No. 12413

I N THE SUPREME COURT O THE STATE O M N A A F F OTN

1973

-

GEORGE M. WASHINGTON,

p l a i n t i f f and Respondent,

-VS - HESTER P . WASHINGTON, Defendant a d A p p e l l a n t .

Appeal from: D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t , Honorable J a c k D. Shanstrom, Judge p r e s i d i n g .

Counsel o f Record:

For Appellant :

Hutton, S c h i l t z and Sheehy, B i l l i n g s , Montana John C.Sheehy argued, B i l l i n g s , Montana

For Respondent:

Gary L. Beiswanger argued, B i l l i n g s , Montana Robert P. Ryan, B i l l i n g s , Montana

Submitted: March 2, 1973 M. Chief Justice James T. Harrison delivered the Opinion of the Court. r

This i s a motion t o dismiss the appeal f i l e d by the respondent George M. Washington. The motion requests t h i s Court t o dismiss the a ppea 1 : " * * * f o r the reason t h a t the appellant f a i l e d to have prepared a transcript of the evidence presented t o the lower court, and t h a t each of the specifications of error * * * raised by defendant would require either an agreed statement of f a c t or a transcript prepared a f t e r hearing * * *. I' The response of appellant, Hester P. Washington, t o t h i s contention i s t h a t she i s urging s t r i c t l y a legal argument and t h a t the record f i l e d with t h i s Court is adequate f o r that purpose. The underlying action in t h i s appeal i s a divorce action commenced by the respondent in the d i s t r i c t court of Ye1 lowstone County. A decree was entered in t h a t action on December 31, 1971. A property settlement previously entered into by the parties was incorporated in the decree. Following a s a l e of some property which was covered by the agreement, the appellant petitioned the d i s t r i c t court t o give her a lien on the proceeds of that s a l e as security for the money she was t o receive from the settlement. The respondent cross- petitioned f o r a modification of the decree on the ground of change in condi- tions. A hearing was held on the petitions on May 17, 1972. There was no court reporter present a t the time of the hearing, but both parties agreed t o proceed with the hearing. During the course of the hearing, the appellant objected t o the introduction of any testimony concerning a change of circum- stances of the respondent. The objection was overruled. Respondent then presented testimony concerning his change in financial condition. The matter was taken under advisement and on June 13, 1972, the d i s t r i c t court entered an order relieving the respondent of his responsibility f o r the payment of alimony. On July 17, 1972, the appellant f i l e d her exceptions t o the order and a motion f o r extendon of time in which t o f i l e a statement of the evidence. N action was taken on those motions by the d i s t r i c t court and t h i s appeal o was filed on August 31 , 1972. The motion to dismiss the appeal was filed on January 23, 1973, after the appellant's brief was filed on December 18, 1972. The motion was heard and both parties presented oral argument through their respec- tive counsel . The issue before this Court is whether the appellant has ful- filled her duty under Rule 9, M.R.App.Civ.P. to furnish a sufficient re- cord on appeal for this Court to decide the controversy. Appellant argues that the appeal concerns: " * * * an issue of law which this court can decide without a transcript of the evidence. The wife's brief filed in this cause on appeal has confined the issues to that precise issue of law." Respondent argues that the issues raised by the appellant on appeal: " * * * are entirely founded on the insufficiency of the evidence to support the findings of fact of the trial court. " To some degree this Court must agree with the position expressed by the respondent. Rule 9(b), M.R.App.Civ.P. states: "In all cases where the appellant intends to urge in- sufficiency of the evidence to support the verdict, order or judgment in the district court, it shall be the duty of the appellant to order the entire trans- cript of the evidence.'' In reading appellant's brief, particularly the "statement of issues presented for appeal", it is apparent appellant is urging that the findings of fact upon which the district court made its order were not supported by the evidence. In her issue No. 2 the appellant contends the court committed error in its finding of fact No. 1 because "(b) That from the evidence and from the property settlement agreement ** *'I; this is just one example of several similar statements in the brief alleging the findings of fact were not supported by the evidence . It is clear to this Court that to fully decide the matters raised, as complete a record as possible must be supplied. When a hearing is held and there is no court reporter present Rules 9(c) and (d), M.R.App.Civ.P. provide two methods for supplying a record on appeal. Under subsection (c) the appellant may prepare a statement of the evidence and serve it upon the respondent. The respondent then has t h e o p p o r t u n i t y t o make any o b j e c t i o n s .

The statement along w i t h any o b j e c t i o n s a r e submitted t o t h e d i s t r i c t c o u r t

and t h e d i s t r i c t judge w i l l s e t t l e t h e record. Under subsection ( d ) t h e

p a r t i e s may make an agreed statement o f t h e case and along w i t h any a d d i t i o n s

by t h e d i s t r i c t c o u r t i t w i l l be c e r t i f i e d t o t h i s Court as t h e r e c o r d on

appeal. E i t h e r one o f these methods could have been used i n t h i s case and

an attempt was commenced by t h e a p p e l l a n t , as evidenced by her motion f o r

an extension o f time t o prepare such a statement o f t h e evidence, b u t l a t e r

abandoned.

Therefore i t i s t h e o p i n i o n o f t h i s Court t h a t upon t h e issues

r a i s e d by t h e a p p e l l a n t , t h e r e c o r d i s inadequate except as t o t h e s o l e i s s u e

whether o r n o t as a m a t t e r o f law t h e alimony p r o v i s i o n o f t h e p r o p e r t y

agreement was i n t e g r a l t o t h e agreement and n o t severable and as such was

n o t s u b j e c t t o m o d i f i c a t i o n by t h e c o u r t .

As t o any and a l l 0 t h

t h e motion t o dismiss i s g r a n t

Me concur:

ssociate Justices