In Re the Marriage of Long , 51 State Rptr. 1252 ( 1994 )

NO. 94-312
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
IN RE THE MARRIAGE OF
PAMELA ELLEN LONG, n/k/a
PAMELA ELLEN MALINIAK,
Petitioner and Respondent,
and
EARL ROBERT LONG,
Respondent and Appellant
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Ted 0. Lympus, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
C. Mark Hash, Hash, O'Brien & Bartlett,
Kalispell, Montana
For Respondent:
Mark R. Sullivan, Attorney at Law,
Whitefish, Montana
Submitted on Briefs: November 3, 1994
Decided : December 6 , 1994
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
On September 14, 1993, petitioner Pamela Maliniak filed a
motion to modify the decree dissolving her marriage to respondent
Earl Long, and a motion to have him held in contempt in the
District Court for the Eleventh Judicial District in Flathead
County. On March 16, 1994, based on a hearing which Earl did not
attend, the court entered its order in which it found Earl in
contempt of court; ordered that he pay past due child support;
maintain health insurance for the children; and pay Pamela's
attorney fees. Earl moved the court, pursuant to Rule 60,
M.R.Civ.P., to set aside, alter, or amend the court's judgment.
The District Court failed to rule on this motion within 45 days, so
it was deemed denied. Earl appeals from the court's order and
denial of his motion. We vacate the order of the District Court
and remand for further proceedings.
We find the following issue dispositive on appeal:
Does the fact that no record was made of the March 16, 1994,
hearing prohibit effective appellate review which requires reversal
of the order?
FACTUAL BACKGROUND
Earl and Pamela's marriage was dissolved on April 16, 1985, in
the Eleventh Judicial District Court for Flathead County. Because
Earl was unemployed at the time of the dissolution, the court's
findings and conclusions provided that he pay $100 per month as
child support for the parties' three children. The decree also
included a condition that Earl report to the court within two weeks
2
after he obtained employment so the court could reevaluate his
child support obligation. In approximately December 1985, Pamela
began receiving Aid for Families with Dependent Children.
Therefore, Earl was required to make future payments to the Child
Support Enforcement Division. Both parties remarried and Earl
moved to Seattle, where, according to Pamela's affidavit, he
obtained employment with Boeing, which he did not report to the
court.
On September 14, 1993, Pamela moved to modify the decree to
amend the support obligation pursuant to the Montana Child Support
Guidelines, requested that the court find Earl in contempt for
failing to abide by the dissolution decree, and requested that Earl
be required to maintain health and medical insurance for the three
children. Pamela's affidavit in support of her motion alleged that
Earl had been employed by Boeing for at least five years preceding
her motion.
Pamela's initial motion was personally served on Earl with a
notice that a hearing would be held on October 12, 1993. The court
did not issue a summons or order to show cause. The hearing date
was extended and Pamela filed another notice that the hearing was
scheduled for March 16, 1994. The notice did not include a
certificate indicating it was personally served on Earl; rather, it
was sent to Sally Rees, a Seattle attorney. Pamela later submitted
an affidavit which stated that notice was mailed to Earl's personal
address. Earl did not attend the hearing but sent a response along
with financial information directly to the court. The court did
not consider Earl's information because Earl did not send a copy to
Pamela's attorney.
The court held the hearing in Earl's absence. Based on the
evidence presented, the court held that Earl owed $32,044 for past
due child support; he must maintain health insurance for the
children; the initial decree is modified to require that he pay
$756 per month for child support in the future; and Earl must pay
Pamela's attorney fees and costs. No record was made of this
hearing.
On April 1, 1994, Earl moved the District Court pursuant to
Rule 60, M.R.Civ.P., to set aside, alter, or amend the court's
March 16, 1994, order. Pamela filed her objection on April 15,
1994, and the matter was argued on April 25, 1994. Earl's motion
was not ruled on within 45 days so it was deemed denied as a matter
of law.
DISCUSSION
Does the fact that no record was made of the March 16, 1994,
hearing prohibit effective appellate review which requires reversal
of the order?
Our standard of review for findings of fact in cases where
child support obligations are modified is whether the District
Court abused its discretion. InreMarriageofBarnard (1994), 264 Mont.
103, 106, 870 P.2d 91, 93. Earl argues that, absent a record of
the proceedings, he is unable to challenge the court's order. In
addition, Earl claims that this Court is unable to effectively
review the evidence upon which the court's modification order is
4
based. Pamela responds that a transcript is not required because
the District Court had uncontroverted evidence that Earl failed to
notify the court of his employment. Pamela relies on a portion of
the transcript from the hearing to consider Earl's Rule 60,
M.R.Civ.P., motion. Earl's attorney asked the court what evidence
it relied on in support of its findings. The court responded,
"Undoubtedly it was from a non-contested representation by the
petitioner."
In Malleyv. Malley (1980), 190 Mont. 141, 619 P.2d 531, we
vacated a district court's order because no transcript was made of
the hearings. In Malley, a petition for dissolution was filed and
two hearings were held. The husband appearedprose and, on appeal,
sought to challenge the court's property distribution decree. The
wife moved to dismiss his appeal because he failed to cite evidence
in support of his appeal. We denied the motion because no record
was made of the proceedings below. "We should not have to remind
a successful party to litigation in District Court, that the
judgment obtained is placed in jeopardy where there is no record of
the proceedings. " Malley, 619 P.2d at 532.
In Malley, we could not effectively review the husband's
contentions without a trial record. In MatterofGeaiy (1977), 172
Mont. 204, 207, 562 P.2d 821, 823, we noted the necessity of a
trial record:
Without a transcript, this Court is placed in the
position of attempting to reconstruct a record on appeal.
Such a task being often impossible and unnecessary, the
right to appeal becomes illusory, a right without
substance.
We have previously reversed a contested custody decision because
the hearing was not recorded. In re Guardianship of Gullette (1977), 173
Mont . 132 , 566 P .2d 3 96, overruled on other grounds by McDowell v. McDowell
(l994), 263 Mont. 252, 868 P.2d 1250. In Gullette, we noted that
district courts are, by statute, courts of record, which implies
that a record will be made of the proceedings. See § 3-1-102,MCA;
Gullette, 566 P.2d at 397.
No record was made of the hearing which served as the basis
for the District Court's order. The District Court file does not
indicate why a court reporter was not present. Nonetheless,
because no record was made, Earl is denied effective appellate
review. The court modified Earl's support obligation but we cannot
determine if its modification was properly based on the Montana
Child Support Guidelines or what change in circumstances justified
modification. See § 40-4-208(2) (i), MCA.
(b) Because there is no
record for us to review, the District Court's order is vacated and
this case is remanded for a hearing on the merits of Pamela's
motion. Because we reverse and remand on this basis, we do not
address the merits of the other issues raised on appeal.
We concur:
Chief Justice