N O. 93-035
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
IN RE THE MARRIAGE OF
KATHLEEN MARGARET HAYES,
Petitioner and Respondent.
and
ROBERT EHRGOOD HAYES,
Respondent and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Ed McLean, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Christopher Daly, Attorney at Law,
Missoula, Montana
For Respondent:
Kerry Newcomer, Geiszler & Newcomer,
Missoula, Montana
Submitted on Briefs: May 13, 1993
Decided: July 8, 1993
Filed:
Justice William E. Hunt. Sr., delivered the opinion of the Court.
Appellant Robert Ehrgood Hayes appeals from a decision of the
District Court of the Fourth Judicial District, Missoula County,
adopting the Special Master's decision to use and apply the Child
Support Guidelines in effect at the time of trial.
We affirm.
The following issue on appeal is dispositive of the case:
Did the District Court err in adopting the Special Master's
recommended findings of fact?
Petitioner/Respondent Kathleen Margaret Hayes brought an
action for dissolution of her marriage to Robert. On June 22,
1992, the trial was conducted before a Special Master upon referral
by the District Court. On July 6, 1992, the Special Master filed
her decision requiring that the Montana Department of Social and
Rehabilitative Services Child Support Division (CSED) calculate the
child support. By the time the parties' applications were
submitted, the CSED had adopted new guidelines which were used to
calculate the parties' child support obligation. Kathleen objected
to the process of delegating the calculation to the CSED and to the
use of the new guidelines. She also stated that there were errors
in the calculation. The Special Master agreed with Kathleen that
the guidelines in effect at the time of trial on June 22, 1992,
were the appropriate guidelines to use, and recommended to the
District Court a calculation based on those guidelines because the
case had been heard, considered, and ruled upon prior to July 31,
1992, the effective date for the New Child Support Guidelines. The
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District Court adopted the Special Master's findings of fact and
conclusions of law and granted a decree of dissolution. Robert
appeals from the District Court's adoption of the Special Master's
decision and claims that the trial court should have used the
guidelines in effect on July 31, 1992.
Did the District Court err in adopting the Special Master's
recommended findings of fact?
The Special Master's child support calculation recommendation
was filed on October 9, 1992. Robert did not object until
November 12, 1992. On November 10, 1992, the District Court had
already adopted the Special Master's recommended findings of fact,
conclusions of law, and decree of dissolution of marriage. The
District Court Judge cited Rule 53(e)(2), M.R.Civ.P., as authority
for accepting the Special Master's findings of fact unless clearly
erroneous.
Rule 53(e), M.R.Civ.P., also sets out the requirements for
objecting to the Special Master's findings of fact:
(2) In nonjury actions. In an action to be tried
without a jury the court shall accept the master's
findings of fact unless clearly erroneous. Within 10
days after being served with notice of the filing of the
report any party may serve written objections thereto
upon the other parties. Application to the court for
action upon the report and upon objections thereto shall
be by motion and upon notice as prescribed in Rule 6(d).
The court after hearing may adopt the report or may
modify it or may reject it in whole or in part or may
receive further evidence or may recommit it with
instructions.
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Robert clearly violated the ten day limit set out in
Rule 53(e)(2), M.R.Civ.P., when he waited until November 12, 1992,
to object to the Special Master's child support calculation,
Robert attempts to condone his untimely objection by arguing
that he was concerned about the parties' limited financial means.
He argues that if he had filed a written objection the issues would
have been set for an additional hearing, thereby incurring
additional expenses. However, Robert's timely objection was
required to preserve the issue for the appeal he is now pursuing
with the same limited financial means. We have consistently held
that we will not address an issue on appeal unless the appellant
has first presented it to the district court. Carl Weissman &
Sons, Inc. v. Paulson (1987), 227 Mont. 459, 462, 739 P.2d 494,
495.
Robert's other attempt to excuse his untimely objection is
based on his interpretation of Rule 53(e)(2), M.R.Civ.P. He argues
that the rule is strictly permissive rather than mandatory since it
does not state that a party llmust" object or lose the right to
contest the findings. We disagree. There can be no other reason
for setting a ten day limit than to require that objecting parties
meet that limit or waive their rights to object. We hold that the
permissive word "may" refers to the permission given to "any party"
to object. The objection must be made within the ten day limit.
Because of Robert's failure to timely object in writing to the
child support calculation proposed by the Special Master and filed
on October 9, 1992, we decline to review the matter on appeal.
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Accordingly, we do not reach the other issues relating to child
support presented on appeal. The District Court did not err in
accepting the Special Master's recommended findings of fact.
We affirm.
Justice
We concur:
Chief Justice
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July 8, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
CHRISTOPHER DALY
Attorney at Law
101 E. Broadway, Suite 200
Missoula, MT 59802
KERRY NEWCOMER
GEISZLER & NEWCOMER
26.5 West Front
Missoula, MT 59802
ED SMITH
CLERK OF THE SUPREME COURT
STAT& OF ,MONTANA