author: JUSTICE TRIEWEILER JUSTICE HARRISON

text:
    ROBERT ALLEN ROMO, CONNIE ROMO, and TOM ROMO, Petitioners and Appellants, v. TARA DAWN HICKOK, LATOYA PATRICIA HICKOK, by and through their natural guardian, PATRICIA HICKOK, Respondents and Respondents.
    No. 93-440.
    Submitted on Briefs February 24, 1994.
    Decided March 28, 1994.
    51 St.Rep. 320.
    264 Mont. 341.
    871 P.2d 894.

      For Petitioners-Appellants: Mary L. Zemyan, Wolf Point.
    For Respondents: Carol C. Johns, (for Tara Dawn Hickok); Laura Christoffersen, Wolf Point (for Patricia Hickok).
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Robert Allen Romo petitioned the District Court for the Fifteenth Judicial District in Roosevelt County to establish paternity, custody, and visitation rights for LaToya Patricia Hickok, a minor child. Tom Romo and Connie Romo joined in the petition to obtain rights of visitation. The Romos appeal from that portion of the District Court order awarding visitation to the grandparents and awarding supervised visitation to the father after his release from the Montana State Prison. We affirm the District Court.

The following issues are presented for our review:

1. Did the District Court err when it found that visitation at the prison was not in the child’s best interest?

2. Did the District Court abuse its discretion when it ordered that, after his release from prison, the father’s visitation will be supervised by maternal relatives?

3. Did the District Court err when it did not set a visitation schedule for the father after his release from prison, but merely provided that visitation would be permitted?

4. Did the District Court err by giving the mother absolute control over visitation by the paternal grandparents?

FACTUAL BACKGROUND

LaToya Patricia Hickok was born on February 24, 1991. Her parents, Tara Dawn Hickok and Robert Allen Romo have not married each other. On October 18, 1991, Robert was sentenced to ten years at the Montana State Prison, with seven years suspended, for two counts of burglary and one count of theft.

On April 9, 1992, Robert filed a petition to establish paternity, custody, and visitation rights as LaToya’s father. Tom Romo and Connie Romo, Robert’s parents, joined him in his petition to obtain the right of visitation as LaToya’s grandparents.

After undergoing blood tests, the parties stipulated that Robert was the child’s natural father. On November 20, 1992, the District Court appointed Pam Hodges of the Department of Family Services guardian ad litem for the minor child, and further ordered that mental health evaluations and home studies be performed on Tara Hickok, Connie Romo, Tom Romo, and to the extent possible, on Robert Romo.

The District Court held a hearing on June 7, 1993, on the remaining issues of custody and visitation. The District Court’s July 2,1993, order granted sole custody of LaToya to her mother, which the Romos do not contest. The District Court ordered that LaToya not be required to visit her father at the Montana State Prison, but granted him supervised visitation after his release. With regard to Tom and Connie, the District Court recognized their right to visit their granddaughter, and in its order set forth the general parameters under which they could exercise that right.

ISSUE 1

Did the District Court err when it found that visitation at the prison was not in the child’s best interest?

The standard of review for custody and visitation is whether substantial, credible evidence supports the district court’s judgment. In re Marriage of Nash (1992), 254 Mont. 231, 234, 836 P.2d 598, 600.

The Romos argue that, before it could deny visitation with Robert at the prison, the District Court was required, on the basis of § 40-4-217(1), MCA, to find that such visitation would endanger LaToya. That section provides as follows:

A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child’s physical, mental, moral, or emotional health.

This Court recently stated in In re Marriage of Reininghaus (1991), 250 Mont. 86, 90, 817 P.2d 1159, 1161; cert. denied (1992), 112 S. Ct. 1497, 117 L. Ed. 2d 637, that:

Although § 40-4-217(1), MCA, requires a showing of endangerment [before the district court can place a restriction on visitation], we will not so narrowly interpret the statute so that the court is unable to design visitation that reflects the child’s best interests.

The Commissioners’ Note to § 40-4-217, MCA, states that with two important exceptions, the general rule to be applied in awarding visitation is the “best interest of the child” standard. It is only when the court deprives the noncustodial parent of all visitation, or when a custodial parent tries to restrict or eliminate a noncustodial parent’s visitation, that the judge must hold a hearing and make the extraordinary finding of serious endangerment.

On July 2, 1993, when the District Court made its findings, Robert’s tentative release date from prison was September 1993. Considering the brief amount of time this provision of the District Court order would have an effect, we do not find that Robert was deprived of visitation. Therefore, we will apply the “best interest” standard.

At the time of the hearing, LaToya was approximately two and one-half years old. The distance from Wolf Point to Deer Lodge is approximately 469 miles. Connie Romo testified that the trip to the Montana State Prison in Deer Lodge would involve a five-hour flight in a chartered plane piloted by Tom Romo. Tara testified that she felt the prison environment would confuse and scare her young daughter.

Based on the young age of the child, the long distance involved, the environment in which visitation would take place, and the short time necessary for postponement, we conclude that there was substantial evidence to support the District Court’s finding that visitation at the Montana State Prison was not in the child’s best interest. Under the circumstances of this case, we hold that “reasonable visitation” does not preclude postponing the right of visitation until the parent is in a position to exercise the right without interfering with the child’s best interest. In so holding, we are not establishing a hard and fast rule with regard to parents who are imprisoned under other circumstances.

ISSUE 2

Did the District Court abuse its discretion when it ordered that, after his release from prison, the father’s visitation will be supervised by maternal relatives?

The Romos argue that Robert’s visitation should not be restricted. The proper standard to apply where the custodial parent seeks restriction of the noncustodial parent’s visitation is the serious endangerment standard. Commissioners’ Note to § 40-4-217, MCA. In applying this standard, the district court is vested with liberal discretion. See Reininghaus, 817 P.2d at 1161-62. In this case, there was substantial evidence in the record to support a finding of serious endangerment to the child’s physical, mental, or moral well-being, including Robert’s extensive previous drug use and chemical dependency, his dishonesty and antisocial behavior, his suicide attempts, and threats of violence. We conclude that the District Court did not abuse its discretion when it required that Robert’s visitation be supervised.

However, the Romos argue that if supervision is necessary, that they should be allowed to supervise Robert’s visitation with LaToya. In the alternative, they argue that § 40-4-218, MCA, requires the Department of Family Services to conduct supervised visitation.

The purpose behind § 40-4-218, MCA, is to provide court intervention where the custodial parent has made a decision regarding the child sufficient to endanger the child’s physical health or emotional development, as for example, when a custodial parent refuses to provide medical care for a sick child. See Commissioners’ Note to § 40-4-218, MCA. Although supervised visitation may be conducted by the Department of Family Services, In re Marriage of Hickey (1984), 213 Mont. 38, 689 P.2d 1222, visitation by a noncustodial parent may also be supervised by family members or other persons. The primary consideration in the selection of a person or persons to supervise visitation should always be the best interest of the child.

Tara testified that she objected to supervision of Robert’s visitation with his daughter by Tom Romo and Connie Romo because they had failed to control Robert’s behavior in the past. She also testified that Robert had threatened to take LaToya from her and believed that his parents would be unable to prevent him from removing the child from their supervision.

The guardian ad litem recommended that Robert’s visitation be supervised by his parents. However, the District Court found that

[t]he visitation recommendations made to the Court by Social Worker Pam Hodges are not based on competent and complete evidence. The visitation frequency and conditions recommended by Social Worker Hodges are not in the child’s best interests.

We conclude that the District Court’s findings with regard to supervised visitation are supported by substantial evidence. We also conclude that the manner in which the District Court ordered that visitation be supervised was not an abuse of discretion.

ISSUE 3

Did the District Court err when it did not set a visitation schedule for the father after his release from prison, but merely provided that visitation would be permitted?

The Romos cite Sanderson v. Sanderson (1981), 191 Mont. 316, 623 P.2d 1388, to support their argument that it was an abuse of discretion not to set a specific visitation schedule. There, at the time the court awarded “reasonable visitation” to the father, the parties lived in the same city. Later, the mother moved 600 miles away, which effectively restricted the father’s visitation. We did not find that the District Court abused its discretion, we merely remanded with directions that the District Court specify a reasonable schedule for visitation. Sanderson, 623 P.2d at 1389.

Moreover, we have previously held that failure to order a specific visitation schedule does not constitute an abuse of discretion where there is no need for specificity demonstrated and the record indicates a willingness to allow visitation. In re Marriage of Meyer (1983), 204 Mont. 177, 182-83, 663 P.2d 328, 331.

There is nothing in the record to suggest that the parties in this case will be unable to work out a reasonable visitation schedule. The father’s imprisonment at the time of the District Court’s order, and the uncertainty with regard to his release, presented unique circumstances rendering a specific visitation schedule premature. We interpret the District Court order to provide for reasonable visitation, and we conclude that the District Court did not abuse its discretion when it granted reasonable visitation to Robert without further definition. We note, however, that should visitation become unworkable between the parties, the District Court may be required to devise a schedule. In re Marriage of Dirnberger (1989), 237 Mont. 398, 773 P.2d 330; Sanderson, 623 P.2d at 1389.

ISSUE 4

Does the District Court order err by giving the mother absolute control over visitation by the paternal grandparents?

The order of the District Court states:

While the child resides in Wolf Point, the grandparents may have visitation: a) once per week for a few hours each visit; b) for special occasions upon mutual agreement with the mother; and c) for “stop in” visits with her mother on holidays.
When the mother and child relocate, the grandparents may have a) afternoon visits up to four times per month when the grandparents are able to travel to the place of residence; b) and holiday visits if prearranged and mutually agreed upon by the grandparents and child’s mother.
The parties’ mutual agreement to visitation upon notice by the grandparents of their intent for visitation shall be a condition for visitation.

Further, Tara was ordered to notify Tom and Connie of her trips to Wolf Point so that visitation could be arranged, and advised that more frequent and longer visits, including overnight stays, would be permitted when the child is old enough to express her wishes to that effect.

The Romos argue that the District Court’s order allows the mother to have absolute control over their visitation and does not grant them an independent right to visitation based on the permissive language “may’ that appears in the order. They also argue that the condition of mutual agreement preceding each visitation weakens their right.

We interpret the references to the condition of mutual agreement to refer to times and places, not whether visitation may occur. As in any visitation situation, the success of this arrangement hinges on the cooperation of the parties. There is no evidence that cooperation has been withheld. When and if it is, the District Court is in the best position to make that determination and take the appropriate corrective measures.

Finally, Tara asks that she be awarded her attorney fees incurred on appeal. We conclude that the appeal is not groundless and we have no other factual or legal basis for awarding attorney fees.

The judgment of the District Court is affirmed.

JUSTICES HUNT, GRAY and WEBER concur.

JUSTICE HARRISON

concurring in part and dissenting in part.

I concur and dissent from the majority opinion, particularly with issue 2: whether the District Court abused its discretion when it ordered that, after his release from prison, the father’s visitation with the child would be supervised by a maternal relative. The parents of the father, the Romos, argue his visitation should not be restricted.

The record indicates that not only was the father a felon at the time of the hearing, but prior to that he had an unsavory record as a juvenile, including numerous incidents which would have been charged as felonies had he been older. The record also contains information that the father had been confined at the Miles City institute for juveniles and had threatened the mother of his child as well as her boyfriends. In addition, the record indicates the father has attempted suicide and has a history of violence.

Since the hearing, the mother has moved some 600 miles away from Wolf Point, Montana, and is now living in Pablo, Montana, with her mother and aunt. In objecting to the father’s visitation in Pablo, it is quite understandable that the mother and aunt would not particularly welcome the father in their home while supervising him with the child. I would hold that the corut did abuse its discretion when it required the father to have any visitation in Pablo.

After reading the record, I am troubled also that the father’s and grandparents’ interest in the child was not apparent until over a year after the child was born. The record indicates that no presents were ever given to the child until after this action was commenced and no support was given to the mother who, it appears, was either 15 or 16 when the child was born. While the record is devoid of any reference as to where the mother and child received their financial support, it might well be that it had to have come either from the mother’s parents or from welfare. To me, the sudden interest in the child a year after her birth and after the father was sent off to the penitentiary raises some question as to whether the child’s best interest is served until the father establishes a record of non-violence.

Further, the record indicates that a clinical psychologist was hired to submit an evaluation of the appropriateness of the father’s visitation with the child. The psychologist reported: “I see nothing contraindicatory [sic] about his having visitation with his child, be it in prison or not. Indeed, visitation rights would seem like a positive thing at this point.” The psychologist arrived at this conclusion after telephone conversations with the father while in prison, yet he had never seen the father nor the mother or the child — I find it unusual that this recommendation would hinge on mere telephone conversations.

Finally, it is my view that if these visitations are to be carried out, I believe the mother’s wishes and her situation — 600 miles away from where most of this has occurred — be given more study. A period of time should pass allowing the child to grow before set periods of visitation by the father are allowed.


source: Caselaw Access Project

author: JUSTICE WEBER

license: Public Domain

text:
    IN RE MARRIAGE OF MARGARET HAYES, Petitioner and Respondent, v. ROBERT HAYES, Respondent and Appellant.
    No. 93-576.
    Submitted on Briefs February 17, 1994.
    Decided March 31, 1994.
    51 St.Rep. 333.
    264 Mont. 350.
    871 P.2d 913.
    For Respondent and Appellant; Robert D. Morrison, Morrison Law Firm, Whitefish.

      For Petitioner and Respondent: Matthew W. Knierim, Christoffersen & Knierim, Glasgow.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from the amended Findings of Fact and Conclusions of Law and Dissolution in a marriage dissolution filed in the District Court for the Seventeenth Judicial District, Valley County. We reverse and remand.

We restate the issue on appeal:

Did the District Court err in its amended Findings of Fact and Conclusions of Law and Dissolution by relying on an oral property agreement between the parties?

The petitioner wife brought this action for dissolution on July 18, 1990. The husband filed his response on October 26,1990. The matter of the dissolution of the parties was set for trial on May 26, 1992. At 9:00 a.m. on the morning of the trial, the parties agreed to attempt to settle. Throughout the day, negotiations between the parties continued and at 4:55 p.m. the court reconvened for the purpose of considering the terms of the settlement.

The court indicated that judgment would be entered once the stipulated oral settlement agreement had been reduced to writing and resubmitted to the court. The oral agreement did not contain specific property valuations nor was it ever reduced to writing. Despite counsel’s failure to reduce the agreement to writing, the court entered its Findings of Facts and Conclusions of Law and Dissolution without that formal statement of the agreement.

This Court on appeal held that the settlement agreement needed to be more specific to avoid the type of controversy presented in this case and that the record did not establish an agreement between the parties. Marriage of Hayes (1993), 256 Mont. 266, 268, 846 P.2d 272, 273 (Hayes I). The cause was remanded to the District Court which issued an Amended Findings of Fact and Conclusions of Law. The amended version contained parts of the transcript verbatim but no written version of the partie’s agreement.

In its amended findings, the court determined that the settlement was not unconscionable and that it was not necessary that a written agreement be entered into. The court indicated that it was correcting a “clerical error” in the original document issued by the court. No hearing was conducted on remand and no evidence was presented to the court in support of the amended findings.

The husband appeals the amended findings of the court as inappropriate because of a lack of formal written agreement between the parties.

Did the District Court err in its amended Findings of Fact and Conclusions of Law and Dissolution by relying on an oral property agreement between the parties to the underlying dissolution?

Appellant husband contends that just as the initial findings were inadequate because they were not based upon a written agreement, so too are the amended findings inadequate because the agreement was never reduced to writing on remand. The husband argues that the court’s amended findings were incorrectly taken from the record and that he never had a chance to review the findings or approve them. Further, the husband argues that the marital estate was never valued and that such a valuation is required whether a valid agreement exists between the parties or not.

Respondent wife argues that the court’s responsibility in a divorce proceeding is to determine whether or not the agreement made by the parties is “unconscionable.” According to the wife, § 40-4-201(2), MCA, makes the terms of an agreement binding upon the court unless it concerns support, custody or visitation. The wife contends that all the court could do in this instance is to determine whether the agreement was unconscionable.

We review a District Court’s interpretation of the law as to whether it is correct. Steer Inc. v. Department of Revenue (1990), 245 Mont. 470, 803 P.2d 601. This case was remanded once because no written agreement had been entered into the record. Hayes, 256 Mont. at 268, 846 P.2d at 273. Since Hayes I was decided, we decided another case that, relying on Hayes I, specifically interpreted § 40-4-201(1), MCA, as requiring a written agreement. See Simms v. Simms (Mont. 1994), 871 P.2d 899. We stated in Simms:

Section 40-4-201, MCA, provides that the district court is bound by the parties’ separation agreement in matters of property distribution and maintenance if the court finds that the separation agreement is not unconscionable. However, the only separation agreement referred to in the statute is the written separation agreement. Absent a written separation agreement, there is nothing for the district court to review and on which to make a finding regarding conscionability. Under such circumstances, the district court has no alternative but to try the case on the merits and to dispose of the property, maintenance, support, custody and visitation issues on the basis of the applicable statutory criteria, evidenced by the entry of appropriate findings of fact, conclusions of law and judgment. (Emphasis in original.)

Simms, 871 P.2d at 902, 903.

Our statute clearly requires a written agreement:

40-4-201. Separation agreement. (1) To promote amicable settlement of disputes between parties to a marriage attendant upon their separation or the dissolution of their marriage, the parties may enter into a written separation agreement containing provisions for disposition of any property owned by either of them, maintenance of either of them, and support, custody, and visitation of their children. (Emphasis added.)

Section 40-4-201(1), MCA. The parties in this case do not have a written agreement. All that exists in the record is a transcript of oral stipulations concerning property which, as we stated in Simms, are insufficient for a court to determine whether the agreement itself is unconscionable. Further, appellant alleges that the court’s transfer of those stipulations into its findings resulted in several errors.

We conclude the District Court erroneously relied upon the oral agreement between the parties. The District Court here had no alternative but to try the case on the merits and to dispose of the property and other issues on the basis of the applicable statutory criteria, and the rule set forth in Simms, evidenced by the entry of appropriate findings and conclusions. We hold that the District Court erred in its amended Findings of Fact and Conclusions of Law and Dissolution by relying on an oral property settlement agreement between the parties to the underlying dissolution.

Reversed and remanded.

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


author: JUSTICE NELSON

text:
    LINDA NEWMAN MILLER Petitioner and Appellant, v. MAURINE FRASURE, d/b/a O’HAIRE MOTOR INN RESTAURANT, Employer, and WESTERN GUARANTY FUND SERVICES, Defendant and Respondent.
    No. 93-253.
    Submitted on Briefs January 13, 1994.
    Rehearing Denied April 21, 1994.
    Decided March 22, 1994.
    51 St.Rep. 233.
    264 Mont. 354.
    871 P.2d 1302.

      For Petitioner and Appellant: William O. Bronson, James, Gray & McCafferty, Great Falls.
    For Defendants and Respondents: K. Dale Schwanke, Jardine, Stephenson, Blewett & Weaver, Great Falls.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal, and a cross-appeal, from a Workers’ Compensation Court, findings of fact, conclusions of law and order, in which the court ruled that petitioner Linda Newman Miller (Miller), was permanently partially disabled. We affirm in part, reverse in part and remand for calculation of the permanent partial disability rate.

We restate the issues on appeal and cross-appeal.

ISSUES ON APPEAL

1. Did the Workers’ Compensation Court err in concluding that Miller was not permanently totally disabled?

2. Did the Workers’ Compensation Court err during its in camera inspection of the insurer’s claims file, and following order, by failing to require disclosure of otherwise discoverable facts?

3. Did the Workers’ Compensation Court err in failing to require the insurer’s adjuster’s deposition to take place in Montana?

ISSUES ON CROSS-APPEAL

1. Did the Workers’ Compensation Court err in concluding that Miller met her burden of proof that a causal relationship existed between her industrial accident and her disability?

2. Did the Workers’ Compensation Court err in concluding that, if Miller is permanently partially disabled, she can elect whether she will seek benefits under § 39-71-703, MCA, or under § 39-71-705-708, MCA?

3. Did the Workers’ Compensation Court err in sustaining Miller’s objections to Frasure’s deposition and the accompanying exhibit?

4. Did the Workers’ Compensation Court err in denying the insurer’s motion to reopen the trial?

Miller was 34 years old and working at the O’Haire Motor Inn Restaurant when she suffered an injury while at work on July 10, 1984. She slipped while mopping a floor and struck her right knee against the side of the bucket.

Since the accident, Miller has been to numerous physicians for a diagnosis of her knee problem, as well as relief from knee pain and swelling. These physicians have provided varying diagnoses for her condition, from chondromalacia patella of the right knee to reflex sympathetic dystrophy. It should be noted that Miller had suffered from both knee and hip problems before the date of the industrial accident.

Prior to the accident Miller was a high school graduate. After the accident she obtained a business degree from the Great Falls Vocational Technical Center, graduating in 1988. She has not sought paid employment since that time although she does volunteer at the YWCA as a receptionist/front desk clerk twice a week for a total of six hours per week. Miller has not made any attempt to obtain work, even on a part-time basis, since she started her volunteer position.

In addition to being the single parent of two children, Miller is a foster care parent for up to four children at a time. She receives $360 per child per month for her work as a foster care parent. Miller also receives $334 per month in social security as well as $42.70 per child for her two children.

Miller’s employer was enrolled under Compensation Plan # 2 of the Montana Workers’ Compensation Act and was insured by Inter-Mountain Insurance Company. InterMountain’s obligations have since been assumed by Western Guaranty Fund Services (Western), based in Denver, Colorado.

The standard of review for findings of fact is whether there is substantial credible evidence to support the Workers’ Compensation Court’s findings of fact. Pepion v. Blackfeet Tribal Industries (1993), 257 Mont. 485, 489, 850 P.2d 299, 302. The standard of review for conclusions of law is whether the tribunal's interpretation of the law is correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603. The standard of abuse of discretion applies to trial administration issues. Steer, Inc., 803 P.2d at 603-04.

ISSUES ON APPEAL

1. PERMANENT TOTAL DISABILITY

Miller argues that the Workers’ Compensation Court erred in concluding that she was not permanently totally disabled. The defendant/cross-appellant (Western) counter that there is substantial credible evidence supporting the Workers’ Compensation Court’s conclusion. Moreover, Western states that Miller did not carry her burden to introduce evidence about her normal labor market as required, but instead, provided evidence “related to jobs she had held prior to her injury and vocational retraining — not to the types of work she is qualified for now having graduated from Vo-Tech.”

Section 39-71-116(13), MCA (1983), states that:

“Permanent total disability” means a condition resulting from injury as defined in this chapter that results in the loss of actual earnings or earning capability that exists after the injured worker is as far restored as the permanent character of the injuries will permit and which results in the worker having no reasonable prospect of finding regular employment of any kind in the normal labor market. Disability shall be supported by a preponderance of medical evidence.

We have adopted the Workers’ Compensation Court’s approach to establishing the burdens of production and proof for the nonmedical elements of disability in establishing a permanent total disability. Metzger v. Chemetron Corp. (1984), 212 Mont 351, 355, 687 P.2d 1033, 1035. Metzger provides:

To establish the existence of no reasonable prospect of employment in the normal labor market, a claimant must introduce substantial credible evidence of (1) what jobs constitute his normal labor market, and (2) a complete inability to perform the employment and duties associated with those jobs because of his work-related injury. (Citation omitted.)

Metzger, 687 P.2d at 1035.

In the instant case, Miller did not present any vocational evidence concerning her normal labor market. Miller relied on her testimony that she could not perform any of the jobs she had in the past because of her physical limitations. We have concluded that that sort of testimony is sufficient to meet the claimant’s burden of proof to establish the existence of no reasonable prospect of employment in the claimant’s normal labor market. See, for example, Varela v. Exxon, U.S.A., Billings Refinery (1989), 237 Mont. 300, 308-09, 773 P.2d 299, 304; Ness v. Anaconda Minerals Co. (1993), 257 Mont. 335, 339, 849 P.2d 1021, 1023-24. Once the claimant has demonstrated that there is no reasonable prospect of employment in his normal labor market, the burden then shifts to the employer to show that suitable work is available. Metzger, 687 P.2d at 1036.

Here, Western met its burden to establish that, by reason of Miller’s post-injury education and training, there were other jobs for which she was suited by age, education, work experience and physical condition. Gerry Loch (Loch), a private rehabilitative counselor who worked with Miller in an attempt to facilitate her return to the work force, testified for Western and presented vocational evidence. She also developed job analyses after discussing Miller’s post-injury education and training with her and after discussing Miller’s medical condition with a physiatrist who treated Miller. Loch also considered that with Miller’s training and education, she was in a better earning position post-injury than she was in before she was injured and subsequently retrained, if she could work on a full-time basis.

Western offered the deposition testimony of Dr. Hinde, the physiatrist Loch interviewed, who stated that “[t]o my evaluation and by her history, I would suspect that [Miller] would be able to function successfully at a sedentary work level or very well selected light work level.” He also opined that “her sum total of demonstrated function in terms of volunteer capacity, homemaking activity, child care activity, would constitute an equivalent to more hours than six hours per week of sedentary to well selected light work. To work out of the home would require child care to be arranged and perhaps someone else to assist with homemaking duties, but it certainly doesn’t preclude work at a level of much higher than that.” Dr. Hinde concluded that the job analyses compiled by Loch were positions which were medically appropriate for Miller although his recommendation was to gradually work Miller into full time employment. Dr. Hinde’s conclusions were also supported by another physiatrist, Dr. Jackson, to whom Dr. Dietrich referred Miller.

To counter Western’s evidence, Miller, for the most part, relied on her own testimony that she would not be able to perform the job duties associated with the analyses provided by Loch. She also offered the deposition testimony of Dr. Dietrich that unless there was some improvement in her physical condition, he would not approve of Miller working beyond the six hours per week she volunteers at the YWCA. The sum total of the evidence provided by Miller, coupled with her non-existent effort to obtain even part-time employment, does not carry her burden to prove an inability to find employment in her normal labor market. Metzger, 687 P.2d at 1036. Western, however, did carry its burden to show that suitable work was available for Miller, and that, therefore, she was not permanently totally disabled.

Miller also poses the argument that she may be an “odd lot” employee. However, Miller is not an “odd lot” employee due to her sufficient training, education and experience and therefore, we reject her “odd lot” employee argument. Metzger 687 P.2d at 1036.

Moreover, Miller provided testimony about a variety of household chores she has engaged in which indicate an ability to work outside of the home in a paid position. In 1990, Miller bought a new home, which she cleaned when she moved in, vacuuming the carpets and “wash[ing] everything down.” She also painted a couple of bedrooms and the kitchen. Additionally, she seeded, fertilized and watered the lawn as well as put in flower beds around the house. Moreover, Miller testified that she does the laundry and cooking for herself, her two biological children and up to 4 foster children. These many and varied activities indicate that Miller could be working outside of the home, at least on a part-time basis.

We therefore, conclude that there was substantial credible evidence to support the Workers’ Compensation Court’s judgment that Miller was not permanently totally disabled. “Even though conflicting evidence may exist in the record, it is the duty of the Workers’ Compensation Court, and not this Court, to resolve such conflicts.” (Emphasis added.) Pepion, 850 P.2d at 302. The Workers’ Compensation Court had the opportunity to listen to the witnesses, assess their credibility and testimony, and it correctly concluded that substantial credible evidence supported a conclusion that Miller was not permanently totally disabled.

2. IN CAMERA INSPECTION

Miller contends that the Workers’ Compensation Court’s order on disclosure of the insurer’s claims file does not indicate whether certain documents not disclosed contained “factual information otherwise discoverable.” Western states that Miller never asked the Workers’ Compensation Court to indicate whether documents not ordered to be disclosed contained factual information otherwise discoverable so she should not be heard to complain at this time.

Miller’s argument cannot prevail because she did not seek to have the insurer’s claims file which was the subject of the Workers’ Compensation Court’s protective order of February 19, 1992, filed with this Court as a part of the record on appeal. We will not presume that the Workers’ Compensation Court erred in the “in camera” inspection; without the file, there is no way for this Court to review the Workers’ Compensation Court’s decision to exclude some documents in the file from discovery and produce other documents. See Palmer by Diacon v. Farmers Ins. (1993), 261 Mont. 91, 861 P.2d 895, 906. It remains the appellant’s obligation to insure the completeness and accuracy of the record on appeal and to take appropriate action to have included in the record all documents, discovery and evidence which relate to the errors claimed. Appellant may not predicate error on an incomplete record. In the instant case, it would have been appropriate to request the Workers’ Compensation Court to seal the non-discoverable documents and to order those filed with the record on appeal. See, for example, State v. Little (1993), 260 Mont. 460, 861 P.2d 154, 158.

Under the circumstances, we must affirm the Workers’ Compensation Court’s order prohibiting discovery of some documents in the insurer’s claims file and allowing discovery of other documents from the file.

3. DEPOSITION OF CLAIMS ADJUSTER

Finally, Miller complains that, pursuant to Rule 24.29.804, ARM, the claims adjuster in charge of Miller’s case should have been ordered to be deposed in Montana inasmuch as Western is the insurer and inasmuch as Western does not maintain a resident adjuster in Montana, a requirement under Rule 24.29.804, ARM.

The Workers’ Compensation Court concluded that Western was deemed an “insurer” within the meaning of § 33-10-105(l)(b), MCA, and that Western, through § 39-71-116(8), MCA, was subject to Rule 24.29.804, ARM. However, the court refused to compel the adjuster in charge of Miller’s case to be deposed in Montana under the rationale that it could not enforce a subpoena across state lines, and, in so ruling, left Miller to complain to the Department of Labor if she felt the Rule was being violated. We agree that Western is subject to the Rule; we disagree that the adjuster cannot be compelled to attend his deposition in Montana.

Rule 24.29.804, ARM, provides:

ADJUSTERS IN MONTANA (1) Every insurer is required to designate at least one adjuster, maintaining an office in Montana, which shall pay compensation when due and which shall have authority to settle claims

A logical extension of this rule is that the adjuster, by virtue of his required presence in Montana, should then be available for a deposition in this State. Western is admittedly in violation of this Rule in not having a resident adjuster in Montana.

Under § 39-71-203, MCA, the Workers’ Compensation Court is vested with the power, authority and jurisdiction necessary to the exercise of its power to conduct proceedings and hearings and make determinations concerning disputes under Chapter 71. Moreover, Rule 24.5.326, ARM, provides the Workers’ Compensation Court with the authority to compel the claims adjuster to be deposed in Montana by an order to compel responses. The statute and the rule provide the Workers’ Compensation Court with the authority to order the insurer’s claims adjuster to be deposed in Montana. The court’s concern over its ability to enforce an out-of-state subpoena is not the issue. The adjuster represents a named party over which the court has jurisdiction; Western is the insurer and is obligated to conduct its business of insuring claimants and adjusting claims in accordance with applicable State laws and administrative regulations.

While it might be argued that this issue is moot because Miller, on the basis of the comb’s order, went ahead and deposed the adjuster in Colorado in preparation for trial, in view of the potential for this issue to recur in this and other cases, we hold that the statutes and rules aforementioned mandate that a non-resident claims adjuster can be compelled by the Workers’ Compensation Court to be deposed in Montana, as a logical extension of the insurer’s obligation to designate a resident adjuster under Rule 24.29.804, ARM. We reverse the decision of the Workers’ Compensation Court on this issue.

ISSUES ON CROSS-APPEAL

1. CAUSAL RELATIONSHIP BETWEEN ACCIDENT AND DISABILITY

Western contends that Miller did not prove a causal relationship between the accident and the injury necessary to establish a permanent partial disability. Western bases its argument on two alleged errors by the Workers’ Compensation Court.

A. Unsworn Medical Reports

Western argues that a finding of “permanent partial disability” requires a determination that the disability result from an injury. The Workers’ Compensation Court’s determination that Miller was permanently partially disabled was based upon its conclusion that Dr. Patterson and Dr. Popnoe relate Miller’s disability to the accident at O’Haire’s Motor Inn. Western states that Miller did not call either doctor to testify at trial or by deposition, and therefore, their testimony by written medical reports should be excluded. Miller argues that pursuant to Rule 24.5.317, ARM, the Workers’ Compensation Court’s reliance on the written medical reports was proper.

We agree that the Workers’ Compensation Court’s reliance on the written medical reports of Drs. Patterson and Popnoe was proper. Western bases its argument that the medical reports were improper on Hert v. J. J. Newberry Co. (1978), 178 Mont. 355, 584 P.2d 656 — Order on Petition for Rehearing (1978), 179 Mont. 160, 587 P.2d 11, wherein this Court determined that unsworn medical reports which were not exchanged before trial and whose authors were not available at trial, were not admissible in the proceeding. The Hert Court based its decision primarily on its concern that the author of the medical report was not available for cross-examination. This concern was addressed and considered in 1990 by the adoption of Rule 24.5.317, ARM. Rule 24.5.317, ARM, provides:

24.5.317MEDICAL RECORDS (1) Prior to any scheduled trial, the parties shall exchange all medical records based upon examination of the claimant. Failure to exchange any medical records, whether or not based on an examination, by the exchange deadline shall preclude its use at trial, except for good cause as set forth in subsection (4).
(2) Medical records based on an examination of the claimant and exchanged by the parties or their attorneys by the exchange deadline are admissible without the necessity of foundation testimony. A party may object to those reports being admitted into evidence and the objecting party will be allowed to depose or subpoena the author of any such records for purposes of cross-examination. An objecting party may subpoena the author for trial, or deposition before or subsequent to the trial as provided in ARM 24.5.322(1).
(3) Subsection (2) applies only to admissibility. All other objections, such as relevance and materiality, are preserved and may be raised as in any other proceeding.
(4) Medical records exchanged after the exchange deadline may be admitted into evidence only if stipulated to by the parties, or by the laying of the proper foundation by the proponent of the record. Upon proper motion and for good cause shown, the court, in its discretion may permit a post trial deposition under this section. Rule 24.5.317, ARM, states that medical records based on an

examination of the claimant and exchanged between the parties are admissible without the necessity of foundation testimony. Subsection 2 of the Rule affords the opposing party the opportunity to depose or subpoena the author of medical records at issue for the purposes of cross-examination if there is any objection to the medical records. Thus, the rule acknowledges due process cross-examination concerns by providing an opportunity for opposing parties to depose or subpoena the author of medical records, thereby addressing and disposing of our concern expressed in Hert.

The rule finds support in both Montana and federal case law. For instance, in Stevens v. Glacier Gen. Assur. Co. (1978), 176 Mont. 61, 575 P.2d 1326, this Court allowed the admission of unsworn medical reports, stating that “claimant had notice, well in advance of the hearing, that defendants would rely on the reports of claimant’s treating physicians ... [claimant had ample opportunity to cross-examine the doctors by way of pre-hearing deposition, or by calling them as witnesses at the hearing.” Stevens, 575 P.2d at 1330.

In a United States Supreme Court case, Richardson v. Perales (1971), 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842, the issue was whether physicians’ written medical reports of examinations of claimant may be considered “substantial evidence” to support a finding of non-disability in a social security hearing “when the claimant objects to the admissibility of those reports and when the only live testimony is presented by his side and is contrary to the reports.” Richardson, 402 U.S. at 390. The Court concluded that:

[A] written report by a licensed physician who has examined the claimant and who sets forth in his report his medical findings in his area of competence may be received as evidence in a disability hearing and, despite its hearsay character and an absence of cross-examination, and despite the presence of opposing direct medical testimony and testimony by the claimant himself, may constitute substantial evidence supportive of a finding by the hearing examiner adverse to the claimant, when the claimant has not exercised his right to subpoena the reporting physician and thereby provide himself with the opportunity for cross-examination of the physician.

Richardson, 402 U.S. at 402, 91 S.Ct. at 1428. Some of the Court’s reasons for concluding that the evidence was admissible include the following:

1. The reports were prepared by practicing physicians who had examined Perales.
2. Perales could have, but did not, take advantage of the opportunity to cross-examine the reporting physicians under 20 CFR § 404.926.
3. “Courts have recognized the reliability and probative worth of written medical reports even in formal trials and, while acknowledging their hearsay character, have admitted them as an exception to the hearsay rule.” Richardson, 402 U.S. at 405, 91 S.Ct. at 1429.
4. The probative value of these reports had been recognized in social security disability hearings in the past.
5. “[T]he cost of providing live medical testimony at those hearings, where need has not been demonstrated by a request for a subpoena, over and above the cost of the examinations requested by hearing examiners, would be a substantial drain on the trust fund and on the energy of physicians already in short supply.” Richardson, 402 U.S. at 406, 91 S.Ct. at 1430.

These same considerations are inherent in the adoption of the Workers’ Compensation Court’s rule allowing for the admissibility of medical reports. We hold that under Rule 24.5.317, ARM, the written medical reports of Drs. Patterson and Popnoe were properly relied upon by the Workers’ Compensation Court judge in his decision. Further, because of the adoption of Rule 24.5.317, ARM, Hert is no longer authority for the admissibility of medical records.

B. Written Statements as Sufficient to Find Disability

Western argues that even if the written medical statements were admissible, they did not amount to a preponderance of the evidence to establish a causal relationship between the accident and the injury. Miller counters that case law supports the Workers’ Compensation Court’s conclusion that Miller has a permanent partial disability because her industrial accident aggravated a preexisting condition. We agree.

The aggravation of a preexisting condition is compensable. Rumsey v. Cardinal Petroleum (1975), 166 Mont. 17, 28, 530 P.2d 433, 439. Miller argues that “proof that it was medically possible for an industrial accident to aggravate a pre-existing condition is acceptable proof of disability,” citing Viets v. Sweet Grass County (1978), 178 Mont. 337, 340, 583 P.2d 1070, 1072; Strandberg v. Reber Co. (1978), 179 Mont. 173, 176, 587 P.2d 18, 20. (Emphasis added.) The Viets Court stated that while claimants must prove by a preponderance of the evidence that the injury suffered arose out of and in the course of their employment, “evidence of what is medically possible is more reliable in proving aggravation of an injury or disease [rather] than cause and effect.” Viets, 583 P.2d at 1072. Therefore, according to Miller, under the law applicable at the time of injury, evidence of the possibility of an aggravation of an injury is acceptable even though the nexus between actual injury and disability must be proved by a preponderance of the evidence.

Western maintains that proof of medical possibility alone is insufficient to meet the claimant’s burden of proof, citing Ferdinand v. Lodge #456, B.P.O.E., Lewistown (1986), 221 Mont. 436, 719 P.2d 775, and that there must be evidence offered in addition to and supportive of the medical possibility of aggravation of the preexisting condition.

As pointed out by Western, the Viets approach was modified by other cases; proof that it was medically possible for an industrial accident to aggravate a preexisting condition is acceptable proof of a disability but it must be supported by other independent evidence. See Currey v. 10 Minute Lube (1987), 226 Mont. 445, 736 P.2d 113 (injury occurred in 1984). The Currey Court, citing Wheeler v. Carlson Transport (1985), 217 Mont. 254, 261, 704 P.2d 49, 53-54, stated:

“Medical possibility’ is to be weighed just as any other evidence; if supported by other, independent evidence it is “acceptable” to be used by the court in making its determination. Medical possibility evidence by itself, though, does not mandate the conclusion that the claimant has met his burden of proof under the Act.

While the 1987 legislature statutorily modified claimants’ burden of proof for the occurrence of injury and aggravation of a preexisting condition, we conclude that claimant’s burden of proof in this case is best explained by the approach suggested by Western — i.e. proof of medical possibility supported by other independent evidence.

Miller provided a letter from Dr. Popnoe, stating that he saw Miller on March 19,1985, and after an examination diagnosed her condition as “[c]hondromalacia of the right patella secondary to possibly (sic) injury as well as a result of patellar malalignment in the past.” Additionally, Dr. Patterson opined that “the original injury to her knee and possibly to associated cutaneous nerves is the source of her condition.”

Miller also points out to the court that Dr. Losee’s examination and his follow-up report add support to Drs. Patterson’s and Popnoe’s opinions that the injury caused the disability. Dr. Losee stated that it was his impression that she irritated the infrapatellar branch of the saphenous nerve of the right knee when she hit her knee against the bucket.

In addition, Dr. Avery testified to the following in his deposition:

Q. I apologize if I wasn’t clear. What I was referring to principally was the fact that prior to this incident, that she states occurred in July of 1984, she had some problems with her knee, at an earlier period of time. And these problems had had some type of surgical procedure performed to resolve that problem?
A. Correct.
Q. I also understand it was your testimony that you felt that the incident that she related, that occurred on July 10, 1984, had aggravated these pre-existing problems, is that correct?
A. That’s correct.

Under the modified Viets approach, we conclude that there was sufficient evidence to prove that Miller had a preexisting medical condition which was aggravated by her July 10, 1984 injury. The letters from Drs. Popnoe and Patterson establish the possibility that the injury aggravated the existing knee problems. This evidence is supported by independent evidence of Drs. Losee and Avery, which establishes, under the Currey standard, that Miller has met her burden to prove her case by the preponderance of the evidence. “[Wjhere the findings are based on conflicting evidence, this Court’s function on review is confined to determining whether there is substantial evidence to support the findings and not to determine whether there is sufficient evidence to support contrary findings.” Little v. Structural Systems (1980), 188 Mont. 482, 486, 614 P.2d 516, 519. Although the evidence here is not overwhelming and is certainly conflicting, we conclude that substantial evidence does support the Workers’ Compensation Court’s determination. We hold that the Workers’ Compensation Court did not err in determining that Miller had a permanent partial disability.

2. ELECTION OF REMEDIES

Western argues that Miller should have elected to claim benefits under § 39-71-703, MCA, or by applying §§ 39-71-705 through 708, MCA, but she did not make that election and did not present evidence at trial from which the Workers’ Compensation Court judge could determine the amount of benefits to which she was entitled. Miller counters that the argument that she was permanently partially disabled was an alternative position and that the determination of the level of benefits could properly be postponed until a later date.

Pursuant to § 39-71-2905, MCA, the Workers’ Compensation Court judge has exclusive jurisdiction to make determinations concerning disputes and is required to fix and determine benefits due to claimants who successfully prove a disability. In its findings of fact, conclusions of law, and order, the Workers’ Compensation Court stated that it had some of the data necessary to determine the appropriate award for Miller but that it was currently unable to determine the actual rate. It further requested information that would bring Miller’s 1984 wages current to the time of the trial.

The Workers’ Compensation Court’s authority to fix and determine benefits extends to the authority to determine the time and manner in which it shall determine those benefits. The court has chosen a suitable process for determining Miller’s benefits in the present case. The determination of Miller’s permanent partial disability benefits is a strictly formulaic procedure which can be easily and quickly accomplished with the admission of numerical evidence. Because the Workers’ Compensation Court does not have all the necessary evidence to determine Miller’s benefits at this time, the appropriate recourse is to remand the case to the Workers’ Compensation Court for a determination of Miller’s permanent partial disability rate. We, therefore, remand this issue to the Workers’ Compensation Court for further proceedings.

3. FRASURE DEPOSITION

Western argues that the Workers’ Compensation Court improperly granted Miller’s motion to strike Maurine Frasure’s rebuttal deposition. (Frasure is the former owner/operator of the O’Haire Motor Inn, Miller’s employer at the time of the accident.) Western contends that the Voluntary Quit Statement filled out by Miller and offered by Western as an exhibit to Frasure’s deposition, was new evidence the Workers’ Compensation Court should have considered. Moreover, argues Western, that exhibit was an exhibit counsel was not even aware existed until the taking of the rebuttal deposition on October 19, 1992. Miller contests Western’s argument, stating that the actual purpose of the Frasure rebuttal deposition was to challenge testimony from Miller’s case-in-chief.

During the taking of Frasure’s deposition, Miller’s attorney objected to the majority of the testimony elicited on the grounds that it properly should have been produced in Western’s case-in-chief. We agree. The testimony presented concerned Miller’s injury and her attempt to return to the work force. This information could have been or should have been elicited during Western’s case-in-chief.

Rebuttal testimony is confined to matters which tend to counteract new matters offered by the opposing party. Gustafson v. Northern Pacific Railway Company (1960), 137 Mont. 154, 164, 351 P.2d 212, 217. The matters delved into here include the relationship between the accident and Miller’s physical condition, her credibility, and her ability to work after Dr. Avery released her back to the work force. These are some of the main issues raised during the trial and should have been adequately explored during Western’s case-in-chief. See Massman v. City of Helena (1989), 237 Mont. 234, 243, 773 P.2d 1206, 1211-12. Western was given its chance to examine these issues during trial and should have discovered this information during pretrial investigation and preparation. The testimony and exhibits were not properly rebuttal testimony and therefore, we hold that the Workers’ Compensation Court properly exercised its discretion in striking and excluding the testimony and accompanying exhibit.

4. MOTION TO REOPEN THE TRIAL

Western asserts that the Workers’ Compensation Court improperly denied its motion to reopen the trial to admit evidence of the Voluntary Quit Statement offered as an exhibit to Maurine Frasure’s deposition. Miller counters that the motion was untimely and the Workers’ Compensation Court properly exercised its discretion in refusing to grant the motion. We agree with Miller’s assessment and with that of the Workers’ Compensation Court. Frasure’s rebuttal deposition was taken on October 19, 1992. The motion to reopen the case, filed in order to present the Voluntary Quit Statement, was not filed until December 18, 1992, almost two months later.

The Workers’ Compensation Court, in its denial of Western’s motion, commented that Western should have been in contact with Frasure during its preparation for trial and the evidence at issue should have come to light at that time. Even if Western did not obtain evidence of the Voluntary Quit Statement until Frasure’s deposition on October 19,1992, it should have made arrangements at that point to obtain the full document from Frasure as soon as possible.

Pursuant to Rule 24.5.316(4), ARM, the Workers’ Compensation Court has discretion to reopen a case and allow additional evidence. In the instant case, the Workers’ Compensation Court had sound reasons for refusing to allow additional evidence in the case, and we do not find any abuse in the exercise of its discretion. Western had ample opportunity to obtain the evidence necessary to defend its case but it did not avail itself of the opportunity in a timely manner. We conclude that the Workers’ Compensation Court correctly denied the motion to reopen the case to admit the Voluntary Quit Statement.

Affirmed in part; reversed in part; and remanded for calculation of the permanent partial disability rate.

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

       We are obligated to apply the substantive law in effect at the time of the claimant’s injury. Buckman v. Mont. Deaconess Hosp. (1986), 224 Mont. 318, 730 P.2d 380. Under the law since 1987, proof that it was medically possible that a claimed injury aggravated a preexisting condition is not sufficient to establish liability. See Ch. 464, L. 1987, § 39-71-407(2)(b)(1993), MCA, Plainbull v. Transamerica Insurance Company, Cause No. 93-432; and Prillaman v. Community Medical Center, Cause No. 93-283.


author: JUSTICE WEBER JUSTICE HUNT JUSTICE TRIEWEILER

text:
    LARRY WAYNE THOMPSON, Plaintiff and Appellant, v. THE DEPARTMENT OF JUSTICE, DRIVERS LICENSE BUREAU, Defendant and Respondent.
    No. 93-175.
    Submitted on Briefs January 27, 1994.
    Decided March 24, 1994.
    51 St.Rep. 272.
    264 Mont. 372.
    871 P.2d 1333.

      For Appellant: Richard R. Buley, Tipp & Buley, Missoula.
    For Respondent: Joseph P. Mazurek, Attorney General, Brenda Nordlund, Assistant Attorney General, Helena; Robert L. Deschamps, III, Missoula County Attorney, Betty Wing, Deputy Missoula County Attorney, Missoula.
   JUSTICE WEBER

delivered the Opinion of the Court.

Appellant Larry Wayne Thompson (Thompson) appeals the order of the District Court of the Fourth Judicial District, Missoula County, which suspended Thompson’s driver’s license for a period of ninety days. We affirm the order of the District Court.

The sole issue for review is whether the District Court erred in suspending Thompson’s license for ninety days.

Thompson was arrested on October 14,1992, for allegedly driving under the influence of alcohol. The highway patrol officer who stopped him conducted a number of field sobriety tests before bringing him to the jail. When Thompson refused to take a breathalyzer test at the jail, the officer took his driver’s license and submitted it to the Department of Justice’s Drivers’ License Bureau (the Department), along with a statement that the officer had reasonable cause to believe Thompson was driving under the influence of alcohol.

On October 16, 1992, Thompson filed a petition in District Court to review his license suspension. Neither the County Attorney's Office nor the Department were served with a copy of the petition and neither was notified in any manner of the filing of the petition. The District Court issued an order on October 27, 1992, ordering the Department to restore the petitioner’s driving privileges for employment purposes pending a hearing. Thompson did not set the petition for hearing or give notice. Following the acquittal of Thompson in the Justice Court, on February 10, 1993, the County Attorney requested a hearing on the petition of Thompson which had been filed on October 16, 1992. Following the hearing on March 2, 1993, the District Court determined that the arresting officer had reasonable belief Thompson was driving under the influence of alcohol and the court suspended Thompson’s license for ninety days.

At the District Court hearing the arresting officer was the only witness to testify. In the course of the cross examination by Thompson’s counsel, the following questions and answers were given:

Q.... Officer Palmer, I’m handing you what’s been marked as Defendant’s Exhibit “A.” Is that the refusal affidavit which you would have submitted to the Driver’s License Bureau or a copy of it?
A. Beside the obvious thing up in the corner, it appears to be, yeah.
Q. Is that your signature?
A. Yeah.
MR. BULEY: Obviously, it also contains a photocopy of Mr. Thompson’s driving license.

The Exhibit “A” was admitted without objection. In oral argument following the conclusion of the officer’s testimony, Thompson’s counsel argued that Thompson’s driver’s license could not be suspended unless there was a sworn report as required under § 61-8-402(3), MCA. Counsel argued that Thompson’s Exhibit “A” shows that the report which was submitted to the Driver’s License Bureau is not sworn and that as a result there was no authority to suspend the license in the first instance.

The court inquired if this was a new issue which Thompson was raising and if the absence of proof of a sworn statement had to be considered in this proceeding. The court then inquired if this document had been received from Helena and Thompson’s counsel advised that it had been obtained from the County Attorney’s Office. The court pointed out that there was no way to know if it was the same as the form submitted to the Motor Vehicle Division. The court further inquired if Thompson had notified the county that this was an issue and was advised that he had not so notified the county. The District Court then determined that it would not consider the issue.

Section 61-8-402, MCA (1991), provides in pertinent part:

(3) If a driver under arrest refuses upon the request of a peace officer to submit to a test designated by the arresting officer as provided in subsection (1) [relating to blood, breath or urine], none shall be given, but the officer shall, on behalf of the department, immediately seize his driver’s license. The peace officer shall forward the license to the department, along with a sworn report that he had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a vehicle upon ways of this state open to the public, while under the influence of alcohol, drugs, or a combination of the two, and that the person had refused to submit to the test upon the request of the peace officer. Upon receipt of the report, the department shall suspend the license for the period provided in subsection (5). (Emphasis supplied.)

Subsection (5) provides for a suspension of ninety days with no provision for a restricted probationary license upon a first refusal to submit to blood, breath or urine testing.

Thompson contends that as a condition precedent to any suspension of his license, the arresting officer was required by statute to submit a sworn report to the Department. The District Court relied on § 61-8-403, MCA (1991), for its decision not to address this issue. Section 61-8-403, MCA (1991), provides in pertinent part:

... [t]he court shall take testimony and examine into the facts of the case, except that the issues shall be limited to whether a peace officer had reasonable grounds to believe the person had been driving or was in actual physical control of a vehicle upon ways of this state open to the public, while under the influence of alcohol, drugs, or a combination of the two, whether the person was placed under arrest, and whether such person refused to submit to the test. The court shall thereupon determine whether the petitioner is entitled to a license or is subject to suspension as heretofore provided.

Thus, according to the above-quoted statute, the District Court was limited in the issues which it could address at the hearing.

The District Court entered its Findings of-Fact, Conclusions of Law and Order on March 3,1993, determining that (1) the arresting officer had reasonable grounds to believe that Thompson was driving a motor vehicle upon a public way while under the influence of alcohol; (2) that he had been placed under arrest; and (3) that Thompson refused to take the requested breath test. In Gebhardt v. State (1989), 238 Mont. 90, 95, 775 P.2d 1261, 1265, this Court pointed out that a hearing held under the statute regarding suspension of license — as in the present case — is a civil proceeding, and that such civil proceeding is separate and distinct from a criminal trial on the charge of operating a motor vehicle while under the influence of alcohol. As a result, the determination in Justice Court that Thompson was acquitted of driving under the influence is not a factor to be considered in the present case.

The District Court’s jurisdiction in this case was limited by § 61-8-403, MCA (1991). In Blake v. State (1987), 226 Mont. 193, 198, 735 P.2d 262, 265, we stated:

The function of this Court is simply to ascertain and declare what in terms or in substance is contained in the statutes and not to insert what has been omitted. ... Where the language of a statute is plain, unambiguous, direct, and certain, the statute speaks for itself. ... Section 61-8-402, MCA, is patently clear that when a police officer has reasonable grounds to believe a person was driving or in actual physical control of a vehicle while under the influence of alcohol and the person refuses to take a chemical test, the State shall automatically suspend that person’s driver’s license for 90 days upon first refusal. (Citations omitted.)

The District Court concluded that under § 61-8-403, MCA (1991), and Blake, the court was required to determine if the officer had reasonable grounds to believe the person was driving the vehicle while under the influence of alcohol, whether the person was placed under arrest, and whether the person refused to submit to the test. The District Court concluded those were the only issues which it could properly determine.

We conclude that the District Court was correct in its limitation of the issues to those above described. We further conclude that the uncontradicted evidence supports the conclusion reached by the District Court.

With regard to the issue raised by Thompson as to the filing of the sworn report with the Department, we affirm the conclusion of the District Court that it should not consider that issue. We emphasize that neither the Department nor the County Attorney’s Office was given notice of the filing of the petition by Thompson. In a similar manner, no notice was given to the State or County Attorney’s Office that Thompson was raising an issue as to the filing of the proof of the sworn statement. As a result, neither the County Attorney’s Office nor the Department had the opportunity to present the actual report which was received by the Department to refute the contentions of Thompson. We conclude that the sworn report issue was neither properly raised nor presented.

We affirm the District Court order of suspension of Thompson’s license.

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

JUSTICE HUNT

dissenting.

I dissent from the opinion of the Court.

The majority follows the District Court’s reasoning that at the hearing on petitioner’s petition, he attempted to raise a new issue regarding proof of a sworn statement from the arresting officer. The majority concludes that the court rightly limited consideration of the officer’s statement, pursuant to § 61-8-403, MCA (1991). Further, the majority, in effect, says that petitioner was obliged to notify both the county attorney and the Department of Justice of his petition before presenting evidence at the hearing that the officer had not filed a sworn statement along with petitioner’s driver’s license, with the Driver’s License Bureau. I cannot agree.

Petitioner did not raise a new issue by offering this evidence at the hearing. While the District Court correctly relied on § 61-8-403, MCA (1991), for a determination of the appropriate scope of inquiry in a driver’s license suspension appeal, Exhibit “A” was certainly within that scope. Section 61-8-403, MCA (1991), provides in part:

[T]he court shall take testimony and examine into the facts of the case, except that the issues shall be limited to whether a peace officer had reasonable grounds to believe the person had been driving ... and whether such person refused to submit to the [sobriety] test. [Emphasis added].

The issue of whether the peace officer’s initial statement contained reasonable grounds to believe petitioner was under the influence of alcohol and/or drugs and refused to submit to a sobriety test is supported directly by the veracity of that statement.

[Reasonable grounds exist if the facts and circumstances within the personal knowledge of the arresting officer would be sufficient to warrant a reasonable person to believe that the motorist is under the influence of alcohol.

Boland v. State (1990), 242 Mont. 520, 524, 792 P.2d 1, 3 (citing Gebhardt v. State (1989), 238 Mont. 90, 97, 775 P.2d 1261, 1266). The probable cause inquiry allowed in § 61-8-403, MCA (1991), and the requirement in § 61-8-402(3), MCA (1991), that the officer file a “sworn report”, necessarily involve one issue — whether the peace officer truly had reasonable grounds to make the arrest. The statutes must be read together. The purpose of the officer’s sworn statement requirement under Montana’s implied consent law, § 61-8-402, MCA (1991), is to assure that an officer is accountable for assertions that there is a particularized suspicion of wrongdoing, and in particular, reasonable grounds to believe that the arrestee had been driving or was in actual physical control of a vehicle upon “ways of this state open to the public,” and that the person refused to submit to one or more sobriety tests.

The majority cites Blake v. State (1987), 226 Mont. 193, 735 P.2d 262, for the proposition that:

The function of this Court is simply to ascertain and declare what in terms or in substance is contained in the statutes and not to insert what has been omitted. Where the language of a statute is plain, unambiguous, direct, and certain, the statute speaks for itself. [Citations omitted].

Blake, 735 P.2d at 265. In keeping with this rule, we should not turn a blind eye to the language in § 61-8-402(3), MCA (1991), which requires a peace officer to forward the driver’s license to the Driver’s License Bureau with a sworn statement that he had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a vehicle while under the influence of alcohol and/or drugs. To ignore this requirement is to ignore our own dictate that we should declare the terms or substance of the statutes and not to insert language that would allow a peace officer to forward a sworn statement only at his own discretion. Petitioner did not attempt to raise a new issue regarding proof of a sworn statement from the arresting officer, and the court improperly limited consideration of the officer’s written statement, pursuant to § 61-8-403, MCA (1991).

As pointed out by the majority, Exhibit “A” was admitted without objection. The District Court abused its discretion when on its own motion it ruled that petitioner’s evidence lacked competency and refused to consider it. The State carried the burden of objecting to the competency of petitioner’s Exhibit “A” on the grounds that petitioner had not presented the best evidence. By not preserving its objection, the State waived objection of the evidence on appeal. Rule 103(a)(1), M.R.Evid. The effect of the majority’s opinion is to reverse the burden of proof in a civil hearing. The decision alleviates the State’s responsibility to comply with the directives of § 61-8-402, MCA (1991), and puts the burden on a defendant to produce evidence that would prove that an officer had complied with the statute.

Finally, the majority places the burden on petitioner to notify both the county attorney and the Department of Justice of his petition before presenting evidence at the hearing that the officer had not filed a sworn statement, along with petitioner’s driver’s license, with the Driver’s License Bureau. Section 61-8-403, MCA (1991), states in pertinent part:

[The] court is hereby vested with jurisdiction and it shall be its duty to set the matter for hearing upon 10 days’ written notice to the county attorney of the county wherein the appeal is filed and such county attorney shall represent the state ....

Nowhere does the statute require petitioner to give notice to the county attorney and the Department of Justice that he had filed a petition to appeal the suspension of his driver’s license. According to the statute, the District Court was required to notify the county attorney of the matter.

For these reasons I dissent from the opinion of the majority.

JUSTICE TRIEWEILER joins in the foregoing dissent.

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority opinion.

Section 61-8-403, MCA, allows any person whose license has been suspended pursuant to § 61-8-402, MCA, to petition the district court for a hearing. The majority has concluded that the district court can only resolve three issues at that hearing: (1) whether the peace officer had reasonable grounds to believe that the petitioner operated his vehicle under the influence of alcohol; (2) whether the petitioner had been arrested; and (3) whether the petitioner refused to submit to blood-alcohol tests. However, the majority ignores the final sentence of § 61-8-403, MCA, which provides that “[t]he court shall determine whether the petitioner is entitled to a license or is subject to suspension or revocation.”

The last sentence of § 61-8-403, MCA, necessarily requires that the district court determine whether the petitioner’s license was properly suspended in the first place. The only procedure for suspension of a driver’s license under the circumstances which exist in this case is provided for in § 61-8-402(3), MCA. That section specifically requires that the officer who seizes a driver’s license for refusal to submit to a blood-alcohol test must send the license with a sworn statement to the Department of Justice and that the license shall not be suspended until “receipt of the report....” Therefore, I conclude that in making the determination which is required by § 61-8-403, MCA, — that is whether petitioner’s license was subject to suspension — the District Court must necessarily decide whether the statutory procedure provided as a prerequisite for suspension was followed. In this case, based on the report which was admitted at the time of petitioner’s hearing without objection by the State, the correct procedure was not followed.

The majority states that, because of lack of notice, neither the County Attorney’s Office nor the Department of Justice had an opportunity to present the actual report. That would be of greater concern if it was not the County Attorney who provided the copy to petitioner in the first place, and if the District Judge had not given the County Attorney an opportunity to call the officer back to the stand in order to determine whether the copy admitted conformed in all respects to the original. Based on my review of the transcript, the County Attorney expressed no interest in resolving that issue when given the opportunity to do so at the time of the hearing.

For these reasons, I conclude, based on the record before us, that petitioner’s license was not properly suspended. I dissent from the opinion of the majority and would reverse the judgment of the District Court.

JUSTICE HUNT joins in the foregoing dissent.