Archive for the ‘Appellate Practice’ Category

More Detailed Findings Required to Sustain Decision on Appeal

Thursday, April 30th, 2009

What are adequate findings supporting a trial court decision modifying maintenance? In In Re Marriage of Webster 2009 MT 147N the Montana Supreme Court made it clear that these oral findings are not enough:

“. . . I understand Mr. Webster would like to quit working and certainly understand that, and you’ve worked hard and you’ve worked long, but it sounds like Mrs. Webster is in an increasingly difficult circumstance, and so really what this boils down to in a sense is whether you help pay for her care or whether the taxpayers help pay for her care, and to me, that’s kind of a difficult position to put a Court into. I appreciate the fact that you are willing to try and help out and pay $250 a month. I think what I am going to do is, I’ll cut your obligation in half, to $375 a month. I definitely understand that you have a change in circumstances, and you need some give here, but I also believe that you have an obligation to support your exwife.” See Appellant’s Brief, page 10.

This case concerned an ex-husband wishing to retire and to reduce his maintenance obligation to his fully disabled ex-wife. The Montana Supreme Court remanded the case to the trial court with instructions to the trial court to simply forward its findings and conclusions back to the Supreme Court for review: “Accordingly, we remand this matter to the District Court for entry of appropriate findings of fact and conclusions of law. The District Court shall forward its findings and conclusions to the Clerk of the Supreme Court for our review.” The case was not reversed.

Posted in Appellate Practice, CHILD SUPPORT AND MAINTENANCE | No Comments »

4 Attorneys, 3 Custody Evaluations, 3 Hearings = 1 Vexatious Appeal

Thursday, April 9th, 2009

Father and mother adopt a stipulated parenting plan for their 3 year old in 2003. In the spring of 2004 father files a motion for an order of protection against the mother. Denied by the trial court. In the summer of 2004, Father files petition to change the parenting plan. Trial court adopts mother’s proposed amended plan, not father’s. In early 2007, father files petition to change the amended parenting plan. In June of 2008 the trial court again ruled in mother’s favor, amending the plan and holding father in contempt for his failure to follow the prior parenting plan. During the five years between the 2003 stipulated parenting plan and the latest amended parenting plan in 2008, father had employed serially 4 different attorneys. The parents and their child, at father’s insistence, had gone through 3 full custody evaluations.

Father appeals. The Montana Supreme Court not only affirms the trial court holding, but finds the appeal vexatious and awards mother her attorney fees on appeal. The case is In Re Marriage of Sartorie 2009 MT 117N. It’s a non-cite case.

Posted in Appellate Practice, Uncategorized | No Comments »

Comments on Montana Appellate Rule Changes

Tuesday, April 7th, 2009

I submitted these proposed additional changes to the Montana Appellate Rules in my letter of March 28, 2009 to the Montana Supreme Court. March 28, 2008 Comments to Proposed Appellate Rule Changes

Posted in Appellate Practice, Uncategorized | No Comments »

Using Initials for Parents’ Names

Monday, March 23rd, 2009

In two recent cases, a parenting plan case and a divorce case with children, the Montana Supreme Court has required the parties to replace the parents’ names with initials. In Re the Marriage of R.M. and M.M. 2009 MT 52N the Court refused to allow the Appellant’s brief to be filed until the Appellant substituted initials for the names of the parents. Section 4.50 (c)(3) of the Rules for Privacy and Public Access to Court Records in Montana (”Access Rules”) requires children’s names to be redacted from published court records. But there is no mention in the Access Rules of redacting the names of any adults. In its Order issued August 11, 2008 sending the Appellant’s brief back, the Court acknowledged this, but declared “… we realize that the Rules do not require the names of the adult parties to be protected from public access; however, in order to fully comply with Section 4.50(c)(3), it is generally necessary that initials be used in place of the parents’ names as well.”

Further checking confirmed that the Court had returned an Appellee’s Brief in a parenting plan case as well. In Re the Parenting of K.A.R., a Minor, D.R., A.R. and J.M.R., Petitioners and Appellees, and D.E.R. Respondent and Appellant, 2009 MT 73N, decided March 11, 2009, the Court issued its Order returning the Appellee’s brief on July 9, 2008.

Deleting parents names in divorces and parenting plan actions will protect the identities of the children. And I am grateful the Court is obviously taking pains to protect the privacy of our most vulnerable citizens. But this new policy will create other practical problems for the litigants. For one, title companies will find it difficult to independently run title on the homes of the litigants.

Posted in Appellate Practice, Family Law, Parenting Plan Evaluations, Uncategorized | No Comments »