No. 13810 INTHE SUPFEME

### COUIZT OF THE STATEOF M3NTANA 1978

Plaintiff 

### and Respondent,



### -vsBARNEY R. BILLMAN, ~efendant 

### andAppellant.

Appeal fm: District 

### Court of 

### the ThirteenthJudicialDistrict, Honorable C. B. Sande, Judgepresiding. Counsel of Record: ForAppellant: Calton 

### and Stephens, Billings, bbntana For Respondent: Anderson, Symes, Gerbase, Cebull & Jones, Billings, Montana

Suhnittedonbriefs: July 21, 1978 Decided: 

### 3EP 

## 26 1978Mr. Justice John Conway Harrison delivered the Opinion of the Court. This appeal is taken from an order issued by the DistrictCourt, Thirteenth Judicial District, Yellowstone County, whereby appellant's obligation toprovide support moneys for his minor child and his visitationprivileges



### 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) tohismother, Linda, and ordered the father, Barney, tocontribute $100 per month toward support of the child. Barney petitioned the DistrictCourt on September 30, 1975, for modification of the divorce decree, asking that the amount of supportmoney tobe contributed to the child be reduced by 50 percent and thatvisitationrights be afforded him. A hearing on thematter 

### was postponed, apparently because Barney failed toappear. On February 

### 11, 1976, Barney renewed his petition formodification of the decree inrespect of visitation, and again apparently failed to appear atthehearing on themotion. Seven months after Linda sought a restraining order against him, Barney again petitioned on October 25, 1976, formodification of the divorce decree, seeking 

### (1)a determination of the amount of child support inwhich he was in 

### arrears, (2) an order tocompel the child Joey enrolled in school under the surname "Billman", not Lehman, the name by which the childwas known and had been enrolled, and (3) an order enjoining themother from "poisoning" the child's mind against Barney.After the November 4, 1976, hearing on Barney's petition formodification, of which a record was made, Judge C. B. Sande issued the firstfindings, 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 inhis child support obligation; 2. Reduced the amount Barney was tocontribute toward the support of Joey; 3. Set 

### a specific time for visitationbetween Barney and Joey; 

### 4. Ordered the child tobe 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 themother from poisoning the child's mind against Barney. Two filingswere made on December 13, 1976, one, a motion to amend the findings and order, advanced by the mother's counsel, and the other a stipulationregarding 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 allof Barney's visitationprivileges. 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, thepaternal grandmother, court servicespersonnel, and the child. Certain of the record is 

### scanty, some is 

### entirely absent, except by reference, but it 

### is

### clear thatBarney had, and likelymay yethave, what is 

### euphemistically re

### ferred toasa "problem with drinking". During the course of hismarriage toLinda, Barney would often drink and then engage inviolent and abusive behavior, ranging from calling Linda's young daughter Jody, who lived with the couple during theirmarriage, nasty names, tothrowing knickknacks and running over the children's toys, to striking and abusing Linda inthepresence of the children. That behavior eventuallyprompted Linda to seek a divorce from Barney. In September, 1974, Linda was married toStephen R. 

### Lehman, who has developed and maintains a parent-child relationshipwith Joey. In contrast, during the four years since the divorce, Barney has had very 

### littlecontactwith Joey. It 

### appears that although on occasion, toprotect the child, Linda refused to let 

### Barney 

### see him, Barney, over extended periods of 

### time, voluntarily neglected tocontact the boy. Based on the information garnered from the conferences and interviews and from theprior 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 topay child support and voluntarily neglected visitation of his child; 2. 

### Because of Barney's drinking and the child's atti-tude toward the defendant, themother attimes prevented visitation; 3. Joey does not want contactwith Barney, and visitation can be accomplished only by physically taking the child againsthis

### will; 4. Forced visitationwould be harmful, both mentally and emotionally, tothe child; 

### 5. The defendant 

### isunable toprovide 

### a suitable home forJoey, 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 incustody would be extremely harmful to the child; 7. What support the defendant does provide is not needed and 

### is a source of continuing conflictbetween the parties; and 8. The parties so hate one another that continued contact between them would result inharm 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 visitationwith 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 

### itsown motion, ordered the appellant to show

cause why the appeal should not be dismissed for failure to filea 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 appealbased on appellant's failureboth 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 thebest interestof the child. Sections 48-332 and 48-337, R.C.M. 1947 (Supp. 1977). It happens that appellant's dilatoriness inpursuing his appeal is an additional factor which supports our conclusion that the best interest of the child 

### is served by upholding the DistrictCourt's second order terminating both Barney's obligation toprovide supportmoneys and his visitation privileges. The DistrictCourt has discretion tomodify an order granting or denying visitation rights whenever modification would serve the best interestof the child. Section 48- 337(2)

## , X.C.M. 1947 (Supp. 1977)

# . By the express 

### terms of the statute, the court 

### isrequired to find that "visitation would endanger seriously the child's physical, mental, moral, or emotional health." The District Court specifically found that "visitationatthis time can be accomplished only by physically taking the boy against his

### willand forcing the visitation" and that "enforced visitationwould be mentally and emotionally harmful to the child." Those findings

### werebased on information provided the court during a 

### series of - incamera conferences and interviews, inwhich 

### all interested persons participated at various 

### timesbetween the issuance of the two findings, conclusions and orders. Appellant charges that the 

### District Court erred infailing tocause a record tobe made of the inchambers interview(s) with the child. Appellant complains of the lack of such record, yet he, with and through his counsel, agreed toattempt toinformally resolve the problem of visitation, and, tothat end, agreed that off-the-record conferences and interviews were tobe held. That such agreement was made 

### isnot disputed by appellant; furthermore, directreference to it 

### ismade in the statement prefatory tothe 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 inthismatter and having met inchambers -- pursuant - toagreement 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 inthematter, the Court makes the following FINDINGS OF FACT." (Emphasis added.) In order todetermine if the District Court did err in this regard, 

### wemust inquirewhether 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 sowaive, and should he do so, he may not later complain that he was prejudiced thereby. InEaston, the District Court, pursuant toagreement of counsel, required no record be made of a particular hearing. Remarking that 

## "*

## * * Counsel surely knows the 

### term 'waiver' 

### isgenerally 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. at126, this Court took exception to the objection raised by defendant that no record was made of the hearing. We likewise take exception inthe instant case. Appellant may not waive, voluntarily and intentionally, a known right--here, the right tohave 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 difficultproblems. 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 supportproceeding 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 formodification 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 tothe system of justice of which they areguardians. Our refusal todecide this case on procedural grounds isnot tobe mistaken as closing our eyes tothe necessity of complying with statutory dictates. A 

### remand inthe instant case, however, would servebut tofurther delay resolution of thismatter and thus work against thebest interest of theminor child. Because 

### it is 

### the best interest of the childwhich ismade 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