Halldorson v. Halldorson, 13780

• Decision Date: 28 December 1977
• Docket Number: No. 13780,13780
• Citation: 573 P.2d 169,175 Mont. 170,34 St.Rep. 1553
• Parties: Carol Jo HALLDORSON, Plaintiff and Respondent, v. Joseph B. HALLDORSON, Defendant and Appellant.
• Court: Montana Supreme Court

Page 169

573 P.2d 169

175 Mont. 170

Carol Jo HALLDORSON, Plaintiff and Respondent, v. Joseph B. HALLDORSON, Defendant and Appellant.

No. 13780.

Supreme Court of Montana.

Submitted Dec. 6, 1977.

Decided Dec. 28, 1977.

Smith Law Firm, Helena, Robert J. Sewell, Jr., argued, Helena, for defendant and appellant.

Patterson, Marsillo & Tornabene, Missoula, Charles J. Tornabene, argued, Missoula, for plaintiff and respondent.

HARRISON, Justice.

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 parties' three year old son to respondent, ordered appellant to pay $150 per month child support, 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 temporary custody order, temporary child support, and an order preventing appellant from using the family home or disturbing the peace of respondent. Such order was made permanent pendente lite following a hearing.

Trial was set for December 15, 1976, at which time respondent (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 following 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 January 27.

There is no record of any objection by either party to 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 rudimentary form, requires that a party have his day in court and appellant 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, 193 P.2d 811, 814:

"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 position is Turner v....