                                         DA 06-0550

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        2007 MT 219N



IN RE THE MARRIAGE OF
VIRLENE GEAN MAXIE,

              Petitioner and Respondent,

         v.

HENRY STEVENSON MAXIE,

              Respondent and Appellant.



APPEAL FROM:          District Court of the Eighth Judicial District,
                      In and For the County of Cascade, Cause No. CDR 05-016
                      Honorable Kenneth R. Neill, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Tonja D. Schaff, Falcon, Lester & Schaff, P.C.,
                      Great Falls, Montana

               For Respondent:

                      Virlene Gilcher, pro se, Great Falls, Montana



                                                   Submitted on Briefs: August 9, 2007

                                                               Decided: September 5, 2007


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     Henry Maxie and Virlene Maxie (now Virlene Gilcher) were married on

December 13, 2003, in Texas. Henry and Virlene were both in the armed forces when

they met and married. The parties had marital difficulties, as evidenced by their many

heated arguments. On at least three occasions, the police responded to these domestic

disputes. In February of 2004, the police were called and observed Henry attempting to

drink bleach in an apparent suicide attempt. He was then placed in a military hospital for

two to three weeks. In May of 2004, Henry and Virlene had another heated argument

that turned somewhat physical. Virlene bit and pushed Henry. Henry admitted that he

put his knee into Virlene’s stomach, though he maintains that he was only trying to

prevent her from leaving and that she ran into his knee as she tried to force her way past

him. The police were again called, and when they entered they found Henry in the

bedroom with a bottle of floor wax that he was apparently going to drink. The police

placed Henry back in the hospital, though it appears that he did not stay for long. Henry

testified that he was not trying to kill himself but merely trying to get his wife’s attention.

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¶3     After the May 2004 episode, Virlene and Henry separated. Virlene moved to

Great Falls and Henry moved to Indianapolis. Virlene, at the time, was pregnant. Henry

did not initially support Virlene or concede that the child was his. Consequently, Henry

was not there, on January 12, 2005, when his son was born. Virlene chose to name her

son Oliver Gilcher, using her maiden name (Gilcher) as his surname. Though he was not

at the birth, Henry began to make child support payments once a paternity test showed

that Oliver was indeed his son.

¶4     Virlene filed for dissolution of marriage in Montana. The trial was held on May

25, 2006. The District Court, after Henry had failed to appear for the pretrial conference,

scheduled trial for an hour, assuming that Henry would not show. When Henry did

appear with counsel, the court, shortly after 9 a.m., asked if an hour was enough, and both

parties suggested that more time would be appropriate, but that they should be done by

lunch. The court decided to continue with the trial and allot each party one hour.

Henry’s counsel responded, “[t]hank you, Your Honor” and did not object to the time

restraint. Because the parties negotiated during a break, the actual time of trial was

around one hour and forty minutes.

¶5     The court then issued a decree of dissolution and parenting plan. On appeal,

Henry argues that the court erred in maintaining the child’s surname, that the court erred

by requiring Henry, but not Virlene, to undergo a psychological evaluation, and that the

court allowed insufficient time for trial. Henry does not appeal the parenting plan.




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¶6     We review a district court’s “best interest of the child” determination for abuse of

discretion, including whether it is in the child’s best interest to carry the given surname,

and whether psychological evaluation is necessary. See In re Custody of J.C.O., 1999

MT 325, ¶ 3, 297 Mont. 327, ¶ 3, 993 P.3d 667, ¶ 3; In re Marriage of Maxwell, 248

Mont. 189, 193, 810 P.2d 311, 313 (1991). Likewise, the admission of evidence is within

the court’s discretion, and the court’s decision will not be overturned absent an abuse of

discretion. Lutz v. Natl. Crane Corp., 267 Mont. 368, 374, 884 P.2d 455, 458 (1994).

¶7     The court did not abuse its discretion by maintaining Oliver’s surname. Henry’s

primary argument is that the facts in this case are not similar to the facts in J.C.O., in

which we upheld the court’s determination that the child should keep the mother’s

surname. However, the child’s best interest is a determination unique to each case and

need not directly parallel the facts of prior cases. Here, the court found that all records

were made out in the given surname of Gilcher; that Oliver had carried and was known

by that surname since his birth; that the mother’s surname is once again Gilcher; that the

father did not attend the birth, though he was invited; and, finally, that the mother has

been and will continue to be the child’s primary caregiver. Under these facts, the court

did not abuse its discretion in applying the “best interest of the child” standard.

¶8     Additionally, the court did not abuse its discretion by not ordering Virlene to

undergo a psychological evaluation.       Henry does not argue that the court erred in

ordering him to undergo an evaluation, only that the evidence established that Virlene

should also be subject to an evaluation.          The evidence of Virlene’s mental health

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problems is not as strong, however, as the evidence presented regarding Henry’s mental

health problems. While it is apparent that Virlene is quick to anger and can even become

somewhat physical in her anger, there is no other evidence in the record to suggest deeper

psychological issues. However, Henry has feigned suicide three times, twice in front of

the police. The court appropriately required both parties to complete anger management

and parenting classes but required Henry alone to complete further psychological

evaluation.    Further, the dissolution and parenting plan will “remain open” to

modification depending on the evidence developed during the anger management and

parenting classes, as well as the results of the psychological evaluation.

¶9     Finally, we need not consider whether the court abused its discretion by limiting

the length of the trial, as Henry did not raise the issue below. Henry’s counsel did not

object when the court determined that the trial would run for two hours and, in fact,

thanked the court for its ruling. Additionally, Henry’s counsel did not object at the end of

the trial, nor did Henry’s counsel indicate a need to call additional witnesses or develop

additional points. Instead, she merely questioned, “I presume that [the court does not]

want any other witnesses at this time?” The court answered, “No, I don’t.” Henry’s

counsel did not object or make an offer of proof as to what additional testimony she

would have offered. We will not allow Henry to raise this issue for the first time on

appeal because it is fundamentally unfair to fault a district court for failing to rule

correctly on an issue it never had the opportunity to consider. State v. Johnson, 2005 MT

318, ¶ 13, 329 Mont. 497, ¶ 13, 125 P.3d 1096, ¶ 13.

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¶10      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 there was no abuse of discretion by the District

Court.

¶11      We affirm the judgment of the District Court.



                                                  /S/ W. WILLIAM LEAPHART



We concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ BRIAN MORRIS




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