No. 13780 

IN THE SUPRENE COURT OF THE STATE OF MONTANA 

1977 

CAROL JO HALLDORSON, 

Plaintiff and Respondent, 

-vsJOSEPH B. HALLDORSON, 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Edward Dussault, Judge presiding. 

Counsel of Record: 

For Appellant: 

Smith Law Firm, Helena, Montana 

Robert J. Sewell, Jr. argued, Helena, Montana 

For Respondent: 

Patterson, Marsillo & Tornabene, Missoula, Montana 

Charles J. Tornabene argued, Missoula, Montana 

Submitted: December 6, 1977 

CEJ 2 8 19!. 

Decided- - - TFiled: 
Mr. Justice John C. Harrison delivered the Opinion of the Court. 

Appellant Joseph B. Halldorson appeals from the final 

decree of dissolution of marriage entered in the district court, 

Missoula County, January 27, 1977. The court ordered dissolution 

of the marriage between appellant and respondent Carol Jo 

Halldorson, awarded custody of the parties1 three year old son 

to respondent, ordered appellant to pay $150 per month child support, and made a division of their property. 

Respondent filed a petition for dissolution of marriage 

September 9, 1976, asking for custody of the child, child support, 

and a property settlement. Appellant counterclaimed for custody, 

child support, and a different division of property. 

Custody and visitation became a problem pending the trial 

and on December 21, 1976, respondent sought and obtained a temporary custody order, temporary child support, and an order preventing appellant from using the family home or disturbing the peace 

of respondent. Such order was made permanent pendente lite following a hearing. 

Trial was set for December 15, 1976, at which time respondent (petitioner in the divorce proceeding) began her case-inchief. Respondent herself was sworn and testified first. At the 

conclusion of her testimony, the district judge made the following statement: 

"THE COURT: I will at this time take a short 

recess, and I would just state to any witnesses 

who are here: both of these people, Petitioner 

and Respondent, are public employees just like I 

am, and I do not favor anyone exposing their wash-- 

their dirty linens--in public. Those who are here 

I don't believe will have to remain to testify, 

because there's not that much difference, in 

reading the file, between the two parties. They're 

both very fine people; very well educated people. 

They both love that child. They both love that 

property. 

"I think the Petitioner stated it's up to the 

Court, and I don't want to cut you people off, but 
a decision made by a Court is never as good 

as the one made between the parties. Somebody 

is going to, I suppose, suffer from it, but I'd 

like to see for a few minutes after I get a chance 

to talk to counsel, both Mr. and Mrs. Halldorson 

in Chambers without counsel. Thank You." 

A recess was called and the trial was never reconvened. 

The district court filed proposed findings of fact and 

conclusions of law January 6, 1977, and its final decree on January 27. 

There is record of objection either 

the discontinuance of the trial, nor is there any objection to 

the proposed findings and conclusions. 

On February 28, 1977, appellant filed a motion to vacate 

j udgment with the district court. Apparently the motion to vacate 

judgment has not been acted upon. 

The controlling issue on appeal is No. 1 and in view of 

the fact the case must be returned to the trial court, we will 

discuss only that issue--due process. 

Appellant argues that due process, in its most rudimentary form, requires that a party have his day in court and appellant was deprived of his day in court by the termination of the 

trial. He relies generally on several state and federal cases, 

such as Thompson v. Tobacco Root Co-op, (1948) 121 Mont. 445, 450, 

"It is well settled that notice and opportunity 

to be heard are essential elements of due process." 

More specifically, appellant relies upon an Arizona case, 

Marco v. Superior Court, (1972) 17 Ariz.App. 210, 496 P.2d 636. 

In Marco, the Arizona Supreme Court overturned a restraining 

order which had been issued on the basis of the pleadings alone. 

The trial court had refused to conduct a hearing on the matter 

even though the complaining party strongly objected. The supreme 

court held that the refusal of the district court to conduct a 
hearing deprived complainant of her right to due process under 

the Fourteenth Amendment, which " * * * means that no citizen 

shall be deprived of his life, or his liberty, or his property, 

without reasonable notice and reasonable opportunity to be heard 

according to the regular and established rules of procedure." 

Marco, 496 P.2d at 638. 

Respondent does not seem to question that the action of 

the district court would be error if properly objected to, but 

argues that appellant waived any error by failing to object to 

the procedure. Respondent points to a long line of Montana cases, 

not involving the precise factual situation as here but stating 

the general rule that an objection raised for the first time on 

appeal is not timely. Berdine v. Sanders County, (1974) 164 Mont. 

206, 520 P.2d 650; Boehler v. Sanders, (1965) 146 Mont. 158, 404 

P.2d 885. 

Respondent states appellant was not deprived of notice 

and opportunity to be heard--he had the opportunity but failed 

to avail himself of it. The nearest case supporting respondent's 

(1972) 

position is Turner v. Turner,/l57 Mont. 262, 484 P.2d 1303. 

This Court in Turner dismissed an appeal from findings of fact 

and conclusions of law because appellant failed to except to the 

findings, conclusions and judgment at the District Court level. 

In reply appellant requests this Court to consider and 

apply the "Plain error" doctrine under which this Court may consider questions raised for the first time on appeal if the error 

affects the substantial rights of the parties. 5 Am Jur 2d Appeal 

and Error 5 549, p. 34; 5 C.J.S. S 1220, p. 42. While this doctrine has not previously been recognized in this jurisdiction it 

has nationwide recognition in both the Federal system and in the 

courts of most of the state jurisdictions. 

Ordinarily errors not raised below will not be considered 
on appeal, however this rule is subject to the exception that 

h the question is raised for the first time on appeal it 

relates to the fundamental rights of the parties. As noted by 

the Washington Supreme Court in the case of Maynard Investment 

Co. v. McCann, 77 Wash.2d 616, 465 P.2d 657, 661: 

"The exception to the rule is a salutary one. 

Courts are created to ascertain facts in a controversy and to determine the rights of parties 

according to justice. Courts should not be confined by the issues framed or theories advanced 

by the parties if the parties ignore the mandate 

of a statute or an established precedent * * *." 

See also State v. Kaliman, 10 Wash.App. 41, 516 P.2d 1096; Kudrna 

(1977) 

Comet Corporation,/ Mont. t 

See M.R.Ev., Rule 103. 

We note here that appellant alleges that there is no 

record that his trial attorney ever saw the trial court's findings 

of fact and conclusions of law, and that he had no opportunity to 

object. However, the record shows counsel made a motion to vacate 

judgment . 

In adopting the "plain error" doctrine we believe that 

appellate courts have a duty to determine whether the parties before them have been denied substantial justice by the trial court, 

and when that has occurred we can, within our sound discretion, 

consider whether the trial court has deprived a litigant of a 

fair and impartial trial, even though no objection was made to 

the conduct during the trial. 

In adopting this rule we hold that the exception will 

not be applied where the failure or refusal to raise the issue 

in the trial court was conscious and intentional on the part of 

trial counsel. Johnson v. United States, 318 U.S. 189, 87 L.Ed. 

704, 63 S.Ct. 549, reh.den. 318 U.S. 801, 87 L.Ed.1164, 63 S.Ct. 

Judgment is reversed and the cause is returned to the 

District Court for a new trial. 
We concur: 

iw 

Chief Justice