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In re Estate of Esterbrook11/24/2003
___, 24; In re Marriage of Clark , 2003 MT 168, 25, 316 Mont. 327, 25, 71 P.3d 1228, 25; Hawkins v. Harney , 2003 MT 58, 34, 314 Mont. 384, 34, 66 P.3d 305, 34. To reverse a District Court on a record--and briefing--such as that before us here is, in my view, insupportable.
The appellant bears the burden of establishing error. See, e.g., Hawkins, 35 ; In re Marriage of McMahon, 2002 MT 198 , 7 , 311 Mont. 175, 7, 53 P3d 1266, 7; Matter of M.J.W. , 1998 MT 142, 18, 289 Mont. 232, 18, 961 P.2d 105, 18. The Court admits that King has not satisfied her burden here. Our concern for the children notwithstanding, it is our duty to apply the law, not to simply--and without any legal justification--reverse a district court under circumstances such as these.
The Court sets an unwise and dangerous precedent here. It signals that it will reverse trial courts, without any legal basis whatsoever, when it has "concerns." How it will decide when to exercise such extraordinary discretion in future cases remains to be seen. I cannot agree with turning Montana's legal system on its head in such a fashion.
I would affirm the District Court on all three issues. I dissent from the Court's refusal to do so.
KARLA M. GRAY
Justice John Warner joins in the foregoing concurring and dissenting opinion of Chief Justice Karla M. Gray
JOHN WARNER
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