text:
    IN RE THE MARRIAGE OF ALLEN WAYNE JOHNSON, Petitioner and Respondent, and JUDITH ANN JOHNSON, Respondent and Appellant
    No. 90-318.
    Submitted on Briefs August 1, 1991.
    Decided March 19, 1992.
    49 St.Rep. 240.
    252 Mont. 258.
    828 P.2d 388.

      For Appellant: Helen Hayes Orendain, Attorney at Law, Missoula.
    For Respondent: Richard A. Reep, Graham, Reep & Spoon, Missoula.
   JUSTICE HUNT

delivered the Opinion of the Court.

Judith Ann Johnson and Alen Wayne Johnson were granted a dissolution of marriage on April 1, 1981. Judith filed a petition for modification of maintenance with the District Court on June 23,1989. Alen filed a motion to dismiss the petition. The District Court granted the motion to dismiss on April 9, 1990. Judith appeals the dismissal of the petition for modification of maintenance. We affirm.

The issues before this Court are as follows:

1. Did the District Court err in dismissing appellant’s petition for modification of maintenance?

2. Did the doctrine of res judicata bar the District Court from considering the issues of statute of limitations and the mutual release language in the separation agreement?

3. Did the District Court abuse its discretion when it initially determined in 1981 that the marital separation agreement was not unconscionable?

4. Is respondent entitled to attorney fees?

In light of our holding on the first issue we need not discuss the second, third and fourth issues.

Appellant and respondent were married on January 27,1964. The parties have two children. On April 1,1981, the parties were granted a dissolution of marriage. A custody, support, and property settlement agreement (agreement) signed by appellant was incorporated into the final decree of dissolution. Appellant was not represented by counsel during this time period and did not appear at the hearing on the dissolution of the marriage during which the District Court determined that the property settlement agreement was not unconscionable. The agreement provided that appellant would receive maintenance in the amount of $ 125 per month for 24 months, or until her death or remarriage, whichever occurred first. The agreement further provided that “[s]aid maintenance is temporary, and in no event shall it continue for more than twenty-four (24) months.” Respondent complied with the agreement concerning payments of maintenance and March 1983 the maintenance obligation had been paid in full.

Since March 1983, the appellant has struggled financially due to a number of significant setbacks. Appellant, believing that her changed circumstances were of such a substantial and continuing nature so as to render the prior agreement unconscionable, filed with the District Court a petition for modification of the maintenance provision of the agreement on June 23, 1989. Respondent filed a motion to dismiss the petition for modification. The District Court denied respondents motion to dismiss on November 6, 1989.

Respondent then filed a second motion to dismiss based upon an alleged lack of subject matter jurisdiction. Appellant then filed a motion to set aside the 1981 decree of dissolution on the basis of extrinsic fraud. Prior to ruling on either of these motions, the District Court Judge withdrew from the case and was replaced by another Judge. The court then granted respondents motion to dismiss for lack of subject matter jurisdiction.

Appellant brought an appeal alleging that the District Court erred in granting respondent’s motion to dismiss. Following briefing, this Court determined that a final judgment had not been entered in the underlying action, in that the appellants motion before the District Court to set aside the decree of dissolution on the grounds of extrinsic fraud had not yet been ruled upon. On November 15,1990, this Court stayed the appeal and remanded the cause to the District Court for either a final decision on the appellants motion or certification pursuant to Rule 54(b), M.R.Civ.P., that a final decision regarding maintenance had been made. On remand, the District Court, on April 4,1991, denied appellants motion to set aside the decree of dissolution on the grounds of extrinsic fraud. On May 23,1991, this Court lifted the stay of this appeal. Appellant does not appeal the District Courts dismissal of the motion to set aside the decree of dissolution on the grounds of extrinsic fraud.

The issue to be discussed is whether the District Court erred in dismissing appellants petition for modification of the maintenance agreement incorporated into the 1981 final decree of dissolution.

Appellant brought the petition for modification of maintenance pursuant to § 40-4-208, MCA, which provides in part:

(1) Except as otherwise provided in 40-4-201(6), a decree may be modified by a court as to maintenance or support only as to installments accruing subsequent to actual notice to the parties of the motion for modification.
(2)....
(b) Whenever the decree proposed for modification contains provisions relating to maintenance or support, modification under subsection (1) may only be made:
(i) upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable ....

Modification of maintenance may be obtained upon a showing of changed circumstances, except as provided for in § 40-4-201(6), MCA, which states that:

Except for terms concerning the support, custody, or visitation of children, the decree may expressly preclude or limit modification of terms set forth in the decree if the separation agreement so provides. Otherwise, terms of a separation agreement set forth in the decree are automatically modified by modification of the decree.

The statutes on modification of maintenance are clear that the parties are free to preclude or limit any future modification of maintenance. If it is determined that the separation agreement incorporated into the final decree precludes modification, the analysis ends. The issue of whether there has been a change in circumstances so substantial and continuing so as to make the agreement unconscionable only arises after a determination that modification is permitted under the agreement. Marriage of Robertson (1989), 237 Mont. 406, 773 P.2d 1213.

The custody, support, and property agreement incorporated into the 1981 final decree provided that wife would receive maintenance for 24 months and that “[s]aid maintenance is temporary, and in no event shall it continue for more than twenty-four (24) months.” The agreement also contained mutual release language which stated that “each party hereto releases and forever discharges the other party ... from any and all rights, claims, demands and obligations, except as herein specifically provided ....” Finally, concerning modification, the agreement provided that “[i]nsofar as is legally permissible, the provisions of this agreement may not be modified by any court.” The District Court found that this language in the agreement expressly prohibited any attempt to modify the maintenance provision of the original decree. We agree. The clear language of the agreement indicates the parties intent that there be no modification of the maintenance provision. We have previously approved the statement that “where a separation agreement expressly precludes modification or limitation of maintenance, a District Court is barred from later modifying the terms of the agreement.” Marriage of Bolstad (1983), 203 Mont. 131, 135, 660 P.2d 95, 97.

Additionally, the District Court based its decision on the language contained in § 40-4-208(1), MCA, which states that “a decree may be modified by a court as to maintenance or support only as to installments accruing subsequent to actual notice to the parties of the motion for modification.” The District Court erred in finding that because the maintenance provision had been fulfilled and no payments could accrue, that the appellant could not seek modification of the maintenance. This Court has previously construed this portion of the statute stating that “[w]e find nothing in this statute which requires that there be payments currently accruing. The language of the statute precludes modification of payments whose due date has passed but that is all.” Fraunhofer v. Price (1979), 182 Mont. 7, 19, 594 P.2d 324, 331. In a recent decision of this Court, we stated that "the mere fact that a party is not currently paying maintenance does not necessarily preclude modification.” Marriage of Hagemo (1988), 230 Mont. 255, 259, 749 P.2d 1079, 1081. The District Court’s misinterpretation of this portion of the statute is harmless in light of the court’s correct finding that the agreement precludes any modification of the maintenance provision.

In granting respondent’s motion to dismiss, the District Court also relied on this Court’s decision in Marriage of McFate (1989), 239 Mont. 492, 781 P.2d 759. McFate involved a dispute over child support payments. In McFate, the separation agreement incorporated into the final decree provided that the obligation for child support would terminate once the children reached the age of majority. After the children reached the age of majority the wife filed a motion to modify husband’s child support obligation. In affirming the District Court’s denial of the motion, this Court stated that:

Once the party who owes the duty of support fulfills that obligation according to the terms of the agreement or the decree, the district court loses jurisdiction over the matter and can no longer entertain motions for modification or continuation of support.

McFate, 781 P.2d at 760.

In light of our holding that the agreement expressly prohibits modification, we need not address at this time whether the McFate decision, which clearly involves issues of support and not maintenance, would govern in the present situation. The order of the District Court dismissing appellants petition for modification is affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES GRAY, TRIEWEILER and McDONOUGH concur.


source: Caselaw Access Project

author: JUSTICE HUNT

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. VIRGINIA POLLOCK WILSON, Defendant and Appellant.
    No. 91-265.
    Submitted on Briefs December 12, 1991.
    Decided March 19, 1992.
    49 St.Rep. 243.
    252 Mont. 264.
    827 P.2d 1286.

      For Appellant: Randy S. Laedeke, Laedeke Law Office, Billings.
    For Respondent: Marc Racicot, Attorney General; George Schunk, Assistant Attorney General, Helena; Dennis Paxinos, Yellowstone County Attorney, Billings.
   JUSTICE HUNT

delivered the Opinion of the Court.

Defendant Virginia Pollock Wilson appeals from an order of the Thirteenth Judicial District Court, Yellowstone County, granting the State’s motion to dismiss for lack of subject matter jurisdiction and remanding the case back to Justice Court for sentencing and final judgment. We affirm.

Defendant raises two issues for this Court to consider.

1. Whether the District Court had subject matter jurisdiction over a D.U.I. case when the notice of appeal was filed prior to the Justice Court rendering sentencing and final judgment.

2. Whether the District Court erred when it dismissed defendant’s case and remanded it back to Justice Court for sentencing without allowing defendant the opportunity to respond to the State’s motion to dismiss as provided by Rule 2 of the Uniform District Court Rules and Rule 6, M.R.Civ.P.

On October 9, 1990, defendant was charged with driving a motor vehicle while under the influence of alcohol, third offense, pursuant to § 61-8-401, MCA (1989), and driving while privilege to do so is suspended or revoked pursuant to § 61-5-212, MCA (1989).

On February 5,1991, defendant was tried without a jury in Justice Court. At the conclusion of trial, the Justice of the Peace orally pronounced defendant guilty of the charges and ordered defendant to obtain an alcohol evaluation at her own expense and return for sentencing on February 26, 1991. On February 7, 1991, the Justice Court issued a written order and mailed it to the respective parties.

On February 11, 1991, defendant filed a notice of appeal to the Thirteenth Judicial District Court and the case was transferred to District Court on March 11,1991. On March 28,1991, the State filed a motion to dismiss on the basis that the appeal was premature because defendant had not been sentenced in Justice Court. On April 1, 1991, the District Court dismissed and remanded the case back to Justice Court for sentencing before defendant had an opportunity to respond with a brief. Defendant appeals from the order.

I

The first issue is whether the District Court had subject matter jurisdiction over a D.U.I. case when the notice of appeal was filed prior to the Justice Court rendering sentencing and final judgment.

Defendant contends that the appeal was improperly dismissed because notice of appeal was properly filed within the time parameters set by § 46-17-311(2), MCA(1989). Defendant argues that if she waited 21 days after the Justice Court orally pronounced her guilty she would have run the risk of being time barred from appealing.

Section 46-17-311, MCA(1989), provides that a party who appeals from Justice Court to District Court must give written notice of its intention to appeal within ten days after judgment. In State v. Mortenson (1978), 175 Mont. 403, 404, 574 P.2d 581, 582, we held that “the statutory ten day period for filing a notice of appeal runs from the date of oral pronouncement of judgment in open court.” We have held that a prerequisite for an appeal from Justice Court to District Court is the imposition of sentence and final judgment. State v. Hegeman (1991), 248 Mont. 49, 52, 808 P.2d 509, 511. Section 46-1-201(5), MCA (1989), defines judgment as meaning “an adjudication by the court that the defendant is guilty or not guilty, and if the adjudication is that the defendant is guilty, it includes the sentence pronounced by the court.”

Final judgment in this case had not been rendered. The Justice Court orally pronounced defendant guilty and ordered her to obtain an alcohol evaluation at her own expense. The Justice Court allowed her 21 days to obtain the evaluation before sentencing the defendant. Defendant filed notice of appeal prior to sentencing and final judgment by the Justice Court. An appeal cannot be utilized by the defendant until judgment has been fully rendered. This includes the conviction and sentencing of the defendant by the Justice Court. We agree with the District Judge that the District Court lacked subject matter jurisdiction in this case.

II

The second issue is whether the District Court erred when it dismissed defendants case and remanded it back to Justice Court for sentencing without allowing defendant the opportunity to respond to the State’s motion to dismiss as provided by Rule 2 of the Uniform District Court Rules and Rule 6, M.R.Civ.P.

Defendant argues that the District Court lacked authority to remand the case to Justice Court pursuant to our holding in City of Hardin v. Myers (1981), 194 Mont. 248, 249, 633 P.2d 677, 678, and that defense counsel did not have an opportunity to file an opposition brief to the States motion to dismiss. We stress the point that the District Court lacked subject matter jurisdiction to even hear this case because the Justice Court had not rendered sentencing and final judgment upon the defendant. We hold that under the facts and circumstances of this case the District Court properly dismissed and remanded the case to Justice Court for sentencing.

We affirm.

JUSTICES HARRISON, GRAY, TRIEWEILER, and WEBER concur.


text:
    ARLIN HOVELAND, WENDY HOVELAND, individually and as guardian for DANYEL HOVELAND, Plaintiffs and Appellants, v. CHARLES E. PETAJA, Defendant and Respondent.
    No. 91-032.
    Submitted on Briefs December 4, 1991.
    Decided March 24, 1992.
    49 St.Rep. 245.
    252 Mont. 268.
    828 P.2d 392.
    For Appellant: Ronald F. Waterman, Gough, Shanahan, Johnson and Waterman, Helena.
    For Respondent: Charles E. Petaja, pro se, Helena.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellants Arlin and Wendy Hoveland and their minor child, Danyel, appeal from an order of the First Judicial District Court, Lewis and Clark County, converting a motion to dismiss into a motion for summary judgment without giving notice to the parties and granting the motion for summary judgment in favor of the respondent, Charles E. Petaja.

We reverse and remand.

Appellants raise the following issues for this Court to consider:

1. Whether the District Court erred in converting a motion to dismiss into a motion for summary judgment without giving notice to the appellants, thereby denying them a reasonable opportunity to present all material pertinent to Rule 56, M.R.Civ.P.

2. Whether the District Court erred when it granted summary judgment to the defendant.

On September 6, 1987, appellants and daughter were injured in an automobile accident near Townsend. Appellants filed a lawsuit against John Dinsmore and the State of Montana, alleging negligence.

Prior to the filing of the lawsuit, appellants retained respondent as counsel. On September 29, 1987, appellants signed a contingency fee agreement with the respondent. This agreement allowed respondent to recover 30 percent of any settlement obtained. It also provided that appellants pay for costs and expenses of the litigation. The lawsuit continued to progress for three years. During that period, respondent had advanced moneys for costs of litigation and other expenses that appellant incurred.

On October 12, 1989, appellant Arlin Hoveland and respondent entered into another contingency fee agreement. The second agreement allowed respondent to receive 40 percent of any settlement obtained. Neither Mrs. Hoveland nor Danyel signed the second agreement.

On January 8, 1990, the lawsuit with Dinsmore was settled, and the State settled a few weeks later. The total amount of the settlement was approximately $260,000.

On January 18, 1990, respondent went to appellants’ home and presented the family with an accounting of $141,978.81 based on the 30 percent contingency agreement. This amount only included the Dinsmore settlement because the State had not yet settled. The appellants disputed the amount. They allege that as an inducement to settle, respondent represented to them that he would reduce his fee and pay expenses and costs of the litigation, guaranteeing the appellants $175,000. Appellants rejected the accounting. Respondent did not tender any money due to the appellants, and deposited $141,978.81 into an account exclusively under his control. Appellants allege that some of this money has been spent on purposes other than the trust provided to appellants. Pursuant to a motion, the account was frozen by the District Court on April 23, 1990. On August 23, 1990, the court released the funds in the account to the appellants. The amount totaled approximately $100,000.

On May 23,1990, appellants filed a complaint against respondent on the basis of fraud, negligence, and contract theories. On July 30, 1990, respondent filed a motion to dismiss, a motion to strike, and a motion for a more definite statement. Respondent alleged that pursuant to the 40 percent contingency agreement, appellants were entitled to only $115,000. Both sides filed the appropriate briefs and attached exhibits. In addition, both parties filed notices of submittal and waived oral argument.

On November 21, 1990, the District Court issued its ruling. The court converted the motion to dismiss into a motion for summary judgment. The court failed to give notice of its intention to convert the motions, and granted the motion for summary judgment in favor of the respondent. On November 29, 1990, appellants filed a motion for relief from judgment. The court denied the motion. Appellants appeal.

I

The first issue to be resolved is whether the District Court erred in converting a motion to dismiss into a motion for summary judgment without giving notice to the appellants, thereby denying them a reasonable opportunity to present all material pertinent to Rule, 56 M.R.Civ.P.

A motion to dismiss under Rule 12(b)(6), M.R.Civ.R, allows the District Court to only examine whether “a claim has been adequately stated in the complaint.” Gebhardt v. D.A. Davidson & Co. (1983), 203 Mont. 384, 389, 661 P.2d 855, 857. The District Court may only inquire into the content of the complaint. Gebhardt, 661 P.2d at 857. The effect of such a motion is admitting to all the well pleaded allegations in the complaint and it should not be dismissed “unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts which would entitle him to relief.” Gebhardt, 661 P.2d at 858.

However, Rule 12(b), M.R.Civ.P., allows the court to convert a motion to dismiss into a motion for summary judgment when matters outside the pleadings are presented to the court. Rule 12(b), M.R.Civ.P., states in part:

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such motion by Rule 56.

Thus, the court may use its discretion to exclude matters outside of the pleadings when considering a motion to dismiss. If it decides to include such matters outside of the pleadings, then it shall treat the motion as a motion for summary judgment.

Previously we have held that before a court can convert a motion to dismiss into a motion for summary judgment, it must give notice to the parties of its intention to convert the motion. State ex rel. Dept. of Health and Environmental Sciences v. City of Livingston (1976), 169 Mont 431, 436, 548 P.2d 155, 157; Graveley v. MacLeod (1978), 175 Mont. 338, 344, 573 P.2d 1166, 1169. The purpose of notice is to allow the parties a reasonable opportunity to present all material made pertinent to the motion and avoid sin-prise.

Formal notice by the court gives the party opposing the motion for summary judgment an opportunity to produce additional facts by affidavit or otherwise which would create a genuine issue of material fact to preclude summary judgment under Rule 56, M.R.Civ.P. First Federal Savings and Loan v. Anderson (1989), 238 Mont. 296, 299, 777 P.2d 1281, 1283.

We hold that the District court erred in failing to give notice of its intention to convert a motion to dismiss into a motion for summary judgment.

As a result of our holding in Issue I above, we need not discuss Issue II.

Reversed and remanded.

CHIEF JUSTICE TURNAGE and JUSTICES TRIEWEILER, McDONOUGH and WEBER concur.


author: JUSTICE WEBER JUSTICE GRAY,

text:
    IN RE THE MARRIAGE OF SHARIE MARIE COGAR, Petitioner and Appellant, and NICKEY EUGENE COGAR, Respondent and Respondent.
    No. 91-560.
    Submitted on Briefs February 13, 1992.
    Decided March 24, 1992.
    49 St.Rep. 247.
    252 Mont. 272.
    828 P.2d 1361.
    For Appellant: Carol J. Everly, Attorney at Law, Missoula.
    For Respondent: F.R. “Randy” Harrison, Attorney at Law, Missoula.
   JUSTICE WEBER

delivered the Opinion of the Court.

Pursuant to their decree of dissolution, Sharie Marie Cogar and Nickey Eugene Cogar were awarded joint custody of their two minor children with Mrs. Cogar as primary caretaker. Subsequently, Mr. Cogar moved for modification of joint custody of the children to sole custody in his care. The District Court for the Fourth Judicial District, Missoula County, entered a temporary custody order granting Mr. Cogar temporary sole custody. The next day, Mrs. Cogar moved to quash the temporary order. The District Court granted her motion and ordered a custody evaluation and a chemical dependency evaluation of Mrs. Cogar. After considering the results of those evaluations and interviewing the children, the District Court issued an order continuing joint custody with Mrs. Cogar as the primary custodian but amending the visitation schedule. Mrs. Cogar appeals from the District Court’s order amending the visitation schedule. We affirm.

We restate the issue as follows:

Did the District Court abuse its discretion when it denied the motion for sole custody but modified the existing visitation schedule?

The marriage of Sharie and Nickey Cogar was dissolved on June 2, 1989. The parties agreed to share joint custody of their two minor children with Mrs. Cogar as the primary caretaker. Aminimum visitation schedule was agreed to and incorporated into the decree of dissolution. Mr. Cogar’s visitation was to include as a minimum: (1) two consecutive days and one over night visit each and every week; (2) alternating weekends commencing at 5:00 p.m. Friday evening and ending at 6:00 p.m. Sunday evening; (3) alternating visitation on the holidays of Memorial Day, Labor Day, Fourth of July, Thanksgiving and Easter. Mrs. Cogar was to have every Christmas and Mr. Cogar was to have every Christmas eve; and (4) Mr. Cogar was to have the children six weeks of the summer beginning one week after school recessed for the summer.

In October of 1989, Mr. Cogar moved the court to modify child custody and name him as primary custodian. He based his motions on allegations that changed circumstances would make it in the children’s best interests to reside primarily with him. The court authorized the appointment of a guardian ad litem for the children and ordered that the children undergo an evaluation by counselors at the Mental Health Center.

The children were evaluated by Dr. Sandra Rahrer. Dr. Rahrer recommended that the visitation arrangement then in effect be maintained.

On April 2, 1991, Mr. Cogar filed another motion for sole custody in which he alleged that Mrs. Cogar had been arrested for driving under the influence; that she had no valid driver’s license, vehicle license or liability insurance; that she had moved the children five times in a two year period; that she had been treated for alcoholism; and that their son had been retained in kindergarten due to excessive absences.

The District Court issued an ex parte order of temporary custody. The next day, Mrs. Cogar moved the court to quash the temporary custody order. A hearing was held on April 5, 1991. At the hearing, Judge McLean questioned the children in his chambers as to custody and visitation.

The court granted Mrs. Cogar’s motion to quash the temporary custody order. However, it ordered a new custody evaluation and ordered Mrs. Cogar to undergo a chemical dependency evaluation. It further ordered that the parties share the physical custody of their children on a weekly basis — one parent would keep the children for one week and then alternate so that the other parent would keep the children for one week.

A follow-up hearing was held on August 21, 1991, in which the court considered the results of the custody evaluation done by Dr. Philip Bornstein and Dr. Marcy Bomstein. Some of the Bornsteins’ conclusions follow:

4. Emotionally, [the children] are in need of nurturance, affection, understanding, and a reduction of interparental judgmental attitudes. To best accomplish this, they must be assured of continuing contact with both parents.
As evaluators, we have considered the best interests of the minor children by evaluating their desires, the desires of their parents, the children’s relationship to each parent, and the children’s current adjustment to home, school, and community. Indeed, reviewing all data presented above, this examiner finds that the awarding of joint custody continues to be in the best interests of [the children].
6. Thus, given the above findings, this examiner believes there is little reason to change the visitation schedule as originally prescribed in the June 2, 1989 Decree of Dissolution ....
8. Mr. and Mrs. Cogar should agree upon the following:
A. The sharing of time with children dining holidays, vacations, etc., should be as equal as possible.
B. Once a schedule is put into effect, that schedule should be followed as closely as possible.
Regardless of residential plan, the principle of joint custody provides assurance that both parents can remain significantly involved in all substantive matters that have impact upon the children. (Emphasis added).

After considering the Bornsteins’ evaluation, the District Court decided to have the parties follow the residential plan known as the “Ackerman Plan”. The court described the plan as follows:

THE COURT: It is known as the 94 (sic), 10/5 (sic) Plan. Sharie will have the children during the school year on a 9/5 basis. During the summer, Nick will have the summer on a 1Q4 basis. You can take a look at this plan and draw it up.
The % plan during the school year means that Sharie will have the children nine out of fourteen days and Nick will have them five out of the fourteen days. During the summertime that changes to where Nick has the children ten days out of the fourteen and Sharie has them four days out of the fourteen.
The way it works is on the % plan, he will have theme, like, three days one week and two days the next, or four days one week and one week the next. He will have them Thursday, Friday, Saturday, and Sunday of one week. The following week he will have them on a Saturday.
Sharie will have them the remainder of the time. During Christmas vacation he will have them for two weeks; during Thanksgiving and Easter vacation he will have them one week. During the summer months — summer means it begins the day after school gets out and ends the day before school starts — Nick will have the children ten out of every fourteen days, with Sharie having the children for a three-day weekend one week and overnight the alternate week.
The way this will end up is Sharie will wind up with the children approximately twenty days more per year than Nick will have, when it all comes out in the wash. This plan is meant to address the jumping back and forth where we are talking about the stability for the child’s benefit.

Mrs. Cogar appeals from the District Court’s imposition of the Ackerman plan.

Did the District Court abuse its discretion when it denied the motion for sole custody but modified the existing visitation schedule?

In his motion to modify custody dated April 2, 1991, Mr. Cogar sought to be awarded the sole custody of his children pursuant to § 40-4-219, MCA. That motion was denied by the District Court, Instead, the District Court modified the visitation time that the parents spent with their children. Mrs. Cogar maintains that since a change in visitation time was not the issue before the court, it erred in modifying it. She maintains that the District Court would have had to have shown serious endangerment to the children before it could modify visitation.

Mr. Cogar maintains that a change in visitation time does not amount to a change in “custody’ under § 40-4-219, MCA, when the parties retained joint custody. We agree.

Section 40-4-219, MCA, provides that the court may in its discretion modify a prior custody decree if it finds (1) that a change has occurred in the circumstances of the child and that the modification is necessary to serve the best interest of the child; and (2) if it further finds that the child’s present environment endangers seriously his physical, mental, moral, or emotional health and the harm likely to be caused by a change of environment is outweighed by its advantages to him. After considering custody evaluations, the children’s wishes and a chemical dependency evaluation, the District Court determined that it was in the best interest of the children to continue joint custody. In the same order, the District Court modified the visitation schedule by instigating the Ackerman Plan of visitation.

As evidenced by the statutes, custody and visitation are not the same thing. Under § 40-4-218, MCA, the custodian has the right to determine the child’s upbringing, including his education, health care and religious training, unless there is a specific limitation on his authority. We are not dealing with an issue of custody here but rather an issue of visitation. Under the provisions of § 40-4-217, MCA, a parent not granted custody of a child is entitled to reasonable visitation rights and the district court may modify “visitation rights whenever modification would serve the best interest of the child[ren]”. The statute further provides that “the court may not restrict a parent’s visitation rights unless it finds that the visitation would endanger seriously the child’s physical, mental, moral, or emotional health”.

The District Court here concluded that joint custody was still appropriate and continued the original joint custody provision. The court did not restrict either parent’s visitation. The court stated that the Ackerman Plan was meant to “address the jumping back and forth where we are talking about the stability for the child’s benefit.” The court further stated: “I have read the children’s feelings. I’m doing what I think is in the best interests of the children.” Acting under the specific provisions of § 40-4-217, MCA, the District Court modified the visitation plan. We hold that the District Court did not abuse its discretion in the modification of the visitation plan.

CHIEF JUSTICE TURNAGE and JUSTICES HUNT and TRIEWEILER concur.

JUSTICE GRAY,

dissenting:

I respectfully dissent from the majority opinion. It is my view that the District Court abused its discretion in imposing a significantly revised visitation schedule where neither party requested modification of visitation and no evidence on the record supports the court’s action.

The majority correctly notes that the District Court imposed the “Ackerman Plan” subsequent to an August 21,1991, hearing and that the court states that it considered the results of the custody evaluation done by Drs. Bornstein. The District Court did not cite to the Bomstein report, however, in support of its imposition of the new visitation schedule; the majority attempts to do so to avoid finding an abuse of discretion.

It is my view that the majority’s efforts in this regard are in error, as a clear reading of the report and the majority’s quotations from it indicate. First, the cited portions relating to continued contact with both parents and continued joint custody being in the best interests of the children have nothing whatsoever to do with the matter of substantially revising the visitation schedule. Next, the majority quotes, but does not highlight the Bornsteins’ conclusion that “there is little reason to change the visitation schedule as originally prescribed ....” The majority goes on to quote the Bornsteins’ recommendation that holiday and vacation time should be shared “as equal as possible.” It is important to note that this recommendation is limited in scope; no recommendation is made that all of the children’s time be shared as equally as possible (which is the ultimate result of the court’s imposition of the “Ackerman Plan”), but only that vacation times be so shared. Finally, the majority highlights a statement from the Bornsteins’ report relating only to the importance of continuing joint custody, which was the question before the District Court, and not to revising the visitation schedule. Absolutely nothing in the Bornsteins’ report supports the court’s imposition of the “Ackerman Plan.”

The majority then goes on to quote from the District Court’s explanation of that Plan, including the notion that the “plan is meant to address the jumping back and forth where we are talking about the stability for the child’s benefit.” A more “jumping back and forth” schedule disruptive to the children’s stability, particularly in light of the recommendations from the Bornsteins, hardly can be imagined.

I agree with the majority that, pursuant to § 40-4-217(3), MCA, a court can modify visitation rights when it “would serve the best interest of the child[ren].” Nothing on the record before the District Court or this Comb supports the notion that the imposed visitation plan is in the children’s best interest; nor does the District Court make any findings regarding the children’s best interests insofar as this visitation plan is concerned.

I would hold that the District Court abused its discretion.


author: CHIEF JUSTICE TURNAGE

text:
    IN THE MATTER OF A.N.S., L.M.R. Youths in Need of Care.
    No. 91-168.
    Submitted on Briefs February 13, 1992.
    Decided March 24, 1992.
    As Amended March 26, 1992.
    252 Mont. 279.
    49 St.Rep. 250.
    828 P.2d 1357.

      For Appellant: James A. Patten, Patten Law Firm, Billings.
    For Respondents: Marc Racicot, Attorney General, Cregg W. Coughlin, Assistant Attorney General, Helena; Dennis Paxinos, County Attorney, Susan Dunn, Deputy County Attorney; Damon L. Gannett, Attorney at Law; D. Michael Eakin, Attorney at Law, Billings.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

M.M. (Mother) appeals the findings of fact, conclusions of law and judgment of the Thirteenth Judicial District, Yellowstone County, terminating her parental rights to her children, A.N.S. and L.M.R. We affirm.

We rephrase the issues presented on appeal as follows:

1. Did the District Court lack jurisdiction to terminate Mother’s parental rights?

2. Did the District Court abuse its discretion in denying Mother’s motion to dismiss?

3. Were the District Court’s findings of fact, conclusions of law, and the judgment supported by clear and convincing evidence?

Mother is the natural mother of three children: L.M., bom October 29, 1983; A.N.S., bom November 19, 1987; and L.M.R., born March 16, 1989. The natural father of L.M. is unknown. L.S. is the natural father of A.N.S. and is incarcerated at Montana State Prison. M.R. is the natural father of L.M.R.

Mother suffers from a chronic schizophrenia, undifferentiated type, and a borderline personality disorder. Her mental illness causes her to suffer paranoia and active hallucinations. On August 19,1985, the District Court terminated Mother’s parental rights to L.M. after finding 1) L.M. to be a youth in need of care under § 41-3-102, MCA, 2) Mother incapable of adhering to any proposed treatment plan, and 3) Mother unfit and unable to provide adequate parental care to L.M. with her conduct and condition unlikely to change in a reasonable amount of time. In the Matter of L.M., Thirteenth Judicial District Court, Yellowstone County, Cause No. DJ-85-007 (1985).

A.N.S. and L.M.R. have been under protective custody of Montana Department of Family Services since their births. A.N.S. was placed in foster care and L.M.R. was placed with his father, M.R. Besides periodic visits, A.N.S. has never been in Mother’s custody. L.M.R has never lived with Mother.

From 1984 to 1989, Department of Family Services and other agencies attempted to assist Mother in developing parenting skills with minimal success. Mother’s conduct and condition continued to render her unable to provide adequate parenting skills.

On May 24,1989, a deputy county attorney, on behalf of Montana Department of Family Services, petitioned the District Court for permanent legal custody and termination of Mother’s parental rights to A.N.S. and temporary legal custody and termination of mother’s parental rights to L.M.R. On July 10, 1990, the District Court terminated Mother’s rights to A.N.S. and L.M.R. From this order, Mother appeals.

1. Did the District Court lack jurisdiction to terminate Mother’s parental rights?

Mother argues that § 41-3-607(1), MCA, which provides that a dispositional hearing on termination of parental rights be held within 180 days of the filing of the petition, mandates that a petition be dismissed if a hearing is not held within the prescribed time. Here, the petition was filed May 24,1989. The case was assigned to District Court Judge Barz. Thereafter, Judge Barz was appointed to the Montana Supreme Court. Judge Colberg was appointed as a judge to the Thirteenth Judicial District on November 13,1989. On November 30, 1989, Judge Colberg scheduled a dispositional hearing in this matter for February 14, 1990. Thereafter, Mother moved for a continuance but reserved her rights to assert all defects arising due to the lapse of time period. This matter was then heard on March 20 and 21,1990.

The 1985 Montana Legislature amended § 41-3-607(1), MCA, as shown by the underlined portion which follows:

The termination of a parent-child legal relationship shall be considered only after the filing of a petition pursuant to 41-3-401 alleging the factual grounds for termination. Termination of a parent-child legal relationship shall be considered at a dispositional hearing held pursuant to 41-3-406, following or together with an adjudicatory hearing held pursuant to 41-3-404, within 180 days after the filing of the petition.

See, 1985 Mont. Laws, Ch. 388. The Legislature’s intent was to give added protection to children who are the subjects of abuse, neglect, and dependency by encouraging those cases to be handled in a reasonably prompt manner. Nothing in the legislative history of this amendment suggests that the Legislature intended that an action be dismissed when a dispositional hearing is not held within the 180-day time frame or that the amendment was intended to provide a statute of limitation protection for the parents of children who are alleged to be abused, neglected, or dependent.

Mother further argues that the word “shall” in this statute mandates dismissal of this action if the 180-day time limitation is not met. While the word “shall” in a statute is oftentimes mandatory, other factors must be considered to determine a statute’s mandatory or directive effect when a time limitation is involved.

In State v. Nelson (Kan. 1968), 436 P.2d 885, cert. denied, 392 U.S. 915, the court considered a similar challenge to a court’s jurisdiction, wherein a criminal defendant sought discharge from incarceration when the court did not impose sentence within five days of the court’s denial of his motion for a new trial. The court held:

Provisions intended to secure order, system and dispatch in the mode of proceeding by public officials, and by a disregard of which parties cannot be injuriously affected, are not regarded as mandatory unless accompanied by negative words importing the acts required shall not be done in any other manner or time than that designated. [Citations omitted.]

Nelson, 436 P.2d at 887.

The same reasoning was enunciated in Wyoming State Treasurer v. City of Casper (Wyo. 1976), 551 P.2d 687, wherein the court held:

It is a universal holding that a statute specifying a time within which a public officer is to perform an official act regarding the rights and duties of others is directory, unless the nature of the act to be performed, or the phraseology of the statute is such that the designation of time must be considered as a limitation of the power of the officer. [Citations omitted.]
Another aid to construction is in the rule that an affirmative statutory provision relating to the time of performing official acts, unlimited or unqualified by negative words, is generally considered as directory rather than mandatory. [Citations omitted.]

City of Casper, 551 P.2d at 698-99.

In Wilson v. Brodie (1966), 148 Mont. 235,419 P.2d 306, this Court considered whether a justice court lost jurisdiction to enter sentence when the sentencing did not meet the statutory requirement that it occur “not more than two days nor less than six hours after the verdict is rendered.” Although deciding the case on other grounds, this Court stated:

Even if the sentencing, arguendo, was imposed irregularly it is still valid for the purpose of determining whether the justice was acting within his jurisdiction. It is merely a procedural irregularity which cannot be raised for the purpose of attacking the jurisdiction of the justice court. [Citations omitted.] The statute is directory rather than mandatory or jurisdictional.

Wilson v. Brodie, 148 Mont. at 239, 419 P.2d at 309. Accordingly, we hold that § 41-3-607(1), MCA, is directory and therefore, the District Court did not lack jurisdiction to terminate Mother’s parental rights based on the 180-day time limitation.

2. Did the District Court abuse its discretion in denying Mother’s motion to dismiss?

Mother argues that because the dispositional hearing was not held within 180 days of the filing of the petition, the evidence presented at the dispositional hearing was stale and not based upon Mother’s current situation. Following a review of the record, we hold that nothing about the delay in the hearing caused prejudice to Mother. The record indicates that 1) Mother has been seriously mentally ill for years, 2) five years of treatment plans and other agency involvement to help Mother with parenting skills have proven unsuccessful, and 3) Mother’s condition and conduct are unlikely to change in the future. We therefore hold that the District Court did not abuse its discretion when it denied Mother’s motion to dismiss.

3. Were the District Court’s findings of fact, conclusions of law, and the judgment supported by clear and convincing evidence?

Section 41-3-609, MCA (1989), sets forth the criteria the District Court was to follow for terminating Mother’s parental rights:

(1) The court may order a termination of the parent-child legal relationship upon a finding that the circumstances contained in subsection (l)(a), (l)(b), or (l)(c), as follows, exist:
(c) the child is an adjudicated youth in need of care and both of the following exist:
(1) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and
(ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time.
(2) In determining whether the conduct or condition of the parents is unlikely to change within a reasonable time, the court must enter a finding that continuation of the parent-child legal relationship will likely result in continued abuse or neglect or that the conduct or the condition of the parents renders the parents unfit, unable, or unwilling to give the child adequate parental care. In making such determinations, the court shall consider but is not limited to the following:
(a) emotional illness, mental illness, or mental deficiency of the parent of such duration or nature as to render the parent unlikely to care for the ongoing physical, mental, and emotional needs of the child within a reasonable time;
(g) any reasonable efforts by protective service agencies that have been unable to rehabilitate the parent.

Mother argues that the record does not support by clear and convincing evidence the statutory criteria of § 41-3-609, MCA(1989). She argues that the record merely proves that Mother is uncooperative and argumentative. We disagree.

The record indicates that the children were adjudicated to be youths in need of care. Ten witnesses, including health care professionals, social workers, a home attendant, a child care volunteer, a friend of Mother’s, and a neighbor gave testimony relating to 1) several unsuccessful attempts to assist Mother with developing parenting skills through treatment plans and agency involvement and 2) Mother’s ongoing inability to provide adequate parenting skills for her children. In particular, Dr. David Carlson, a psychiatrist, testified that Mother suffers from chronic schizophrenia, undifferentiated type, and a borderline personality disorder, mental illnesses of such duration or nature as to render her unlikely to be able to care for the ongoing physical, mental, and emotional needs of her children within a reasonable time. Based on this clear and convincing testimony, we hold that the District Court’s findings of fact, conclusions of law, and judgment are supported by clear and convincing evidence.

In conclusion, we affirm the District Court’s findings of fact, conclusions of law and judgment terminating Mother’s parental rights to A.N.S. and L.M.R.

JUSTICES GRAY, TRIEWEILER, WEBER and McDONOUGH concur.


author: JUSTICE McDONOUGH

text:
    HENRY E. NELSON, Claimant and Appellant, v. SEMITOOL, INC., and EBI ORION GROUP, Defendants and Respondents.
    No. 91-442
    Submitted on Briefs February 13, 1992.
    Decided March 26, 1992.
    49 St.Rep. 253.
    252 Mont. 286.
    829 P.2d 1.

      For Appellant: Kenneth E. O’Brien, Hash, O’Brien & Bartlett, Kalispell.
    For Respondent: Robert E, Sheridan, Garlington, Lohn & Robinson, Missoula.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

Henry E. Nelson (Nelson) appeals from an order of the Workers’ Compensation Court attributing fifty percent of his disability to an occupational disease resulting from his employment with the respondent, Semitool Inc., and fifty percent to a preexisting disability. Nelson asserts that the occupational disease from which he suffers is fully compensable by Semitool and was inappropriately apportioned by the Department of Labor. We affirm.

The single issue for our review is whether the Workers’ Compensation Court erred by apportioning fifty percent of Nelson’s current disability to a preexisting disability.

From 1964 until 1969, Nelson was an employee of the United States Postal Service. While employed by the postal service Nelson injured his back necessitating a lumbar spinal fusion. His back condition prevented him from performing his postal service duties and he began receiving federal workers’ compensation benefits. Nelson received full disability benefits until 1978 and appears to continue to receive partial benefits at present.

From 1978 until 1982, with the exception of approximately seven months, Nelson worked as a hardware store clerk. There is conflicting evidence regarding what, if any, back problems Nelson experienced while employed as a clerk. There is evidence that Nelson consulted with a local orthopedist and reported low back pain that radiated into his legs during this period.

In 1982, Nelson began working for Semitool, Inc. Because of his prior back condition, Semitool required a physical. Nelson was cleared to lift 100 pounds on a regular basis. From 1982 until 1988 Nelson held several jobs with Semitool, each of which presented severe physical demands including heavy lifting. In 1988, Nelson began experiencing back problems which grew progressively worse culminating in Nelson’s inability to continue work.

The Department of Labor directed that Nelson be examined by a member of the Occupational Disease Panel to determine if he suffered from an occupational disease. Nelson was examined by Dr. W.J. McKinstry who concluded that Nelson’s back problems were related to his employment at Semitool. A second examination was conducted by Dr. McDonald who concluded that Nelson’s back pain was not attributable to his work at Semitool but to his prior injury and the lumbar fusion. Because of the differing opinions, a third doctor, Dr. Jacobson, was appointed to review the case and act as referee. Dr. Jacobson concurred with Dr. McDonald and on this basis the Department of Labor derned Nelson benefits under the Occupational Disease Act.

Nelson appealed the Department of Labor decision and a hearing examiner was appointed. The hearing examiner determined that Nelson did suffer from an occupational disease as a result of the work at Semitool but that under §39-72-706, MCA, Semitool was only fifty percent responsible for the current condition. Both parties appealed to the Workers’ Compensation Court and the hearing examiner’s conclusion was affirmed.

In addition to the reports and depositions of the above mentioned examining doctors, the record includes the opinions of Nelson’s treating physicians, Drs. Ingham and Stephens. All of the doctors appear to agree that Nelson is suffering from a condition called spinal stenosis. Spinal stenosis is the narrowing of the area through which the nerves pass in the spinal column. The stenosis in Nelson’s case is a result of increased bony growth or hypertrophic bone growth that has developed at the site of the 1968 bone fusion. There is conflicting evidence regarding whether or not the work at Semitool caused, accelerated, aggravated or is totally unrelated to Nelson’s condition.

Nelson argues that at the time he went to work for Semitool he was completely recovered from his prior injury and that his current condition is the result of his work at Semitool. Therefore, Nelson contends Semitool is liable for one hundred percent of his current occupational disease. There is no dispute that Nelson is disabled and at least part of the disability is an occupational disease resulting from his work for Semitool. The current dispute requiring our resolution is whether, under § 39-72-706, MCA, Nelson’s disability is appropriate for apportionment between his preexisting condition and the occupational disease.

Section 39-72-706, MCA, provides in pertinent part:

Aggravation. (1) If an occupational disease is aggravated by any other disease or infirmity not itself compensable or if disability or death from any other cause not itself compensable is aggravated, prolonged, accelerated, or in any way contributed to by an occupational disease, the compensation payable under this chapter must be reduced and limited to such proportion only of the compensation that would be payable if the occupational disease were the sole cause of the disability or death as such occupational disease as a causative factor bears to all the causes of such disability or death.

The Workers’ Compensation Court concluded that employment with Semitool accelerated Nelson’s disease to the extent that Nelson could no longer perform his job. Semitool was held liable for the portion of the disability determined to be aggravated and accelerated by Nelson’s employment with them. The remaining liability was affixed to Nelson’s preexisting condition.

It is not the function of this Court to reweigh the evidence. We will uphold the findings and conclusions of the Workers’ Compensation Court if they are supported by substantial credible evidence in the record. Eastman v. Atlantic Richfield Co. (1989), 237 Mont. 332, 777 P.2d 862. Where the findings are based on conflicting evidence, the Court’s function is to determine whether there is substantial evidence to support the findings and not to determine whether there is sufficient evidence to support contrary findings. Little v. Structural Systems (1980), 188 Mont. 482, 614 P.2d 516.

There is no dispute that Nelson suffers from spinal stenosis. Furthermore, the doctors agree that had the original injury and the resulting fusion surgery never occurred, it is unlikely that Nelson would have ever developed spinal stenosis. There is evidence, although the doctors dispute whether it is merely possible or whether it is probable, that strenuous physical activity accelerates hypertrophic bone growth and the development of spinal stenosis. It was not possible for the physicians to determine if the stenosis developed prior to or after Nelson began working for Semitool. However, there is evidence that Nelson continued to have back problems in the years immediately preceding his work with Semitool.

Nelson contends that because his preexisting condition did not prevent him from working at Semitool it is not a disability that permits apportionment. Furthermore, he contends that the occupational disease from which he suffers is spinal stenosis, a distinct and separate condition from the original postal service injury that required the fusion surgery. Nelson refers to Larsen’s treatise on Workers’ Compensation wherein Larsen states:

To be apportionable, then, an impairment must have been independently producing some degree of disability before the accident, and must be continuing to operate as a source of disability after the accident. Larsen’s Workers’ Compensation, Volume 2, Section 59.22(c), Page 10-401.

We do not find the conclusion of the Workers’ Compensation Court to be inconsistent with Larsen as cited above. There is substantial evidence that the original back injury was an impairment that “independently produced some degree of disability”. For example, claimant had to leave a previous job due to his back injury. There is also substantial evidence to support the finding that the prior injury is the source of Nelson’s current disability.

Section 39-72-706, MCA, requires that if a disability from another cause is aggravated or accelerated or in any way contributed to by an occupational disease, compensation for the occupational disease is reduced in a proportional amount. We conclude that substantial evidence exists that cumulative trauma from work at Semitool aggravated Nelson’s preexisting back disability. The Workers’ Compensation Court is affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES TRIEWEILER, HUNT and WEBER concur.


author: JUSTICE TRIEWEILER

text:
    IN RE THE MARRIAGE OF SHIRLEY ANN HARRIS, Petitioner and Respondent, and RICHARD THOMAS HARRIS, Respondent and Appellant.
    No. 91-454.
    Submitted on Briefs January 16, 1992.
    Decided March 26, 1992.
    49 St.Rep. 255.
    252 Mont. 291.
    828 P.2d 1365.

      For Appellant: Kevin T. Sweeney, Sweeney & Healow, Billings.
    For Respondent: Linda L. Harris, Harris Law Firm, Billings.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

On May 16, 1990, Shirley Ann Harris petitioned for dissolution of marriage in the Thirteenth Judicial District Court in Yellowstone County. The District Court dissolved her marriage to Richard Thomas Harris, distributed the marital estate, and awarded Shirley maintenance in the amount of $800 per month. The court denied Richard’s motion for a new trial or amendment of the court’s findings and judgment. Richard appeals. We affirm.

The issues are:

1. Did the District Court err when it found that Shirley was permanently disabled and had no future ability to work?

2. Did the District Court err when it concluded that the antenuptial agreement between the parties did not preclude an award of maintenance?

3. Did the District Court err when it found that Shirley’s needs justified $800 per month in maintenance?

4. Did the District Court err when it found that Richard could afford to pay $800 per month in maintenance?

Richard and Shirley were married on November 23, 1984. Both had been married previously. On that same day, they had executed an antenuptial agreement that essentially renounced any claims each party might have against the previously acquired property of the other in the event of a dissolution of their marriage. The marriage produced no children.

Early in the marriage Shirley developed bladder cancer. She underwent urostomy surgery, a procedure that involves removal of the cancerous bladder and construction of a replacement bladder from the patient’s own tissue. The new bladder does not perform as well as the old one, and consequently she must urinate frequently and is susceptible to bladder infections. The Social Security Administration has determined that she is permanently and totally disabled. At the time of trial she was 54 years old.

Richard is a semiretired real estate broker. He had accumulated substantial assets prior to the marriage. At the time of trial he was 63.

On June 7, 1991, the District Court issued its findings of fact and conclusions of law. The court dissolved the marriage, distributed the property of the parties according to the antenuptial agreement, and awarded Shirley $800 per month as maintenance. The court also awarded Shirley reasonable attorney fees.

After the District Court issued a final decree of dissolution on June 27, 1991, Richard moved for a new trial or amendment of the findings and judgment. Richard argued that the court had erred in (1) calculating his income and expenses; and (2) awarding maintenance in contravention of the antenuptial agreement. The court denied Richard’s motion on July 30, 1991. Richard appeals.

I

Did the District Court err when it found that Shirley was permanently disabled and had no future ability to work?

Richard argues that the court erroneously admitted hearsay evidence by allowing Shirley to testify that her doctor had told her she was totally disabled and unable to work. He contends that without this hearsay evidence, the record contains no credible evidence from which the District Court could find that Shirley was disabled and -unable to work. We cannot agree with this characterization of the record.

First, the District Court did not admit hearsay evidence. The key portion of the transcript reads as follows:

Q. Do you anticipate you will ever be able to work?
A. [By Shirley] No.
Q. Have you been so advised by your physician?
MR. SWEENEY: Objection, Your Honor. Hearsay.
THE COURT: Overruled.
Q. Are you presently living in Columbia, Missouri?

[Emphasis added.]

After the court overruled Richard’s objection, Shirley’s attorney switched topics and never returned to the subject of what Shirley’s doctor told her about whether she could work. Thus, Richard’s hearsay argument lacks merit.

Second, the record contains other evidence from which the District Court could find that Shirley was unable to work. Early in her direct examination, Shirley testified without objection that the Social Security Administration had determined that she was totally disabled. She also expressed her own opinion that she was unemployable. There was no objection to that opinion, and no qualified opinion to the contrary.

In appeals from judge-made findings of fact, we defer to the trial court’s opportunity to listen to and observe the witnesses as they testify under oath. The standard of review for all judge-made findings of fact is whether they are “clearly erroneous” within the meaning of Rule 52, M.R.Civ.R Walden v. State (Mont. 1991), [250 Mont. 132,] 818 P.2d 1190, 48 St.Rep. 893. Based on its assessment of the weight of the evidence, the court found that this 54-year-old woman with an artificial bladder who was classified as totally disabled by the Social Security Administration could not work. This was not “clearly erroneous.”

We hold that the District Court did not err when it found that Shirley was permanently disabled and had no future ability to work.

II

Did the District Court err when it concluded that the antenuptial agreement between the parties did not preclude an award of maintenance?

Richard argues that the court’s maintenance award was erroneous in light of the 1984 antenuptial agreement between the parties. Generally, this agreement indicates a waiver by each party of any claim to the previously acquired property of the other in the event of a dissolution of their marriage. The District Court actually followed this scheme in its distribution of the marital estate.

Richard, however, contends that the court did not go far enough and that the agreement also prohibited any future award of maintenance if the payment came from income derived from that property. He asserts that Shirley waived her right to maintenance in this agreement and that the District Court was bound by its terms. We reject both parts of this argument.

The relevant portions of the agreement provide as follows:

3. [Shirley] further agrees that in the event of the dissolution of marriage or separation of parties or the death of [Richard], the aforementioned property, or the proceeds therefrom, shall be excluded from the determination of the amount of specific property [Shirley] shall be entitled to receive by reason of her marriage to [Richard], [Richard’s] property shall not be considered either directly or indirectly in any determination of the nature and extent of her marital rights.
7. After the solemnization of the marriage between the parties, property acquired by a party which is intended by that party to be separate property maybe put in the separate name of the acquiring party and such property shall be the separate property of the acquiring party. Each party agrees in consideration of said contemplated marriage that each waives, releases and relinquishes to the other party all right to the use and control of the other party’s separate property and estate and income therefrom .... Each party relinquishes or agrees to relinquish any and all claims to or for the separate property of the other party in the event of a dissolution of marriage or separation of the parties. Each party also specifically agrees that in the event of the dissolution of marriage or separation of the parties, each party’s separate property shall be excluded from the determination of the amount of specific property each would be entitled to receive from the other by reason of his or her marriage to the other.

Richard suggests that by considering his net worth in awarding maintenance, the court “indirectly” considered his property in determining Shirley’s marital rights, and that this contravenes the agreement.

We disagree. The quoted language deals only with property division. It is silent on the question of maintenance. In Baker v. Bailey (1989), 240 Mont. 139, 143-44, 782 P.2d 1286, 1288, we said “[w]here the language of a written contract is clear and unambiguous, there is nothing for the court to construe. Because this contract is clear and unambiguous, we decline Richard’s invitation to construe the word “indirectly” as synonymous with “maintenance.” The agreement by its terms does not expressly prohibit a maintenance award.

Additionally, at the time the parties executed the antenuptial agreement the law did not recognize maintenance waivers. In Stefonick v. Stefonick (1946), 118 Mont. 486, 167 P.2d 848, we considered an antenuptial agreement that purported to waive the wife’s right to maintenance in the event of divorce. We held that that part of the agreement was void for being contrary to public policy. Stefonick, 167 P.2d at 854.

We recognize that the Uniform Premarital Agreement Act modified our holding in Stefonick, and that parties may now contract for the “modification or elimination of spousal support.” Section 40-2-605(l)(d), MCA. However, the Uniform Premarital Agreement Act is a product of the 1987 legislature, see ch. 189, 1987 Mont. Laws 316, and was not the law in 1984 when the parties executed the antenuptial agreement at issue in this case.

As the District Court pointed out:

A careful review of the Ante-Nuptial Agreement discloses that it was not [intended] nor does it by implication, purport to be a waiver or release of any claim either party may have for spousal maintenance. It seems obvious that the agreement was drawn having in mind the decision of the Montana Supreme Court in Stefonick v. Stefonick, 118 Mont. 486, 500, 167 P.2d 848, wherein the Court held that a provision in an Ante-Nuptial Agreement providing that ‘The other party shall never be called upon to pay alimony, separate maintenance, cost of suit or any other expense incurred by the party bringing the action” was void as against public policy. It is clear that the drafter of the document was well aware of the Stefonick decision and purposely did not include in the agreement a provision which would be subject to being held as void in violation of public policy.

We agree with the District Court. Richard cannot argue now that the agreement contains by implication a provision that would have been void as contrary to public policy at the time the parties executed it.

We hold that the District Court did not err when it concluded that the antenuptial agreement between the parties did not preclude an award of maintenance.

III

Did the District Court err when it found that Shirley’s needs justified $800 per month in maintenance?

In addition to arguing that the court had no authority to award any maintenance at all, Richard also argues that the court awarded too much maintenance in light of the “short” six-year marriage of the parties. He asserts that the highest net income ever available to Shirley before the marriage was $855.80, that she has monthly Social Security income of $526.00, and that therefore the court should have awarded only $329.80 ($855.80 minus $526.00) in order to duplicate her premarital standard of living. The flaw in this contention is that it considers only the duration of the marriage.

Richard cites In re Marriage of Lundvall (1990), 241 Mont. 172, 786 P.2d 10, in support of his argument that the court’s maintenance award was too high in light of the short duration of this marriage. In that case we said:

While the duration of a marriage is a factor to be considered in connection with the award of maintenance, § 40-4-203, MCA, it is not an overriding factor so as to preclude consideration by the District Court of other equitable reasons set forth in the statute for the award of maintenance.

Lundvall, 786 P.2d at 12-13.

Duration is only one of the statutory factors we alluded to in Lundvall. The court must also consider, among other factors, “the financial needs of the party seeking maintenance,” “the standard of living established during the marriage,” and “the age and the physical and emotional condition of the spouse seeking maintenance.” Section 40-4-203(2), MCA (emphasis added). Based on these factors, the court found that Shirley’s reasonable needs amounted to $1450. After reviewing the record we conclude that this finding was not “clearly erroneous.”

We hold that the District Court did not err when it found that Shirley’s needs justified $800 per month in maintenance.

IV

Did the District Court err when it found that Richard could afford to pay $800 per month in maintenance?

Richard’s final argument is that he no longer has sufficient wealth to pay $800 in maintenance and still meet his own needs. He asserts that he has annual expenses, excluding the maintenance award, of $20,350.92 and that his annual income is only $22,219.00. Under the court’s maintenance award, his annual expenses will be $29,950.92. He cites § 40-4-203(2)(f), MCA, for the proposition that the court had to consider his ability to pay maintenance, and contends that he cannot pay annual expenses of $29,950.92 on an annual income of $22,219.00.

The District Court, however, found Richard’s annual income to be considerably greater than $22,219.00. In his Rule 28 Statement, a financial summary prepared and submitted according to local court rules in dissolution cases in the Thirteenth Judicial District, Richard adjusted his gross annual income downward to reflect depreciation and payments on certain non-income producing properties. The court’s memorandum accompanying its denial of Richard’s motion for a new trial clearly indicates the court found that allowing Richard to claim these deductions would distort his actual income. The District Court found that without these deductions the actual income which Richard had at his disposal was closer to $30,000 per year. There was substantial evidence to support that finding. We conclude that it was not clearly erroneous.

We hold that the District Court did not err when it found that Richard could afford to pay $800 per month in maintenance.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES GRAY, HUNT and McDonough concur.


author: CHIEF JUSTICE TURNAGE JUSTICE GRAY, JUSTICE TRIEWEILER

text:
    TOM HYDE and CAROL HYDE, Plaintiffs and Appellants, v. EVERGREEN VOLUNTEER RURAL FIRE DEPARTMENT, Defendant and Respondent.
    No. 91-234.
    Submitted on Briefs December 4, 1992.
    Decided March 31, 1992.
    49 St.Rep. 259.
    252 Mont. 299.
    828 P.2d 1377.

      For Appellant: Thomas E. Boland argued, Regnier, Lewis and Boland, Great Falls.
    For Respondent: L.D. Nybo, Allen P. Lanning argued, Conklin, Nybo, LeVeque and Murphy, Great Falls.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Plaintiffs Tom and Carol Hyde brought this action to recover damages incurred in a fire at their home. The District Court for the Eleventh Judicial District, Flathead County, granted summary judgment to defendant Evergreen Volunteer Rural Fire Department (Evergreen). The court ruled that Evergreen is immune from suit under § 7-33-2208, MCA (1985). The Hydes appeal. We affirm.

The issues are:

1. Did the District Court err in determining that Evergreen is immune from suit under § 7-33-2208, MCA (1985)?

2. Did Evergreen’s purchase of liability insurance constitute a waiver of its immunity from suit to the extent of the insurance coverage?

3. Is there a genuine issue of material fact precluding summary judgment?

On January 26, 1987, Evergreen was called to a fire at the Hyde residence. The volunteer firefighters made several attempts to suppress the fire on that day and in the early morning of January 27, 1987, but their efforts proved unsuccessful. The Hydes’ residence and personal belongings valued at over $247,000 were destroyed in the fire.

The Hydes filed suit against Evergreen, Flathead County, and Does A through Z, seeking damages on a theory of negligence in fighting the fire. The court granted Flathead County summary judgment for failure to state a claim against it. Evergreen then filed its motion for summary judgment, which was granted in March 1991.

I

Did the District Court err in determining that Evergreen is immune from suit under § 7-33-2208, MCA (1985)?

Section 7-33-2208, MCA (1985), provided:

Fire control powers — liability. (1) Any county rural fire chief or district rural fire chief or his deputy may enter private property or direct the entry of fire control crews for the purpose of suppressing fires.
(2) A chief or deputy and the county or rural district are immune from suit for injury to persons or property resulting from actions taken to suppress fires under this section. [Emphasis added.]

The Hydes argue that this statute only applied to rural fire districts organized under Title 7, Chapter 33, Part 22, MCA. They assert that it did not provide immunity for Evergreen because Evergreen was organized under Title 7, Chapter 33, Part 21, MCA.

Title 7, Chapter 33, Part 21, MCA, is entitled “Rural Fire Districts.” It provides for the establishment by county commissioners of fire districts in unincorporated territories or towns after petition by the owners of fifty percent of the privately owned lands in the area. Title 7, Chapter 33, Part 22, MCA, is entitled “Rural Fire Protection.” It grants county governing bodies the authority to provide for the organization of volunteer rural fire control crews and to provide for the formation of county volunteer fire companies. There are differences in the organizational structures and financing of firefighting units established under the two parts.

Section 7-33-2208, MCA (1985), did not provide immunity for actions taken to suppress fires “under this part.” That would be the appropriate language if immunity were to apply only to Part 22. The statute provided that immunity applied to actions taken to suppress fires “under this section.” Nevertheless, we will examine the legislative history of § 7-33-2208, MCA (1985), to determine whether it supports the Hydes’ position.

Section 7-33-2208, MCA (1985), was originally enacted as Ch. 173, Sec. 3(4), L. 1945:

(4) Any county rural fire chief and/or district rural fire chief may enter private property either with or without fire control crews for the purpose of suppressing fires, and are exempt from any damage resulting from such activity[.]

This statute was originally codified at R.C.M. § 28-603(4).

Another part of the same legislation, Section 4 of Ch. 173, L. 1945, provided:

Lands to Which Applicable. The provisions of this act are not applicable to any organized forest protection district or fire district defined in Chapter 128, Laws of 1939, as amended by Chapter 141, Laws of 1941 or any organized fire protection district organized and operating under other legal authority. This act shall apply to all lands not protected by federal, state, municipal or private protective agencies organized under the laws of the State of Montana.

The statutes relating to “organized forest protection district or fire district defined in Chapter 128, Laws of 1939, as amended by Chapter 141, Laws of 1941” provide for protection of timber resources and are now codified at Title 76, Chapter 13, Part 1, MCA. It is not clear whether fire districts such as Evergreen were excluded from immunity under the language “any organized fire protection district organized and operating under other legal authority” or were given immunity under the language “[tjhis act shall apply to all lands not protected by federal, state, municipal or private protective agencies organized under the laws of the State of Montana.” In any event, Section 4 of Chapter 173, L. 1945, was codified at R.C.M. § 28-604 and was repealed in 1977. Ch. 397, L. 1977.

Also in 1977, the Montana Legislature amended the statute which became § 7-33-2208, MCA (1985), as follows:

Any county rural fire chief or district rural fire chief or his deputy may enter private property or direct the entry of fire control crews for the purpose of suppressing fires. A chief or deputy and the county or rural district are immune from suit for injury to persons or property resulting from actions taken to suppress fires under this subsection.

Chapter 73, Sec. 1, L. 1977. The amendment was approved by a two-thirds majority of the Legislature as is required for laws which provide governmental immunity. Mont. Const. Art. II, Sec. 18.

This code section was not amended by the Legislature between 1977 and 1989. During recodification from the Revised Codes of Montana into the Montana Code Annotated, the Montana Code Commissioner redesignated it as a code section in itself, instead of subsection (4) of a larger statute, and changed the word “subsection” in the statute to “section.”

We conclude that the use of the word “section” in § 7-33-2208, MCA (1985), does not resolve the question of whether the immunity provided under the statute applies to fire districts established under Title 7, Chapter 33, Part 21, MCA. Therefore we will examine other language used in § 7-33-2208, MCA (1985).

The terms “county rural fire chief’ and “district rural fire chief’ in § 7-33-2208, MCA(1985), reflected terms used in Title 7, Chapter 33, Part 22, MCA. See §§ 7-33-2202 through -2204, MCA. The term “rural district” as found in § 7-33-2208, MCA (1985), is not otherwise used in Part 22. Part 22 addresses “rural fire control crews” and “county volunteer fire companies,” not “county or rural districts.” The term “rural district” is, however, used in Part 21. See, e.g., § 7-33-2101, MCA.

We conclude that under the plain language of § 7-33-2208, MCA (1985), immunity extended to Evergreen and other rural fire districts established pursuant to Title 7, Chapter 33, Part 21, MCA. This interpretation promotes the important function of fire districts in protecting public and private rural property from fire in Montana. Under the interpretation urged by the Hydes, immunity for rural firefighters and their chief would depend on how that firefighting unit originated. If a county government established a rural fire control crew or fire company on its own initiative, then that entity would be immune, but if the county commissioners established a rural fire district in response to a petition by landowners who wished to protect their property, then that district and its fire chief would not be immune. There is no logic or reason for granting or withholding immunity to a rural firefighting unit based upon the method of its formation.

We note that § 7-33-2208, MCA, was amended in 1989 and now applies to “[a] chief or deputy and the county, rural district, fire company, or fire service area.” This amendment passed by a two-thirds majority of the Legislature. The terms added in the 1989 amendment appear in Title 7, Chapter 33, Part 23, MCA (“fire companies”), and Title 7, Chapter 33, Part 24, MCA (“fire service areas”).

II

Did Evergreen’s purchase of liability insurance constitute a waiver of its immunity from suit to the extent of the insurance coverage?

The Hydes’ argument under this issue is based on this Court’s opinion in Crowell v. School Dist. No. 7 (1991), 247 Mont. 38, 805 P.2d 522, [9 Ed.Law 76]. In that opinion, this Court held that the immunity provided to school districts under § 2-9-111, MCA (1989), was waived to the extent of coverage of any liability insurance purchased by the school district. Crowell, 805 P.2d at 534. The Montana Legislature promptly acted to negate the effect of Crowell by enacting Chapter 821, L. 1991. That act amended § 2-9-111, MCA, to specifically provide that the acquisition of insurance does not operate as a waiver of the immunity provided by the statute. Section 2-9-lll(c)(4), MCA.

The reasoning in Crowell involved an established legislative pattern of joint consideration of insurance and governmental immunity in relation to § 2-9-111, MCA. Crowell, 805 P.2d at 528-33. No pattern of joint legislative consideration of insurance and immunity is present in the legislative history of § 7-33-2208, MCA (1985). In fact, no joint consideration of these issues appears in the legislative history at all. We therefore hold that Crowell has no application to this case and that Evergreen did not waive its immunity from suit by purchasing liability insurance.

III

Is there a genuine issue of material fact precluding summary judgment?

The Hydes assert that their complaint contains allegations which are outside the bounds of the immunity provided under § 7-33-2208, MCA (1985). Specifically, they cite the claim in Paragraph XI of their complaint that Evergreen was negligent in failing or refusing to have a properly equipped fire truck and a properly trained fire crew. The Hydes argue that these acts and omissions of Evergreen were not protected under the immunity statute because they took place before fire suppression activity commenced.

But even when viewed in the light most favorable to them, the Hydes’ claim is based upon Evergreen’s alleged failure to have a properly equipped fire truck and a properly trained fire crew at the fire at their home. Any damages suffered by the Hydes and caused by Evergreen were a result of the fire suppression activity by Evergreen at the fire at the Hydes’ home. Under § 7-33-2208, MCA (1985), Evergreen is exempt from any damage resulting from its fire suppression activity. We therefore hold no genuine issue of material fact precludes summary judgment.

Affirmed.

JUSTICES HARRISON, WEBER and McDONOUGH concur.

JUSTICE GRAY,

concurring in part and dissenting in part:

I concur in the opinion of the majority as to issues 1 and 2.1 must respectfully dissent from that opinion on issue 3, relating to whether there is a genuine issue of material fact. I do so because the result of that holding is to broaden the applicability of the immunity I agree is extended to Evergreen under § 7-33-2208, MCA, past the point included within that statute.

Furthermore, in order to reach its conclusion, the majority has reached beyond the District Court’s order granting summary judgment. That order, while couched in part in summary judgment terms, was in effect an order granting a motion to dismiss for failure to state a claim premised entirely on the availability of the statutory immunity, rather than an order determining that no genuine issues of material fact existed. To that extent, this Court has engaged in unstated fact-finding of its own that the damages suffered by the Hydes were caused by Evergreen’s activities at the Hydes’ residence during the fire, as opposed to being caused by negligent acts or omissions by Evergreen in advance of that fire.

I would remand for such further motions or proceedings as may be appropriate.

JUSTICE TRIEWEILER

dissenting:

I dissent from every part of the majority opinion.

If the plaintiffs’ allegations are true, and for purposes of reviewing the District Court’s order dismissing their claim by summary judgment, we must presume they are, then their home and the property that it contained were totally destroyed due to repeated acts of negligence on the part of the Evergreen Volunteer Rural Fire Department.

Plaintiffs allege that at 2 p.m. on January 26,1987, the defendant fire department was called to suppress a fire at their home. It arrived and attempted to do so until about 4 p.m., when it left the premises over the plaintiffs’ protestations while fire and smoke were still present at the residence.

At 6:16 p.m. the same day, defendant was called back to the residence to again suppress the fire. It attempted to do so until 11:15 p.m., at which time it once again left the premises, in spite of the fact that fire and smoke were still present.

At 12:15 a.m., the defendant was called back to the plaintiffs’ residence for a third time and remained until 2 a.m. on January 27, at which time they again left the scene. Plaintiffs allege that fire and smoke were still present when defendant left this third time.

Finally, at 6:45 a.m., the defendant was called back to the plaintiffs’ residence for a fourth time and remained at the residence until 9 a.m., by which time plaintiffs’ entire residence and all of its contents and furnishings were destroyed.

Plaintiffs allege damage to their property in the amount of $247,000. At the time of the fire, the defendant had in effect fire liability insurance coverage in the amount of $1 million.

Immunity protects someone who has committed a wrongful or illegal act at the expense of the victim of that wrongful act. Immunity should never be found unless established in a constitutional manner and made perfectly clear. Why any court would want to strain as hard as this Comb has to find immunity where it has not been clearly provided is beyond my comprehension.

The majority opinion violates all rules of statutory construction and common sense.

In his concurring opinion in Crowell v. School District No. 7 of Gallatin County (1991), 247 Mont. 38, 805 P.2d 522, Chief Justice J. A. Turnage correctly points out that:

“In the construction of a statute, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.” Section 1-2-101, MCA. This is the rule of law governing statutory construction, and it is an appropriate and proper rule. There is no place for individual preference or desire to become the rule of law when the Court interprets statutory language.

Crowell, 805 P.2d at 535.

This prior observation by the author of the majority opinion sets forth the proper role of this Court. However, the majority’s strained interpretation of § 7-33-2208, MCA (1987), in this case is the antithesis of Chief Justice Tumage’s prior admonition.

Title 7, Chapter 33, Part 21 authorizes the board of county commissioners to establish rural fire districts pursuant to a petition of property owners within the district. There is no purpose ascribed to Part 21 other than to allow rural residents to join together to protect themselves against fire. There is no immunity provided in Part 21 for the fire districts that are formed.

Title 7, Chapter 33, Part 22 has a different purpose. It allows county commissioners to, on their own initiative, organize a volunteer rural fire control crew or county volunteer fire companies for the specified purpose of protecting undeveloped areas, such as range land, farm land, and forest resources which might not normally be included in rural fire districts.

Section 7-33-2208, MCA, allows the various fire departments and their heads to enter private property for the purpose of suppressing fires. Since that section is found in Part 22 and makes no reference to Part 21, the power authorized is presumably for the purpose of fighting fires in those areas that Part 22 was established to protect. Those would be range fires, farm fires, and fires involving forest resources where entry on private land might be necessary to protect other land.

Section 7-22-2208(2), MCA (1987), is very specific. It provides for immunity only for actions taken under that section. That section is found only in Part 22 and presumably pertains only to the fire fighting activities for which Part 22 was enacted. In order to expand § 7-22-2208(2), MCA (1987), to apply to rural fire districts which are established under Part 21, the majority had to apply imaginative, convoluted reasoning and insert into § 7-22-2208(2), MCA(1987), that which had not been inserted by the legislature.

The majority’s strained interpretation of § 7-22-2208(2), MCA (1987), violates even more fundamental rules of construction. Article II, Section 18, of the 1972 Montana Constitution, provides:

The state, counties, cities, towns, and all other local governmental entities shall have no immunity from suit for injury to a person or property, except as may be specifically provided by law by a % vote of each house of the legislature.

People in Montana who have been injured by the wrongful acts of their government or the agencies that it forms have a constitutional right to seek compensation. Any statute in derogation of a constitutional right should be strictly construed. 73 Am. Jur. 2d Statutes § 283 (1974). If the legislature has not clearly provided for immunity, this Court has no business creating immunity. B.M. v. State (1982), 200 Mont. 58, 649 P.2d 425.

If anything can possibly be clear from the line of reasoning pursued by the majority in their opinion, it is that the legislature has not “clearly provided for immunity” for the Evergreen Volunteer Rural Fire Department. Instead, this Court has once again shown its preference for protecting the interests of government, rather than people, by creating that immunity.

Nor do I understand the majority’s attempt to distinguish the waiver of immunity that they found existed in Crowell from the situation in this case. If immunity exists, the rationale for finding a waiver of immunity by purchase of liability insurance is exactly the same. In arriving at its decision in Crowell, this Court quoted with approval from the following language of the Arizona Supreme Court in Smith Plumbing Company v. Aetna Casualty and Surety Company (1986), 149 Ariz. 524, 720 P.2d 499, 502:

The sovereign immunity doctrine originates in social policy designed to protect the State “from burdensome interference with the performance of its governmental functions ....” [Citation omitted.] The compensated surety of a sovereign does not perform the governmental functions that require protection; therefore, the protections a government needs to conduct its functions do not extend to the surety. Furthermore, to allow a compensated surety such as Aetna to assert its principal’s sovereign immunity and so avoid payment on a bond would be to provide a windfall to the surety. [Citations omitted.] If Aetna were allowed this defense, it would receive valuable consideration in the form of compensation- ... without assuming the risk of payment....

Crowell, 805 P.2d at 527.

After reviewing the statutes authorizing the purchase of insurance by governmental entities, this Court did not find any express waiver of immunity. On the contrary, it found a waiver on reasoning similar to that of the Arizona Supreme Court.

We come now to a critical part of the analysis. Is it improper to refuse to pay insurance proceeds to a party injured by the negligence of the school district, where insurance proceeds are available under a previously purchased insurance policy? If such a denial is made, then the party injured by the negligence of the school district has been denied compensation for injury and has been required to absorb all of the costs of such injury. If the school district is able to deny payment, then it has abdicated any responsibility for its own negligence. In addition, such a refusal to use insurance proceeds allows an insurance carrier to refuse to pay insurance benefits for which it has already received premium payment.
As we carefully weigh the various factors, we conclude that the purchase of Lability insurance by the School District in the present case should waive its immunity to the extent of the insurance coverage.

Crowell, 805 P.2d at 533.

The exact same circumstances this Court relied on in arriving at its decision in Crowell exist in this case. The exact same rationale should, therefore, also be applied. The defendant in this case purchased liability insurance and paid premiums for coverage. To deny a claim by the plaintiffs based upon the fire district’s immunity allows the insurance carrier to refuse to pay insurance benefits for which it has already received premium payment. Therefore, purchase of the insurance coverage by the fire district should imply the same intention to waive immunity that was attributed to the school district in Crowell. There is no rational basis for distinguishing between the two entities.

The majority notes that the Montana Legislature negated the effect of Crowell when it amended § 2-9-111, MCA, in 1991. However, the only effect of that amendment is to provide that purchase of liability insurance does not waive the immunity provided for by that statute. That amendment had no effect on waiver of the immunity provided for in any other statute. Therefore, the amendment does not preclude the application of the Crowell rationale in this case.

Finally, I concur with Justice Gray’s dissent to the majority’s conclusion on Issue 3. The plaintiffs’ complaint that the defendant failed to properly equip its trucks and maintain its equipment, and failed to properly train its crew, alleged separate acts of negligence which occurred long before the fire on plaintiffs’ property and had nothing to do with the negligent manner in which the defendant failed to suppress that fire.

This case is another example of this Court’s propensity to defer to the interests of government when it comes into conflict with the interests of private citizens.

Our responsibility is not to protect the government or its agencies from its citizens. It is to protect private citizens from their government.

For these reasons, I dissent from the opinion of the majority.

JUSTICE HUNT concurs in the the foregoing concurrences and the dissent.