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

? a- 

### IfiN2 % t Filed: Submitted: December 12, 1977 pn '77% Decided:

## JAN 1d.3

### Mr. Justiceo John Conway Harrison delivered theOpinion of the Conrt:
This 

### is an appealby defendant Mike G. Easton from the findings, conclusions and order of the District Court, Park County, datedJanuary 

### 26, 1977. Judge LeRoy L. McKinnon denied defendant's petition formodification of the divorce decree and other relief against plaintiff, found defendant incontempt of court, and ordered defendant topay plaintiff's attorney fees inthismatter. This case involves a custody conflict over the parties' minor child and visitationrights. The custody disputehas ragd nonstop since the entry of the originalDistrict Court's findings of factand conclusions of law datedJune 30, 1975. Due to the deep mire createdby the parties' persistent legalmaneuvering,

a chronological summary of thismatter's progression through theDistrict Court 

### is provided. On June 30, 1975, findings of fact and conclusions of law



### were entered by the District Court. By thisjudgment, plaintiff



### was awarded custody of the minor female child. Defendant was granted visitationwith his daughter two weekends per month, alternateholidays and sixweeks during the summer. Defendant

was required toprovide $100 child support per month. On July 29, 1975, plaintiff moved to amend the findings of fact and conclusions of law toprovide reasonable attorney fees. The findings and conclusions were amended as requested

on August 19, 1975. Plaintiff then fileda petition to amend, supplement and clarifythe amended findings of fact and conclusions of law and requested a restraining order. A hearing was

### held on thispetition October 3, 1975. On October 20, 1975, the District Court entered its 

### findings of fact and conclusions of law, whereby it 

### modified the visitation rights of defendant. Defendant counteredby moving to amend the findings and conclusions on October 27, 1975. Defendant sought to restore his visitation rights as originally determined. No hearing took place

on this motion. InMarch 1976, defendant requested the District Court to set a hearing on defendant's motion to amend. The District Court denied that request, stating the time for amending the findings of fact and conclusions of law had passed. Additionally

a practical problem existed, inthat no transcript had been made of the proceedings. At

### no time subsequent tothe originalhearing

on divorcewas a record made, nor was a court reporter present tomake a record on the subsequent petitions tomodify, until the hearing held November 22, 1976. During the October 3, 1975, hearing, both parties stipulated toproceed without a court reporter. Judge A.B. 

### Martin, inhisApril 6, 1976, letter todefendant's attorney as of that date, clearly stated that although counsel had been advised it

### was their responsibility to secure a court reporter, none was present atthe October 3, 1975hearing. Defendant responded by petitioning formodification of the order entered October 20, 1975, by Judge A. B. 

### Martin. After both parties disqualifiednumerous District Court judges and filed

numerous motions, the matter was finallyheard November 22, 1976. On January 26, 1977, the findings, conclusions and order of Judge LeRoy L. 

### McKinnon were entered. Defendant's petition for modification and other relief was denied. Defendant was found incontempt of court. Plaintiff was awarded attorney fees according to the provisions of section48-327 and 48-339(3), R.C.M. 

### 1947. From this order defendant appeals.Defendant raises seven issues for review. Did the District Court err: 1) Innot requiring that a stenographic record be made of the October 3, 1975hearing? 2) Inmodifying defendant's visitation rights by 

### its findings of fact and conclusions of law entered on October 20, 1975? 3) By refusing to consider defendant's motion to amend findings of fact and conclusions of law and toenter additional findings dated October 27, 1975? 4) Innot granting custody of the minor child todefendant

as requested indefendant'

### s petition for modification? 5) In failing to appoint counsel for the dependent minor child asrequested by defendant? 

### 6) By failingto interview the minor child and order that an investigation and report concerning custodial arrangements for the minor childbe made? 7) Inawarding attorney fees to plaintiff? Issues 1,2 and 

### 3. These issues pertain toDistrict Court proceedings prior to the November 22, 1976 hearing and are combined for discussion. During oralargument before this Court, defendant's present counsel argued that by virtue of this appeal this Court hasjurisdiction toreview allprior District Court actions concerning this cause. We disagree. This Court 

### iswithout jurisdiction to consider the correctness of the decree of divorce and restraining order dated October 22, 1975, and the letter order of Judge Martin dated April 14, 1976. No appeal

was taken to this Court from the decree of divorcenor from the order of April 14within the time allowed by Rule 

### 5, M.R.App. Civ.P. Montana law 

### iswell settled that an untimely notice ofof appeal is a jurisdictional defect which renders this Court powerless tohear the appeal. Zellv. Zell, (1977), 

# - Mont

# .

-9 565 P.2d 311, 34 St.Rep. 492, 493. Additionally, the notice of appeal filed on February 14, 1977, statesthat defendant 

### is appealing from the decision and judgment entered on January 26, 1977. Rule 4(c), M.R.App.Civ.P., provides that thenotice of appeal "shall designate thejudgment

or order appealed from." The judgment fromwhich defendant appeals 

### is clearly thejudgment entered January 26, 1977, by Judge McKinnon. Of furthernote, thisCourt takes exception to defendant's first issue. Wetrust that through inadvertence defendant's prior counsel raised this issue. Upon a close review of the District Court record, this Court finds that counsel for the defendant stipulatedbefore the District Court toproceed with the October 3, 1975, hearing without the presence of a court reporter. Counsel surely knows the term "waiver" is generally defined as a voluntary and intentional relinquishment of a known right, claimorprivilege. Farmers Elevator Company of Reserve Mont

# . v. Anderson, (1976), -9 552 P.2d 63, 

### 33 St.Rep. 614, 618. Issue 4. On Januaqy 26, 1977, Judge LeRoy L. McKinnon entered the following conclusion of 

### law: "1. The evidence does not justify the modification of the divorce decree herein within the meaning of Section48-339, R.C.M. 1947, asamended or otherwise. 11 Section48-339(2)(c), R.C.M. 1947, prohibits modification of the custody decreewithin two years after

### its date of entry unless:11(c) the child's present environment endangers seriouslyhis physical, mental, moral or emotional health, and the harm likely tobe caused by a change of environment is outweighed by its advantages tohim." Defendant brought hispetition tomodify the custody decree within two years of 

### its date of entry. Accordingly, defendant had the burden to meet the requirements of section48-339(2)(c). This he did not do. During defendant's presentation of evidence, the District Court repeatedly requested defendant to present evidence judtifying modification of the divorce decree. The District Court stated: "THE COURT: Well, you are intending to tie in, and we have been going quite a while here and we have nothing on the grounds, the change of circumstances, which justifies the motion." This Court finds the questions of the District Court pertinent and persuasive. The incidents relied upon by defendant tojustify his petitions were ineach case explained and contradicted by plaintiff's evidence. This Court has stated that the District Court 

### is inthe best position tojudge the weight and credibility of thewitnesses, especiallywhere there 

### isa conflict of testimony. Miller v. Fox, (1977), 

# - Mont

# . ,571P.2d 804, 34 St.Rep. 1367, 1370. Defendant attempted to show plaintiff neglected the health

care of the child. This contentionwas refuted by plaintiff. In fact, plaintiff presented medical bills for the child's health care, which had been sent todefendant but not paid. The prior divorce decree ordered defendant topay reasonable medical costs for theminor child.

### Defendant additionally based his petition on the grounds the child's emotionalhealth was endangeredwhile inplaintiff's custody. Defendant stateshe is concerned over his daughter's mental and emotionalwell-being. While defendantmakes 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

summervisit had ended. The necessity of obtaining court assistance to regain custody of the child produced a traumatic end to the child's summervisit. OnJuly 9, 1976, two deputy sheriffswere required to serve defendant with JudgeA.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 considerablehostility in complyingwith the order. Even though defendantwas aware of the prior divorce decree granting custody to plaintiff and he had inhis possession the July 7, 1976 order of Judge Martin, defendant prolonged the whole procedure for over anhour. Theminor childwas at all times present and visibly upset during this hour long episode. Defendant

## '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. This was not done. Unless there is a clear abuse of discretionby the trial court, a decision on custodywill not be overruled on appeal. Brooks v. Brooks, (1976), Mont

# . ,556 P.2d 901, 

### 33 St. Rep. 1114, 1116.Issue 5. This issue lacks merit because itwas not raised attrial. Defendant's attorney in his October 27, 1976 letter to JudgeW.W. Lessley stated:

"We have alsomade motions for the Court to seek professional advice, to interview the child, and for appointment of counsel. "Some of these I would like to retain, and some I would to dismiss."

Atthe November 22, 1976 hearing, defendant was allowed to proceed on allissueswhich he wished topresent. Nowhere inthe trial transcript did defendant raise.this issue. This Court 

### willnot consider for the first time on appeal an issue which was not raised in the District Court. Johnson v. Johnson, Mont. 

## , (1977), 560 P.2d 1331, 34 St.Rep. 101, 103. Issue 6. This issue does not merit consideration. The only issuebefore the District Court was whether the divorce decree should be modified within two years from 

### its date of entry. Section 48-339, R.C.M. 1947, clearly sets forth the circumstancesunder which modification is possible and the burden the moving party must meet. Defendant failed to clear the fundamental hurdle of meeting his burden as the moving party. Defendant did not show the child's present environment endangers seriouslyher physical, moral, or emotional health. The UniformMarriage and Divorce Act was enactedby the Montana legislature in 1975. The rationale behind adopting section48-339

was to create some stabilityfor the child. Holm v. Holm, (1977), Mont

# . ,560 P.2d 905, 908, 34 St.Rep. 118, 121. To allow modification of the custody decree without meeting the burden on the moving party would make a mockery out of section 48-339 and the rationale behind it.Contrary to defendant's claim, therewas no issue of & ''determining custody"

# . Custody had been determined. If there had been an issue of "determining custody", section48-334, R.C.M. 1947, clearly states the court 

### may interview the child toascertain the child's wishes. No duty 

### is placed on the District Court to interview the child. During the November 22, 1976hearing, the minor child was immediately available to the District Court to interview, if so desired. The District Court declined to interview, stating: "MR. GILBERT: Your Honor, atthis time I would renew our motions that the Court interview the child, have an investigation conducted of the background of both parties to this lawsuit, and seek professional advice if the Court deems itnecessary., Further, I willfileherein a request for proposed findings of fact and conclusions of law, your Honor.

"THE COURT: Well, the Court doesn't feel that any material change affecting the welfare of the childhas been shown, and I am not sure that itwould serve any useful purpose to interview this child. To walk in cold to interview someone like thiswho is already tense and nervous about an interview, I atleast don't think I am particularly good atthat. I really don't believe it would servemuch purpose. 

# ***" Issue 

### 7. This issue challenges the granting of attorney fees toplaintiff. In the findings, conclusions and order of January 26, 1977, the District Court in

### itsFinding No. 3, found: "3. The action upon the part of the defendant, Mike G. Easton, in seeking modification of the divorce decree upon the grounds set forth in the petition on fileherein, taking intoaccount the proof made by the defendant, was vexatious and constitutedharassment against the plaintiff, Linda G. Easton." The District Court then entered 

### its conclusion of law No. 4: should be required topay to Whalen, counsel for the plaintiff, the within thirty (30) days of the entry of this order under the factsherein and the provisions of section48-327 and 48-339, subdivision (3)

# , R.C.M. 1947, as amended."The award toplaintiff was based on sections 48-327 and 48-339(3). Section48-327 allows the District Court to consider the financialresources of both parties and toorder one party topay for the cost of maintaining or defending any proceeding to the other party. Section 48-339(3) allows attorney fees and costs tobe assessed against a party seekingmodification, if the court finds that modification action vexatious and constitutingharassment. The District Court had before it the relative financial conditions of the parties. The District Court was afforded the opportunity of seeing the witnesses, hearing them testify, and thus was ina position to understand and construe the testimony in light of allsurrounding circumstances. Davis v. Smith, (1968), 152Mont. 170, 176, 448 P.2d 133. Therefore, the District Court was inthe best position tojudge whether the petitionwas vexatious and constitutedharassment. We affirm the District Court's award of attorney fees under sections 48-327 and 48-339(3). Inaddition, this Court awards to plaintiff additional fees for services rendered in defending this appeal. This Court directs defendant to pay Michael J. Whalen, counsel for plaintiff, the 

### sum of $750.00. The judgment of the District Court 

### is affirmed.We Con.

Justices.



### Mr. Justice Daniel 

### J. Shea concurring in part and dissenting inpart: I concur in this Opinion, but not inallthat issaid therein. 

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