author: JUSTICE McDONOUGH JUSTICE TRIEWEILER, JUSTICE WEBER,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JOSEPH P. HENSLEY, Defendant and Appellant.
    No. 90-261.
    Submitted on briefs Sept. 9, 1991.
    Decided Nov. 19, 1991.
    250 Mont. 478.
    821 P.2d 1029.

      James G. Hunt, Dix and Hunt Law Firm, Helena, for defendant and appellant.
    Marc Racicot, Attorney General, and Jennifer M. Anders, Assistant Attorney General; Scott B. Spencer, Lincoln County Attorney, Libby, for plaintiff and respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

Defendant, Joseph Hensley, appeals from a decision by a jury of the Nineteenth Judicial District, Lincoln County, convicting him of sexual intercourse without consent. Hensley was sentenced to 20 years in prison. We reverse and remand for a new trial.

The issues on appeal are:

1. Whether the District Court erred in admitting the testimony of Ann Anderson, a social worker regarding the credibility of a sexual abuse victim.

2. Whether the District Court erred in allowing Ann Anderson to testify about another report of abuse concerning defendant’s wife and son.

3. Did the District Court err in considering the results of defendant’s polygraph examination for sentencing?

4. Did the District Court err in refusing to allow defense witness to testify on rebuttal?

Defendant Joseph Hensley was convicted of molesting his natural daughter, E.H., between 1980 and 1985 while they resided in Lincoln County. According to the allegations made by E.H., Joseph Hensley entered her room two or three times a week between 1980 and 1985. According to E.H.’s testimony, the defendant performed oral sex on her, digital penetration, and, at times, made her massage his penis.

The victim did not report these instances to anyone until 1989 when, after arguing with her mother, her mother threatened to send E.H. to live with her father in California. Because E.H. and her mother were not getting along at the time, E.H. was living with another woman in the community. This woman encouraged E.H. to report the incidents because E.H. was having trouble sleeping at night. E.H. reported the incidents, first to Pat Warneke, a probation officer, then to Ann Anderson, a social worker for the Department of Family Services.

On August 10, 1989, an information was filed in Lincoln County District Court charging Hensley with sexual intercourse without consent. On January 4, 1990, the defendant was convicted of the above crime. This appeal followed.

I

Whether the District Court erred in admitting the testimony of Ann Anderson, a social worker, regarding the credibility of a child abuse victim.

At trial, E.H. testified that the family lived in three different trailers during the time the incidents took place. When the family moved into the first trailer E.H. testified she shared a bedroom with her two brothers. Approximately halfway through their stay in the first trailer she moved into her own room. From then on E.H. testified she had her own room unless relatives, most often her grandmother, came to visit. During these visits, E.H. bunked with her brother, but most of the time she stayed on the couch.

Testimony from other family members indicated that E.H.’s grandmother shared a room with E.H. for extensive periods of time during the five- year period. E.H.’s younger brother testified he never saw their father go into E.H.’s room at night. E.H.’s mother testified on cross-examination that she thought E.H. was lying about the allegations E.H. made against her father.

The State called Ann Anderson, a social worker, as a rebuttal witness. The testimony was admitted after objection by the defendant. Anderson testified as follows:

“Q. And do you have any reason to doubt E.H.’s truthfulness in this case?
“A. No, I don’t.
“Q. Has there been anything that you have seen that you are trained in professionally that you use to judge her truthfulness that indicates she is untruthful?
“A. No.”

We have previously stated that the credibility of a witness lies exclusively within the province of the trier of fact. “Expert testimony regarding credibility improperly invades the jury’s function by placing a stamp of scientific legitimacy on the victim’s allegations. Therefore, we generally will not allow an expert witness to comment on the credibility of the alleged victim.” State v. Harris (1991), 247 Mont. 405, 808 P.2d 453, 455. (Citations omitted.)

However, we have carved out an exception to the rule in the instance that a young child makes an allegation of sexual abuse and expert testimony could assist the jury. Id. [808 P.2d] at 455. The exception is further narrowed in that the child must testify at trial, the child’s credibility must be brought into question, and the expert witness must be properly qualified. State v. Scheffelman (1991), 250 Mont. 334, 820 P.2d 1293. Here the qualifications of the expert were not challenged.

Under the circumstances of this case, when E.H. testified at trial she was approximately one month shy of seventeen years of age. She testified that her father sexually abused her over a five-year period. She further testified that she had her own room for the majority of time during those five years. E.H.’s two brothers, her father and mother contradicted that testimony, alleging that E.H.’s grandmother and brother often visited the family home which necessitated that E.H. share her room. E.H.’s credibility was brought into question when E.H.’s mother testified, in response to a question on cross- examination by the county attorney, that she thought E.H. was lying about the allegations E.H. made against her father.

Even assuming that E.H.’s credibility was properly challenged, there is a question as to whether the testimony of Ann Anderson regarding this sixteen-year-old’s credibility was proper.

Our earlier cases in which we allowed expert testimony as to the credibility of a child sexual abuse victim involve very young children. In State v. Geyman (1986), 224 Mont. 194, 729 P.2d 475, the victim was nine years old. In State v. French (1988), 233 Mont. 364, 760 P.2d 86, we upheld the district court’s ruling that the school counselor could offer opinion testimony that the six-year-old victim was telling the truth.

Commentators have suggested that in limited circumstances an expert witness may aid the jury by testifying on the credibility of the child witness. Myers, Expert Testimony in Child Sexual Abuse Litigation, 68 Neb.L.Rev. 121, 127 (1989):

“[w]hile qualified experts possess specialized knowledge regarding certain aspects of credibility, expert capacity to detect lying and coaching is too limited to justify admission of generalized credibility testimony.
“While generalized credibility testimony is properly excluded, circumstances exist where narrowly tailored expert testimony may be proper to rebut certain attacks on credibility. For example, if the defense asserts or intimates strongly that children as a group lie about sexual abuse, it seems fair to permit rebuttal expert testimony

In State v. Haseltine (App. 1984), 120 Wis.2d 92, 352 N.W.2d 673, the Wisconsin Appeals Court held it was error to admit expert testimony as to whether a sixteen year old was an incest victim. The court said, “No witness, expert or otherwise, should be permitted to give an opinion that another mentally and physically competent witness is telling the truth.” The court went on to distinguish this case from other sexual abuse cases where expert testimony would be helpful to the jury. Here E.H. was sixteen years old, was a competent witness, and was under no physical or mental disability. A jury is capable of assessing the credibility of such a witness. We conclude the admission of this testimony was erroneous and is reversible error.

II

Whether the District Court erred in allowing Ann Anderson to testify about another report of abuse concerning defendant’s wife and his son.

At the time of trial Hensley, through his counsel, objected to testimony by Ann Anderson regarding an earlier report of abuse involving defendant’s wife and son on relevancy grounds. We agree with the defendant and hold that the testimony was irrelevant to defendant’s guilt or innocence, which was the sole issue at trial.

III

Did the District Court err in considering the results of defendant’s polygraph examination during sentencing?

Section 37-62-302, MCA, provides that: “[rjesults of a polygraph examination or other test given by an examiner may not be introduced or admitted as evidence in a court of law.” In expanding this section, we have prohibited the introduction of polygraph examination results in any proceedings in Montana courts of law. State v. Staat (1991), [248 Mont. 291,] 811 P.2d 1261, 48 St.Rep. 331,. The introduction and consideration of the results of a polygraph examination was erroneous.

IV

Did the District Court err in refusing to allow a defense witness to testify on rebuttal?

Because we reverse and remand for a new trial, we do not address this issue on appeal.

This judgment is reversed, and the cause is remanded to the District Court for a new trial.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON and GRAY concur.

JUSTICE TRIEWEILER,

dissenting in part and concurring in part:

I dissent from the opinion of the majority. I would affirm the District Court.

Ann Anderson is a social worker who, at the time of trial, had been employed by the State Department of Family Services for the previous 11 years. She had a master’s degree in social work. Her professional duties related primarily to the investigation of sexual abuse cases. In the ten years prior to giving her testimony, she had participated in the investigation of approximately 240 such cases. In addition, she had attended a number of workshops every year that dealt with sexual abuse, and had been trained to investigate complaints and evaluate their veracity.

Ms. Anderson testified that she was responsible for investigating the complaint of the victim in this case and, in the course of that investigation, had talked to her many times. Ms. Anderson explained what types of behavior social workers look for in evaluating the veracity of similar complaints, and answered questions about whether those forms of behavior existed in this case. For example, she explained what the appropriate emotional reaction is for a victim of sexual abuse, and the type of detail that would be expected from a victim when he or she describes the abuse that allegedly occurred. She explained how this victim’s conduct compared to what she would expect to see from a victim of abuse, and she testified to the absence of behavior that would indicate fabrication on the part of this victim. That small portion of her testimony which is quoted by the majority has to be put in the above context to be understood. This is not a case where this witness expressed an opinion that the victim was or was not testifying truthfully. Therefore, the authorities relied upon by the majority are not proper authority for the reversal of defendant’s conviction. Neither do I believe that this case is controlled by State v. Harris (Mont. 1991), [247 Mont. 405,] 808 P.2d 453, 455, 48 St.Rep. 62, 63. This case is different than Harris because, in this case, the victim’s credibility was clearly challenged by the defendant.

I do believe that the testimony of Ms. Anderson provided specific examples of the victim’s past conduct in an effort to buttress her credibility. Therefore, I would conclude that her testimony was a violation of Rule 608(b), M.R.Evid., which provides, in relevant part, that:

“Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, may not be proved by extrinsic evidence.”

Even though I have concluded that Ms. Anderson’s testimony violated Rule 608(b), I would not reverse defendant’s conviction because her testimony was never properly objected to on that basis. Without a proper objection, the District Court had no adequate opportunity to consider the admissibility of the testimony, and the State could not exercise its option of withdrawing the testimony based on an appropriate objection.

Section 46-20-104(2), MCA, provides that:

“Upon appeal from a judgment, the court may review the verdict or decision and any alleged error objected to which involves the merits or necessarily affects the judgment. Failure to make a timely objection during trial constitutes a waiver of the objection except as provided in 46-20-701(2).”

None of those exceptions provided for in § 46-20-701(2), MCA, are present in this case.

Section 46-16-201, MCA, provides that the rules of evidence in civil actions are also applicable to criminal actions, except where otherwise provided. Rule 103(a), M.R.Evid., provides, in part, as follows:

“Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected and
“(1) ... a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context... .” [Emphasis added.]

In this case, Ms. Anderson’s testimony was only objected to by defendant for the reason that, “it is not proper rebuttal.” However, when given an opportunity to argue the basis for his objection in chambers and outside the presence of the jury, counsel for defendant admitted that he had challenged the victim’s veracity. The following conversation occurred, including defendant’s attorney and the court:

“THE COURT: The defense has stated in so many words that this complaining witness is lying.
“MR. SHAFFER: That is correct.”

Ms. Anderson’s testimony was never objected to by defendant as a violation of Rule 608(b). Nor was it ever objected to for the reason that it constituted a comment on the credibility of a witness. Those arguments have been persuasively made by the attorney representing defendant on appeal. However, he is not the same attorney who represented defendant at trial; and, unfortunately for everyone involved, those arguments were not made at the time of trial.

Because of the rules for preserving objections, and because of their importance in achieving fairness to the parties in the trial court, I would affirm the jury’s verdict, even though I conclude that the testimony of Ms. Anderson was inadmissible under Rule 608(b).

Neither would I reverse this case on the basis of Ms. Anderson’s reference to her investigation of sexual abuse of Joey Hensley.

Jane Hensley, the victim’s mother, testified during defendant’s case that, in her opinion, her daughter was lying when she accused her father of sexual abuse. Following that testimony, during the State’s rebuttal, Ms. Anderson was asked about Jane Hensley’s own reputation for truthfulness. Evidence of a witness’s reputation for being untruthful is admissible pursuant to § 26-1-302, MCA. However, there has to be some factual foundation for a witness’s ability to offer such testimony. In this case, that foundation was laid by having Ms. Anderson testify that she was familiar with Jane Hensley based upon her earlier investigation of alleged abuse of Joey Hensley. She stated that in the course of that investigation she talked to a number of people, including school counselors and probation officers, and that based upon those conversations, she was able to conclude that Jane Hensley had a poor reputation for truthfulness.

Ms. Anderson’s testimony regarding the investigation of sexual abuse involving Joey Hensley was objected to for the reason that when that abuse was alleged to have occurred, defendant was living in California. The District Court offered to give an instruction making clear to the jury that defendant was not the subject of those allegations.

Under Rule 403, M.R.Evid., it was up to the District Court to determine whether the prejudicial effect of Ms. Anderson’s testimony was outweighed by its probative value. In balancing those factors, deference should be paid to the District Court unless there has been an abuse of discretion. Cooper v. Rosston (1988), 232 Mont. 186, 190, 756 P.2d 1125, 1127. In this case, where it was clear that because of his absence from the state defendant was not involved in the other incident of sexual abuse, and where the District Court offered to make that clearer by so instructing the jury, I would conclude that there was no abuse of discretion in allowing Ms. Anderson’s testimony as part of the necessary foundation for her opinion regarding Jane Hensley’s reputation for truthfulness.

Finally, I concur with the majority’s opinion that the results of polygraph examinations should not be included in material submitted to the District Court as part of the presentence investigation. I would remand to the District Court for resentencing and order that any reference to the polygraph examination, or its results, be stricken from the materials considered by the District Court in determining the appropriate sentence for defendant. In so holding, I would note that there is no evidence in this record that the District Court improperly considered defendant’s polygraph results in arriving at the sentence which was imposed. However, for purposes of providing a guideline for use in future presentence investigation, I believe the better rule is to set aside any sentence imposed after consideration of a report which includes the results of a polygraph examination.

For these reasons, I would affirm defendant’s conviction of sexual intercourse without consent and remand this case to the District Court for resentencing pursuant to that conviction.

JUSTICE WEBER,

dissenting:

I dissent from the majority holding on Issue I which is whether it was error to admit the testimony of Ann Anderson, a social worker, regarding credibility of a sexual abuse victim.

The majority has emphasized that the complaining witness was almost 17 at the time of trial and used age as the foundation for reversal. It is important to note that the defendant was convicted of molesting his daughter between the years 1980 and 1985. The trial took place in January 1990, essentially ten years after the beginning of the acts in question. While it is true that the complaining witness was almost 17 at trial, it is also true that she was between the ages of 7 and 12 when the offenses occurred.

The majority disapproves of the following testimony:

“Q. And do you have any reason to doubt E.H.’s truthfulness in this case?
“A. No I don’t.
“Q. Has there been anything that you have seen that you are trained in professionally that you use to judge her truthfulness that indicates she is untruthful?
“A. No.”

The majority opinion quotes from State v. Haseltine (1984), 120 Wis.2d 92, 352 N.W.2d 673, 676, where the court said “No witness, expert or otherwise, should be permitted to give an opinion that another mentally and physically competent witness is telling the truth.” Even if we accept the Wisconsin authority, I question that the case is good authority when the actual questions and answers are considered in this case. Initially Ann Anderson had been asked a number of questions which established her expert capacity in this area. Then she was asked if she had any reason to doubt the witness’ truthfulness and answered that she did not. That is not the same as saying the witness had told the truth. It is an application of her professional training to the conduct of the witness. Next she was asked if there was anything in her professional training which she used to judge truthfulness which indicated to her that the witness was being untruthful. To that she answered “no.” Again, this is an application of her professional training to the evaluation of the conduct of the witness. It is not the same as an opinion that the witness was “telling the truth.” I would therefore clearly distinguish from State v. Haseltine.

The testimony established that, as a social worker, Ann Anderson had worked for ten years in the areas of sexual abuse and had handled approximately two sexual abuse cases per month during those ten years. As I review her testimony it was clearly admissible, as it was not so much a specific comment on credibility as an explanation of how the conduct of this girl was consistent with the conduct of a sexual abuse victim.

I believe the facts in this case bring it within the exception referred to by the majority in State v. Scheffelman (1991), [250 Mont. 334,] 820 P.2d 1293. Under that case, the exception can be applied where the child testifies at trial, where the child’s credibility is brought into question, and the expert witness has been qualified. Here the complaining witness did testify at trial and was subject to cross-examination. Here the credibility of the complaining witness was challenged by her mother, her two brothers, and the defendant father, who testified that he had never made any type of improper physical contact and that he had disowned his daughter and she was “out of the family.” I conclude that the evidence clearly establishes that all three elements of the Scheffelman test were met with regard to Ann Anderson.

After concluding that the Scheffelman test has been met, I further conclude there was a clear benefit to the jury as trier of fact in receiving the testimony of Ann Anderson. The first benefit was that it gave some additional basis for evaluating the contradictory testimony on the part of the various members of the family of the complaining witness. The second benefit is that it assisted the jury in its evaluation of the testimony of a 16-17 year old as she related the circumstances of assaults which had occurred ten years earlier. That benefit is strengthened because of the necessity that the jury evaluate the long delay in reporting such assaults of ten years earlier.

I recognize the discomfort on the part of the majority at allowing an expert to testify where the complaining witness is almost 17 years of age, and the argument that this may be an improper strengthening of the testimony of a mentally and physically competent witness. A review of our sexual abuse cases indicates the state of flux of the law of evidence in the State of Montana. I have not found a particular basis for concluding that an expert should not be allowed to testify because the complaining witness is 16-17 years of age. I do not find anything automatic on the age factor, and in particular where the sexual abuse occurred approximately ten years earlier. I believe that the testimony of the expert was of real assistance in this case. The basic reason is that the jury did not have an adequate background based on its own experience to evaluate the contradictory testimony and the testimony of the complaining witness which stretches over a ten-year period and goes back to age 7. The testimony of the expert was helpful to the jury in evaluating testimony by a 16-17 year old as to conduct and responses on her part between the ages of 7 and 12 years of age, an area in which the jury could not be expected to have expertise.

I further suggest that the standard we are setting here will be of questionable value in the future. How is the age standard to be applied? Is it to be based upon an after-the-fact evaluation of a complaining witness? If we have a brilliant 12 year old, capable of good self expression, should a conviction be reversed because of the use of an expert witness? Basically I question the theory of using age alone as a disqualifying factor. Careful analysis may well demonstrate that an expert witness may be of assistance to the trier of fact even where the complaining witness is 17 or older. I have attempted to show that such a careful analysis here clearly demonstrates the very real assistance given by the expert witness to the jury as trier of fact.

I would affirm on this issue.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    IN RE THE MARRIAGE CYNTHIA JO EIDE, Petitioner and Respondent, v. CLARENCE A. EIDE, JR., Respondent and Appellant.
    No. 91-273.
    Submitted on briefs Oct. 24, 1991.
    Decided Dec. 3, 1991.
    250 Mont. 490.
    821 P.2d 1036.

      Leonard J. Haxby, Attorney at Law, Butte, respondent and appellant.
    J. Dennis Corbin, Brown, Huss & Corbin, Miles City, for petitioner and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

The appellant, Clarence Eide Jr., appeals from the decree of dissolution of his marriage to the respondent, Cynthia Jo Eide, entered in the Sixteenth Judicial District Court, Rosebud County, Montana, which awarded the respondent $400 per month maintenance. We affirm.

The appellant raises the following issues on appeal:

1. Was the District Court’s award of maintenance to the wife supported by the evidence?

2. Did the District Court err in awarding maintenance in an amount exceeding the amount requested by the wife in her petition for dissolution of marriage?

Cynthia and Clarence Eide Jr., were married on December 23, 1967. They separated in March of 1988; the Sixteenth Judicial District Court entered a decree of dissolution on March 28, 1991. The parties have two children who were of legal age at the time of the dissolution. Therefore, the only issues on appeal concern maintenance.

During the marriage, the wife was primarily a homemaker who worked at various jobs. The husband was employed by Montana Power Company during the last nine years of the marriage, earning approximately $40,000 per year at the time of separation.

On July 1, 1988, the wife filed her petition for dissolution of marriage seeking maintenance, an equitable division of the marital property, her attorney’s fees, and other equitable relief as the court deemed proper. Shortly thereafter the husband, wife, and their respective attorneys began negotiations to amicably determine the distribution of the marital property. A document drafted by the husband’s attorney and titled “Separation, Custody, Support and Property Settlement Agreement” resulted from these negotiations. The husband signed this document on August 12, 1988, and forwarded it to the wife, who failed to sign it.

Among other provisions, the document set forth a division of the marital property. The wife was to receive the family home, including all liabilities affecting the home (approximately $59,000), $10,000 cash, a vehicle, household goods, and assorted hand tools. The document provided that the husband would receive four vehicles, a motorcycle, a jet boat, various tools, guns, a hangar, an airplane, some Idaho property, his payroll savings, his employee stock shares, credit union stock shares, and the amount in the couple’s checking account. The husband was to assume the liabilities associated with these items of approximately $4,745. The document made no reference to maintenance.

After a breakdown in negotiations, the husband’s attorney scheduled the dissolution hearing which was held on August 25,1989. At the hearing, the husband was represented by counsel while the wife was not.

The hearing revealed a great disparity in earning capacity between the husband and the wife. The husband continued to earn between $40,000 and $45,000 per year at Montana Power Company while the wife, employed as a waitress, earned approximately $574 per month (including $74 per month interest income on the cash settlement the wife received from the husband). Although the wife failed to sign the Settlement Agreement, the hearing revealed that she agreed to it during the oral negotiations, even though she felt it was unfair. Additionally, at the time of negotiations, the wife agreed not to accept maintenance. However, when she received the written agreement, circumstances had changed and she no longer felt the terms of the agreement were fair. Finally, the hearing revealed that the husband had substantially complied with the terms of the agreement.

After hearing the evidence presented by the parties, the court ordered the parties to submit financial statements and took the matter under advisement. On December 13,1990, the District Court issued a Memorandum and Order disposing of the case. The District Court found that the wife lacked sufficient property to provide for her reasonable needs and that she was unable to support herself through appropriate employment. In addition to adopting the portions of the Settlement Agreement concerning property distribution, the court ordered the husband to pay $400 per month permanent spousal maintenance. The husband appeals the District Court’s award of maintenance to the wife.

I.

Was the District Court’s award of maintenance to the wife supported by the evidence?

A district court must engage in a two-tiered analysis when awarding maintenance in a dissolution proceeding. Maintenance can be awarded after an equitable division of the marital property has been established pursuant to § 40-4-202, MCA, and the criteria of § 40-4-203, MCA, have been satisfied. A district court’s wide discretion in determining a maintenance award will not be disturbed unless it is clearly erroneous. In re Marriage of Aanenson (1979), 183 Mont. 229, 235, 598 P.2d 1120, 1123. Thus, this Court’s function on appeal is limited to a determination of whether the district court’s findings are clearly erroneous. Rule 52(a), M.R.Civ.R; In re Marriage of Luisi (1988), 232 Mont. 243, 248, 756 P.2d 456, 459.

In the case at bar, the parties did not raise the question of whether the property was equitably distributed, nor did they appeal the distribution. Therefore, we limit our review to the issues of maintenance.

In a dissolution proceeding, the court may award maintenance only if the court finds that the spouse seeking maintenance lacks sufficient property to provide for one’s reasonable needs and is unable to support oneself through appropriate employment. Section 40-4-203(1), MCA. In this case, the court found that the wife lacked sufficient property to support herself. Apart from the cash settlement, all property the wife received was either income consuming or at least non-income producing, which contributed to her inability to support herself. The court also found that the wife was unable to support herself through appropriate employment. The wife had no marketable skills because during the 21 years of marriage she primarily cared for the children and the home. Consequently, she was only able to earn minimum wage. These facts are supported by the record and are sufficient to satisfy the first tier of § 40-4-203(1), MCA, supporting the wife’s eligibility for maintenance.

After finding the wife was eligible for maintenance, the court engaged in step two of the analysis to determine the amount and duration of maintenance pursuant to § 40-4-203(2), MCA. That section sets forth specific factors which the court must consider in making this determination, including:

“1. The financial resources of the party seeking maintenance, including the marital property apportioned to that spouse and that spouse’s ability to meet his or her own needs independently;
“2. the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to find appropriate employment;
“3. the standard of living established during the marriage;
“4. the duration of the marriage;
“5. the age and physical and emotional condition of the spouse seeking maintenance; and
“6. the other spouse’s ability to meet his or her own needs while meeting the needs of the spouse seeking maintenance.”

The court addressed the above criteria in its Memorandum and Order, dated December 13, 1990, before awarding $400 per month permanent maintenance to the wife. First, the court found a great disparity between the incomes of the parties. With regard to the husband’s earning capacity, the court noted that he has been employed by Montana Power Company for a number of years, earning an average of $40,000 per year and is expected to continue earning approximately the same amount. With regard to the wife’s earning capacity, the court found that, including the interest income from the $10,000 cash settlement, the wife’s independent earnings of $574 per month were slightly above the poverty level and insufficient to meet her monthly needs.

After properly considering the other factors of § 40-4-203(2), MCA, the court found that the wife was entitled to $400 per month permanent maintenance because: (1) she would not benefit from job training; (2) with the husband’s income and his retirement benefits, he would continue to enjoy the standard of living maintained during the marriage while the wife, even with maintenance, would enjoy a substantially lower standard of living; (3) of the long duration of the marriage (approximately 21 years prior to separation); and (4) the husband was able to pay maintenance while meeting his own needs.

In light of the foregoing facts, we find that the District Court’s findings were not clearly erroneous. We affirm the judgment of the District Court on this issue.

II.

Did the District Court err in awarding maintenance in an amount exceeding the amount requested by the wife in her petition for dissolution of marriage?

The husband contends that even if this Court finds that the maintenance award is supported by the evidence, the award is void. The husband’s basis for this contention is that the District Court abused its discretion in awarding maintenance in an amount greater than the amount requested by the wife in her petition. We disagree.

The wife contends that although she only requested $300 per month maintenance in her petition, the court was not precluded from granting other appropriate relief if such relief was supported by the record. The wife’s request in her petition for “other and further suitable arrangements as the Court may deem just and proper” was a sufficient request to award maintenance in an amount greater than requested by the wife. Further, the wife also cites Rule 54(c), M.R.Civ.R in support of the court’s authority. Rule 54(c), M.R.Civ.R (1989), provides in part:

“Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.”

Rule 54(c), M.R.Civ.R, grants the court discretion which must be viewed according to the circumstances of the case. In re Marriage of Hughes (1989), 236 Mont. 427, 430, 770 P.2d 499, 501.

In light of our discussion on the first issue above, the District Court had the power to award maintenance in an amount greater than the wife sought in her petition because such an award was supported by the evidence. Therefore, we hold that the court did not err and the judgment of the District Court on this issue is affirmed.

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


author: CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. WESLEY PAUL JOHNSON, Defendant and Appellant, and ANN JOHNSON, Defendant and Appellant.
    No. 90-400.
    Submitted on briefs Oct. 10, 1991.
    Decided Dec. 3, 1991.
    250 Mont. 496.
    821 P.2d 1039.
    J. Dirk Becarri, Public Defender, Margaret L. Borg, Public Defender; Marcia Jacobsen, Public Defender, Missoula, for defendants and appellants.

      Marc Racicot, Attorney General, Micheál S. Wellenstein, Assistant Attorney General, Helena; Robert L. Deschamps, County Attorney, Missoula, plaintiff and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Wesley Paul Johnson and Ann Johnson (collectively referred to as Defendants) appeal their convictions for criminal mischief following a jury trial in the Fourth Judicial District, Missoula County. We reverse and remand. Defendants present the following issues:

1. Did the District Court err when it denied Defendants’ motions to exclude evidence of other acts?

2. Did the District Court err when it denied Defendants’ motions for a directed verdict and for a new trial?

On March 11, 1988, Wesley Paul Johnson and his mother, Ann Johnson, were individually charged by information with arson, or in the alternative, criminal mischief, in connection with an August 21,

1987, fire that destroyed a mobile home at 2323 Suzanne Court in Missoula, Montana. Both pled not guilty to these charges on March 31, 1988. On April 14, 1988, the State moved to consolidate the Defendants’ cases; the District Court granted this motion on May 19, 1988.

On August 9, 1988, the State filed a notice of intent to rely on the following other crimes evidence:

“Late 1970’s — Kalispell, Montana, Highway 2, duplex fire in which the entire building burned where Defendant, Wesley Johnson, was residing.
“January 23, 1980 — Billings, Montana, 3110 Old Hardin Road, fire occurred at 0748 in the living room of mobile home owned and occupied by Defendant, Wesley Johnson. The local fire department lists the cause as a cigarette discarded in an upholstered sofa.
“August 9,1980 — Billings, Montana, 3925 Bobolink, fire occurred at 2331 in the bedroom of a single family residence occupied by Defendant, Ann Johnson. The cause was listed as undetermined.
“December 3, 1984 — Billings, Montana, 5046 Danford Drive, fire occurred in a vacant mobile home. The mobile home was owned by Defendant, Wesley Johnson. The investigation revealed that a petroleum product was used in one of the bedrooms in an attempt to spread the fire.
“July 29, 1985 — Missoula, Montana, 2439V2 MacDonald, fire occurred at 1823 in a garage used as an automotive repair shop operated by Wes Johnson. The fire was attributed to sparks from [an] acetylene torch igniting a box of rags.
“March 30,1987 — Quincy, Washington, Lazy Acres Mobile Home Park, fire occurred at 2255 in a mobile home owned by Defendant, Wesley Johnson, and occupied by Ann Johnson. The fire was attributed to a cigarette being dropped into a box of clothes that Defendant, Ann Johnson, had been folding.
“August 21, 1987 — Missoula, Montana, 2325 [sic] Suzanne Court fire occurred at 0259 in a mobile home owned by Defendant, Wesley Johnson, and occupied by Defendant, Ann Johnson. The fire was originated near a stack of folded clothes on the floor and on a love seat. The occupant Defendant, Ann Johnson, had been drinking coffee and smoking while folding clothes.”

Defendants filed a motion in limine objecting to the introduction of these prior fires. On October 26, 1988, the District Court denied Defendants’ motion in limine and allowed the State to introduce into evidence all but the late 1970s fire in Kalispell, Montana.

The jury trial commenced on December 5,1989. As conceded in the State’s brief, no direct evidence was presented at trial that linked Defendants with intentionally causing the August 21, 1987, mobile home fire. After three days of trial, Defendants moved for a directed verdict on the charges against them. The District Court granted Defendants’ motions for directed verdict on the arson charges, but denied their motions on the criminal mischief charges. The jury later found Defendants guilty of criminal mischief.

On April 25, 1990, the District Court sentenced both Defendants to five years imprisonment with all five years suspended. From these convictions, Defendants appeal.

1. Did the District Court err when it denied Defendants’ motions to exclude evidence of other acts?

The District Court allowed the admittance of five prior fires as other crimes evidence. Defendants were never charged with any wrongdoing regarding these fires, and no evidence exists in the record that proves that Defendants intentionally caused them. Defendants argue that the prejudicial value of these prior fires outweighed its probative value as this evidence left the jury with the impression that Defendants had on five past occasions caused fires and escaped punishment. Defendants further argue that “the mere occurrence of fires ... do[es] not establish a common method of operation in committing the crime charged.”

We hold that the admittance of these prior fires unfairly prejudiced the Defendants, as no evidence exists that links Defendants with intentionally causing these prior fires. Therefore, these prior fires cannot be considered other crimes, wrongs or acts under Montana Rules of Evidence 403 and 404(b). We reverse and remand this case; in the event of a new trial, the District Court is to omit these prior fires as other crimes, wrongs or acts evidence. Because we have found reversible error in this first issue, we decline to discuss Defendants’ second issue.

Reversed and remanded.

JUSTICES TRIEWEILER, HUNT, GRAY, and McDONOUGH concur.


author: JUSTICE GRAY /s/ Honorable Peter L. Rapkoch. District Judge, sitting in for JUSTICE McDONOUGH, concurs. JUSTICE TRIEWEILER, JUSTICE WEBER, CHIEF JUSTICE TURNAGE

text:
    MILTON D. BRUNSVOLD, Plaintiff and Appellant, v. STATE OF MONTANA, THE MONTANA DEPARTMENT OF INSTITUTIONS, HENRY RISLEY, JAMES BENNETT, Probation Officer, Defendants and Respondents.
    No. 90-277.
    Submitted on briefs May 23, 1991.
    Decided October 31, 1991.
    Rehearing Denied Dec. 23, 1991.
    250 Mont. 500.
    820 P.2d 732.

      Leonard J. Haxby, Daniel R. Sweeney, Butte, for plaintiff and respondents.
    Marc Racicot, Attorney General; Norman C. Peterson, Assistant Attorney General, Helena, for defendants and respondents.
    CHIEF JUSTICE TURNAGE dissented and filed opinion.
   JUSTICE GRAY

delivered the Opinion of the Court.

Milton D. Brunsvold appeals from a Decision and Order of the First Judicial District Court, Lewis and Clark County, granting summary judgment in favor of all defendants in his suit for damages alleging wrongful incarceration in the Montana State Prison. We affirm in part and reverse in part.

On March 8, 1978, the Richland County District Court convicted appellant Milton D. Brunsvold (Brunsvold) on a guilty plea to a felony charge of issuing bad checks. Brunsvold was granted a deferred sentence for a period of three years and placed on probation. The court attached certain conditions to the deferred sentence.

On January 2,1980, based on violations of conditions of probation, the District Court revoked Brunsvold’s deferred sentence and sentenced him to three years in prison with execution of the entire three-year sentence conditionally suspended. When Brunsvold again failed to abide by the conditions, the court revoked his suspended sentence on August 27, 1980. He was sentenced to three years in prison, with two years suspended; he began serving his sentence on September 12, 1980, and was discharged from the Montana State Prison on May 12, 1981.

On the day he was discharged, Brunsvold requested permission to travel to Idaho. His probation officer granted Brunsvold’s request under the condition that Brunsvold return to Montana on May 27, 1981. Thereafter, James Bennett, a probation officer of Montana’s Department of Institutions, noted that Brunsvold had not returned as ordered and also had failed to contact any parole or probation officer since he left the state. Based on these facts, Bennett determined that Brunsvold had again violated the conditions of his suspended sentence. Thereafter, on June 2, 1982, Bennett filed a Report of Violation recommending a hearing regarding Brunsvold’s violation of conditions and revocation of the two-year suspended sentence. In the report, Bennett stated:

“[I]n reference to the recent Miller/Blackerby rulings, which requires good time be given while on a suspended sentence, this officer has computed this subject’s discharge date as at approximately July 25, 1982.”

Bennett was referring to two unpublished cases, Miller v. State (1982), No. 81-565, and State v. Gray (1982), No. 82-164, in which we directed the Department of Institutions to credit good time allowances to sentences where the defendants were on probation while serving a suspended or deferred sentence.

The county attorney subsequently filed a petition to revoke Brunsvold’s suspended sentence and an information charging Brunsvold with bail jumping. Brunsvold’s affidavit states that he tried unsuccessfully to contact Bennett while in jail awaiting the revocation hearing; he wanted to tell Bennett that he believed he was being held improperly because his suspended sentence had been discharged. Under a plea bargain agreement and on advice of counsel, appellant pled guilty to the bail jumping charge and did not resist the petition to revoke his suspended sentence. On March 2, 1983, the District Court revoked Brunsvold’s suspended sentence and resentenced him to two years in prison. Brunsvold was imprisoned on March 17, 1983.

After arriving at the prison, Brunsvold states he tried unsuccessfully to communicate the information concerning his alleged improper incarceration to Warden Henry Risley. In July of 1983, Brunsvold filed a Petition for a Writ of Habeas Corpus on the grounds that he had discharged all of his sentences, based on accrued but uncredited good time, prior to the March 2,1983, revocation hearing. On September 1, 1983, the Powell County District Court heard testimony on Brunsvold’s petition. The transcript of the Habeas Corpus hearing reveals that Bennett’s good time calculations were incorrect; indeed, based on accrued good time, Brunsvold’s entire suspended sentence had expired not only prior to the time the Richland County District Court revoked it, but prior to the time the petition to revoke was filed. Based on this testimony, the court ordered Brunsvold’s immediate release. On December 14, 1984, following his release, Brunsvold filed a civil suit alleging wrongful incarceration. He named as defendants the State of Montana, the Department of Institutions, Warden Henry Risley of the Montana State Prison, and probation officer James Bennett, who incorrectly calculated his good time credits. The District Court granted defendants’ motion for summary judgment on the basis of § 2-9-112, MCA, the judicial immunity statute, and this Court’s decision in Knutson v. State (1984), 211 Mont. 126, 683 P.2d 488.

Brunsvold appeals from the grant of summary judgment. The sole issue we address, since it was the dispositive issue in the District Court’s Decision and Order, is the following:

Did the District Court err in holding that each of the named defendants is entitled to immunity as a matter of law under § 2-9-112, MCA?

Brunsvold argues on appeal that the identity and acts of the named defendants herein are not “on all fours” with Knutson and that nothing in § 2-9-112, MCA, or its legislative history suggests an intention to apply judicial immunity to probation officers and prison officials. The defendants contend that Knutson extends judicial immunity to all who participate in any way in judicial acts. It is clear that the District Court felt compelled by Knutson to grant summary judgment to all of the defendants herein on the basis of their participation in the judicial act of sentencing. In Knutson, we said clearly that sentencing is a judicial act. Knutson, 211 Mont. at 128, 683 P.2d at 490. We also said that the immunity statute protects “any governmental agency involved in the judicial act of sentencing.” Knutson, 211 Mont. at 129, 683 P.2d at 490. Perhaps understandably, the District Court concluded that Knutson was controlling as to all defendants herein.

The judicial immunity statute, § 2-9-112, MCA, must be construed and applied as to each defendant. The starting points, of course, must be the language of the statute and, if appropriate, the legislative intent behind it; but a brief discussion of the history of the principle of judicial immunity may help set the stage for the appropriate application of the statute to the facts in this case and such clarification of Knutson as may be necessary.

Judicial immunity is essentially a common law principle existing as early as 1354 (Book of Assizes, 27 Edw. III, pl. 18). It became a well-recognized rule after the decision in Floyd and Barker, 12 Co. Rep. 23, 77 Eng. Rep. 1305 (1608), and was recognized in this country as early as 1868. Randall v. Brigham (1868), 74 U.S. (7 Wall.) 523, 19 L.Ed. 285. Simply stated, the common law rule is that judges are not liable in a civil action for damages for judicial acts. The policy rationale for the rule was, and is, to assure that judges exercise their judicial functions with independence and without fear of consequence.

As a general rule, the 1972 Montana Constitution abrogated the doctrine of sovereign immunity. It also provided that immunity from suit could be established only by a two-thirds vote of each house of the legislature. Art. II, § 18, 1972 Mont. Const. The legislature so acted in 1977, passing several immunity statutes; among them was § 2-9-112, MCA, the judicial immunity statute at issue herein.

The legislative history of § 2-9-112, MCA, provides no concrete assistance in ascertaining the scope and parameters of judicial immunity intended by the legislature. In any event, the language used by the legislature is clear and unambiguous and its application to the specific facts before us is determinative of the issue on appeal.

It is clear that in order to fall within the judicial immunity shield, the State and the Department must be sued “for acts or omissions of the judiciary,” while Risley and Bennett each must be a “member, officer, or agent” of the judiciary discharging “an official duty associated with judicial actions of the court.” Section 2-9- 112, MCA. Thus, the relationship of each of the defendants to the court in performing the functions or activities for which claims have been asserted against them must be examined.

To begin at the beginning: It is clear that the “determination and imposition of sentence are the exclusive duty of the court” (§ 46-17-301(4), MCA) and, thus, that the court itself is not liable for the judicial act of sentencing. Section 2-9-112(2), MCA. Brunsvold has not asserted such liability. The statute is also clear that “the state and other governmental entities are immune from suit for acts or omissions of the judiciary.” Section 2-9-112(1), MCA. Thus, to the extent that Brunsvold’s claims against the State and the Department arise solely from their actions in implementing the judicial act of sentencing by incarcerating Brunsvold, those entities are entitled to judicial immunity. As to these defendants and the referenced actions of each, Knutson is controlling.

As to defendants Risley and Bennett, it is clear that neither is a member of the judiciary; nor are they officers of the court, since each is an employee of the executive branch. The question, then, is whether either was an agent of the court in this factual setting.

It is clear that Risley was an agent of the court in accepting Brunsvold into the Montana State Prison. He acted in direct obedience to, and discharge of, the court’s sentencing order. Thus, he was an agent of the judiciary discharging “an official duty associated with judicial actions of the court.” Section 2-9-112(2), MCA. As such, and to that extent, we affirm the District Court’s grant of summary judgment in Risley’s favor.

Bennett’s relationship to the court on the facts of this case differs significantly from that of Risley, and it is here that we must draw a necessary line in construing the judicial immunity statute. Bennett performed an administrative or ministerial task in calculating Brunsvold’s good time credits. He did not do so at the direction of the court which ultimately ordered Brunsvold’s incarceration, but as a routine part of his daily job requirements. Under this factual situation, Bennett was not so intimately associated with a judicial act as to be an “agent” of the judiciary discharging “an official duty associated with judicial actions of the court” under § 2-9-112(2), MCA. As such, he was not entitled to judicial immunity and the District Court erroneously granted summary judgment in his favor. It follows logically that, to the extent any part of the appellant’s claims against the State and the Department are based on their respective liability for the torts or other wrongs of their employees, summary judgment also was erroneously granted in their favor.

A strict construction of the statute simply does not allow an expansion of judicial immunity to cover the factual situation before this Court with regard to the particular act by defendant Bennett. It is true that such an expansion would create a bright, clear line; it would simplify the application of the judicial immunity statute by extending its coverage, at least by implication, to any act of any employee of any governmental unit or branch who has any contact of any kind with any judicial act or proceeding. Neither the statute’s language nor its legislative history reflect a legislative intent to do so.

It is of interest to note, perhaps, that our holding herein is consistent with results in many jurisdictions. Courts have been reluctant to expand judicial immunity to cover acts other than those intimately related to, or amounting to an integral part of, judicial proceedings. The statutory underpinnings for judicial immunity differ among the jurisdictions, and none mirror precisely the Montana statute; in addition, the federal cotuts continue to apply common law immunity principles. Yet, applying a variety of approaches, many courts have considered the nature of the act or activity being performed and its relationship to the judicial function. The federal courts address such cases, brought as § 1983 claims, by utilizing a functional/qualified immunity approach. See, e.g., Harlow v. Fitzgerald (1982), 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396; Galvan v. Garmon (5th Cir. 1983), 710 F.2d 214; Ray v. Pickett (8th Cir. 1984), 734 F.2d 370. This approach also would be applicable in § 1983 cases in state courts where state immunity defenses would not be available. In Florida, where a state statute waives judicial immunity, courts still apply the common law rule of judicial immunity, but discretionary governmental functions undergo a “planning” versus “operational” analysis whereby operational functions are not entitled to the immunity shield. Berry v. State (Fla. App. 1981), 400 So.2d 80, rev. denied, 411 So.2d 380 (Fla. 1981). Under the Kansas Tort Claims Act judicial function exemption, “judicial function” does not incorporate ministerial tasks. Cook v. City of Topeka (1982), 232 Kan. 334, 654 P.2d 953. And, as a final example, while an Arizona probation officer preparing a presentence report pursuant to or in aid of court direction is entitled to absolute judicial immunity, supervisory or administrative actions by a probation officer not pursuant to such court direction do not qualify for judicial immunity. Acevedo v. Pima County Adult Probation Dept. (Ariz. 1984), 690 P.2d 38.

As a final matter, the State has admitted error in the computation of appellant’s good time. The District Court concluded that liability for wrongful incarceration has been established as a matter of law as a result of that admission. It is our view that the ultimate liability of any of the named defendants remains to be established.

Among other possible issues on remand, therefore, is whether or not there were independent intervening causes of appellant’s incarceration. This question of fact will be decided by the trier of fact on remand, in the event this matter reaches the trial stage.

To summarize our holding in this case, judicial immunity under § 2-9-112, MCA, does not extend to the factual situation involving defendant Bennett in the case at bar. Therefore, we reverse the District Court’s grant of summary judgment in his favor and in favor of the State, the Department, and Risley insofar as claims against them are asserted other than for their actions in implementing the sentencing order, and remand for further proceedings consistent with this opinion.

Affirmed in part, reversed in part and remanded.

/s/ Honorable Peter L. Rapkoch.

District Judge, sitting in for JUSTICE McDONOUGH, concurs.

JUSTICE TRIEWEILER,

specially concurring:

I concur with the reversal of the District Corut judgment in favor of the defendant James Bennett.

To me, the issue presented to this Court is a simple one which merits little discussion.

The 1972 Mont. Const., Art. II, § 18, 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 have a constitutional right to seek compensation. Any statute in derogation of a constitutional right should be strictly construed. 73 Am.Jm.2d Statutes § 283. 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.

Section 2-9-112, MCA, pursuant to which the District Court dismissed plaintiff’s claim against Bennett, does not say anything about probation officers. It talks about “acts or omissions of the judiciary.”

Bennett was not a member of the judiciary; he was not employed by the judiciary; and he was not acting pursuant to a directive from any member of the judiciary at the times complained of by the plaintiff.

Bennett’s acts, which formed the basis of the plaintiff’s complaint, were taken on his own initiative. His conclusions were provided to the county attorney for the purpose of instigating sentence revocation proceedings against the plaintiff. Bennett, who was employed by the executive branch of government, provided his misinformation to another member of the executive branch of government.

Therefore, by no stretch of the imagination can Bennett’s conduct be construed as an “act or omission of the judiciary.” Any assertion to the contrary would be the sheerest form of judicial legislation.

The dissenters, who have apparently learned little from their uncharted sojourn to the land of governmental immunity (see Peterson v. Great Falls School District (1989), 237 Mont. 376, 773 P.2d 316, and its progeny), wish to replay that debacle under the guise of judicial immunity. They would have this Court embark on a whole new body of judicially-created opportunities for public servants to avoid responsibility for their wrongful, unlawful, or negligent conduct. Lessons from recent history should not be so quickly forgotten.

JUSTICE HUNT concurs with the foregoing special concurrence of JUSTICE TRIEWEILER.

JUSTICE WEBER,

dissenting:

The judicial immunity statute, § 2-9-112, MCA, in pertinent part states:

“2-9-112. Immunity from suit for judicial acts and omissions. (1) The state and other governmental units are immune from suit for acts or omissions of the judiciary.
“(2) A member, officer, or agent of the judiciary is immune from suit for damages arising from his lawful discharge of an official duty associated with judicial actions of the court.

The majority opinion is primarily devoted to a discussion of the immunity of Warden Risley (Risley) of Montana State Prison and Probation Officer Bennett (Bennett). The majority concludes that Risley was an agent of the court in accepting Brunsvold into Montana State Prison because he acted in direct obedience to and discharge of the court’s sentencing order. As a result the majority concluded that he was an agent of the judiciary under the above statute and to that extent, concluded that Risley was immune. I agree with that conclusion.

Next the majority distinguished Bennett’s relationship to the court from that of Risley. The majority stated that Bennett performed an administrative or ministerial task in calculating Brunsvold’s good time credits; that he did not do so at the direction of the court which ordered Brunsvold’s incarceration, but as a routine part of his daily job requirements. The majority then reached the conclusion that Bennett was not so intimately associated with a judicial act as to be an “agent” of the judiciary, as statutorily defined. He therefore was found not entitled to judicial immunity. I disagree with that conclusion.

While it is true that probation and parole officers are a part of the executive branch of government, it is essential to keep in mind the statutory relationship established between parole and probation officers and the court system. As an example, under § 46-23-1011, MCA, in the event that a district court desires to change a condition of probation, it is required to give notice to the probation and parole officer so that he shall be given an opportunity to present his ideas and recommendations. Section 46-23-1012, MCA, gives the parole and probation officer the power to arrest a person on parole or probation without a warrant. Section 46-23-1013, MCA, sets the procedure to be followed after an arrest. In pertinent part, § 46-23-1013, MCA, provides:

“(1) Upon such arrest and detention, the probation and parole officer shall immediately notify the court with jurisdiction over such prisoner and shall submit in -writing a report showing in what manner the defendant has violated the conditions of release. Thereupon, or upon an arrest by warrant as herein provided, the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charged.
“(2) If the violation is established, the court may continue to revoke the probation or suspension of sentence and may require him to serve the sentence imposed or any lesser sentence and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed.

The above-cited code sections are included in Part 10 — Supervision of Probationers and Parolees. Note that the statutory requirement for the parole and probation officer is that when he finds a violation of probation or parole, he is required to immediately notify the court and show in what manner that person has violated the conditions of release. That is the foundation for the subsequent hearing by the court and its determination whether revocation should be granted. That procedure was followed in the present case.

Bennett prepared a Report of Violation dated June 2,1982, on the printed form provided by the Department of Institutions. The form included the following heading and salutation:

State of Montana
DEPARTMENT OF INSTITUTIONS
Corrections Division
Bureau of Probation and Parole
REPORT OF VIOLATION
To: Seventh Judicial District Court
Sidney, Montana
Date: June 2, 1982
Name: BRUNSVOLD, Milton Dean
No. Docket #1249-C,
DOMA013 490

The foregoing report of probation set forth the details of the original sentencing, the reports of violations, and the factual determinations by Bennett. It is that Report of Violation which contains the erroneous calculation which affords the basis for the suit against Bennett. That report stated as follows:

“It should be noted, however, that Mr. John O’Hern, Probation and Parole Agent in Missoula, Montana, is now deceased and in reference to the recent Miller /Blackerby rulings, which requires good time be given while on a suspended sentence, this officer has computed this subject’s discharge date as at approximately July 25, 1982.
“In any event, it is this officer’s opinion that this subject has disregarded the conditions imposed by the Court and should be located and returned to the Court of Jurisdiction for a hearing on this matter and the two (2) year suspended sentence be revoked.” (Emphasis added.)

Clearly Bennett was following the statutory requirements which apply to his job as a parole and probation officer. Applying the test used with Warden Risley, it appears that he clearly was discharging an official duty associated with judicial actions of the court, as the sole purpose for the Report of Violation is summed up in the last quoted paragraph where he expresses the opinion that defendant had disregarded the court-imposed conditions and should be returned to the court for revocation of his two-year sentence. The action of Bennett is more closely related to the District Court than was true of Warden Risley. The only purpose for the Report of Violation was to express an opinion which would result in court action. In contrast, all Risley did was to place the defendant in prison, and all actions subsequent to that were under his own administrative control and required no reporting to the District Court. I conclude that the actions of Parole and Probation Officer Bennett in submitting the Report of Violation were clearly actions of an agent of the judiciary discharging an official duty associated with judicial actions of the court and as a result that Bennett was immune under § 2-9-112, MCA.

In addition, the facts of this case bring it within the holding of this Court in Knutson v. State of Montana (1984), 211 Mont. 126, 683 P.2d 488, where this Court stated:

“There is no need for semantics in this case, however. The immunity statute applies to judicial acts with no stated limitation. It applies to protect the state and governmental agencies whenever the judicial power of the state is put to use in a judicial action ....
“Knutson argues on appeal that the immunity statute does not apply here because the Department of Institutions breached its duty to determine the good time to which he was entitled and to notify the District Court accordingly. She contends that the District Court in this case acted only as a vehicle through which the harm caused by the Department of Institutions affected her. That argument is a substantial change in theory from her earlier complaint in this case, yet it avails Knutson nothing. Sentences are pronounced by courts, not by the Department of Institutions. Knutson’s sentencing was the result of a judicial act. Further, the immunity statute protects any governmental agency involved in the judicial act of sentencing.” (Emphasis added.) (Citations omitted.)

Knutson held that a computation of good time by the Department of Institutions was included as a part of the judicial act of sentencing. The Court points out that sentences are pronounced by courts and not by the Department of Institutions — that is of course applicable here because the sentence ultimately determined was not pronounced by Bennett but by the district judge. Knutson further emphasizes that “the immunity statute protects any governmental agency involved in the judicial act of sentencing.” The holding of Knutson applies here.

I dissent from the majority conclusion that the actions of Bennett were not entitled to judicial immunity under § 2-9-112, MCA.

JUSTICE HARRISON concurs in the foregoing dissent.

CHIEF JUSTICE TURNAGE

dissenting:

I concur in the dissent of Justice Fred J. Weber and respectfully state that there are further reasons why the majority of the Court has erred.

In view of the result the majority has reached subjecting Probation Officer Bennett to Brunsvold’s tort action for damages, I am more than somewhat puzzled, as I am certain the bench and bar will be, by that part of the majority opinion which states:

“It is clear that Risley was an agent of the court in accepting Brunsvold into the Montana State Prison. He acted in direct obedience to, and discharge of, the court’s sentencing order. Thus, he was an agent of the judiciary discharging ‘an official duty associated with judicial actions of the court.’ Section 2-9-112(2), MCA. As such, and to that extent, we affirm the District Court’s grant of summary judgment in Risle/s favor.”

What about Probation Officer Bennett?

Bennett also was acting “in direct obedience to, and discharge of, the court’s sentencing order.”

In sentencing Brunsvold, the District Court, upon deferring imposition of sentence or suspending his sentence, placed conditions upon his release from custody that included the requirement “that he violate no laws, federal, state, county, or city.” Further, “that he shall be under the jurisdiction of the Department of Institutions, Division of Adult Probation and Parole.”

From the record in this case, Probation Officer Bennett had to consider the following Brunsvold chronology, at least until his July 1983 petition for habeas corpus:

12-23-77 — Issuance of bad checks in Montana.

3-8-78 — Sentenced to three years (deferred) guilty plea. Criminal Case #1249-C, 7th Judicial District.

3-8-79 — Violation of conditions of deferred sentence reported.

11-26-79 — Supplemental report of violation of conditions.

I-2-80 — Three-year deferred sentence revoked. Three-year sentence suspended.

6-27-80 — Violation of suspended sentence conditions reported.

8-27-80 — Three-year suspended sentence revoked. Given three-year sentence in prison with two years suspended.

5-12-81 — Brunsvold completes one year prison term. Requests travel permit to Idaho, to return 5-27-81. Does not return to Montana.

12-26-81 — Approximate date of allegation of issuance of bad checks in Idaho (#1).

3-15-82 — Approximate date of allegation of issuance of bad checks in Idaho (#2).

6-2-82 — Jim Bennett, probation officer, writes report recommending revocation of suspended sentence in Criminal Case #1249-C. He believes at this time that Brunsvold will have completed his suspended sentence on 7-25-82.

6-16-82 — Warrant issued for arrest of Brunsvold. $1000 bond set.

6-18-82 — Thirty days suspended sentence and contempt citation for Idaho bad check #2.

8/82 — Montana arrest warrant served in Idaho. Brunsvold is to appear before the Montana Court on 9-25-82.

9-15-82 — Brunsvold fails to appear.

II-24-82 — One-year suspended sentence and restitution for Idaho bad check #1.

12-14-82 — Richland County Attorney files affidavit and motion for leave to file information on Bail Jumping charge (Section 45-7-308). #1614.

1-4-83 — Arrest warrant issued in Idaho for violating terms of probation on bad check conviction.

2-4-83 — Letter sent to Richland County Attorney from the Court in Idaho informing them that the Idaho charge had been closed, and the bench warrant issued for Brunsvold’s arrest had been withdrawn.

2-28-83 — Plea bargain agreement filed on charges numbering 1249 (Montana bad check) and 1614 (bail jumping). Brunsvold agrees that he violated the conditions of his suspended sentence in #1249 and committed an offense in Idaho. Brunsvold pleads guilty to bail jumping.

3-23-83 — Judgment and sentence in both #1249 and #1614. Bail jumping gets two-year term in prison. To serve both that and two-year suspended sentence concurrently. Credit for serving one day and designated non-dangerous offender.

3-17-83 — Imprisoned.

7/83 — Petition for Habeas Corpus hearing on grounds that Brunsvold had discharged all of his sentences prior to revocation.

9-1-83 — Habeas Corpus hearing. Brunsvold released.

Supervision of Brunsvold as a probationer is clearly a part of the judicial function, and Probation Officer Bennett, in carrying out this function, acts as an agent of the judiciary.

Bennett was acting as an agent of the court, as did Warden Risley in confining Brunsvold. There simply can be no distinction drawn between the acts of Risley and the acts of Bennett with relation to such acts being carried out as agents of the judiciary.

In bringing the role of the probation officer into proper perspective, the following statutes must be recognized:

“46-23-1001. Definitions. As used in this part, unless the context requires otherwise, the following definitions apply:
“(4) ‘Probation’ means the release by the court without imprisonment, except as otherwise provided by law, of a defendant found guilty of a crime upon verdict or plea, subject to conditions imposed by the court and subject to the supervision of the department upon direction of the court” [Emphasis added.]

Further recognition of probation as a part of the judicial function is found in the statutes relating to the Department of Corrections and Human Services (formerly the Department of Institutions):

“46-23-1002. Powers of the department. The department may:
“(3) adopt rules for the conduct of persons placed on parole or probation, except that the department may not make any rule conflicting with ... conditions of probation imposed by a court. [Emphasis added.]
“46-23-1011. Supervision on probation. (1) The department shall supervise persons during their probation period in accord with the conditions set by a court. [Emphasis added.]
“46-23-1013. Action of court after arrest. (1) Upon such arrest and detention, the probation and parole officer shall immediately notify the court with jurisdiction over such prisoner and shall submit in writing a report showing in what manner the defendant has violated the conditions of release. Thereupon, or upon an arrest by warrant as herein provided, the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charged. The hearing may be informal or summary.
“(2) If the violation is established, the court may continue to revoke the probation or suspension of sentence and may require him to serve the sentence imposed or any lesser sentence and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed.
“(3) If it shall appear that he has violated the provisions of his release, whether the time from the issuing of such warrant to the date of his arrest or any part of it shall be counted as time served on probation or suspended sentence shall be determined by the court.” [Emphasis added.]

Brunsvold, as the chronology noted, received his sentences by orders of the District Court; when his deferment of sentences and suspension of sentences were revoked, it was by order and sentence of the District Court; and, of course, his imprisonment in the Montana State Prison was by order and sentence of the District Court. The majority does not question that such were judicial acts. It was not Bennett that sentenced Brunsvold and caused his imprisonment in the Montana State Prison; it was the District Court. The part that Bennett played in that regard was as an agent of the judiciary.

In holding that Warden Risley is an agent of the court and Probation Officer Bennett is not an agent of the court, the majority is making a distinction without a difference.

The definition of agency that has been a part of our Code since 1895 should settle this question:

“28-10-101. Definitions of agent and agency. An agent is one who represents another, called the principal, in dealings with third persons. Such representation is called agency.”

Both Risley and Bennett certainly represented the court in dealing with the third person Brunsvold. The fact that both of their paychecks are written by an executive branch of government and their appointments made by the executive branch of government has nothing to do with the fact that they, in their official capacities and with relation to Brunsvold and others similarly situated, represent the court in dealing with those third persons and they therefore are agents of the court.

From information obtained from the Montana Department of Corrections and Human Services, of which the Court could properly take judicial notice, there currently are approximately 3,436 individual active probation supervision cases and 592 parole cases in the state of Montana. There are currently 51 adult probation officers in Montana, and all of these cases are required to be supervised by adult probation officers as agents of the court that imposed sentence in each of the cases. If Montana’s adult probation officers are personally subject to civil suit for errors in presentence or probation reports submitted to the District Court, whether the error is with or without substance, the prejudicial or not prejudicial to the defendant, it will certainly not make their difficult task easier.

Based upon § 2-9-112, MCA, and the statutes cited herein, as well as the precedent of Knutson v. State of Montana (1984), 211 Mont. 126, 683 P.2d 488, the decision of the District Court should be affirmed.


author: JUSTICE TRIEWEILER

text:
    In re the ADOPTION OF V.R.O. and V.N.O.
    No. 91-167.
    Submitted on Briefs June 28, 1991.
    Decided Oct. 31, 1991.
    250 Mont. 517.
    822 P.2d 83.

      Bryan L. Asay, Kelley & Asay, Helena, for appellant.
    Linda McNiel, Bozeman, for respondent.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

Respondent is the stepfather of V.R.O. and V.N.O., two minor children. Respondent filed a petition in the District Court for the adoption of the two children. Appellant, the natural father of the children, opposed the petition. The District Court granted the stepfather’s motion for partial summary judgment terminating the natural father’s parental rights. The natural father appeals from this decision. We reverse and remand.

The natural father raises two issues on appeal:

1. Did the District Court properly determine that the natural father was able to contribute to the support of the children during the year prior to the filing of the petition for adoption?

2. Did the District Court err when it concluded that it need not consider the best interests of the children before terminating the natural father’s parental rights?

V.R.O. and V.N.O. are the natural children of Lydia Crossman (mother) and appellant Kenneth Osborn (natural father). V.R.O. was born in 1982, and V.N.O. was born in 1985. In June 1987, Lydia and Kenneth were divorced. Pursuant to the divorce decree, the children’s primary residence was with their mother. Kenneth was granted the right to visitation with his children. He was ordered to pay child support of $120 per month per child.

In January 1988, Lydia married respondent Douglas Crossman (stepfather). Kenneth has also remarried and lives with his wife and his wife’s daughter. In March 1990, Douglas filed a petition to adopt V.R.O. and V.N.O. Lydia consented to the adoption pursuant to § 40-8-Ill. MCA. In support of his petition for adoption, Douglas alleged that the natural father had not paid any child support for more than one year, and that the adoption could be decreed without the natural father’s consent pursuant to § 40-8-lll(l)(a)(v), MCA.

Kenneth opposed the adoption petition. He stated that although he was willing and desired to support his children, he had not been able to contribute to their support on a regular basis during the previous year. He also contended that it was in the best interests of V.R.O. and V.N.O. to maintain a parent-child relationship with him and to have regular visitation with their natural father.

In his answers to interrogatories, Kenneth admitted that he owed arrearages for child support from 1987 ($960), 1988 ($2880), 1989 ($2880), and 1990 ($1920), and that he had only paid $350 in child support since the divorce. All of that amount was paid in the first few months of 1990. Kenneth stated that he had not been able to pay more because he was trying to start his own business, and the business was not yet financially successful.

The stepfather moved the District Court for partial summary judgment terminating the natural father’s parental rights. Douglas contended that Kenneth’s parental rights could be terminated upon a showing that Kenneth was able to, pay but did not pay child support for a period of one year before the filing of the petition for adoption.

The District Court granted Douglas’ motion for partial summary judgment terminating the natural father’s parental rights. The District Court noted that the $350 in child support payments Kenneth made in 1990 should be applied first to the arrearages from prior years. See, e.g., Matter of Adoption of R.A.S. (1984), 208 Mont. 438, 679 P.2d 220. The District Court determined that Kenneth was able to pay child support during the year before the filing of the adoption petition. The District Court concluded that because Kenneth was able to pay child support but did not pay, his consent to the adoption of V.R.O. and V.N.O. was not required pursuant to § 40-8-111(1)(a)(v), MCA. Further, on the basis of Kenneth’s failure to pay child support, the District Court granted the motion for partial summary judgment and terminated Kenneth’s parental rights.

Kenneth appeals from this decision.

I

Did the District Court properly determine that the natural father was able to contribute to the support of the children during the year prior to the filing of the petition for adoption?

Kenneth admits that he has only paid a total of $350 in child support since the June 1987 divorce. He does not claim that he supported his children during the year preceding the filing of the adoption petition. He contends, however, that the District Court erred when it concluded he was able to pay child support during this period.

Because parental rights involve a fundamental liberty interest, a judicial decree terminating such rights must be supported by clear and convincing evidence. Matter of Adoption of R.M. (1990), 241 Mont. 111, 115, 785 P.2d 709, 711. In order to determine whether a parent is “able” to contribute to child support, the trial court must examine several factors. These factors include:

“1) The parent’s ability to earn an income;
“2) The parent’s willingness to earn an income and support his child;
“3) The availability of jobs;
“4) The parent’s use of his funds to provide himself only with the bare necessities of life prior to providing support for his child.”

Matter of Adoption of K.L.J.K. (1986), 224 Mont. 418, 423, 730 P.2d 1135, 1139.

The District Court must consider the non-supporting parent’s ability or inability to pay, as it relates to the year preceding the filing of the petition for adoption; in this case the period of March 1989 to March 1990. Section 40-8-111(1)(a)(v), MCA. Income received during this period is obviously relevant to ability to pay child support. However, income or property received more than a year before the filing of the petition may also be available to the parent for use in paying child support. Further, lack of income during the statutory period is not necessarily determinative on the issue of ability to pay. See, e.g., Matter of Adoption of B.L.P. (1986), 224 Mont. 182, 728 P.2d 803 (father voluntarily gave up a steady job for a potentially more lucrative position which failed to materialize, and father’s financial priorities obviously did not include providing child support); Matter of Adoption of S.L.R. (1982), 196 Mont. 411, 640 P.2d 886 (parent cannot voluntarily remain unemployed and then claim inability to pay as an excuse for not paying child support).

The District Court’s order granting partial summary judgment mentions the following facts in support of its determination that Kenneth was able to provide child support:

1. Kenneth owned certain assets, including real property in Flathead County, two guitars, a PA system, two 1970 model vehicles, rifles, chain saws, and a truck topper;

2. Kenneth received a lump sum workers’ compensation settlement of $24,000 in December 1986;

3. Kenneth did not come into court to attempt to modify the child support payments but simply chose not to pay support.

It is not clear, however, whether the listed assets were convertible to cash which could be used to pay child support, or whether any of the 1986 workers’ compensation settlement remained available for this use. The real property mentioned is apparently the home of Kenneth and his new family. Normally, a home should qualify as a “necessity,” and it is not clear that sale of the home would result in additional money being available for child support. The District Court’s findings do not include any discussion of Kenneth’s income or ability to earn income during the relevant period, or the cost of providing himself with the necessities of life.

We conclude that the District Court’s findings are insufficient on the issue of Kenneth’s ability to pay child support. Accordingly, we remand this matter to the District Court for further findings on this issue.

II

Did the District Court err when it concluded that it need not consider the best interests of the children before terminating the natural father’s parental rights?

The natural father contends the District Court erred when it concluded that it need not consider the best interests of the children before terminating his parental rights. We agree.

A finding under § 40-8-lll(l)(a)(v), MCA, that the parent, although able, failed to contribute child support during the statutory period, goes to the issue of whether the parent’s consent is required for adoption. Neither the adoption nor the termination of parental rights follows automatically from this finding. See § 40-8-111(1), MCA (“[a]n adoption of a child may be decreed ....” [emphasis added]). Having determined that the non-supporting parent’s consent to adoption is not required, the district court must then exercise its discretion in determining whether the adoption is in the child’s best interest. Sections 40-8-123(1) and 40-8-124(6), MCA. After the final decree of adoption is entered, the adopting parent assumes the legal relationship of parent to the child, and the natural parent is relieved of all parental rights and responsibilities. Section 40-8- 125(1) and (2), MCA.

In Matter of Adoption of S.T.V. (1987), 226 Mont. 18, 733 P.2d 841, the district court determined that although the natural father had failed to pay child support, there was an ongoing beneficial and loving relationship between the father and the child, and that the child’s interests were best served by continuing that relationship. Affirming the district court’s decision, this Court stated:

“Appellant’s assertion that an adoption petition should be granted immediately upon determination that the natural father’s consent is not required has no basis in law. It focuses solely upon the father’s failure to provide financial support and disregards completely the needs of the child. The child’s best interest is one of the most important factors to be considered in determining whether a petition to adopt should be granted. Section 40-8-124(6), MCA. Once the statutory requirements for consent to an adoption are met (§ 40-8-Ill. MCA), the best interests of the child becomes the paramount consideration.” In the Matter of the Adoption of Smigaj (1977), 171 Mont. 537, 560 P.2d 141.

Adoption of S.T.V., 733 P.2d at 842.

Respondent cites certain past decisions of this Court, e.g., In Re Adoption of S.E. (1988), 232 Mont. 31, 755 P.2d 27, for the proposition that parental rights may be terminated simply upon a showing that the parent, without legal excuse, failed to provide child support during the statutory period. This view is in conflict with our reasoning in cases such as Adoption ofS.T.V., quoted above. To the extent that language in our prior cases is in conflict with Adoption of S.T.V., it is disapproved.

The natural parent’s rights cannot be terminated under § 40-8-111, MCA, independent of the determination that adoption is appropriate. Adoption is not appropriate unless it is found to be in the child’s best interest. In evaluating the child’s best interest for purposes of the chapter on adoption, the court should consider benefits of the child’s relationship with the natural parent in addition to those benefits derived from financial support.

For these reasons, we reverse the judgment of the District Court terminating Kenneth’s parental rights and remand this case to the District Court for farther proceedings consistent with this opinion.

Reversed and remanded.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, HUNT, GRAY, McDONOUGH, and WEBER concur.