Malley v. Malley

MR. JUSTICE HARRISON

dissenting:

I dissent.

Viewing the record here, we have an appellant who has previously had experience in a divorce proceeding, appearing pro se in this case, and now putting the trial court in error for failing to distribute the property properly. The majority rely on our previous holding in In Matter of Guardianship of Gullette (1977), 173 Mont. 132, 566 P.2d 396, a case involving the guardianship of children. I find our holding in that case clearly distinguishable. Here, appellant was offered a full and complete opportunity by the District *144Court to present his case, to file objections and to have the court consider findings of fact and conclusions of law, prior to the District Court’s adoption of same. As I understand the law, failure to object to the court’s findings and conclusions bars the raising of the issue on appeal.

What the majority holds is that whenever a court reporter is not present, the case will be reversed for lack of a record to be reviewed. This is directly contrary to the presumption of correctness of the judgment of the District Court. Here, appellant went through two hearings without objections and now seeks reversal on a technicality.

I would affirm.