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                                                                No. 98-225



                              IN THE SUPREME COURT OF THE STATE OF MONTANA



                                                             1998 MT 291N




                                          IN RE CUSTODY OF B.N.T., a Minor Child



                                                           KENNY TROMP,



                                                      Petitioner and Respondent,



                                                                     and



                                       WENDY ELIZABETH MARIE ROANE COLE,



                                                      Respondent and Appellant.




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                               APPEAL FROM: District Court of the Fourth Judicial District,

                                                 In and for the County of Missoula,

                                        The Honorable John S. Henson, Judge presiding.




                                                      COUNSEL OF RECORD:



                                                              For Appellant:



                                   Christopher Daly, Attorney at Law, Missoula, Montana



                                                            For Respondent:



                                      Byron Boggs, Attorney at Law, Missoula, Montana




                                               Submitted on Briefs: October 1, 1998



                                                     Decided: December 3, 1998

                                                                   Filed:




                                     __________________________________________

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                                                                     Clerk




                      Justice Terry N. Trieweiler delivered the opinion of the Court.

¶1. Pursuant to Section I, paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent but shall be
filed as a public document with the Clerk of the Supreme Court and shall be
reported by case title, Supreme Court cause number, and result to the State Reporter
Publishing Company and to West Group in the quarterly table of noncitable cases
issued by this Court.

¶2. Kenny David Tromp filed a petition for custody of his daughter, B.N.T., in the
District Court of the Fourth Judicial District in Missoula County. After a hearing, a
special master submitted proposed findings of fact and conclusions of law to the
District Court. Wendy Elizabeth Marie Roane Cole, the child's mother, moved for a
rehearing and to extend the deadline for filing her objections to the special master's
findings and conclusions. The District Court denied her motions. Wendy appeals. We
affirm.

¶3. There are two issues on appeal:

¶4. 1. Did the District Court err when it denied Wendy's motion for a rehearing?

¶5. 2. Did the District Court err when it rejected Wendy's request to file objections to
the special master's recommended findings of fact and conclusions of law?

                                                FACTUAL BACKGROUND

¶6. B.N.T. was born in Missoula in October 1993 to Kenny David Tromp and Wendy
Elizabeth Marie Roane Cole. Kenny and Wendy separated in April 1995 and shared
custody of B.N.T. thereafter.

¶7. In October 1996, Kenny petitioned the District Court of the Fourth Judicial
District in Missoula County for sole custody of the child. Wendy and Kenny elected
to have their case heard by a special master. A hearing before the special master was

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held on December 16, 1997, at which Kenny and Wendy, their respective counsel,
and a guardian ad litem for the child appeared. Kenny's fiancee at the time also
testified; Wendy's boyfriend and roommate at the time did not appear. Various
reports and documentary evidence were also submitted at the hearing.

¶8. On January 5, 1998, the special master filed recommended findings of fact and
conclusions of law with the District Court. The special master awarded primary
custody of B.N.T. to Kenny and ordered Wendy to pay approximately $200 per
month for child support.

¶9. Shortly after the special master's recommendations were filed, Wendy retained
new counsel. On January 13, she filed an unopposed motion to extend the time period
in which to file objections to the recommendations, and time was extended to
January 30, 1998. On January 26, 1998, prior to filing her objections, Wendy made a
motion for rehearing. She asserted that she had not been allowed sufficient
opportunity to meet with her counsel prior to the December hearing, and that she
had not been given sufficient opportunity to present testimony at the hearing. In
addition, she requested that the deadline by which to file her objections be stayed
until the District Court decided her motion for rehearing. On January 29, Kenny
filed his objection to the motion for rehearing; he did not expressly object to the
request to stay the deadline.

¶10. On February 10, 1998, the District Court denied the motion for rehearing and
the request to stay the deadline. Wendy filed a motion to reconsider the denial. The
District Court denied the request to reconsider.

                                                                 ISSUE 1

¶11. Did the District Court err when it denied Wendy's motion for a rehearing?

¶12. We review a district court's decision regarding a motion for rehearing to
determine whether the district court abused its discretion. See Kneeland v. Luzenac,
Inc., 1998 MT 136, ¶ 54, 961 P.2d 725, ¶ 54, 55 St. Rep. 541, ¶ 54.

¶13. Wendy contends that the District Court erred when it denied her motion for
rehearing. Her motion relied on what she claims was a lack of preparation with her
counsel at the time, and the related failure to call her boyfriend and a counselor who


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had worked with the parties as witnesses. Wendy alleges that her right "to have full
legal redress" entitles her to supplement the testimony from the hearing with that of
the two individuals. Kenny disputes Wendy's claim that she prepared with counsel
no more than one-half hour for the hearing, and further asserts that the special
master's findings and conclusions reflect the fair consideration that was given to B.N.
T.'s best interests. For these reasons, he contends that the District Court did not
abuse its discretion when it denied the rehearing.

¶14. Wendy cites no authority for her alleged right to have additional witnesses
testify. Similarly, she provides no legal support for her claim that insufficient
preparation time with her counsel renders the hearing that was conducted on the
merits legally inadequate. She offers no factual support for her claim that she was
prevented from rebutting accusations regarding her boyfriend. Finally, and most
importantly, Wendy has failed to demonstrate how the lack of testimony from these
two individuals skewed the special master's determination of the child's best interests.

¶15. The record reveals that Wendy had ample opportunity to testify at the hearing.
In addition, it indicates that the special master considered at length the opinion of
one of the "missing" witnesses, counselor Phyllis Burreson, which was admitted in
the form of her written report. Finally, the record clearly demonstrates that the
special master considered and gave primary weight to B.N.T.'s best interests, which
represents the ultimate concern in this matter. See § 40-4-212, MCA.

¶16. The District Court considered these factors and further noted that reopening the
litigation to permit the additional testimony would be neither efficient nor fair. We
agree.

¶17. A motion for rehearing is within the sound discretion of the District Court.
Wendy has failed to establish that the District Court abused its discretion.
Accordingly, we affirm the District Court's denial of the motion for rehearing.

                                                                 ISSUE 2

¶18. Did the District Court err when it rejected Wendy's request to file objections to
the special master's recommended findings of fact and conclusions of law?

¶19. Wendy contends that the District Court denied her the right to due process


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when it refused to permit her to file objections to the special master's findings and
conclusions after it denied her motion for rehearing. She contends that by denying
her the opportunity to file objections, the District Court has denied her right to have
the case determined on the merits. Wendy also asserts that she was not given
sufficient notice about her need to file objections in the event that the petition for
rehearing was denied. She also relies on the fact that Kenny did not expressly object
to the request for a stay of the January 30 deadline which was made pursuant to the
motion for rehearing. In other words, Wendy contends that the District Court should
have decided the motion for rehearing and the request for a stay of the deadline
separately, and that its failure to do so was error, although she once again has
provided no legal authority for her claim.

¶20. Wendy apparently chose not to file her objections by the January 30 deadline in
reliance on her hope that the findings to which she planned to object would be
supplemented with additional testimony, pursuant to her motion for rehearing. She
apparently felt that there was no need to duplicate her objections, or to make
objections to the "incomplete" findings and conclusions in their present state. She
admits in her brief that she could have made objections based on the initial findings
and, on that basis, that she should have been allowed by the District Court to do so
after it denied her motion for rehearing. We are more persuaded, however, by the
admission that she could have filed her objections by January 30 but nonetheless
failed to do so. She was, of course, free to rely exclusively on her motion for
rehearing as the method by which she hoped to achieve a result different from the
one proposed by the special master. However, having done so, she is not in a position
to complain about the consequences.

¶21. The January 30 deadline for filing objections was never expressly set aside, nor
has Wendy ever asserted that a different deadline applied. For Wendy to prevail
here, we would essentially have to recognize her assumption that merely by filing for
a stay of the deadline she had a right to expect that the request would be granted and
that the deadline would change. However, there is no basis for giving such legal effect
to a party's motion.

¶22. Accordingly, the District Court did not err when it enforced the original
January 30 deadline and denied Wendy the opportunity to file objections after her
motion for rehearing was denied.



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¶23. We affirm the decision of the District Court.




/S/ TERRY N. TRIEWEILER



We Concur:



/S/ J. A. TURNAGE

/S/ W. WILLIAM LEAPHART

/S/ WILLIAM E. HUNT, SR.

/S/ KARLA M. GRAY




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