source: Caselaw Access Project

author: JUSTICE HUNT DISTRICT JUDGE WARNER, sitting for RETIRED JUSTICE McDONOUGH,

license: Public Domain

text:
    SAINT VINCENT HOSPITAL AND HEALTH CENTER, INC., Plaintiff and Appellant, v. BLUE CROSS AND BLUE SHIELD OF MONTANA, Defendant and Respondent.
    No. 92-450
    Submitted April 28, 1993.
    Decided October 12, 1993.
    50 St.Rep. 1190.
    261 Mont. 56.
    862 P.2d 6.

      DISTRICT JUDGE WARNER, sitting for RETIRED JUSTICE McDONOUGH, filed a special concurrence in which JUSTICE WEBER and CHIEF JUSTICE TURNAGE concurred.
    For Plaintiff and Appellant: Gregory G. Murphy, Moulton, Bellingham, Longo & Mather, Billings.
    For Defendant and Respondent: John Alke (argued) and Mike McCarter, Hughes, Kellner, Sullivan & Alke, Helena.
   JUSTICE HUNT

delivered the Opinion of the Court.

Plaintiff Saint Vincent Hospital and Health Center, Inc., of Billings appeals an order of the First Judicial District Court, Lewis and Clark County, denying its request to compel a health care provider contract with Defendant Blue Cross and Blue Shield of Montana, Inc. (BC/BS). The District Court granted summary judgment for BC/BS.

We affirm.

Appellant raises two issues.

1. Did the District Court err in finding that application of the amended statute required a retroactive application of law?

2. Did the Legislature intend the amendment to apply to established agreements generally, and to Saint Vincent’s desired agreement with BC/BS in particular?

BC/BS raises three issues.

1. Did the District Court correctly determine that the amendment did not apply in this case?

2. Is the amendment preempted by the Employee Retirement Income Security Act of 1984, P.L. 93-406, 29 U.S.C. § 1001, et seq. (ERISA), because it relates to ERISA plans and is not saved from preemption as the “regulation of insurance?”

3. In the alternative, does application of the amendment unconstitutionally impair BC/BS’s obligation of contract?

We determine the sole issue to be whether the District Court was correct when it decided that the amendment could not be retroactively applied in this case.

In 1987, the Montana Legislature enacted the Preferred Provider Agreements Act, ch. 638,1987 Mont. Laws 1756 (codified at §§ 33-22-1701 through -1707, MCA). The Act authorizes preferred provider agreements (PPAs) between health care insurers and health care providers. The Act defines a “preferred provider” as an individual or entity licensed or legally authorized to provide health care services or services covered within Title 33, chapter 22, part 7, who have contracted to provide specified health care services. Section 33-22-1703(6) and (8), MCA. The purpose of the Act is to permit health care insurers providing disability insurance benefits to its insureds or subscribers to contract with health care providers for reduced or negotiated fees. Section 33-22-1702, MCA. The preferred providers may accept negotiated and discounted fees as payment for services to insured patients for which the insurer is required to pay under the health benefit plan. Section 33-22-1702(2), MCA.

According to the 1987 Act, in exchange for acceptance of discounted fees, a preferred provider could receive an exclusive arrangement that steered insureds to the preferred provider. The arrangement assured the preferred provider substantial patient volume. As originally adopted, the Act contained a freedom of choice provision which stated: “This part does not require that an insurer negotiate or enter into agreements with any specific provider or class of providers.” Section 33-22-1704(3), MCA (1987).

Based on affidavits in the record, on May 1,1990, BC/BS entered into an exclusive “HealthLink” agreement with Deaconess Medical Center of Billings, Inc. The agreement established a preferred provider organization (PPO) known as “Montana HealthLink” in Yellowstone County. The agreement was to extend for a period of three years, beginning July 1, 1990. Montana HealthLink is one of many PPOs established throughout the United States by health care insurers. PPOs are cost containment devices which have been adopted by employers throughout the country. The HealthLink agreement contained confidentiality provisions concerning business records and pricing. The agreement also contained a provision granting Deaconess the option to terminate the contract if BC/BS entered into a PPA with another hospital in Yellowstone County. Saint Vincent is in Yellowstone County.

On April 29,1991, while the agreement between BC/BS and Deaconess was in force, the Montana Legislature amended the Act creating the Willing Provider Amendment. See ch. 714, 1991 Mont. Laws 2567 (amending § 33-22-1704, MCA). The Legislature deleted the freedom of choice provisionin § 33-22-1704(3), MCA(1987), and added the following provision:

(2) A health care insurer shall establish terms and conditions to be met by providers wishing to enter into an agreement with the health care insurer under subsection (l)(a). These terms and conditions may not discriminate against or among providers. For the purposes of this subsection, price differences among hospitals or other institutional providers produced by a process of individual negotiation or by price differences among different geographical areas or different specialties do not constitute discrimination. A health care insurer may not deny a provider the right to enter into an agreement under subsection (l)(a) if the provider is willing to meet the terms and conditions established in that agreement. [Emphasis added.]

Section 33-22-1704(2), MCA (1991).

The parties do not dispute the facts.

On May 6, 1991, Saint Vincent requested from BC/BS that it participate in HealthLink. BC/BS declined the request. Saint Vincent filed an action in the District Court against BC/BS and requested production of the HealthLink contract. BC/BS responded with a motion for a protective order and for summary judgment. Saint Vincent initially resisted answering the motion for summary judgment, stating that it could not proceed without seeing the HealthLink contract. On April 24, 1992, the District Court determined that the lawsuit was predicated on whether the Willing Provider Amendment applied to HealthLink.

On September 9,1992, the District Court granted BC/BS’s motion for summaiy judgment, finding that the Willing Provider Amendment did not compel BC/BS to offer HealthLink to Saint Vincent. The District Court reasoned that the Willing Provider Amendment could not be applied retroactively because doing so would entail a substantive change in law, rather than merely a procedural change. Further, the District Court reasoned that the Legislature did not specifically declare the amendment to take effect retroactively. The court con-eluded that the 1991 amendment created a new obligation and imposed a new duty on BC/BS that did not exist when it entered into the agreement with Deaconess.

The only issue we address is whether the District Court erred in finding that application of the Willing Provider Amendment of 1991 to Saint Vincent’s proposed and compelled contract with BC/BS would result in retroactive application of law?

This Court’s standard of review when reviewing conclusions of law by a trial court “is whether the tribunal’s interpretation of the law is correct.” Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

Retroactive laws include both retrospective and ex post facto laws; the former technically applying only to civil laws. We have defined a retrospective law as one “which takes away or impairs vested rights acquired under existing laws or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions already passed.” City of Harlem v. State Highway Comm’n. (1967), 149 Mont. 281, 284, 425 P.2d 718, 720. A retrospective law gives a transaction a different legal effect from that which it had under the law when it occurred.

The United States and Montana Constitutions dictate that if a retrospective law impairs a vested right acquired under an existing law, or creates a new obligation or attaches a new disability with respect to past transactions, the law is objectionable. Article I, Section 10, of the United States Constitution provides: “No State shall ... pass any ... ex post facto Law ....” Similarly, Article II, Section 31, of the Montana Constitution provides: “No ex post facto law ... shall be passed by the legislature.”

We have said that “retrospective laws are looked upon with disfavor.” Sullivan v. City of Butte (1922), 65 Mont. 495, 498, 211 P. 301, 303. Montana’s “retroactive law” statute provides: “No law contained in any of the statutes of Montana is retroactive unless expressly so declared.” Section 1-2-109, MCA. Previously, this Court has construed Montana’s retroactive law statute. In Dunham v. Southside National Bank (1976), 169 Mont. 466, 471, 548 P.2d 1383, 1385, we held that “[t]here is a presumption in Montana against construing a statute retroactively, unless specifically declared retroactive.” Further, this Court has determined that “[t]he legislative intent must be gathered from the act itself and no other source.” Neel v. First Federal Savings & Loan Ass’n. (1984), 207 Mont. 376, 386, 675 P.2d 96, 102.

Although the general ride of law is that a statute is not to be applied retroactively, an exception to that rule is change in a law that is merely procedural rather than substantive. State v. District Court of Fourth Judicial District (1966), 148 Mont. 22, 417 P.2d 109. Here, however, the amendment of § 33-22-1704, MCA, affected the substantive rights of the parties. Therefore, the exception does not apply.

We reject Saint Vincent’s assertion that this Court has effectively reversed the presumption against retroactive laws in State Compensation Insurance Fund v. Sky Country, Inc. (1989), 239 Mont. 376, 780 P.2d 1135. There we looked beyond the statute itself to legislative committee minutes to determine legislative intent. The statute established a simplified procedure for settling disputes over the status of workers as employees or independent contractors for both unemployment compensation and workers’ compensation purposes. In that case, the law affected only procedural matters not relating to substantive rights of the parties. For that reason, Saint Vincent’s application of Sky Country to this case is misplaced.

If applied to BC/BS in this case, the Willing Provider Amendment would impair BC/BS’s vested rights, create new obligations for BC/BS, and attach a new disability with respect to its transactions with Deaconess. Effectively, the Amendment would nullify the exclusivity and confidentiality provisions of the BC/BS/Deaconess Health-Link contract. Such an alteration of the contract would divest BC/BS of its right to an exclusive contract with Deaconess and permit unanticipated access to the contract’s bidding figures and other confidential terms and conditions by competitors, such as Saint Vincent. Further, the Amendment would obligate BC/BS to offer a previously exclusive HealthLink contract to Saint Vincent, a party with which it did not intend to contract and was not required to do so under existing law. In turn, BC/BS would incur a new disability as Deaconess would be free to exercise its option to terminate the contract.

In srun, the Willing Provider Amendment would affect BC/BS’s substantive rights. Thus, it is a substantive change inlaw, and cannot be applied to HealthLink unless the Legislature expressly had declared it to be retroactive in the Act itself; which it did not. Chapter 714 of the 1991 Montana Session Laws contains no express intent that the statute be applied retroactively. Instead, the amendment is declared to be effective on passage and approval, and was approved on April 29,1991. Therefore, the Willing Provider Amendment cannot be applied to a contract entered into before that date.

Application of the Willing Provider Amendment would give effect to a retrospective law; a result which the Laws of Montana and this Court rejects. We hold that the District Court did not err in finding that application of the Willing Provider Amendment of 1991 to BC/BS, by compelling a BC/BS/Saint Vincent agreement, would result in retroactive application of law.

We affirm.

JUSTICES HARRISON, TRIEWEILER and GRAY concur.

DISTRICT JUDGE WARNER, sitting for RETIRED JUSTICE McDONOUGH,

specially concurring.

I concur in the opinion of Justice Hunt that Chapter 714,1991 Mont. Laws 2567, must not be applied to the May 1,1990, preferred provider agreement between respondent Blue Cross and Deaconess Medical Center of Billings. The amendment is substantive, enacting a “willing provider” provision which profoundly affected preferred provider agreements in Montana. As the Legislature did not express its intention to make the amendment’s application retrospective, it must not be so construed by this Court. Section 1-2-109, MCA.

In my opinion, the argument of St. Vincent Hospital that this Court must reverse because the District Court denied discovery of a copy of the agreement at issue must also be addressed.

In the District Court, St. Vincent moved to produce the preferred provider agreement, any correspondence relating thereto, in-house notes concerning the agreement, lists of all participants in the program, and complete financial information concerning the agreement. Blue Cross objected on the grounds the contract was not relevant, much of the requested information was proprietary, and moved for a protective order. Blue Cross also moved for summary judgment. St. Vincent moved to compel production of the demanded information.

The District Court denied the requested discovery, including the preferred provider agreement, until after it ruled on the motion for summary judgment. As Blue Cross was granted summary judgment, none of the information demanded was produced.

St. Vincent complained bitterly in the District Court, in its briefs to this Court, on oral argument here, and even in a “Motion to Clarify Record” submitted after oral argument, that it was never allowed to examine a copy of the preferred provider agreement at issue, and thus was placed at an unfair disadvantage in arguing that the 1991 statutory amendment applied to such agreement.

The rules concerning discovery are broad and liberal.

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party .... It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

Rule 26(b)(1), M.R.Civ.P.

That the preferred provider agreement is relevant to this lawsuit cannot be gainsaid. The contract is the basis of the lawsuit. Whether it exists, falls within the type of agreement allowed by the statutes, or contains provisions which contemplate the demand by St. Vincent to match its terms, are all relevant considerations. Further, the provisions of the agreement could suggest other avenues of attack on its validity, such as the anti-trust laws. As the complaint prays for whatever relief may be appropriate, the discovery demand for the agreement’s production is reasonably calculated to lead to the discovery of admissible evidence.

The District Court has the ability to protect proprietary information that may be in the agreement.

Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending ... may make any order which justice requires to protect a party or a person from annoyance, embarrassment, oppression, or undue burden or expense, including ... (7) that a trade secret or other confidential research development, or commercial information not be disclosed or be disclosed only in a designated way....

Rule 26(c), M.R.Civ.P.

All information concerning the existence of the agreement, its date, parties, term, provisions, and effect come from the affidavits of employees of Blue Cross, which affidavits cannot be cross-examined or disputed. What information Blue Cross chooses to reveal comes into the record piecemeal, at the convenience of, and in words chosen by, Blue Cross. On the surface, it appears impossible for St. Vincent to dispute what is revealed, or to compare and cross-reference such information with other parts of the agreement, as the contract which is the very basis of the lawsuit is not produced.

However, the record before this Court confirms the statement of counsel for Blue Cross on oral argument that, in fact, St. Vincent had available to it, without the necessity of court order, a copy of the preferred provider agreement. Attachments to the affidavit of a Blue Cross vice president, submitted to the District Court, indicate that Blue Cross did seek and obtain the permission of the other contracting party, Deaconess Medical Center, to release to St. Vincent a complete copy of the preferred provider agreement so it could determine what rights it might have under the amended law. Blue Cross then informed St. Vincent that access to an excerpted copy of the agreement was available.

Blue Cross did demand to withhold some pricing and other information which could cause a competitive detriment.

The record is devoid of any indication that St. Vincent took advantage of its opportunity to examine the agreement. It rather continued in its demand that information with an allegedly commercial value be provided along with the contract in question. This leads to the conclusion that it was really commercially valuable information which was sought.

Thus, while the District Court should have partially granted the motion to compel, allowing St. Vincent to have a copy of the preferred provider agreement, there was no substantial harm caused by not doing so.

A further cause of serious concern not addressed in the majority opinion is the information revealed by Blue Cross for the first time in oral argument that the preferred provider agreement is self-perpetuating. Apparently, if neither party gives notice to terminate, the agreement is automatically renewed year after year. However, the 1993 Legislature amended the applicable statute to provide that any preferred provider agreement which is renewed after March 26,1993, must give all health care providers the opportunity to participate on the basis of a competitive bid. Section 33-22-1704(3), MCA.

Blue Cross conceded at oral argument that the agreement which is the subject of this case is subject to the 1993 amendment. Also, St. Vincent can demand the opportunity to bid, and litigate the issue if it is denied that opportunity. Therefore, remand for consideration of the new information is not required.

For these reasons, in addition to those stated by Justice Hunt, I would affirm the District Court.

JUSTICE WEBER concurs in the foregoing special concurrence.

CHIEF JUSTICE TURNAGE concurs in the specially concurring opinion of DISTRICT JUDGE WARNER.


author: JUSTICE NELSON

text:
    IN RE THE MARRIAGE OF KAREN PETERSON ERLER, Petitioner/Respondent, v. SCOTT ERLER, Respondent/Appellant.
    No. 93-087.
    Submitted on Briefs August 12, 1993.
    Decided October 14, 1993.
    50 St.Rep. 1195.
    261 Mont. 65.
    862 P.2d 12.

      For Appellant: P. Mars Scott, Mulroney, Delaney & Scott, Missoula.
    For Respondent: Darla Keck, Datsopoulos, MacDonald & Lind, Missoula.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from a Fourth Judicial District Court, Missoula County, opinion, determining that the court did not have jurisdiction over the custody matters at issue. We affirm.

We restate the issues on appeal:

I. Did the District Court err in concluding that under the Federal Parental Kidnapping Prevention Act (PKPA) and the Montana Uniform Child Custody Jurisdiction Act (MUCCJA), it did not have subject matter jurisdiction?

II. Did the District Court err by failing to conduct an evidentiary hearing before it concluded that it did not have subject matter jurisdiction?

III. Should this Court strike a provision in the April 26,1985 order, stating that “visitation rights herein are subject to the Respondent being concurrent in his child support obligations?”

BACKGROUND

The parties, Karen Peterson Erler (Karen) and Scott Erler (Scott), were married on December 22,1979. Two children, twin sons, Thomas and Mark, were born of the marriage on October 5, 1981. The marriage was terminated in Missoula, Montana, on September 7, 1984 with Karen granted sole custody of the children and Scott ordered to pay $400 per month per child for child support.

The parties have spent numerous days in corut on a variety of issues since their dissolution in 1984, notably for Scott’s failure to pay monthly child support, Karen’s $6,500 share of the equity in their home, and $4000 for Karen’s attorney’s fees. In an attempt to persuade Scott to pay child support for Thomas and Mark, the Court provided in its April 26, 1985 order that visitation would be contingent upon Scott’s payment of child support to Karen. This order also states that Scott consented to Karen’s move to Seattle, Washington with the two boys, to establish a permanent residence there. A petition for modification of amended decree of dissolution states that a major reason for moving was to avoid encountering Scott.

In an order dated December 12, 1985, the paternal grandparents were granted limited visitation with Thomas and Mark, with certain restrictions. The District Court noted that “the request of the grandparents is in part an attempt to circumvent the Court’s earlier Order regarding... the reintroduction of the children to their father and the payment of support.”

The latest matter to come before the trial court involved Scott’s motion to quash the writ of execution issued by the court on his Keogh retirement plan for failure to pay on his dissolution obligations. Also involved was Scott’s motion for an order of investigation and a report concerning custody arrangements, his motion to modify custody and child support and finally, Karen’s motion to dismiss Scott’s petition to modify custody due to lack of subject matter jurisdiction.

In its order, the trial court concluded that:

I.
The Motion to Quash Writ of Execution is granted, and
II.
The Motion to Dismiss Petition for Modification of Custody for Lack of Jurisdiction is granted, and
III.
Having no jurisdiction to hear matters of custody, the court takes no action on Respondent’s Motion for Investigation and Report Concerning Custody Arrangements for the Children.
IV.
Having no jurisdiction to hear matters of custody of these children, the Court takes no action on Respondent’s Motion to Find Visitation Interference or Respondent’s Motion to Modify Child Support which was based on the condition that he be granted custody.

The trial court stated that it did, however, retain jurisdiction over child support matters.

On December 18, 1992, the trial court denied Scott’s combined motion for a Rule 59(g) order to alter or amend, or in the alternative, a Rule 60(b), order for relief of a judgment or order. Scott’s appeal of the court’s denial brings this action before the Montana Supreme Court.

Our standard of review is whether the lower court’s conclusions are correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603; In re Marriage of Danelson (1992), 253 Mont. 310, 317, 833 P.2d 215, 220.

I. SUBJECT MATTER JURISDICTION

The primary issue on appeal is whether the trial court was correct in concluding that it did not have subject matter jurisdiction over child custody matters under the PKPA and/or the MUCCJA. Scott argues that under the PKPA, “Montana must continue as the jurisdictional forum to review all child care issues, including custody,” and that the PKPA supersedes the MUCCJA. Karen counters that Scott is unable to meet the jurisdictional requirements of the MUCC JAand also, the PKPA does not confer subject matter jurisdiction in the instant case. We agree.

A. PARENTAL KIDNAPPING PROTECTION ACT (PKPA)

Scott argues that the PKPA supersedes the MUCC JAand “protects the rights of a custody state to exercise continuing jurisdiction over child custody issues.” However, Karen asserts that the PKPA “was enacted by Congress so that there will be uniformity in determining which states will have jurisdiction over child custody proceedings when there is a conflict between two states attempting to simultaneously assert jurisdiction.” (Emphasis supplied.)

Since the PKPA has not previously been interpreted by this Court, the entire statute is set forth at the end of this opinion. '’Additionally, we will briefly discuss the history and purposes of the PKPA.

The PKPA was enacted by Congress in 1980 to address the continuing problems of forum shopping and “child snatching.” 28 U.S.C. § 1738A; History; Ancillary Laws and Directives (a), page 228. Because custody decisions were not thought to be final judgments, State B would frequently fail to accord full faith and credit to a decision from State A. Foster, Child Custody Jurisdiction: UCCJA and PKPA, 27 NY L Sch L Rev 297, 297-298, (1981). This fact led to a growing number of parents seizing their child or children, moving to another jurisdiction, and bringing an action for custody in the new jurisdiction to obtain a more favorable judgment. 27 NY L Sch L Rev at 298. All too frequently, the end result was two conflicting decisions from the two different jurisdictions.

The Uniform Child Custody Jurisdiction Act (UCCJA), which had been adopted by most states to address interstate child custody disputes, was found to be inadequate to address the problems of forum shopping and “child snatching” because the UCCJA operated at the state level. Pettenati, The Effect of the Parental Kidnapping Prevention Act of 1980 on Child Snatching, 17:2 New Eng 499, 506-507, (1982). The individual states were unable to deal with problems that were essentially interstate in nature. 17:2 New Eng at 507. Additionally, the lack of perceived finality in child custody issues continued to plague the state courts. 17:2 New Eng at 506.

The PKPA established national standards under which jurisdictions could determine whether they had jurisdiction and what effect to give the decisions by courts of other jurisdictions. The PKPA requires full faith and credit be accorded to decisions of a jurisdiction if the court appropriately exercised jurisdiction under the PKPA standards. 28 U.S.C. § 1738A(a).

The statute’s general purposes are to promote cooperation and the exchange of information between state courts, facilitate the enforcement of custody decisions of sister states and to discourage continuing interstate controversies over child custody. 28 U.S.C. § 1738A History; Ancillary Laws and Directives, page 228. These purposes are achieved primarily through 28 U.S.C. § 1738A(d) which provides as follows:

The jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant.

28 U.S.C. § 1738A(d) vests continuing j inis diction in the original state as long as the child or one of the contestants continues to reside there. However, subsection (f) of 28 U.S.C. § 1738Apermits a court of a state to modify a determination of custody of the same child or children made by another court if it has jurisdiction to make such a custody decision and the court of the other state no longer has jurisdiction or declines to exercise its jurisdiction.

As to the issue of whether the PKPA confers subject matter jurisdiction in the instant case, we conclude that it does not because Montana is the only state involved in the custody issue at this time. “The purpose of the PKPA is to prevent the issuance of competing decrees in sister states.” Nielsen v. Nielsen (La. 1985), 472 So.2d 133, 136. (Emphasis supplied.) See also; Peterson v. Peterson (Me. 1983), 464 A.2d 202, 204. (“Both the UCCJA and PKPA were enacted to prevent jurisdictional conflict and competition over child custody....”) (Emphasis added.) In the instant case, there is no other state competing with Montana for jurisdiction. Neither Karen nor Scott have sought to invoke the jurisdictional powers of the Washington courts. Since the State of Washington is not attempting to compete with the State of Montana for jurisdiction in the matter of child custody, the PKPA is not invoked. We conclude that the trial court correctly determined that the PKPA does not apply in this case.

B. MONTANA UNIFORM CHILD CUSTODY JURISDICTION ACT (MUCCJA)

Next, we must determine whether Montana has subject matter jurisdiction over the child custody issues under the MUCCJA, which is found at Chapter 7 of Title 40. Scott argues that “Section 40-4-211, MCA, is also pertinent to this case.” He contends that Montana was the home state of the children when the proceedings were commenced and further, jurisdiction is established in Montana because the petition for dissolution was filed in Missoula, Montana. Karen states that Montana is unable to meet any of the jurisdictional requirements of the MUCC JA and therefore, it does not have jurisdiction in the instant case.

Section 40-7-104, MCA, states that “[t]he jurisdictional provisions of 40-4-211 apply to this chapter.” Section 40-4-211, MCA, is the “premier jurisdictional hurdle which must be overcome before a district court may modify a child custody decree with interstate implications.” In re Marriage of Lance (1984), 213 Mont. 182, 188, 690 R2d 979, 982, citing In re the Marriage of Bolton (1984), 212 Mont. 212, 218, 690 P.2d 401, 404. Section 40-4-211, MCA, provides:

Child custody jurisdiction — commencement of proceedings.
(1) A court of this state competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(a) this state:
(i) is the home of the child at the time of commencement of the proceedings; or
(ii) had been the child’s home state within 6 months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reason and a parent or person acting as parent continues to live in this state; or
(b) it is in the best interest of the child that a court of this state assume jurisdiction because:
(i) the child and his parents or the child and at least one contestant have a significant connection with this state; and
(ii) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or
(c) the child is physically present in this state and:
(i) has been abandoned; or
(ii) it is necessary in an emergency to protect him because he has been subjected to or threatened with mistreatment or abuse or is neglected or dependent; or
(d)(i) no other state has jurisdiction under prerequisites substantially in accordance with subsections (l)(a), (l)(b), or (l)(c) of this section or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine custody of the child; and
(ii) it is in his best interest that the court assume jurisdiction.
(2) Except under subsections (l)(c) and (l)(d) of this section, physical presence in this state of the child or of the child and one of the contestants is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.

Section 40-4-211(l)(a), MCA, requires the trial court to determine which state is the child’s home state or his home state within the past 6 months. “Home state” means “the state in which the child, immediately preceding the time involved, lived with his parents, [or] a parent ... for at least 6 consecutive months. ...” Section 40-7-103, MCA. In the instant case, Scott consented to Karen’s move to Washington with the boys in 1985. They have consistently resided with her in the State of Washington since that time with the exception of visitation with Scott and/or the paternal grandparents. Washington is unquestionably the home state, not Montana. Lance, 690 P.2d at 983. This determination comports with one of the general purposes of the MUCCJA, which is to:

(c) assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available and that courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state....

Section 40-7-102(l)(c), MCA. Section 40-4-211(l)(a), MCA, does not apply to the instant case.

Under § 40-4-2 ll(l)(b), MCA, Montana has jurisdiction if the child and his parents, or at least one contestant have a significant connection with Montana and substantial evidence is available here concerning the children’s present or future care, training, and personal relationships. Mark and Tom have lived in Washington for the greater majority of their lives. Scott has significant connections with Montana but the boy’s connection stems from visitation with their father. Even if the boys had significant connections with Montana, there must also be available in the state substantial evidence concerning their “present or future care, protection, training, and personal relationships.” Section 40-4-211(l)(b)(ii), MCA. In this case, Mark and Tom’s friends, classmates, teachers and physicians reside in Washington where the boys have resided for the last 7 years. Again, under § 40-7-102(l)(c), MCA, above, the requirements of subsection (l)(b) of § 40-4-211, MCA, simply cannot be met in this case.

Subsection (l)(c) of § 40-4-211, MCA, requires that the child be physically present in this state and have been abandoned or that an emergency situation necessitates the child’s protection -under subsection (l)(c). In this case, the children are not physically present in Montana nor are there any allegations of abandonment, mistreatment, abuse or neglect. Thus, the requirements of § 40-4-211(l)(c), MCA, cannot be met.

Under § 40-4-211(l)(d), MCA, this state may assume jurisdiction if no other state has jurisdiction under guidelines comparable to those of subsections (l)(a), (b) and (c) or another state has declined jurisdiction because this state is a more appropriate forum and it is in the children’s best interest that this court assume jurisdiction. Since there has been no contact with the courts in the State of Washington, it cannot be said that Washington, the boys’ home state, would not have jurisdiction nor that it would decline jurisdiction. Neither can it be said that it is in the best interest of the children for child custody to be adjudicated in Montana. As stated earlier, the boys do not have a significant connection with Montana nor would substantial evidence be found in Montana regarding their present and future care and training. Finally, the boys do not live in Montana, have not lived here in years and there is no threat or emergency to necessitate Montana’s claim to jurisdiction. In conclusion, Montana cannot claim jurisdiction over child custody matters in this case and the trial court correctly concluded that Montana does not have subject matter jurisdiction in this case.

II. EVIDENTIARY HEARING

Scott argues that under Pierce v. Pierce (1982), 197 Mont. 16, 640 P.2d 899, “when dealing with the children’s best interests, an evidentiary hearing is the only means of determining those best interests as they relate to jurisdiction.” However, Karen counters that this issue is being raised for the first time on appeal and therefore, should not be addressed. Scott does not discuss this assertion in his reply brief; his silence and a review of the record reveal that this is, indeed, the first time this issue has been raised. It is a settled rule in Montana that we will not review an issue raised for the first time on appeal. In re Marriage of Starks (1993), [259 Mont. 138], 855 P.2d 527, 532, 50 St. Rep. 719, 722. Therefore, we decline to address this issue.

III. MOTION TO STRIKE

Scott’s final issue on appeal concerns his request to strike a provision in the April 26, 1985 order, stating that “visitation rights herein are subject to the Respondent being concurrent in his child support obligations.” However, Karen argues that Scott should have appealed this issue within 30 days of the 1985 judgment. Alternatively, if the issue is before the Court, she contends that although the trial court erroneously used the word “concurrent” instead of current, the trial court’s intention was to require child support payment before the exercise of visitation. Given Scott’s continuing, flagrant abuse of his support obligations we will address this issue.

At the outset, we note that visitation and child support are not interdependent. State ex rel. Dewyea v. Knapp (1984), 208 Mont. 19, 22-23, 674 P.2d 1104, 1105-1106; State ex rel. Blakeslee v. Horton (1986), 222 Mont. 351, 355, 722 P.2d 1148, 1150. However, in this case, a review of the record reveals a clear intention by the trial court to ensure that child support would be current before visitation could be exercised based on Karen’s continuing child support problems and the parties’ stipulation on the record to that provision.

Karen had previously reported to the trial court that she was not being paid child support. In her Petition for Modification of Amended Decree of Dissolution, and affidavit, both signed on January 31,1985, she contended that Scott was in arrears in the amount of $2,800.00. In her February 5,1985 Motion for Temporary Order, she again stated “[t]hat Respondent is in arrears for months July, 1984, until January, 1985 in the amount of $2,800.00.” These documents indicate that Karen was concerned about the child support arrearages, and that she made the court aware of Scott’s noncompliance.

A simple reading of Finding of Fact 10 from the trial court’s order of April 26,1985, makes it evident that the trial court intended to require that the child support be current before Scott exercised visitation. It states “[t]hat the visitation rights herein are subject to the Respondent being concurrent [sic] in his child support.” (Emphasis added.) The visitation rights are “subject to” the condition that the child support obligations be met. That condition is an indisputable mandate, that child support payments were to be current. The trial court made this requirement a condition of Scott’s exercise of visitation.

The following portion of the February 21,1985 transcript further clarifies this issue and provides as follows:

(By Mr. MacDonald): The visitation rights as set forth herein are by stipulation subject to the Respondent being concurrent in the child support obligations at the time of the commencement of his child support obligations. I realize, your Honor, that this is an unusual stipulation, as some of these proceedings are, but I would remind the court we have been through this. This is now our third appearance in Court. No child support has been paid to date, and this agreement is being made by stipulation of the parties in view of those circumstances.
THE COURT: I didn’t quite understand what you said about visitation current in child support. You used —
MR. MacDONALD: Excuse me.
THE COURT: I would like you to repeat it.
MR. MacDONALD: All visitation rights of the Respondent are conditioned upon his being current in the payment of child support at the date he is exercising his visitation. That is, if he is not current, through the Clerk of Court, then the visitation will not take place.
MR. MacDONALD: Could the Court have both the parties stipulate on the record that they find the agreement acceptable?
THE COURT: Dr. Erler?
MR. ERLER: Acceptable.
THE COURT: And you?
MRS. ERLER: Yes.

It is apparent that Scott is using a minor mistake in an otherwise clear order to avoid his child support obligations. His position is untenable. A review of the record and a careful reading of the trial court’s order make it clear that child support is not dependent upon the exercise of visitation, but that visitation is conditioned upon child support payments being current at the time of visitation. His argument, wholly unsupported by the record, leads us to deny his request to strike that portion of the trial court’s order. In so doing, we stress, however, that the facts and stipulation of the parties in this case are unique. This case shall not hereafter be cited for the proposition that visitation is dependent upon child support being current; the two are not interdependent.

AFFIRMED.

JUSTICES HUNT, TRIEWEILER, GRAY and WEBER concur.

1. The PKPA provides as follows:

Full faith and credit given to child custody determinations
(a) The appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided in subsection (f) of this section, any child custody determination made consistently with the provisions of this section by a court of another State.
(b) As used in this section, the term —
(1) “child” means a person under the age of eighteen;
(2) “contestant” means a person, including a parent, who claims a right to custody or visitation of a child;
(3) “custody determination” means a judgment, decree, or other order of a court providing for the custody or visitation of a child, and incudes permanent and temporary orders, and initial orders and modifications;
(4) “home State” means the State in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old, the State in which the child lived from birth with any of such persons. Periods of temporary absence of any of such persons are counted as part of the six-month or other period;
(5) “modification” and “modify” refer to a custody determination which modifies, replaces, supersedes, or otherwise is made subsequent to, a prior custody determination concerning the same child, whether made by the same court or not;
(6) “person acting as a parent” means a person, other than a parent, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody;
(7) “physical custody” means actual possession and control of a child; and
(8) “State” means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or possession of the United States.
(c) A child custody determination made by a court of a State is consistent with the provisions of this section only if—
(1) such court has jurisdiction under the law of such State; and
(2) one of the following conditions is met:
(A) such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child’s home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;
(B)(i) it appears that no other State would have jurisdiction under subparagraph (A), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;
(C) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse;
(D)(i) it appears that no other State would have jurisdiction under subparagraph (A), (B), (C), or (E), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction; or
(E) the court has continuing jurisdiction pursuant to subsection (d)of this section.
(d) The jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant.
(e) Before a child custody determination is made, reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated and any person who has physical custody of a child.
(f) A court of a State may modify a determination of the custody of the same child made by a court of another State, if—
(1) it has jurisdiction to make such a child custody determination; and
(2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.
(g) A court of a State shall not exercise jurisdiction in any proceeding for a custody determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody determination.

28 U.S.C. § 1738A.


author: JUSTICE HARRISON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. WELCH BROGAN, Defendant and Appellant.
    No. 92-322.
    Submitted on Briefs August 19, 1993.
    Decided October 15, 1993.
    50 St.Rep. 1204.
    261 Mont. 79.
    862 P.2d 19.

      For Defendant and Appellant: Richard L. Kalar, Boulder, Colorado, and Joe Gary, Bozeman.
    For Plaintiff and Respondent: Joseph P. Mazurek, Attorney General, John Paulson, Ass’t Attorney General, Helena; and Tara DePuy, Deputy Park County Attorney, Livingston.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Defendant Welch Brogan (Brogan) appeals his convictions for failing to maintain fences on his game farm and illegally capturing wild elk for use in his game farm business, following a bench trial in the District Court of the Sixth Judicial District, Park County. We affirm.

Brogan raises eight issues and numerous sub-issues on appeal, which we consolidate and rephrase as follows:

1. Did the District Court err by denying Brogan’s motion to dismiss on the grounds that the complaints failed to adequately set forth violations of Montana law?

2. Is there sufficient evidence in the record to support Brogan’s convictions?

Brogan, 85, has owned and operated an elk game farm in Corwin Springs, Montana, since 1946. Known by some as the “granddaddy of all elk farmers,” Brogan buys and sells elk in the local, national and international markets. At times, he has had up to 250 head of elk in his inventory.

From 1946 until 1983, Brogan operated an elk farm on the west side of Highway 89, approximately ten miles north of Yellowstone National Park. In 1983, he relocated the farm next to his home on the east side of the highway. The Montana Department of Fish, Wildlife and Parks (Department) approved an expansion of Brogan’s elk farm and his use of electric fence to contain his elk and prohibit access of wild game.

The elk farm is comprised of approximately 400 acres, most of which is rugged, mountainous terrain. Behind Brogan’s house to the northeast is a rectangular pen, which generally houses bull elk (bull pen). To the north of his house, adjacent to the bull pen and joined by a corral, is a triangular pen. To the northwest, adjacent to the triangular pen, is a cow pasture, which generally houses cow elk (cow pen). North of the triangular pen and cow pen is a large mountain pasture (upper mountain pasture), and east/northeast of the upper mountain pasture is Forest Service land. At the northernmost point of the triangular pen, a series of non-electric gates connects the triangular pen, the cow pen, the upper mountain pasture and Forest Service land.

Electric fence separately encloses the upper mountain pasture, the triangular pen, the cow pen and the hull pen. The electric fence, which emits 5,000 to 6,000 volts of electricity, has transponders which remit signals to a shed near Brogan’s home if the fence malfunctions. The fence is broken down into sections, which Brogan can monitor from his home and control from a panel in the shed. The panel allows Brogan to identify which, if any, section of fence is malfunctioning.

Brogan has enjoyed a good relationship with the Department. In 1946, the Department approved Brogan’s elk farm. In 1984, the Department approved Brogan’s expanded elk farm and electric fencing. Over the years, various Montana game wardens have inspected Brogan’s elk farm, counted his elk, checked for disease, reviewed his record books, and helped him trap and remove wild deer from his elk farm.

On December 5, 1988, Game Wardens Randy Weurtz, Jim Kropp and Hank Fabich inspected Brogan’s elk farm. During this routine inspection, they counted 90 elk: forty-five cows and calves in the cow pen and forty-five de-antlered bulls in the bull pen (bulls are de-antlered so as not to injure their handlers or one another). On December 5th, the wardens’ count matched Brogan’s records.

On February 6,1989, while patrolling the late season elk hunt near Gardiner, Montana, Weurtz was checking hunters on Cinnabar Mountain. From that vantage point, he noticed unusual movement across the river on Brogan’s elk farm. Though his view of the lower triangular pen was partially obscured, Weurtz observed about forty elk — cows, calves and antlered bulls — running back and forth in Brogan’s triangular pen. The elk in that pen were apparently wild, spooked and entrapped by a closed gate. According to Weurtz, Brogan’s cow elk in the cow pen and de-antlered bull elk in the bull pen remained calm, yet watched the wild elk with curiosity.

Based on his suspicion that Brogan was harboring wild elk, Weurtz contacted his supervisor, Warden Bud Hubbard. Hubbard suggested a reconnaissance flight over Brogan’s elk farm. On an early morning flight of February 7,1989, Weurtz observed elk in the upper mountain pasture, animal tracks through that gate preserved in snow-covered ground, and hay just inside the gate.

Weurtz, Hubbard and Kropp visited Brogan early that afternoon. Fabich and fellow warden, Terry Hill, watched from the Ranch Kitchen, a Corwin Springs restaurant from which they could partially observe the elk farm. Hubbard informed Brogan that they wished to inspect his elk. Brogan asked if the wardens would mind returning in an hour and a half, when one of Brogan’s hired hands would be available to assist with the count. Hubbard agreed.

The wardens drove across Highway 89 to Cinnabar Mountain to observe the elk in Brogan’s pens. The weather was clear. They observed calm cow elk in the cow pen, calm bull elk in the bull pen, and mixed wild elk — cows, calves and antlered bulls — running in the triangular pen. All gates were closed. Minutes later, the wardens saw Brogan and an assistant drive to the series of gates and open the gate connecting the triangular pen to Forest Service land. Brogan and his assistant then drove to the bottom of the triangular pen and herded the wild elk up through the open gate. The wardens counted at least 80 head of wild elk being forced from the triangular pen. Scurrying to escape, one cow elk attempted to jump the fence leading to the upper mountain pasture. She became entangled in that fence, eventually freed herself and, injured, limped off into the upper mountain pasture.

The wardens immediately drove to Brogan’s ranch. They met Brogan and his assistant, Blake Romey, who were walking down from the triangular pen. Hubbard asked Brogan what had just taken place. Brogan replied that he was attempting to remove some wild deer from his elk farm. Hubbard challenged that claim, explaining that the wardens had just watched him run wild elk from his farm onto Forest Service land. Brogan then stated that he was trying to recapture one of his bull elk, which he may have lost back in January. Brogan had not reported the lost bull, as required by State law.

Hubbard told Brogan that he had violated Montana law. The wardens then secured further evidence. They photographed the elk tracks and noted that hay was spread just outside and inside of the triangular pen. They observed a doe deer and a healthy, wild cow elk in the upper mountain pasture; not the injured cow elk they had seen jump the fence.

The wardens saw elk and deer tracks leading to and from Forest Service land and the upper mountain pasture, through the electric fence. When Weurtz’s dog, which was along for the ride, ran out and back in through the electric fence unaffected, the wardens concluded that the electric fence was turned off.

The wardens and one of Brogan’s assistants then counted Brogan’s elk. The cow count matched what was documented in Brogan’s records. The bull count yielded one less bull than was documented in Brogan’s records.

On May 30,1989, the Department cited Brogan for three violations of Montana law under § 87-1-201, MCA (1989):

1. Failure to maintain fence on a game farm in such a manner as to prevent entry of wild game animals to the triangular pen in violation of Department regulations.
2. Failure to maintain fence on a game farm in such a manner as to prevent entry of wild game animals to the upper mountain pasture in violation of Department regulations.
3. Unlawfully capturing over 80 wild elk in violation of Department regulations.

Following a bench trial on November 27, 1989, the Park County Justice Court found Brogan guilty on all three counts. Brogan was notified of the verdict on December 12,1989, and he appealed to the Park County District Court.

On April 12,1991, Brogan filed a motion to dismiss on the grounds that the complaints failed to adequately set forth violations of law. The District Court denied the motion and a bench trial was held on April 15,1991, and May 1,1991. After receiving post-trial briefs from the parties, the District Court entered its findings of fact and conclusions of law on September 6, 1991. The District Court fined Brogan $500 on each of the three counts. Brogan appeals.

I

Did the District Court err by denying Brogan’s motion to dismiss on the grounds that the complaints failed to adequately set forth violations of Montana law?

Brogan challenges the sufficiency of the charging documents. He first argues that by charging him under § 87-1-201, MCA (1989), the Department failed to provide him adequate notice of the offenses charged. That statute, he argues, merely sets out the Department’s powers and duties.

Brogan received one citation for failure to maintain the upper mountain pasture fence and another for failure to maintain the triangular pen fence. He suggests that he should have been charged for these violations under 12.6.1503 A.R.M. (1989). That rule on game farm fencing requirements provides in pertinent part:

(3) The fence shall be maintained in a game-proof condition at all times. If cloven-hoofed game are able to pass through, under, or over the fence because of any local topographic or other conditions, the licensee shall supplement the fence so as to prevent such passage.

Brogan received a third citation for unlawful capture of 80 wild elk. He suggests that he should have been charged for this violation under § 87-4-418, MCA (1989). That statute, on unlawful capture, states that “[n]o person may capture, take, or otherwise acquire any game animal in this state for use on a game farm except as provided in 87-4-410.” Section 87-4-410, MCA (1989), in turn, sets out specific procedures for the game farm licensee and the Department to follow when capturing and removing wild game from a game farm.

The Department agrees that if Brogan were charged simply with violating § 87-1-201, MCA (1989), then his argument would have merit. That statute provides in pertinent part:

(1) The department shall supervise all the wildlife, fish, game, game and nongame birds, waterfowl, and the game and fur-bearing animals of the state. It possesses all powers necessary to fulfill the duties prescribed by law and to bring actions in the proper courts of this state for the enforcement of the fish and game laws and the rules adopted by the department.
(2) It shall enforce all the laws of the state respecting the protection, preservation, and propagation of fish, game, fur-bearing animals, and game and nongame birds within the state.

Brogan next argues that where conduct alleged in the complaint may be wholly innocent, the unlawfulness of the conduct must be either stated expressly or by using terms or facts which clearly imply the unlawfulness. See People v. Campbell (1972), 3 Ill.App.3d 984, 279 N.E.2d 123, 124. We determine that the complaints expressly stated the unlawfulness of Brogan’s conduct, using facts and terms which clearly explained the offenses charged.

Brogan further argues that the charging language of the complaints is insufficient because it fails to precisely track the statutes under which he should have been charged. To support his contention, Brogan relies on People v. Hayn (1969), 116 Ill.App.2d 241, 253 N.E.2d 575. In Hayn, the court held that an indictment failing to allege the mental state element of theft was insufficient to charge an offense and was, therefore, fatally defective. Hayn, 253 N.E.2d at 577. However, as the Department correctly asserts, Montana does not test the sufficiency of charging documents by such a rigid rule. Rather, we apply the “common understanding” rule. State v. Board (1959), 135 Mont. 139, 142, 337 P.2d 924, 926; see also § 46-ll-401(c)(iii), MCA (1989).

The common understanding rule requires that a court determine whether the charging language allows a person of common understanding to know what is intended to be charged. Board, 135 Mont. at 142, 337 P.2d at 926 (citing State v. McGowan (1908), 36 Mont. 422, 425-26, 93 P. 552,554). Moreover, the test of the sufficiency of a charging document is whether the defendant is apprised of the charges and whether he will be surprised. State v. Bogue (1963), 142 Mont. 459, 462, 384 P.2d 749, 750. We have held that if the facts, acts and circumstances of an offense are sufficiently set forth in a complaint, then erroneously naming the offense or an erroneous statutory reference will not invalidate the charge. State v. Collins (1987), 226 Mont. 188, 191, 734 P.2d 686, 688-89 (citations omitted).

In this case, the complaints clearly detailed specific violations of law. The Department contends and the record shows that the complaints specify the particular facts and date of the violations. Brogan knew full well what offenses he had been charged with. He was prosecuted in Justice Court on the same complaints. Nothing in the record indicates that the Department’s proof or theories changed on appeal to the District Court.

Brogan was not surprised by the alleged inadequacies of the complaints. At most, the slight imperfections in the complaints constituted harmless error. See State v. Pearson (1985), 217 Mont. 363, 367, 704 P.2d 1056, 1059. From the record, it is clear that Brogan presented a complete defense to all charges brought against him. We hold that the District Court properly denied Brogan’s motion to dismiss and correctly concluded that Brogan had adequate notice of the charges brought against him.

Our decision here is distinguishable from our holding in State v. Later (1993), [260 Mont. 363], 860 P.2d 135, 50 St.Rep. 1099. Acareful review of this record reveals that the instant case fits within the Longneck line of cases, distinguished in the recent Later case. State v. Longneck (1981), 196 Mont. 151, 640 P.2d 436. “The Longneck line of cases concern informations [or complaints] which fully inform the defendant charged ‘of what was intended to be charged and against what he was required to defend.’ ” Later, [260 Mont. 363], 860 P.2d 137, 50 St.Rep. at 1100.

Brogan was fully informed as to the specific conduct engaged in which formed the basis of the complaint. Additionally, he was informed that his conduct violated Department regulations. Here, the erroneous statutory citation was a minor error which did not prejudice a substantial right of the defendant.

The defendant in Later, on the other hand, was not notified of the specific conduct which formed the basis of the official misconduct violation until after the defense had rested and the jury instructions were being settled. We concluded that an amendment to the complaint at such a late date, to a completely different statute, substantially altered the underlying offense which formed the basis of the official misconduct violation. Such was not the case here, as Brogan was able to present a defense tailored to the specific conduct which formed the basis of the Department’s complaint.

II

Is there sufficient evidence in the record to support Brogan’s convictions?

Where the sufficiency of the evidence is at issue on appeal in a criminal bench trial, the standard of review is whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Bower (1992), 254 Mont. 1, 6, 833 P.2d 1106, 1110 (citing State v. Riley (1992), 252 Mont. 469, 830 P.2d 549). In addition, the credibility of the witnesses and the weight of the evidence are exclusively within the province of the trier of fact. State v. Whitcher (1991), 248 Mont. 183, 188, 810 P.2d 751, 754.

“The [trier of fact] is not bound to blindly accept a defendant’s version of the facts.” State v. Sorenson (1980), 190 Mont. 155, 170, 619 P.2d 1185, 1194. If events are capable of different interpretations, the trier of fact determines which is most reasonable. State v. Matson (1987), 227 Mont. 36, 39-40, 736 P.2d 971, 973 (citation omitted). Section 26-1-501, MCA, permits the trier of fact to make inferences based on the facts proved.

In the case before us, the District Court, the trier of fact, assessed the credibility of the witnesses and weighed the evidence. The court found the Department’s version of the events more credible than Brogan’s.

Brogan contends that the evidence relied on by the Department was circumstantial and not inconsistent with the rational theory that he was attempting to recapture an escaped bull elk. See State v. Starr (1983), 204 Mont. 210, 664 P.2d 893. However, the Department presented direct evidence of the charged violations. The game wardens saw wild elk entrapped in the triangular pen on Brogan’s elk farm. They testified that they saw Brogan and his assistant open the gate connecting the triangular pen to Forest Service land. The wardens testified that they watched the pair return to the base of the triangular pen and force more than 80 head of wild elk from Brogan’s elk farm onto Forest Service land. The wardens further testified that they observed a wild cow elk injure herself when jumping the fence leading to the upper mountain pasture; yet they noted a different, healthy cow elk and doe deer in the upper mountain pasture as well. Their testimony is direct evidence of Brogan’s unlawful capture of wild elk and of his failure to maintain game-prooffences surrounding the triangular pen and upper mountain pasture.

The District Court found that deer entered Brogan’s upper mountain pasture through the electric fence; that the gate connecting the upper mountain pasture to Forest Service land was open during the week preceding February 7, 1989; and that the fences were not electrified on February 7th. These findings support the District Court’s conclusion that Brogan failed to maintain his fences to prevent the entry of wild game animals.

Brogan asserts that it would have been impossible for him to use any of the elk in question, as he can only sell elk which are double-tagged in their ears by a state-licensed veterinarian. He argues that it would have been foolish for him to trap and use wild elk, which present disease and health dangers to his healthy elk. Brogan argues that the reasons he left gates open and strategically placed the hay were: 1) to lure his escaped bull elk back onto the farm; and 2) to bait wild deer out of his upper mountain pasture. This “bait and pray” tactic, Brogan contends, is standard industry practice for removing wild animals and recapturing escaped elk — a tactic the Department knew about and endorsed. Brogan further argues that the Department helped him remove deer on an ongoing basis.

It is true that the Department at one time provided Brogan with traps to remove wild deer and even assisted Brogan with ‘"bait and pray” tactics in the past. However, as Warden Hubbard testified, the Department must supervise any operation where a gate to the wild is open. Otherwise, the fence is not being maintained in game-proof condition. The Department never gave Brogan permission to conduct an unsupervised “bait and pray” operation.

Brogan argues that § 87-4-419, MCA (1989), directs him to “make every reasonable effort to recapture” his game farm animals. However, Brogan apparently ignored the direction in the same sentence of that statute which provides that “the game farm licensee shall immediately notify the department of [the animal’s] escape.” Brogan contends that he did not know he was required to contact the Department if his elk escaped. However, he testified that when one of his elk escaped in 1982, while he was working in Alaska, he “called one of the game wardens to tell them we had an elk out.”

The record supports the District Court’s finding that Brogan failed to notify the Department of his alleged escaped bull until twice confronted by Warden Hubbard about releasing wild elk from his triangular pen. As the Department correctly points out, the District Court was not obligated to accept Brogan’s explanations and rationale for his conduct. Rather, the District Court heard testimony, observed the witnesses and gauged their credibility, and concluded that Brogan intended to capture the wild elk for use on his game farm.

Brogan next argues that the Department failed to prove beyond a reasonable doubt that he intended to use the wild elk he captured on his elk farm. See § 87-4-418, MCA (1989). Conversely, the Department argues, and we agree, that it need not prove how Brogan planned to use the elk. The rule in Montana is that circumstantial evidence is an “acceptable and often convincing method of proving criminal intent.” State v. Pascgo (1977), 173 Mont. 121, 126, 566 P.2d 802, 805. “The existence of a mental state may be inferred from the acts of the accused and the facts and circumstances connected with the offense.” Section 45-2-103(3), MCA (1989). Circumstantial evidence alone may be sufficient to sustain a conviction. State v. Buckingham (1989), 240 Mont. 252, 783 P.2d 1331.

The direct evidence of Brogan’s offenses is compelling; however, the circumstantial evidence — such as the animal tracks, the hay placed near the gates, the absence of electric power in the fence, Brogan’s request that the wardens return upon learning that they planned to inspect his farm, and his evasive answers when confronted about the events of February 7, 1989 — additionally supports any inferences drawn by the District Court, as well as its findings of fact and conclusions of law.

Brogan contends that he is being charged with felony criminal activity, which, he argues, requires proof of concurrent intent. Brogan is mistaken. He was charged under Title 87 of Montana’s fish and wildlife statutes. The penalty provision of Title 87 provides that a person who violates any provision of Title 87 is guilty of a misdemeanor. Section 87-1-102, MCA (1989). Brogan’s offenses were misdemeanors, not felonies.

Brogan finally argues that he should not be held accountable for the actions of Joe Heimer, his hired hand, who actually closed the gate which entrapped wild elk on Brogan’s elk farm. However, Heimer told Warden Weurtz that he closed the gate in accordance with Brogan’s instructions. Heimer testified that Brogan wanted the gate closed and Heimer informed Brogan that he would close the gate to the pen. This testimony supports the District Court’s finding that Brogan was ultimately responsible for capturing wild elk by luring them into the pen and securing the gate. Brogan raises other arguments which lack merit and need not be addressed.

We hold that sufficient evidence exists in the record to support the District Court’s conclusions that: 1) Brogan captured more than 80 head of wild elk for use on his game farm, purposely luring them into his farm enclosures by leaving gates open and baited with hay; and 2) Brogan failed to maintain his fences surrounding the upper mountain pasture and triangular pen.

Affirmed.

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