author: CHIEF JUSTICE TURNAGE JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. AARON T. HENDERSON, Defendant and Respondent.
    No. 97-631.
    Submitted on Briefs August 13, 1998.
    Decided September 18, 1998.
    1998 MT 233.
    55 St.Rep. 980.
    291 Mont. 77.
    966 P.2d 137.

      For Appellant: Honorable Joseph P. Mazurek, Attorney General; Patricia J. Jordan, Assistant Attorney General, Helena; Dennis Paxinos, County Attorney; Melanie Logan, Deputy County Attorney, Billings.
    For Respondent: William F. Hooks, Appellate Defender, Helena.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

¶1 The Thirteenth Judicial District Court, Yellowstone County, granted a motion suppressing all of the evidence in the State’s case against Aaron T. Henderson for two felony counts of criminal possession of dangerous drugs, a misdemeanor count of possession of alcohol by a minor and a misdemeanor count of DUI. The State of Montana appeals. We reverse the decision of the District Court.

ISSUES

¶2 1. Did the District Court err in suppressing the State’s evidence on the grounds that the arresting officer lacked a particularized suspicion to stop Henderson’s motor vehicle?

¶3 2. Did the District Court err in suppressing the State’s evidence on the grounds that the arresting officer exceeded the permissible scope of the investigatory stop?

BACKGROUND

¶4 On May 3,1997, at approximately 7:40 p.m., Laurel City Police Officer Mike Guy (Officer Guy) observed Henderson driving a motor vehicle displaying neither a front nor rear license plate. Officer Guy turned to follow Henderson and observed what appeared to be a twenty or sixty-day temporary tag located in the rear window. Due to the darkness of the vehicle’s tinted windows, however, Officer Guy was unable to determine whether the paper in the window was in fact a valid temporary tag.

¶5 Officer Guy activated the overhead lights on his squad car to signal Henderson to pull over. When Henderson failed to respond to the overhead lights, Officer Guy activated his air horn. Henderson again failed to respond to the officer’s signal, and Officer Guy activated his air horn a second time. Approximately two and one-half blocks from where the officer first signaled him, Henderson finally pulled his vehicle into a driveway and stopped. Henderson’s delay in responding to Officer Guy’s direction to pull over raised a suspicion in the officer that the driver might be impaired.

¶6 Once the vehicle was stopped, Officer Guy observed one of the passengers attempting to exit the vehicle, which further raised his suspicions. Also, because of the dark tinting on the windows, he could not determine how many persons were in the vehicle, where their hands were, or whether there were any weapons inside the vehicle. Officer Guy grew concerned about his safety at this point and instructed Henderson and his passengers to remain inside the vehicle as he approached.

¶7 Officer Guy did not immediately verify the validity of the rear window sticker, but instead went up to Henderson’s window, identified himself, informed Henderson of the purpose of the stop, and asked to see Henderson’s driver’s license, proof of insurance and registration. During this exchange, Officer Guy became aware of a strong smell of alcohol emanating from the vehicle. The officer further observed that Henderson’s speech was slurred and thick. Based on these observations, Officer Guy requested that Henderson perform a series of field sobriety tests and a breath test. When Henderson failed two out of three of the field sobriety tests and registered a .104 blood alcohol concentration on the breath test, he was arrested for driving under the influence of alcohol. While performing a search of the vehicle incident to arrest, Officer Guy found alcohol, marijuana and LSD in the passenger compartment.

¶8 Following the arrest, Officer Guy made an inspection of the temporary sticker located in the rear window of the vehicle. Although it was still daylight, it was necessary for Officer Guy to employ a flashlight in order to read the sticker through the tinting on the window. Officer Guy’s inspection revealed that the sticker was indeed a valid temporary vehicle purchase tag.

STANDARD OF REVIEW

¶9 Our standard of review of a trial court’s grant of a motion to suppress is whether the court’s findings of fact are clearly erroneous and whether those findings were correctly applied as a matter of law. State v. Roberts (1997), 284 Mont. 54, 56, 943 P.2d 1249, 1250; State v. Lee (1997), 282 Mont. 391, 393, 938 P.2d 637, 639. A court’s findings are clearly erroneous if they are not supported by substantial evidence, the court has misapprehended the effect of the evidence, or our review of the record convinces us that a mistake has been committed. Interstate Prod. Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287.

FIRST ISSUE

¶10 Did the District Court err in suppressing the State’s evidence on the grounds that the arresting officer lacked a particularized suspicion to stop Henderson’s motor vehicle?

¶11 The Fourth Amendment’s protection against unreasonable searches and seizures applies to situations in which a law enforcement officer performs an investigatory stop of a vehicle. Reid v. Georgia (1980), 448 U.S. 438, 440, 100 S.Ct. 2752, 2753, 65 L.Ed.2d 890; Lee, 282 Mont. at 394, 938 P.2d at 639. However, there is an exception to the general warrant requirement of the Fourth Amendment which allows a law enforcement officer to briefly detain and question an individual without probable cause if the officer suspects the individual has committed or is in the process of committing an offense. Terry v. Ohio (1986), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. This exception has been recognized in Montana and is codified at § 46-5-401, MCA, which reads:

Investigative stop. In order to obtain or verify an account of the person’s presence or conduct or to determine whether to arrest the person, a peace officer may stop any person or vehicle that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense.

¶12 A determination as to whether the “particularized suspicion” requirement of the statute has been satisfied must be made in light of the totality of the circumstances giving rise to the stop. State v. Gopher (1981), 193 Mont. 189, 631 P.2d 293. The totality of the circumstances includes the evidence as evaluated by the officer in light of the officer’s knowledge and training. Gopher, 193 Mont. at 193, 631 P.2d at 295. A particularized suspicion does not require that the law enforcement officer be certain that an offense has been committed. State v. Morsette (1982), 201 Mont. 233, 240, 654 P.2d 503, 507.

¶13 Our review of the record convinces us that the stop of Henderson’s vehicle by Officer Guy was a proper investigatory stop under § 46-5-401, MCA. Section 61-3-301, MCA, requires that all vehicles operated on the public highways of Montana be properly registered with the state and have the proper number of license plates conspicuously displayed on the front and rear ends of the vehicle. Section 61-3-317, MCA, provides a twenty-day grace period in which to register a recently transferred vehicle, during which time the owner may operate the vehicle on the state’s streets and highways provided that at all times during that period a temporary vehicle purchase sticker is clearly displayed in the vehicle’s rear window. Failure to comply with either of these provisions constitutes a misdemeanor under § 61-3-601, MCA, and the law enforcement officers of the State of Montana are charged with the mandatory duty of enforcing these provisions. Section 61-3-602, MCA.

¶14 We decline to address at this time the issue of whether the placement of Henderson’s temporary vehicle purchase sticker violated § 61-3-317, MCA, because the vehicle’s darkly tinted window prevented the sticker from being “clearly displayed.” We do conclude, however, that the inability of the officer to plainly view the sticker as a result of the tinted window was sufficient to give rise to a particular suspicion that the vehicle was not properly registered in violation of § 61-3-301, MCA. There is substantial evidence in the record that Officer Guy was unable to verify the validity of the sticker because the writing on the paper and the identifying pink stripe generally found on a temporary tag were not discernible from a distance through the darkened window. Indeed, the officer was unable to read the form even close up without the aid of artificial illumination. There is also substantial evidence in the record that the inability to identify the tag gave rise to a particular suspicion in Officer Guy as to the proper registration of the vehicle.

¶15 The evidence also demonstrates that Henderson’s unusual behavior in failing to promptly respond to the officer’s signal to pull over raised some suspicion in the officer’s mind as to whether the driver of the vehicle was impaired. This suspicion was farther bolstered by the attempt of one of the passengers to exit the vehicle immediately upon stopping and the fact that the officer could not see into the vehicle. The scope of the officer’s suspicion was reasonably broadened at that point to include a particularized suspicion that the driver of the vehicle may be impaired.

¶16 From this we conclude that in finding that the stop of Henderson’s vehicle was pretextual and that Officer Guy had no reasonable grounds to suspect that an offense was being committed, the District Court misapprehended the effect of the evidence before it. As such, the findings of the District Court regarding the legitimacy of Officer Guy’s investigatory stop of Henderson’s vehicle are clearly erroneous, and we hold that the State’s evidence should not be suppressed on those grounds.

SECOND ISSUE

¶17 Did the District Court err in suppressing the State’s evidence on the grounds that the arresting officer exceeded the permissible scope of the investigatory stop?

¶18 In determining that Officer Guy exceeded the scope of his investigation by requesting to see the driver’s license, proof of insurance and registration before inspecting what turned out to be a valid temporary tag, the District Court relied on the reasoning set forth in State v. Farley (Or. 1989), 775 P.2d 835, and People v. Redinger (Colo. 1995), 906 P.2d 81. These cases stand for the principle that where an officer stops a vehicle to verify a temporary sticker and has determined that the sticker is valid, the officer may not thereafter request to see the driver’s license or proof of insurance, because the original purpose of the stop was satisfied upon verification of the temporary tag. The provisions of § 46-5-402(4), MCA, make the District Court’s reliance on Farley and Redinger misplaced. Section 46-5-402(4), MCA, reads:

A peace officer who has lawfully stopped a person under 46-5-401 or this section ... shall inform the person, as promptly as possible under the circumstances and in any case before questioning the person, that the officer is a peace officer, that the stop is not an arrest but rather a temporary detention for an investigation, and that upon completion of the investigation, the person will be released if not arrested.

¶19 In approaching Henderson’s car window, Officer Guy did three things: he identified himself; he informed Henderson of the purpose of the stop; and he asked to see Henderson’s driver’s license, proof of insurance and registration. The District Court’s conclusions focus on whether or not Officer Guy was acting properly in requesting to see Henderson’s driver’s license before checking the temporary tag. That determination, however, is not a central issue in this case because § 46-5-402(4), MCA, expressly required Officer Guy to identify himself and communicate to the driver the reason for the stop. It was while standing in front of Henderson’s window that Officer Guy noted the strong smell of alcohol emanating from the vehicle and the slurred nature of Henderson’s speech. These observations are what inevitably led to the administration of the field sobriety and breath tests, which led to the DUI arrest, which led to the search of the vehicle, which revealed the presence of the alcohol, marijuana and LSD. ¶20 The root of the evidentiary tree, then, is the fact that Officer Guy was standing where he could detect signs of possible inebriation. Section 46-5-402(4), MCA, in effect made it proper for Officer Guy to be there, and whether he should have asked to see Henderson’s driver’s license is irrelevant because the request itself was not the source of the evidence Henderson is seeking to suppress.

¶21 The timing of the request is likewise immaterial. Section 46-5-402(4), MCA, requires that the officer identify himself and explain the nature of the stop as promptly as possible under the circumstances. Under the facts of this case, it was reasonable for Officer Guy to approach Henderson before stopping to peer into the rear window of the vehicle, because at that point he had reason to be concerned for his own safety. However, even if he had inspected the temporary tag before approaching Henderson, as the District Court would require, there would have been no alteration in the resulting stream of events, because the officer would still subsequently have had to approach Henderson to identify himself and the purpose of the stop, and in doing so would have been in a position to detect the smell of alcohol and observe Henderson’s slurred speech.

¶22 From the moment that the officer noted the smell of alcohol and the driver’s slurred speech, the initial investigative stop took on the quality of an escalating situation in which the additional information gave rise to further suspicions and enlarged the scope of the investigation to that of a possible DUI. See State v. Hulse, 1998 MT 108, [289 Mont. 1], 961 P.2d 75. Therefore, we hold that the District Court erred in suppressing the evidence in this case on the grounds that the arresting officer exceeded the scope of his investigation.

¶23 Reversed.

JUSTICES NELSON, REGNIER and TRIEWEILER concur.

JUSTICE HUNT

dissents.

¶24 The majority is correct in setting forth the standard of review of a trial court’s granting of a motion to suppress but incorrect in its application. The standard is whether the court’s findings of fact are clearly erroneous and whether these findings were correctly applied as a matter of law. The record shows that the findings of fact by the court are not clearly erroneous. It follows that the law was correctly applied, and the court’s order suppressing the State’s evidence on the ground the arresting officer lacked a particularized suspicion to stop the respondent’s vehicle should be affirmed.

¶25 The respondent in this case was driving his vehicle in a perfectly legal manner and was not in violation of any of the laws of Montana. The arresting officer was unable to determine whether the vehicle was properly licensed and therefore made an investigatory stop. His duty at that point was to determine if the car was properly licensed.

¶26 The majority points out that a particularized suspicion does not require that the law enforcement officer be certain that an offense has been committed (citing State v. Morsette (1982), 201 Mont. 233, 240, 654 P.2d 503, 507). The difference is that a particularized suspicion did not exist in this case. Had the officer who made the investigatory stop completed his investigation when he was required to do so, he would have found that the vehicle was not in violation of any licensing requirement of the State of Montana and upon that finding should have known that there was no further reason for the stop.

¶27 The majority rejects the District Court’s reliance upon State v. Farley (Or. 1989), 775 P.2d 835, and People v. Redinger (Colo. 1995), 906 P.2d 81, on the grounds that § 46-5-402(4), MCA, make the District Court’s reliance on those cases misplaced. I disagree.

¶28 The District Court relied on Redinger. There, the Colorado Supreme Court affirmed a suppression order on an almost identical set of facts. An officer saw a vehicle traveling on the highway but did not see either a license plate or a temporary sticker in the rear of the vehicle. The officer determined the driver of the vehicle was in violation of the state’s motor vehicle laws and pulled the car over. As he walked toward the car he observed a valid temporary registration plate properly displayed in the rear window but he continued on and approached the driver and asked him to produce a license, registration and proof of insurance. As this occurred the officer observed a clear bag containing a powdery substance and the driver was eventually charged with possession of a controlled substance. The trial court held that when the officer realized his initial observation was erroneous, the purpose for the investigatory stop was satisfied and he no longer had any reason to detain and interrogate the driver. The Colorado Supreme Court agreed. Redinger, 906 P.2d. at 82.

¶29 The District Court also relied upon the Oregon case of Farley. The Oregon statute allowed a police officer to stop and detain a person for a suspected traffic infraction, for the purposes of investigation reasonably related to the traffic infraction, identification, and issuance of citation. The officer stopped a vehicle which had no visible license plates. As the officer walked toward the car he saw a valid temporary vehicle permit on the window, making it permissible to operate the car without plates. The officer proceeded to ask the driver for a license, and then checked the license on a computer and cited the driver for driving while his license was suspended and driving without proof of insurance. The Oregon Supreme Court held that the officer had no authority to proceed with the traffic stop after he saw the temporary permit because his authority under the statute ended when he learned there had been no traffic infraction. Farley, 775 P.2d at 836.

¶30 The majority mistakenly claims that the officer in this case was in compliance with the Montana statute, § 45-5-401, MCA, because he did three things: he identified himself; he informed Henderson of the purpose of the stop; and he asked to see Henderson’s driver’s license, proof of insurance and registration. That is a misinterpretation of the statute because that statute requires that “a peace officer may stop a person or vehicle that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense.” No facts in this case support a particularized suspicion sufficient to make a stop.

¶31 I would affirm the District Court.


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ARLAN KOEHN, Defendant and Appellant.
    No. 98-060.
    Submitted on Briefs August 27, 1998.
    Decided September 22, 1998.
    1998 MT 234.
    55 St.Rep. 985.
    291 Mont. 87.
    966 P.2d 143.

      For Appellant: Brad L. Amdorfer, Arndorfer Law Firm, Billings.
    For Respondents: Honorable Joseph P. Mazurek, Attorney General; Pamela P. Collins, Assistant Attorney General, Helena; Dennis Paxinos, County Attorney; Joe Coble and Dave Legare, Deputy County Attorneys, Billings.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

¶1 Arlan Koehn (hereinafter Koehn) appeals from the orders of the Thirteenth Judicial District Court, Yellowstone County, denying his motions to dismiss a felony charge of driving a motor vehicle while under the influence of alcohol (felony DUI). We affirm the decision of the District Court.

ISSUES

¶2 1. Did the District Court err in failing to dismiss Koehn’s felony DUI charge due to a lack of competent evidence proving Koehn had a prior conviction for DUI in 1988?

¶3 2. Did the District Court err in failing to dismiss Koehn’s felony DUI charge as violative of the Equal Protection Clause?

¶4 3. Did the District Court err in failing to dismiss Koehn’s felony DUI charge as violative of the Due Process Clause?

BACKGROUND

¶5 Koehn was charged on June 25,1996, with driving under the influence of alcohol, fifth offense, in violation of § 61-8-401, MCA, and driving while license is suspended or revoked in violation of § 61-5-212, MCA. The violation of § 61-8-401, MCA, was prosecuted as a felony offense under § 61-8-731, MCA, due to Koehn’s prior history, which included four earlier convictions for DUI in Koehn’s home state of South Dakota in 1984,1988,1991 and 1995.

¶6 Prior to trial, Koehn filed a motion to dismiss the felony DUI charge on the grounds of selective prosecution in violation of his right to equal protection and due process of law. The District Court deferred hearing the motion at that time, the matter proceeded to trial, and the jury found Koehn guilty on both charges.

¶7 Koehn then renewed his motion to dismiss, and an evidentiary hearing was held on July 22,1997, in which various members of the Yellowstone County Attorney’s office testified regarding the County Attorney’s policy on charging and investigating felony DUI offenses. This testimony showed that prior to January 1997, it had been the practice of the County Attorney’s office, when prosecuting DUI offenses, to obtain and consider information on pre-1989 DUI convictions. Effective January 1997, however, this policy had been amended, and the County Attorney’s office was no longer seeking to obtain information on DUI convictions rendered prior to 1989 when determining whether to prosecute a current violation as a felony DUI offense.

¶8 Based on the evidence received at the July 22,1997 hearing, the District Court entered an order denying Koehn’s motion to dismiss on constitutional grounds. However, shortly before the sentencing hearing, Koehn filed another motion to dismiss on the grounds of insufficiency of evidence to prove the existence of the 1988 DUI conviction upon which the felony charge was partially based. The District Court denied this motion also, determining that there was adequate proof of the prior conviction to support application of the felony charge.

STANDARD OF REVIEW

¶9 A district court’s decision to grant or deny a motion to dismiss in a criminal case involves a question of law which this Court reviews de novo to determine whether the court’s conclusions are correct. State v. McKee, 1998 MT 110, ¶ 13, [288 Mont. 454], 958 P.2d 700, ¶ 13. Moreover, when resolution of an issue involves a question of constitutional law, our review of the lower court’s interpretation of the law is plenary. Matter of S.L.M. (1997), [287 Mont. 23], 951 P.2d 1365, 1370; State v. Schnittgen (1996), 277 Mont. 291, 295, 922 P.2d 500, 503.

FIRST ISSUE

¶10 Did the District Court err in failing to dismiss Koehn’s felony DUI charge due to a lack of competent evidence proving Koehn had a prior conviction for DUI in 1988?

¶11 Section 61-8-401(a), MCA, makes it unlawful and punishable for a person under the influence of alcohol to drive or be in actual physical control of a vehicle. The penalties for the first three violations of § 61-8-401, MCA, are found in § 61-8-714, MCA. However, upon a fourth or subsequent conviction for DUI, the offense becomes a felony offense and is subject to the enhanced penalties set forth in § 61-8-731, MCA. In order for felony status and an enhanced penalty to be imposed, the defendant’s prior conviction record must demonstrate that the current offense is a fourth or subsequent violation of § 61-8-401, MCA.

¶ 12 At the sentencing hearing, the State submitted evidence of the 1988 DUI conviction in the form of an abstract of an FBI Identification Record on Koehn (hereinafter the FBI abstract) which included an arrest for DUI in March 1988 in Watertown, South Dakota, but did not indicate the disposition of the charge. The State also submitted an uncertified copy of a Judgment of Conviction and Order Suspending Sentence issued by the Circuit Court of Codington County, South Dakota (hereinafter the South Dakota judgment), which states that Koehn plead guilty to and was sentenced on a charge of driving while under the influence of alcohol on August 2,1988. Also placed into evidence was a Pre-Sentence Investigation Report prepared by the Department of Corrections and Human Services, which did not mention the 1988 conviction.

¶13 Koehn asserts that the trial court improperly considered his 1988 DUI conviction to enhance his sentence because the court improperly relied on the uncertified copy of the FBI abstract and the South Dakota judgment. It follows that if the 1988 conviction cannot be established, the 1984 conviction is likewise eliminated from consideration by operation of an earlier statute which provided for the expungement of a DUI conviction after five years if no similar conviction occurred within that time. See State v. Brander (1996), 280 Mont. 148, 930 P.2d 31; State v. Sidmore (1997), 286 Mont. 218, 951 P.2d 558. Without the 1988 and 1984 convictions, Koehn argues, his record reflects only two previous DUI convictions, which is not sufficient to support the jurisdiction of the District Court or the imposition of the felony DUI charge.

¶14 Nevertheless, despite his arguments on appeal, Koehn conceded in writing in his second and third motions to dismiss filed with the District Court that he had four prior convictions of DUI in South Dakota, including his conviction in 1988. In Rasmussen v. Heebs Food Ctr. (1995), 270 Mont. 492, 497, 893 P.2d 337, 340, we described a “judicial admission” as “an express waiver made in court by a party or his attorney conceding the truth of an alleged fact.” We noted that such an admission has a conclusive effect upon the party who makes it and prevents that party from introducing further evidence to prove, disprove or contradict the admitted fact. Rasmussen, 270 Mont. at 497, 893 P.2d at 340 (citation omitted). Accord DeMars v. Carlstrom (1997), 285 Mont. 334, 337-38, 948 P.2d 246, 248-49.

¶15 In the case at bar, Koehn, having twice conceded in writing in court that he had four prior DUI convictions, is bound by these judicial admissions of fact and may not now argue that there is no competent evidence of his 1988 conviction.

SECOND ISSUE

¶16 Did the District Court err in failing to dismiss Koehn’s felony DUI charge as violative of the Equal Protection Clause?

¶ 17 It is Koehn’s assertion that the Yellowstone County Attorney’s office discriminated against him by prosecuting him for felony DUI when other similarly situated offenders were charged with lesser offenses. Koehn contends that this discriminatory treatment was based on his out-of-state residency status and that he would not have been so charged had he been a Montana resident.

¶18 The District Court, in its Findings of Fact and Conclusions of Law issued August 28,1997, determined there was no equal protection violation stemming from the actions or policies of the Yellowstone County Attorney’s office, because the actions of that office did not result in discriminatory treatment of an identifiably burdened class. Our review of the record supports the District Court’s conclusions on this issue.

¶ 19 The Fourteenth Amendment of the United States Constitution and Art. II, Sec. 4 of the 1972 Montana Constitution guarantee equal protection of the laws to all persons. Matter of C.H. (1984), 210 Mont. 184, 197, 683 P.2d 931, 938. The principal purpose of the equal protection clauses is to insure that persons are not made the subject of arbitrary and discriminatory state action. Godfrey v. Montana State Fish & Game Com’n (1981), 193 Mont. 304, 306, 631 P.2d 1265, 1267. A threshold issue in our determination of whether the prosecutor’s conduct denied Koehn equal protection of the law is whether the challenged action actually resulted in unfair or discriminatory treatment. If all the members of a class are treated equally, there can be no equal protection violation. State v. Tadewaldt (1996), 277 Mont. 261, 270, 922 P.2d 463, 468.

¶20 Koehn was arrested and charged with a DUI in June 1996, at which time the Yellowstone County Attorney’s office sought and obtained information on his prior conviction record. This record included DUI convictions in 1984, 1988, 1991 and 1995. None of Koehn’s prior convictions qualified for expungement under the rationale set forth in Brander, 280 Mont. at 155, 930 P.2d at 35, and Sidmore, 951 P.2d at 565, 54 St.Rep. at 1385, because there was no five-year period between convictions during the relevant time frame. Neither were any of these convictions susceptible to collateral attack on the grounds set forth in State v. Okland (1997), 283 Mont. 10, 15, 941 P.2d 431, 434, because Koehn had been represented by counsel during each of the prior prosecutions. All of Koehn’s prior convictions were therefore properly considered in charging him with felony DUI on his June 1996 offense.

¶21 More than six months after Koehn’s arrest, the Yellowstone County Attorney’s office prospectively altered its charging policies so that it would no longer seek to obtain information on prior DUI convictions received before October 1, 1989. This change in policy was motivated by the practical difficulties the county attorney’s office had experienced in obtaining and using these older records, including the fact that the records were difficult to locate, were often incomplete, were vulnerable to collateral attack for lack of information regarding a proper waiver of right to counsel, or had been expunged by operation of an earlier version of the DUI statutes. The policy regarding investigation of pre-1989 convictions was implemented in January 1997 and applied to all DUI offenders charged subsequent to its adoption. The change in charging policy was not applied to Koehn, because he had been charged prior to the adoption of the change, after the prosecutor’s office had already obtained the information in his record, and prospective application of the policy did not require the prosecutor’s office to disregard information it had already expended resources in obtaining.

¶22 Koehn argues that this change in policy was not uniformly applied because others who were charged with a similar offense during the same period of time received reduced charges, while he did not. Koehn also points out that each of the other defendants were residents of Montana and asserts that favorable treatment was accorded for that reason. However, the evidence contained in the record convinces us that the reduction in charges in the cases cited by Koehn was due to factors unrelated to the residency of the particular defendants and for reasons that did not apply in Koehn’s case, such as the inability of the prosecutor to obtain information on a particular defendant’s prior convictions, or prove the prior convictions, or use the prior convictions due to an ineffective waiver of counsel during the prior proceedings. Our review of the record does not support Koehn’s contention that the Yellowstone County Attorney’s office engaged in discriminatory treatment of him, and for this reason we uphold the decision of the District Court.

THIRD ISSUE

¶23 Did the District Court err in failing to dismiss Koehn’s felony DUI charge as violative of the Due Process Clause?

¶24 Koehn also argues that the application of the prosecutor’s January 1997 policy against investigating pre-1989 convictions to prospective offenders but not to those whose charges were already pending is violative of his right to due process of law. However, as the State points out, this argument was not presented by Koehn in his brief to the District Court in support of his motion to dismiss. Although Koehn’s pleadings make the bald assertion that he has been denied due process of law, such an assertion is not sufficient to preserve an issue on appeal without a clearer articulation of the basis of the challenge, and unless plain error can be shown, a party may not advance a theory on appeal that was not sufficiently asserted before the trial court. State v. Greywater (1997), 282 Mont. 28, 35, 939 P.2d 975, 979; Shimsky v. Valley Credit Union (1984), 208 Mont. 186, 191, 676 P.2d 1308, 1310-11; Akhtar v. Van De Wetering (1982), 197 Mont. 205, 209, 642 P.2d 149, 152. We therefore decline to address this issue.

¶25 Affirmed.

JUSTICES NELSON, GRAY, HUNT and REGNIER concur.

      . Even if the 1984 and 1988 convictions could not be considered, it appears that, the instant offense being, then, his third countable DUI, Koehn nevertheless still could have been charged in District Court with a “high misdemeanor.” See § 61-8-714(3), MCA (1995), and § 3-10-303(3), MCA (1995).


author: JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DONALD R. HOULE, Defendant and Appellant.
    No. 97-543.
    Submitted on Briefs June 11, 1998.
    Decided September 23, 1998.
    1998 MT 235.
    55 St.Rep. 989.
    291 Mont. 95.
    966 P.2d 147.

      For Appellant: Lawrence A. LaFountain, Attorney at Law; Great Falls.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Tammy K. Plubell, Assistant Attorney General; Helena; Brant S. Light, Cascade County Attorney; Great Falls.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

¶ 1 The defendant, Donald Houle, was charged by information in the District Court for the Eighth Judicial District in Cascade County with felony aggravated assault. He was convicted of the crime charged following a two-day jury trial. He appeals his conviction. We affirm the judgment of the District Court.

¶2 Houle raises three issues on appeal.

¶3 1. Was there sufficient evidence to support a conviction for aggravated assault?

¶4 2. Did the District Court err when it instructed the jury?

¶5 3. Did the District Court err when it permitted the State to challenge the credibility of the defendant’s witness during its closing argument?

FACTUAL BACKGROUND

¶6 Kelly and Jennifer LaRocque stopped at a convenience store to make a purchase on September 26,1995. Jennifer waited in the car with their daughter while Kelly went into the store. While she waited, another car with approximately five men in it pulled alongside her. A passenger in the car, Shane Taylor, began to curse at and threaten her. In response, Jennifer exited her vehicle and sought Kelly’s protection.

¶7 Kelly came out of the store and confronted Taylor about his comments to Jennifer. Taylor, who testified that he was intoxicated at the time, challenged Kelly to a fight, but Kelly refused. While these events transpired, Donald Houle, a friend of Taylor’s who had arrived in the same car, had been in the restroom of the store.

¶8 After leaving the restroom, Houle contends that he saw Taylor and Kelly push each other, and in an effort to diffuse the situation, escorted Taylor back to the car and told him that he would “take care of it.” He asserts that Kelly followed him and Taylor and continued to yell at them. Houle testified that he then told Kelly “to quit being a tough guy,” and that Kelly then hit him in the chest. Houle contends that in self-defense he then punched Kelly in the face.

¶9 Other testimony at trial, including Kelly’s and that of a clerk from the store, indicated that Houle pushed Kelly and told him not to be a tough guy, and that Kelly then did the same to Houle. Kelly testified that as he turned away, Houle punched him in the face. All witnesses agree that no further blows were exchanged, although the clerk testified that it appeared to him that Houle wanted to continue the fight. The clerk then told everyone to leave and told them that he had called the police. Later that night, Kelly underwent surgery for a broken jaw.

¶10 On November 13,1995, Houle was charged by information in the District Court for the Eighth Judicial District in Cascade County with felony aggravated assault. He pled not guilty and raised as defenses his good character and justifiable use of force. After a two-day jury trial, he was convicted and sentenced to a ten-year prison term, seven years of which was suspended.

ISSUE 1

¶ 11 Was there sufficient evidence to support a conviction for aggravated assault?

¶12 We review the sufficiency of the evidence to support a jury verdict in a criminal case to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See State v. Medrano (1997), 285 Mont. 69, 73, 945 P.2d 937, 939.

,¶13 Houle was charged with aggravated assault pursuant to § 45-5-202(1), MCA, which states: “A person commits the offense of aggravated assault if the person purposely or knowingly causes serious bodily injury to another.” Serious bodily injury is defined separately as bodily injury that:

(i) creates a substantial risk of death;
(ii) causes serious permanent disfigurement or protracted loss or impairment of the function or process of any bodily member or organ; or
(iii) at the time of injury, can reasonably be expected to result in serious permanent disfigurement or protracted loss or impairment of the function or process of any bodily member or organ.

Section 45-2-101(64)(a), MCA. Houle does not contest whether Kelly sustained serious bodily injury.

¶ 14 Houle contends that the State failed to prove that he intended to seriously injure Kelly. He bases his position on the apparent assumption that a person could not intend to seriously injure someone with “just” an ordinary punch. He has failed, however, to provide any support for that assumption.

¶15 First, we recognize that Houle’s defense of justifiable use of force concedes in part that he did, in fact, purposely and knowingly strike the victim in this case. Furthermore, a review of the record shows substantial testimony that Houle was the aggressor, from which a jury could easily and rationally have found that his conduct was purposeful.

¶16 Even if we were to accept Houle’s assertion that he did not intend serious injury, it was easily within the province of the jury, based on the testimony before it and the District Court’s instructions, to find that Houle was aware that any punch to Kelly’s face would seriously harm. Section 45-2-101(34), MCA, provides that “[a] person acts knowingly with respect to the result of conduct described by a statute defining an offense when the person is aware that it is highly probable that the results will be caused by the person’s conduct.” Modern entertainment notwithstanding, common experience would tell most people that a direct blow to the face of an unsuspecting victim can cause serious bodily injury, as defined by statute. Accordingly, we conclude that there was sufficient evidence from which a rational trier of fact could have found the essential elements of the crime with which Houle was charged beyond a reasonable doubt.

ISSUE 2

¶17 Did the District Court err when it instructed the jury?

¶18 We review an alleged error in a district court’s instructions to a jury to determine whether, as a whole, they fully and fairly instruct the jury on the law applicable to the case. See State v. Patton (1996), 280 Mont. 278, 286, 930 P.2d 635, 639; State v. Brandon (1994), 264 Mont. 231, 237, 870 P.2d 734, 737.

¶ 19 Houle contends that he was denied a fair trial when the District Court instructed the jury regarding the method by which his state of mind could be proven. According to Houle, the effect of the instruction was to permit the jury to believe that there was no legal difference between an intent to cause serious bodily injury and an intent to cause bodily injury. In essence, however, Houle bases his allegation of error on the same unsupported assumption that he made above, i.e., that one could not expect that serious bodily injury would result from an “ordinary” punch.

¶20 The instruction at issue represents a verbatim recitation of § 45-2-201(2), MCA, which provides that:

If purposely or knowingly causing a result is an element of an offense and the result is not within the contemplation or purpose of the offender, either element can nevertheless be established if:
(a) the result differs from that contemplated only in the respect that a different person or different property is affected or that the injury or harm caused is less than contemplated; or
(b) the result involves the same kind of harm or injury as contemplated but the precise harm or injury was different or occurred in a different way, unless the actual result is too remote or accidental to have a bearing on the offender’s liability or on the gravity of the offense.

The statute provides a method of proving the elements of purposely or knowingly when “the result is not within the contemplation or purpose of the offender.” The charges against Houle involved the elements of purposely or knowingly and, as such, we conclude that the instruction served to inform the jury regarding the law applicable to the case. We conclude that the District Court did not err when it instructed the jury.

ISSUE 3

¶21 Did the District Court err when it permitted the State to challenge the credibility of the defendant’s witness during its closing argument?

¶22 In its closing argument, the State referred to one of the defense witnesses, Paul Palmerton, who was driving the vehicle in which Taylor and Houle were passengers and who witnessed the confrontation, as Houle’s “star witness.” Also in its closing argument, counsel for the State said: “We know a little bit about Mr. Palmerton. What kind of person is he? Well, when Jennifer was being called [names] he did nothing.” Houle objected to the State’s second statement. The District Court overruled the objection and also refused Houle’s request to offer a correctional instruction regarding the nonexistence of a duty to rescue. Houle now contends that those statements by the State in its closing argument constituted misconduct and denied him his right to a fair trial. He contends that by these statements the prosecutor inferred that his most significant witness was a liar and to do so constitutes prosecutorial misconduct. We disagree. If it was the prosecutor’s purpose to call Palmerton a liar (a practice we have repeatedly condemned, see State v. Stringer (1995), 271 Mont. 367, 380-81, 897 P.2d 1063, 1070-71), he chose a poor method of doing so. Most reasonable people, and presumably most jurors, are capable of recognizing the difference between a lack of chivalry and dishonesty. At most, the prosecutor’s comment reflected a lack of chivalry.

¶23 We therefore conclude that the State’s efforts to challenge Palmerton’s credibility by referring to his conduct at the scene of the event in question did not constitute prosecutorial misconduct.

¶24 Accordingly, we affirm the judgment of the District Court.

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


author: JUSTICE HUNT

text:
    IN RE THE MARRIAGE OF THOMAS EDWARD PEARSON, Petitioner and Respondent, and DEBRA KAY PEARSON, Respondent and Appellant.
    No. 97-657.
    Submitted on Briefs April 13, 1998.
    Decided September 29, 1998.
    1998 MT 236.
    55 St.Rep. 992.
    291 Mont. 101.
    965 P.2d 268.

      For Appellant: Richard A. Reep, Reep, Spoon & Gordon, Missoula.
    For Respondent: Dexter L. Delaney, Brian L. Delaney, Mulroney, Delaney & Scott, Missoula.
   JUSTICE HUNT

delivered the Opinion of the Court.

¶ 1 The marriage of Thomas Edward Pearson (Tom) and Debra Kay Pearson (Debra) was dissolved on November 16, 1994, pursuant to the Findings of Fact, Conclusions of Law, and Decree entered by the Twenty-First Judicial District Court, Ravalli County. In entering the Decree, the court incorporated by reference a Marital and Property Settlement Agreement (Agreement) entered into by the parties on October 17,1994, and an addendum to the Agreement entered into on November 15,1994.

¶2 On April 16,1996, Debra moved the court to modify the provisions of the Decree relating to spousal maintenance and child support. While these motions were pending, Tom moved the court to enforce and modify the provisions of the Decree relating to visitation. On May 23,1997, the District Court issued its Findings of Fact, Conclusions of Law, and Decree deciding all motions in favor of Tom and awarding Tom attorney’s fees and costs. Debra appealed. We affirm.

¶3 We restate the issues as follows:

¶4 1. Did the District Court err in denying Debra’s motion to modify the maintenance provision of the dissolution decree?

¶5 2. Did the District Court err in denying Debra’s motion to modify child support?

¶6 3. Did the District Court err in granting Tom’s motion to enforce visitation?

¶7 4. Did the District Court err in granting Tom’s motion to modify visitation?

¶8 5. Did the District Court err in not addressing whether Tom vio-

lated the Agreement by failing to maintain or provide proof of life insurance coverage for the benefit of the children?

¶9 6. Did the District Court err in awarding Tom attorney’s fees and costs?

BACKGROUND

¶10 Tom and Debra married in November 1980. They had two children, Jennifer and Jonathan. Tom and Debra together built and operated Pearson Logging. Although Tom was the principal financial provider and Debra was the principal caretaker of the children, Debra was involved with Pearson Logging on a day-to-day basis. She not only kept the books of the business, but also prepared financial statements for the purpose of securing loans. Aside from her work at Pearson Logging, Debra briefly held jobs as a waitress and a fire-fighter.

¶11 After fourteen years of marriage, Tom and Debra decided to divorce. To save time and money, Tom and Debra themselves negotiated a settlement, rather than seek independent counsel. They discussed the issues of property distribution and custody, visitation, and support of the children, and made a “list” memorializing all to which they had agreed.

¶12 With list in hand, Tom and Debra hired an attorney to draft a settlement agreement and file the petition for dissolution with the court. The attorney testified that he represented Tom and Debra jointly. He testified that when Tom and Debra consulted him, they did not seek legal advice in obtaining a different property distribution, but simply asked him to draft a document reflecting their negotiated settlement. At that time, some details, such as allocation of the children’s health insurance costs and uncovered medical expenses, had not been decided. After meeting with the attorney, the parties finally reached an agreement as to all issues pertaining to the dissolution. The attorney drafted the Agreement and the parties signed it on October 17,1994. The attorney filed the petition for dissolution shortly thereafter.

¶13 The Agreement provides that each party has entered into it voluntarily, with full knowledge and understanding of its consequences, and full disclosure of assets. The Agreement provides that the parties have entered into it free from fraud, duress, coercion, or unfair persuasion or domination of either party by the other or by any other person. The Agreement provides that it shall fully and finally settle all rights, duties, and obligations of the parties as set forth therein. The Agreement also provides that each party releases and discharges the other from further obligations.

¶14 Regarding the marital property, the Agreement provides that Tom receives everything on “Exhibit A,” including three parcels of real property; two mining claims; and Lots 1 and 4 of the Lost Trail Cabins subdivision. Debra receives everything on “Exhibit B” including the family home and real property in Stevensville; Tom’s interest in a contract for deed for the sale of certain real property; Lot 1 of the Sunny Estates subdivision; and Lots 2 and 3 of the Lost Trail Cabins subdivision. Prior to consulting with the attorney, Tom and Debra negotiated an equitable division of the remaining assets including their logging business, vehicles, camper, snowmobiles, and other personal property. The Agreement only makes general reference to these items and provides that each party is the sole and exclusive owner of those items presently in his or her possession. The Agreement also provides that each party is responsible for the liabilities associated with the assets he or she is awarded. Exhibits produced at trial showed that Tom received a total asset distribution worth $305,500, and Debra received a total asset distribution worth $385,710.

¶15 Regarding spousal maintenance, the Agreement specifically provides that, having considered the factors set forth in § 40-4-203, MCA, neither party shall be entitled to maintenance.

¶16 Regarding the children, the Agreement provides that Tom and Debra have joint custody, that Debra is the primary residential custodian, and that Tom has “liberal” visitation. The Agreement provides that the proceeds from the sale of lot 2 of the Sunny Estates subdivision will fund child support for the children. Pursuant to the contract for deed for the sale of this parcel, the buyer makes monthly payments of $437.86 over 15 years into escrow. The Agreement requires the escrow agent to deliver each monthly payment to Debra as primary residential custodian of the children. In the event Tom is designated primary residential custodian, the escrow agent is required to deliver the payment to Tom. If the parties eventually have split custody of the children, the escrow agent is required to deliver half of the payment to Tom and the other half to Debra. The Agreement acknowledges that payments are scheduled to continue several years after the children reach the age of majority, and provides that the monthly payments will be disbursed to the children even after the age of majority.

¶17 For purposes of comparison, the parties completed child support financial affidavits and figured that pursuant to the Uniform Child Support Guidelines (Guidelines), Tom’s child support obligation would be $82.50 per child per month until the children reached the age of majority. This child support obligation was based in part on Tom’s annual income reported as $16,000. Both Tom and Debra thought that their proposal of funding child support with the contract receivable payments was an “excellent idea” as it provided more money to the children for a longer period of time than is required under the Guidelines. Further, the payments would be a steady, reliable source of income, independent of Tom’s wage-earning ability.

¶ 18 Initially, the Agreement provided that each party would alternate paying the children’s monthly health insurance premiums, and that each party would be responsible for half of the uncovered and deductible sums incurred on behalf of the children. However, an addendum to the Agreement entered into November 15,1994, changed this provision. Now, Tom pays Jennifer’s health insurance coverage and Debra pays Jonathan’s coverage. The provision regarding unpaid and deductible sums remains unchanged. With respect to Tom’s life insurance, the Agreement provides that Tom shall continue to name the children as primary beneficiaries.

¶19 Regarding modification, the Agreement provides that, except as provided in 40-4-201(6), MCA, the provisions of the Agreement, and the Decree of Dissolution into which the Agreement is incorporated, may not be modified or amended without the parties’ express written consent. Lastly, regarding attorney’s fees, the Agreement provides that should any action be commenced to enforce, modify, or interpret any of its provisions, the court shall award a reasonable attorney’s fee to the prevailing party.

¶20 Soon after the dissolution became final, the parties experienced problems with visitation and child support. Visitation between Tom and the children proved to be troublesome. Debra testified that Tom spent less time with the children because he did not have the time or the room for them. Debra testified that the children did not want to visit their father because they did not like his new girlfriend. Debra testified that Jennifer did not want to visit her father because she did not like going into the woods, and that Jonathan often “came home unhappy” after visiting his father.

¶21 Tom testified that Debra turned the children against him and was the real cause of the visitation troubles. Tom testified that he made several attempts to see the children, but that Debra refused to allow the children to see him. He testified that Debra wrongfully advised school officials that he was not allowed to visit the children in school.

¶22 Because the “liberal visitation” provision of the Agreement proved not workable, Tom filed a motion to modify the Agreement and requested the court to set a visitation schedule with the children. After a hearing on the issue, the parties reached an agreement concerning a visitation schedule. The court incorporated this agreement into its Order dated August 1,1995, which provided that Tom shall have visitation with both the children on alternating weekends, but that the daughter, Jennifer, shall have the right to refuse visitation with her father if she so desires. Further, the Order provided that the parties shall alternate holiday visitation and shall divide visitation during the summer vacation period in half. The Order provided that the non-custodial parent shall have reasonable telephone contact with the children when they are in the custody of the other parent, and further required the parties to follow the Child Visitation Guidelines of the Twenty-First Judicial District.

¶23 Despite this new agreement, the parties continued to have visitation troubles. Tom testified that Debra unduly influenced the children so they would not want to see him. Although Tom wanted to see Jennifer, she always exercised her “veto power” and denied visitation. Tom testified that Debra monitored and often recorded his telephone conversations with the children. He testified that at times, when he picked up Jonathan for weekend visitation, Jonathan was ill-equipped with toys and adequate clothing.

¶24 Regarding child support, Debra testified that she had insufficient funds to properly care for the children. After the dissolution, Debra was employed as a full-time meat processor for two months. She quit this job so that she could spend more time with her children. Debra then worked part-time driving a dump truck and a school bus. Her job as a part-time dump truck driver later became unavailable, but Debra continued working as a school bus driver.

¶25 Debra works ten hours per week and earns $300 per month as a school bus driver. This income was insufficient to cover her monthly home mortgage, three vehicle payments, and a furniture payment. She also testified that the children are now teenagers and have increased needs attendant to being a teenager. Debra testified that due to her lack of credit, she could not take out a loan to make her required payments and support herself and the children. She testified that her only option was to liquidate her assets and pay her debts in full. She testified she applied at the local job service but did not actively seek full-time employment because she liked spending time with her children, notwithstanding the fact that her children attend school much of the day. Debra sold all but two parcels of real property, and used part of the proceeds to pay all of her outstanding debts totaling approximately $61,000. She placed the remainder of the real estate proceeds in certificates of deposit (CDS). As Debra drew income of $279 per month from her CDS to supplement her $300 monthly wages and $437 monthly child support payment, the balance of the CDS depleted.

¶26 On April 16,1996, Debra filed a motion for modification of the provisions of the dissolution decree pertaining to child support; payment of the children’s health insurance premiums and uncovered sums; and spousal maintenance. Regarding child support, Debra requested that it be modified to amounts consistent with the Guidelines. In her affidavit supporting her motion, Debra attached a new Guidelines worksheet showing a much higher annual income for Tom, and a corresponding monthly child support obligation of $1697. Regarding the children’s health insurance, Debra requested that the arrangement be modified so that each parent pays his or her proportionate share of the children’s health insurance premiums and uncovered sums based on a ratio of the parents’ relative incomes. Regarding spousal maintenance, Debra requested that she be granted sufficient maintenance to adequately provide for her re-education and training. Debra also requested attorney’s fees pursuant to the Agreement. ¶27 On August 30,1996, Tom filed motions to enforce and modify the court’s previous orders and decrees, and a motion for court-ordered counseling. Regarding the motion to enforce, Tom requested that the court require Debra to allow unencumbered telephone contact with Jonathan while he is in Debra’s custody, and send Jonathan to him for visitation periods with adequate toys and clothing. Regarding the motion to modify, Tom requested that Jonathan’s visitation schedule be expanded to include all Mondays following weekends during which he would normally have visitation, and Wednesday evenings every other week.

¶28 A hearing was held as to all motions on April 18,1997. On May 23,1997, the District Court issued its Findings of Fact, Conclusions of Law, and Decree deciding all motions in favor of Tom and awarding Tom attorney’s fees and costs. The court directed the parties to file affidavits setting forth calculations of reasonable attorney’s fees and costs. On August 28,1997, the court issued its opinion and order on the appropriate attorney’s fees and costs to be awarded Tom. Debra appeals both the May 23,1997 Decree and the August 28,1997 Order of the District Court. Additional facts will be provided as necessary to dispose of the issues raised.

STANDARD OF REVIEW

¶29 Generally, in cases involving modification of child support and maintenance, we review a district court’s findings of fact to determine whether they are clearly erroneous. In re Marriage of Widhalm (1996), 279 Mont. 97, 100, 926 P.2d 748, 750 (child support); In re Marriage of Brown (1997), 283 Mont. 269, 272, 940 P.2d 122, 123-24 (maintenance). A district court’s conclusions of law are reviewed to determine whether the court’s interpretation of the law was correct. Widhalm, 279 Mont. at 100, 926 P.2d at 750. We review a district court’s overall decision on modification of child support awards for abuse of discretion, keeping in mind the best interests of the children. Widhalm, 279 Mont. at 100-01, 926 P.2d at 750.

¶30 Section 40-4-208(2)(b)(i), MCA, provides that a decree containing provisions relating to maintenance and support may be modified only “upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable[.]” There exists no set definition of unconscionability; rather, determinations of unconscionability are made on a case-by-case scrutiny of the underlying facts. Brown, 283 Mont. at 272, 940 P.2d at 123. Because a district court’s determinations regarding changed circumstances and unconscionability are discretionary, Brown, 283 Mont. at 272, 940 P.2d at 124, we review these determinations for abuse of discretion. Brown, 283 Mont. at 272-73, 940 P.2d at 124. We review a district court’s award of attorney fees for abuse of discretion. In re Marriage of Sehnell (1995), 273 Mont. 466, 473, 905 P.2d 144, 148. In evaluating abuse of discretion, we look to whether the court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice. In re Marriage of Wessel (1986), 220 Mont. 326, 333, 715 P.2d 45, 50.

DISCUSSION

Issue 1

¶31 Did the District Court err in denying Debra’s motion to modify the maintenance provision of the dissolution decree?

¶32 In analyzing Debra’s request for maintenance, the court made the following findings with respect to the parties’ Agreement: (1) that the parties intended the Agreement to fully and finally settle all financial rights, duties, and obligations; (2) that the parties released and discharged each other from further obligations; (3) that neither party was entitled to maintenance; (4) that the Agreement was not subject to modification except for matters relating to the custody, support, and visitation of the children pursuant to § 40-4-201(6), MCA. The court concluded that as a matter of contract and as a matter of law, the non-modification clause of the Agreement precluded an award of maintenance. In reaching this conclusion, the court applied § 40-4-201(6), MCA (1995), which provides that modification as to maintenance is prohibited if the decree of dissolution expressly precludes or limits modification of terms set forth in the decree. The court reasoned that because the decree expressly incorporated the parties’ Agreement, and because the Agreement contained an express non-modification clause, modification as to maintenance was prohibited.

¶33 Debra argues the above analysis is flawed in that the court misinterpreted § 40-4-201(6), MCA. Debra argues that § 40-4-201(6), MCA, requires a non-modification clause to be express as to maintenance in order to preclude modification of maintenance. In essence, Debra asserts that a non-modification clause of a marital property settlement agreement is ineffective if the parties do not state with particularity those terms of the Agreement to which the clause applies. We cannot agree with Debra’s assertion because it contravenes the plain meaning of the statute and Montana case law interpreting the statute.

¶34 Section 40-4-201(6), MCA (1995), states:

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

In construing this statute, we must give effect to all of its provisions and particulars, and not insert what has been omitted or omit what has been inserted. Section 1-2-101, MCA. Section 40-4-201(6), MCA, only requires a non-modification clause to be express; it does not require a non-modification clause to be express as to the terms to which it applies. Additionally, we have held that where a marital and property settlement agreement addresses maintenance and contains general release and non-modification clauses, as in the instant case, any attempt to modify maintenance is prohibited. In re Marriage of Johnson (1992), 252 Mont. 258, 261-62, 828 P.2d 388, 391. We hold that the court correctly interpreted the law and did not err in denying Debra’s request for maintenance.

Issue 2

¶35 Did the District Court err in denying Debra’s motion to modify child support?

¶36 Before a child support obligation may be modified, the party seeking modification must demonstrate the existence of “changed circumstances so substantial and continuing as to make the terms unconscionable.” Section 40-4-208(2)(b)(i), MCA. In her affidavit to the District Court, Debra listed several factors as evidence that modification of Tom’s child support obligation was warranted. These factors can be grouped in two categories: those alleging changed circumstances which occurred after entry of the dissolution decree, and those alleging unconscionability of the parties’ Agreement. Debra identified the following changed circumstances in support of modification: (1) Tom significantly decreased his visitation with the children such that Debra now has sole responsibility for their care; (2) Debra was forced to liquidate the bulk of the assets she received in the marital property distribution to support and care for the children; (3) Debra is entitled to a larger support award because Tom has earned more income; and (4) due to Debra’s financial hardship and Tom’s increased annual income, the children’s health insurance premiums, deductibles, and uncovered sums should be allocated proportionately, based on a ratio of the parties’ annual incomes pursuant to In re Marriage of Weed (1992), 254 Mont. 162, 166-67, 836 P.2d 591, 594.

¶37 Debra listed the following as evidence that the Agreement was unconscionable: (1) the attorney who drafted the Agreement represented Tom’s interests but not Debra’s interests; (2) Debra is actually paying half of Tom’s support obligation of $437 because she had a one-half ownership interest in the parcel that was sold to fund child support; and (3) the attorney’s original child support calculation, which was used to determine whether the contract receivable payment was consistent with Tom’s support obligation under the Guidelines, grossly understated Tom’s income and overstated Debra’s income.

¶38 The District Court made a specific finding with respect to each of Debra’s claims pertaining to changed circumstances and unconscionability. The court ultimately determined that “no credible evidence was submitted by Debra that there has been some form of a continuing change in circumstances or to the effect that the current child support arrangement is unconscionable.”

¶39 On appeal to this Court, Debra challenges the court’s determination regarding changed circumstances and unconscionability. In response, Tom argues we need not review Debra’s claims pertaining to unconscionability of the parties’ Agreement because they are not properly before the Court. We agree with Tom. We decline to review Debra’s claims of error regarding unconscionability of the Agreement for two reasons.

¶40 First, the information supporting Debra’s claims of unconscionability was known by Debra, or should have been known by Debra, at the time the Agreement was entered. If, for the above reasons, Debra thought the Agreement unconscionable, she should have appealed the decree of dissolution within thirty days in accordance with Rules 4 and 5, M.R.App.P. Having failed in this regard, Debra’s claims regarding unconscionability of the Agreement are time-barred.

¶41 Second, it appears the District Court misinterpreted the correct standard to be applied in determining whether the child support provisions of the Agreement should be modified. As previously stated, before a child support obligation may be modified, the party seeking modification must demonstrate the existence of “changed circumstances so substantial and continuing as to make the terms unconscionable.” Section 40-4-208(2)(b)(i), MCA. We have interpreted this standard to mean that a finding of changed circumstances is a prerequisite to any inquiry into the unconscionability of a prior support award. In re Marriage of Clyatt (1994), 267 Mont. 119, 123, 882 P.2d 503, 506 (“Absent a finding of changed circumstances, the court’s analysis need go no further.”). Here, the court found that Debra failed to meet her burden of showing a substantial and continuing change in circumstances “or that... the current child support arrangement is unconscionable.” (Emphasis added.) Pursuant to the rule in Clyatt, once the court determined that Debra did not meet her burden of showing substantial and continuing changed circumstances, the court’s analysis should have stopped.

¶42 On appeal, Debra attempts to circumvent Clyatt by asserting that § 40-5-273, MCA, provides for administrative review and modification of district court child support orders without making a threshold finding of changed circumstances. Based on this statute, Debra argues that a finding of changed circumstances is unnecessary in determining whether modification is warranted. Debra’s argument is without merit. Debra did not seek modification through administrative review. Thus, § 40-5-273, MCA, does not apply to this case.

¶43 Although the court unnecessarily inquired into unconscionability of the Agreement, doing so is not grounds for reversal of the decision. “We will uphold a district court’s decision, if correct, regardless of the reasons given for the result.” In re Marriage of Barnard (1994), 264 Mont. 103, 109, 870 P.2d 91, 95. We turn then to a discussion of whether the court correctly determined that Debra did not meet her burden of showing substantial and continuing changed circumstances.

¶44 We have held that in order to demonstrate changed circumstances, a party must provide specific evidence about changed economic circumstances or actual increased need. In re Marriage of Gingerich (1994), 269 Mont. 161, 165, 887 P.2d 714, 716. The record must contain evidence concerning the children’s financial needs and resources, as well as each parent’s financial needs and resources. Duffey v. Duffey (1981), 193 Mont. 241, 244, 631 P.2d 697, 699.

¶45 Debra identified four factors which she claims evidences changed circumstances warranting modification of child support. The court dismissed each claimed factor as not credible. First, Debra claimed that Tom significantly decreased his visitation with the children such that she now has sole financial responsibility for their care. Although Debra testified that Tom voluntarily decreased visitation, Tom testified that Debra refused him visitation, wrongfully advised school officials that he was not to see the children, and unduly influenced the children so they would not want to see him. The court found Tom’s version of events more credible than Debra’s.

¶46 Second, Debra claimed she was forced to liquidate the bulk of the assets she received in the marital property distribution and, as a result, has insufficient funds to care for the children. There is no evidence supporting Debra’s claims that she was “forced” to sell a portion of her assets, that she sold “the bulk” of her assets, and that she now has insufficient funds to care for the children. The record indicates Debra has many job skills lending to her employability, yet Debra elects to be underemployed. Thus, based on her employability, some amount of income can be imputed to Debra. See § 46.30.1513, ARM. The record also indicates that at the time of the hearing, after paying her debts in full, Debra’s net worth was at least $272,268 and at most $306,200. Debra failed to present concrete evidence that the $437 monthly child support payment she received was not meeting the children’s needs. Based on the record, the court did not believe any of Debra’s claims relating to insufficient funds.

¶47 Third, Debra asserted that she is entitled to a larger support award because Tom earns more income than he reports. Debra claims that in calculating his annual income for 1994,1995, and 1996, Tom wrongfully deducted depreciation and wrongfully omitted capital gains. Again, the court found that the facts do not support these claims. Regarding depreciation, § 46.30.1508(l)(c), ARM, allows for purposes of child support calculation a depreciation deduction “upon a showing of economic necessity.” Upon testimony from both Tom and his accountant that the depreciation expense was legitimate, and represented a very real, out-of-pocket cost to Pearson Logging, the court found that the logging business takes a real toll on Tom’s business equipment, and upheld the depreciation deduction.

¶48 Regarding capital gains, § 46.30.1508(l)(a), ARM, provides that capital gains are included in determining gross income for purposes of calculating child support. However, the District Court has discretion to depart from the Guidelines if it finds that application of the Guidelines is inappropriate in a particular case. Section 40-4-204(3)(a), MCA. The record indicates that both Tom and Debra agreed to omit capital gains from Tom’s annual income for purposes of calculating child support. Tom testified that the reason for this omission was that the capital gains derived from the sale of certain lands used for logging stemmed from a “once in a lifetime transaction,” the likes of which Tom has never, and probably will never, experience again. The court found that Tom’s child support calculation was consistent with Debra’s testimony regarding treatment of capital gains. Based on these considerations, the court upheld the omission of capital gains from Tom’s income calculation for purposes of child support.

¶49 The record reflects that with the omission of capital gains, Tom’s annual income for 1994,1995, and 1996 was $17,954, $10,500, and $4311, respectively. The court found that these figures did not represent a substantial and continuing change in Tom’s income compared to the $16,000 income figure that Tom utilized for child support calculation purposes prior to entry of the decree of dissolution. The court also found that the parties’ arrangement to utilize the monthly $437 contract receivable payment for child support was in the best interests of the children.

¶50 Last, Debra asserted that due to her financial hardship and Tom’s increased annual income, the children’s health insurance premiums, deductibles, and uncovered sums must be allocated proportionately based on a ratio of the parties’ annual incomes pursuant to In re Marriage of Weed (1992), 254 Mont. 162, 166-67, 836 P.2d 591, 594. We need not decide whether Weed applies to this case because we have already determined that the record does not support Debra’s assertion of financial hardship nor her contention that Tom’s annual income has significantly increased.

¶51 The court dismissed each factor supporting Debra’s claim of changed circumstances as not credible. We must give due regard to the opportunity of the trial court to judge the credibility of witnesses. Rule 52(a), M.R.Civ.R It is the duty and function of the District Court to resolve conflicts in evidence, and we will not substitute our judgment for that of the District Court on such matters. Brown, 283 Mont, at 274,940 P.2d at 125. We hold that the court did not abuse its discretion in determining that Debra failed to meet her burden of demonstrating substantial and continuing changed circumstances. We hold that the court did not err in denying Debra’s motion for modification of child support.

Issue 3

¶52 Did the District Court err in granting Tom’s motion to enforce visitation?

¶53 In granting Tom’s motion to enforce visitation privileges, the District Court made the following finding:

The record supports Tom’s contention that he has been denied reasonable or liberal visitation with his children, particularly Jonny, and that Debra has substantially interfered with Tom’s visitation privileges. The court finds that Tom continues to be entitled to liberal and reasonable visitation with his children ....

¶54 Without citation to authority, Debra contends that this finding is clearly erroneous because the court “ignored” certain evidence of Jonathan’s apparent refusal to visit Tom. In particular, Debra assigns error to the court’s failure to interview Jonathan and failure to reference a psychiatric report prepared by Dr. William Stratford (Dr. Stratford) in which Dr. Stratford stated that Jonathan “perceives [Tom’s paramour, Karen] as being very hostile to him and, in fact, alleges that she has performed some cruel acts.” Debra also asserts that at the time the court issued its findings, Tom was no longer privileged to “liberal” visitation because the court had imposed a new visitation schedule whereby Tom and Jonathan would have visitation on Wednesday nights on condition that Jonathan not have contact with Karen.

¶55 We are not persuaded by Debra’s contentions because they are clearly without support in the record. Our examination of the record reveals that the court recognized Jonathan’s concerns about Karen, considered Dr. Stratford’s recommendations, and attempted to fashion a workable visitation schedule to be followed until the court could issue its final rulings on the motions. The following exchange occurred at the conclusion of the April 18, 1997 hearing on which the court based its final rulings:

COURT: I will take this matter under advisement and have my opinion after receipt of those proposed findings.
COUNSEL FOR DEBRA: Does the court have any sense of whether or not you even wish to speak with Johnnie?
COURT: Well, now, as I understand, both parties appear to have some degree of confidence in Dr. Stratford. And I think I would be inclined in this case at least for the time being to follow Dr. Stratford’s recommendations for the time being. And the arrangement he recommends would be through the end of the school year. [I]t would make sense to me to have [counsel] review it this summer, to have Dr. Stratford review it and make recommendations.
COUNSEL FOR TOM: I am really glad that you brought this up. We still have a situation where Mr. Pearson is not having visitation.
COURT: That needs to be corrected immediately. I don’t think we should wait for findings to do that. [T]here does appear to be some conflict... between [Jonathan] and the stepmother figure [Karen]. Could we have some agreement that these visitations will be outside of her presence at least through the end of the school year?
COUNSEL FOR TOM: [W]e would be willing to agree to that, pending the court’s further determination on these issues.... But we did try and reach an agreement that there would be [Wednesday] visitation ... [a]nd it just didn’t turn out workable because Mrs. Pearson insisted on being around during the visitation period

After further negotiation, the parties reached an agreement whereby Tom would have Wednesday night visitation with Jonathan from 5:00 p.m. until 9:00 p.m., without Karen present, until final determination of the issues. Upon reaching this agreement, the court asked whether there were any objections, to which Debra’s counsel responded, "That’s acceptable, Your Honor.”

¶56 A complete examination of the record, much of which is set out in the beginning of this opinion, reveals that substantial, credible evidence exists to support the court’s finding that Tom was denied reasonable or liberal visitation. Both Tom and Debra presented evidence to the court regarding Tom’s visitation with the children. The District Court found Tom’s evidence more substantial and credible. Again, we defer to the District Court’s ability to judge the credibility of witnesses. Rule 52(a), M.R.Civ.P. It is the District Court’s function to resolve conflicts in evidence, and we will not substitute our judgment for that of the District Court on such matters. Brown, 283 Mont. at 274, 940 P.2d at 125. We hold that the District Court’s finding regarding visitation was adequately supported by substantial evidence and, therefore, was not clearly erroneous. The court did not err in granting Tom’s motion to enforce visitation privileges.

Issue 4

¶57 Did the District Court err in granting Toni’s motion to modify visitation?

¶58 Tom requested that his visitation with Jonathan be expanded to include Mondays during the summer following normal visitation periods, and every other Wednesday evening. Pursuant to § 40-4-217(3), MCA, modification of visitation is allowed whenever modification would serve the best interest of the child. In re Marriage of Cox (1994), 266 Mont. 67, 71, 878 P.2d 903, 907. In granting Tom’s motion, the court made the following finding:

Based on the record, there is not a good reason to deny [Tom’s motion]. The evidence before the court is that Jonny loves his father very much and wants to spend time with him, and the court finds that this would be in Jonny’s best interest.

¶59 Without citation to authority, Debra argues that this single finding is insufficient to support expansion of Tom’s visitation. Debra also argues that the above finding was insufficient to support expansion of Tom’s visitation in light of Dr. Stratford’s recommendation that visitation be “restricted.” We do not find Debra’s arguments convincing.

¶60 First, we note that although the above finding was the only one appearing under the heading entitled “Tom’s Motion for Expanded Visitation,” the numerous findings made in other parts of the court’s opinion demonstrate that the court considered all the evidence relating to visitation and the best interests of Jonny. Second, we note that Dr. Stratford did not recommend that Tom’s visitation with Jonathan be “restricted.” Rather, Dr. Stratford recommended that overnight or weekend visitation with Jonathan be “tabled at this point.” Dr. Stratford suggested that Tom have visitation with Jonathan one night a week through the end of school, at which time a new visitation schedule could be decided. Dr. Stratford specifically stated, “Jonny evidences a wish to see his father.” We hold that the District Court’s finding concerning expansion of Tom’s visitation with Jonathan was supported by substantial evidence and was not clearly erroneous. The court did not err in granting Tom’s motion to modify visitation.

Issue 5

¶61 Did the District Court err in not addressing whether Tom violated the Agreement by failing to maintain or provide proof of life insurance coverage for the benefit of the children?

¶62 With respect to life insurance, the parties’ Agreement provides that “Husband shall continue to name the two minor children as primary beneficiaries under his life insurance policy.” At the hearing, Debra testified that Tom violated the terms of the Agreement by failing to maintain or provide proof of life insurance coverage for the benefit of the children. Debra was cross-examined as to whether this issue was properly before the court because no motion had been filed requesting proof that Tom maintains life insurance for the benefit of the children. Debra was also cross-examined as to what exactly the Agreement provides concerning life insurance. Debra conceded that the Agreement did not require Tom to maintain life insurance; it only required Tom to name the children as beneficiaries to any life insurance policy he may have. Although Debra considered the life insuranee issue “important,” she failed to include any findings or conclusions pertaining to life insurance in her proposed findings and conclusions submitted to the court. The court did not address Debra’s claim relating to life insurance in its Findings of Fact, Conclusions of Law, and Decree.

¶63 Debra argues on appeal that the court’s failure to address life insurance constitutes reversible error. We disagree. This Court will consider for review only those issues raised in the pleadings or otherwise before the District Court. Matter of Estate of Rogers (1986), 223 Mont. 78, 82, 725 P.2d 544, 546. The basis of this rule is that “it is fundamentally unfair to fault the trial court for failing to rule correctly on an issue it was never given an opportunity to consider.” Day v. Payne (1996), 280 Mont. 273, 276-77, 929 P.2d 864, 866 (citation omitted).

¶64 In this case, the District Court was not given an opportunity to rule on Debra’s allegation regarding life insurance. Debra failed to include this allegation in her initial pleadings to the court. Although she indirectly raised the issue in her direct testimony, she failed to further address the issue or seek a remedy in her proposed findings and conclusions submitted to the court. Upon hearing the exchange between Debra and opposing counsel during cross-examination as to whether life insurance was even an issue before the court, and having no proposed findings by either party on the subject, the court was entitled to treat Debra’s life insurance allegation as a non-issue. We determine the court did not err in failing to address life insurance in its Findings of Fact, Conclusions of Law, and Decree.

Issue 6

¶65 Did the District Court err in awarding Tom attorney’s fees and costs?

¶66 The parties’ Agreement specifically provides:

ATTORNEY’S FEES: Should any action be commenced to enforce, modify, or interpret any provisions contained herein, the Court, as a cost of suit, shall award a reasonable attorney’s fee to the prevailing party.

Based on this provision, the court awarded Tom, as the prevailing party on all motions before the court, reasonable attorney’s fees and costs. Debra argues that this award of attorney’s fees should be reversed because it is inequitable. Debra asserts financial hardship and argues that requiring her to pay attorney’s fees and costs in an amount equal to three years of her gross wages would adversely affect her ability to support the children. We have already determined that Debra’s assertions of financial hardship are not credible. We determine that Debra’s claim of inequity is without merit. Accordingly, we hold that the District Court did not err in awarding Tom reasonable attorney’s fees and costs.

¶67 Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, GRAY, REGNIER, TRIEWEILER and LEAPHART.