author:
JUSTICE HUNT
      JUSTICE GRAY,

text:
    IN RE THE MARRIAGE OF CAROL J. ALLISON, n/k/a CAROL L. AMICK, Petitioner and Respondent, and BRUCE E. ALLISON, Respondent and Appellant.
    No. 94-019.
    Submitted on Briefs September 22, 1994.
    Rehearing Denied January 24, 1995.
    Decided December 23, 1994.
    51 St.Rep. 1502.
    269 Mont. 250.
    887 P.2d 1217.

      For Appellant: Randall S. Ogle, Ogle & Worm, Kalispell.
    For Respondent: Bruce McEvoy, Warden, Christiansen, Johnson & Berg, Kalispell.
   JUSTICE HUNT

delivered the opinion of the Court.

On July 29,1991, Bruce Allison filed an ex parte motion to change residential custody of the parties’ children from Carol Amick to himself, alleging that the Department of Family Services confirmed that the children had been abused and neglected by Carol. The Eleventh Judicial District Court, Flathead County, granted temporary residential custody to Bruce during the pendency of the instant proceedings. Anumber of hearings were conducted over the course of two years: October 16, 1991, June 4, 1992, July 13, 1992, March 30, 1993, and July 29,1993. At the close of the July 29,1993, proceedings, the District Court ordered the parties to submit proposed findings and conclusions by August 13, 1993. On December 9, 1993, the District Court issued findings, conclusion, and judgment returning residential custody of the parties’ two children to Carol. Bruce appeals. We affirm.

We frame the issues on appeal as follows:

1. Was there sufficient evidence to support the District Court’s findings of fact and conclusions of law maintaining Carol as primary residential custodian of the parties’ children?

2. Did the District Court err by adopting findings and conclusions substantially similar to Carol’s proposed findings and conclusions?

3. Did the District Court properly conclude that the July 29,1991, ex parte order changing residential custody was improperly issued, and therefore, should be vacated?

The parties’ marriage was dissolved on November 9, 1990. The parties were awarded joint custody of their two children, J.A. and C.A., with Carol designated as residential custodian. At the time of the dissolution, Carol’s two children from a previous marriage, R.E. and T.E., also resided with the parties. Following the dissolution, the parties resided together until late January or early February 1991, when Carol and the children moved out.

On February 5,1991, the Kalispell office of the Montana Department of Family Services (DFS) received an abuse and neglect referral from a school counselor at R.E. and T.E.’s school. DFS opened an investigation into the matter on February 13. The school counselor felt that Carol required counseling. A social worker attempted to contact Carol, and left several messages for her to call the DFS office.

On March 19, Carol called and set up an appointment to meet with a social worker the following day. Later that day, DFS received a call from the school counselor reporting that R.E. had appeared in school with a bruise on his face. Brad Custer, a DFS social worker, interviewed T.E. and R.E. R.E. reported that he had been slapped on the head by his mother for no apparent reason.

On March 20, Carol came to the DFS office for her appointment. According to Custer, Carol admitted slapping R.E.’s face because she was frustrated with his uncontrollable behavior. Carol testified at trial that R.E. was cussing at her, “calling [her] every name in the book,” and she slapped him across the face. Carol also told Custer that she had been the victim of physical, sexual, and emotional abuse both as a child and during her marriage to Bruce, and that she was co-dependent. Carol agreed to work with the school counselor and with a family counselor, and she agreed to participate in a co-dependency treatment program.

On March 28, Carol and a friend returned to the DFS office. Custer reiterated that Carol must seek counseling. Custer advised Carol that her slapping of R.E. had been substantiated as physical abuse. Custer recommended that Carol refrain from physically disciplining her children, and that she contact a local program for parenting education and alternatives to physical discipline. Carol and Custer developed a treatment plan and agreed that Carol would undergo a mental health evaluation and would follow through with the recommendations made following the evaluation.

In early April, Carol sent R.E. to five with his natural father in Canada. On April 9, Bruce telephoned the DFS and stated that he would go to court, if needed, to resolve what he felt was a worsening situation.

In early May, Carol went to psychologist Herman Andróes for a mental health evaluation. Andróes reported to DFS that Carol was following through with the process, and that the results of the evaluation looked very good for her.

A DFS intake referral form dated June 10, 1991, completed and initialed by Eva Jo Burlington, states that Bruce’s live-in girlfriend, Barbara Dietz, called the DFS office. Barbara stated that she thought that the school had reported Carol for abuse and neglect. She expressed concerned about J.A.’s increasingly sexualized behavior — including open-mouthed kissing, unzipping other people’s clothing, and attempting to touch other people’s genital areas — during his visitation with Bruce, Barbara, and Barbara’s two teenage sons. Burlington noted that Barbara was “very concerned that we understand this is not a custody dispute [but] are real concerns.”

On June 18, Custer transferred Carol’s case to Ann Anderson, another DFS social worker. He noted that the investigation was closed, that the reported abuse — the slapping of R.E. — had been substantiated, and that he estimated the future risk of abuse at an intermediate level.

On or about July 1, Bruce moved the District Court to order DFS to disclose its confidential reports regarding Carol. The motion was granted without notice to Carol and without a hearing. Anderson complied with the order, and on July 9, provided the District Court with copies of DFS records regarding Carol. In her cover letter, Anderson informed the court that the DFS investigation into the matter was ongoing and that she would provide copies of any updates.

On July 17, Anderson visited J.A. and C.A.’s daycare center. The daycare workers stated that they had not noticed any aggressive or sexual behavior on J.A.’s part. Anderson returned on July 30 to interview J.A. She reported that: “He was a little nervous when asked about secrets and the secret seems to relate to his brother [R.E]. He did not show any changes in affect when questioned about private parts or secret touching.”

On July 29, 1991, Bruce filed an ex parte motion to change residential custody from Carol to himself, alleging that DFS had confirmed that the children had been abused and neglected by Carol. The court granted temporary residential custody to Bruce.

On September 4, 1991, Anderson wrote the District Court to update the record. Her letter stated that DFS had completed its investigation into the allegations of sexual abuse and that the allegations had not been substantiated. She told the court that Carol had been psychologically evaluated, and she recommended that Bruce also be evaluated “before decisions are made regarding custody of the children.” The record reveals that, to date, Bruce has not undergone a full psychological evaluation.

On September 24, Carol moved the District Court to refer the matter to Family Court Services (FCS) of the Eleventh Judicial District for further investigation. The court granted the motion and ordered FCS to investigate and submit a report by November 1.

On October 10, Bruce filed a motion for the production of Carol’s psychological evaluation. In response, Carol moved the court to order Bruce to submit to a psychological evaluation. A hearing on the motions was held on October 16, and the court issued an order on October 25 granting both motions.

On November 1, Thomas Best, the current director of FCS, submitted a report to the court. He stated:

It appears the single parenting stress of raising four children overwhelmed CAROL ALLISON. My conference with BRUCE ALLISON did not reveal a[n] angry father waiting on the sidelines to grab [the] children at the first opportunity. He appears to have genuine concerns for the welfare of [J.A.] and [C.A.] ....
I would recommend the continuation of the joint custody... but the residential responsibility for the children ... be with their father. On November 6, 1991, the parties stipulated that Bruce would

maintain temporary residential custody for an additional six months while Carol and the children received counselling. In December, FCS made arrangements for the children’s visitation exchange to take place at the FCS offices. FCS made the arrangements because Bruce’s girlfriend had expressed fear at meeting with Carol to exchange the children.

In early J anuary 1992, Bruce and his girlfriend continued to phone DFS, insisting that they reopen the sexual abuse investigation. On January 23, Bruce refused to allow Carol visitation, and the Sheriff’s Department intervened and assisted Carol in obtaining the children. Jolie Arnold, the new director of FCS, advised Bruce to contact Maxine Lamb at the Sheriff’s Department and file a report if he had serious concerns regarding abuse. Arnold later contacted Lamb to discuss the situation, and Lamb said that Bruce stated he would not come in to see her because he could not get off work.

On January 27, Anderson petitioned the court for temporary investigative authority of J.A. and C.A. Anderson thought that if the DFS personnel could observe J.A. and C.A. for one week in a neutral environment, they could determine if the children were exhibiting signs of abuse. Bruce protested. Rosemary McKinnon, J.A. and C.A.’s counselor, phoned Anderson. McKinnon stated that she had been seeing the children every three to four weeks since August 1991 and that she felt they were doing better with Bruce. While she had not been able to substantiate any sexual abuse, McKinnon stated that Bruce and his girlfriend were reporting an increase in sexualized behavior. She felt that removing the children would be traumatic for them. Neva Yourman, the children’s daycare supervisor, also contacted Anderson. Yourman reported that J.A. and C.A. were at the daycare center full-time and that, although Bruce’s girlfriend reported that the children had been inappropriately touching others, they had not displayed any inappropriate behavior while at the daycare.

The District Court denied DFS’s petition for temporary investigative authority. Anderson requested that Bruce come into the office without his mother or girlfriend. Anderson outlined to Bruce three options for pursuing the investigation of the allegations of sexual abuse: (1) Have the children continue counselling with Rosemary McKinnon “with the idea that she would elicit some disclosure” of sexual abuse from the children; (2) have a law enforcement official interview the children and attempt to elicit a disclosure; or (3) allow the DFS to observe the children in a neutral setting. Anderson explained to Bruce that she did not believe, based on her ongoing investigation, that the children had been sexually abused in their mother’s home. Anderson reported that “Bruce said Carol’s on-going sexual abuse as a child is the reason for his concern about sexual abuse of his children.”

On February 7, 1992, Anderson closed her investigation into the allegations of sexual abuse. She concluded that the allegations were not substantiated and that the risk of future abuse was low.

On March 9, 1992, Bruce and his girlfriend took C.A. and J.A. to the Kalispell Police Department and filed a report of suspected child abuse with Sergeant Lanfear and Officer Bardwell. The officers observed faint bruising on both children’s necks, but reported that the bruising was faint enough that they did not attempt to take photographs. The children would not speak to the officers, but Bruce informed them that the children had stated that their mother had choked them. Bruce and his girlfriend both gave written statements impheating Carol.

DFS received the police report on March 10 and a new investigation was opened. Anderson contacted Arnold at FCS. Arnold reported that, on the morning of March 9, when Carol brought the children to the FCS office to make the exchange following their weekend visitation, she had checked the children and had not noticed any bruising. Anderson also called Neva Yourman at the daycare center. Yourman reported that the children did not have any bruising when they were brought to the daycare by Bruce’s girlfriend.

Anderson called the police department. Sergeant Lanfear told her that Carol had given a statement and had denied the allegations. Carol asked to be given a polygraph examination. The test subsequently was administered, and the results were in her favor. DFS closed the investigation into the March 9 allegations of abuse, concluding that abuse had not been substantiated and rating the risk of future abuse as being low.

On May 14, 1992, Carol moved the District Court to modify or clarify the custodial, residential, visitation, and financial arrangements related to the parties’ children.

About the same time, McKinnon sent a letter to Arnold. McKinnon stated that she was writing at Bruce’s request. She explained that she had seen the children 13 times since August 1991. She recommended that Carol be limited to supervised visitation. On May 20, McKinnon sent Arnold a follow-up letter which stated in pertinent part:

Since my letter to you on May 12, [J.A.] spontaneously reported to his father and subsequently to me that when his mother is angry with him she squeezes his penis. This new finding is, of course, a very serious one, which will be reported to Social Services for further investigation. It underscores my concern for the welfare of both children when they are in the care of their mother and I hope that you will give serious consideration to my recommendations as outlined in my May 12 letter.

On June 2, 1991, Anderson opened a new investigation into the penis squeezing allegations. According to the DFS records, Bruce had complained to Warren Wright, western regional director of DFS, about the local DFS office’s handling of the case. Wright contacted the local office and informed them of the latest allegations. Although Bruce believed that Wright would remove Anderson from the case, Wright contacted Anderson by phone and informed her that she would, in fact, continue to facilitate the investigation.

On June 3, 1992, Bruce moved the District Court to require that Carol’s visitations with the children be supervised. The District Court granted the motion for supervised visitation. That same day, Anderson requested that the Kalispell Police Department investigate the penis squeezing allegations. Carol volunteered to submit to a polygraph test, and the results were in her favor. Interviews with the children were arranged to take place at the daycare center, but when Bruce learned that Anderson was involved in the investigation, he refused to allow anyone to interview the children. Detective Steve Klingler, who investigated on behalf of the Kalispell Police Department, stated to Arnold that “if J.A. is being sexually abused, it is his belief that the perpetrator is someone other than Carol Allison.” Arnold submitted the findings of the police department, as well as Detective Klingler’s statement, to the District Court in a report dated July 9,1992. Arnold wrote:

Although I am sure BRUCE ALLISON feels he has acted in good faith on his children’s behalf, I do not believe that BRUCE has acted in the best interests of [J.A.] and [C.A.]. I believe he has over-reacted, which has caused the children to be confused and scared. He has not followed the procedure suggested by Family Court Services or by the local Department of Family Services. BRUCE has made false accusations regarding my involvement in this matter. Although it may have been unintentional, I believe BRUCE’s allegations against CAROL ALLISON to be false.

Hearing on all outstanding motions was held, but not concluded, on July 13,1992. The District Court issued an order on July 22,1992, providing that the hearing be continued at a later date upon the motion of either party and that temporary residential custody continue with Bruce. The District Court further ordered that a social worker conduct an evaluation of the parties and their children and make recommendations to the court regarding the custody issues. On December 30, 1992, Carol requested that the court continue the hearing.

The hearing continued on March 30, 1993. Seven witnesses testified and a total of fourteen exhibits were admitted into evidence. The District Court took the matter under advisement and ordered that the hearing continue at a later date. The final hearing was held on July 29, 1993. During the July 29 hearing, five additional exhibits and three depositions were admitted into evidence. Carol, Bruce, and Rosemary McKinnon testified.

On December 9, 1993, the District Court issued findings, conclusions, and judgment returning residential custody of the parties’ two children to Carol. Bruce appeals.

STANDARD OF REVIEW

This Court recently clarified the standard by which we review child custody modification cases:

Motions or petitions to modify a sole custody provision or terminate a joint custody provision must satisfy the jurisdictional prerequisites set forth in § 40-4-219, MCA. Likewise, a motion or petition to modify child custody provisions in a dissolution decree which ha[s] the effect of substantially changing the primary residence of the parties’ children, even though the formal designation of “joint custody” is retained, are to be construed as motions or petitions to terminate joint custody and must satisfy the jurisdictional requirements set forth in § 40-4-219, MCA. Any effort to modify the physical custody, which does not seek a substantial change in the children’s primary residence, may be considered by the district court according to the best interest standard set forth in § 40-4-212, MCA.

In re Marriage of Johnson (1994), [266 Mont. 158], 879 P.2d 689, 694.

In this case, the parties’ were awarded joint custody of their children, J.A. and C.A., by decree of dissolution, and Carol was awarded primary residential custody. Bruce’s July 29,1991, motion sought to change the primary residence of the children to himself and to restrict Carol to visitation “on alternate weekends from Friday at 5:00 p.m. until Sunday at 7:00 p.m.” We conclude that Bruce’s motion sought a substantial change in the primary residence of the parties’ children while retaining the formal designation of “joint custody.” We, therefore, construe the motion as one to terminate joint custody and review the record to determine if the jurisdictional requirements set forth in § 40-4-219, MCA, are satisfied.

ISSUE 1

Was there sufficient evidence to support the District Court’s findings of fact and conclusions of law maintaining Carol as primary residential custodian of the parties’ children?

“[T]he party requesting modification under § 40-4-219, MCA, bears a heavy burden because the statute’s policy is to ‘preserve stability and continuity of custody for the children.’ ” Johnson, (1994), 879 P.2d at 694 (citing In re Marriage of Stephenson (1988), 230 Mont. 439, 447, 750 P.2d 1073, 1075; In re Marriage of Gahm (1986), 222 Mont. 300, 303, 722 P.2d 1138, 1140). In a child custody case, this Court will review the district court’s findings to determine whether those findings are clearly erroneous. Johnson, 879 P.2d at 694; In re Marriage of Dreesbach (1994), 265 Mont. 216, 875 P.2d 1018, 1021. A finding is clearly erroneous only if: (1) the finding is not supported by substantial, credible evidence; (2) the district court misapprehended the effect of the evidence; or (3) after reviewing the record, this Court is left with a definite and firm conviction that a mistake has been committed. Johnson, 879 P.2d at 694 (citing In re Marriage of McClain (1993), 257 Mont. 371, 374, 849 P.2d 194, 196).

Section 40-4-212, MCA, requires the court to determine custody in accordance with the best interest of the child. To modify custody, § 40-4-219(1), MCA, requires the comí; to make each of the following determinations: (1) that a change has occurred in the circumstances of the child or custodian; (2) that modification is in the best interest of the child; and (3) that one of six enumerated circumstances exists. The best interest test of § 40-4-212, MCA, is, therefore, one of the three prongs under § 40-4-219(1), MCA.

After hearing all of the testimony in this case, the District Court made the following conclusions of law: that there had been “no significant change in circumstances of either child or of the residential custodial parent”; that under § 40-4-212, MCA, it was in the best interest of the children to return them to the physical custody of their mother pursuant to the original decree of dissolution; and that none of the six factors under § 40-4-219(1), MCA, merited a permanent change in residential custody. Each of the three determinations required by § 40-4-219, MCA, were made by the District Comí;. Moreover, the District Court concluded that Bruce “has and likely would continue in the future to deny and frustrate contact between the children and [their mother],” and cited § 40-4-219(3), MCA, which provides that “[t]he court shall presume the custodian is not acting in the child’s best interest if the custodian does any of the acts specified in subsection (l)(e) ....” Section 40-4-219(l)(e), MCA, provides for modification of custody if the court finds that the custodial parent willfully and consistently refuses to allow contact between the children and the noncustodial parent or attempts to frustrate or deny the noncustodial parent’s visitation rights.

Bruce mischaracterizes the DFS reports when he asserts that “[o]n March 19, 1991, DFS confirmed that Carol had beaten R.E. on the face with a belt.” (Emphasis added.) The DFS report merely states that DFS received a telephone call from a school counselor who stated that R.E. was in school with bruises on his face and that R.E. claimed that his mother had beat him with a belt. The DFS records show that a social worker went to the school and talked to both R.E. and T.E. The social worker discovered “some light redness” to the left side of R.E.’s face. R.E. told the social worker that his mother had slapped his face. According to R.E., he was slapped for fighting with T.E. Carol came to the DFS office the following day to keep a previously scheduled appointment with the social worker, and she freely admitted that she slapped R.E.’s face. According to Carol’s sworn testimony at trial, R.E. was cussing at her, “calling [her] every name in the book,” and she slapped him across the face.

Similarly, Bruce mischaracterizes the DFS records by asserting that more than one incident of substantiated abuse occurred: “Carol continued to discipline R.E. by beating him and leaving bruises on his face ....” (Emphasis added.) A careful review of the DFS records and the testimony of the DFS social workers who thoroughly investigated Carol shows that only a single incident of substantiated abuse occurred: The slapping of R.E. on March 19,1991. Bruce points to an entry in the DFS records dated April 23,1991, to support his assertion of continuing abuse. The record clearly shows, however, that the social worker’s entry referred to the March 19 slapping, and that on April 23 a discussion about that slapping took place between Carol and the social worker.

Bruce argues “that the record is overwhelming that it was in the best interests of the Allison children that Bruce continue as residential custodian.” While there is some evidence in the record supporting Bruce’s position, we conclude that the District Court’s findings and conclusions are supported by substantial, credible evidence.

The record is filled with the testimony of the DFS investigators who were unable to confirm any physical or sexual abuse of J.A. and C.A., despite Bruce and his girlfriend’s repeated allegations. Arnold, who observed the children on a number of occasions after their visitation with Carol, testified that she never saw any evidence of abuse. Anderson, who investigated the allegations of sexual abuse, determined that abuse was not substantiated. Anderson also testified that “[i]t is uncommon for there to be that many unsubstantiated referrals coming from the same source.”

Despite his recommendation that the children remain in the residential custody of Bruce, Wright conceded that no substantiation of abuse existed. Wright testified that his recommendation was not based on whether Bruce would make a better parent. Instead, his recommendation was

based on the fact that the kids are in his custody now, and I believe it should be the Department’s policy, and in fact it is our practice, to work with parents who have custody of the children and try to make sure they maintain that family relationship.

Custer, who investigated the slapping incident, testified that he “did not see reason to remove the children at that point in time” even though he had confirmed that Carol had slapped R.E. Custer testified that the emotional abuse of T.E., J.A., and C.A. was not substantiated. Custer testified that he investigated the allegation that Carol had pinched J.A.’s penis and concluded that such abuse was unsubstantiated. Custer also testified that he worked with Detective Brown of the Kalispell Police Department on the penis pinching allegations, and that Brown, likewise, concluded that the alleged abuse was unsubstantiated.

Burrington, who investigated the allegations of sexual abuse in conjunction with Custer, testified that DFS had no information which would have warranted the children’s supervised visitations with Carol. She further testified that DFS had no evidence which substantiated the allegations of sexual abuse.

In addition to Wright, only three other non-party witnesses testified favorably on behalf of Bruce. Police Chief Dale Stone of the Columbia Falls Police Department testified that in February 1993 Bruce’s mother called him and asked him to talk to J.A. According to Stone, Bruce’s mother told him that J.A. had been acting out and inappropriately touching his sister. Bruce and his mother wanted Stone to tell J.A. that such behavior was inappropriate. Stone testified that J. A. told him that when Carol is mad at him, she would touch his private areas. Stone reported his findings to DFS, but did not conduct any investigation beyond the single interview with J.A.

Carol Lee testified that she interviewed J.A. in September 1992, and he spontaneously disclosed to her that his mother touched his private parts. She also interviewed Carol, Bruce, and the other children. Following her investigation, she recommended that Bruce continue as the residential custodian and that Carol have supervised visitations while she received counseling. She also testified that children may suffer stress and other difficulties following the divorce of their parents. In 1992, she determined that Bruce needed counseling for his need to be controlling. Lee further testified that, after her recommendation in the fall of 1992, she was no longer involved in the matter and had virtually no other contact with the parties. At trial, she refused to make any further recommendations due to her lack of current involvement.

McKinnon testified that her role in this matter was exclusively as J.A. and C.A.’s counselor. She began counseling the children in August 1991. She testified that, during one of their sessions, J.A. reported that his mother pinched his penis when she was mad at him. The disclosure came after Bruce contacted McKinnon and told her that J.A. had been caught touching other peoples’ genitals. Bruce told McKinnon that he had asked J.A. where he learned to do that, and J.A. responded that his mother had done it to him. J.A. also reported to McKinnon that his aunt, his uncle, and a friend of his mother’s also touched him in the same manner. However, in a letter dated May 12, 1992, following the disclosure, McKinnon stated that “[n] either of the children have given direct and unequivocal evidence of either physical or sexual abuse. This does not, of course, mean that it has not occurred. J.A. is ... protective of his mother.” Regarding J.A.’s disclosure, McKinnon also wrote: “He was able to tell me this same information [that Bruce had reported] but was clearly acutely uncomfortable and remained vague as to the nature of this touching and unable to give any further details.” Based on her involvement, McKinnon recommended at trial that Bruce remain custodian, that C.A. be moved to unsupervised visitation with Carol, and that J.A. remain with supervised visitation. She testified that she was not an investigator, but strictly a counselor.

When Arnold spoke to J.A. about his statement that his mother pinches his penis when she is angry, all that J. A. would tell Arnold is “Daddy told me.” Arnold reported her conversation with J.A. to the District Court in a written statement dated June 4, 1992. She also reported that she had concerns about the emotional trauma the children suffered from repeated questioning and examination by FCS, DFS, and a variety of law enforcement officials. She stated that Bruce’s anger toward Carol was apparent and that he had talked negatively about Carol in the presence of the children.

Andróes also testified at trial. He stated that Carol’s psychological tests “came out very well in all areas” and were not outside the normal psychological bounds. He determined that Carol was under a great deal of stress at the time of his initial examination of her. Carol began regular counseling with him in the fall of 1991. Andróes testified that he found it significant that the allegations of sexual abuse against Carol “began at the very time that DFS was preparing to close the case in the physical abuse charge and to leave residential care with the mother....” In his experience, he had found that “[w]hen somebody wants to change a custodial situation, that’s when they make new charges .... The outside parent frequently will look for other reasons to make charges to try to see if they can’t reverse the way things are.” Andróes testified that a pattern of complaints existed in this case and that the complaints emanated from Bruce, Bruce’s girlfriend, and Bruce’s mother. He stated that the repeated allegations did not surprise him due to the established pattern. Because Carol’s only contact with the children occurred during supervised visitation, he found the allegations of sexual abuse incredible.

Andróes further testified that, based on his evaluation and ongoing counselling, he had no reason to deny Carol full custody of her children, or alternatively, to have normal visitation privileges.

Carol and Bruce also testified during the final hearing on July 29, 1993. Carol stated that her testimony that day was the first testimony or sworn statement that she had given during the entire matter. She confirmed that she had received no notice of Bruce’s July 29, 1991, motion to modify custody and that she was not allowed to testify prior to the removal of her children from her home. She confirmed that she had been extensively investigated by DFS and the Kalispell Police Department and that she had submitted herself to two separate polygraph examinations. She stated that she had never been accused of abusing or neglecting her daughter T.E., who continued to reside with her during all of the instant proceedings.

Carol’s attorney called Bruce to testify. The attorney asked Bruce if his testimony that day was the first sworn statement he had made in the custody proceedings. Bruce stated, “Yes, it is.” He explained that his primary concern was for the well-being of his children. He testified that when Anderson concluded that the alleged abuse was unsubstantiated, he was dissatisfied and went over her head to Wright. He also complained about the local DFS office to the Governor’s office and to the Flathead County Attorney. Bruce conceded, however, that the claims that the County Attorney's office reviewed were rejected. Additionally, when Bruce was dissatisfied with Arnold’s conclusion that there was no substantiated abuse, he went over her head to her boss at Family Court Services. Bruce acknowledged that Carol Lee had recommended that he needed counseling for his control and anger issues and that he needed to be evaluated for chemical dependency. He testified that he had attended some sexual addiction group meetings, had attended some Adult Children of Alcoholics meetings, and had seen Carol Lee twice for counseling, but that “affordability kind of comes into play” in his seeking any additional counseling.

Because its findings and conclusions are supported by substantial, credible evidence, we conclude that the District Court did not err in returning residential custody of the parties’ children to Carol.

ISSUE 2

Did the District Court err by issuing findings and conclusions substantially similar to Carol’s proposed findings and conclusions?

The District Court issued over 21 pages of findings of fact and conclusions of law. Bruce argues that the District Court “abused its discretion by its abrupt, ‘wholesale adoption’ of’ Carol’s proposed findings and conclusions, which were submitted on computer disk as the court had requested both parties do. Bruce asserts:

A careful review of Findings of Fact, Conclusions of Law and Judgment entered by the Court reveals very little change from the proposed Findings of Fact, Conclusions of Law, and Judgment submitted by Carol’s counsel, other than to change the names from Carol and Bruce to Respondent and Petitioner, and other minor changes of style in the text. There were no substantive changes by the District Court.

In support of his position, Bruce cites In re Marriage of Wolfe (1983), 202 Mont. 454, 457-58, 659 P.2d 259, 261, in which this Court stated:

[W]e [have] voiced our disapproval of trial courts relying “too heavily on the proposed findings and conclusions submitted by the winning party.” A trial judge relies "too heavily’ upon proposed findings when they are used “to the exclusion of a consideration of the facts and the exercise of his own judgment.”

While we discourage the verbatim adoption of proposed findings and conclusions, “the practice does not constitute error per se.” In re Marriage of Nikolaisen (1993), 257 Mont. 1, 5, 847 P.2d 287, 289. In Nikolaisen, we set forth the following test:

When reviewing the adequacy of the findings of fact and conclusions of law, we examine whether they are sufficiently comprehensive and pertinent to provide a basis for a decision, and whether they are supported by substantial evidence.

Nikolaisen, 847 P.2d at 289; Wolfe, 659 P.2d at 261. We conclude that the District Court’s findings and conclusions meet the above test. Although the findings and conclusions are substantially similar to those proposed by Carol, they are comprehensive, pertinent, and are supported by substantial evidence contained in the record. The District Court, therefore, did not err by issuing findings and conclusions substantially similar to those proposed by Carol.

ISSUE 3

Did the District Court properly conclude that the July 29,1991, ex parte order changing residential custody was improperly issued, and therefore, should be vacated?

The District Court’s finding of fact No. 8 states:

No Affidavit was submitted or filed in support of Respondent’s [July 29, 1991,] Motion [to Change Custodial Parent], contrary to the requirements of Section 40-4-220, Montana Code Annotated, which provides in relevant part:
“A. Party seeking a temporary custody order or modification of a custody decree shall submit, together with moving papers, an affidavit setting forth facts supporting the requested order or modification ....”

The District Court concluded as a matter of law that because the July 29, 1991, order was entered pursuant to a motion without a supporting affidavit, the order was issued contrary to §§ 40-4-220(1), -220(2)(a), and -213(1) and should be vacated.

Bruce argues that

it was impossible for him to file an Affidavit in support of his Motion to Change Residential Custodian because DFS would not allow him to review its records regarding Carol, and therefore Bruce did not know the content of the DFS records regarding Carol and her children when he filed his Motion.

However, on July 1, 1991, pursuant to Bruce’s motion, the District Court ordered DFS to produce its confidential files pertaining to Carol. The order, which was granted without a hearing and without notice to Carol, stated that

[t]he information and materials in said files may only be disclosed as follows:
a. To the court;
b. To counsel of record for the respective parties in this action

The record reveals that the District Court received the confidential information on July 9. Twenty days later, Bruce filed his ex parte motion to change custodial parent, stating:

This Motion is made on the grounds and for the reasons that the records of the Department of Family Services confirm that the children have been abused and neglected by Carol J. Allison... and that therefore the best interests of the children necessitates modification of the residential custodian ....

(Emphasis added.) Bruce clearly knew the contents of the DFS records at the time he filed his motion for change of custodial parent on July 29. However, the record shows that Bruce did not file an affidavit in support of his motion.

The statutory mandate of § 40-4-220(2), MCA, is clear:
(a) A party seeking a temporary custody order may request that the court grant a temporary assignment of custody ex parte. He shall so request in his moving papers and shall submit an affidavit showing that:
(ii) although a previous determination of custody has been made, the child’s present environment endangers his physical or emotional health and an immediate change of custody would serve to protect the child’s physical or emotional health.
(b) If the court finds from the affidavits submitted by the moving party that a temporary assignment of custody would be in the child’s best interest under the standards of 40-4-212 or that the child’s physical or emotional health is endangered and would be protected by a temporary assignment of custody, the court shall make an order placing temporary custody with the person designated by the moving parly... and shall require all parties to appear and show cause within 20 days from the execution of the order why ... in the case of a temporary order issued under subsection (2)(a)(ii), the court should not restore the child to the custodian from whom the child was removed by the temporary order.

(Emphasis added.) The Code Commissioners’ Note to § 40-4-220, MCA, further provides:

This section establishes a procedure for seeking temporary custody or a modification of a custody decree by motion supported with affidavits. The procedure is designed to result in denial of the motion without a hearing unless the court finds that the affidavits establish adequate cause for holding a hearing. The procedure will thus tend to discourage contests over temporary custody and prevent repeated or insubstantial motions for modification.

(Emphasis added.) The statute provides no exception to the affidavit requirement, and we refuse to create one.

We conclude that, because Bruce failed to file a supporting affidavit with his motion to change custodial parent, the District Court’s order of July 29,1991, improperly granted that motion. The District Court did not err by subsequently vacating that order.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON and TRIEWEILER concur.

JUSTICE GRAY,

specially concurring.

I join in the Court’s opinion on issues 1 and 3 and specially concur on issue 2, relating to whether the District Court erred in issuing findings and conclusions substantially similar to those proposed by Carol. As to that issue, I agree with the result reached by the Court, but not with all that is said therein. I write separately to clarify that, while I have serious concerns about the extent to which district courts are adopting verbatim, or nearly so, a party’s proposed findings and conclusions, this case does not reflect such a wholesale adoption of findings.

Over the past decade, we have discouraged, and disapproved of, trial courts relying too heavily on the proposed findings submitted by a “winning party;” in that regard, we began with a principle that adopted findings must reflect the judge’s own consideration of the facts and the exercise of the judge’s own judgment. See, e.g., In re Marriage of Wolfe (1983), 202 Mont. 454, 659 P.2d 259. We continue to voice similar sentiments, while concurrently stating that “the practice does not constitute error per se.”In re Marriage of Nikolaisen (1993), 257 Mont. 1, 5, 847 P.2d 287, 289. Indeed, our current approach seems to be that if the findings are comprehensive and are supported by substantial evidence, that is sufficient. Nikolaisen, 847 P.2d at 289. If we are no longer requiring that a judge’s work reflect the judge’s consideration of the record and exercise of his or her own conscientious judgment, the judicial system has been turned over to the lawyers to a degree I cannot support.

I understand better than most what trial judges are up against with regard to juggling a back-breaking work load with inadequate time, staff and other resources. But we can go too far in permitting judges to rely on the advocates before them in trying to keep their dockets current. It is my view that we must require that a judge’s findings and conclusions reflect independent judgment by the court (see In re Marriage of Kukes (1993), 258 Mont. 324, 328, 852 P.2d 655, 657) and that combing the record for substantial evidence to support those findings is not sufficient.

Here, the Court is correct that the District Court’s findings and conclusions are comprehensive, pertinent and supported by the record. More importantly, they reflect the exercise of the court’s independent judgment. They are not verbatim adoptions and, indeed, testimony of witnesses included at length in Carol’s proposed findings was not included at all in the District Court’s findings, presumably because the court did not give it the weight Carol thought was appropriate or any weight at all. Other findings were revised, added to, and deleted from in significant ways given the facts of the case.

Based on the record and the District Court’s findings and conclusions before us, I join the Court in affirming.


source: Caselaw Access Project

author: JUSTICE WEBER

license: Public Domain

text:
    DOUGLAS E. STEINER, Plaintiff and Appellant, v. DEPARTMENT OF HIGHWAYS of the STATE OF MONTANA, Defendant and Respondent.
    No. 93-537.
    Submitted on Briefs October 27, 1994.
    Decided December 23, 1994.
    51 St.Rep. 1496.
    269 Mont. 270.
    887 P.2d 1228.

      For Appellant: Roger M. Sullivan and Allan M. MeGarvey, MeGarvey, Heberling, Sullivan & MeGarvey, Kalispell.
    For Respondent: Dana L. Christensen and Debra D. Parker, Murphy, Robinson, Heckathom & Phillips, Kalispell.
   JUSTICE WEBER

delivered the opinion of the Court.

This is an appeal from the District Court of the Nineteenth Judicial District, Lincoln County, which granted judgment for the defendant, Montana Department of Highways, following a nonjury trial. Plaintiff appeals the District Court’s Findings of Fact, Conclusions of Law, and Judgment and also the denial of his Motion for Summary Judgment, both concluding that defendant did not owe a duty to plaintiff. We reverse and remand.

The following issues are presented for review:

I. Did the contract between the Federal Highway Administration and the Montana Department of Highways create a nondelegable duty on the part of the Montana Department of Highways to assure that safe scaffolding was used on the Fisher River Bridge Project?

II. Does failure to assure compliance with contractually-imposed safety standards and the Montana Scaffolding Act constitute abreach of duty as a matter of law?

Douglas E. Steiner (Steiner) worked as a laborer on the Fisher River Bridge highway reconstruction project on U.S. Highway 2 between Kalispell and Libby, Montana. He was employed by Frontier West, Inc., a contractor doing bridge construction on the project. On May 15, 1987, Steiner injured his back when he fell from a scaffold structure which was attached to the outside of the bridge being constructed.

The scaffold structure consisted of a series of metal overhang brackets upon which a working “deck” was constructed. The surface of the deck was used to anchor forms for the concrete parapet (retainer wall); it also functioned as a work surface and walkway. In particular it was used as follows: (1) by the laborers in constructing and removing the forms for pouring the concrete retainer wall; (2) as a walkway and work surface during the pouring of the concrete deck; (3) as a work surface to enable the laborers to perform concrete finishing work and repairs to the outside surface of the concrete retaining wall; and (4) as a work surface by both laborers and supervisory personnel from the Montana Department of Highways (MDOH).

The deck extended between Y1V% to 24 inches outward from the edge of the parapet and ran for the entire length of the bridge. It was over nine feet above ground for most of its length. There was no guardrail at the outer edge of this narrow deck overhang at any time during the construction project. Steiner fell backwards to the ground from the deck overhang while he was attempting to go around another worker to get a hose. The other worker was kneeling on the working surface outside the parapet wall with his upper body parallel to the parapet and his head near its base as he smoothed out the newly poured concrete retaining wall — a process called “sacking.” Steiner claims that he reached for a 2 x 4 piece of wood which he believed to be part of the deck overhang structure, but instead was a loose piece of wood which was not anchored to the structure. He lost his balance and fell backwards to the ground approximately nine feet below the overhang.

The Fisher River Bridge was part of a federally funded highway construction project, governed by an agreement between MDOH and the Federal Highway Administration (FHWA). It was designated as a “Certification Acceptance” project, a classification which applied to this project but does not apply to all such construction projects receiving federal funding. Because it was a Certification Acceptance project, it had to be performed pursuant to the terms of the Certification Acceptance Agreement, which is a complex contract incorporating, among other things, the MDOH Construction Manual and a document entitled Standard Specifications for Road and Bridge Construction.

For purposes of our review, it is undisputed that there was no guardrail on the outside of the overhang work surface and that MDOH did not issue any verbal or written notice, stop-work order, or take any other action to assure that a guardrail was installed on the deck overhang.

Issue I

Did the contract between FHWA and MDOH create a nondelegable duty on the part of MDOH to assure that safe scaffolding was used on the Fisher River Bridge Project?

Steiner contends that the contract between FHWA and MDOH imposed a nondelegable duty upon MDOH concerning the Fisher River Bridge project. This duty on the part of MDOH, according to Steiner, required MDOH to assure the use of appropriate safety devices on the project, including safe scaffolding. Steiner contends that the District Court committed reversible error by not granting his summary judgment motion recognizing MDOH’s nondelegable safety duties arising from contract and also by not recognizing these nondelegable safety duties in its Conclusions of Law and Judgment.

The contract between FHWA and MDOH, which was applicable to the Fisher River Bridge construction project, required that the construction be performed pursuant to the terms of the Certification Acceptance Agreement. As stated above, the Certification Acceptance Agreement incorporates by reference the MDOH Construction Manual and a document entitled Standard Specifications for Road and Bridge Construction (1981 ed. adopted by MDOH). It also incorporates by reference certain other state and federal safety regulations. Not all highway contracts are governed by the Certification Acceptance Agreement; its terms apply only to highway contracts undertaken pursuant to a process referred to as “Certification Acceptance.” See 23 C.F.R. § 640.101-640.117 (1994). As a contract which must be performed pursuant to the Certification Acceptance Agreement, the contract between FHWA and MDOH therefore incorporates language from the MDOH Construction Manual, including the following quote from § 14.03, providing in pertinent part:

... |The Montana] Department of Highways would be responsible, as contracting agency, to monitor the Construction Safety Act on all projects in order to assure that correct requirements are met.
The Department of Highways policy in regard to OSHAmonitoring and violation reporting is as listed:
1. The contractor has direct responsibility for compliance by law and also as a contractual obligation under Section VIII of PR 1273 included in all federal aid contracts.
2. Department of Highways’ field personnel have responsibility to monitor the contractor’s compliance. The basic guide for monitoring is the orange booklet titled “Construction Industry - OSHA Safety and Health Regulation Digest.” Department field personnel do not have the authority to enforce, direct the contractor to perform specific actions, or to report violations directly to enforcement agencies except in cases of extreme emergency.
3. Procedures for reporting apparent violations are (a) Verbal notification to contractor’s field supervisor, (b) Written notification if not corrected within reasonable time, (c) Notification of higher department authority if written notice does not produce correction in a reasonable time. (Emphasis supplied.)

In the Standard Specifications for Road and Bridge Construction, incorporated by reference as stated above, the project engineer is given authority to suspend the work wholly or in part if the contractor fails to correct unsafe conditions.

All Certification Acceptance projects for which the State of Montana negotiates a contract with a subcontractor must include a provision specifically permitting MDOH to determine the reasonably necessary safety devices and protective equipment. Therefore, the Fisher River Bridge Contract and Bond, the contract between MDOH and Frontier West, Inc., included the following contract provision:

The contractor shall provide all safeguards, safety devices and protective equipment and take any other needed actions, on his own responsibility, or as the State highway department contracting officer may determine, reasonably necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the contract. (Emphasis supplied.)

Form PR-1273, FHWA Required Contract Provisions Federal-Aid Construction Contracts ¶ VIII. The guide used by MDOH for monitoring the contractor’s compliance with applicable laws is a booklet entitled Construction Industry Digest (OSHA 2202 (Revised) 1991), otherwise referred to as the “orange booklet.” The orange booklet at § 56 includes the following pertinent safety standards for scaffolds:

c. Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground or floor .... Scaffolds 4 feet to 10 feet in height, having a minimum dimension in either direction of less than 45 inches, shall have standard guardrails installed on all open sides and ends of the platform.

Steiner argues that, although contracts governed by the Certification Acceptance Agreement impose some safety-related nondelegable duties upon MDOH, the Certification Acceptance Agreement did not require MDOH to be responsible for all safely-related activity on the Fisher River Bridge project. Specific duties imposed by the Certification Acceptance Agreement include the responsibility to inspect, monitor and take corrective action to assure the presence of “safeguards, safety devices, and protective equipment reasonably necessary to protect the life and health of employees on the job.” Thus, although the contractor must provide safeguards, safety devices and equipment that are reasonably necessary for employee safety, according to the contract between MDOH and Frontier West, Inc., MDOH must monitor the project and assure the subcontractor’s compliance.

Montana law has long recognized that contractual obligations are nondelegable. See, e.g., Ulmen v. Schwieger (1932), 92 Mont. 321, 345, 12 P.2d 856, 859. Prior to the 1972 Montana Constitution revisions, however, the benefits of that doctrine applied only to third persons and did not apply to employees of subcontractors. Stepanek v. Kober Construction (1981), 191 Mont. 430, 434, 625 P.2d 51, 53. See also Nave v. Harlan Jones Drilling (1992), 252 Mont. 199, 827 P.2d 1239. As discussed in Stepanek, 625 P.2d at 54-55, Art. II, Section 16 of the Montana Constitution now provides in pertinant part:

Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, or character. No person shall be deprived of this fall legal redress for injury incurred in employment for which another person may be liable except as to fellow employees and his immediate employer who hired him if such immediate employer provided coverage under the Workmen’s Compensation Laws of this state....

Thus, the distinction discussed in Stepanek between third parties and employees of subcontractors no longer applies in Montana and employees of subcontractors may sue the general contractor for injuries received on the job if the general contractor has a nondelegable duty to the subcontractor’s employees, notwithstanding the fact that the employee’s exclusive remedies against the employer are covered under the Workers’ Compensation Act. Because the duties imposed on MDOH by its contract with FHWA are nondelegable, it cannot avoid liability by attempting to shift responsibility for those duties to someone else. Nace, 827 P.2d at 1241.

MDOH contends that it had the duty to monitor safety, including the requirements of the Montana Scaffolding Act, but the primary responsibility for assuring safety on the project was with Steiner’s employer as transferred to the employer pursuant to the contract between MDOH and Frontier West, Inc. The District Court concluded that the contract between FHWA and MDOH contained no specific provision which obligated MDOH for initiating, maintaining and supervising safety precautions and programs. The court further concluded that absent such a provision, there was no nondelegable duty assumed by the State to provide Steiner with a safe place to work, or to assume the safety duties under the Montana Scaffolding Act and the Safe Place to Work Act. We disagree.

We review the trial court’s conclusions of law to determine if they are correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603. Under the terms of the Certification Acceptance Agreement signed in 1976 by MDOH and applicable to the Fisher River Bridge construction project, MDOH assumed certain nondelegable duties, including the duty to monitor and to assure compliance with certain state and federal laws. Although MDOH’s field personnel cannot enforce safety compliance except in emergency situations, its duty to monitor is not a duty without a means of enforcement. Procedures for enforcement are specifically set forth in the Construction Manual. These procedures do not allow MDOH as general contractor to specify the manner of compliance, however, except in limited circumstances. This decision is generally left to the subcontractor.

Regardless of the duties owed by Frontier West, Inc. or others to Steiner, however, MDOH retained the duty to provide Steiner with a safe place to work. We conclude that MDOH had a nondelegable duty based on its contract with FHWA whereby it assumed nondelegable safety responsibilities. We further conclude that the duties assumed by MDOH included both monitoring the construction project to determine whether the subcontractor complied with safety laws and also assuring that Frontier West, Inc. complied with such laws.

We hold the District Court erred in concluding MDOH owed no nondelegable duty to Steiner to assure that safe scaffolding was used on the Fisher River Bridge project.

Issue II

Do the undisputed facts establish a breach of contractually-imposed duty to monitor and assure safety compliance as a matter of law?

According to our conclusion in Issue I above, MDOH was required to monitor the Fisher River Bridge project and assure that it complied with safety laws. MDOH was thus obligated to inspect the scaffolding structure, note that it was being used as a work surface and to determine whether it needed a guardrail in order to comply with the Montana Scaffolding Act and the Construction Manual incorporated by reference in the FHWA-MDOH contract, which required guardrails for all scaffolding less than 45 inches wide and 4 feet or more above ground. If the scaffolding structure did not comply, as the undisputed facts demonstrate it did not, MDOH was obligated to take the procedures as outlined in the Construction Manual to assure compliance on the part of the subcontractor, Frontier West, Inc. If Frontier West, Inc. failed to correct the unsafe condition, then the project engineer had the authority to suspend the work wholly or in part until Frontier West, Inc.’s scaffolding met the requirements of the Montana Scaffolding Act and the Construction Manual incorporated by reference into the Certification Acceptance Agreement.

The District Court also concluded that the absence of a guardrail on the outer edge of the scaffolding on the Fisher River Bridge project did not proximately cause Steiner’s injuries. We have previously stated that the deck overhang constituting the scaffolding on the Fisher River Bridge construction project did not meet the requirements of the Certification Acceptance Agreement, which incorporated by reference the Construction Manual and state and federal laws, including the Montana Scaffolding Act. Steiner contends that this failure to comply with the Montana Scaffolding Act is reversible error and that the District Court should have recognized MDOH’s safely duties and awarded summary judgment in his favor because the Act precludes the affirmative defenses of comparative negligence and assumption of the risk. We agree.

The term “scaffolding” includes any device utilized by workmen to allow them to work where a fall might result in serious injury. Mydlarz v. Palmer/Duncan Construction Co. (1984), 209 Mont. 325, 338, 682 P.2d 695, 702. Clearly, the deck on the outer side of the parapet in this case constitutes scaffolding according to the liberal construction to be given that definition as set forth in Mydlarz. Thus, the breach of a contractual duty to assure that the subcontractor has provided appropriate scaffolding invokes the provisions of the Scaffolding Act.

In Pollard v. Todd (1966), 148 Mont. 171, 179-80, 418 P.2d 869, 873, this Court held as follows:

We hold that the purpose of [the Scaffolding Act] is to supplement the protection of the common law by providing criminal sanctions and imposing an absolute statutory duty upon the owners of real estate to protect workmen and others from the extraordinary hazards associated with scaffolds. The mandatory nature of the statute forecloses the common-law defenses of assumption of the risk, contributory negligence, and negligence of a fellow servant. We have not decided that liability becomes fixed upon the showing of a scaffold-associated injury. A defendant may escape liability upon proof that there was no violation of statute or that the violation was not the proximate cause of the injury.

A breach of the absolute duty to provide proper scaffolding is negligence per se. Pollard, 418 P.2d at 873. In this case, the District Court determined that Steiner was contributorily negligent, that his negligence was gross negligence and that his gross negligence was more than 50 percent of the total negligence. According to this Court’s decision in Pollard, the contributory negligence defense is not available to MDOH. We conclude that failure to comply with the provisions of the Montana Scaffolding Act was negligence per se on the part of MDOH.

However, liability does not become fixed upon a showing of negligence per se; there must be a determination of whether the violation was the proximate cause of Steiner’s injuries. The District Court concluded that the acts or omissions of MDOH were not the proximate cause of Steiner’s injuries, based on the following findings and conclusions:

[Finding of Fact No.] 20. The Plaintiff could have gone off the bridge and down the bank to get the pump; all witnesses who were asked testified that William Phelan, the Frontier-West superintendent on the Fisher River Bridge project, would not tolerate delay, and as Carranza put it, if Plaintiff had gone down to the river, ... by the time he got back up to the top of the bridge, he would have been fired. Nevertheless, once Plaintiff saw where the hose was, he could have easily climbed back over the parapet to the bridge, gone down below his brother and Carranza, climbed back over the parapet to the overhang and gotten the hose; as it was, he could not have attempted to perform a relatively simpl[e] task in a more complicated or dangerous manner than he did.
[Finding of Fact No.] 22. The overhang extended the entire length of the bridge, on both sides, so there were places where the overhang may have been higher than ten feet above the ground; all who testified were comfortable with the height, and the Court finds that at no point did the height present any peculiar risk or unusual danger.
[Finding of Fact No.] 25. There was no evidence that a guardrail would have made any difference in this instance; there was no evidence that the lack of a guardrail was a proximate cause of the Plaintiff’s injury.
[Conclusion of Law No.] 1. ... [A] nondelegable duty based on contract was not assumed by the State, to provide the Plaintiff with a safe place to work, or to assume the safety duties under the Montana Scaffolding Act. Such a contractual provision is also a prerequisite to finding liability on the basis of control by the general contractor. ...
[Conclusion of Law No.] 2. There was nothing inherently or intrinsically dangerous about getting the pump and hose, certainly not by walking around, and not even if he had leaned over the overhang to get the hose. Attempting to walk around Gus Steiner and Leo Carranza, unnecessarily, was negligence, and the manner in which Plaintiff got around Leo Carranza was gross negligence; and going off that overhang backwards in the manner that Plaintiff did would constitute a “dangerous activity,” but not one that gives him an exception with respect to the Defendant.
[Conclusion of Law No.] 3. There was a guardrail there, the parapet. If a guardrail had been erected at the edge of the overhang, as Plaintiff suggests, Carranza would have filled the space, causing Plaintiff to go around.
[Conclusion of Law No.] 4. That disposes of the Scaffolding Act, the Safe Place to Work Act and the Non-delegable Duties. Plaintiff also sued on the basis of negligence. Apart from a lack of duty, the negligence of Plaintiff was more than 50% of any other negligence. The guardrail referred to by the District Court in Conclusion No.

3 is not a guardrail at the outside of the overhang, as contemplated and required by the documents incorporated into the Certification Acceptance Agreement between FHWA and MDOH. The overhang, which was less than 45 inches wide, was located on the outer side of the parapet and did not have a guardrail to protect workers from falling off the edge of the deck. To assure safety compliance, the only time it is not necessary to erect a guardrail is when the overhang is 45 inches or more wide or the drop to the surface below is less than four feet.

We conclude that a guardrail was required on the deck overhang under the Montana Scaffolding Act. We further conclude that a review of the District Court findings and conclusions establishes the presence of proximate cause.

We hold the District Court erred in concluding there was no breach of duty and that MDOH’s acts or omissions did not constitute proximate cause.

Reversed and remanded to the District Court for a determination of damages.

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


author: JUSTICE HUNT

text:
    DANIEL L. MAGONE, SHERIFF OF MISSOULA COUNTY, STATE OF MONTANA, Plaintiff and Respondent, v. THOMAS AUL, Defendant and Appellant.
    No. 94-275.
    Submitted on Briefs October 13, 1994.
    As Amended January 4, 1995.
    Decided December 29, 1994.
    51 St.Rep. 1535.
    269 Mont. 281.
    887 P.2d 1235.

      For Appellant: Terry G. Sehestedt, Missoula.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Jennifer Anders, Assistant Attorney General, Helena; Karen Townsend, Deputy County Attorney, Missoula.
   JUSTICE HUNT

delivered the Opinion of the Court.

Petitioners instituted a forfeiture action against Ellen Aul in the Fourth Judicial District Court, Missoula County. The Missoula County Sheriff’s Department seized $3000 in cash from Ellen while she was being booked for purchasing marijuana from an informant. Ellen committed suicide eight months later. Thomas Aul appears as Ellen’s successor in interest. Thomas appeals the District Court’s denial of his motion for summary judgment. We reverse.

The issue on appeal is whether the District Court properly denied Thomas’s motion for summary judgment.

In May 1990, Thomas and Ellen Aul were charged in Missoula County with possession of marijuanawith the intent to sell. OnNovember2,1990, while on bail and awaiting trial on the May 1990 charges, Ellen purchased one-quarter ounce of marijuana from an undercover police informant. Detectives of the Missoula County Sheriff’s Department monitored the transaction between Ellen and the informant and arrested Ellen. At the jail, officers discovered $3000 in cash in Ellen’s possession. The officers seized the cash, and the instant forfeiture proceedings were initiated.

On December 18,1990, Ellen filed a verified response to the petition for forfeiture, denying all ofthe allegations of the p etition and affirmatively alleging that the money seized was not used for the purposes alleged by the Sheriff’s Department.

In May 1991, a jury found Thomas and Ellen guilty of the May 1990 charges. Before sentencing, Thomas and Ellen fled Missoula and subsequently were arrested in Missouri. Ellen committed suicide in jail in Missouri. Thomas was brought back to Montana.

On January 31,1992, Ellen’s attorney moved for summary judgment against the petitioners. The District Court denied the motion, ruling that genuine issues of material fact existed concerning the source and intended use of the $3000 seized and concerning which underlying drug transaction — the May 1990 transaction or the November 1991 transaction — gave rise to the forfeiture action.

On April 28, 1992, Thomas moved for substitution of party in the forfeiture action, stating that he was Ellen’s surviving spouse and sole heir and that he was entitled to payment or delivery of her property and estate. On June 19,1992, the parties stipulated to the substitution.

On July 9, 1992, Thomas moved for summary judgment. Thomas and his parents, David and Margaret Aul, each submitted sworn affidavits stating that, in October 1990, David and Margaret had given Thomas and Ellen $3300 in cash as an anniversary gift. David and Margaret attached a copy of a bank receipt showing that they withdrew $3300 from their account on October 2, 1990. Thomas stated that the $3000 seized from Ellen was the gift money. David and Margaret stated that they had intended the money to be used to purchase a trailer, and Thomas stated that he and Ellen intended at all times to use the money for that purpose. The State responded by questioning the veracity of the affidavits and arguing that the true source of the cash was Thomas and Margaret’s extensive drug-related activities. The District Court denied Thomas’s motion for summary judgment. Following the denial of Thomas’s motion for summary judgment, a bench trial was held. The District Court ruled in favor of petitioners and issued findings of fact, conclusions of law, and judgment. Thomas appeals.

Did the District Court properly deny summary judgment?

Our standard in reviewing a grant or denial of summary judgment is the same as that initially utilized by the district court. Cooper v. Sisters of Charity (1994), 265 Mont. 205, 207, 875 P.2d 352, 353. Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. On a summary judgment motion, the movant bears the initial burden of proof; if the movant meets that burden of proof, the burden then shifts to the non-moving party. Koepplin v. Zortman Mining (1994), [267 Mont. 53], 881 P.2d 1306, 1309. Once the burden has shifted from the movant, the non-moving party must come forward with “substantial evidence” raising a genuine issue of fact. Thornton v. Songstad (1994), 263 Mont. 390, 397-98, 868 P.2d 633, 637. “When raising the allegations that disputed issues of fact exist, the non-moving party has an affirmative duty to respond by affidavits or other sworn testimony containing material facts that raise genuine issues; conclusory or speculative statements will not suffice.” Koepplin, 881 P.2d at 1309. The non-moving party “must set forth specific facts and cannot simply rely upon their pleadings ....” Thornton, 868 P.2d at 638.

Drug forfeiture actions are civil proceedings to which the rules of civil procedure, including Rule 56, M.R.Civ.P., apply. See State v. Baker (1983), 205 Mont. 244, 252, 667 P.2d 416, 420. Title 44, chapter 12, MCA, provides for the forfeiture of property used or intended to be used in relation to the possession, transfer, transportation, or concealment of dangerous drugs. Critical to this case is the construction of §§ 44-12-203 and -204, MCA. Section 44-12-203(1), MCA, provides that “[t]here is a rebuttable presumption of forfeiture as to all property” seized under chapter 12 of Title 44. To rebut the presumption, § 44-12-204, MCA, provides in pertinent part that:

(1) an owner of property who has a verified answer on file must prove that the property was not used for the purpose charged;
(2) an owner of property listed in 44-12-102(l)(g) who has a verified answer on file may prove in the alternative that the use of the property occurred without his knowledge or consent[.]

Thomas argues that, when he submitted the three affidavits showing the legitimate source and intended use of the seized cash, he fulfilled the requirements of § 44-12-204, MCA. Having rebutted the presumption, he argues that, to prevent the grant of summary judgment in his favor, the burden then shifted to the petitioners to present evidence sufficient to create a genuine issue of material fact. He asserts that the petitioners failed to produce any evidence which would create such an issue; instead, he asserts that the petitioners merely set forth unsworn, speculative, and conclusory allegations. According to Thomas, such allegations are insufficient to create a genuine issue of material fact, and the District Court improperly denied his motion for summary judgment. The District Court concluded:

7. Neither § 44-12-102 nor any other Montana statute addresses the standard of proof, if any, that must be met by Petitioner in establishing the facts upon which the rebuttable presumption in § 44-12-203(1) is based.
11. At trial, it is the owner’s burden to rebut the presumption of forfeiture by proving that the property was not used for the purpose charged. § 44-12-204(1), MCA.
12. Respondent must rebut the presumption of forfeiture by a preponderance of the evidence. Rule 301(b)(2), M.R.Evid.; Matter of the Seizure of a 1988 Chevrolet Van, 251 Mont. 180, 183, 823 P.2d 858, 860 (1991).
13. Respondent has failed to rebut the presumption of forfeiture by [a] preponderance of the evidence.

Petitioners argue that Thomas failed to meet his initial burden, arguing that Rogers v. Swingley (1983), 206 Mont. 306, 309-10, 670 P.2d 1386, 1388, requires that

[t]o satisfy this burden, the movant must make a clear showing as to what the truth is so as to exclude any doubt as to the existence of any genuine issues of material fact.

Petitioners assert that the affidavits submitted by Thomas and his parents “do not conclusively determine the two issues relevant to this forfeiture proceeding: the source of the $3,000 cash or its intended use.” Petitioners assert that the affidavits fail to “conclusively link’ the anniversary gift money to the money found on Ellen at the time of her arrest. Petitioners cite Cereck v. Albertsons, Inc. (1981), 195 Mont. 409, 411, 637 P.2d 509, 512, for the maxim that “[t]he party opposing the motion for summary judgment is entitled to the benefit of all reasonable inferences that may be drawn from the offered proof.” Under Cereck, petitioners claim that the District Court properly concluded that Thomas failed to meet his burden of proof.

The Axils’ affidavits, however, are explidt and xmequivocal statements regarding the legitimate source and intended purpose ofthe money seized from Ellen. Although the petitioners questioned the veradty of the affidavits, they failed to provide the District Court with any substantial evidence challenging the sworn statements or establishing an alternative soxarce or intended purpose ofthe money. We condude thatthe sworn affidavits ofThomas and his parents constituted suffident evidence to rebut the presumption of forfeiture.

Petitioners argue that even if Thomas met his initial burden, “the State presented suffident evidence to confirm that several factual issues remained whichrequired resolution attrial.”(Emphasisadded.)AswestatedinT7i077ife>n, 868P.2d at638, “[t]henon-movingparty must setforthspeci/ic facts and cannot simply rely upon their pleadings...” We condude that petitioners failed to set forth specific facts to refute the affidavits and relied solely upon the speculative and conclusory allegations containedin their pleadings. Becaxise the petitioners failed to show the existence ofa genuine issue ofmaterialfact, the District Court improperly denied summary judgment.

Reversed.

JUSTICES HARRISON, TRIEWEILER, NELSON and WEBER concur.


author: JUSTICE GRAY JUSTICE TRIEWEILER

text:
    ROBERT DEW, Plaintiff and Appellant, v. DOUGLAS C. DOWER and ALYCE S. DOWER a/k/a ALICE S. DOWER, Defendants and Respondents.
    No. 94-232.
    Submitted on Briefs September 22, 1994.
    Decided December 16, 1994.
    51 St.Rep. 1388.
    269 Mont. 286.
    888 P.2d 421.

      For Appellant: Patricia O’Brien Cotter; Cotter & Cotter, Great Falls.
    For Respondents: Joseph Sullivan, Emmons & Sullivan, Great Falls.
   JUSTICE GRAY

delivered the Opinion of the Court.

Robert Dew appeals from the findings of fact, conclusions of law, and final judgment of the Eighth Judicial District Court, Cascade County, concluding that he was entitled to fifty percent of the personal damages arising from Alice Dower’s fraud and determining the amount of his damages to be approximately $36,000. We affirm the District Court’s conclusion regarding the percentage of damages to which Robert Dew is entitled, but reverse and remand for recalculation of the amount of those damages.

Prior to August 1983, Robert and Sally Dew acquired six tracts of land in a subdivision south of Great Falls, Montana, from the Dowers under six individual contracts for deed. Each tract, consisting of slightly more than twenty acres, sold for $l,000/acre. The Dews entered into a contract for deed for a seventh tract in February 1984. Alice Dower, a licensed real estate broker, represented to Robert Dew that the purchase price was based on plans to upgrade two access roads to “county grade” standards.

When the Dowers failed to improve the access roads to county grade standards, the Dews and other purchasers brought suit against the Dowers alleging, among other things, fraud. Their allegations of fraud were based on Alice Dower’s representations concerning improvements to be made to the roads. The Dowers moved for a directed verdict at the close of the Dews’ case-in-chief and, at that point, the Dews’ attorney asked the District Court to dismiss Sally Dew’s claims. The court dismissed her claims with prejudice and entered a directed verdict in favor of the Dowers. Robert Dew appealed. We reversed the directed verdict and remanded the case for a new trial, holding that a jury question existed on the issue of whether Alice Dower fraudulently induced Robert Dew into purchasing the tracts. Dew v. Dower (1989), 237 Mont. 476, 480, 774 P.2d 989, 991.

In 1990, between the first appeal and the second trial, Sally Dew quitclaimed her one-half interest as co-tenant in the seven tracts to Robert Dew, resulting in his one hundred percent ownership of the tracts. On remand, the District Court found that Alice Dower had defrauded Robert Dew and awarded him one hundred percent of the damages. The Dowers appealed, arguing that Dew was not entitled to one hundred percent of the damages because he had owned only a one-half interest in the total fraud claims before the District Court. We reversed the District Court and remanded for recalculation of damages for plaintiffs who were before the court. Dew v. Dower (1993), 258 Mont. 114, 128, 852 P.2d 549, 558 (.Dew II).

On remand, the District Court concluded as a matter of law that Robert Dew, by virtue of his one-half interest in the property, was entitled to one-half of the damages resulting from Alice Dower’s fraud. The District Court offset the balances owing on the individual contracts for deed by the corresponding damages and prejudgment interest. Robert Dew appeals.

Robert Dew’s first assertion of error relates to the District Court’s conclusion of law that Robert, the sole owner of the property at the time of judgment against the Dowers, was entitled to only fifty percent of the damage award. Dew argues that, as the sole owner of the property at the time of judgment, he is entitled to one hundred percent of the damages resulting from Dower’s fraud. We disagree.

The District Court’s conclusion that Robert Dew was not entitled to one hundred percent of the total damages was premised on two bases. First, because Sally Dew had withdrawn her claims against the Dowers and the court had dismissed those claims with prejudice during the first trial, she retained no right to damages and, thus, the quitclaim deeds did not result in Robert Dew acquiring Sally’s right to claim damages. Second, the court relied on our decision in Van Ettinger v. Pappin (1978), 180 Mont. 1, 588 P.2d 988, in concluding that Robert had acquired Sally’s interest in the properly knowing of the claimed fraud and, as a result, had waived the right to bring an action for damages based on that interest. We review a district court’s conclusion of law to determine whether it is correct. Pacificorp v. Dep’t of Revenue (1992), 254 Mont. 387, 397, 838 P.2d 914, 920.

Regarding the first basis for the District Court’s conclusion, Robert Dew argues that although Sally Dew was not defrauded, she had not relinquished her right to transfer ownership interest in the property to Robert Dew. Therefore, when Sally Dew quitclaimed her interest in the property to Robert Dew, he obtained the right to recover one hundred percent of the property damages arising from the fraud. Robert Dew misunderstands our holding in Dew II.

Our decision in Dew II included the implied, if not direct, holding that this was an action for personal damages, not property damages, arising from Alice Dower’s fraud. We specifically stated that “[wlithout deciding whether a single co-tenant may sue for tort damages for injury to the property itself and recover the entire amount, we hold that the court in this case erred in awarding damages for injury to the personal interests of per sons who were not plaintiffs at the time of judgment.” Dew II, 852 P.2d at 557 (emphasis added).

Sally Dew’s fraud claims were the same as those brought by Robert Dew and were in the nature of a personal action. See Dew II, 852 P.2d at 557. On dismissal of Sally Dew’s claims with prejudice, however, the District Court lost jurisdiction over her interest in the property. Dew II, 852 P.2d at 557; citing Rule 41(a), M.R.Civ.P., and Miller v. Northern Pac. Ry. (1904), 30 Mont. 289, 296, 76 P. 691, 694. That dismissal had the same effect as if the District Court had rendered a judgment against Sally Dew on the merits of her fraud claim. See Higham v. City of Red Lodge (1991), 247 Mont. 400, 403 ,807 P.2d 195, 197. Accordingly, any interest that Sally Dew had for personal damages as a co-tenant ceased to exist at that point.

Furthermore, Sally Dew’s lack of an interest in personal damages effectively prevents her from transferring such an interest to Robert Dew via quitclaim deeds. It is axiomatic that a “quitclaim deed transfers and is designed to transfer only such title and interest as the grantor had when [the grantor] delivered the title.” Lodge v. Thorpe (1947), 120 Mont. 226, 229, 181 P.2d 598, 599-600. When Sally Dew quitclaimed her interest in the seven parcels to Robert Dew, she possessed a fifty percent ownership interest in the property, but no longer possessed any right to sue for personal damages arising from Alice Dower’s fraud. We conclude that while Robert Dew succeeded to Sally Dew’s fifty percent ownership interest in the tracts, he did not, and could not, succeed to her nonexistent right to sue for personal damages.

Robert Dew also asserts error in the District Court’s alternative reason for denying him one hundred percent of the damages, namely, that he had acquired Sally Dew’s interest in the property with the knowledge that it was tainted by fraud. Because of our resolution of Robert Dew’s first asserted error, we need not address this argument.

Dew also argues that the District Court’s determination that he is entitled to one-half of the damages arising from Alice Dower’s fraud is inequitable. His argument is based on our decision in Dew II, wherein we stated that the District Court may act as a court of equity and authorize the setting-off of the purchase price of the individual land contracts in an amount equal to the damages sustained. Dew II, 852 P.2d at 588. Dew again misinterprets that case.

Areview ofDew II clarifies that our discussion regarding the equity power of the District Court was confined solely to its ability to set-off the principal balances on the contracts for deed against the damages Robert Dew sustained. Indeed, we specifically stated that “[t]he power to allow a set-off of debts by a court of equity exists independent of statute where grounds for equitable interposition are shown, such as fraud or insolvency.” Dew II, 852 P.2d at 588. Contrary to Robert Dew’s assertion, this language — limited as it is to the use of set-offs— does not invest the District Court with broad equitable power to award him one hundred percent of the personal damages attributable to Alice Dower’s fraud when he is not entitled by law to such an award. We hold, therefore, that the District Court did not err as a matter of law in concluding that Robert Dew is entitled to fifty percent of the damages arising from Alice Dower’s fraud.

Dew’s final argument regarding the District Court’s judgment relates to the manner in which the District Court calculated his damages. On remand following Dew II, the District Court set off the principal balances due on each contract for deed, including interest accrued from March 27, 1992, to the date of its order, by the $5,000 damage award and prejudgment interest from August 1,1983 to the date of its order. Dew argues that this calculation ignored the fact that judgment was entered on March 27,1992, and that any recalculations should have been made as of that date. We agree.

In Dew II, we stated that “[t]he District Court acted within its equitable authority when it offset the principal amounts due under the contracts with the judgment in this case” Dew II, 852 P.2d at 558 (emphasis added). “The judgment in this case” refers to the District Court’s judgment entered on March 27, 1992, and clearly obligated the District Court to offset the damage award, complete with prejudgment interest, against the principal balances owing on the contracts on March 27,1992.

Accordingly, the District Court should have calculated damages in the following manner. First, the District Court should have determined the principal balance due on each contract for deed as of March 27, 1992. Next, the District Court should have determined Robert Dew’s damages as of March 27,1992. According to the District Court’s judgment of March 27, 1992, Robert Dew’s damages would amount to one-half of the $10,000 damage per tract. Dew II, 852 P.2d at 555. The District Court would add to that per tract damage amount prejudgment simple interest at ten percent per annum for the period from August 1983 — the time when Alice Dower’s fraud became certain — to March 1992, for six of the contracts and from February 1984, to March 1992, for the remaining contract. Dew II, 852 P.2d at 557. The District Court would then set-off Robert Dew’s damages for each tract against the principal balance owing on the corresponding contract as of March 27,1992.

Finally, the Dowers request an award of costs and attorney’s fees against Robert Dew as a sanction for bringing a frivolous appeal. “If [this Court] is satisfied from the record and the presentation of the appeal... that the same was taken without substantial or reasonable grounds, such damages may be assessed on determination thereof as under the circumstances are deemed proper.” Rule 32, M.R.App.P. After reviewing the record and the parties’ arguments and given the necessity of the remand, we cannot conclude that Robert Dew’s appeal was unreasonable. Therefore, we decline to award costs and attorney’s fees on appeal to the Dowers.

Affirmed in part, reversed in part, and remanded to the District Court for recalculation of damages.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, NELSON and WEBER concur.

JUSTICE TRIEWEILER

dissenting in part and specially concurring in part.

For the reasons set forth in my dissent to the majority’s decision in Dew v. Dower (1993), 258 Mont. 114, 852 P.2d 549 (Dew II), I dissent from the majority’s holding that Robert Dew was entitled to recover only one-half of the damages caused by defendants’fraudulent conduct.

However, I concur with that part of the majority opinion which reverses the District Court’s application of the offset to which Robert Dew is entitled against the contract purchase price.

JUSTICE HUNT joins in the foregoing dissenting and concurring opinion.