No 

No. 98-322

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 100N

_______________

IN RE THE MARRIAGE OF )

)

DAVID HEINE, ) 

)

Petitioner and Appellant, ) OPINION

) AND

and ) ORDER

)

LAURA HEINE, )

)

Respondent and Respondent. )

_______________

¶1. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal 

Operating Rules, the following decision shall not be cited as precedent but shall be 

filed as a public document with the Clerk of the Supreme Court and shall be 

reported by case title, Supreme Court cause number and result to the State Reporter 

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Publishing Company and to West Group in the quarterly table of noncitable cases 

issued by this Court.

¶2. David Heine (Petitioner) appeals from the Findings of Fact, Conclusions of Law, 

and Order entered by the Thirteenth Judicial District Court, Yellowstone County, 

awarding Laura Heine (Respondent) primary residential custody of the parties' two 

children. We affirm.

¶3. The sole issue on appeal is whether the District Court abused its discretion in 

determining that Petitioner was not entitled to a continuance pursuant to Uniform 

District Court Rule 10.

¶4. The parties have been engaged in this litigation for more than six years. 

Petitioner filed the petition for dissolution in 1993. The court awarded sole custody of 

the children to Respondent in 1995. Petitioner appealed to this Court in 1996 and we 

remanded the case for a determination of primary residential custodian in 1997. 

Shortly thereafter, the District Court appointed Mr. Vernon Woodward (Mr. 

Woodward) as guardian ad litem to represent the interests of the children. The court 

set the trial date for January 29, 1998.

¶5. On the day of trial, Petitioner's then counsel, Kevin Sweeney (Sweeney), moved to 

withdraw stating that Petitioner had fired him. At the same time, Petitioner moved 

for a continuance of twenty days in which to obtain new counsel pursuant to Rule 10, 

U.Dist.Ct.R. The rule provides in pertinent part: 

When the attorney representing a party to an action or proceeding dies, is removed, 

withdraws, or ceases to act as such, that party, before any further proceedings are had 

against him must be given notice by any adverse party: 

(1) That such party must appoint another attorney or appear in person, and 

(2) The date of the trial or of the next hearing or action required in the case, and 

(3) That if he fails to appoint an attorney or appear in person by a date certain, which may 

not be less than twenty days from the date of the notice, the action or other proceeding will 

proceed and may result in a judgment or other order being entered against him, by default 

or otherwise.

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Rule 10(b), U.Dist.Ct.R.

¶6. Respondent and Mr. Woodward objected to any continuance of the trial on the 

ground that Petitioner had already hired and fired five attorneys in the course of the 

litigation, which firings coincided with scheduled deadlines or court hearings. 

Respondent and Mr. Woodward stated that Petitioner's practice of switching 

attorneys immediately before important court dates appeared to be manipulative 

behavior designed to delay the proceedings. Respondent and Mr. Woodward noted 

that after firing his fifth attorney in December 1997, Petitioner received a "Rule 10 

notice" informing him that he must appoint another attorney or appear in person 

and that the date for the trial was set for January 29, 1998. Additionally, the Rule 10 

notice informed Petitioner that Mr. Woodward objected to any continuance of the 

trial as not in the best interests of the children, and that the District Court had 

advised the parties that it would not continue the trial date. Respondent and Mr. 

Woodward argued that, given this notice, Petitioner's request for a continuance on 

the day of trial was an abuse of process.

¶7. The court granted Sweeney's motion to withdraw but denied Petitioner's request 

for a continuance, stating that the matter had been going on much too long and 

further delay was not in the best interests of the children. Petitioner objected to the 

denial of his request for a continuance but to no avail. The trial commenced and 

Petitioner represented himself. The court issued its Findings of Fact, Conclusions of 

Law, and Order on February 24, 1998, awarding joint custody to the parties with 

Respondent as the primary residential custodian.

¶8. Petitioner assigns error to the denial of his request for a continuance. He argues 

that the notice procedure set forth in Rule 10, U.Dist.Ct.R., is mandatory and that 

the court committed reversible error when it failed to continue the trial for twenty 

days and allow him time to appoint new counsel. We disagree.

¶9. We determine that the District Court did not err in denying Petitioner's request 

for a continuance of the trial. The purpose of Rule 10, U.Dist.Ct.R., is to prevent a 

represented party from taking unfair advantage of the opposing party who has lost 

representation and to ensure that the unrepresented party receives a fair trial. 

Stanley v. Holms (1997), 281 Mont. 329, 336, 934 P.2d 196, 200-01. Respondent 

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complied with Rule 10 in December 1997, when Petitioner fired his fifth attorney. 

Petitioner received a Rule 10 notice six weeks before the trial informing him that Mr. 

Woodward opposed any continuance of the trial and that the court would not allow 

it. When, on the day of trial, Petitioner again fired his sixth attorney, there existed no 

further proceedings of which to give Petitioner notice. The facts of this case indicate 

that Respondent in no way took unfair advantage of Petitioner's situation concerning 

representation. Rather, it appears Petitioner himself took unfair advantage of the 

situation.

¶10. We agree with Respondent and Mr. Woodward that Petitioner's pattern of 

hiring and firing attorneys seems to be geared toward unreasonably delaying the 

proceedings. We defer to the court's determination that Petitioner's assertion that he 

needed more time to gather evidence was not credible. The record shows that 

Petitioner had at least six weeks, if not five years, in which to gather evidence of his 

wife's alleged child abuse. Given Petitioner's pattern of switching attorneys, the 

length of litigation, and Mr. Woodward's statement that the children needed closure, 

we agree with the District Court that Petitioner's request to continue the trial was 

not in the best interests of the children.

¶11. Based on our review of the record, we determine that the present appeal is not a 

legitimate attempt to defend rights and interests, but rather another attempt by 

Petitioner to exhaust judicial time and resources and cause unnecessary delay. 

Petitioner claims that the motive underlying his actions was to protect his children. 

However, we believe Petitioner's actions have only created an environment of hatred, 

and have caused Respondent and the children unnecessary emotional and financial 

distress. See Thomas v. Hale (1990), 246 Mont. 64, 69, 802 P.2d 1255, 1258. We 

believe this appeal was taken without substantial or reasonable grounds, and was an 

abuse of process highly detrimental to the interests of the children. See In re 

Marriage of West (1988), 233 Mont. 47, 52, 758 P.2d 282, 286; In re Marriage of 

Larson (1988), 234 Mont. 400, 404, 763 P.2d 1109, 1111. Therefore, pursuant to Rule 

32, M.R.App.P., we impose sanctions against Petitioner. Petitioner is hereby ordered 

to pay damages in the sum of $1000 to the Respondent. This assessment is intended to 

compensate Respondent in some measure for her attorney's fees and costs associated 

with this appeal. Petitioner shall pay these damages to Respondent within thirty days 

of the issuance of this opinion and order.

¶12. It is further ordered that the Clerk of the Thirteenth Judicial District Court 

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shall enter and docket a judgment in favor of Respondent and against Petitioner in 

the amount of $1000 in accordance with paragraph eleven of this opinion and order.

¶13. The Clerk of this Court is directed to mail a true and correct copy of this 

opinion and order to all parties of record and to the Clerk of the Thirteenth Judicial 

District Court.

¶14. Affirmed.

Dated this 18th day of May, 1999.

/S/ WILLIAM E. HUNT, SR.

/S/ KARLA M. GRAY

/S/ W. WILLIAM LEAPHART

/S/ JIM REGNIER 

/S/ TERRY N. TRIEWEILER

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