Marriage of Shapard Cruse

No. 05-164
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 205NIN RE THE MARRIAGE OF
NANCY SHAPARD,
Petitioner and Appellant,
v.
JOSEPH CRUSE,
Respondent and Respondent.
APPEAL FROM: The District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DR 03-972,
Honorable Susan P. Watters, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Linda L. Harris, Harris Law Firm, P.C., Billings, Montana
For Respondent:
Jill Deann LaRance, LaRance & Syth, P.C., Billings, Montana
Submitted on Briefs: June 7, 2006
Decided: August 29, 2006
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, Supreme Court cause number and disposition shall be included in
this Court’s quarterly list of noncitable cases published in the Pacific Reporter and
Montana Reports.
¶2 Nancy Shapard (“Shapard”) and Joseph Cruse (“Cruse”) were married on
December 31, 1999. They have one minor child, Sarah. The District Court issued a
decree of dissolution on September 30, 2004. The court awarded Cruse custody of Sarah
and ordered Shapard to pay child support. In calculating Shapard’s income, the court
included the rental value of housing that Shapard receives for free from her parents.
¶3 On appeal, Shapard argues that the District Court abused its discretion by
imputing income to Shapard based on the rental value of her free housing. Shapard,
however, included her own estimate of the rental value of this property as income on the
final child support calculation that she filed with the District Court. During the
dissolution hearing, Shapard testified about the rental value of this property on direct
examination and cross-examination and did not object to including it as income. In
addition, Shapard failed to object when Cruse offered an exhibit that includes the rental
value of her free housing as a discrete source of income. “Failure to object to an alleged
error precludes an appellant from raising that issue on appeal.” Buhr ex rel. Lloyd v.
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Flathead Co., 268 Mont. 223, 254, 886 P.2d 381, 400 (1994) (quoting Barrett v.
ASARCO, Inc., 245 Mont. 196, 205, 799 P.2d 1078, 1083 (1990)). Having included the
rental value of her free housing as income in documents filed with the District Court, and
having never brought this alleged error to the attention of the District Court, Shapard may
not raise it for the first time on appeal.
¶4 It is appropriate to decide this case pursuant to our Order of February 11, 2003,
amending Section 1.3 of our 1996 Internal Operating Rules and providing for
memorandum opinions. It is manifest on the face of the briefs and the record before us
that the appeal is without merit because the findings of fact are supported by substantial
evidence, the legal issues are clearly controlled by settled Montana law which the District
Court correctly interpreted, and there was clearly no abuse of discretion by the District
Court.
¶5 We affirm.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ PATRICIA COTTER
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