                                                                                            October 9 2012


                                           DA 12-0027

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2012 MT 225N



REBECCA J. SMITH,

              Petitioner and Appellee,

         v.

MICHAEL JASON BARGER,

              Respondent and Appellant.



APPEAL FROM:           District Court of the Fourth Judicial District,
                       In and For the County of Missoula, Cause No. DR 11-319
                       Honorable John W. Larson, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Michael J. Barger, self-represented, Missoula, Montana

                For Appellee:

                       Linda Osorio St. Peter, St. Peter Law Offices, P.C., Missoula, Montana


                                                    Submitted on Briefs: August 22, 2012

                                                                Decided: October 9, 2012




Filed:

                       __________________________________________
                                         Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), 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     Michael J. Barger (“Barger”), presently 49 years of age, appeals from a Decree of

Dissolution entered by the Fourth Judicial District Court, Missoula County. We Affirm.

¶3     Rebecca J. Smith (“Smith”), presently 46 years of age, and Barger were married on

August 3, 2009, in Elko County, Nevada. Smith petitioned for dissolution of the marriage on

May 13, 2011. Following a nine hour settlement conference with retired District Court

Judge Douglas G. Harkin, the parties entered into a Settlement Agreement (“Agreement”) on

December 2, 2011. The Agreement repeated the undisputed allegations from the pleadings

that the marriage was irretrievably broken without a possibility of reconciliation and that the

parties had each been residents of Montana for more than 90 days prior to the filing of the

petition. The Agreement was executed by both parties and filed with the court.

¶4     At a hearing on December 8, 2011, the court entered a Decree of Dissolution

(“Decree”) and incorporated the Agreement therein. During the hearing the court found the

Agreement to be “fair and equitable, not unconscionable, and representing the intent of the

parties.” Barger did not voice any objections regarding the court’s finding concerning

unconscionability nor with regards to the Agreement’s findings concerning residency and the

irretrievable breakdown of the marriage. Moreover, Barger had not previously voiced


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objections to the court’s exercise of personal jurisdiction or Smith’s allegations concerning

the breakdown of the marriage at any point during the dissolution action.

¶5     On appeal, Barger attempts to contest findings that he explicitly admitted to and

agreed with on more than one occasion. Specifically, Barger is now challenging the

sufficiency of the Decree’s findings while also arguing that the court did not properly find

the Agreement to be not unconscionable and that the court failed to issue a proper temporary

restraining order pursuant to § 40-4-121(3), MCA.

¶6     First, Barger argues the court failed to make necessary findings of fact concerning

residency, that the marriage was irretrievably broken, and concerning conciliation pursuant

to § 40-4-104(1), MCA. The Agreement specifically included an admission of residency

sufficient to confer jurisdiction under § 40-4-104(1)(a), MCA. Similarly, the Agreement

stated that the marriage was irretrievably broken and there was no prospect of reconciliation,

satisfying § 40-4-104(1)(b)-(c), MCA. The Agreement was executed by both parties and

was thereafter binding upon the court absent a finding of unconscionability. Section 40-4-

201(2), MCA. The Decree incorporated the Agreement “as if fully set forth herein.” Barger

therefore explicitly stipulated to the findings he now contests, and the Decree expressly

incorporated those stipulations by reference. Barger may not attack these findings on appeal,

as “[i]t is improper to raise an issue upon appeal as to a question of law or fact after the

parties have entered into a stipulation as to that law or fact.” Penn v. Burlington N., 185

Mont. 223, 228, 605 P.2d 600 (1980).

¶7     Similarly, Barger never contested the court’s finding that the Agreement was not

unconscionable. “We will not put a district court in error for a ruling or procedure in which
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the appellant acquiesced, participated, or to which the appellant made no objection.” In re

Marriage of Stevens, 2011 MT 106, ¶ 28, 360 Mont. 344, 253 P.3d 877. Further, the

Agreement provided that it was to be made part of the Decree and the Decree incorporated

the Agreement. Contrary to Barger’s assertion, the Decree therefore did not need to restate

the court’s prior finding that the terms were not unconscionable. Section 40-4-201(4)(a),

MCA.

¶8     Last, Barger argues the court erred by failing to impose an “economic restraining

order” upon the parties pursuant to § 40-4-121(3), MCA. Section 40-4-121(3), MCA, directs

the clerk of court to issue a temporary restraining order restraining both parties from

disposing of any property or cancelling any insurance coverage along with any summons the

clerk issues under Title 40, Chapter 4. Here, it appears the clerk inadvertently neglected to

issue such an order. However, the parties thereafter agreed to ask the court to vacate any

such temporary restraining orders, including those issued pursuant to § 40-4-121(3), MCA.

The court confirmed it was vacating any prior temporary orders pursuant to the Agreement at

the December 8, 2011, dissolution hearing. Barger’s protestations on appeal concerning the

missing order are therefore barred by his prior agreement to vacate any such order. Penn,

185 Mont. at 228. Moreover, it would not be possible to grant any requested relief

concerning missing temporary restraining orders that would have been vacated regardless of

the present appeal.    Barger’s claims concerning the order are therefore moot.          See

Progressive Direct Ins. Co. v. Stuivenga, 2012 MT 75, ¶ 17, 364 Mont. 390, 276 P.3d 867.

¶9     We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our

Internal Operating Rules, which provides for noncitable memorandum opinions. The issues
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in this case are legal and are controlled by settled Montana law, which the District Court

correctly interpreted.

¶10    Affirmed.

                                                /S/ MICHAEL E WHEAT



We Concur:

/S/ MIKE McGRATH
/S/ BRIAN MORRIS
/S/ PATRICIA COTTER
/S/ JIM RICE




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