Bolich v. Bolich , 199 Mont. 45 ( 1982 )

No. 82-18
IN THE SUPREME COURT OF THE STATE OF MONTANA
1982
JON LLEWELLYN BOLICH,
Petitioner and Appellant,
VS .
BARBARA KAY BOLICH,
Respondent and Respondent.
Appeal from: District Court of the Fourth Judicial ~istrict,
In and for the County of Missoula
Honorable James Wheelis, Judge presiding.
Counsel of Record:
For Appellant:
Theodore P. Cowan, Missoula, Montana
For Respondent :
Datsopolous, MacDonald & Lind, Missoula, Montana
Submitted on briefs: April 22, 1982
Decided: July 6, 1982
Mr. Justice Fred J. Weber delivered the Opinion of the
Court.
Husband petitioned for dissolution of marriage in the
Missoula County District Court. The marriage was dissolved
by decree and remaining issues were set for trial. Husband
appeared on the date of trial without counsel and requested a
continuance. Continuance was denied and trial was held
without counsel representing Husband. Husband's motion for
new trial was denied. We affirm the District Court.
Husband and Wife were married April 3, 1976; one child
was born of the marriage. Husband filed for dissolution of
the marriage on February 27, 1980. Following a child custody
hearing on March 13, 1980, custody of the child was awarded
to Wife. On January 28, 1981, the District Court issued a
decree terminating the marriage and reserving other issues
for trial. Trial was then set for May 11, 1981. Both
Husband and Wife and their respective counsel had extended
notice of the trial date. On May 11, 1981, Wife appeared
with her counsel, ready for trial. Husband appeared without
his counsel and requested a continuance. An extended dialogue
took place between Husband, the court and counsel for Wife.
Counsel for Wife explained that he understood an agreement
had been reached over the telephone with Husband's counsel
as to the provisions to be inserted in the decree regarding
property settlement and child custody. Husband denied that
such an agreement had been reached. Husband further indicated
that he had been looking for another attorney. The court
pointed out that no trial date was available prior to December,
which would have necessitated a delay of more than seven
months. The court considered the nature of the case and the
lack of court approval for the absence of Husband's attorney,
and denied the request for a continuance. The court heard
testimony on the part of both Wife and Husband and considered
other evidence. The transcript indicates that the District
Judge was scrupulously careful to protect the rights of
Husband. He allowed Husband to cross-examine to the extent
he desired. In addition, the District Judge asked many
questions of both Husband and Wife in order to be certain
that all of the facts were before the court. A careful
review of the transcript does not disclose any areas in
which Husband was prejudiced by the absence of his counsel.
While this fact is not directly relevant, we note that the
record shows that the attorney for Husband was found to be
in contempt of court for his failure to appear at the May
11, 1981, trial and was fined. Husband's present counsel on
appeal is a different attorney.
The issues before the Court are:
(1) Did the District Court err in not granting Husband
a continuance in order that he might obtain the services of
an attorney to represent him at trial?
(2) Did the District Court err in awarding a dispropor-
tionately greater share of the marital property to Wife?
The continuance of a trial because of the absence of
evidence is controlled by section 25-4-501, MCA:
"A motion to postpone a trial on grounds of
the absence of evidence shall only be made
upon affidavit showing the materiality of the
evidence expected to be obtained and that due
diligence has been used to procure it."
Following the trial, the District Court intentionally waited
several months in order to grant Husband and his attorney an
opportunity to present any additional evidence or file any
motions. The District Court then entered the decree from
which the appeal is taken. The record does not show that
Husband contended additional evidence could have been presented
at the time of trial had he been represented by counsel. In
addition, the record does not disclose any indication subsequent
to trial of evidence which Husband contended should have
been allowed at the time of trial and which would have been
material to the determination of the issues. We recognize
that Husband may not have understood the procedure set forth
in the above section under which he was required to file an
affidavit. As previously indicated, we therefore carefully
reviewed the transcript. We do not find any indication in
the transcript of the absence of evidence which could have
been helpful to Husband. In fact, the District Court did an
excellent job of making certain that all of the evidence was
properly before it, asking many questions of both Wife and
Husband. In addition, the record discloses that there are
no complex issues of fact. his is a case in which a modest
amount of property was involved and in which the evidence of
earnings and debts was not complicated. The record indicates
that all of the evidence available to the parties in these
areas was properly before the District Court.
A continuance also may be granted by a trial court on
grounds other than absence of evidence. Section 25-4-503,
MCA (1979), the section in effect at the time of trial,
stated:
"Upon terms the court may, in its discretion,
upon good cause shown and in furtherance of
justice, postpone a trial or proceeding upon
other grounds than the absence of evidence."
As previously mentioned, the record fails to disclose any
good cause for a postponement. There is no indication in
the record of a benefit to be gained to Husband by a postponement.
Similarly, there is nothing of record to indicate that a
continuance which would have resulted in a seven month delay
was in furtherance of justice so far as Husband is concerned.
In our review of this matter of continuance, we are
also required to keep in mind the provisions of our Montana
Constitution which, in pertinent part, states in Article 11,
Section 16:
"Right and justice shall be administered with-
out sale, denial --
or delay." (Underscoring
added. )
As above stated, nearly 15 months had passed from the date
of Husband's filing a petition for dissolution to the date
of trial. This was a relatively simple marriage dissolution
case. Justice would not have been furthered if a delay of seven
additional months had taken place in order to have the
matter heard in December. To have granted such a delay
under the facts of this case would clearly have been a
denial of justice to Wife.
The denial of a motion for continuance is a matter
addressed to the sound discretion of the District Court. As
stated by this Court in State v. Harvey (1979), Mont.
"The denial of a motion for a continuance is
within the sound discretion of the District
Court and it is not error to deny such a
motion unless a clear abuse of discretion is
shown. (Case cited. ) "
We find a complete absence of abuse of discretion on the
part of the District Court and affirm the denial of a continuance
by the District Court.
In his second issue, Husband contends that the District
Court improperly gave an excessive or disproportionate
amount of property to Wife. We have carefully reviewed the
transcript in this regard as well. We find there is ample
evidence to support the conclusions of the District Court.
There are no areas in which Husband has pointed out a failure
to consider evidence actually before the court.
The standard for reviewing a property distribution has
been set forth by this Court in Creon v. Creon (1981),
Mont. , 635 P.2d 1308, 1309, 38 St.Rep. 1928, 1930, as
follows:
"In determining whether the trial court abused
its discretion, the reviewing court does not
substitute its judgment for that of the trial
court. The standard for review is whether the
trial court acted arbitrarily without employ-
ment of conscientious judgment or exceeded the
bounds of reason resulting in substantial in-
justice. (Cases cited. ) "
We find substantial evidence to support the holding of the
District Court and also find that the court acted with
conscientious judgment and that there has been no injustice
to Husband.
We affirm the District Court.
We Concur:
Chief P,t i c