NO. 93-035

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

IN RE THE MARRIAGE OF

KATHLEEN MARGARET HAYES,

Petitioner and Respondent.

and

ROBERT EHRGOOD HAYES,

Respondent and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable Ed McLean, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Christopher Daly, Attorney at Law,

Missoula, Montana

For Respondent:

Kerry Newcomer, Geiszler & Newcomer,

Missoula, Montana

Submitted on Briefs: May 13, 1993

Decided: July 8, 1993

Filed:
Justice William E. Hunt. Sr., delivered the opinion of the Court.

Appellant Robert Ehrgood Hayes appeals from a decision of the

District Court of the Fourth Judicial District, Missoula County,

adopting the Special Master's decision to use and apply the Child

Support Guidelines in effect at the time of trial.

We affirm.

The following issue on appeal is dispositive of the case:

Did the District Court err in adopting the Special Master's

recommended findings of fact?

Petitioner/Respondent Kathleen Margaret Hayes brought an

action for dissolution of her marriage to Robert. On June 22,

1992, the trial was conducted before a Special Master upon referral

by the District Court. On July 6, 1992, the Special Master filed

her decision requiring that the Montana Department of Social and

Rehabilitative Services Child Support Division (CSED) calculate the

child support. By the time the parties' applications were

submitted, the CSED had adopted new guidelines which were used to

calculate the parties' child support obligation. Kathleen objected

to the process of delegating the calculation to the CSED and to the

use of the new guidelines. She also stated that there were errors

in the calculation. The Special Master agreed with Kathleen that

the guidelines in effect at the time of trial on June 22, 1992,

were the appropriate guidelines to use, and recommended to the

District Court a calculation based on those guidelines because the

case had been heard, considered, and ruled upon prior to July 31,

1992, the effective date for the New Child Support Guidelines. The

2
District Court adopted the Special Master's findings of fact and

conclusions of law and granted a decree of dissolution. Robert

appeals from the District Court's adoption of the Special Master's

decision and claims that the trial court should have used the

guidelines in effect on July 31, 1992.

Did the District Court err in adopting the Special Master's

recommended findings of fact?

The Special Master's child support calculation recommendation

was filed on October 9, 1992. Robert did not object until

November 12, 1992. On November 10, 1992, the District Court had

already adopted the Special Master's recommended findings of fact,

conclusions of law, and decree of dissolution of marriage. The

District Court Judge cited Rule 53(e)(2), M.R.Civ.P., as authority

for accepting the Special Master's findings of fact unless clearly

erroneous.

Rule 53(e), M.R.Civ.P., also sets out the requirements for

objecting to the Special Master's findings of fact:

(2) In nonjury actions. In an action to be tried

without a jury the court shall accept the master's

findings of fact unless clearly erroneous. Within 10

days after being served with notice of the filing of the

report any party may serve written objections thereto

upon the other parties. Application to the court for

action upon the report and upon objections thereto shall

be by motion and upon notice as prescribed in Rule 6(d).

The court after hearing may adopt the report or may

modify it or may reject it in whole or in part or may

receive further evidence or may recommit it with

instructions.

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Robert clearly violated the ten day limit set out in

Rule 53(e)(2), M.R.Civ.P., when he waited until November 12, 1992,

to object to the Special Master's child support calculation,

Robert attempts to condone his untimely objection by arguing

that he was concerned about the parties' limited financial means.

He argues that if he had filed a written objection the issues would

have been set for an additional hearing, thereby incurring

additional expenses. However, Robert's timely objection was

required to preserve the issue for the appeal he is now pursuing

with the same limited financial means. We have consistently held

that we will not address an issue on appeal unless the appellant

has first presented it to the district court. Carl Weissman &

Sons, Inc. v. Paulson (1987), 227 Mont. 459, 462, 739 P.2d 494,

495.

Robert's other attempt to excuse his untimely objection is

based on his interpretation of Rule 53(e)(2), M.R.Civ.P. He argues

that the rule is strictly permissive rather than mandatory since it

does not state that a party llmust" object or lose the right to

contest the findings. We disagree. There can be no other reason

for setting a ten day limit than to require that objecting parties

meet that limit or waive their rights to object. We hold that the

permissive word "may" refers to the permission given to "any party"

to object. The objection must be made within the ten day limit.

Because of Robert's failure to timely object in writing to the

child support calculation proposed by the Special Master and filed

on October 9, 1992, we decline to review the matter on appeal.

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Accordingly, we do not reach the other issues relating to child

support presented on appeal. The District Court did not err in

accepting the Special Master's recommended findings of fact.

We affirm.

Justice

We concur:

Chief Justice

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July 8, 1993

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following

named:

CHRISTOPHER DALY

Attorney at Law

101 E. Broadway, Suite 200

Missoula, MT 59802

KERRY NEWCOMER

GEISZLER & NEWCOMER

26.5 West Front

Missoula, MT 59802

ED SMITH

CLERK OF THE SUPREME COURT

STAT& OF ,MONTANA