No. 82-18 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

JON LLEWELLYN BOLICH, 

Petitioner and Appellant, 

VS . 

BARBARA KAY BOLICH, 

Respondent and Respondent. 

Appeal from: District Court of the Fourth Judicial ~istrict, 

In and for the County of Missoula 

Honorable James Wheelis, Judge presiding. 

Counsel of Record: 

For Appellant: 

Theodore P. Cowan, Missoula, Montana 

For Respondent : 

Datsopolous, MacDonald & Lind, Missoula, Montana 

Submitted on briefs: April 22, 1982 

Decided: July 6, 1982 
Mr. Justice Fred J. Weber delivered the Opinion of the 

Court. 

Husband petitioned for dissolution of marriage in the 

Missoula County District Court. The marriage was dissolved 

by decree and remaining issues were set for trial. Husband 

appeared on the date of trial without counsel and requested a 

continuance. Continuance was denied and trial was held 

without counsel representing Husband. Husband's motion for 

new trial was denied. We affirm the District Court. 

Husband and Wife were married April 3, 1976; one child 

was born of the marriage. Husband filed for dissolution of 

the marriage on February 27, 1980. Following a child custody 

hearing on March 13, 1980, custody of the child was awarded 

to Wife. On January 28, 1981, the District Court issued a 

decree terminating the marriage and reserving other issues 

for trial. Trial was then set for May 11, 1981. Both 

Husband and Wife and their respective counsel had extended 

notice of the trial date. On May 11, 1981, Wife appeared 

with her counsel, ready for trial. Husband appeared without 

his counsel and requested a continuance. An extended dialogue 

took place between Husband, the court and counsel for Wife. 

Counsel for Wife explained that he understood an agreement 

had been reached over the telephone with Husband's counsel 

as to the provisions to be inserted in the decree regarding 

property settlement and child custody. Husband denied that 

such an agreement had been reached. Husband further indicated 

that he had been looking for another attorney. The court 

pointed out that no trial date was available prior to December, 

which would have necessitated a delay of more than seven 

months. The court considered the nature of the case and the 

lack of court approval for the absence of Husband's attorney, 
and denied the request for a continuance. The court heard 

testimony on the part of both Wife and Husband and considered 

other evidence. The transcript indicates that the District 

Judge was scrupulously careful to protect the rights of 

Husband. He allowed Husband to cross-examine to the extent 

he desired. In addition, the District Judge asked many 

questions of both Husband and Wife in order to be certain 

that all of the facts were before the court. A careful 

review of the transcript does not disclose any areas in 

which Husband was prejudiced by the absence of his counsel. 

While this fact is not directly relevant, we note that the 

record shows that the attorney for Husband was found to be 

in contempt of court for his failure to appear at the May 

11, 1981, trial and was fined. Husband's present counsel on 

appeal is a different attorney. 

The issues before the Court are: 

(1) Did the District Court err in not granting Husband 

a continuance in order that he might obtain the services of 

an attorney to represent him at trial? 

(2) Did the District Court err in awarding a disproportionately greater share of the marital property to Wife? 

The continuance of a trial because of the absence of 

evidence is controlled by section 25-4-501, MCA: 

"A motion to postpone a trial on grounds of 

the absence of evidence shall only be made 

upon affidavit showing the materiality of the 

evidence expected to be obtained and that due 

diligence has been used to procure it." 

Following the trial, the District Court intentionally waited 

several months in order to grant Husband and his attorney an 

opportunity to present any additional evidence or file any 

motions. The District Court then entered the decree from 

which the appeal is taken. The record does not show that 
Husband contended additional evidence could have been presented 

at the time of trial had he been represented by counsel. In 

addition, the record does not disclose any indication subsequent 

to trial of evidence which Husband contended should have 

been allowed at the time of trial and which would have been 

material to the determination of the issues. We recognize 

that Husband may not have understood the procedure set forth 

in the above section under which he was required to file an 

affidavit. As previously indicated, we therefore carefully 

reviewed the transcript. We do not find any indication in 

the transcript of the absence of evidence which could have 

been helpful to Husband. In fact, the District Court did an 

excellent job of making certain that all of the evidence was 

properly before it, asking many questions of both Wife and 

Husband. In addition, the record discloses that there are 

no complex issues of fact. his is a case in which a modest 

amount of property was involved and in which the evidence of 

earnings and debts was not complicated. The record indicates 

that all of the evidence available to the parties in these 

areas was properly before the District Court. 

A continuance also may be granted by a trial court on 

grounds other than absence of evidence. Section 25-4-503, 

MCA (1979), the section in effect at the time of trial, 

stated: 

"Upon terms the court may, in its discretion, 

upon good cause shown and in furtherance of 

justice, postpone a trial or proceeding upon 

other grounds than the absence of evidence." 

As previously mentioned, the record fails to disclose any 

good cause for a postponement. There is no indication in 

the record of a benefit to be gained to Husband by a postponement. 

Similarly, there is nothing of record to indicate that a 

continuance which would have resulted in a seven month delay 
was in furtherance of justice so far as Husband is concerned. 

In our review of this matter of continuance, we are 

also required to keep in mind the provisions of our Montana 

Constitution which, in pertinent part, states in Article 11, 

Section 16: 

"Right and justice shall be administered without sale, denial -- or delay." (Underscoring 

added. ) 

As above stated, nearly 15 months had passed from the date 

of Husband's filing a petition for dissolution to the date 

of trial. This was a relatively simple marriage dissolution 

case. Justice would not have been furthered if a delay of seven 

additional months had taken place in order to have the 

matter heard in December. To have granted such a delay 

under the facts of this case would clearly have been a 

denial of justice to Wife. 

The denial of a motion for continuance is a matter 

addressed to the sound discretion of the District Court. As 

stated by this Court in State v. Harvey (1979), Mont. 

"The denial of a motion for a continuance is 

within the sound discretion of the District 

Court and it is not error to deny such a 

motion unless a clear abuse of discretion is 

shown. (Case cited. ) " 

We find a complete absence of abuse of discretion on the 

part of the District Court and affirm the denial of a continuance 

by the District Court. 

In his second issue, Husband contends that the District 

Court improperly gave an excessive or disproportionate 

amount of property to Wife. We have carefully reviewed the 

transcript in this regard as well. We find there is ample 

evidence to support the conclusions of the District Court. 

There are no areas in which Husband has pointed out a failure 
to consider evidence actually before the court. 

The standard for reviewing a property distribution has 

been set forth by this Court in Creon v. Creon (1981), 

Mont. , 635 P.2d 1308, 1309, 38 St.Rep. 1928, 1930, as 

follows: 

"In determining whether the trial court abused 

its discretion, the reviewing court does not 

substitute its judgment for that of the trial 

court. The standard for review is whether the 

trial court acted arbitrarily without employment of conscientious judgment or exceeded the 

bounds of reason resulting in substantial injustice. (Cases cited. ) " 

We find substantial evidence to support the holding of the 

District Court and also find that the court acted with 

conscientious judgment and that there has been no injustice 

to Husband. 

We affirm the District Court. 

We Concur: 

Chief Ptic ,