                                                                                        September 29 2015


                                            DA 14-0670
                                                                                        Case Number: DA 14-0670

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                           2015 MT 286N



IN RE THE MARRIAGE OF:

JOHN W. LINN, II,

                Petitioner and Appellee,

         and

LEAH D. LINN,

                Respondent and Appellant.


APPEAL FROM:            District Court of the Eighth Judicial District,
                        In and For the County of Cascade, Cause No. ADR 12-501
                        Honorable Gregory G. Pinski, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Leah D. Linn, self-represented; Ridgefield, Washington

                 For Appellee:

                        Jeremy S. Yellin, Attorney at Law; Havre, Montana



                                                     Submitted on Briefs: August 26, 2015
                                                                Decided: September 29, 2015


Filed:

                        __________________________________________
                                          Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, 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     Leah D. Linn (Leah) appeals the Final Parenting Plan entered by the Eighth

Judicial District Court pursuant to its Findings of Fact, Conclusions of Law, and Decree

of Dissolution.   The matter was initially heard by a Standing Master, but due to

irregularities in the recording of the proceeding, the District Court conducted a rehearing.

We affirm.

¶3     John W. Linn, II (John) petitioned for a dissolution of the marriage on August 21,

2012. The couple has two minor children from their marriage. The matter was referred

to the District Standing Master, and a trial was held on June 25, 2013. The Standing

Master issued Findings of Fact, Conclusions of Law, and Final Decree of Dissolution, as

well as a parenting plan, which designated Leah as the primary caregiver for the children.

¶4     John filed objections to the Standing Master’s Findings, and moved for a rehearing

on the custody matter. Due to technical difficulties with the recording equipment, the

transcript of the proceeding before the Standing Master was incomplete, with many of the

answers to cross-examination being inaudible.       Thus, the District Court reheard the

custodial portion of the dissolution matter. After the rehearing, the District Court issued
                                             2
its own findings, conclusions, and a new Final Parenting Plan that named John as the

primary caregiver for the children. Leah appeals from the Final Parenting Plan.

¶5     Leah argues the District Court erred in disregarding the parenting plan entered by

the Standing Master in favor of a new plan adopted after the rehearing. We review a

district court’s decision de novo to determine whether it applied the correct standard of

review to a standing master’s findings of fact and conclusions of law. See Anderson v.

Deafenbaugh (In re G.J.A.), 2014 MT 215, ¶ 11, 376 Mont. 212, 331 P.3d 835. A district

court applies a clear error standard of review to a standing master’s order. See In re

Marriage of Doolittle, 265 Mont. 168, 171, 875 P.2d 331, 334 (1994).                Section

3-5-126(2), MCA, provides that district courts may conduct a hearing to review a

standing master’s findings and conclusions or order. “The court, after a hearing, may

adopt the findings and conclusions or order and may modify, reject in whole or in part,

receive further evidence, or recommit the findings and conclusions or orders with

instructions.” This language “lists various actions that may be taken by a district court

upon receiving a master’s findings; these actions may be taken only if they are warranted

by the record, assessed in light of the applicable standard of review set forth in Rule 53.”

Anderson, ¶ 17 (emphasis added).

¶6     The District Court properly held the initial hearing to review John’s objections, as

provided for by § 3-5-126(2), MCA. The District Court did not merely disregard the

Standing Master’s parenting plan, but found itself unable to undertake an objective


                                             3
review of that plan due to the incomplete record of the trial.1 The District Court did not

err by rehearing the matter and issuing its own Final Parenting Plan.

¶7     Leah next argues that the District Court erred by not allowing her minor daughter

to testify telephonically at the rehearing. “We review a district court’s evidentiary rulings

for an abuse of discretion. Trial courts are vested with broad discretion to determine

whether evidence is relevant and admissible, and this court will not overturn an

evidentiary determination in the absence of an abuse of discretion.”                Benjamin v.

Torgerson, 1999 MT 216, ¶ 15, 295 Mont. 528, 985 P.2d 734 (internal citation omitted).

Given the specific concerns the District Court expressed regarding the young age of the

child, and an unknown adult being present with the child while testifying over the

telephone, we conclude the District Court did not abuse its discretion by disallowing the

testimony.

¶8     Leah argues the District Court erred by failing to intervene when opposing counsel

did not provide her with a witness list prior to the rehearing, and by communicating with

opposing counsel while she was not present in the courtroom. Leah claims that she was

unprepared for the testimony of Judith Young. However, Ms. Young, who is Leah’s

mother, was a witness at both the trial before the Master and the rehearing. Her presence

and testimony at the rehearing should not have been a surprise. While there was no order

requiring exchange of witness lists for the rehearing, it would have been appropriate for

1
  In determining whether or not to grant a rehearing, the District Court indicated it had reviewed
the filings and trial transcript, and stated: “[G]iven the incomplete nature of the record that was
developed before the standing master, I will grant a rehearing.”
                                                   4
opposing counsel to have alerted Leah to the witnesses he intended to call. However,

Leah does not establish that she was prejudiced by this oversight.

¶9     Likewise, Leah fails to show prejudice or error from the conversation between the

District Court judge and opposing counsel that took place at the beginning of the

rehearing. The conversation, which is duly recorded on the transcript, was regarding

Leah’s initial absence from the courtroom at the time for the hearing, and was in no way

improper. Leah appeared shortly thereafter and the record shows no prejudice to her.

¶10    Leah asserts that the District Court failed to take into account all the relevant

evidence regarding John’s overall stability and ability to care for the minor children when

issuing the Final Parenting Plan. Section 40-4-212(1)(a)˗(m), MCA, provides the factors

a court must consider when determining the best interest of a child, including (d) “the

child’s adjustment to home, school, and community,” (h) “continuity and stability of

care,” and (l) “whether the child has frequent and continuing contact with both parents

. . . .” The District Court specifically addressed all of these factors in the Final Parenting

Plan, taking into account both Leah and John’s contact with the children and their relative

stability, and we will defer to the District Court’s determination. See In re Klatt, 2013

MT 17, ¶ 13, 368 Mont. 290, 294 P.3d 391 (“We have repeated on numerous occasions

that the trial court’s decision is to be accorded great deference because it ‘is in a better

position than this Court to resolve child custody issues.’”) (quoting Pankratz v. Teske,

2002 MT 112, ¶ 12, 309 Mont. 499, 48 P.3d 30).


                                              5
¶11    Finally, Leah contends that the District Court judge erred when he failed to recuse

himself due to a conflict of interest between the judge and a witness at the rehearing.

Section 3-1-805, MCA, sets forth the steps for a party seeking disqualification of a judge.

Leah admittedly did not file the affidavit required under the statute, nor did she formally

object to the supposed conflict of interest at the time of the rehearing, ultimately failing to

preserve the issue for appeal. In a similar argument, Leah claims that the District Court

judge should have been disqualified under the Montana Judicial Code of Conduct, Rule

2.12, as the same judge presided over both John’s misdemeanor sexual assault conviction

and the custody rehearing.2 Again, Leah did not actually raise an objection at the time,

and thus failed to preserve this issue for appeal. “The general rule is that issues not raised

before the trial court and new legal theories are not considered by this Court on appeal

because it is unfair to fault the trial court on an issue it was never given an opportunity to

consider.” Renner v. Nemitz, 2001 MT 202, ¶ 14, 306 Mont. 292, 33 P.3d 255 (internal

citation omitted).

¶12    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. This appeal

presents no constitutional issues, no issues of first impression, and does not establish new

precedent or modify existing precedent.


2
  During witness questioning, the District Court sua sponte reminded the parties that he had
presided over John’s criminal case and was thus aware of the background of that matter, stating:
“Okay. Let me just – I’m aware of all that. I mean, you know I presided over the criminal case.
So I’m aware of all that. I’m aware of the history you guys had.”
                                                 6
¶13   Affirmed.



                              /S/ JIM RICE


We concur:

/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
/S/ PATRICIA COTTER




                          7
