing to consider Earl's Rule 60, 

M.R.Civ.P., motion. Earl's attorney asked the court what evidence 

it relied on in support of its findings. The court responded, 

"Undoubtedly it was from a non-contested representation by the 

petitioner." 

In Malleyv. Malley (1980), 190 Mont. 141, 619 P.2d 531, we 

vacated a district court's order because no transcript was made of 

the hearings. In Malley, a petition for dissolution was filed and 

two hearings were held. The husband appearedprose and, on appeal, 

sought to challenge the court's property distribution decree. The 

wife moved to dismiss his appeal because he failed to cite evidence 

in support of his appeal. We denied the motion because no record 

was made of the proceedings below. "We should not have to remind 

a successful party to litigation in District Court, that the 

judgment obtained is placed in jeopardy where there is no record of 

the proceedings. " Malley, 619 P. 2d at 532. 

In Malley, we could not effectively review the husband's 

contentions without a trial record. In MatterofGeaiy (1977), 172 

Mont. 204, 207, 562 P.2d 821, 823, we noted the necessity of a 

trial record: 

Without a transcript, this Court is placed in the 

position of attempting to reconstruct a record on appeal. 

Such a task being often impossible and unnecessary, the 
right to appeal becomes illusory, a right without 

substance. 

We have previously reversed a contested custody decision because 

the hearing was not recorded. In re Guardianship of Gullette (1977) , 173 

Mont . 13 2 , 5 6 6 P .2d 3 9 6, overruled on other grounds by McDowell v. McDowell 

(l994), 263 Mont. 252, 868 P.2d 1250. In Gullette, we noted that 

district courts are, by statute, courts of record, which implies 

that a record will be made of the proceedings. See § 3-1-102, MCA; 

Gullette, 566 P.2d at 397. 

No record was made of the hearing which served as the basis 

for the District Court's order. The District Court file does not 

indicate why a court reporter was not present. Nonetheless, 

because no record was made, Earl is denied effective appellate 

review. The court modified Earl's support obligation but we cannot 

determine if its modification was properly based on the Montana 

Child Support Guidelines or what change in circumstances justified 

modification. See § 40-4-208(2) (b) (i), MCA. Because there is no 

record for us to review, the District Court's order is vacated and 

this case is remanded for a hearing on the merits of Pamela's 

motion. Because we reverse and remand on this basis, we do not 

address the merits of the other issues raised on appeal. 
We concur: 

Chief Justice