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- IfiN 2 % t 

Filed: 

Submitted: December 12, 1977 

pn '77% 

Decided: JAN 1d.3 
Mr. Justiceo John Conway Harrison delivered the Opinion of the 

Conr t : 

This is an appeal by defendant Mike G. Easton from the 

findings, conclusions and order of the District Court, Park 

County, dated January 26, 1977. Judge LeRoy L. McKinnon denied 

defendant's petition for modification of the divorce decree and 

other relief against plaintiff, found defendant in contempt of 

court, and ordered defendant to pay plaintiff's attorney fees 

in this matter. 

This case involves a custody conflict over the parties' 

minor child and visitation rights. The custody dispute has ragd 

nonstop since the entry of the original District Court's findings 

of fact and conclusions of law dated June 30, 1975. Due to the 

deep mire created by the parties' persistent legal maneuvering, 

a chronological summary of this matter's progression through 

the District Court is provided. 

On June 30, 1975, findings of fact and conclusions of law 

were entered by the District Court. By this judgment, plaintiff 

was awarded custody of the minor female child. Defendant was 

granted visitation with his daughter two weekends per month, 

alternate holidays and six weeks during the summer. Defendant 

was required to provide $100 child support per month. 

On July 29, 1975, plaintiff moved to amend the findings 

of fact and conclusions of law to provide reasonable attorney 

fees. The findings and conclusions were amended as requested 

on August 19, 1975. Plaintiff then filed a petition to amend, 

supplement and clarify the amended findings of fact and conclusions of law and requested a restraining order. A hearing was 
held on this petition 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 countered by 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. In March 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, in that no transcript had been made 

of the proceedings. At no time subsequent to the original hearing 

on divorce was a record made, nor was a court reporter present 

to make a record on the subsequent petitions to modify, until the 

hearing held November 22, 1976. During the October 3, 1975, 

hearing, both parties stipulated to proceed without a court reporter. 

Judge A.B. Martin, in his April 6, 1976, letter to defendant'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 at the October 3, 1975 hearing. 

Defendant responded by petitioning for modification of the 

order entered October 20, 1975, by Judge A. B. Martin. After 

both parties disqualified numerous District Court judges and filed 

numerous motions, the matter was finally heard 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 in contempt 

of court. Plaintiff was awarded attorney fees according to the 

provisions of section 48-327 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) In not requiring that a stenographic record be made 

of the October 3, 1975 hearing? 

2) In modifying 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 to enter additional 

findings da ted October 27, 1975? 

4) In not granting custody of the minor child to defendant 

as requested in defendant' s petition for modification? 

5) In failing to appoint counsel for the dependent minor 

child as requested by defendant? 

6) By failing to interview the minor child and order 

that an investigation and report concerning custodial arrangements 

for the minor child be made? 

7) In awarding attorney fees to plaintiff? 

Issues 1,2 and 3. These issues pertain to District Court 

proceedings prior to the November 22, 1976 hearing and are 

combined for discussion. During oral argument before this Court, 

defendant's present counsel argued that by virtue of this appeal 

this Court has jurisdiction to review all prior District Court 

actions concerning this cause. We disagree. This Court is without 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 divorce nor from the 

order of April 14 within the time allowed by Rule 5, M.R.App. 

Civ.P. Montana law is well settled that an untimely notice of 
of appeal is a jurisdictional defect which renders this Court 

powerless to hear the appeal. Zell v. Zell, (1977), - Mont . 

-9 565 P.2d 311, 34 St.Rep. 492, 493. 

Additionally, the notice of appeal filed on February 14, 

1977, states that defendant is appealing from the decision and 

judgment entered on January 26, 1977. Rule 4(c), M.R.App.Civ.P., 

provides that the notice of appeal "shall designate the judgment 

or order appealed from." The judgment from which defendant 

appeals is clearly the judgment entered January 26, 1977, by 

Judge McKinnon. 

Of further note, this Court takes exception to defendant's 

first issue. We trust 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 stipulated before the District Court to proceed 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, claim or privilege. Farmers Elevator Company of Reserve 

v. Anderson, (1976), Mont . -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 Section 48-339, R.C.M. 1947, as amended 

or otherwise. 11 

Section 48-339(2)(c), R.C.M. 1947, prohibits modification of the custody decree within two years after its date of 

entry unless : 
11 (c) the child's present environment endangers 

seriously his physical, mental, moral or emotional 

health, and the harm likely to be caused by a 

change of environment is outweighed by its advantages to him." 

Defendant brought his petition to modify the custody decree 

within two years of its date of entry. Accordingly, defendant 

had the burden to meet the requirements of section 48-339(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 to justify his 

petitions were in each case explained and contradicted by 

plaintiff's evidence. This Court has stated that the District 

Court is in the best position to judge the weight and credibility 

of the witnesses, especially where there is a conflict of testimony. Miller v. Fox, (1977), - Mont . , 571 P.2d 804, 34 

St.Rep. 1367, 1370. 

Defendant attempted to show plaintiff neglected the health 

care of the child. This contention was refuted by plaintiff. 

In fact, plaintiff presented medical bills for the child's health 

care, which had been sent to defendant but not paid. The prior 

divorce decree ordered defendant to pay reasonable medical costs 

for the minor child. 
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. 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 discretion by the trial 

court, a decision on custody will 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 it was not 

raised at trial. Defendant's attorney in his October 27, 1976 

letter to Judge W.W. Lessley stated: 

"We have also made 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." 

At the November 22, 1976 hearing, defendant was allowed to 

proceed on all issues which he wished to present. Nowhere 

in the trial transcript did defendant raise. this issue. This 

Court will not consider for the first time on appeal an issue 

which was not raised in the District Court. Johnson v. Johnson, 

(1977), Mont. , 560 P.2d 1331, 34 St.Rep. 101, 103. 

Issue 6. This issue does not merit consideration. The 

only issue before 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 circumstances under 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 

seriously her physical, moral, or emotional health. The Uniform Marriage and Divorce Act was enacted by the Montana legislature in 1975. The rationale behind adopting section 48-339 

was to create some stability for 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, there was no issue of 

& 

''determining custody" . Custody had been determined. If there 

had been an issue of "determining custody", section 48-334, 

R.C.M. 1947, clearly states the court may interview the child 

to ascertain the child's wishes. No duty is placed on the 

District Court to interview the child. During the November 22, 

1976 hearing, 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, at this 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 it necessary., Further, I 

will file herein 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 child has 

been shown, and I am not sure that it would serve any 

useful purpose to interview this child. To walk in 

cold to interview someone like this who is already 

tense and nervous about an interview, I at least don't 

think I am particularly good at that. I really don' t 

believe it would serve much purpose. * * *" 

Issue 7. This issue challenges the granting of attorney 

fees to plaintiff. In the findings, conclusions and order 

of January 26, 1977, the District Court in its Finding 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 

file herein, taking into account the proof made by 

the defendant, was vexatious and constituted harassment against the plaintiff, Linda G. Easton." 

The District Court then entered its conclusion of law No. 4: 

should be required to pay to 

Whalen, counsel for the plaintiff, the 

within thirty (30) days of the entry 

of this order under the facts herein and the provisions of section 48-327 and 48-339, subdivision (3) , 

R.C.M. 1947, as amended." 
The award to plaintiff was based on sections 48-327 and 48-339(3). 

Section 48-327 allows the District Court to consider the 

financial resources of both parties and to order one party 

to pay for the cost of maintaining or defending any proceeding 

to the other party. Section 48-339(3) allows attorney fees 

and costs to be assessed against a party seeking modification, 

if the court finds that modification action vexatious and 

constituting harassment. 

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 in a position to understand and construe the testimony in light of all surrounding circumstances. Davis v. Smith, 

(1968), 152 Mont. 170, 176, 448 P.2d 133. Therefore, the 

District Court was in the best position to judge whether the 

petition was vexatious and constituted harassment. 

We affirm the District Court's award of attorney fees 

under sections 48-327 and 48-339(3). In addition, 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 

in part: 

I concur in this Opinion, but not in all that is said 

there in. n