No. 13780
I N T H E SUPRENE COURT O F T H E S T A T E O F MONTANA
1977
CAROL J O HALLDORSON,
P l a i n t i f f and R e s p o n d e n t ,
-vs-
J O S E P H B. HALLDORSON,
D e f e n d a n t and A p p e l l a n t .
Appeal from: D i s t r i c t C o u r t of t h e F o u r t h J u d i c i a l D i s t r i c t ,
H o n o r a b l e E d w a r d D u s s a u l t , Judge p r e s i d i n g .
C o u n s e l of R e c o r d :
For A p p e l l a n t :
S m i t h Law F i r m , H e l e n a , M o n t a n a
R o b e r t J. S e w e l l , Jr. argued, H e l e n a , M o n t a n a
For R e s p o n d e n t :
Patterson, M a r s i l l o & T o r n a b e n e , M i s s o u l a , M o n t a n a
C h a r l e s J. T o r n a b e n e argued, M i s s o u l a , M o n t a n a
Submitted: December 6, 1977
CEJ 2 8 19!.
Decided- - - T -
Filed:
Mr. Justice John C. Harrison delivered the Opinion of the Court.
Appellant Joseph B. Halldorson appeals from the final
decree of dissolution of marriage entered in the district court,
Missoula County, January 27, 1977. The court ordered dissolution
of the marriage between appellant and respondent Carol Jo
Halldorson, awarded custody of the parties1 three year old son
to respondent, ordered appellant to pay $150 per month child sup-
port, and made a division of their property.
Respondent filed a petition for dissolution of marriage
September 9, 1976, asking for custody of the child, child support,
and a property settlement. Appellant counterclaimed for custody,
child support, and a different division of property.
Custody and visitation became a problem pending the trial
and on December 21, 1976, respondent sought and obtained a tempor-
ary custody order, temporary child support, and an order prevent-
ing appellant from using the family home or disturbing the peace
of respondent. Such order was made permanent pendente lite follow-
ing a hearing.
Trial was set for December 15, 1976, at which time respon-
dent (petitioner in the divorce proceeding) began her case-in-
chief. Respondent herself was sworn and testified first. At the
conclusion of her testimony, the district judge made the follow-
ing statement:
"THE COURT: I will at this time take a short
recess, and I would just state to any witnesses
who are here: both of these people, Petitioner
and Respondent, are public employees just like I
am, and I do not favor anyone exposing their wash--
their dirty linens--in public. Those who are here
I don't believe will have to remain to testify,
because there's not that much difference, in
reading the file, between the two parties. They're
both very fine people; very well educated people.
They both love that child. They both love that
property.
"I think the Petitioner stated it's up to the
Court, and I don't want to cut you people off, but
a decision made by a Court is never as good
as the one made between the parties. Somebody
is going to, I suppose, suffer from it, but I'd
like to see for a few minutes after I get a chance
to talk to counsel, both Mr. and Mrs. Halldorson
in Chambers without counsel. Thank You."
A recess was called and the trial was never reconvened.
The district court filed proposed findings of fact and
conclusions of law January 6, 1977, and its final decree on Jan-
uary 27.
There is record of objection either
the discontinuance of the trial, nor is there any objection to
the proposed findings and conclusions.
On February 28, 1977, appellant filed a motion to vacate
judgment with the district court. Apparently the motion to vacate
judgment has not been acted upon.
The controlling issue on appeal is No. 1 and in view of
the fact the case must be returned to the trial court, we will
discuss only that issue--due process.
Appellant argues that due process, in its most rudimen-
tary form, requires that a party have his day in court and appel-
lant was deprived of his day in court by the termination of the
trial. He relies generally on several state and federal cases,
such as Thompson v. Tobacco Root Co-op, (1948) 121 Mont. 445, 450,
"It is well settled that notice and opportunity
to be heard are essential elements of due process."
More specifically, appellant relies upon an Arizona case,
Marco v. Superior Court, (1972) 17 Ariz.App. 210, 496 P.2d 636.
In Marco, the Arizona Supreme Court overturned a restraining
order which had been issued on the basis of the pleadings alone.
The trial court had refused to conduct a hearing on the matter
even though the complaining party strongly objected. The supreme
court held that the refusal of the district court to conduct a
hearing deprived complainant of her right to due process under
the Fourteenth Amendment, which " * * * means that no citizen
shall be deprived of his life, or his liberty, or his property,
without reasonable notice and reasonable opportunity to be heard
according to the regular and established rules of procedure."
Marco, 496 P.2d at 638.
Respondent does not seem to question that the action of
the district court would be error if properly objected to, but
argues that appellant waived any error by failing to object to
the procedure. Respondent points to a long line of Montana cases,
not involving the precise factual situation as here but stating
the general rule that an objection raised for the first time on
appeal is not timely. Berdine v. Sanders County, (1974) 164 Mont.
206, 520 P.2d 650; Boehler v. Sanders, (1965) 146 Mont. 158, 404
P.2d 885.
Respondent states appellant was not deprived of notice
and opportunity to be heard--he had the opportunity but failed
to avail himself of it. The nearest case supporting respondent's
(1972)
position is Turner v. Turner,/l57 Mont. 262, 484 P.2d 1303.
This Court in Turner dismissed an appeal from findings of fact
and conclusions of law because appellant failed to except to the
findings, conclusions and judgment at the District Court level.
In reply appellant requests this Court to consider and
apply the "Plain error" doctrine under which this Court may con-
sider questions raised for the first time on appeal if the error
affects the substantial rights of the parties. 5 Am Jur 2d Appeal
and Error 5 549, p. 34; 5 C.J.S. S 1220, p. 42. While this doc-
trine has not previously been recognized in this jurisdiction it
has nationwide recognition in both the Federal system and in the
courts of most of the state jurisdictions.
Ordinarily errors not raised below will not be considered
on appeal, however this rule is subject to the exception that
h the question is raised for the first time on appeal it
relates to the fundamental rights of the parties. As noted by
the Washington Supreme Court in the case of Maynard Investment
Co. v. McCann, 77 Wash.2d 616, 465 P.2d 657, 661:
"The exception to the rule is a salutary one.
Courts are created to ascertain facts in a con-
troversy and to determine the rights of parties
according to justice. Courts should not be con-
fined by the issues framed or theories advanced
by the parties if the parties ignore the mandate
of a statute or an established precedent * * *."
See also State v. Kaliman, 10 Wash.App. 41, 516 P.2d 1096; Kudrna
(1977)
Comet Corporation,/ Mont. t
See M.R.Ev., Rule 103.
We note here that appellant alleges that there is no
record that his trial attorney ever saw the trial court's findings
of fact and conclusions of law, and that he had no opportunity to
object. However, the record shows counsel made a motion to vacate
judgment .
In adopting the "plain error" doctrine we believe that
appellate courts have a duty to determine whether the parties be-
fore them have been denied substantial justice by the trial court,
and when that has occurred we can, within our sound discretion,
consider whether the trial court has deprived a litigant of a
fair and impartial trial, even though no objection was made to
the conduct during the trial.
In adopting this rule we hold that the exception will
not be applied where the failure or refusal to raise the issue
in the trial court was conscious and intentional on the part of
trial counsel. Johnson v. United States, 318 U.S. 189, 87 L.Ed.
704, 63 S.Ct. 549, reh.den. 318 U.S. 801, 87 L.Ed.1164, 63 S.Ct.
Judgment is reversed and the cause is returned to the
District Court for a new trial.
W e concur:
iw
Chief J u s t i c e