text:
    IN RE THE PATERNITY, CUSTODY AND SUPPORT OF THE UNBORN CHILDREN OF: CHERI ELLEN PEDERSEN, Petitioner and Respondent, and JAYME DEANE NORDAHL, Respondent and Appellant.
    No. 93-319.
    Submitted on Briefs September 23, 1993.
    Decided November 2, 1993.
    50 St.Rep. 1338.
    261 Mont. 284.
    862 P.2d 411.

      For Respondent and Appellant: Clinton H. Kammerer; Kammerer Law Offices, Missoula.
    For Petitioner and Respondent: Terry G. Sehestedt, Attorney at Law, Missoula.
   JUSTICE GRAY

delivered the Opinion of the Court.

Chen Ellen Pedersen (Cheri) filed a petition in the Fourth Judicial District Court, Missoula County, claiming that Jayme Deane Nordahl (Jayme) was the father of her yet unborn twin girls and requesting the court to determine paternity, custody, and child support. Jayme initially denied Cheri’s claim but later admitted that he was the father of the children after blood tests showed a 99.99% probability of paternity. He asserts error in the District Court’s calculation of child support and requests our review of its contempt ruling against him.

A hearing on Cheri’s petition was held on March 4, 1993. During the course of the hearing, the District Comb determined that a portion of Jayme’s testimony was inconsistent with his response to a request for admission during discovery, held Jayme in contempt, and levied a $500 fine. The court issued findings of fact, conclusions of law, and judgment on April 13,1993. It determined that Jayme was the father of the twins, awarded joint custody, and ordered Jayme to pay $1,248 per month in child support.

We affirm the District Court’s calculation of child support and its contempt ruling.

Did the District Court err in calculating child support?

The District Court determined Jayme’s total gross income by adding the average of his 1991 and 1992 income, the average depreciation expenses that Jayme had deducted in those years, and the annual income attributable to his non-performing assets. After subtracting the average of his 1991 and 1992 federal and state income tax and social security deductions, the court calculated Jayme’s primary child support obligation. It then increased his child support obligation by adding his pro-rata share of the cost of child care and health insurance.

The District Court used the child support guidelines promulgated by the Department of Social and Rehabilitative Services pursuant to § 40-5-209(1), MCA, in conjunction with the factors set forth in § 40-4-204, MCA, to determine child support. Under such circumstances, a presumption exists in favor of a district court’s calculation of child support; we will not reverse it absent an abuse of discretion. In re Marriage of Sacry (1992), 253 Mont. 378, 382, 833 P.2d 1035, 1038.

Jayme challenges the District Court’s treatment of total gross income, allowable deductions, and child care costs inits calculation of child support. He first contends that the District Court erred by averaging his 1991 and 1992 income and deductions, arguing that §§ 46.30.1508 and 46.30.1516, ARM, do not expressly authorize averaging.

This contention is inconsistent with Jayme’s posture at the hearing. There, he did not object when Cheri introduced copies of his 1991 and 1992 income tax returns into evidence. Jayme also introduced exhibits which contained an averaging of his total and adjusted gross incomes earned over a period of years. We will not put a district court in error for a ruling or procedure in which the appellant acquiesced, participated, or to which the appellant made no objection. In re Marriage of Smith (1990), 242 Mont. 495, 501, 791 P.2d 1373, 1377. Furthermore, § 46.30.1515(3), ARM, expressly allows fluctuating income to be annualized by averaging it over a period sufficient to accurately reflect earning ability.

Jayme also asserts that the deduction of depreciation expenses is economically necessary in his logging operation. On that basis, he contends that § 46.30.1508(l)(c), ARM, requires the District Court to deduct the depreciation expenses from gross income.

Non-cash deductions such as depreciation expenses are not generally subtracted from gross receipts in determining gross income. Section 46.30.1508(l)(c), ARM. Although § 46.30.1508 (l)(c), ARM, allows depreciation for vehicles, machinery and other tangible assets to be deducted upon a showing of economic necessity, the rule does not require a district court to do so. Jayme establishes no abuse of discretion in the District Court’s treatment of the depreciation expenses.

Jayme also contends that the District Court ignored his testimony regarding the fluctuating balances in his logging business and personal bank accounts by using their current balances to calculate “income attributed to assets.” The totality of Jayme’s testimony relating to the logging business and personal accounts consisted of statements divulging their then-present balances ($4,000 and $5,000, respectively) and the balance in his logging business account in December of 1992 ($17,805). This testimony provides a proper basis for the use of the accounts’ then-current balances to calculate income attributed to assets.

Jayme also argues that the funds in his logging account, personal bank account, Trans America account, individual retirement account and KEOUGH account were derived solely from his 1992 income and, therefore, that the inclusion of these accounts in the “income attributed to assets” calculation resulted in a double counting of income. We disagree. Income attributed to assets is the amount of interest which would be earned if the non-performing assets were liquidated and the proceeds invested. Section 46.30.1514(1), ARM. The District Court determined the amount of interest pursuant to § 46.30.1514(2), ARM, and added that amount to Jayme’s gross income. Thus, no double counting of his 1992 income occurred.

Finally, Jayme argues that the court’s valuation of child care costs was speculative and that he is funding Cheri’s education by paying his pro-rata share of the child care costs. These arguments are without merit.

The District Court properly valued the child care costs pursuant to § 46.30.1525(l)(a)(i), ARM. That rule provides that child care costs may be based on estimates of the average monthly costs of such service where receipted expenses are not available. Here, receipted expenses were not available because the twins had not previously been enrolled in full-time child care. Cheri testified, however, that she had surveyed child care centers and that the cost of day-care for two children the twins’ age would range from approximately $640 to $756 per month. This evidence supports the District Court’s valuation of child care costs at $676 per month.

Finally, nothing in the findings of fact, conclusions of law and judgment supports Jayme’s argument that he was ordered to pay child care costs to enable Cheri to return to school. The court found that Cheri was reasonably capable of earning $10,400 per year if she returned to full-time work as a cosmetologist and pro-rated the cost of necessary child care between Jayme and Cheri on that basis.

We hold that the District Court did not abuse its discretion in calculating child support.

Did the District Court properly hold Jayme in contempt?

Contempt orders are final and, as a general rule, unreviewable by this Court except by writ of certiorari. Section 3-1-523, MCA. We have created an exception in family law cases, however, and we will review a contempt order on appeal in such a case. Our review is limited to examining the record to determine whether the district court acted within its jurisdiction and whether evidence supports the finding of the court with respect to the purported contempt. In re Marriage of Prescott (1993), [259 Mont. 293], 856 P.2d 229, 231, 50 St.Rep. 801, 802. We agree with Jayme that the basis for the exception developed for family law cases is equally applicable to cases involving paternity, child custody and child support and, therefore, review the District Court’s contempt ruling against him.

At the March 4, 1993 hearing, the District Court found that Jayme’s testimony was inconsistent with his response to a request for admission during discovery. On that basis, the court held Jayme in contempt “for a false answer.”

Evidence supports the District Court’s finding of an inconsistency in Jayme’s statements and the corresponding falsity of one of those statements. Cheri’s counsel asked Jayme whether he knew of any other person who had sexual intercourse with Cheri during the period of the twins’ conception. This question mirrored Cheri’s earlier Request for Admission No. 5. Jayme testified, consistent with his response during discovery, that he did not know of any other person who had sexual intercourse with Cheri during that time.

The District Court subsequently asked Jayme to state one fact that would lead him to believe he was not the father of the twins. Jayme testified that a specific friend, whom he named, had sexual intercourse with Cheri during the period of conception. This answer directly contradicts both his earlier testimony and his discovery response. Because Jayme’s statements cannot be reconciled, the District Court properly found that one of them was false.

Deceit committed by a party constitutes contempt of the court’s authority. Section 3-l-501(d), MCA. Thus, Jayme’s falsehood provides a sufficient legal basis for the District Court to hold him in contempt. We conclude that no error occurred in the District Court’s contempt ruling.

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE WEBER

license: Public Domain

text:
    STATE OF MONTANA Plaintiff and Respondent, v. JIMMY RAY BROMGARD, Defendant and Appellant.
    No. 91-170.
    Submitted on Briefs August 26, 1993.
    Decided November 2, 1993.
    50 St.Rep. 1320.
    261 Mont. 291.
    862 P.2d 1140.

      For Defendant and Appellant: William F. Hooks, Appellate Defender, Helena.
    For Plaintiff and Respondent: Hon. Joseph P. Mazurek, Attorney General, George M. Schunk, Assistant Attorney General, Helena. Dennis Paxinos, Yellowstone County Attorney, David W. Hoefer, Deputy County Attorney, Billings.
   JUSTICE WEBER

delivered the Opinion of the Court.

Jimmy Ray Bromgard (Bromgard) appeals from a judgment of the Thirteenth Judicial District, Yellowstone County. In November 1987, a jury convicted Bromgard of three counts of sexual intercourse without consent. Bromgard was sentenced to three forty-year terms of imprisonment in the Montana State Prison to be served concurrently and was designated a dangerous offender.

This Court dismissed Bromgard’s initial appeal on August 30,1988 for failure to file an appellant’s brief or Anders memorandum. On March 29, 1991, Bromgard filed a petition for post-conviction relief. This Court denied relief on six of the seven claims alleged; we granted relief on Bromgard’s claim of ineffective assistance of counsel by virtue of his counsel’s failure to properly appeal the convictions. The state Appellate Defender was appointed as counsel by this Court. We granted the Appellate Defender’s motion to file an out-of-time appeal.

The question presented for our review is whether the District Court erred in denying defendant’s motion for a directed verdict of acquittal at the close of the defendant’s case-in-chief. We affirm.

In the early morning hours of March 20,1987, an intruder entered the home of a Billings family through a bathroom window. In addition to burglarizing the home, the intruder raped an eight-year-old girl while the rest of the family slept.

The assault took place between the hours of 4:00 and 5:00 a.m. The intruder awakened the victim, threatened her and gagged her mouth with clothing, and then committed acts of oral, vaginal and anal intercourse. He then put a pillow over her head and left.

After the man left, the victim woke her father. Her father woke the victim’s mother so that he could look around the house. He noticed a bathroom window propped open with a stick and immediately notified the police. The victim was taken to a physician who confirmed that she had been vaginally and anally raped.

The victim had been able to see her assailant quite clearly as a hallway light had been left on during the night. A police artist made a composite sketch of the assailant from the description the victim gave to him. Another officer looked at the sketch and mentioned that he thought the sketch looked like Bromgard. The sketch was shown to a neighbor of Bromgard’s who also said the man in the sketch was Bromgard. Police also found a stolen checkbook belonging to the victim’s mother near Bromgard’s home.

The Billings police then conducted a lineup of six people, including Bromgard. The victim identified Bromgard from the lineup and also identified Bromgard at trial as the man she had picked out of the lineup.

Bromgard agreed to submit head and pubic hair samples. These samples were sent to the State Crime Laboratory and were found to be indistinguishable from certain samples recovered from the victim’s bedding. Bromgard was arrested, charged and tried on three counts of sexual intercourse without consent. The District Court denied Bromgard’s counsel’s motion for a directed verdict of acquittal at the close of Bromgard’s case-in-chief. The jury found Bromgard guilty of all three counts.

Did the District Court err in denying Bromgard’s motion for a directed verdict of acquittal at the close of the evidence?

Defense counsel moved the court to direct a verdict of acquittal on the ground that the evidence was conjectural and insufficient to prove Bromgard’s guilt beyond a reasonable doubt. The motion was denied. The decision to direct a verdict in favor of a defendant lies within the discretion of the trial court and will not be disturbed absent an abuse of that discretion. State v. Haskins (1992), 255 Mont. 202, 210, 841 P.2d 542, 547. A directed verdict of acquittal is appropriate only when there is no evidence to support a guilty verdict. Haskins, 841 P.2d at 547.

[T]he defendant is entitled to an acquittal if reasonable men could not conclude from the evidence taken in a light most favorable to the prosecution that guilt has been proved beyond a reasonable doubt.

State v. White Water (1981), 194 Mont. 85, 87-88, 634 P.2d 636, 638.

Bromgard contends that the evidence offered by the State fell into three categories, none of which supports the conviction. We will address each category separately,

a. The hair sample comparison.

The State Crime Lab compared hair samples found in the victim’s bedding with hair samples taken from the victim’s head and with Bromgard’s head and pubic hair samples. Forensic scientist Arnold Melnikoff of the State Crime Lab testified that both head hair and pubic hair taken from the victim’s bedding were microscopically comparable to the samples provided by Bromgard.

Unlike fingerprint comparison, hair comparison does not produce absolute identification. Melnikoff testified that in his experience the odds were one in one hundred that two people would have head hair or pubic hair so similar that they could not be distinguished by microscopic comparison and the odds of both head and pubic hair from two people being indistinguishable would be about one in ten thousand.

Other courts have held that hair analysis evidence such as that provided in this case is insufficient by itself to positively identify a person. See, e.g., State v. Faircloth (N.C. App. 1990), 394 S.E.2d 198. Bromgard contends that the evidence of hair comparison by itself is insufficient as a means of identification; thus, he claims that because other evidence is insufficient, the hair comparison testimony is relevant but not conclusive. Bromgard also cites Faircloth for the premise that comparative hair microscopy serves to exclude persons and is conclusive only to negative identity. Faircloth, 394 S.E.2d at 202. We need not rule on whether such evidence is sufficient by itself for identification purposes as it does not rule out Bromgard as the perpetrator of the assault in this case.

b. The identification made by the victim.

Bromgard contends that the identification made by the victim is insufficient for several reasons. First, Bromgard contends that only the victim saw her assailant and the light was limited because it came from a 100-watt light in the hallway; therefore, she could not have seen him clearly. Next, Bromgard contends that the lineup was suggestive and that the victim’s identification at the lineup was less than positive. Finally, he contends that the victim became less sure as time passed that she had identified the right person.

We find none of these arguments compelling. The jury is in the best position to judge the credibility of the victim and her identification of her assailant. In this case, she saw him clearly enough to give the police a description from which police were able to create a composite sketch of her assailant, which led to further investigation of Bromgard. She identified Bromgard from a live lineup which did not prejudice Bromgard. Any inconsistencies, indecision or flaws in the victim’s testimony more properly go to the weight to be given by the jury to the victim’s testimony. This is a matter which is within the province of the jury.

c. Lack of other physical evidence.

Bromgard next contends that there was no physical evidence other than the hair comparison evidence and a composite sketch to link him to the offense. Specifically, he claims that the checkbook belonging to the victim’s mother which was found near his home is not relevant because there was no discernible pattern or route established by the State between the victim’s home and Bromgard’s residence. He further contends that there was no fingerprint evidence or other forensic evidence from the blood stains found on the victim’s bedding from which to link Bromgard to the crime.

The State has no obligation to provide this sort of physical proof to prevent a directed verdict of acquittal from being entered in favor of the defendant. A conviction may be based on circumstantial evidence alone. State v. Atlas (1986), 224 Mont. 92, 95, 728 P.2d 421, 423. When circumstantial evidence is susceptible of two interpretations, one supporting guilt and the other supporting innocence, the trier of fact determines which is most reasonable. State v. Tome (1987), 228 Mont. 398, 401, 742 P.2d 479, 481.

The State introduced other evidence in addition to the hair microscopy analysis, the description and identification made by the victim and the placement of the checkbook in the location of Bromgard’s home. This consisted of further testimony inculpating Bromgard. Friends testified that on the date of the incident, Bromgard probably arrived home between 3:00 and 4:00 a.m. from an evening of drinking and cruising town. The victim’s home was within walking distance of Bromgard’s home and the assault took place shortly before 4:45 a.m. This testimony tends to establish the opportunity Bromgard had to commit the assault. We conclude that there was sufficient evidence to submit the question of Bromgard’s guilt to the jury.

We hold the District Court did not err in denying Bromgard’s motion for a directed verdict of acquittal at the close of his case-in-chief.

AFFIRMED.

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


author: JUSTICE TRIEWEILER

text:
    LISA COTTRELL, as personal representative of the estate of VERN COTTRELL, Plaintiff and Respondent, v. BURLINGTON NORTHERN RAILROAD COMPANY, a corporation, Defendant and Appellant.
    No. 92-507.
    Submitted on Briefs July 1, 1993.
    Decided November 2, 1993.
    50 St.Rep. 1323.
    261 Mont. 296.
    863 P.2d 381.

      For Defendant and Appellant: Russell D. Yerger, Kroschel & Yerger, Billings; J. Michael Young, Jardine, Stephenson, Blewett & Weaver, Great Falls.

      For Plaintiff and Respondent: Erik B. Thueson and John A. Kutzman, Thueson Law Offices, Helena; and Dennis P. Conner, Great Falls.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Plaintiff Vern Cottrell filed this action in the District Court for the Eighth Judicial District in Cascade County, Montana, to recover damages for injuries sustained during the course of his employment with defendant Burlington Northern Railroad Company. Following a jury trial, the jury returned a verdict for plaintiff, finding that defendant’s negligence caused plaintiff damages in the amount of $1,362,236. Defendant appeals from the judgment entered pursuant to that verdict. We affirm the judgment of the District Court and remand with instructions.

The issues on appeal are:

1. Did the District Court commit reversible error when it excluded the opinion of Neil Meyer, M.D., regarding apportionment of plaintiff’s damage between the incident which was the subject of this complaint and prior injuries?

2. Did the District Court commit reversible error when it excluded the testimony of Judy Freeman and her letter to plaintiff’s attorney?

3. Did the District Court err when it rejected two of defendant’s proposed jury instructions which pertained to contributory negligence and limitation of defendant’s liability for plaintiff’s pre-existing injuries?

4. Did the District Court err when it failed to rule on defendant’s motion to amend the judgment, and declined to offset from the judgment monies paid to plaintiff by defendant and from other sources prior to trial?

DISCUSSION

This action was brought by Vern Cottrell pursuant to the Federal Employers’ Liability Act found at 45 U.S.C. §§51 through 60 (1988). In his complaint and amended complaint, Cottrell alleged that in the winter of 1989, while working for the Burlington Northern Railroad Company in its maintenance of way department, he injured his back while operating some of defendant’s machinery. Specifically, he alleged that in early winter 1989 he had been operating a small crane-like piece of machinery known as a “speed swing” over rough ground in the railroad yard, and that because that piece of equipment had an inadequate and worn out seat incapable of absorbing shock, his back was damaged while operating it. In addition, he alleged that on May 15, 1989, while operating an additional piece of machinery used for track maintenance and known as an “electromatic,” he injured his back while lifting “buggies” which were used in combination with the electromatic and had to necessarily be loaded on it. He alleged that his injuries were caused by defendant’s negligent failure to provide him with a safe place to work, adequate assistance to perform his job safely, and reasonably safe equipment.

In answer to Cottrell’s complaint, defendant admitted that Cottrell was an employee and that during the course of his employment he had operated its machinery, but denied all of Cottrell’s other material allegations. For affirmative defenses, defendant alleged that Cottrell was contributorily negligent, his damages were caused by pre-existing conditions, his damages were aggravated by his own failure to mitigate them, and that it was entitled to a credit against any money it had already paid him.

The evidence at trial established that Cottrell had first gone to work for defendant in 1976 as a section laborer doing track maintenance and began operating different types of machinery for defendant in 1977. He originally injured his back during the course of his employment in the fall of 1980 while trying to lift railroad ties onto a truck. Following that injury, two surgical procedures were performed on his back in the area of the 4th and 5th lumbar vertebrae. The first surgery was to remove that part of the intervertebral disc which had ruptured as a result of his injury. The second surgical procedure was to treat other complications in the same area which resulted from the injury and the first surgery.

The evidence indicated that by July 1982, Cottrell was released by his treating physician to return to work for defendant without restrictions. He did so, and returned to all of his normal duties. However, in late 1988 or early 1989, he began to operate the speed swing, which had a cracked and broken seat incapable of absorbing shock. He was required to operate the speed swing across tracks and over rough ground. Over the several weeks that he operated that machine, he developed back soreness which gradually worsened. Then, in April 1989, he started working on the electromatic. He operated that machine until the date of his injury. On May 15, 1989, while lifting buggies onto the electromatic, as was required by his job, he felt a “bee sting” like pain down his right leg and experienced back pain. He was unable to continue working. He parked the electromatic, went home, and as of the date of trial, had never been able to return to work due to his back injury.

Cottrell’s injury occurred on a Friday. The following Monday, he went to see his family physician, who referred him back to Ronald D. Vincent, M.D., the neurosurgeon from Spokane, Washington, who had performed the second operation on his back in 1981 or 1982. Dr. Vincent diagnosed a rehemiation of the intervertebral disc in the same area that Cottrell’s previous injury had occurred, and performed two more surgical procedures to treat that injury.

After the second surgical procedure, Dr. Vincent referred Cottrell to William J. Tacke, M.D., a specialist in physical medicine in Great Falls, for further rehabilitation. Cottrell was under Dr. Tacke’s care at the time of trial. Both Dr. Vincent and Dr. Tacke testified by deposition at the trial.

Prior to trial, defendant provided copies of Cottrell’s medical records and diagnostic studies to Neil Meyer, M.D., a neurosurgeon in Billings, for evaluation. Defendant then scheduled Dr. Meyer’s deposition, and during that deposition, asked him to express a number of opinions about Cottrell’s condition, based on his review of those records. He was asked whether Cottrell should be able to return to work, and what percentage of Cottrell’s current disability and symptoms resulted from his earlier injury, as opposed to the injury which was the subject of this complaint.

Trial in this case commenced on May 26, 1992. Prior to trial, on May 15, Cottrell moved in limine to exclude that part of Dr. Meyer’s testimony in which he expressed the opinion that 90 percent of Cottrell’s current problems resulted from his original injury, and only ten percent were attributable to the incidents which were the subject of his complaint. Cottrell’s objection was that there was insufficient foundation for Dr. Meyer’s testimony and that his opinion was sheer speculation and conjecture. That motion was granted.

Shortly before trial, but after the deadline for identifying expert witnesses, defendant identified Judy Freeman as a witness that it intended to call at trial, and identified a letter written by her to Cottrell’s attorney as an exhibit that it would offer. Judy Freeman is a registered nurse at Deaconess Hospital in Great Falls, and administers the pain rehabilitation center. The apparent purpose of her testimony was to state that she concurred in Dr. Tacke’s recommendation that Cottrell enroll in the hospital’s pain rehabilitation center and that he had not responded to that recommendation. Cottrell moved to exclude her testimony and the letter she had offered on the grounds that she was not identified as an expert in a timely fashion, she was not qualified to express the opinions included in her letter, and her references to opinions by other health care providers were inadmissible hearsay. Her testimony, and the letter she authored, were also excluded by the District Court.

Additional facts, where relevant, will be discussed in relation to the various issues raised by defendant on appeal.

I.

Did the District Court commit reversible error when it excluded the opinion of Neil Meyer, M.D., regarding apportionment of plaintiff’s damage between the incident which was the subject of this complaint and prior injuries?

We have held that issues concerning the admissibility of evidence are within the discretion of the district court. Cooper v. Rosston (1988), 232 Mont. 186, 190, 756 P.2d 1125, 1127. “The trial court is vested with great latitude in ruling on the admissibility of expert testimony.” (Emphasis added). Cash v. Otis Elevator Co. (1984), 210 Mont. 319, 332, 684 P.2d 1041, 1048. When discussing the standard of review from a district court’s ruling on the qualifications of an expert to express an opinion, we have held that:

We set forth the standard that the determination of the qualification and competency of expert witnesses rests largely within the trial judge, and without a showing of an abuse of discretion, such determination will not be disturbed.

Foreman v. Minnie (1984), 211 Mont. 441, 445, 689 P.2d 1210, 1212.

Our review of the District Court’s exercise of its discretion when it excluded the testimony of Dr. Neil Meyer must begin with Rule 702, M.R.Evid., which sets forth the criteria for admission of expert opinions. It provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

Implicit in Rule 702 is the requirement that before a District Court allows a witness designated as an expert to express an opinion, some foundation must be laid to show that the expert has special training or education and adequate knowledge on which to base an opinion.

In this case, Cottrell did not question Dr. Meyer’s qualifications as a neurosurgeon. He challenged whether Dr. Meyer had sufficient factual information which would enable him to express an opinion apportioning Cottrell’s current symptoms and disability between two injuries which occurred nine years apart.

During Dr. Meyer’s deposition, he acknowledged that the amount of damage to a person’s back can vary depending on the forces applied to the back. He also agreed that the forces can depend on the amount of weight being lifted and the posture in which the lifting takes place. He testified that after surgical treatment of a herniated disc, rehemiation occurs in only five to ten percent of patients, and the likelihood of rehemiation depends in part on the kind of stress placed on the area of original injury.

However, in spite of these admissions, Dr. Meyer testified that he had never examined Cottrell, he had never met nor talked to him, and had never read his deposition testimony. Neither had he ever talked to Cottrell’s treating physicians, nor read any of their testimony. He was aware that Cottrell had returned to work in 1982 following successful treatment of his original back injury, but was unaware of either the type of work he had returned to, or the extent of the physical exertion he was capable of performing during his seven subsequent years of employment. He did not know the frequency of lifting nor the type of lifting involved in Cottrell’s job. In fact, he knew nothing about Cottrell’s job description.

Most significantly, Dr. Meyer was totally unfamiliar with the traumatic event which Cottrell alleged had caused his second injury. He did not know what an electromatic was; he did not know what a speed swing was (in fact, he testified that he wouldn’t know one if he saw one, unless it was in golf); he did not know what a metal buggy was, nor how much one weighed; and he did not know the position in which it had to be lifted by Cottrell at the time of his second injury.

Based on Dr. Meyer’s lack of information pertaining to Cottrell, his activities, and the incident which he alleged caused his injury, we conclude that the District Court did not abuse its discretion when it held that there was an insufficient foundation established for Dr. Meyer to express an opinion apportioning Cottrell’s condition at the time of trial between the injury he sustained in 1980 and the injury he sustained in 1989. It was not unreasonable for the District Court to conclude that, at a minimum, before Dr. Meyer was qualified to express that opinion, he needed to know the extent of Cottrell’s recovery from his earlier injury, and the extent of the trauma to his back which caused the subsequent injury. This important foundation was absent.

Speculative testimony is inadmissible as evidence. Williams v. Wallace (1963), 143 Mont. 11, 13, 386 P.2d 744, 745.

Therefore, we affirm the District Court’s exclusion of Dr. Meyer’s testimony.

II.

Did the District Cotut commit reversible error when it excluded the testimony of Judy Freeman and her letter to plaintiff’s attorney?

At trial, defendant proposed to call Judy Freeman as a witness and to offer a letter she had written to Cottrell’s attorney on April 28, 1992. Freeman was identified by defendant as a muse who was the operations manager of the Montana Deaconess Pain Rehabilitation Center. On April 28, she wrote the following letter to Cottrell’s attorney:

Dear Mr. Thueson:
Since I have been unable to reach you by phone, I am writing to send you the outline of what types of programs we have available here at the Pain Rehab Center.
I have spoken with Dr. Tacke regarding Vem, and he has recommended an inpatient program for Vern. I would strongly agree, based on the information from Dr. Lloyd’s report also. Constant supervision is necessary when the chronic pain problem has a very involved history. The sooner a pain management approach is instituted, the greater the chances of successful rehabilitation.
I would hope Vern’s situation could accommodate the inpatient program, to begin with at least, as that is when the basis for education needs to be learned. Without a strong base, the chronic pain patient finds it easier to revert to old management habits following the program.
Feel free to call and let me know where we are on this. Thanks for your assistance.
Sincerely,
Judy Freeman, R.N., B.S.N.
Operations Manager,
Pain Rehabilitation Center

According to defendant’s offer of proof, Nurse Freeman’s testimony, if permitted, would have been substantially as set forth in her letter.

Although Nurse Freeman’s letter is replete with opinions which require expertise, and although she had never been identified by defendant as an expert witness prior to trial, defendant contends that her testimony and her correspondence should have been admitted to show that Cottrell was notified of the availability of treatment at the pain rehab center and failed to mitigate his damage by taking advantage of that treatment.

However, even if her testimony and correspondence were admissible for that limited purpose, they were unnecessary for that purpose.

Dr. Tacke, Cottrell’s attending physician who is referred to in Nurse Freeman’s letter, testified at trial by deposition. He told the jury that he serves as medical director of the rehabilitation program at the Montana Deaconess Medical Center, and that during the course of treating Cottrell in October 1991, he recommended that he participate in the pain rehabilitation program. He also testified that Cottrell had not yet been able to participate in the program due to various factors in his personal life which prevented separation from his family, and that he, Dr. Tacke, was satisfied that those personal problems would interfere with successful participation in the rehabilitation program.

Cottrell, himself, acknowledged that the pain rehabilitation program had been prescribed for him, but explained that, due to illness in his family which precluded any long term separation, he had been unable to participate in the program. Therefore, other than Nurse Freeman’s personal opinions which were inadmissible for failure to disclose her as an expert prior to trial, her testimony and the letter she authored would have contributed no relevant information that the jury did not already have.

Defendant offered Nurse Freeman’s testimony and her letter to establish that pain rehabilitation was available to Cottrell and that he had not mitigated his damages by taking advantage of that treatment. However, through Cottrell’s own testimony, and the testimony ofhis treating physician, the jury had already been made aware of the availability of the treatment, the fact that it had been prescribed by Dr. Tacke, and the fact that plaintiff had not yet taken advantage of it. Any further evidence to that effect would have been cumulative. It is not error for the district court to exclude cumulative evidence. Neither were any substantial rights of defendant adversely affected by exclusion of such evidence. Rule 103, M.R.Evid., provides in relevant part that “[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected....”

We hold that the District Court did not err by excluding the testimony of Judy Freeman and her letter dated April 28, 1992, for the reason that portions of her letter constituted expert opinion which had not been properly identified prior to trial, and that the only remaining purposes for which her testimony or correspondence were admissible were cumulative of information that had already been presented to the jury. Therefore, neither were defendant’s substantial rights affected by exclusion of the evidence. The District Court’s exclusion of Nurse Freeman’s testimony and her correspondence is affirmed.

III.

Did the District Court err when it rejected two of defendant’s proposed jury instructions which pertained to contributory negligence and limitation of defendant’s liability for plaintiff’s pre-existing injuries?

Defendant offered its proposed instructions numbered 31 and 44A which were not given by the District Court. Its proposed Instruction No. 31 was as follows:

Where an employee knowingly exposes himself to conditions of employment while aware of an illness or disability which makes those conditions unsafe to him, or where an employee has the possibility of securing relief from unsafe conditions by informing his superiors of them, or continues to work without doing so, he may be found to be contributorily negligent.
Defendant’s proposed Instruction No. 44A provided as follows: You are further instructed that the plaintiff may not recover damages which are attributable to his pre-existing injuries in 1980, and the subsequent surgeries performed by Dr. Johnson and Dr. Vincent in 1981 and 1982 respectively. These injuries are not compensable in this action and shall not be considered by you in your deliberations.

On appeal, defendant contends that the District Court erred by refusing to give its proposed Instruction No. 31 because contributory negligence is a defense to Cottrell’s claim pursuant to 45 U.S.C. § 53 (1988), and its theory of contributory negligence was based on the fact that Cottrell continued to work after his back began to hurt, and therefore, increased the risk of his ultimate injury. Defendant contends that it was entitled to such an instruction pursuant to the decision of an intermediate appellate court in Missouri in Conley v. BN Railroad Company (Mo. App. 1988), 765 S.W.2d 272, and pursuant to a Fifth Circuit Court decision in Savoie v. Otto Candies, Inc. (5th Cir. 1982), 692 F.2d 363.

Defendant contends that the District Court erred by refusing to give its proposed Instruction No. 44A so that the jury would not confuse Cottrell’s right to compensation in this case with damages which resulted from his earlier injury.

We have held that when we review a district court’s refusal to give an offered jury instruction, the following rules apply:

It is not reversible error for a trial court to refuse an offered instruction unless such refusal affects the substantial rights of the party proposing the instruction, thereby prejudicing him. Payne v. Sorenson (1979), 183 Mont. 323, 599 P.2d 362, 36 St. Rep. 1610.
Aparty is not prejudiced by a refusal of his proposed instructions where the subject matter of the instruction is not applicable to the pleadings and facts, or not supported by the evidence introduced at trial, or the subject matter is adequately covered by other instructions submitted to the jury. Payne v. Sorenson, supra; Brown v. North American Mfg. Co. (1978), 176 Mont. 98, 576 P.2d 111; Butler Mfg. Co. v. J & L Implement Co. (1976) [1975], 167 Mont. 519, 540 P.2d 962. [Emphasis added].

Associated Agency of Bozeman, Inc. v. Pasha (1981), 191 Mont. 407, 413, 625 P.2d 38, 42.

In this case, the substance of defendant’s proposed instructions numbered 31 and 44A was covered in other instructions given by the District Court which were less argumentative.

In the District Court’s Instruction No. 21, the jury was told that:

If the railroad carries its burden in proving that Vern Cottrell was contributorily negligent and that this caused some or all of his injuries, his total damages shall be reduced by an amount equal to the percentage of negligence charged to him when compared to the amount of negligence charged to the railroad.

The jury was fully instructed on the meaning of negligence, and based on these instructions, the railroad capably argued that Cottrell was contributorily negligent by continuing to work while in pain without informing his supervisors.

Likewise, the jury was instructed that Cottrell could not recover for injuries that occurred prior to the injury which was the subject of his complaint. In the District Court’s Instruction No. 24, the jury was told that:

If you find that plaintiff was suffering from a pre-existing condition at the time he incurred injuries in the accident or accidents in question, he is not entitled to recover damages for the pre-existing condition.

The District Court’s Instruction No. 24 was simply another way of saying the same thing proposed by defendant in its proposed Instruction No. 44A.

Based on this instruction, defendant’s attorneys did effectively argue, without objection, that Cottrell could not recover damages for injuries attributable to his pre-existing injuries or prior surgeries.

We conclude that defendant’s proposed instructions numbered 31 and 44A were adequately covered by other instructions submitted to the jury, and therefore, defendant’s substantial rights were not affected by the District Court’s refusal of defendant’s proposed instructions.

IV.

Did the District Court err when by failing to rule on defendant’s motion to amend the judgment, it declined to offset from the judgment monies paid to plaintiff by defendant and from other sources prior to trial?

The jury returned its verdict on June 1, 1992, finding that defendant was negligent, its negligence caused Cottrell’s injuries, Cottrell was not negligent, and his damages were in the amount of $1,362,236. The jury verdict was unanimous.

During the trial, outside the presence of the jury, the attorneys for defendant asked if it could be stipulated that evidence of the amount to which it was entitled as an offset against any judgment collected by Cottrell for advance payments made by defendant, and for medical bills, could be proven at a post-trial hearing. The District Court agreed that it could, and Cottrell’s attorney stated that he had no objection. However, on a subsequent occasion prior to the jury verdict, Cottrell’s attorney pointed out that there was no evidence of medical expense and Cottrell was making no claim for past or future medical expenses, and therefore, it would be inappropriate to offset those amounts against any judgment recovered. There was no objection to that statement by defendant’s attorneys.

On June 12,1992, defendant filed its motion to alter or amend the District Court’s judgment, and in the alternative, for a new trial. The bases asserted for a new trial were those issues previously discussed in this opinion. However, defendant also sought to have the judgment amended to provide that payments advanced by defendant to Cottrell, payments advanced by the Railroad Retirement Board, supplemental sickness benefits received by Cottrell, and medical expenses paid on Cottrell’s behalf by his insurer be offset from the amount of the judgment entered on his behalf.

In opposition to defendant’s motion to amend the judgment, Cottrell’s attorney pointed out that his stipulation during trial applied to only those offsets applied by law and which were part of the actual damages awarded. He contended that defendant was not entitled to an offset for medical expenses paid by Cottrell’s insurer, because no medical expenses were sought nor recovered. He also contended that defendant was not entitled to an offset for amounts previously advanced for wage loss because the general verdict form did not distinguish the nature of damages awarded to Cottrell. Cottrell’s attorneys pointed out that he submitted a verdict form which would have itemized the nature of damages awarded by the jury, but that form was objected to by defendant, and therefore, it was impossible for the District Court to determine the exact nature of damages awarded by the jury.

The District Court did not rule on defendant’s post-trial motion. It was, therefore, deemed denied, and this appeal was taken.

On appeal, defendant cites written agreements by Cottrell to the effect that money advanced would be deducted from any ultimate settlement or judgment paid to him. It cites the stipulation entered into during the time of trial, and it relies on our prior decision in Kalanick v. Burlington Northern (1990), 242 Mont. 45, 788 P.2d 901, where we held that the railroad was entitled to have the judgment entered against it offset by the amount which it had previously advanced to the injured employee in that case. We also held in Kalanick that the railroad was entitled to an offset for sickness payments made to its employee pursuant to a collective bargaining agreement adopted by the employee’s union.

In response to defendant’s argument on appeal, Cottrell concedes that defendant has a right to an offset for sickness benefits previously advanced in the amount of $6492.27, but denies that it has a right to any offset for wage benefits advanced because the general nature of the verdict form makes it impossible to determine what, if any, amounts were awarded by the jury as damages for wage loss.

We note that, while Cottrell is correct that due to defendant’s objection, an exact apportionment of the jury’s verdict between general damages and wage loss cannot be made, the jury’s verdict was for an amount in excess of $1.3 million. Cottrell claimed wage loss in the amount of $862,230, and general damages of from $700,000 to $1,000,000 for pain and suffering. By logical deduction, at least $300,000 of Cottrell’s recovery had to be compensation for wage loss.

Therefore, we conclude that the District Court erred by refusing to offset the judgment entered against defendant by those amounts previously advanced for wages and supplemental sickness benefits, other than those benefits paid for medical expenses. We conclude that since compensation for medical expenses was not claimed by Cottrell, defendant is not entitled to an offset against the judgment for those amounts. We remand to the District Court for a determination of the exact amount of offsets to which defendant is entitled. We otherwise affirm the jury’s verdict and the judgment of the District Court entered pursuant to that verdict.

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


text:
    MARIAN JOAN WISE, Plaintiff and Respondent, v. EDWIN KEITH NIRIDER, Defendant and Appellant.
    No. 93-038.
    Submitted on Briefs June 1, 1993.
    Decided November 2, 1993.
    50 St.Rep. 1334.
    261 Mont. 310.
    862 P.2d 1128.

      For Defendant and Appellant: James C. Bartlett, Hash, O’Brien & Bartlett, Kalispell.
    For Plaintiff and Respondent: Donald E. “Gene” Hedman, Hedman, Hileman & LaCosta, Whitefish.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Marian Joan Wise filed a complaint in the District Court for the Eleventh Judicial District in Flathead County to set aside the property settlement agreement she entered into with Edwin Keith Nirider, and to reopen their dissolution proceedings. After a trial on the merits, the District Court entered judgment for Marian granting the relief she sought. Edwin appeals from that judgment. We reverse the District Court.

The issue on appeal is whether the District Court erred when it set aside the property settlement agreement and reopened the dissolution proceedings based on findings of extrinsic fraud upon the court and unconscionability of the agreement.

The marriage of Marian Joan Wise and Edwin Keith Nirider was dissolved on August 6,1987, after 33 years. Judge Michael H. Keedy, who presided over the dissolution proceedings, approved a property settlement agreement entered into by the parties on July 9,1987, and amended on July 30, 1987. This agreement, which was incorporated into the dissolution decree, purported to distribute the parties’ entire marital estate.

Marian and her attorney, Randy Ogle, drew up the property settlement agreement. Edwin did not discuss the contents of the agreement with Randy Ogle, and did not retain his own counsel. Edwin voluntarily signed the agreement and concurred with the amendments, but made no appearance in court during the proceedings.

The agreement, in part, provided for a distribution of the marital estate. The parties’ real property was to be sold and the proceeds divided equally. Marian was to receive certain tangible items, and approximately $22,500 consisting of an IRA and an inheritance from her mother. Edwin was to receive certain tangible items, the “personal property in his possession,” and cash and IRA funds totalling $19,500. Additionally, Marian was to receive $50 per month as maintenance, and she reserved the right to petition the court for a modification in the event of changed circumstances.

The addendum to the separation agreement provided that Marian would receive $3,600 from Edwin’s share of the proceeds from the sale of the residence as compensation for her interest in a windshield business which was retained by Edwin.

At the time of the dissolution, Edwin was retired from the Atlantic Richfield Company (ARCO) Almninum Plant at Columbia Falls and was drawing retirement income of $1,120 per month. This would continue until July 1,1992, at which time he would become eligible for Social Security benefits and the pension would be reduced to $495 per month. Although Marian’s knowledge of her right to share in the pension plan as a marital asset is disputed, it is undisputed that both parties knew of the existence of the ARCO pension plan at the time they entered into the separation agreement. Marian’s attorney also testified that he knew of the pension plan when he prepared the settlement agreement. However, neither the agreement, nor the dissolution decree, mention the pension plan specifically and no part of the pension was distributed to Marian.

Three months after the dissolution was finalized, Marian petitioned for modification of the maintenance award. She sought to increase maintenance to $800 per month because she was unable to meet her living expenses. Edwin resisted this motion and it was ultimately dismissed by stipulation on November 1,1988.

On May 25, 1989, Marian filed this independent cause of action against Edwin for fraud. She alleged that, while negotiating the settlement agreement, Edwin represented to her that the retirement program was personal in nature and was not a marital asset subject to division between the parties. The complaint was later amended to include claims of -unconscionability and extrinsic fraud upon the court. It was Marian’s contention that Edwin’s failure to disclose the provisions of the pension plan, and her entitlement to a portion of the pension, constituted a fraud upon the court which rendered the property settlement agreement unconscionable, and that it should, therefore, be set aside and the dissolution reopened.

Atrial was held on April 27, 1992, before Judge Ted O. Lympus in which Marian, Edwin, and Marian’s attorney, Randy Ogle, presented contradictory testimony. In deposition testimony, Ogle stated that he informed Marian that the pension was a marital asset subject to division. However, Ogle testified that Marian told him not to make the pension an issue because she did not want to delay the divorce. She said that Edwin considered the pension to be his asset that he had accumulated during his years of work at ARCO, and would become upset if she sought a share in it.

Ogle stated that he told Marian she was asking for too little maintenance and that she ought to pursue a portion of the pension as a marital asset. Marian had originally wanted $350 per month in maintenance, but reduced her request to $50 per month when, according to her, Edwin became angry. Edwin did admit that he told Marian that if she sought more financial support from him, he would retain a lawyer.

Ogle did not explain the failure to identify the ARCO pension fund in the settlement agreement, but stated that when he drafted the agreement using the phrase “the personal property in his possession,” it was his intent, based on Marian’s statements, that the pension fund was to go entirely to Edwin.

Marian, however, testified that she had no idea of the value of the pension plan, never asked her attorney about it, and never believed she was entitled to share in the pension as a marital asset. Although she acknowledges that she told Ogle of the existence of the pension, she denies Ogle’s claim that he told her the pension was a marital asset and she had the right to share in it. Marian said she did not discuss a possible division of the pension with Edwin because she was intimidated by him and was fearful of him. It is her contention that she never willingly waived an interest in Edwin’s pension benefits.

In contrast, Edwin testified that Marian told him she was entitled to half of the pension plan but was not going to seek this in the separation agreement. He admitted, however, that he may have told Marian, prior to the time she retained counsel, that the pension was his and she had no right to any of it.

In its findings of fact, conclusions of law, and judgment issued on October 30, 1992, the court set aside the property settlement agreement and reopened the dissolution proceeding in order to effect a “fair and equitable division of all marital assets,” including the ARCO pension plan. This conclusion was based on the court’s finding that the separation agreement did not provide for a division of the pension plan and that Marian had not willingly, voluntarily, or knowingly waived her interest in this marital asset. The court rejected Ogle’s argument that the phrase “all personal property in [Edwin’s] possession” included the pension plan. Although the court found that Marian was aware of the existence of the pension plan benefits, it found that she was not aware that she had a legal right to a portion of this until the time that her action for fraud was commenced.

The court further found that there had been no disclosure of the existence of the pension plan at the time Judge Keedy presided over the dissolution proceedings, and it concluded that this absence of evidence constituted “however unwittingly, the commission of an extrinsic fraud upon that Court.” The court did not attribute fault to either Marian or her attorney, but found that, because Marian was under stress due to her intimidation and fear of Edwin’s anger and wished to end the marriage without delay, these factors resulted in a fraud upon the court. Finally, the court concluded that because Marian had received none of the retirement benefits, the provisions of the separation agreement were unconscionable.

Edwin filed a motion to alter or amend the judgment. This motion was denied on December 30,1992. In its order and rationale, the court clarified its conclusion that Edwin had committed a fraud on Marian which resulted in the commission of a fraud upon the court.

From the court’s judgment, and subsequent order denying the motion to alter or amend the judgment, Edwin appeals.

Did the District Court err when it set aside the property settlement agreement and reopened the division of property based on findings of extrinsic fraud upon the court and unconscionability of the agreement?

We note first that Marian did not file a timely appeal from the dissolution decree but instead sought relief from the judgment through an independent action as provided for in Rule 60(b), M.R.Civ.R, which provides:

This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as may be required by law, or to set aside a judgment for fraud upon the court.

Marian’s independent action, filed nearly two years after the dissolution decree was entered, was premised on allegations of fraud by Edwin, unconscionability of the separation agreement, and extrinsic fraud upon the court. However, the only allegation upon which relief could be granted at the time she filed her action was her allegation of fraud upon the court. With regard to unconscionability or fraud between the parties, Marian did not seek timely relief through an appeal, or a Rule 60(b)(3) motion which would allow for relief from a final judgment in instances of “fraud, misrepresentation, or other misconduct.”

Although the District Court discusses the resulting unconscionability of the separation agreement, its judgment rests on its conclusion that a fraud was committed upon the court which justified setting aside the property settlement agreement and reopening the dissolution decree. Therefore, our analysis must focus on whether the court properly reached this conclusion.

This Court has made clear that fraud upon the court is “that species of fraud which does or attempts to subvert the integrity of the court itself.” Brown v. Small (1992), 251 Mont. 414, 421, 825 P.2d 1209, 1213 (citing Salway v. Arkava (1985), 215 Mont. 135, 695 P.2d 1302). Such fraud has been construed to include only the most egregious conduct, such as bribery of a judge or member of the jury, evidence fabrication, and improper attempts to influence the court by counsel. Brown, 825 P.2d at 1213; Filler v. Richland County (1991), 247 Mont. 285, 289, 806 P.2d 537, 539. Generally, fraud between the parties, without more, does not rise to the level of fraud upon the court. Brown, 825 P.2d at 1213.

In this instance, the District Court found that there had been no disclosure of the existence of the pension plan at the time of the dissolution proceedings, and concluded that this absence of evidence constituted “however unwittingly, the commission of an extrinsic fraud upon that Court.” It concluded that the fraud resulted not from an affirmative misrepresentation by either party, but the fact that Marian was under stress and wished to end the marriage without delay.

Although we recognize that the separation agreement was the product of Marian’s desire to quickly terminate the marriage and may have resulted in an inequitable distribution of the marital assets, we reiterate that the only basis upon which to set aside this judgment, nearly two years after its entry, is the commission of a fraud upon the court.

After reviewing the record, we conclude that the evidence is insufficient to support the court’s determination that there was fraud upon the court. Neither Marian’s nor Edwin’s conduct rises to a level which is egregious enough to be characterized as fraud upon the court. Even if we disregard the testimony of Edwin and Marian’s attorney, as did the District Court, and accept Marian’s assertion that she was not advised of the nature of the pension, the record is void of such things as evidence fabrication, bribery, or attempts to improperly influence the court.

The allegations that Edwin told Marian the pension was a personal asset and that she was not advised otherwise by her counsel, would, at most, amount to fraud between the parties. In Salway, 695 P.2d 1306, we concluded that a party’s fraudulent conduct, “although reprehensible, is not the type of fraud that furnishes grounds on which to vacate the judgment” under the residual clause in Rule 60(b), M.R.Civ.P. We reach the same conclusion in this case. Although grounds may have existed for a motion pursuant to Rule 60(b)(3), or for Marian to appeal from the judgment in which the dissolution decree was entered, this does not mean that the judgment can now be set aside for the same reason after the time for post-trial motions and appeal has expired.

Marian relies on this Court’s decision in In re Marriage of Madden (1984), 211 Mont. 237, 683 P.2d 493, for the proposition that the failure to inform the trial court of the value of a pension during a dissolution proceeding constituted an extrinsic fraud on the court, justifying the reopening of a dissolution decree. However, the facts of that case are dissimilar from the situation presented here. In Madden, we concluded that a property settlement agreement incorporated into the decree was based on “extrinsic fraud” because it failed to disclose the wife’s interest in the husband’s pension and the fact that she would be hable for a balloon payment on a mortgage. This holding, however, was based on the fact that the wife took no part in the process of drafting the agreement, did not have independent counsel because the husband assured her that the attorney would represent both of their interests, and had no knowledge of the pending liability for the balloon payment on the mortgage. In this instance, however, Marian was the party represented by counsel while Edwin was not, and she was the one who drew up the separation agreement with knowledge of the existence of the pension plan.

We conclude that the allegations of fraud relied upon by Marian fall short of what is legally required to vacate a final judgment pursuant to the residual clause in Rule 60(b). Therefore, we hold that the District Court erred when it set aside the property settlement agreement and reopened the dissolution proceedings.

Edwin contends that he is entitled to an award of attorney fees for prevailing on appeal of the District Court’s judgment. This contention is based on the following language in the property settlement agreement which was agreed upon by the parties:

In the event that either party brings legal action to interpret or enforce any of the terms or provisions of this Agreement, the prevailing party in said legal action is entitled to recover, as a part of their costs and disbursements, such sum as the Court may find reasonable as attorney fees in said controversy.

Marian’s cause of action, based on allegations of fraud upon the court, was not an action to “interpret or enforce” the provisions of the agreement. Therefore, we conclude that the attorney fee provision of the separation agreement is not applicable in this proceeding, and hold that neither party is entitled to an award of attorney fees based on that provision.

The October 30,1992, judgment of the District Court is reversed.

JUSTICES HUNT, GRAY, NELSON and WEBER concur.


author: JUSTICE HARRISON

text:
    IN RE THE MARRIAGE OF DONNA L. DOWD, Petitioner and Respondent, and JAMES J. DOWD, Respondent and Appellant.
    No. 93-163.
    Submitted on Briefs July 29, 1993.
    Decided November 2, 1993.
    50 St.Rep. 1341.
    261 Mont. 319.
    862 P.2d 1123.

      For Respondent and Appellant: Arthur D. Agnellino, Attorney at Law, Missoula.
    For Petitioner and Respondent: P. Mars Scott; Mulroney, Delaney & Scott, Missoula.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Appellant, James J. Dowd (Jim), appeals the Fourth Judicial District Court’s findings of fact, conclusions of law and decree of dissolution entered October 5, 1992, which distributed the marital property and debts of the couple.

We affirm.

Jim presents the following issues for our review:

1. Did the District Court err by not considering § 40-4-202(1), MCA, when it divided the marital estate?

2. Did the District Court err by not considering Jim’s contribution as the homemaker when it awarded Donna the bakery?

3. Did the District Court err when it awarded Donna the bakery and concluded in its findings that if the bakery was not awarded to Donna the court probably would have awarded Donna maintenance?

4. Did the District Court err in awarding both parties a one-half interest in the proceeds from the land and family home when the court also ordered Jim to make the land payments on the property?

5. Did the District Court err by failing to consider that Donna previously paid the marital debts from the proceeds of the bakery business which was allegedly jointly owned by the couple?

Jim and Donna were married on July 7,1977, in Houston, Texas. Two children were born of their marriage, Casey, now age 9, and Kevin, now age 6. At the time of this appeal Jim was 48. He was employed as a commercial fisherman in Alaska. Donna was 41. She operated a bakery in Houston, Texas, from her office in Superior, Montana.

The couple separated in 1989 when Jim left the family home to travel to Seattle to become a commercial fisherman. During the marriage the couple acquired certain property and debts which are the focus of this appeal.

On October 1, 1979, the couple purchased a bakery in Houston, Texas. Initially, they intended to operate the bakery as a “mom and pop” operation. However, after a few months of continuous disagreement, Donna assumed the day-to-day management of the bakery.

The couple always treated the bakery as Donna’s bakery. In fact, she personally borrowed money to purchase equipment for the bakery; negotiated employee wages and salaries; had the business licenses solely in her name; and made all the decisions regarding the operation of the bakery. Donna has operated the bakery alone for almost twelve years and continues to do so today. Conversely, Jim has had nothing to do with the bakery for the last five years.

Although Jim contributed between $2,000 and $2,500 for the down payment on the bakery, Donna has essentially paid the entire purchase price, $25,000, from a loan and the earnings of the bakery. Currently, the bakery is Donna’s sole source of income. In 1991, Donna’s bakery netted approximately $22,000. Jim’s wages that year as a commercial fisherman were between $45,000 and $46,000.

In 1981, the couple moved from Texas to St. Regis, Montana. They purchased 21.24 acres of land from Lincoln’s Silver Dollar Bar & Gift Shop, Inc., on a contract for deed. The land payments on the contract for deed were approximately $363 per month. In 1984, the couple constructed a log home on the land with the help of a friend.

The couple separated in 1989. After the separation, Donna used the bakery’s profits to support herself, the family home, the marital assets and the two children. In fact, Donna has continuously negotiated with the couple’s creditors (including the Internal Revenue Service, a law firm in Missoula, Visa and Master Card); paid the marital debts; supported and raised the children; made improvements to the family home; redeemed the family home and acreage from a tax sale; and logged the property to pay thirteen delinquent land payments with the logging proceeds. The District Court found that she was financially responsible for the preservation of the marital estate.

On the other hand, the District Court found that Jim was financially irresponsible to the marital estate and to his family. Specifically, after the separation in 1989, he did not contribute his earnings to the marital estate or the children until the District Court ordered him to pay the land payments in lieu of child support and twice ordered him to pay the children’s health insurance.

On June 1, 1990, Donna filed a petition for dissolution. Subsequently, she filed an amended petition for dissolution on September 14,1990. Jim filed a response on October 29,1990.

The matter came to trial on September 11, 1992. The parties stipulated to reserve issues of custody, visitation and child support and the court accepted the stipulation and reserved the issues. On October 5,1992, the District Court issued its findings of fact, conclusions of law and decree of dissolution.

On October 8, 1992, Donna’s attorney served a notice of entiy of decree of dissolution on Jim’s attorney. Subsequently, however, Jim’s attorney moved the District Court to alter or amend its judgment pursuant to Rule 59(g), M.R.Civ.R, or in the alternative, for relief of a judgment order under Rule 60(b), M.R.Civ.P. The court failed to rule on the motions within forty-five days. Thus, the motions were deemed denied. On December 29,1992, Jim filed a notice of appeal with this Court.

We have previously declared that in reviewing factual findings which divide marital property “[o]ur standard of review... is whether the district court’s findings are clearly erroneous.” In re Marriage of Danelson (1992), 253 Mont. 310, 317, 833 P.2d 215, 219 (citations omitted). Additionally, we scrutinize the district court’s legal conclusions de novo and examine whether the court interpreted the law correctly. Danelson, 833 P.2d at 219-220.

We grant the district court broad discretion to equitably apportion the marital estate. In re Marriage of Sirucek (1986), 219 Mont. 334, 342, 712 P.2d 769,774. Accordingly, where, as here, a party challenges the distribution of the marital estate, our review is limited to determining whether the district court abused its discretion.

I

The District Court apportioned numerous items of property and debts between the parties. Jim challenges the following distributions: the bakery, the home along with its personal and real property and the debts.

The court awarded Donna the bakery as her sole property. Further, the court ordered the parties to continue to jointly own the land and family home (property) until the last child reached age eighteen or graduated from high school, whichever occurred later. Donna and the children are allowed to continue to reside at the residence until the property is sold. On the other hand, Jim must pay the remaining land payments and taxes. When the property is sold, the parties must equally split the proceeds. The District Court also allowed the parties, if they agreed, to sell the property to a third party or to the other party before the last child reached eighteen or graduated from high school.

First, Jim argues, generally, that the District Corut failed to consider the factors under § 40-4-202(1), MCA. We conclude, however, that the court considered the factors of § 40-4-202(1), MCA, the court’s extensive findings of fact negate Jim’s argument. Those findings include: the parties were 47 and 40 years old; were married for twelve years before they separated; were both in good health; Jim was a commercial fisherman and Donna operated a bakery; Jim earned almost $50,000 a year with numerous benefits, while Donna earned $22,000 a year without benefits; Jim completed the ninth grade, while Donna completed high school; over the years, Jim was employed as a longshoreman and worked at odd jobs and Donna worked as a bank teller, and in an insurance department at a bank; Jim was capable of earning excellent wages and sustaining full-time employment under strenuous circumstances; Donna solely managed the bakery for almost twelve years; Donna’s sole source of income was the bakery; aside from the bakery, Donna was out of the labor market for approximately ten years; managing the bakery was a fiill-time job; the bakery provided the main financial support of the family; Donna was unilaterally responsible for keeping the marital estate intact; Donna single-handedly worked hard to support the family; Donna maintained the family home; Donna negotiated with and paid the couple’s creditors; the award of the bakery to Donna was in lieu of maintenance; Jim neglected to pay the couple’s creditors until the court ordered him to pay the land payments in lieu of child support; and Jim has not contributed any money to the preservation of the marital estate, except the court ordered land payments. Clearly, this excerpted barrage of facts confirms that the District Cotut covered the gambit of § 40-4-202(1), MCA.

Additionally, the court detailed the property and debts of the marriage. The record conclusively establishes that the court considered the factors of § 40-4-202(1), MCA, when it divided the marital property. We hold that the District Corut properly followed § 40-4-202(1), MCA.

II

Next, Jim challenges the court’s distribution of the marital assets and debts. He argues that the court, on four occasions, acted inequitably or abused its discretion when it divided the couple’s assets.

Jim maintains that the District Court abused its discretion by failing to consider his contribution as the homemaker, which allowed Donna to operate the bakery. This argument lacks merit.

Jim testified that, while Donna operated the bakery, he built the family home, cared for the children, hauled water, mended fences, drove Donna to and from work, and maintained the family home. On the other hand, Donna testified that Jim only contributed a small portion of the down payment, and only participated in the management of the bakery for the first few months.

The District Court specifically found that Donna was primarily responsible for the maintenance and operation of the bakery. The court refused to acknowledge Jim’s contribution as the homemaker. Effectively, it found Donna’s testimony more credible than Jim’s testimony. We refuse to disturb the District Court’s determination of the credibility of witnesses. See In re Marriage of Porter (1991), 247 Mont. 395, 398, 807 P.2d 192, 194.

We hold that the District Court did not abuse its discretion when it did not rely on Jim’s testimony to establish his contribution to the bakery as the homemaker. The District Court’s determination that Donna was primarily responsible for the maintenance and continuing operation of the bakery is supported by the record.

Ill

Further, Jim argues that the District Court abused its discretion by finding that if Donna was not awarded the bakery, then the District Court would probably award Donna maintenance payments. He is mistaken.

Jim misinterprets §§ 40-4-202 and -203, MCA. These statutes were enacted “to encourage the court to provide for the financial needs of the spouses by property disposition rather than by an award of maintenance.” Commission Comments MCA Annotations, Title 40, (1992), Vol. 7, p. 170; In re Marriage of Scott (1990), 246 Mont. 10, 24, 803 P.2d 620, 629. Moreover, § 40-4-202(1), MCA, specifically requires the court to consider “whether the apportionment [of property] is in lieu of... maintenance ....” Accordingly, we conclude that §§ 40-4-202 and -203, MCA, when read together, compel the district court, when proper, to order a division of marital property, as opposed to an award of maintenance, to satisfy the financial needs of the parties.

Here, the District Court determined that Donna should be awarded the bakery because she was primarily responsible for its maintenance and operation. Further, the court found that the bakery was her only realistic source of income. The court also noted that if it decided to divide the bakery, as Jim proposed, then Jim would probably have to pay maintenance to Donna.

We conclude that the District Court properly followed the statutory mandates of §§ 40-4-202(1) and -203, MCA, not only by considering the factors and specifically considering that the division was in lieu of maintenance, but also by electing to distribute property, instead of awarding maintenance. We hold that the District Court did not abuse its discretion when it awarded Donna the bakery.

IV

Jim contends the District Court abused its discretion by awarding Donna one-half of the proceeds of the family home. Jim argues that since he is paying the remaining land payments, in effect, he is paying both his one-half and Donna’s one-half of the equity in the property and, therefore, he should retain the entire proceeds of the property when it is sold. We disagree.

Jim forgets that while the parties were separated, Donna paid the monthly payments on the loan which financed the construction of the home. Further, he ignores the fact that Donna paid the land payments before the court ordered him to pay the land payments.

The District Court recognized that Donna paid the home loan, the land payments, and numerous marital debts during the couple’s separation. The court also noted that if Donna had not expended her efforts to preserve the marital estate, there would be no marital estate to divide.

The District Court acted equitably. The court found that the contributions of the parties were not equal. Donna contributed her portion of the equity in the property. Jim, however, failed to contribute his portion. Thus, the court ordered Jim to pay the remaining land payments. The District Court’s order equalizes Jim’s contribution with Donna’s contribution.

Further, by ordering the future sale of the property and a split of the proceeds, the District Court has guaranteed that each party will retain his or her equity in the property. We hold that the District Court was not clearly erroneous.

V

Finally, Jim challenges the District Court’s determination of the parties’ net worth. This convoluted argument is not supported by the record.

The District Court meticulously organized both the marital property and marital debts in its findings and conclusions. The court also made a conscientious effort to equitably divide the property and debts between the parties.

Jim, however, ridicules the District Court’s thorough process. First, he assumes that he owns half of the bakery. He then builds on that assumption by suggesting Donna paid marital debts from the bakery proceeds. He concludes that he should be credited with one-half of the marital debts which Donna paid from the bakery proceeds. This argument is absurd and is not supported by the record or by Montana law.

When dividing marital property, the district court should not be concerned with the ownership status of property acquired during the marriage. In fact, if property is acquired during the marriage, it is part of the marital estate regardless of who owns the property. Section 40-4-202(1), MCA. The court’s only obligation is to consider the factors of § 40-4-202(1), MCA, and equitably apportion the marital estate. In re Marriage of Scott (1992), 254 Mont. 81, 87, 835 P.2d 710, 714.

Here, the bakery is a marital asset. However, that fact, by itself, does not entitle Jim to claim credit for one-half of the debts paid from the bakery’s proceeds. The District Court found that Donna exclusively operated the bakery and exclusively paid the debts from the bakery proceeds. Thus, the court credited her for paying the debts.

Moreover, the record reveals that Jim did not pay these debts. He did not work at the bakery when the debts were paid, nor did he have any part in managing the bakery. He also failed to send money from Alaska to pay these debts. Thus, he is not entitled to claim that he paid the debts.

The court correctly refused to grant Jim a windfall. We conclude that the District Court acted equitably and within its discretion when it refused to credit Jim for the payment of debts which he did not pay.

After a review of the record, we conclude that the District Court properly followed the factors of § 40-4-202(1), MCA, when it conscientiously considered the facts and achieved an equitable division of the marital estate. We hold that the District Court did not abuse its discretion when it divided the marital estate.

Affirmed.

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


text:
    LEONARD J. HALL, Plaintiff and Appellant, v. BIG SKY LUMBER & SUPPLY, INC., a Montana Corporation; STUART RASMUSSEN; DANIEL RASMUSSEN; PATRICIA RASMUSSEN; and WESLEY N. NORMANDIN, Defendants and Respondents.
    No. 93-118.
    Submitted on Briefs September 2, 1993.
    Rehearing Denied Dec. 2, 1993.
    Decided November 2, 1993.
    50 St.Rep. 1345.
    261 Mont. 328.
    863 P.2d 389.

      For Plaintiff and Appellant: Kenneth E. O’Brien, Hash, O’Brien and Bartlett, Kalispell.
    For Defendants and Respondents: Shelton C. Williams, Williams & Ranney, Missoula.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from a jury verdict in the Eleventh Judicial District, Flathead County, finding for the defendant, Big Sky Lumber. We affirm in part and reverse in part.

We consider the following issues:

1. Did the District Court abuse its discretion in instructing the jury? 2. Did the District Court abuse its discretion in excluding certain testimony by Patrolman Monthye concerning his evaluation of the connection between the metal post he found in the ditch and the rig’s brake system?

3. Did the District Court abuse its discretion in denying evidence of Normandin’s citation because of defense counsel’s conduct during closing argument?

This case involves a motor vehicle accident that occurred on August 19, 1985 on U.S. Highway 93 about 4.2 miles west of Whitefish, Montana. Construction was occurring at this stretch of the roadway. Both appellant Leonard Hall (Hall) and respondent Wes Normandin (Normandin) were headed west within the stretch of road under construction. Several flagpersons were located along this stretch of road. Hall was in his Ford pickup directly in front of Normandin’s fully loaded logging rig. Four other vehicles were in front of Hall. A road paver with several workmen on it was also located within the area of the construction.

Normandin approached the rear of Hall’s pickup going approximately 35 miles per hour. Normandin’s brakes failed and he was unable to bring the loaded logging rig to a stop. The flag person located at the far end of the construction motioned the four cars in front of Hall to keep going. Hall attempted to get out of his truck because of the runaway truck behind him, but was unable to get out of the way of the careening rig. The men on the paver jumped clear of the machine and were able to retreat from the impact site. Hall’s pickup was struck from behind and he allegedly suffered personal injury.

The accident was investigated by Highway Patrolman Ervin Monthye (Monthye). Monthye arrived at the scene approximately 40 minutes after the accident had occurred. Monthye checked the brakes of the tractor and found that they were warm. The brakes on the loaded trailer were not warm, indicating that they had not been engaged. Monthye noticed that the trailer brakes were covered with an orange substance. Both the regular brakes and the emergency air reservoir which enabled the emergency brake system to function had the orange substance on them.

Normandin contends that a professional checked the brakes only one and a half months before the accident and they were in good working condition. Further, he asserts that he had himself checked the entire brake system on the rig before he moved it on the day of the accident. Normandin contends that the brake failure was totally unexpected and that it must have been caused by whatever left the orange color on the brake systems.

Of possible significance was testimony at trial that while traveling through the construction site, Normandin passed a flatbed truck carrying orange colored road markers. Also, Monthye testified that following the accident an orange post was found in a ditch where Normandin’s truck had finally stopped. Testimony indicated that the post was possibly from the rear end of the road paving machine and could have been knocked off when the rig rushed past the paving machine. Normandin contends that whatever caused the brake failure left the orange color on the brakes and that must have happened prior to his loss of brakes at the construction site. Hall argues that the orange color on the brakes came from the paving machine post found several days after the accident in a nearby ditch. Hall’s contention is that if the orange color found on the brakes came from the paving machine post, Normandin’s brake failure occurred before the brakes acquired the orange color.

A trial was held on August 4 through 10, 1992. A jury found no negligence on the part of defendants. This appeal follows.

I.

Did the District Court abuse its discretion in instructing the jury?

Hall argues that the trial court erred in giving Normandin’s instruction #22 and in refusing to give his own instructions #23 and #42. It is within the district courts’ discretion to decide how to instruct the jury, taking into account theories of contending parties, and this Court will not overturn the district courts except for abuse of discretion. Cline v. Durden (1990), 246 Mont. 154, 803 P.2d 1077. On review by this Court, all jury instructions must be read as a whole and the party assigning error to the court’s instructions must show prejudice in order to prevail. Walden v. State (1991), 250 Mont. 132, 818 P.2d 1190. Such prejudice will not be found if the jury instructions in their entirety state the applicable law of the case. Walden, 250 Mont. at 137, 818 P.2d at 1193.

Court’s Instruction #25

The court gave defendants’ proposed instruction #22 as its instruction #25:

An involuntary violation of a statute in an emergency due to circumstances beyond an operator’s control is not negligence as a matter of law. (Emphasis added.)

Hall argues that this instruction was taken from Lyndes v. Scofield (1979), 180 Mont. 177, 589 P.2d 1000, and that the instruction was misquoted. Normandin agrees that the source of the instruction was the Lyndes case but argues that the instruction was proper. We disagree.

While instructions must be read as a whole, the above instruction was not taken from the Lyndes case in its correct form.

Lyndes involved a vehicular accident occurring on icy roads. The defendant hit a chuckhole in the road and her car skidded and hit another car driven by the Lyndes.

The Lyndes jury returned a verdict that defendant was not negligent. In granting a new trial, the district court determined that Scofield was guilty of negligence as a matter of law. On appeal, we disagreed, stating that:

The trial court concluded that the chuckhole hit by Scofield was a “condition of the surface” which Scofield was bound to take into account in operating her vehicle. While a chuckhole undoubtedly is a condition of the surface whose presence should be taken into account, we disagree under the facts of this case that Scofield was negligent as a matter of law.

Lyndes, 180 Mont. at 181, 589 P.2d at 1002. We concluded that the court erred in determining a jury question.

Whether under the circumstances present the defendant was negligent appears to be a fact question and fact questions must be submitted to a jury under appropriate instructions. (Emphasis added.)

Lyndes, 180 Mont. at 181, 589 P.2d at 1002. In stating that the district dourt erred in making its determination “as a matter of law,” we determined that:

It is well established that involuntary violation of a statute in an emergency due to circumstances beyond the actor’s control does not constitute negligence per se. ... Rather, Scofield’s presence in the incorrect lane is only prima facie evidence of negligence which may be rebutted ... This raises a factual issue which must be left to the jury to decide.

Lyndes, 180 Mont. at 185, 589 P.2d at 1004.

As in the aforementioned quote from Lyndes, negligence per se describes the situation where violation of a statute was the proximate cause of the injury received and the resulting damages. Hendrickson v. Neiman (1983), 204 Mont. 367, 665 P.2d 219. While it is true that “as a matter of law” may be construed as the equivalent of “per se,” a jury instruction which uses the “as a matter of law” language instead of the “per se” wording is basically misleading. In substance, the jury could interpret the instruction:

As a matter of law, an involuntary violation of a statute in an emergency due to circumstances beyond an operator’s control is not negligence.

This is not the holding in Lyndes. In addition, it is not a correct statement of the law. As given, the instruction improperly limits the fact finding function of the jury.

We conclude that because the trial court presented an instruction on a key issue of law which was incorrect as a matter of law, a reversal is required. We hold that the District Court improperly instructed the jury by issuing its instruction #25. We reverse on this issue and remand for trial.

Plaintiff’s proposed Instruction No. 23

For assistance on retrial, we review plaintiff’s objection to the court’s refusal to use his proposed instruction #23 which stated:

You are instructed as a matter of law that the Defendant was negligent.

The defendant correctly argues that the inclusion of such an instruction would have amounted to a directed verdict on the issue of liability. This is not a correct statement of the law to be applied in this case. The court correctly declined to instruct the jury with this instruction.

Plaintiff’s Proposed Instruction #42

This proposed instruction concerns §§ 61-9-308 and 61-9-301, MCA. These statutes provide that a “towing vehicle” must be equipped with two sets of brakes in case one of the systems fails. One of the two systems must be manual. Hall argues that the court’s failure to give these proposed instructions prejudiced his case. Normandin argues that this was not an issue at trial; that no evidence one way or the other was introduced during the trial.

No evidence was produced at trial to indicate that the vehicle driven by Normandin was or was not a “towing” vehicle of the type meant by the statute. Hall’s proposed instruction concerns a “towing vehicle, when used to tow another vehicle.” Section 61-9-308(1), MCA. The record is devoid of any evidence that the vehicle driven by Normandin was this type of vehicle and that it did not conform to statutoiy regulations. We conclude the instruction was properly excluded.

II.

Did the District Court abuse its discretion in excluding certain testimony by Patrolman Monthye concerning his evaluation of the connection between the metal post he found in the ditch and the damage to the rig’s brake system?

Hall called Monthye to testify that the damage and orange coloration of Hall’s braking system was caused by the collision with the paving machine which broke off a metal post located at the back of the paver, causing the post to rumble around under the trailer. Normandin objected to this line of questioning as improper opinion evidence from a lay witness; the court sustained the objection.

Hall argues that Rule 701, M.R.Evid., permits non-expert witnesses to give their opinion as long as that opinion is based upon their own perceptions or is helpful to a determination of the fact at issue. Normandin contends that the District Court acted properly in sustaining the testimony because it called for an opinion only an expert would be qualified to make and Monthye was not qualified as an expert witness. Further, Normandin points out that an offer of proof was made to the trial judge who heard, out of the presence of the jury, the intended testimony and determined that it was not permissible lay witness testimony.

The court permitted Monthye to testify that he was uncertain after his investigation at the scene of what had caused the damage to the brakes. He further testified that he went to the scene three days after the accident and found an orange pipe in the ditch where the loaded rig had come to rest after failing to stop. He testified that the color of the pipe was the same orange color as that found on the brakes. Also, he testified that the pipe had come from the vertical comer mount on the paver. Monthye was not permitted to testify as to how the pipe got in the ditch or to the relation of the pipe to the accident.

The questionable testimony was presented to the trial judge as an offer of proof out of the hearing of the jury:

Q [to Monthye]. ... based upon what you had observed in looking at the orange post and in looking at the damage to the brakes what you had determined what, if anything, the orange post had to do with damaging the brakes. Would you tell the judge what you had determined in that regard based on your investigation?
A. Well, yes. I had determined that the truck tractor and trailer came down the road, tried to go between the paver and the Burlington Northern [Hall’s truck], pushed them both aside and, as it brushed by the paver, it knocked that comer post off and the corner post got down and rumbled around underneath the trailer. That was my conclusion.

The District Court refused to allow this testimony in the presence of the jury because in the pre-trial ruling, Officer Monthye had not been listed as an expert witness and could not be questioned as one. From the record in the case, the court could have concluded that Monthye as a patrolman should have been listed as an expert witness. For Monthye to testify as an expert he would have to be listed as an expert witness on the pre-trial order. At retrial, any foundation for a particularized skill in accident reconstruction could be laid. Without such skill, Monthye is only a lay witness.

A non-expert witness is generally limited to testifying to matters of fact. Walden, 250 Mont. at 144, 818 P.2d at 1197. Any lay opinions given must be based upon the witness’s own perceptions or helpful to a clear understanding of the witness’s testimony or a determination of a fact at issue. Rule 701, M.R.Evid. As a lay witness, Monthye’s testimony concerning the cause of the accident would be error. This testimony has no foundation in Monthye’s own perception nor is there evidence here of Monthye’s specialized skill in reconstructing accidents. On retrial, if Monthye is to testify as an expert, he should be listed as such prior to trial proceedings, and qualified as an expert at trial.

We conclude that a review of the record indicates that as a lay witness, Monthye correctly testified to those activities which he had perceived. We hold that the District Court did not abuse its discretion in excluding certain testimony by Patrolman Monthye concerning his evaluation of the connection between the metal post he found in the ditch and the damage to the rig’s brake system.

III.

Did the District Court abuse its discretion in denying evidence of Normandin’s citation because of defense counsel’s conduct during closing arguments?

Monthye issued Normandin a citation at the scene for “inadequate or defective brakes.” Normandin made a motion in limine that evidence of this citation be excluded at trial. The court granted Normandin’s motion. Normandin’s counsel made a statement during his closing arguments that “if there were any defects or problems with that braking system at all, you can be sure that Patrolman Monthye or Patrolman Jacobson or somebody would have told you about that.” Following the argument, Hall’s counsel sought permission of the court to enter into evidence the citation Normandin had been given at the scene for defective brakes. The court denied the request. Hall then moved for a mistrial which the comb also denied.

Hall argues that his case was prejudiced by defense counsel’s statement to the jury and by the failure of the court to admit the citation. Normandin argues that the comment objected to by Hall was taken out of context, and that when viewed in the proper context, the sentence was proper.

The objectionable statement was made within the following context of the closing argument:

The undisputed evidence shows that the truck was in compliance with all brake statutes. If it wasn’t, it was examined by a highway patrolman within about 45 minutes of the time of the accident. It was impounded by the highway patrol after the accident for examination. If there were any defects or problems with that braking system at all, you can bet that Patrolman Monthye or Patrolman Jacobson or somebody would have told you about that. There is [sic] no problems with that braking system other than the orange impact damage.

District courts have great discretion in the admittance of evidence and we will not overturn a court’s decision unless the court abused its discretion. Miranti v. Orms (1992), 253 Mont. 231, 833 P.2d 164. Hall argues that it is unfair for Normandin to seek a motion in limine to prevent evidence of the initial citation and then tell the jury that if any defect had been found it would have been a part of Monthye’s testimony. The citation itself is not indicative of anything but that the trailer brakes failed. Evidence of the issuance of a citation is not determinative of the cause of an accident. Hart-Anderson v. Hauck (1989), 239 Mont. 444, 781 P.2d 1116. We conclude that it was properly excluded.

However, the subsequent argument by defense counsel to the jury is improper legal maneuvering. Defense counsel cannot ask to have evidence excluded and then argue that if the evidence existed it would have been admitted. Such argument should not be made on retrial.

We affirm in part and reverse in part and remand for further proceedings consistent with this opinion.

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