In Re the Marriage of McMahon

No. 01-733
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 198IN RE THE MARRIAGE OF
RAYMOND JOSEPH McMAHON,
Petitioner, Respondent, and Cross-Appellant,
and
GWEN ELIZABETH McMAHON
Respondent and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Russell C. Fagg, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gwen Elizabeth Gardner, f/k/a Gwen Elizabeth McMahon, Billings, Montana
(pro se)
For Respondent:
Mark D. Parker, Casey Heitz, Parker Law Firm, Billings, Montana
Submitted on Briefs: March 28, 2002
Decided: September 5, 2002
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Appellant Gwen Elizabeth McMahon, appearing pro se, appeals
from the findings of fact, conclusions of law, and decree of
dissolution entered by the Thirteenth Judicial District Court,
Yellowstone County. We affirm.
¶2 Gwen purports to raise three issues for our review. However,
we will not restate the issues presented because the determinative
issue in this case is whether we should dismiss Gwen’s appeal for
failure to comply with the Montana Rules of Appellate Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 Gwen and Respondent Raymond Joseph McMahon (R.J.) were
married in Hawaii on June 12, 1991. Prior to the marriage, Gwen
gave birth to three daughters, none of which were fathered by R.J.
The District Court found that Gwen brought little to the marriage
as compared to R.J.’s substantial premarital assets. During the
marriage, Gwen assisted R.J in the operation and management of his
liquor and gaming establishment located in Billings, Montana. R.J.
provided significant financial support to Gwen’s children during
the course of the parties’ marriage. The parties received no
financial contribution from the children’s natural father.
¶4 On November 16, 2000, R.J. filed a petition to dissolve his
marriage to Gwen. The case proceeded to a non-jury trial on July
12, 2001. Both parties were represented by counsel at trial.
Following a one-day trial, the District Court entered its findings
of fact, conclusions of law, and decree of dissolution. The
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District Court itemized the premarital and marital assets and
valued each asset accordingly. Pursuant to the District Court’s
property distribution, Gwen received the parties’ 1999 Jaguar, a
certificate of deposit worth $20,000, a cash bond worth $10,000,
some personal property, and a cash award of approximately $246,000.
On August 29, 2001, Gwen, appearing pro se, filed a notice of
appeal “from the District Court’s Findings of Fact, Conclusions of
Law and Decree dated July 30, 2001.” On September 4, 2001, R.J.
filed a notice of cross-appeal but has since dismissed the same.
DISCUSSION
¶5 Gwen ostensibly submits three issues for our review which are
difficult to comprehend and presented in contravention of the
prescribed rules of appellate procedure. Gwen’s brief alludes to
libelous conduct, unscrupulous activity regarding trial court
documents, false testimony, judicial bias, and erroneous
calculation of marital assets. However, Gwen has failed to include
citations to legal authority in support of her allegations and,
instead, relies significantly on matters outside of the District
Court record.
¶6 Rule 23(a)(4), M.R.App.P., requires that an appellant present
a concise, cohesive argument which “contain[s] the contentions of
the appellant with respect to the issues presented, and the reasons
therefor, with citations to the authorities, statutes and pages of
the record relied on.” As stated above, Gwen’s brief contains
general contentions of impropriety but no citations to the record
or supporting legal authority. This Court has repeatedly held that
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we will not consider unsupported issues or arguments. In re
Custody of Krause, 2001 MT 37, ¶ 32, 304 Mont. 202, ¶ 32, 19 P.3d
811, ¶ 32. Similarly, this Court is under no obligation to locate
authorities or formulate arguments for a party in support of
positions taken on appeal. In re B.P., 2001 MT 219, ¶ 41, 306
Mont. 430, ¶ 41, 35 P.3d 291, ¶ 41. Failure to comply with Rule
23(a)(4), M.R.App.P., is fatal to an appeal. State v. Blackcrow,
1999 MT 44, ¶ 33, 293 Mont. 374, ¶ 33, 975 P.2d 1253, ¶ 33. While
dismissal is a harsh result, it is nonetheless necessary when the
utter failure to comply with the rules of appellate procedure
results in an appellate filing that can neither be comprehended by
this Court or realistically responded to by the opposing party.
See City of Whitefish v. Hansen (1989), 237 Mont. 105, 771 P.2d
976.
¶7 In the past, we have demonstrated that we are willing to make
accommodations for pro se parties by relaxing those technical
requirements which do not impact fundamental bases for appeal.
However, a district court’s decision is presumed correct and it is
the appellant who bears the burden of establishing error by that
court. Matter of M.J.W., 1998 MT 142, ¶ 18, 289 Mont. 232, ¶ 18,
961 P.2d 105, ¶ 18. Gwen simply has not met her burden in this
regard. Accordingly, we hereby dismiss Gwen’s appeal for failing
to comply with the Montana Rules of Appellate Procedure and affirm
the decision of the District Court.
/S/ PATRICIA COTTER
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We Concur:
/S/ KARLA M. GRAY
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
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