In Re the Marriage of Purkett

No. 8 5 - 5 1 6
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986

IN RE THE MARRIAGE OF
JANET LYNN PURKETT,
Petitioner and Respondent,
and
RODNEY NEIL PURKETT,
Respondent and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John McCarvel, Judge presiding.

COUNSEL OF RECORD:

For Appellant:
Fausto G. Turrin, Great Falls, Montana

For Respondent:
Hilley & Loring; Emilie Loring, Great Falls,
Montana

Submitted on Briefs: March 6, 1 9 8 6
Decided: July 8, 1986

Filed: JUL 8 - 1986
.

#
z5iLL %#LClerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Rodney Neil Purkett, the father, appeals an order of
the Cascade County District Court increasing his child
support payments to $250 per month for each of two children.
On appeal, he raises issues concerning the District Court's
procedure at the hearing, visitation, increased child support
and the property settlement agreement. We affirm.
The father and Janet Lynn Purkett, the mother, divorced
in May 1983. The mother was awarded custody of the two
children with reasonable visitation to the father. At the
time, the mother and father were both employed full time and
the mother was awarded child support of $150 per month, per
child.
In February 1985 the mother requested an increase in
child support alleging a change in circumstances so
substantial and continuing as to make the original payment
unconscionable. She had lost her job and was unable to find
another position. In order to prepare for a career which
would permit her to support the children, she enrolled in
college. She had earned $2,400 in 1984 from part-time
employment. The father's earnings in 1984 were between
$29,600 and $29,800.
The father responded by alleging the mother failed to
comply with the property settlement agreement made in 1982,
failed to allow him reasonable visitation and made statements
to the children in an effort to estrange them from him. He
asked that she be held in contempt. Both parties requested
costs and attorney's fees.
The District Court held a hearing on April 29, 1985 on
the motions made by the parties. The judge conducted the
hearing in his chambers with the parties, their counsel, a
deputy clerk of court and a court reporter present. After
asking about the purpose of the hearing, the judge briefly
questioned both parties about what issues were raised and
then swore them in to testify. The questioning of the
parties was conducted by the judge rather than counsel. He
refused to hear testimony of a claimed vocational expert on
potential jobs for the mother, offered by the father. Neither
party objected to the hearing being held in chambers, the
manner of examination or the refusal to hear testimony.
After the hearing, the parties unsuccessfully attempted
to reach a compromise on the issues. On July 15, 1985, the
mother submitted proposed findings of fact, conclusions of
law and order. The father offered none. The District Court
adopted the mother's proposed findings, conclusions and order
verbatim. The mother was found not to be in contempt
concerning the claimed visitation restrictions and the
argument over the property settlement agreement. The
District Court found a lack of substantial evidence that she
had attempted to estrange the children from their father.
The father was ordered to pay the increased child support
with the mother retaining custody and the father retaining
liberal visitation. Each party was responsible for their own
costs and attorney's fees. The order was in accord with the
District Court's verbal instructions at the hearing.
The father appeals this order raising three issues:
(1) Did the District Court violate the father's right
to due process by holding the hearing in chambers,
questioning the parties and refusing offered evidence?
 (2) Do the findings of fact on the need for increased
child support and the failure to make findings of fact on the
visitation dispute constitute clear error?
(3) Did the District Court err by concluding there was
not substantial evidence of noncompliance with the property
settlement agreement?
In the first issue the father argues that he did not
object to the procedural improprieties because to do so would
have been fruitless and that counsel for the father did not
want to alienate the judge, even though he felt the procedure
used constituted plain error. He urges this Court to address
the issue because this amounted to a failure to receive a
fair and impartial judge thus affecting his substantial
rights. Rule 103 (d), M. R. Evid. , permits this Court to take
"notice of plain errors affecting substantial rights although
they were not brought to the attention of the court." In
Halldorson v. Halldorson (1977), 175 Mont. 170, 573 P.2d 169,
a marriage dissolution proceeding, the trial judge
discontinued the trial after the wife testified but before
the husband presented his case. Neither party objected and
the trial was never reconvened. This Court adopted the plain
error doctrine permitting a reviewing court to consider
whether a trial court deprived a litigant of a fair and
impartial trial, even though no objection had been made.
However,
[tlhe Montana Commission on Rules of
Evidence has emphasized that the plain
error doctrine "will be used in
exceptional cases and should not be
relied upon by counsel." Commission
Comments, Rule 103 (d) Mont. R. Evid.
(1977). Indeed, in Halldorson, supra, we
held that "the [plain error] 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." 175 Mont. at
174, 573 P.2d at 172.
Reno v. Erickstein (Mont. 1984), 679 P.2d 1204, 1207, 41
St.Rep. 537, 540. Here, counsel for the father decided as a
matter of "trial tactics" to not object in order to avoid
alienating the judge. This was a conscious and intentional
choice on his part. As such, the plain error exception will
not be applied. "It has long been the rule of this Court
that on appeal we will not put a District Court in error for
a ruling or procedure in which the appellant acquiesced,
participated, or to which appellant made no objection."
(Citations omitted.) Green v. Green (1978), 176 Mont. 532,
536, 579 P.2d 1235, 1237. We hold that the father's
voluntary participation in the procedures of which he now
complains and the intentional choice to not object precludes
this Court's review of this issue.
In the second issue the father argues that no findings
were made on the question of visitation and that the record
does not support the findings on increased child support.
The District Court addressed the visitation issue by finding
the father had been awarded reasonable visitation and noting
he alleged the mother had not permitted the visitation and
she had made efforts to estrange the children from him. The
District Court concluded that there was a lack of substantial
evidence that the mother had attempted or caused any
estrangement. In a discussion, the District Court cautioned
the parties against disparaging one another in front of the
children and encouraged liberal visitation. Finally, the
District Court stated in its order that the father retained
liberal visitation. We find no merit in the father's
contention that the question of visitation was not addressed.
 Section 40-4-208 (2)(b), MCA, states the requirements
for modifying child support:
Whenever the decree proposed for
modification contains provisions relating
to maintenance or support,
modification ...may only be made:
(i) upon a showing of changed
circumstances SO substantial and
continuing as to make the terms
unconscionable.
The standard of review is whether a district court abused its
discretion in modifying the amount of child support. In re
the Marriage of Firman (Mont. 1980), 610 P.2d 178, 37 St.Rep.
888. The father must show that "the facts clearly
preponderate against the District Court's ruling to gain
reversal." (Citation omitted.) In re Marriage of McNeff
(Mont. 1983), 673 P.2d 473, 475, 40 St.Rep. 2050, 2051. In
McNeff, this Court held that the mother's loss of her job was
a sufficient change in circumstances to make the original
amount support unconscionable. There, this Court
considered the relative needs and abilities of the parties
and "how close to this balance the present arrangement is."
McNeff, 673 P.2d at 475, 40 St.Rep. at 2052.
In the case at bar, the record and findings both
reflect the following: (1) the mother requested an increase
in child support after she lost her full-time job; (2) she
was unable to find other full-time employment and enrolled in
college to prepare for a career which would enable her to
support the children; (3) in 1984, she earned $2,400 from
employment; and (4) the father puts a substantial portion of
his income into savings and tithing to his church. The
findings also noted that by using the parties' 1984 income
from their W-2 forms and applying the formula developed in
Carlson v. Carlson (Mont. 1984), 693 P.2d 496, 41 St.Rep.
2419, the father's total child support would be about $514
per month. When these figures were discussed at the hearing
the father did not challenge the figures used or the result
of applying the Carlson formula. The mother's loss of her
job was a sufficient change in circumstances to justify
raising child support. The findings are based on the
standards of 5 40-4-208(2) (b), MCA, and are in accord with
the decision in McNeff, supra. We hold that the District
Court did not err by increasing the amount of child support.
The father also objects to the District Court's
verbatim adoption of the mother's proposed findings and
conclusions. We continue to disapprove of the wholesale
adoption of proposed findings submitted by a party. See In
re Marriage of Jensen (Mont. 1981), 631 P.2d 700, 703, 38
St.Rep. 1109, 1113. However, such adoption is not error per
se.
- Here, as in In re Marriage of Benner (Mont. 1985) , 711
P.2d 802, 805, 42 St.Rep. 1943, 1947, the proposed findings
are "sufficiently comprehensive and pertinent to the issues
to provide a basis for decision and . . . are supported by
the evidence presented." We will not reverse on this basis.
The father claimed below that the mother failed to
comply with the property settlement agreement. His third
issue on appeal is whether the District Court erred by
concluding substantial evidence did not support this claim.
This Court will not disturb the findings and conclusions of a
district court if they are supported by substantial, credible
evidence. In re Marriage of Sarsfield (Mont. 1983), 695 P.2d
473, 40 St.Rep. 1736. The evidence is viewed in light
favorable to the prevailing party. Lacey v. Herndon (Mont.
1983), 668 P.2d 251, 40 St.Rep. 1375. Here, the father
argued that the mother sold tools which were his under the
terms of the property settlement agreement. The District
Court noted that the decree did not itemize the tools. The
mother testified that, after an argument over other personal
property, she told the father to take all of his things from
the house so that he would not blame her for any further
missing items. She stated that he took "every imaginable
tool." She then sold an air compressor that remained at the
house. The father sought to have the mother held in
contempt, claiming she sold a ladder, a wheel barrow, and an
air compressor which were tools awarded to him in the
property settlement agreement. At trial he admitted taking
all the tools he could find from the house. The District
Court concluded that this evidence showed the father took all
the personal property he wanted and that there was a lack of
substantial evidence showing any noncompliance with the
property settlement agreement. Viewing the evidence in a
light favorable to the mother, we hold that the District
Court's findings and conclusions are supported by substantial
credible evidence. ,/

We Concur: