No. 13810 

IN THE SUPFEME COUIZT OF THE STATE OF M3NTANA 

1978 

Plaintiff and Respondent, 

-vsBARNEY R. BILLMAN, 

~efendant and Appellant. 

Appeal fm: District Court of the Thirteenth Judicial District, 

Honorable C. B. Sande, Judge presiding. 

Counsel of Record: 

For Appellant: 

Calton and Stephens, Billings, bbntana 

For Respondent: 

Anderson, Symes, Gerbase, Cebull & Jones, Billings, Montana 

Suhnitted on briefs: July 21, 1978 

Decided: 3EP 26 1978 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This appeal is taken from an order issued by the District Court, Thirteenth Judicial District, Yellowstone 

County, whereby appellant's obligation to provide support 

moneys for his minor child and his visitation privileges 

were terminated. The cause was submitted on briefs to this 

Court; no oral argument was had. 

On April 26, 1974, the parties Linda Lehman (formerly 

Billman) and Barney Billman were divorced. The District 

Court awarded custody of the couple's only child, Joseph 

Richard (Joey) to his mother, Linda, and ordered the father, 

Barney, to contribute $100 per month toward support of the 

child. 

Barney petitioned the District Court on September 30, 

1975, for modification of the divorce decree, asking that 

the amount of support money to be contributed to the child 

be reduced by 50 percent and that visitation rights be 

afforded him. A hearing on the matter was postponed, apparently because Barney failed to appear. On February 11, 

1976, Barney renewed his petition for modification of the 

decree in respect of visitation, and again apparently failed 

to appear at the hearing on the motion. 

Seven months after Linda sought a restraining order 

against him, Barney again petitioned on October 25, 1976, 

for modification of the divorce decree, seeking (1) a determination of the amount of child support in which he was in 

arrears, (2) an order to compel the child Joey enrolled in 

school under the surname "Billman", not Lehman, the name by 

which the child was known and had been enrolled, and (3) an 

order enjoining the mother from "poisoning" the child's mind 

against Barney. 
After the November 4, 1976, hearing on Barney's petition for modification, of which a record was made, Judge C. 

B. Sande issued the first findings, conclusions and order 

modifying the decree, dated December 8, 1976, by which he 

did the following: 

1. Set the amount which Barney was in arrears in his 

child support obligation; 

2. Reduced the amount Barney was to contribute toward 

the support of Joey; 

3. Set a specific time for visitation between Barney 

and Joey; 

4. Ordered the child to be enrolled in school under and 

go by the surname "Billman", even though, as the court 

acknowledged, "The child is not recognized by school authorities under the defendant father's surname of illm man"; 

and 

5. Enjoined the mother from poisoning the child's mind 

against Barney. 

Two filings were made on December 13, 1976, one, a 

motion to amend the findings and order, advanced by the 

mother's counsel, and the other a stipulation regarding 

supervised visitation. Within days, on December 22, 1976, 

Barney petitioned the District Court, seeking, inter alia, 

custody of the child. 

On January 3, 1977, Linda filed a cross-petition for 

modification of the decree to eliminate all of Barney's 

visitation privileges. The following month, Judge Sande 

issued new findings, conclusions and order modifying the 

decree, dated February 2, 1977. 

During the time between the two orders, numerous inchambers conferences and interviews were conducted. Parti- 
cipants included the court, attorneys for both parties, 

the parties themselves, the paternal grandmother, court 

services personnel, and the child. 

Certain of the record is scanty, some is entirely 

absent, except by reference, but it is clear that Barney 

had, and likely may yet have, what is euphemistically referred to as a "problem with drinking". During the course 

of his marriage to Linda, Barney would often drink and then 

engage in violent and abusive behavior, ranging from calling 

Linda's young daughter Jody, who lived with the couple 

during their marriage, nasty names, to throwing knickknacks 

and running over the children's toys, to striking and 

abusing Linda in the presence of the children. That behavior eventually prompted Linda to seek a divorce from 

Barney. In September, 1974, Linda was married to Stephen R. 

Lehman, who has developed and maintains a parent-child 

relationship with Joey. In contrast, during the four years 

since the divorce, Barney has had very little contact with 

Joey. It appears that although on occasion, to protect the 

child, Linda refused to let Barney see him, Barney, over 

extended periods of time, voluntarily neglected to contact 

the boy. 

Based on the information garnered from the conferences 

and interviews and from the prior hearing, the court issued 

the second order, which included the following findings: 

1. The defendant father has had a serious drinking 

problem and was a poor husband and father; he willfully 

failed to pay child support and voluntarily neglected visitation of his child; 

2. Because of Barney's drinking and the child's atti- 
tude toward the defendant, the mother at times prevented 

visitation; 

3. Joey does not want contact with Barney, and visitation can be accomplished only by physically taking the child 

against his will; 

4. Forced visitation would be harmful, both mentally 

and emotionally, to the child; 

5. The defendant is unable to provide a suitable home 

for Joey, while Linda and her husband have provided an 

excellent home and parental care for him; 

6. The child looks to Stephen R. Lehrnan as his father 

and a change in custody would be extremely harmful to the 

child; 

7. What support the defendant does provide is not 

needed and is a source of continuing conflict between the 

parties; and 

8. The parties so hate one another that continued 

contact between them would result in harm to the child. 

After making those findings and considering the best 

interest of the child, the court concluded and ordered that 

Barney's support obligation be terminated and that he be 

denied further visitation with the child. 

On March 24, 1977, notice of appeal was filed by 

Barney's attorney. After numerous delays on appellant's 

part over a ten-to-eleven month period, on January 20, 1978, 

this Court, of its own motion, ordered the appellant to show 

cause why the appeal should not be dismissed for failure to 

file a brief. A brief was subsequently filed on January 31, 

1978. 

Although counsel for respondent argues strongly and 

persuasively for this Court to dismiss the instant appeal 
based on appellant's failure both to timely-appeal and to 

pursue the appeal with some measure of diligence, we rest 

our decision on the statutory requirement that heed be paid 

the best interest of the child. Sections 48-332 and 48-337, 

R.C.M. 1947 (Supp. 1977). It happens that appellant's dilatoriness in pursuing his appeal is an additional factor 

which supports our conclusion that the best interest of the 

child is served by upholding the District Court's second 

order terminating both Barney's obligation to provide support moneys and his visitation privileges. 

The District Court has discretion to modify an order 

granting or denying visitation rights whenever modification 

would serve the best interest of the child. Section 48- 

337 (2) , X.C.M. 1947 (Supp. 1977) . By the express terms of 

the statute, the court is required to find that "visitation 

would endanger seriously the child's physical, mental, 

moral, or emotional health." The District Court specifically 

found that "visitation at this time can be accomplished only 

by physically taking the boy against his will and forcing 

the visitation" and that "enforced visitation would be 

mentally and emotionally harmful to the child." 

Those findings were based on information provided the 

court during a series of - in camera conferences and interviews, in which all interested persons participated at 

various times between the issuance of the two findings, 

conclusions and orders. Appellant charges that the District 

Court erred in failing to cause a record to be made of the 

in chambers interview(s) with the child. Appellant complains of the lack of such record, yet he, with and through 

his counsel, agreed to attempt to informally resolve the 

problem of visitation, and, to that end, agreed that off- 
the-record conferences and interviews were to be held. That 

such agreement was made is not disputed by appellant; furthermore, direct reference to it is made in the statement prefatory to the District Court's findings, viz., "This matter 

having come before the Court on opposing motions of the 

parties, and the Court having heard the testimony taken in 

previous hearings in this matter and having met 

-- in chambers 

pursuant - to agreement of - counsel with -- the parties, their 

counsel, the paternal grandmother, the minor --- son of the 

parties, -- and the Court Services personnel, who has investigated and assisted in the matter, the Court makes the following FINDINGS OF FACT." (Emphasis added.) 

In order to determine if the District Court did err in 

this regard, we must inquire whether counsel may waive the 

requirement imposed by section 48-334(1), R.C.M. 1947 (Supp. 

1977) , that a record be made of the court's interview (s) of 

the child. Examination of a most recent decision, Easton v. 

Easton (1978), Mont. -I - , 574 P.2d 989, 992, 35 

St.Rep. 123, 126, reveals that indeed counsel may so waive, 

and should he do so, he may not later complain that he was 

prejudiced thereby. In Easton, the District Court, pursuant 

to agreement of counsel, required no record be made of a 

particular hearing. Remarking that "* * * Counsel surely 

knows the term 'waiver' is generally defined as a voluntary 

and intentional relinquishment of a known right, claim or 

privilege", Easton v. Easton, Mont. at , 574 P.2d at 

992, 35 St.Rep. at 126, this Court took exception to the 

objection raised by defendant that no record was made of the 

hearing. We likewise take exception in the instant case. 

Appellant may not waive, voluntarily and intentionally, a 

known right--here, the right to have made a record of the 
court's - in camera interview(s) of the child--and later 

complain that the District Court erred in accomodating him. 

 his specification of error is specious to a court of equity 

which considers that one's acquiescence in error takes away 

the right of objecting to it. Section 49-108, R.C.M. 1947 

(Supp. 1977); see Brannon v. Lewis & Clark County (1963), 

143 Mont. 200, 208, 387 P.2d 706, 711. 

The District Court exercised the option made available 

to it under section 48-334 (I), R.C.M. 1947 (Supp. 1977), and 

interviewed the child in chambers "to ascertain [his] wishes 

as to his custodian and as to visitation." Apparently the 

court allowed counsel for appellant and perhaps appellant 

himself to be present at the interview(s), in conformity 

with the discretion granted the court by that same statute. 

The court determined that the best interest of the child 

would be served by terminating Barney's visitation rights. 

We defer to that judgment, because the District Court has a 

superior advantage in determining these difficult problems. 

See Weber v. Weber (1978), Mont . -1 - , 576 P.2d 

1102, 1104, 35 St.Rep. 309, 311-12, and cases cited therein. 

The Montana statutes are specific in their requirements, 

from setting forth how a custody or support proceeding shall 

be entitled, section 48-315(2), R.C.M. 1947 (Supp. 1977), to 

demanding that, in the absence of written consent of the 

parties, there be a showing of changed circumstances to 

support a petition for modification of a decree in respect 

of support, section 48-330(1) (a), R.C.M. 1947 (Supp. 19771, 

to mandabkg that an affidavit setting forth facts supporting the requested modification accompany papers seeking 

modification of a custody decree, section 48-340, R.C.M. 

1947 (Supp. 1977). Counsel's failure to comply with these 
statutory requisites, as in the instant case, is invitation 

to erroneous rulings and determinations prejudicial both to 

their clients' rights and to the system of justice of which 

they are guardians. 

Our refusal to decide this case on procedural grounds 

is not to be mistaken as closing our eyes to the necessity 

of complying with statutory dictates. A remand in the 

instant case, however, would serve but to further delay 

resolution of this matter and thus work against the best 

interest of the minor child. Because it is the best interest 

of the child which is made the ground of our decision, we 

allow to stand the findings, conclusions and order more 

lately issued by the District Court. 

We Concur: 

#.%%4 

Chief Justice