NO. 96-276
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
IN RE THE MARRIAGE OF
KARREN FAYE KANE,
Petitioner and Appellant,
and
ALLAN VICTOR FRIBERG,
Respondent and Respondent.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas McKittrick, Judge presiding
COUNSEL OF RECORD:
For Appellant:
Mark Q. Schmitt, Attorney at Law, Bozeman, Montana
For Respondent:
Jerrold L. Nye; Nye & Meyer, Billings, Montana
Submitted on Briefs: November 7, 1996
Decided: November21, 1996
Filed:
Justice Karla M. Gray delivered the Opinion of the Court
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of the Supreme Court and by a report of its
result to State Reporter Publishing Company and West Publishing
Company.
Karren Faye Kane (Karren) appeals from the findings of fact,
conclusions of law and order entered by the Eighth Judicial
District Court, Cascade County, dismissing her petition for
dissolution on the basis that she failed to establish that she and
Allan Victor Friberg (Allan) had a common law marriage. We affirm.
Karren raises the following restated issues:
1. Did the District Court err in allowing Allan to present
evidence contravening the existence of a common law marriage?
2. Did the District Court err in holding the trial on
Karren's petition for dissolution on November 21, 1995?
3. Did the District Court err in deciding the substantive
issues in Karren's petition for dissolution after a hearing
scheduled on her motion to compel discovery?
Karren filed a petition for dissolution of her common law
marriage to Allan on April 1, 1994. She alleged that the common
law marriage began in May of 1989, that it was irretrievably
broken, that there were no children of the marriage and that the
parties had accumulated property and debts. She sought dissolution
of the common law marriage, equitable division of the real and
personal property, Allan's liability for the marital debts,
maintenance in the amount of $2,500 and attorney fees and costs in
bringing the petition.
Allan responded to Karren's petition by admitting the
existence of the common law marriage and the accumulation of real
and personal property. He denied the accumulation of debts and his
responsibility for same and also denied Karren's entitlement to
maintenance, attorney fees and costs.
Later in April of 1994, Karren and Allan entered into a
stipulation pursuant to which, among other things, Allan agreed to
make house and utility payments and to pay Karren $200 per month
maintenance. The District Court entered an order adopting the
parties' stipulation on April 20, 1994.
Both Karren and Allan changed counsel thereafter and filed
numerous motions. One of Allan's motions, filed March 23, 1995,
was for leave to amend his answer to deny the existence of a common
law marriage; he asserted that his former counsel had improperly
advised him on that matter. After a three and one-half month
delay, Karren objected to the proposed amendment on the grounds
that too much time had passed and the amendment would prejudice
her. Among Karren's motions were a motion to compel production of
documents and to answer interrogatories and a motion to compel
payment by Allan of the amounts contained in the April 20, 1994,
stipulated order. The District Court did not rule on the motions.
On August 10, 1995, the District Court set a November 21,
1995, trial date for Karren's petition for dissolution. On
September 26, 1995, the court scheduled an October 24, 1995,
hearing on Karren's motion to compel. The latter scheduling order
did not specify whether it related to her motion to compel
discovery or her motion to compel payment. On Allan's motion and
with Karren's consent, the District Court later rescheduled the
hearing on Karren's motion--specifying her motion to compel
payment--for November 21, 1995, the same day as the trial on her
petition for dissolution.
At trial, Karren submitted evidence in support of the
existence of a common law marriage between herself and Allan.
Allan submitted evidence that no such common law marriage existed.
At the end of the trial, the District Court requested--and the
parties later filed--briefs on the common law marriage issue.
The District Court subsequently entered findings of fact,
conclusions of law and an order. The findings, which are not
challenged by Karren, summarized the evidence received at the
trial. The conclusions, also not challenged by Karren, addressed
the legal principles relating to common law marriages in Montana.
In pertinent part, the District Court concluded that Karren failed
to establish that she and Allan ever mutually agreed to be married
and, on that basis, further concluded that the parties had not
entered into a common law marriage. Absent the existence of a
marriage, the court dismissed Karren's petition for dissolution.
Karren appeals. As noted above, however, she does not
challenge the findings or conclusions made by the District Court.
As a result, we do not review those findings and conclusions
1. Did the District Court err in allowing Allan to
present evidence contravening the existence of a common
law marriage?
Karren contends that the issue of whether the common law
marriage existed was not properly before the District Court. The
primary thrust of her argument is that she was "little prepared" to
try the issue because of Allan's original admission that the common
law marriage existed and, therefore, that she was prejudiced by the
court's decision to try the issue. On the basis of the record
before us, her argument is without merit.
By the time of the trial on Karren's petition for dissolution,
Allan's motion for leave to amend his answer to deny the existence
of the common law marriage had been before the District Court for
nearly eight months and Karren had responded to that motion. In
addition, Allan filed a trial brief nearly six weeks before the
trial date raising the existence of the common law marriage as the
first issue to be considered by the court. Allan also supplied
Karren, prior to trial, with the names of the witnesses he intended
to call on that issue. On such a record, Karren's claims of
surprise and resulting lack of ability to try the issue are not
convincing. Nor does the record reflect any effort by Karren to
obtain a continuance of the trial on this basis.
Furthermore, the trial transcript is clear that Karren
acquiesced in the trial of the issue. At the outset of the trial,
Allan's counsel summarized the issues before the court, stating the
first such issue as "whether or not there is in fact a common law
5
marriage." After Allan's counsel listed the remaining issues, the
District Court inquired of Karren's counsel whether he agreed about
the issues. Counsel did not object to trying the question of
whether the common law marriage existed; indeed, he implicitly
agreed that the issue was before the court by stating "I would
raise one further point, Your Honor." Nor did Karren's counsel
object at any later point in the proceedings that the issue was not
properly before the court. Rather, counsel again agreed--this time
explicitly--at a later point, stating "[ilf we get past the issue
of common law marriage today, Your Honor, I believe we should take
up the stipulation as to payments that were [sic] issued in April."
Karren did not object to the District Court's decision to try
the question of whether a common law marriage existed. She did not
object to admission of testimony on the issue. Nor did she
preserve the issue for appeal in any other manner.
While she correctly contends that her direct examination of
Allan during her case in chief raised the issue of his earlier
admission that the common law marriage existed, Karren apparently
misconstrues the difference between objecting to an issue being
properly before the court and presenting evidence in support of her
position regarding the appropriate resolution of the issue. Her
direct examination of Allan regarding his previous admission
constituted an additional acquiescence in--ratherthan an objection
to--the District Court's trial of the issue of whether the common
law marriage existed.
Under clearly established Montana law, a party cannot raise
issues for the first time on appeal. In re Marriage of Schnell
(19951, 273 Mont. 466, 472, 905 P.2d 144, 148 (citation omitted).
Thus, we decline to address whether the District Court erred in
allowing Allan to present evidence contravening the existence of a
common law marriage.
2. Did the District Court err in holding the trial on
Karren's petition for dissolution on November 21, 1995?
Karren's counsel contends that he was advised on the day
before the scheduled trial that the "hearing" set for November 21
was continued to a later date, that he released his witnesses on
that basis and, as a result, that he was "less than fully prepared
to take part. " Karren argues that, pursuant to Rule 60 (b),
M.R.Civ.P., she should be relieved of the District Court's decision
on her petition because of inadvertence or surprise. This
argument, too, is without merit.
At the outset, we note that it is difficult to ascertain
whether Karren's arguments in this regard relate to a purported
cancellation of the hearing on her motion to compel or of the trial
on her petition, or both. The record does not contain any order or
minute entry continuing either matter, and counsel's assertions are
not based on any other record-based information. The record
reflects that both the trial on Karren's petition and the hearing
on her motion to compel payment were scheduled for November 21,
1995.
Karren did move for a continuance of the trial on November 20,
the day before the trial was scheduled to take place. The basis
for her motion was that she had not received from Allan requested
information regarding valuation of marital assets. Her motion for
a continuance specifically requested that the hearing on her motion
to compel payment take place the following day as scheduled. Allan
filed a response, objecting to an eve-of-trial continuance. As
noted above, the record does not reflect any action by the District
Court in response to Karren's motion.
Notwithstanding any confusion about a purportedly continued
hearing or trial, however, Karren did not object or otherwise
preserve this issue for appeal. While the District Court granted
a recess at the outset of the trial on November 21, 1995, to permit
Karren's counsel's paralegal to arrive, with counsel's file, Karren
neither moved for a continuance because of confusion over the
scheduling nor objected to proceeding on the basis that witnesses
were not available for the matters at issue in her petition for
dissolution. Nor did she move for a new trial or other
postjudgment relief in the District Court. In this latter regard,
Karren's reliance here on Rule 60(b), M.R.Civ.P., is also
unavailing because she did not present those arguments to the
District Court. We decline to address this issue raised for the
first time on appeal. Marriase of Schnell, 905 P.2d at 148.
3. Did the District Court err in deciding the
substantive issues in Karren's petition for dissolution
after a hearing scheduled on her motion to compel discovery?
Karren contends that the November 21, 1995, proceeding was
scheduled as a hearing on her motion to compel discovery and that
she was unprepared to address the substantive issues relating to
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her petition for dissolution. Her arguments on this issue are
unclear and confused, at best. After a close scrutiny of the
record, however, we cannot ascertain any set of circumstances under
which her argument in this regard would have merit.
First, as discussed above, both the trial on Karren's petition
for dissolution and the hearing on her motion to compel payment
pursuant to the stipulated order--not her motion to compel
discovery--werescheduled for November 21, 1995. Karren points to
nothing of record in support of her fundamental assertion here that
her motion to compel discovery was to be heard on November 21,
1995. In this regard, the trial transcript contains several
references by Karren's counsel to the fact that her motion to
compel payment was before the court. Counsel is cautioned that
this Court does not look with favor on either misrepresentations of
the record or a "make it up as you go alongu approach to appellate
advocacy.
Moreover, as discussed at sufficient length above, Karren did
not object to proceeding with the trial on her petition for
dissolution and did not otherwise preserve this issue for appeal.
We decline to address this issue raised for the first time on
appeal. See Marriaqe of Schnell, 905 P.2d at 148.
Affirmed .
We concur: