Marriage of Harrington v. Harrington , 181 Mont. 541 ( 1979 )

No. 14281
I N THE S P SD COURT O THE STATE O BOISJTANA
UF! E F F
1979
IN RE THE MARRlXE OF
JOHN W. I-mammm,
Petitioner and Appellant,
-VS-
SALI;Y JQAN Jmmmm,
F&spondent and Respondent.
Appeal frcun: D i s t r i c t Court of the Second Judicial D i s t r i c t ,
Honorable James D. Freebourn, Judge presiding.
Counsel of md
r :
For Appllant:
Leonard J. Haxby, Butte, Fbntana
For Respondent:
Neil Lynch, Butte, Montana
S u h i t t e d on briefs: Septaber 1 2 , 1978
--
Decided:2 - -. 5
9x
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
Husband in a dissolution of marriage proceeding appeals
from a judgment of the Silver Bow County District Court and
seeks review of the court award of $300 per month in child
support. He contends the amount of the court ordered child
support was not supported by the evidence and constituted an
abuse of discretion. We dismiss the appeal for counsel's
failure to provide this Court with an adequate record upon
which to decide the issue.
On June 22, 1977, the husband filed his petition for
dissolution of marriage which asserted, among other things,
that the wife should receive custody of the parties' three
minor children and that he would pay $200 per month for
child support. The wife responded by filing an answer and
counterclaim which, among other things, agreed that she
should have custody of the children, but claimed $300 per
month was necessary for their support.
The matter was tried on November 3, 1977. Apparently,
no court reporter was present to record the testimony of
witnesses. Thereafter, the court dissolved the marriage,
awarded custody to the wife and ordered the husband to pay
$300 per month for child support.
Following denial of his motion for rehearing, husband
filed notice of appeal to this Court on January 19, 1978.
On March 22, 1978, the husband filed an "agreed statement of
facts" in the District Court. This document merely recites
the undisputed facts of the marriage including the parties'
monthly income, living expenses and the marital debts which
the husband assumed upon dissolution of marriage.
The issue presented for our consideration is whether
the evidence was sufficient to support the court's judgment
that the husband is able to pay $300 per month in support
of the parties' minor children. We do not have a satisfactory
record of the evidence presented at trial and consequently
cannot consider the merits of this issue.
It is the duty of a party seeking review of a judgment
to present this Court with a record sufficient to enable us
to pass upon the question raised. Rule 9, Mont.R.App.Civ.P.;
9 Moore's Federal Practice §210.05[1], p. 1618-19; 4 Am.Jur.2d
Appeal and Error S398. This rule is particularly crucial
where the sufficiency of evidence is challenged. Yetter v.
Kennedy (1977), Mont . , 571 P.2d 1152, 1156, 34
The husband's agreed statement of facts was evidently
an attempt to submit an "agreed statement as the record on
appeal" pursuant to Rule 9(d), M0nt.R.App.Civ.P. which in
pertinent part provides:
"AGREED STATEMENT AS THE RECORD ON APPEAL.
In lieu of the record on appeal as defined
in subdivision (a) of this rule, the parties
may prepare and sign a statement of the case
--
showing how the issues presented by the appeal
arose -- decided - - district court
and were in the
and setting forth only so many of the facts
averred and proved or sought to be proved as
are essential - - decision - - issues
to a of the
presented,. . . " (Emphasis added. )
The agreed statement of facts plainly fails to form
a basis upon which this Court can review the judgment of
the District Court.
Having failed to provide this Court with an adequate
record, the husband's appeal is by dismissed.
We Concur:
Chief Justice
Justices