NO. 96-276 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

IN RE THE MARRIAGE OF 

KARREN FAYE KANE, 

Petitioner and Appellant, 

and 

ALLAN VICTOR FRIBERG, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas McKittrick, Judge presiding 

COUNSEL OF RECORD: 

For Appellant: 

Mark Q. Schmitt, Attorney at Law, Bozeman, Montana 

For Respondent: 

Jerrold L. Nye; Nye & Meyer, Billings, Montana 

Filed: 

Submitted on Briefs: November 7, 1996 

Decided: November21, 1996 
Justice Karla M. Gray delivered the Opinion of the Court 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1995 Internal Operating Rules, the following decision shall not be 

cited as precedent and shall be published by its filing as a public 

document with the Clerk of the Supreme Court and by a report of its 

result to State Reporter Publishing Company and West Publishing 

Company. 

Karren Faye Kane (Karren) appeals from the findings of fact, 

conclusions of law and order entered by the Eighth Judicial 

District Court, Cascade County, dismissing her petition for 

dissolution on the basis that she failed to establish that she and 

Allan Victor Friberg (Allan) had a common law marriage. We affirm. 

Karren raises the following restated issues: 

1. Did the District Court err in allowing Allan to present 

evidence contravening the existence of a common law marriage? 

2. Did the District Court err in holding the trial on 

Karren's petition for dissolution on November 21, 1995? 

3. Did the District Court err in deciding the substantive 

issues in Karren's petition for dissolution after a hearing 

scheduled on her motion to compel discovery? 

Karren filed a petition for dissolution of her common law 

marriage to Allan on April 1, 1994. She alleged that the common 

law marriage began in May of 1989, that it was irretrievably 

broken, that there were no children of the marriage and that the 

parties had accumulated property and debts. She sought dissolution 
of the common law marriage, equitable division of the real and 

personal property, Allan's liability for the marital debts, 

maintenance in the amount of $2,500 and attorney fees and costs in 

bringing the petition. 

Allan responded to Karren's petition by admitting the 

existence of the common law marriage and the accumulation of real 

and personal property. He denied the accumulation of debts and his 

responsibility for same and also denied Karren's entitlement to 

maintenance, attorney fees and costs. 

Later in April of 1994, Karren and Allan entered into a 

stipulation pursuant to which, among other things, Allan agreed to 

make house and utility payments and to pay Karren $200 per month 

maintenance. The District Court entered an order adopting the 

parties' stipulation on April 20, 1994. 

Both Karren and Allan changed counsel thereafter and filed 

numerous motions. One of Allan's motions, filed March 23, 1995, 

was for leave to amend his answer to deny the existence of a common 

law marriage; he asserted that his former counsel had improperly 

advised him on that matter. After a three and one-half month 

delay, Karren objected to the proposed amendment on the grounds 

that too much time had passed and the amendment would prejudice 

her. Among Karren's motions were a motion to compel production of 

documents and to answer interrogatories and a motion to compel 

payment by Allan of the amounts contained in the April 20, 1994, 

stipulated order. The District Court did not rule on the motions. 

On August 10, 1995, the District Court set a November 21, 
1995, trial date for Karren's petition for dissolution. On 

September 26, 1995, the court scheduled an October 24, 1995, 

hearing on Karren's motion to compel. The latter scheduling order 

did not specify whether it related to her motion to compel 

discovery or her motion to compel payment. On Allan's motion and 

with Karren's consent, the District Court later rescheduled the 

hearing on Karren's motion--specifying her motion to compel 

payment--for November 21, 1995, the same day as the trial on her 

petition for dissolution. 

At trial, Karren submitted evidence in support of the 

existence of a common law marriage between herself and Allan. 

Allan submitted evidence that no such common law marriage existed. 

At the end of the trial, the District Court requested--and the 

parties later filed--briefs on the common law marriage issue. 

The District Court subsequently entered findings of fact, 

conclusions of law and an order. The findings, which are not 

challenged by Karren, summarized the evidence received at the 

trial. The conclusions, also not challenged by Karren, addressed 

the legal principles relating to common law marriages in Montana. 

In pertinent part, the District Court concluded that Karren failed 

to establish that she and Allan ever mutually agreed to be married 

and, on that basis, further concluded that the parties had not 

entered into a common law marriage. Absent the existence of a 

marriage, the court dismissed Karren's petition for dissolution. 

Karren appeals. As noted above, however, she does not 

challenge the findings or conclusions made by the District Court. 
As a result, we do not review those findings and conclusions 

1. Did the District Court err in allowing Allan to 

present evidence contravening the existence of a common 

law marriage? 

Karren contends that the issue of whether the common law 

marriage existed was not properly before the District Court. The 

primary thrust of her argument is that she was "little prepared" to 

try the issue because of Allan's original admission that the common 

law marriage existed and, therefore, that she was prejudiced by the 

court's decision to try the issue. On the basis of the record 

before us, her argument is without merit. 

By the time of the trial on Karren's petition for dissolution, 

Allan's motion for leave to amend his answer to deny the existence 

of the common law marriage had been before the District Court for 

nearly eight months and Karren had responded to that motion. In 

addition, Allan filed a trial brief nearly six weeks before the 

trial date raising the existence of the common law marriage as the 

first issue to be considered by the court. Allan also supplied 

Karren, prior to trial, with the names of the witnesses he intended 

to call on that issue. On such a record, Karren's claims of 

surprise and resulting lack of ability to try the issue are not 

convincing. Nor does the record reflect any effort by Karren to 

obtain a continuance of the trial on this basis. 

Furthermore, the trial transcript is clear that Karren 

acquiesced in the trial of the issue. At the outset of the trial, 

Allan's counsel summarized the issues before the court, stating the 

first such issue as "whether or not there is in fact a common law 

5 
marriage." After Allan's counsel listed the remaining issues, the 

District Court inquired of Karren's counsel whether he agreed about 

the issues. Counsel did not object to trying the question of 

whether the common law marriage existed; indeed, he implicitly 

agreed that the issue was before the court by stating "I would 

raise one further point, Your Honor. " Nor did Karren's counsel 

object at any later point in the proceedings that the issue was not 

properly before the court. Rather, counsel again agreed--this time 

explicitly--at a later point, stating "[ilf we get past the issue 

of common law marriage today, Your Honor, I believe we should take 

up the stipulation as to payments that were [sic] issued in April. " 

Karren did not object to the District Court's decision to try 

the question of whether a common law marriage existed. She did not 

object to admission of testimony on the issue. Nor did she 

preserve the issue for appeal in any other manner. 

While she correctly contends that her direct examination of 

Allan during her case in chief raised the issue of his earlier 

admission that the common law marriage existed, Karren apparently 

misconstrues the difference between objecting to an issue being 

properly before the court and presenting evidence in support of her 

position regarding the appropriate resolution of the issue. Her 

direct examination of Allan regarding his previous admission 

constituted an additional acquiescence in--rather than an objection 

to--the District Court's trial of the issue of whether the common 

law marriage existed. 

Under clearly established Montana law, a party cannot raise 
issues for the first time on appeal. In re Marriage of Schnell 

(19951, 273 Mont. 466, 472, 905 P.2d 144, 148 (citation omitted). 

Thus, we decline to address whether the District Court erred in 

allowing Allan to present evidence contravening the existence of a 

common law marriage. 

2. Did the District Court err in holding the trial on 

Karren's petition for dissolution on November 21, 1995? 

Karren's counsel contends that he was advised on the day 

before the scheduled trial that the "hearing" set for November 21 

was continued to a later date, that he released his witnesses on 

that basis and, as a result, that he was "less than fully prepared 

to take part. " Karren argues that, pursuant to Rule 60 (b) , 

M.R.Civ.P., she should be relieved of the District Court's decision 

on her petition because of inadvertence or surprise. This 

argument, too, is without merit. 

At the outset, we note that it is difficult to ascertain 

whether Karren's arguments in this regard relate to a purported 

cancellation of the hearing on her motion to compel or of the trial 

on her petition, or both. The record does not contain any order or 

minute entry continuing either matter, and counsel's assertions are 

not based on any other record-based information. The record 

reflects that both the trial on Karren's petition and the hearing 

on her motion to compel payment were scheduled for November 21, 

1995. 

Karren did move for a continuance of the trial on November 20, 

the day before the trial was scheduled to take place. The basis 
for her motion was that she had not received from Allan requested 

information regarding valuation of marital assets. Her motion for 

a continuance specifically requested that the hearing on her motion 

to compel payment take place the following day as scheduled. Allan 

filed a response, objecting to an eve-of-trial continuance. As 

noted above, the record does not reflect any action by the District 

Court in response to Karren's motion. 

Notwithstanding any confusion about a purportedly continued 

hearing or trial, however, Karren did not object or otherwise 

preserve this issue for appeal. While the District Court granted 

a recess at the outset of the trial on November 21, 1995, to permit 

Karren's counsel's paralegal to arrive, with counsel's file, Karren 

neither moved for a continuance because of confusion over the 

scheduling nor objected to proceeding on the basis that witnesses 

were not available for the matters at issue in her petition for 

dissolution. Nor did she move for a new trial or other 

postjudgment relief in the District Court. In this latter regard, 

Karren's reliance here on Rule 60(b), M.R.Civ.P., is also 

unavailing because she did not present those arguments to the 

District Court. We decline to address this issue raised for the 

first time on appeal. Marriase of Schnell, 905 P.2d at 148. 

3. Did the District Court err in deciding the 

substantive issues in Karren's petition for dissolution 

after a hearing scheduled on her motion to compel discovery? 

Karren contends that the November 21, 1995, proceeding was 

scheduled as a hearing on her motion to compel discovery and that 

she was unprepared to address the substantive issues relating to 

8 
her petition for dissolution. Her arguments on this issue are 

unclear and confused, at best. After a close scrutiny of the 

record, however, we cannot ascertain any set of circumstances under 

which her argument in this regard would have merit. 

First, as discussed above, both the trial on Karren's petition 

for dissolution and the hearing on her motion to compel payment 

pursuant to the stipulated order--not her motion to compel 

discovery--were scheduled for November 21, 1995. Karren points to 

nothing of record in support of her fundamental assertion here that 

her motion to compel discovery was to be heard on November 21, 

1995. In this regard, the trial transcript contains several 

references by Karren's counsel to the fact that her motion to 

compel payment was before the court. Counsel is cautioned that 

this Court does not look with favor on either misrepresentations of 

the record or a "make it up as you go alongu approach to appellate 

advocacy. 

Moreover, as discussed at sufficient length above, Karren did 

not object to proceeding with the trial on her petition for 

dissolution and did not otherwise preserve this issue for appeal. 

We decline to address this issue raised for the first time on 

appeal. See Marriaqe of Schnell, 905 P.2d at 148. 

Affirmed . 
We concur: