                                  No. 12413

      I N THE SUPREME COURT O THE STATE O M N A A
                             F           F OTN

                                        1973

                                                   -




GEORGE M. WASHINGTON,

                          p l a i n t i f f and Respondent,

      -VS   -
HESTER P   . WASHINGTON,
                          Defendant a d A p p e l l a n t .



Appeal from:      D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
                  Honorable J a c k D. Shanstrom, Judge p r e s i d i n g .

Counsel o f Record:

    For Appellant :

            Hutton, S c h i l t z and Sheehy, B i l l i n g s , Montana
            John C.Sheehy argued, B i l l i n g s , Montana

    For Respondent:

            Gary L. Beiswanger argued, B i l l i n g s , Montana
            Robert P. Ryan, B i l l i n g s , Montana



                                              Submitted:         March 2, 1973
M. Chief Justice James T. Harrison delivered the Opinion of the Court.
 r

             This i s a motion t o dismiss the appeal f i l e d by the respondent
George M. Washington.       The motion requests t h i s Court t o dismiss the
a ppea 1 :
             " * * * f o r the reason t h a t the appellant f a i l e d to
             have prepared a transcript of the evidence presented
             t o the lower court, and t h a t each of the specifications
             of error * * * raised by defendant would require either
             an agreed statement of f a c t or a transcript prepared
             a f t e r hearing * * *. I'
The response of appellant, Hester P. Washington, t o t h i s contention i s t h a t
she i s urging s t r i c t l y a legal argument and t h a t the record f i l e d with t h i s
Court is adequate f o r that purpose.
             The underlying action in t h i s appeal i s a divorce action commenced
by the respondent in the d i s t r i c t court of Ye1 lowstone County.         A decree was
entered in t h a t action on December 31, 1971. A property settlement previously
entered into by the parties was incorporated in the decree.                Following a s a l e
of some property which was covered by the agreement, the appellant petitioned
the d i s t r i c t court t o give her a lien on the proceeds of that s a l e as security
for the money she was t o receive from the settlement.              The respondent cross-
petitioned f o r a modification of the decree on the ground of change in condi-
tions.
             A hearing was held on the petitions on May 17, 1972. There was no
court reporter present a t the time of the hearing, but both parties agreed t o
proceed with the hearing.        During the course of the hearing, the appellant
objected t o the introduction of any testimony concerning a change of circum-
stances of the respondent.        The objection was overruled.         Respondent then
presented testimony concerning his change in financial condition.                 The matter
was taken under advisement and on June 13, 1972, the d i s t r i c t court entered
an order relieving the respondent of his responsibility f o r the payment of
alimony.      On July 17, 1972, the appellant f i l e d her exceptions t o the order
and a motion f o r extendon of time in which t o f i l e a statement of the evidence.
N action was taken on those motions by the d i s t r i c t court and t h i s appeal
 o
was filed on August 31 , 1972.
         The motion to dismiss the appeal was filed on January 23, 1973,
after the appellant's brief was filed on December 18, 1972. The motion
was heard and both parties presented oral argument through their respec-
tive counsel   .
         The issue before this Court is whether the appellant has ful-
filled her duty under Rule 9, M.R.App.Civ.P. to furnish a sufficient re-
cord on appeal for this Court to decide the controversy. Appellant argues
that the appeal concerns:
         " * * * an issue of law which this court can decide
         without a transcript of the evidence. The wife's brief
         filed in this cause on appeal has confined the issues to
         that precise issue of law."
         Respondent argues that the issues raised by the appellant on appeal:
         " * * * are entirely founded on the insufficiency of the
         evidence to support the findings of fact of the trial
         court. "
To some degree this Court must agree with the position expressed by the
respondent. Rule 9(b), M.R.App.Civ.P. states:
         "In all cases where the appellant intends to urge in-
         sufficiency of the evidence to support the verdict,
         order or judgment in the district court, it shall be
         the duty of the appellant to order the entire trans-
         cript of the evidence.''
In reading appellant's brief, particularly the "statement of issues presented
for appeal", it is apparent appellant is urging that the findings of fact
upon which the district court made its order were not supported by the evidence.
In her issue No. 2 the appellant contends the court committed error in its
finding of fact No. 1 because "(b) That from the evidence and from the property
settlement agreement   **   *'I;   this is just one example of several similar
statements in the brief alleging the findings of fact were not supported by
the evidence .
         It is clear to this Court that to fully decide the matters raised,
as complete a record as possible must be supplied. When a hearing is held
and there is no court reporter present Rules 9(c) and (d), M.R.App.Civ.P.
provide two methods for supplying a record on appeal. Under subsection (c)
the appellant may prepare a statement of the evidence and serve it upon the
respondent.          The respondent then has t h e o p p o r t u n i t y t o make any o b j e c t i o n s .

The statement along w i t h any o b j e c t i o n s a r e submitted t o t h e d i s t r i c t c o u r t

and t h e d i s t r i c t judge w i l l s e t t l e t h e record.      Under subsection ( d ) t h e

p a r t i e s may make an agreed statement o f t h e case and along w i t h any a d d i t i o n s

by t h e d i s t r i c t c o u r t i t w i l l be c e r t i f i e d t o t h i s Court as t h e r e c o r d on

appeal.        E i t h e r one o f these methods could have been used i n t h i s case and

an attempt was commenced by t h e a p p e l l a n t , as evidenced by her motion f o r

an extension o f time t o prepare such a statement o f t h e evidence, b u t l a t e r

abandoned.

               Therefore i t i s t h e o p i n i o n o f t h i s Court t h a t upon t h e issues

r a i s e d by t h e a p p e l l a n t , t h e r e c o r d i s inadequate except as t o t h e s o l e i s s u e

whether o r n o t as a m a t t e r o f law t h e alimony p r o v i s i o n o f t h e p r o p e r t y

agreement was i n t e g r a l t o t h e agreement and n o t severable and as such was

n o t s u b j e c t t o m o d i f i c a t i o n by t h e c o u r t .

              As t o any and a l l 0 t h

t h e motion t o dismiss i s g r a n t




Me concur:




    ssociate Justices
