author: JUSTICE LEAPHART

text:
    IN RE THE MARRIAGE OF DENISE DeWITT, Petitioner and Appellant, and JOHN J. DeWITT, Respondent and Respondent.
    No. 95-192.
    Submitted on Briefs October 12, 1995.
    Decided October 31, 1995.
    52 St.Rep. 1089.
    905 P.2d 1084.
    273 Mont. 513.

      For Appellant: Bernard J. “Ben” Everett; Knight, Dahood, McLean & Everett, Anaconda.
    For Respondent: Brad L. Belke, Attorney at Law, Butte.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Denise DeWitt appeals from the December 29, 1994, Findings of Fact and Conclusions of Law of the Second Judicial District Court, Silver Bow County, dissolving the marriage, distributing the marital estate and awarding child support, custody and visitation. We affirm in part and reverse in part.

The following issues are raised on appeal:

1. Did the District Court err in awarding child custody and visitation?

2. Did the District Court err in concluding that Respondent did not have to pay child support?

3. Did the District Court err in distributing the marital estate?

John J. DeWitt (John) and Denise DeWitt (Denise) were married on October 10, 1987. Two daughters, now ages 4 and 6, were bom of the marriage. At the time their marriage was dissolved, Denise was employed as a real estate loan officer and John was employed seasonally as a golf pro. The District Court found that both parties were in excellent health and that both have a good opportunity to acquire income and assets in the future. The court noted that Denise has no college degree, and that John has a college degree in marketing.

Both parties requested that the children be placed in their joint custody, and both petitioned to be the primary physical custodian. The District Court, finding that joint custody was in the best interests of the children, awarded joint custody to the parties and designated Denise as the primary physical custodian. The court noted that John’s employment was seasonal and, to accommodate his schedule, awarded him a thirty-day “summer visitation” period during the winter months of January, February, or March. In its custody determination, the court also recognized the parties’ religious background and that John’s extended family lives outside the state of Montana.

The District Court adopted the parties’ stipulation as to the values of the marital assets and the amounts of the marital debts. The court distributed marital assets to Denise in the amount of $145,522.98, and to John in the amount of $35,099.14. The court apportioned all of the parties’ debts, in the amount of $80,177.24, to Denise. The court ordered that the family home be maintained for the benefit of the children, but that Denise was required to pay John $20,000 as his share of the equity in the house when the youngest child reaches age 18. Further, the court ordered that Denise pay $1,200 per year as interest on this obligation.

The court stated that the parties agreed that John would not be required to pay child support until such time as he obtains regular monthly employment. At that time, the court stated that child support obligations should be calculated according to the Uniform Child Support Guidelines.

Denise appeals from the District Court’s rulings on child custody and visitation, child support, and the distribution of the marital estate.

1. Did the District Court err in awarding child custody and visitation?

In reviewing a district court’s award of child custody, we determine whether the district court’s findings are clearly erroneous. In re Marriage of Dreesbach (1994), 265 Mont. 216, 220-21, 875 P.2d 1018, 1021. The findings of fact must be based on substantial credible evidence and the court’s decision will be upheld unless a clear abuse of discretion is shown. Marriage of Dreesbach, 875 P.2d at 1021; In re Marriage of Hunt (1994), 264 Mont. 159, 164, 870 P.2d 720, 723.

In determining child custody, the district court must consider the “best interest” criteria set forth in § 40-4-212, MCA, however, the court is not required to make specific findings on each individual factor. Marriage of Dreesbach, 875 P.2d at 1021; In re Marriage of Merriman (1991), 247 Mont. 491, 493, 807 P.2d 1351, 1353. Here, the Findings of Fact and Conclusions of Law illustrate that the District Court considered the best interest factors. In addition, the court considered the religious traditions of the parties, John’s out-of-state relatives, and John’s summer employment. Substantial credible evidence supports the District Court’s determination of child custody. The District Court’s findings are not clearly erroneous.

2. Did the District Court err in concluding that Respondent did not have to pay child support?

In reviewing a district court’s award of child support, we consider whether the district court abused its discretion. In re Marriage of Craib (1994), 266 Mont. 483, 490, 880 P.2d 1379, 1384. In its Findings of Fact and Conclusions of Law, the District Court stated:

Because of John DeWitt’s present employment status the parties agree that he not be required to pay to Denise DeWitt any monthly child support until such time as he obtains regular employment. At that time, he should notify Denise DeWitt of his employment status and his child support will be calculated in accordance with the child support guidelines of the State of Montana. If John DeWitt does not find regular employment within twelve (12) months from the date of this Decree, he shall present to the Court in writing, proof of his efforts to find employment and the reasons he has not become employed.

Although the District Court stated that “child support will be calculated in accordance with the child support guidelines,” the court did not require either party to complete the Uniform Child Support Guidelines Affidavit. Section 40-4-204(3)(a), MCA, requires that the guidelines must be used in all cases. See also In re Marriage of Brandon (1995), [271 Mont. 149], 894 P.2d 951, 953.

If the court deviates from the guidelines, the court must justify its failure to follow the guidelines with “clear and convincing” evidence. Section 40-4-204(3)(a), MCA; Marriage of Brandon, 894 P.2d at 953. Further, the guidelines require that findings which vary the amount of guideline support must include a statement of the amount of support that would have been ordered under the guidelines without a variance. 46.30.1507(4), ARM.

John argues that he and Denise agreed that he would not be required to pay child support. The District Court’s finding relies upon such a stipulation. Denise argues that no such stipulation or agreement was made by the parties. In either event, the District Court was still required to calculate support according to the Uniform Child Support Guidelines. The guidelines themselves provide that:

A court or administrative hearing officer may vary from the guidelines based on a stipulation or agreement of the parties only if the stipulation or agreement meets the following criteria:
(a) it is in writing executed by the parties;
(b) the parties have signed the stipulation or agreement free of coercion;
(c) it contains specific justification as to why application of the guidelines is unjust or inappropriate; and
(d) it contains a statement of the amount of support that would have been appropriate under the guidelines without the variance.

46.30.1507(5), ARM; Marriage of Brandon, 894 P.2d at 954. Even if John and Denise had stipulated that he would not be required to pay child support until he was regularly employed, the above criteria must still be satisfied before the court can vary the support obligation. Here, none of the criteria are satisfied; there is no written agreement, there is no specific finding that application of the guidelines would be unjust or inappropriate, nor is there a statement of what the support obligation would have been without the variance.

In this case, the District Court did not even have the parties complete the financial affidavits. Since there had not been any determination of support due under the guidelines, it would have been impossible for the District Court to support its variance from the guidelines with clear and convincing evidence. Without first knowing what the guidelines require, it is impossible for the district court (in the first instance) or this Court (on appeal) to know whether a waiver or variance is “unjust” or “inappropriate” in a particular case.

From the record, John’s annual net income and employment situation is not altogether clear. However, we note that except in cases where the parents have extremely low net income, a specific minimum contribution toward child support should be ordered in all cases, even though a parent does not have sufficient net income to meet his or her own self-support reserve needs. Marriage of Brandon, 894 P.2d at 954 (citing 46.30.1538, ARM).

The District Court found that John’s employment opportunities and vocational skills were excellent and that he has a good opportunity to acquire income and assets in the future. The court also noted that John has a college degree in marketing. Yet, the District Court found that aside from the seasonal work as a golf pro “[r]espondent has no other sources of income.” This Court has recognized that:

In cases where the obligor parent is not working or is not working at full earning capacity, the reasons for such a limitation on earnings should be examined. If the reason is a matter of choice, the local job market should be reviewed to determine what a person with the obligor parent’s trade skills and capabilities could earn.

Those typical earnings can then be imputed to the obligor parent.... In re Marriage of Wersland (1991), 249 Mont. 169, 171-72, 814 P.2d 991, 992. In determining John’s income under the guidelines, the District Court should consider imputing income to John if he remains only seasonally employed.

The legislature has stated that the guidelines “must be used in all cases.” “Must” is mandatory and “all” means every. Neither concept leaves room for exception. We conclude that the District Court erred when it did not apply the Uniform Child Support Guidelines and, therefore, we must remand this case for a determination of child support due based upon the guidelines. Marriage of Brandon, 894 P.2d at 954. On remand, if the court chooses to deviate from the guidelines, it must do so with specificity and by presenting clear and convincing evidence for any deviation.

3. Did the District Court err in distributing the marital estate?

The standard of review of a district court’s division of marital property is whether the district court’s findings of fact are clearly erroneous. In re Marriage of Smith (1995), [270 Mont. 263], 891 P.2d 522, 525; In re Marriage of McLean (1993), 257 Mont. 55, 61, 849 P.2d 1012, 1015. Where substantial credible evidence supports the court’s findings and judgment, this Court will not alter the trial court’s decision unless there is an abuse of discretion. In re Marriage of Maedje (1994), 263 Mont. 262, 266, 868 P.2d 580, 583.

Denise and John stipulated as to the marital assets, their value, and the amounts of the marital debts. The District Court adopted that stipulation in its Findings of Fact and Conclusions of Law. Further, the District Court’s findings demonstrate that the court addressed the parties’ income, their use of the family home, and other criteria such as the duration of the marriage and the employability of the parties, as set forth in § 40-4-202, MCA.

This Court will not disturb an equitable apportionment of the marital assets when it is clear that the district court was acting within its discretion. In re Marriage of Danelson (1992), 253 Mont. 310, 319, 833 P.2d 215, 221. Here, it is clear from the record that the District Court was acting within its discretion and the distribution of the marital estate was not clearly erroneous.

Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.

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


source: Caselaw Access Project

license: Public Domain

text:
    STOCKADE ENTERPRISES, Plaintiff and Appellant, v. KEVIN AHL, Defendant and Respondent.
    No. 95-246.
    Submitted on Briefs October 12, 1995.
    Decided October 31, 1995.
    52 St.Rep. 1096.
    905 P.2d 156.
    273 Mont. 520.

      For Appellant: Randall A. Snyder; Snyder & Noble, Bigfork.
    For Respondent: James C. Bartlett; Hash, O’Brien & Bartlett, Kalispell.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Stockade Enterprises, Inc. (Stockade) appeals the Eleventh Judicial District Court’s denial of its motions to modify or to vacate an arbitration award. We affirm.

The dispositive issue on appeal is whether the District Court erred in refusing to partially vacate or to modify the arbitration award.

Stockade commenced this action against Kevin Ahl (Ahl) in an attempt to collect on a construction lien. Pursuant to a written agreement between Stockade and Ahl, the District Court ordered the parties to arbitrate the dispute. The parties signed a Stipulation to appoint an arbitrator. The Stipulation provided in part:

Wilmer E. Windham shall serve as the arbitrator in this litigation, with his decision to be binding on the parties and the Court.... [I]n this case his decision is final and binding and the District Court must adopt his decision as a final judgment.

The court signed the Order appointing Mr. Windham as the arbitrator. The Order reads in part:

[The arbitrator’s] decision shall be final and binding and the District Court shall adopt his decision as a final judgment.

After the arbitrator issued the award, Stockade moved the District Court to vacate or to modify the award on the grounds that the award was beyond the scope of inquiry, in error, and contrary to law. The District Court denied Stockade’s motion to modify the award. In its Order and Rationale, the court declined to perform “an extensive review of the file and the transcript of the arbitration hearing.” Instead, the court determined that judicial review of the arbitrator’s decision was precluded by the parties’ Stipulation and the court’s Order. The court quoted the provision of the Order stating the arbitrator’s decision was final and binding on the parties and the court. Based on the provisions of the Stipulation and Order, the District Court concluded that “there simply is no authority on which this Court can set aside the award.” Accordingly, the court did not review the arbitrator’s decision and made no findings regarding the award.

Did the District Court abuse its discretion in refusing to vacate or modify the arbitration award?

Our standard in reviewing a court’s refusal to modify or vacate an arbitration award is whether the court abused its discretion. May v. First National Pawn Brokers (1994), 269 Mont. 19, 21-22, 887 P.2d 185, 187; Duchscher v. Vaile (1994), 269 Mont. 1, 5, 887 P.2d 181, 184. We note that the parties and the District Court improperly focused their attention on the provisions of the Stipulation and Order to the effect that the arbitrator’s decision is binding and final. The District Court was incorrect in concluding that there is “no authority” authorizing the court to set aside the award. Regardless of the ‘binding” nature of the arbitration procedure, the Montana Uniform Arbitration Act (MUAA) does provide the court with authority to set aside an award. However, judicial review of an arbitration award is strictly limited by the statutory provisions governing arbitration found in the MUAA. Sections 27-5-312 and -313, MCA; May, 887 P.2d at 187; Duchscher, 887 P.2d at 183.

Montana adopted the Montana Uniform Arbitration Act in 1985. Sections 27-5-312 and -313, MCA, establish the grounds to modify, to correct, or to vacate an arbitration award. These sections generally limit the district court’s review to allegations of fraud, partiality, misconduct, excess of power, or technical problems in the execution of the award. Duchscher, 887 P.2d at 183. Section 27-5-312, MCA, provides:

Vacating an award. (1) Upon the application of a party, the district court shall vacate an award if:
(a) the award was procured by corruption, fraud, or other undue means;
(b) there was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party;
(c) the arbitrators exceeded their powers;
(d) the arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of 27-5-213, as to prejudice substantially the rights of a party; or
(e) there was no arbitration agreement and the issue was not adversely determined in proceedings under 27-5-115 and the party did not participate in the arbitration hearing without raising the objection.

Section 27-5-313(1), MCA, provides:

Modification or correction of award by court. (1) Upon application made within 90 days after delivery of a copy of the award to the applicant, the district court shall modify or correct the award if:
(a) there was an evident miscalculation of figures or an evident mistake in the description of any person, thing, or property referred to in the award;
(b) the arbitrators awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or
(c) the award is imperfect in a matter of form not affecting the merits of the controversy.

Thus, the MUAA’s authorization of judicial review of arbitration awards is very limited in scope. We have held that these provisions do not permit a court to review the merits of the controversy. May, 887 P.2d at 190; Duchscher, 887 P.2d at 184. The party seeking to vacate, to modify, or to correct an arbitration award bears the burden of alleging and proving that one of the statutorily enumerated grounds exists. May, 887 P.2d at 189; Duchscher, 887 P.2d at 184. Therefore, in order to trigger the District Court’s authority to review the arbitration award, Stockade had to properly raise one of the grounds in §§ 27-5-312 or -313, MCA. Stockade failed to do so.

Stockade presented the District Court with four issues in support of its motion to modify/vacate the arbitration award:

1. Is there substantial evidence to support the findings of fact and conclusions of law?
2. Does the evidence support a finding that Plaintiff assaulted Defendant and is there a proper award of damages?
3. Can the District Court modify or correct the award in a fashion consistent with the evidence?
4. Was the award of attorneys fees arbitrary and capricious? [Emphasis added.]

None of the above issues raised by Stockade address the limited bases of judicial review set forth in §§ 27-5-312 and -313, MCA. On the contrary, Stockade’s issues all raise questions regarding the sufficiency of the evidence to support the award. Although Stockade’s brief referenced § 27-5-313, MCA, Stockade failed to address the statutory criteria that would trigger judicial review. Instead, Stockade propounded an extremely broad scope of judicial review, as follows: “Here, the Arbitrator abused his discretion, transcended or ignored evidence and did substantial injustice to Plaintiff. In nearly every respect, this Court can modify and correct the award, based solely on the evidence.” Clearly, there is no basis for such a broad standard of judicial review. Neither the District Court nor this Court has any authority to engage in a “sufficiency of the evidence” review of an arbitration award. The District Court understated its statutory authority to vacate or to modify an arbitration award. Nonetheless, under the pleadings in this case, the court correctly concluded that it had no obligation to engage in an extensive review of the transcript to weigh the sufficiency of the evidence. We hold that the District Court did not abuse its discretion in refusing to vacate the award.

To invoke the courts’ power of review, the grounds set forth in §§ 27-5-312 and -313, MCA, must be raised by the party challenging the arbitration award. Stockade advances no grounds that satisfy these criteria. Had either of the parties read our two recent decisions in this area, namely May and Duchscher, they would have known that petitioning the courts to review an arbitration award based on the sufficiency of the evidence is beyond our scope of judicial review.

Affirmed.

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


author: JUSTICE ERDMANN JUSTICE HUNT

text:
    IN THE MATTER OF A.Z.G., a/k/a A.Z.Y., A Youth Under the Age of Eighteen.
    No. 95-129.
    Submitted on Briefs September 28, 1995.
    Decided November 9, 1995.
    52 St.Rep. 1108.
    905 P.2d 1098.
    273 Mont. 525.

      For Appellant: Holly Jo Franz, Gough, Shanahan, Johnson & Waterman, Helena.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Barbara C. Harris, Assistant Attorney General, Helena; Robert L. “Dusty” Deschamps III, Missoula County Attorney; Robert L. Zimmerman, Deputy County Attorney, Missoula.
   JUSTICE ERDMANN

delivered the Opinion of the Court.

This is an appeal of an order of the Youth Court in the Fourth Judicial District Court, Missoula County, suspending AZYs prior commitment to the Department of Family Services (DFS) and placing AZY on probation subject to AZY residing with his father. We reverse and remand for proceedings consistent with this opinion.

The dispositive issue on appeal is whether the Youth Court erred in ordering AZYs placement with his father as a condition of his probation.

FACTS

AZY is a minor, sixteen years of age. He committed the offense of criminal mischief which, if committed by an adult, is in violation of § 45-6-101, MCA (1993), and was found to be a delinquent youth within the meaning of § 41-5-103(7)(a), MCA(1993). The Youth Court placed AZY on probation under the jurisdiction of DFS and released him into the custody of his mother. AZYs mother had been his sole custodian for the previous thirteen years. A subsequent petition was filed alleging AZY violated the conditions of his probation.

The Youth Court held a disposition hearing on the petition to revoke and committed AZY to the custody of DFS with placement at Pine Hills School for boys. The court then suspended the commitment to DFS and placed AZY on probation under the supervision of the Youth Court Probation Department with the condition that AZY move to Seattle, Washington, and reside with his father. From this disposition, AZY and his mother appeal.

DISCUSSION

Did the Youth Court err in ordering the placement of AZY with his father a condition of his probation?

AZY and his mother argue that the Youth Court exceeded its authority in placing AZY outside his home. They contend that § 41-5-523, MCA (1993), limits the Youth Court’s dispositional authority if the court determines that the youth is in need of a placement other than the youth’s own home.

41-5-523. ... (1) If a youth is found to be a delinquent youth or a youth in need of supervision, the youth court may enter its judgment making any of the following dispositions:
(a) place the youth on probation;
(b) commit the youth to the department if the court determines that the youth is in need of placement in other than the youth’s own home, provided that:
(i) the court shall determine whether continuation in the home would be contrary to the welfare of the youth and whether reasonable efforts have been made to prevent or eliminate the need for removal of the youth from the youth’s home. The court shall include a determination in the order committing the youth to the department.

AZY and his mother contend § 41-5-523(1)(b), MCA (1993), provides DFS with the sole authority to place a youth outside of his own home in all circumstances except when a youth is committed to a mental health facility. See also § 41-5-523(1)(j), MCA (1993). AZY and his mother argue that the Youth Court improperly removed AZY from his mother’s home and her sole legal custody and placed him in the care of his father, a noncustodial parent.

The State agrees that if the Youth Court had committed AZY to DFS, the court could not have ordered specific placement. However, the State argues that the Youth Court placed AZY on probation pursuant to §§ 41-5-523(1)(a), -703, MCA (1993), and placed him with his father as a condition of that probation. The State stresses that there are no statutory restrictions to conditions on probation.

The State references an Arizona case where the court upheld probation that required the youth to spend weekends at a detention center while otherwise on probation and living with his parents. The Arizona court concluded that the youth court’s “ability to impose conditions of probation exists even though it is not specifically set forth in the statute.” In re the Appeal in Pima County Juvenile Action No. J-20705-3 (Ariz. Ct. App. 1982), 650 P.2d 1278, 1279.

AZY and his mother dispute that case’s applicability here because Arizona’s statutes provide for a disposition by the court where the youth may be placed with his parents subject to the supervision of the probation officer. See Ariz. Rev. Stat. Ann. § 8-241(A)(2)(a) (1994). In that case, the youth remained under the custody of his parents but was under the probation officer’s supervision on weekends. Under Montana law such a disposition is not available and the case cited is inapplicable to the issue presented here.

The State further argues AZY has “a home” with his father. The Youth Court Act does not define “a youth’s own home” as referred to in § 41-5-523(1)(b), MCA (1993). In Black’s Law Dictionary, home is “[t]hat place in which one in fact resides with the intention of residence ....” Black’s Law Dictionary 374 (ab. 5th ed. 1983). An unmarried minor child’s residence is defined in § 1-1-215(4), MCA (1993), as “the residence of the parent having legal custody or, if neither parent has legal custody, the residence of the parent with whom he customarily resides ....”

DFS’s report to the court noted AZY had not spent any length of time with his father and their contact had been inconsistent. AZY’s father did not have custody of the youth and had not seen him for over a year prior to this action. In addition, we note AZY has been a full-time student in Montana’s schools while residing with his mother. Therefore, we conclude that AZY’s father’s home is not “the youth’s own home” within the meaning of § 41-5-523(1)(b), MCA (1993). Nevertheless, the State asserts that the Youth Court properly considered AZY’s best interests while maintaining a family environment. In doing so, the State argues the court fulfilled the purposes of the Youth Court Act as stated in § 41-5-102, MCA (1993).

The Youth Court concluded it had the authority to place AZY with his father. We review a District Court’s conclusion of law for its correctness. Carbon County v. Union Reserve Coal Co., Inc. (1995), [271 Mont. 459], 898 P.2d 680, 686.

The 1987 amendments to the Youth Court Act, §§ 41-5-101 to -1008, MCA, expanded the role of DFS while it diminished the role of the youth courts. In the Matter of B.L.T. (1993), 258 Mont. 468, 471, 853 P.2d 1226, 1228. Prior to those amendments, the youth court had full authority over placement of youths. Section 41-5-523, MCA (1985). The amendments preserved the youth court’s power to sentence the youth but granted to DFS control over the placement of the youth. In the Matter of the Application of Peterson (1989), 235 Mont. 313, 316, 767 P.2d 319, 321. In Peterson, we upheld that transfer of authority and ruled the legislature had the power to make placement of youths an administrative power. Peterson, 767 P.2d at 321.

Section 41-5-523(1)(b), MCA (1993), provides that the youth court shall “commit the youth to [DFS] if the court determines that the youth is in need of placement in other than the youth’s own home ....” The court stated, in the record, that AZYs mother “does not have the parenting skills necessary to keep [AZY at her residence at the present time.” The court then found it was in AZY’s best interest to reside with his father instead of with his mother. Thus, the court determined continuation in the home would be contrary to AZY’s welfare and such a determination requires the court’s committal of AZY to DFS for placement. Section 41-5-523(1)(b)(i), MCA (1993).

In deciding the youth’s placement, DFS must review recommendations made by the youth placement committee. Section 41-5-527(1), MCA (1993). The legislature, in § 41-5-526(4), MCA (1993), specifically provided that the youth placement committee may recommend to DFS the youth’s placement with his parent or other family member as an alternative to placement in a licensed facility or with a guardian. From this provision, we determine that the legislature intended placement with a noncustodial parent to be no different than any other alternative placement sites outside of the youth’s own home.

We conclude that the placement of AZY outside of his mother’s home was under the authority of DFS. Therefore, we hold that the Youth Court erred in ordering the placement of AZY with his father as a condition of his probation. It is important to note that the legislature revised the Youth Court Act again in 1995 and amended the language of § 41-5-523, MCA (1993), though the question of how those revisions would affect the facts of this case is not before us.

Because of our holding in this issue, we do not find it necessary to discuss the other issues raised by appellant. We reverse and remand for proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, GRAY and LEAPHART concur.

JUSTICE HUNT

dissenting.

“Home” is a word with innumerable definitions, meaning different things to different people. For example, while the majority correctly quoted Black’s Law Dictionary for its definition of “home”, Black’s also defines “home” as “the habitual abode of one’s family.” Black’s Law Dictionary 374 (6th ed. 1990). The habitual abode of half of A.Z.G.’s family is in Seattle, and that is also his home when he is with his father.

The facts of this case support a broader definition of “home.” A psychologist’s examination found A.Z.G. to have a “normal amount of rebelliousness”, with much of his involvement in the legal system stemming from “family conflict.” Court reports from A.Z.G.’s therapists at Mountain View School indicate his problems center around the deteriorating relationship with his mother. The two have a history of unproductive conflict, which on at least one occasion resulted in law enforcement being dispatched to the mother’s house. While A.Z.G. undeniably must be held responsible for his own behavior, reports to the court indicate a need for his mother to work on parenting skills and her tendency to be over-controlling. These same reports indicate the mother continually denies any involvement in her son’s difficulties and refuses to recognize any need to change her own behavior.

Meanwhile, A.Z.G.’s father stands ready to take his son home to an environment free from the cycle of conflict that A.Z.G. and his mother apparently cannot escape. The father has a steady job, a stable home, and a warm and respectful relationship with his son. In ordering probation, the Youth Court allowed the family to work on solving A.Z.G.’s difficulties without the drastic step of transferring custody of him to the State. This decision was reasonable, warranted under the specific facts of this case, and certainly did not constitute an abuse of discretion.

I also disagree with the majority’s declaration that “the legislature intended placement with a non-custodial parent to be no different than any other alternative placement sites outside of the youth’s own home.” I am not persuaded the legislature intended the advantages and disadvantages of parental placement to be weighed equally against the advantages and disadvantages of placement with the State, as represented by an institution or a foster home. Unlike the State, a parent has constitutional rights and responsibilities to a child that have been repeatedly recognized, both by this Court and by the Supreme Court of the United States:

The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one’s children have been deemed essential, basic civil rights of man, and rights far more precious than property rights. It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.

Stanley v. Illinois (1972), 405 U.S. 645, 654, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551, 558 (citations omitted). When, as here, the rights of a parent are potentially to be weighed against the rights of a third party, “it has long been the law in Montana that the right of the natural parent prevails until a showing of a forfeiture of this right.” Henderson v. Henderson (1977), 174 Mont. 1, 10, 568 P.2d 177, 182 (citations omitted). Despite this settled law, the majority opinion may be interpreted to excuse the State from giving greater deference to a parent than it does to a facility or institution. This case therefore sets a troubling precedent.

A.Z.G.’s mother has made a legitimate attempt to parent her son. Though laudable, her attempt apparently has not been completely successful. It was not an abuse of discretion for the Youth Court to let the father have a try. For this reason, I would affirm the judgment of the Youth Court.

JUSTICE TRIEWEILER concurs in the foregoing dissent.


text:
    IN RE THE PETITION OF WILLIAM HARRISON GRAY, a/k/a RICHARD SIMONEAU.
    No. 95-376.
    Decided September 19, 1995.
    52 St.Rep. 1041.
    908 P.2d 1353.
    274 Mont. 1.
   ORDER

Petitioner William Harrison Gray, appearing pro se, moves this Court for permission to allow him to proceed with a petition for post-conviction relief even though the five-year statute of limitation has expired.

In 1986, Petitioner was charged and convicted of robbery. He was sentenced to 40 years in the Montana State Prison plus an additional ten years for the use of a dangerous weapon, the ten years to be served consecutively.

A petitioner may file a petition for post conviction relief with this Court under § 46-21-101, MCA, if he believes his conviction is invalid due to substantive or procedural error. But, § 46-21-102, MCA, provides that such petitions must be filed “within 5 years of the date of the conviction.”

The post-conviction statute of limitation is a jurisdictional limit on litigation and its waiver may only be justified by a clear miscarriage of justice, one so obvious that the judgment is rendered a complete nullity. See, State v. Perry (1988), 232 Mont. 455, 758 P.2d 268; Smittie v. Lockhart (8th Cir. 1988), 843 F.2d 295.

Nine years have elapsed since Petitioner was convicted. Because his petition is untimely under § 46-21-102, MCA, Petitioner asks this Court to grant him leave to proceed with his petition beyond the five year limitation. Petitioner’s claim that he was ignorant of the law for several years and needed time to familiarize himself with the law in order to present a pro se defense, is not an adequate reason to set aside the statute.

Petitioner’s petition was not timely filed and is clearly barred under § 46-21-102, MCA, and should be dismissed.

IT IS HEREBY ORDERED that Petitioner’s petition for post conviction relief is denied.

DATED this 19th day of September, 1995.

J. A. Turnage, Chief Justice

James C. Nelson, Justice

Karla M. Gray, Justice

William E. Hunt, Sr., Justice

William Leaphart, Justice


text:
    APRIL 1995 CALENDAR
    FROM: The District Court of the 13th Judicial District. County of Yellowstone.
    STATE OF MONTANA, Plaintiff, vs. Craig Lee Barth, Defendant.
    NO. DC 93-077 DECISION
    DATED this 19th day of April, 1995.
   On November 30, 1994, the defendant’s previous sentence dated 12th day of May, 1993, was duly revoked and the defendant was resentenced for the crimes of Count I: Domestic Abuse, a Felony and Count II: Domestic Abuse, a Felony. Wherefore, it is ordered, adjudged and decreed that the said defendant be committed to the Department of Corrections and Human Services to be placed in an appropriate community based program, facility or a State Correctional Institution, for custody, care and treatment for the term of five (5) years on each count to run concurrently with each other. In all other respects, the previous Orders, conditions and reasons of this Court stated on 12th day of May, 1993, shall remain unchanged and are reimposed and shall continue as if set forth herein, all under the authority of the Department of Corrections and Human Services and defendant’s Supervising Officer. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility for a total of ninety-four (94) days. The defendant is further notified that the law imposes upon him the duty to pay a supervisory fee of one hundred twenty dollars ($120.00) a year prorated at ten dollars ($10.00) a month for the number of months that he is hereunder supervision. This fee is payable to the Clerk of Court.

On March 17, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

Done in open Court this 17th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.

The Sentence Review Board wishes to thank Craig Barth for representing himself in this matter.


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. Leslie James Bodnar, Defendant.
    NO. 11241 DECISION
    DATED this 19th day of April, 1995.
   On October 3,1994, the defendant was committed to the Department of Corrections for a term of ten (10) years on Count I, Criminal Mischief, a Felony, for suitable placement, which may include an appropriate community based program, facility or a State Correctional Institution. The defendant is also sentenced to a term of six (6) months on Count II, Criminal Mischief, a Misdemeanor, in the Missoula County Jail. Said sentences shall run concurrently with each other. It is the recommendation of the Court that the defendant be considered for placement at the Swan River Correctional Training Center. After successful completion of the Swan River Program, it is further recommended that the defendant be placed in a pre-release center. It is the recommendation of the court that as a condition of any parole the defendant shall be required to pay restitution through the Clerk of the District Court in the amount of Six Thousand Three Hundred Twenty and 91/100 Dollars ($6,320.91). As restitution is received by the Clerk of Court, the restitution shall be disbursed to Safeway, 610 West Broadway, Missoula, MT 59802, in the amount of Six Thousand Eighty-six and 41/100 Dollars ($6,086.41) and to McDonald (Armstrong Investments), 1720 Streamside, Missoula, MT 59802, in the amount of Two Hundred Thirty-four and 50/100 Dollars ($234.50).

On March 16, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

Done in open Court this 16th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.

The Sentence Review Board wishes to thank Leslie Bodnar for representing himself in this matter.


author: JUSTICE TRIEWEILER JUSTICE LEAPHART, JUSTICE GRAY,

text:
    PAUL CASAROTTO and PAMELA CASAROTTO, Plaintiffs and Appellants, v. NICK LOMBARDI and DOCTOR’S ASSOCIATES, INC., Defendants and Respondents, and DANIEL L. and DEB HUDSON, and D&D SUBWAY CORPORATION, Defendants.
    No. 93-488.
    Submitted August 22, 1995.
    Decided August 31, 1995.
    52 St.Rep. 911.
    901 P.2d 596.
    274 Mont. 3.

      For Appellant: Grant D. Parker (argued) and Philip D. Tawney, Mullendore, Tawney & Watt, Missoula.
    For Respondent: Alan G. Schwartz (argued) and Ian E. Bjork-man, Wiggin & Dana, New Haven, Connecticut; L. D. Nybo, Conklin, Nybo, Leveque & Murphy, Great Falls.
    For Amici Curiae: Lawrence Anderson, Attorney at Law, Great Falls (Montana Trial Lawyers Association); Michael A. Bowen and Michael G. McCarty, Foley & Lardner, Milwaukee, Wisconsin (International Franchise Association; Securities Industry Association; Snap-On Tools Corporation).
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

Plaintiffs Paul and Pamela Casarotto filed this suit in the District Court for the Eighth Judicial District in Cascade County to recover damages which they claim were caused by the defendants’ breach of contract and tortious conduct. Defendants Nick Lombardi and Doctor’s Associates, Inc., (DAI) moved the District Court for an order dismissing plaintiffs’complaint, or in the alternative, staying further judicial proceedings pending arbitration of plaintiffs’ claims pursuant to a provision in DATs franchise agreement with plaintiffs which required that disputes “arising out of or relating to” that contract be settled by arbitration. The District Court granted defendants’ motion, and ordered that further judicial proceedings be stayed until arbitration proceedings were completed in accordance with the terms of the parties’ agreement. Plaintiffs appealed from that order, and on December 15, 1994, we reversed the order of the District Court and remanded this case to that court for further proceedings. Casarotto v. Lombardi (1994), 268 Mont. 369, 886 P.2d 931. Following this Court’s decision, the defendants petitioned the Supreme Court of the United States for a writ of certiorari. That petition was granted, and on June 12, 1995, the United States Supreme Court ordered that the December 15, 1994, judgment of this Court be vacated, and remanded this case to the Supreme Court of Montana for further consideration in light of that Court’s decision in Allied-Bruce Terminix Cos. v. Dobson (1995), 513 U.S._, 115 S. Ct. 834, 130 L. Ed. 2d 753. Having further considered our prior decision in light of Dobson, we now reaffirm and reinstate our prior opinion.

FACTUAL BACKGROUND

Paul and Pamela Casarotto entered into a franchise agreement with DAI which allowed them to open a Subway Sandwich Shop in Great Falls, Montana. DAI’s franchise agreement included on page nine a provision which required that controversies or claims related to the contract shall be settled by arbitration in Bridgeport, Connecticut. However, the franchise agreement did not include notice on the front page to the effect that the contract was subject to arbitration, as required by § 27-5-114(4), MCA.

The Casarottos filed this action in the District Court based on their allegations that DAI breached its agreement with them, defrauded them, and engaged in other tortious conduct, all of which resulted in loss of business and the resulting damage.

DAI moved to dismiss the Casarottos’ claim or to stay further judicial proceedings pending arbitration pursuant to the arbitration provision in its franchise agreement. The District Court granted DATs motion to stay further judicial proceedings pursuant to 9 U.S. C. § 3, which is part of the Federal Arbitration Act found at 9 U.S.C. §§ 1-15 (1988).

On appeal from the District Court’s order, we considered whether Montana’s notice requirement was preempted by the Federal Arbitration Act in light of the U.S. Supreme Court’s recent decision in Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University (1989), 489 U.S. 468, 109 S. Ct. 1248, 103 L. Ed. 2d 488. In that case, the Supreme Court stated that:

The FAA contains no express pre-emptive provision, nor does it reflect a congressional intent to occupy the entire field of arbitration. But even when Congress has not completely displaced state regulation in an area, state law may nonetheless be pre-empted to the extent that it actually conflicts with federal law — that is, to the extent that it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed.2d 581 (1941). The question before us, therefore, is whether application of Cal.Civ.Proc. Code Ann. § 1281.2(c) to stay arbitration under this contract in interstate commerce, in accordance with the terms of the arbitration agreement itself, would undermine the goals and policies of the FAA. We conclude that it would not.

Volt, 489 U.S. at 477-78, 109 S. Ct. at 1255 (citation omitted; emphasis added).

Based on the cited language from Volt, we concluded that the nature of our inquiry was whether Montana’s notice requirement found at § 27-5-114(4), MCA, would “undermine the goals and policies of the FAA.” We concluded that it does not. Casarotto, 886 P.2d at 931. We explained our conclusion as follows:

Our conclusion that Montana’s notice requirement does not undermine the policies of the FAA is based on the Supreme Court’s conclusion that it was never Congress’s intent when it enacted the FAA to preempt the entire field of arbitration, and its further conclusion that the FAA does not require parties to arbitrate when they have not agreed to do so. That Court held that the purpose of the FAA is simply to enforce arbitration agreements into which parties had entered, and acknowledged that the interpretation of contracts is ordinarily a question of state law. Volt, 489 U.S. at 474, 109 S.Ct. at 1253.

Presumably, therefore, the Supreme Court would not find it a threat to the policies of the Federal Arbitration Act for a state to require that before arbitration agreements are enforceable, they be entered knowingly. To hold otherwise would be to infer that arbitration is so onerous as a means of dispute resolution that it can only be foisted upon the uninformed. That would be inconsistent with the conclusion that the parties to the contract are free to decide how their disputes should be resolved.

Montana’s notice requirement does not preclude parties from knowingly entering into arbitration agreements, nor do our courts decline to enforce arbitration agreements which are entered into knowingly.

Therefore, we conclude that Montana’s notice statute found at § 27-5-114(4), MCA, would not undermine the goals and policies of the FAA, and is not preempted by 9 U.S.C. § 2 (1988).

Casarotto, 886 P.2d at 938-39.

On January 18, 1995, subsequent to our decision in this case, the U.S. Supreme Court decided Dobson. On June 12, 1995, the same Court vacated our prior Casarotto decision and remanded the matter to this Court for further consideration in light of the Dobson decision.

In Dobson, the plaintiffs were the assignees of a contract with Terminix for life-time protection against termites. They sued Terminix in Alabama state court when they found their house “swarming with termites.” Terminix moved the court for a stay pursuant to § 2 of the Federal Arbitration Act (9 U.S.C. § 2 (1988)) so that arbitration could proceed pursuant to a provision for arbitration in the termite protection plan. The stay was denied. The Supreme Court of Alabama upheld the denial on the basis of Ala. Code § 8-1-41(3) (1993), which made written, predispute arbitration agreements invalid and unenforceable. The Alabama court concluded that its state statute was not preempted by the Federal Arbitration Act because the connection between the termite contract and interstate commerce was too slight.

In the court’s view, the Act applies to a contract only if “ ‘at the time [the parties entered into the contract] and accepted the arbitration clause, they contemplated substantial interstate activity.’ ” Despite some interstate activities (e.g., Allied-Bruce, like Tbrminix, is a multistate firm and shipped treatment and repair material from out of state), the court found that the parties “contemplated” a transaction that was primarily local and not “substantially” interstate.

Dobson, 513 U.S. at_, 115 S. Ct. at 837 (citations omitted).

Before addressing the issue presented, the Dobson majority reiterated its conclusion that the purpose of the Federal Arbitration Act was to “overcome judicial hostility to arbitration agreements and that applies in both federal and state courts.” Dobson, 115 S. Ct. at 835. The Court then went on to conclude that the language in § 2 of the Act which applied its provisions to any “contract evidencing a transaction involving commerce” had broader significance than the words of art “in commerce,” and therefore, covered more than persons or activities “within the flow” of interstate commerce. Dobson, 115 S. Ct. at 839. The Court held that the word “involving,” like “affecting,” signaled an intent on the part of Congress “to exercise Congress’s commerce power to the full,” Dobson, 115 S. Ct. at 841, and secondly that the Act’s preemptive force applies to transactions which, in fact, involve interstate commerce, even though a connection to interstate commerce may not have been contemplated by the parties at the time they entered into the agreement. For these reasons, the judgment of the Supreme Court of Alabama was reversed. Dobson, 115 S. Ct. at 843.

After careful review, we can find nothing in the Dobson decision which relates to the issues presented to this Court in this case. Our prior Casarotto decision did not involve state law which made arbitration agreements invalid and unenforceable. Our state law simply requires that the parties be adequately informed of what they are doing before they enter into an arbitration agreement. Our decision did not involve an analysis of what was meant by “involving commerce” or “affecting commerce” or “in commerce.” We assumed, in the Casarotto decision, that the transaction with which we were concerned involved interstate commerce, and that any state law which frustrated the purposes of the Federal Arbitration Act would be preempted.

Finally, there is no suggestion in the Dobson decision that the principles from Volt on which we relied have been modified in any way. To our knowledge, it is still the law, therefore, that state law is only preempted to the extent that it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Volt, 489 U.S. at 477, 109 S. Ct. at 1255 (citing Hines v. Davidowitz (1941), 312 U.S. 52, 67, 61 S. Ct. 399, 404, 85 L. Ed. 2d 581).

While the Dobson decision does include a discussion extolling the virtues of arbitration as a “less expensive alternative to litigation,” Dobson, 513 U.S. at_, 115 S. Ct. at 843 (apparently based on input from the American Arbitration Association), and while that conclusion is at odds with facts set forth in Justice Trieweiler’s concurring opinion to our earlier decision, the concurring opinion was not the basis for our decision.

For these reasons, we conclude, after thorough review of our earlier decision in light of the U.S. Supreme Court’s decision in Dobson, that the decisions are not inconsistent, and therefore, that there is no basis for modifying or reversing our earlier opinion. We reaffirm and reinstate our opinion dated December 15, 1994, in the above matter, and remand this case to the District Court for further proceedings consistent with this opinion.

JUSTICES NELSON, HUNT and LEAPHART concur.

JUSTICE LEAPHART,

specially concurring.

Justice John C. Harrison was in the majority in this Court’s initial decision in Casarotto v. Lombardi (1994), 268 Mont. 369, 886 P.2d 931. Justice Harrison has since retired. As the successor to Justice Harrison, it is incumbent on me to review that decision in light of the remand from the United States Supreme Court. Having reviewed the Casarotto decision, I specially concur with the Court’s conclusion that Montana’s notice requirement in § 27-5-114(4), MCA, does not undermine the goals and policies of the FAA and is not preempted by 9 U.S.C. § 2 (1988). I have also reviewed the United States Supreme Court’s decision in Allied-Bruce Terminix Cos. v. Dobson (1995), 513 U.S._, 115 S.Ct. 834, 130 L.Ed.2d 753, and I see no reason why the principles enunciated in that decision should have any effect upon this Court’s decision in Casarotto.

In Dobson, the United States Supreme Court held that the FAA preempts anti-arbitration state statutes which invalidate arbitration agreements. Section 27-5-114(4), MCA, cannot be characterized as anti-arbitration nor does it invalidate arbitration agreements. On the contrary, it is one section of Montana’s Uniform Arbitration Act which specifically recognizes arbitration agreements: “A written agreement to submit an existing controversy to arbitration is valid and enforceable except upon such grounds as exist at law or in equity for the revocation of a contract.” Section 27-5-114(1), MCA. The notice requirement of subsection (4) merely protects the consumer by requiring that notice of an arbitration provision be conspicuously placed on the front page of the contract. This does not undermine the pro-arbitration policy of the FAA. Rather, it furthers the policy of meaningftd and consensual arbitration by helping ensure that the consumer who signs what is most often a nonnegotiated, form contract, knowingly agrees to arbitration in the event of a dispute. I see no inconsistency between Dobson and our decision in Casarotto and I specially concur in the Court’s decision to reaffirm and reinstate its December 15,1994 opinion.

JUSTICE GRAY,

dissenting.

I dissent from the Court’s opinion and order and its reinstatement of its prior opinion in this case. My dissent is based on the procedures used by the Court in addressing the United States Supreme Court’s vacating of our earlier opinion and remanding for our reconsideration based on its decision in Allied-Bruce Terminix Cos. v. Dobson (1995), 513 U.S._, 115 S.Ct. 834, 130 L.Ed.2d 753. I also dissent from the Court’s conclusion that nothing in the Dobson case relates to the issues presented to this Court. In dissenting, I also reaffirm and reinstate my earlier dissent in this case.

A remand for reconsideration to this Court from the United States Supreme Court is an uncommon occurrence for which we have no procedural rules or practices in place. Counsel for the parties were left without guidance as to how they should proceed in order to be heard during this phase of the case. Counsel for the defendants/respondents requested the opportunity to brief the issues raised by the United States Supreme Court’s remand and to present oral argument. Without so much as a mention of this request, the Court apparently denies it. While one can only speculate on the reasons for such an implicit decision, one must assume that the Court is simply unwilling to consider any analysis that would require a change in the result it remains determined to reach. I cannot join in such an arrogant and cavalier approach to this important case on remand from the United States Supreme Court.

More importantly, I disagree with the Court’s conclusion that nothing in Dobson relates to the issues before us. While I agree that the substantive issue addressed at length in Dobson is not before us here, I read more importance into the early language in Dobson than does the Court. In Dobson, the United States Supreme Court reiterates the fundamental premise of the Federal Arbitration Act by citing to Volt, the very case which this Court erroneously interprets and on which it premises its erroneous decision, for the proposition that “the basic purpose of the Federal Arbitration Act is to overcome courts’ refusals to enforce agreements to arbitrate.” Dobson, 513 U.S. at_, 115 S.Ct. at 838; citing Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. (1989), 489 U.S. 468, 474, 109 S.Ct. 1248, 1253, 103 L.Ed.2d 488. The Supreme Court goes on to say that “[n]othing significant has changed in the 10 years subsequent to Southland; no later cases have eroded Southland’s authority[.]” Dobson, 513 U.S. at_, 115 S.Ct. at 839. It is this latter statement on which I believe we must focus in reconsidering our decision here. The Court refuses to do so.

I continue to believe that this Court erroneously interprets Volt, which was decided by the Supreme Court five years after Southland. Volt is clearly distinguishable on its facts from the case before this Court and cannot properly serve as a basis for the result the Court reaches. Volt is neither inconsistent with, nor a retrenchment from, Southland, as this Court suggested in its earlier opinion and suggests again today. This is the message I take from the Supreme Court’s statement in Dobson that “no later cases have eroded Southland’s authority;” this is the portion of this Court’s earlier opinion to which I believe the Supreme Court was directing our attention on remand.

For the reasons stated in my earlier dissent, it is my view that application of Montana’s notice statute is preempted by the Federal Arbitration Act in this case because application of that statute undercuts, undermines and renders unenforceable the parties’ agreement to arbitrate. This view is entirely consistent both with Southland and with a proper interpretation of Volt. Therefore, I dissent from the Court’s opinion and order and reinstate my prior dissent in this case.

CHIEF JUSTICE TURNAGE and JUSTICE WEBER join in the foregoing dissent of JUSTICE GRAY.


text:
    FROM: The District Court of the 13th Judicial District. County of Yellowstone.
    STATE OF MONTANA, Plaintiff, vs. Shawn K. Bresnahan, Defendant.
    NO. DC 93-153 DECISION
    DATED this 19th day of April, 1995.
   On January 13, 1994 the defendant was sentenced to a term of five (5) years in Montana State Prison for the offense of Criminal Possession of Dangerous Drugs, a Felony. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility in the amount of 196 days. It is further ordered that the defendant shall pay to the Clerk of District Court the sum of Twenty Dollars ($20.00) for this conviction pursuant to statute 46-18-236, Montana Code Annotated. The Clerk of District Court is hereby ordered to deliver the said sum of Twenty Dollars ($20.00) to the Treasurer of this County. The defendant is further notified that the law imposes upon him the duty to pay a supervisory fee of One Hundred Twenty Dollars ($120.00) a year prorated at Ten Dollars ($10.00) a month for the number of months that he is hereunder Supervision. This fee is payable to the Clerk of Court.

On March 17, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

Done in open Court this 17th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.

The Sentence Review Board wishes to thank Shawn Bresnahan for representing himself in this matter.


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. Daryl Wayne Campbell, Defendant.
    NO. 10265 DECISION

      DATED this 19th day of April, 1995.
   On November 30, 1994, the defendant was sentenced to a term of twenty (20) years on Count I: Burglary, a Felony and to a term often (10) years on Count II: Bail Jumping, a Felony, in the Montana State Prison. Said sentences shall run concurrently with each other and concurrently with the sentence imposed in federal court. Defendant shall receive credit for time served at Missoula County Jail from June 28, 1992, through September 3, 1992; from October 19, 1994, through October 26, 1994; and from November 16, 1994, through date of sentencing, November 30, 1994, in the amount of ninety-one (91) days. It is the recommendation of the Court that as a condition of any parole the defendant shall abide by the following conditions: (1) the Defendant shall report in person to the Probation Office in the district in which the defendant is released within 72 hours of release from the custody of the Bureau of Prisons; (2) the defendant shall not possess a firearm or destructive device; (3) the defendant shall not possess or use a controlled substance; (4) the defendant shall participate in substance abuse program as directed by the U.S. Probation Office; the defendant shall submit to urinalysis testing for the detection of alcohol and/or drugs; and provisions as set out in the Judgment in United States District Court Cause No. CR 94-39-BLG-JDS.

On March 16, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

The Sentence Review Division believes that the court thoroughly reviewed the defendant’s record and the record clearly showed a pre-sentence investigation was waived but that the sentencing judge had information concerning the defendant’s past history and there was sufficient evidence to impose the sentence that was given.

Done in open Court this 16th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.

The Sentence Review Board wishes to thank Daryl Wayne Campbell for representing himself in this matter.


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. Donald Patrick Casey, Defendant.
    NO. 11144 DECISION
   On September 19, 1994, the defendant was committed to the Department of Corrections for a term of ten (10) years for suitable placement, which may include an appropriate community based program, facility, or a State correctional institution. Said sentence shall run consecutively to the sentence imposed in Cause No. 11138. Defendant shall receive credit for time served at Missoula County Jail from July 21, 1994, through date of sentencing, September 19, 1994, in the amount of sixty-one (61) days. It is the recommendation of the Court that the defendant shall enter and successfully complete the Butte Pre-Release center program.

DATED this 19th day of August, 1995.

On March 16, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence will remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

Done in open Court this 16th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.

The Sentence Review Board wishes to thank Donald Casey for representing himself in this matter.


text:
    FROM: The District Court of the 4th Judicial County of Missoula. District.
    STATE OF MONTANA, Plaintiff, vs. Donald Patrick Casey, Defendant.
    NO. 11138 DECISION
   On September 14, 1994, the defendant was committed to the Department of Corrections for a term of ten (10) years for suitable placement, which may include an appropriate community based program, facility, or a State correctional institution. Pursuant to 46-18-202(e), M.C.A., the Court imposes as a condition of any parole or early release that the defendant shall be required to pay a fee through the Clerk of the District Court in the amount of Twenty Dollars ($20.00) to go to the County Attorney Surcharge Fund as provided in Section 46-18-236, M.C.A.; that the defendant shall pay the cost of prosecution in the amount of One Hundred Dollars ($100.00); the defendant shall reimburse Missoula County for the cost of the defendant’s court appointed attorney in the amount of Fifty Dollars ($50.00); the defendant shall pay restitution in the amount of One Thousand Nine Hundred Ninety-seven and 29/100 Dollars ($1,997.29); the defendant shall pay a fine to go to the community service program in the amount of Eighty-five Dollars ($85.00); and that the defendant shall pay one-half of the cost of incarceration in the amount of One Thousand Six Hundred Forty Dollars ($1,640.00) and shall perform community service for the other one-half of the cost of incarceration as directed by the Community Service Program Coordinator; and that the defendant shall pay a probationary supervision fee of Ten Dollars ($10.00) per month or One Hundred Twenty Dollars ($120.00) per year, pursuant to MCA 46-23-10. The restitution shall be disbursed victims as set out in the attached restitution list. The defendant shall pay the financial obligations on a schedule which the defendant shall devise with the probation officer as soon as possible after the defendant is released, if the defendant is released. Defendant shall receive credit for time served at Missoula County Jail from May 12, 1994, through June 6, 1994; and from July 21, 1994, through date of sentencing, September 14, 1994, in the amount of eighty-two (82) days.

DATED this 19th day of April, 1995.

On March 16, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence will remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

Done in open Court this 16th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.

The Sentence Review Board wishes to thank Donald Casey for representing himself in this matter.


text:
    FROM: The District Court of the 20th Judicial District. County of Lake.
    STATE OF MONTANA, Plaintiff, vs. Joseph Shadow Clark, Defendant.
    NO. DC 93-101 DECISION
   On July 27, 1994 the defendant was sentenced to Montana State Prison for a term of one hundred (100) years on Count I, Deliberate Homicide, a Felony, with the addition of ten (10) years for the use of a weapon; a term of one hundred (100) years on Count II, Deliberate Homicide, a Felony, with the addition of ten (10) years for the use of a weapon; and forty (40) years on Count III, Aggravated Burglary, a Felony. The sentence imposed on Count II shall run consecutively to the sentence imposed on Count I. The sentence imposed on Count III shall run concurrently with the sentences imposed on Counts I and II, for a total sentence of two hundred twenty (220) years, with none of that time suspended. The defendant shall receive credit for time served in Oregon and the Lake County Jail on this offense, which as of the date of judgment totals two hundred one (201) days. It is further ordered, that as an additional restriction on the sentence, the defendant shall be ineligible for parole and participation in the supervised release program until he has attained the age of sixty (60) years. The court further orders that the defendant shall pay surcharges of sixty dollars ($60.00), as required by law, which shall be paid to the Clerk of the District Court.

DATED this 19th day of April, 1995.

On March 17, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was represented by Robert Long, County Attorney from Poison.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

Done in open Court this 17th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.

The Sentence Review Board wishes to thank Joseph Clark for representing himself in this matter and also Robert Long, County Attorney from Poison for representing the State.


text:
    FROM: The District Court of the 4th Judicial District. County of Mineral.
    STATE OF MONTANA, Plaintiff, vs. Francis Joel Deyo II, Defendant.
    NO. C-645-6 DECISION
   On August 24, 1994, the defendant was sentenced to the Montana State Prison for a term of ten (10) years for the crime of Theft, a Felony. He is designated a non-dangerous offender for purpose of parole eligibility and the Court strongly recommends that in the event he is paroled such parole be only to a Pre-Release Center. The defendant is given credit for eighty-nine (89) days previously served in custody at the Mineral County Jail. Five (5) years of the aforementioned sentence are hereby suspended subject to conditions as stated in the August 24,1994 Judgment.

On March 16, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

DATED this 19th day of April, 1995.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

Done in open Court this 16th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.

The Sentence Review Board wishes to thank Francis Deyo for representing himself in this matter.


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. Gary Levin Joseph Duff, Defendant.
    NO. 9697 DECISION
   On November 13, 1991, the defendant was sentenced to a term of twenty (20) years in the Montana State Prison for the offense of Count I: Aggravated Assault, a Felony and to a term of ten (10) years each on Counts II and III: Assault, a Felony, also to be served in the Montana State Prison. Counts II and III shall run concurrent with each other but consecutive to the sentence imposed in Count I. That for the use of a weapon during the commission of these offenses, the defendant is sentenced to ten (10) years in the Montana State Prison. Said sentence shall run consecutive with the sentences imposed in Count I, II and III. Defendant shall receive credit for time served at Missoula County Jail from May 7,1991, through August 2,1991, for eighty-eight (88) days. It is further ordered that the defendant shall pay a fee through the Clerk of the District Court in the amount of Sixty Dollars ($60.00) ($20.00 on each count), according to a schedule as set by his probation officer, to go to the County Attorney Surcharge Fund as provided in Section 46-18-236, M.C.A. It is the recommendation of the Court that as a condition of parole that the defendant be required to pay restitution to the victim for medical expenses.

On March 17, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Moira Murphy, legal intern from the Montana Defender Project. The state was represented by Fred VanValkenburg, County Attorney from Missoula.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall remain the same as originally imposed.

DATED this 19th day of April, 1995.

The Sentence Review Board does not disagree with Judge McLean’s analysis of this case, or with the sentence imposed. All relevant factors were weighed by the District Judge. The sentence is not excessive under the circumstances. The dangerous designation is warranted under the circumstances of the case. It is indeed unfortunate that a man’s youth and middle years are to be spent in prison, however, this was caused by his own actions. The consequences to the victim are very severe and simply cannot be tolerated. The sentencing Judge took into account the fact that the defendant had no prior felonies in imposing sentence.

Done in open Court this 17th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.

The Sentence Review Board wishes to thank Moira Murphy for representing Gary Duff in this matter and also wishes to thank Fred VanValkenburg, County Attorney from Missoula for representing the State.


text:
    FROM: The District Court of the 5th Judicial District. County of Beaverhead.
    STATE OF MONTANA, Plaintiff, vs. James W. Farber, Defendant.
    NO. DC 92-2429 DECISION
   On May 27, 1994, the defendant’s suspended sentence for the offense of Theft, a Felony, previously granted the defendant by this Court’s Order of July 2, 1993 was revoked. The defendant is hereby sentenced to ten (10) years confinement in the Montana State Prison. That the sentence of ten (10) years confinement of the said Defendant to the Montana State Prison for the offense of Theft, a Felony, is hereby ordered and directed to be served concurrently with and not consecutively with that certain Judgment, Order and Sentence made and entered by the Montana Eighteenth Judicial District Court, Gallatin County, Montana, under criminal cause number DC 92-227, made and entered on the 18th day of May, 1994, and shall be served concurrently with and not consecutively with that certain judgment and sentence made and entered by the District Court of the Second Judicial District, Silver Bow County, Montana, in cause number 92-CR-19. The defendant shall be ineligible for parole and participation in any supervised release program while serving his judgment and sentence herein. The said defendant is hereby granted and awarded three (3) days for time served in the Beaverhead County Jail while awaiting judgment and sentence herein.

On March 16, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Bill Hristco, Attorney from Dillon. The state was represented by Tom Scott, County Attorney from Dillon.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence remain the same as originally imposed.

DATED this 19th day of April, 1995.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

Considering chances given to avoid prison, warnings, and the conduct of the defendant, the decision that defendant shall not be eligible for parole or pre-release programs is appropriate for the protection of society.

Done in open Court this 16th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Robert Boyd, Member.

The Sentence Review Board wishes to thank Bill Hristso, Attorney from Dillon for his assistance to the defendant and to this Court; and would also like to thank Tom Scott, County Attorney from Dillon for appearing on behalf of the State of Montana.


text:
    FROM: The District Court of the 18th Judicial District. County of Gallatin.
    STATE OF MONTANA, Plaintiff, vs. Charles Fisch, Defendant.
    NO. DC 93-87 DECISION
   On October 28, 1993, the defendant was sentenced to serve a period of fifteen (15) years at the Montana State Prison, with five (5) years suspended for the offense of Aggravated Assault, a Felony. For the use of a weapon in the commission of the offense of Aggravated Assault the defendant shall serve a period of seven (7) years at the Montana State Prison. The sentences shall be served consecutively. The defendant shall receive credit for 167 days previously served at the Gallatin County Detention Center from May 13,1993, through October 27,1993, and for such additional days that he serves at the Detention Center until he is transferred to the Montana State Prison. The defendant is designated a dangerous offender for purposes of parole release. The defendant shall pay restitution in the amount of $16,160.94 ($12,733.94 to Bozeman Deaconness Hospital, $2,223.00 to Dr. Charles Rinker and $1,204.00 to the anesthesiologist) as a condition of the suspended sentence. The Court requests and recommends that the Board of Pardons and Parole impose the payment of restitution upon the defendant as a condition of his release on parole.

On March 16, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was represented by Mike Salvagni, County Attorney from Bozeman.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence will remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

DATED this 19th day of April, 1995.

The Sentence Review Division also believes that Judge Olson took some pains to consider the dangerous designation and reached a decision that this board cannot disagree with.

Done in open Court this 16th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.

The Sentence Review Board wishes to thank Charles Fisch for representing himself in this matter and also Mike Salvagni, County Attorney from Bozeman for representing the State.