                                         No. 14207

                 IN THE SUPRFME COUR!I' OF THE STATE O MONTANA
                                                      F

                                           1978



R SEL C U T,
 USL   O NS

                       Petitioner and Respondent,



DELSEY CHAPMAN, f/k/a D L E HANKS,
                       ESY
f/k/a D L E CCUNTS,
       ESY

                       Respondent and Appellant.



?@peal f r m :    D i s t r i c t Court of t h e Thirteenth Judicial D i s t r i c t ,
                  Honorable Charles Luedke, Judge presiding.

Counsel of Record:

    For Appellant:

          Richter, Lerner and Nye, Billings, mntana

    For Respondent:

          Davidson, Veeder, Baugh & Broeder, Billings, Pbntana



                                                Suhnitted on b r i e f s :    July 26, 1978
                                                                              I   s   ;

                                                                Decided: v.qi
                                                                                          - &


Filed :
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

     Appeal is from an order of the District Court of the
Thirteenth Judicial District, Yellowstone County, Montana,
granting modification of a divorce decree as to custody of
the children.
     Plaintiff wife, Delsey Counts, obtained a decree of
divorce from defendant, Russell Counts, on May 17, 1971.
In that decree, wife was granted custody of the four children
of the parties, Becky Lynn, Michelle Lorraine, Edward Russell
and Webster Dean.   Husband was ordered to pay the sum of
$100 per month to the wife for support money for the children
and was given reasonable visitation rights.
     On June 27, 1973, the husband petitioned for a modifi-
cation of the decree asking that he be awarded custody of
the four children for 9 months of the year and that plaintiff
wife have custody for the remaining 3 months, with the
support monies adjusted accordingly.   The wife, then known
as Delsey Hanks, filed a counter-petition at that time
requesting the court to grant her $65 per month for each of
the minor children to be paid as support money by the husband.
Nothing ever came of that petition or counter-petition.
     On May 26, 1977, husband, Russell Counts, petitioned
for a modification of the divorce decree, asking that custody
of the 4 children be granted to him.   Wife, then known as
Delsey Chapman, filed her counter-petition, requesting that:
(1) custody of the four children be continued to her; (2)
the Court determine the amount of back payments due to her
from husband for support monies; ( 3 ) she be awarded attorneys
fees; and (4) the original decree be modified so she would
be entitled to receive $100 per month for each of the
children of their marriage.
     On November 4, 1977, District Court entered its order
here appealed therefrom, in which the District Court granted to
                              -2-
husband full custody of the 4 children of the parties, and
determined the husband owed the wife $2,894.20 in back
support payments.
     The wife then moved for a new trial on the single
ground there had been no record made of an interview by the
District Court of the 4 minor children about their wishes
concerning their custody.    No ruling was made by the District
Court on this motion, and, it being deemed denied, appeal
was taken by plaintiff wife to this Court.
     No stenographic transcript of the proceedings before
the District Court regarding the hearing on petition for
modification by the husband or counter-petition of the wife,
has been filed in the Court.    The District Court did not
make findings of fact and conclusions of law as such (no
appeal is taken as to this point) but attached to the order
appealed from, is a memorandum of law and fact by the District
Court from which we glean the following pertinent facts:
    After the divorce decree of May 17, 1971, both parties
subsequently remarried, the father, to a woman having 3
children by a prior marriage and the mother, to a man having
1 boy by a prior marriage.     The father's second marriage is
still intact. The mother's second marriage failed, a divorce
occurred, and in March 1977, the mother married again, this
time to a man employed or to be employed in Canada.    It was
necessary she move to Canada with her husband.    After con-
sultation with school authorities, the mother decided to
defer moving the children until after the close of the
school year.   She placed 3 of the children with their father
and 1 with another relative, intending that after school
they would all move to Canada with her.    The father later ended
up having all 4 of the children with him from March 1977.
On May 26, 1977, shortly before the mother was to take the children,

                                -3-
the father filed his petition requesting modification of the
decree so as to award permanent custody of the children to
him.
       The memorandum of District Court summarizes evidence
respecting the best interests of the children as follows:
       "The children involved are two girls, ages
       14 and 12 years, and two boys, ages 9 and 8 years.
       The mother acknowledges that the oldest child,
       Becky Lynn Counts, desires to stay with her
       father and agrees that her wish should not be
       resisted. The mother also does not challenge
       that the other children have expressed a wish
       to stay with their father, but she feels that
       this is only the product of their having been
       with their father the past few months, resulting
       in a practical influence upon them even if not
       an intentional one.
       "Over the span of time that the mother has had
       the children, there have been some difficult
       times in 'getting used to a new father' and
       in living through the changes of a second
       separation and divorce. Such difficulties
       have manifested themselves in the children's
       school progress, with the two boys having
       failed one year each, and the girls having
       poor attendance records. The oldest girl did
       not, for example, attend a sufficient number of
       days last year to earn a grade, she being given
       an 'incomplete.' A number of the school
       personnel testified at the hearing on this matter,
       and it is apparent from their testimony that
       continuation of the childrens' problems became
       interrupted only after they went with their father.
       From that period on considerable improvement was
       noticed. The logical conclusion from this is
       that at least the educational progress of the
       children was being seriously affected by the
       custodial situation existing with the mother.
       Whether the mother's new situation in Canada would
       correct or aggravate this situation would be entirely
       a matter of speculation and cannot form the basis
       for a finding by the Court."
       Based upon the foregoing, the Court determined the
requirements of section 48-339, R.C.M. 1947, regarding
custody had been met and the best interests of the children
necessitated a modification, as prayed for by husband.
     The single issue presented by appellant wife in this
appeal is the District Court erred in not requiring a
verbatim transcript of the Court's interview with the minor
children as to their wishes respecting their custody.
Appellant is necessarily limited to this single issue
because counsel for both parties have stipulated for this
appeal, that no stenographic or verbatim record was made of
the trial court proceedings in the matter; no stenographic
or verbatim record was made of the trial court in chambers
interview of the children in this matter; and both parties
by and through their counsel of record at trial, waived
stenographic or verbatim record of all the proceedings
before the trial court in this matter though Mrs. Chapman,
appellant, states her trial counsel did not discuss this
waiver with her. (Appellant's counsel on appeal is not the
same as her counsel at trial.)     For us, therefore, the
single issue becomes whether the statutory requirement of a
verbatim transcript of the court interview of the minor
children is a provision that can be waived by the parents in
a dissolution of marriage proceeding.
     First, we look at the statute involved.    Section 48-
334 (1), R.C.M. 1947, provides:
     "The court may interview the child in
     chambers to ascertain the child's wishes
     as to his custodian and as to visitation.
     The court may permit counsel to be present
     at the interview. The court shall cause
                        --
     - record of - interview - - - - and
     a        - the            to be made
     to - - -of the record - - -
     -  be part -             in the case."
     (~m~hasis added. )
     In Ronchetto v. Ronchetto (1977),        Mont   .      , 567
P.2d 456, 458, 34 St.Rep. 797, a case where we reversed the
District Court on a child custody decision, we note that on
remand, if the court desired to interview the child concerning
his wishes, it could be done, but in that event, the court
must make a record of the interview to be considered part
                                  -5-
of the record of the case.     However, Ronchetto v. Ronchetto
was not decided on that precise ground.        In Schiele v. Sager
(1977),       Mont .      ,   571 P.2d 1142, 34 St.Rep. 1358, we
reversed a District Court in a child custody decision.       One
of the grounds upon which we relied on in that case was the
fact that the District Court had not made a record of its
interview of the minor children involved.
     In the Matter of Geary (1977),            Mont   .     , 562
P.2d 821, 34 St.Rep. 218, an appeal involving a youth in
need of supervision (not a divorce proceeding), we held that
because the dispositional hearing was not recorded verbatim
in the District Court, that therefore under section 10-
1220(3), R.C.M.   1947, the case required reversal.
     In the Matter of the Guardianship of the Gullette
Children, (1977),         Mont   .        ,   566 P.2d 396, 34
St.Rep. 277, a contested guardianship case, this Court held
that the lack of a stenographic record of the contested
hearing required reversal.
     In this case now before us, the stipulation executed by
the parties with respect to the waiver of transcript of all
proceedings presents a different aspect from the cases above
cited.    In Ronchetto, the pivotal point in the case was the
fact the District Court had allowed hearsay testimony with
respect to the best interests of the child and it was on
that ground the reversal occurred.     In Schiele, the lack of
verbatim record of the childreds interviews was one of the
points on which the case turned, but there is no indication in
the records that a stipulation dispensing with such verbatim
records had occurred in the trial.     In Geary, there was a
complete lack of stenographic report of all the proceedings
in the District Court, sitting as a Youth Court, under a statute
that required a verbatim record, particularly for use in
appeal.   In Gullette, there was a contested guardianship
proceeding.     The lack of stenographic record was one of the
points on which this Court relied for reversal.    In Gullette
and Geary, the children themselves were parties before the
court.
     Under the Uniform Marriage and Divorce Act, the District
Court in determining custody of children looks at the best
interests of the children and weighs all relevant factors,
including those listed in section 48-332, R.C.M. 1947.    That
statute lists five different factors affecting the best
interests of the child.    Only one of these factors is the
child's wish as to his custodian, although that is undoubtedly
an important factor.    Hurly v. Hurly (1966), 147 Mont. 118,
411 P.2d 359.    Nonetheless, it is but one of five important
factors set out in the statute.
     Because the court might wish to conduct the interview
of the children in chambers, away from the trial, and
indeed, if necessary, away from the presence of the parents,
provision is made in section 48-334, R.C.M.   1947 for such
interview to occur in chambers, where counsel may be permitted
to be present.    In order to have a complete record however,
section 48-334 provides the interview should be recorded and
made a part of the record in the case.    It is obvious the
ultimate purpose of the requirement of a record of the children's
interviews is to accord the parties to the action, the husband
and wife, a full record which would support any finding the
court might make regarding wishes of the children, and the
bearing of those wishes in his final decision.    In a dissolution
of marriage, however, the children are not parties to the
action and the reason for the statute requiring a record of
                                -7-
interviews is to serve the interests of the parents who
are actually parties to the action.        If one of the parties
therefore, knowing the Court will interview the children,
and that such interview will weigh in the Court's decision
as to their custody, nevertheless waives a verbatim record
of such interview, then we must hold such party has
voluntarily waived a known right and cannot complain about
lack of record in this Court.
       We are not faced here with the problem that might arise
if the District Court had not affirmed the wishes of the
children.      If that had occurred, then our paramount concern
for the children's best interests, Lee v. Gebhardt (1977),
        Mont   .    ,   567 P.2d 466, 34 St.Rep. 810; Schiele v.
Sager (1977),           Mont .      , 571 P.2d 1142, 34 St. Rep.
1358, might have obligated us to send the custody problem
back with a proviso that an attorney be appointed to represent
the children, and a verbatim record be made of their interviews.
In this respect, this case is different from Kramer v.
Kramer (1978),            Mont .     , 580 P.2d 439, 35 St.Rep.
700.    On the face of this record, as the memorandum of the
District Court indicates, the best interests of the children
are being served.
       Appellant wife contends the waiver was not discussed with
her by trial counsel at the time the waiver was made.
As far as the Court and other counsel are concerned however,
she is bound by stipulations made by her counsel entered in
open court. Section 93-2101, R.C.M.       1947.
       When appellant wife, through her counsel, waived a
transcript of all proceedings in the District Court, she
thereby placed herself wholly within the discretion of the
District Court as to the issues presented to him.       This
Court is powerless to put a District Court in error without
a record,        Francis v. Heidel (1937), 104 Mont. 580, 68 P. 2d

583, unless there appears inherent error, Aquettaz v. Chicago,
Milwaukee    &    St. Paul Ry. Co. (1937), 104 Mont. 181, 65 P.2d

1185.
        Affirmed.




We Concur:
                                   A




         Chief Justice




            Justices
Mr. Justice Daniel J. Shea dissenting:

     I cannot agree with the decision of this Court that
the wife waived her right to have the hearings recorded
and to have a court reporter record the interviews between
the trial court and the children.     I would reverse the
trial court and order a new trial because the first trial
was held without a record being made.
     Here the wife claims that the lawyer who represented
her at the trial level did not discuss with her whether
or not she would waive the use of a court reporter to
record the proceedings.   We are involved here, not with
a technical question of whether the client should be bound
by the acts of her lawyers, as majority states, in relying
on section 93-2101, R.C.M.   1947.   Rather, we are involved
with the very foundation of appellate review--the require-
ment of a record, if review is to be effective.        Indeed,
the majority recognized the ineffectiveness of review with
a record by stating "this Court is powerless to put a
district court in error without a record,      .. .   unless
there appears inherent e-rror,   . . ."   The essence of this
hclding is that a District Court can deprive this Court of
effective review by sinply not providing a court reporter
to record the proceedings at trial.       The potential evils
engendered by this kind of attitude require no additional
comment.
     It is of little consolation to the wife here that
we hold her lawyer waived her right to a court reporter and
consequently, to a meaningful appeal.       Too often, when
counsel agrees to the waiver of a record, he does so in an
effort to accomodate the court and the court reporter, not
to protect the interests of his client.       The failure to have
a court reporter to record the trial court proceedings
goes to the very heart of the administration of the court
system.
     The waiver that the Court has relied on here, namely
that of counsel waiving the rights of his client to a
recording of the hearing, is so fundanental that it should
not be allowed without the personal waiver of the client.
For this personal waiver to be effective, it shculd be
spread upon the record.     The client should be informed of
the right to have a record; he should be informed of the
uses to which a record is put; and he shculd be informed
of the consequences of the failure to have a record, namely
that almost total discretion is being reposed in the district
judge, and that if the case is appealed there will be no
effective and meaningful method of presenting the appeal.
Perhaps then, if the client does not want a record, a waiver
would be effective.   And, being that the waiver should be
spread upon the record, presumably taken down by a court
reporter, perhaps the court reporter could even be persuaded
to stay awhile and make a verbatim record of the hearing,
which, after all, is his duty.
     The problem with a lack of a record, which so cften
arises, has convinced me that there is a need for fundamental
change in the way that verbatim records are recorded at the
District Court level.     Too many of the court reporters believe
that the courts, counsel and the parties, exist only for
the convenience and monetary benefit of the court reporters.
They fail to recognize that they are servants of the public
and the judicial system and that their duty to record trials
and other hearings before the court takes precedence over
other activities such as taking depositions, statements, etc.
It must be remembered that court reporters are on a full-time
salary, and this means they should be full-time public
servants.   It is the duty of the District Court judges to
see to it that the court reporters in their employ are
present to record the judicial proceedings which the
particular judge is handling.
     I am convinced that electronic recording systems
installed in the District Court may well be the only
long-lasting and meaningful answer to the problem.     If
this c ~ u r tis unwilling to address the fundamental problems
involved with the failure of court reporters to properly
perform their functions, then I am convinced that the only
redress is to have comprehensive legislation whereby
electronic recording systems are mandated, and the duties

of the court reporters are redefined, with commensurate

salary reductions.
