author: JUSTICE HARRISON JUSTICE TRIEWEILER

text:
    IN RE THE MARRIAGE OF JOHN L. McKEON, Petitioner and Respondent, and DIXIE McKEON, Respondent and Appellant.
    No. 90-604.
    Submitted on briefs Dec. 4, 1991.
    Decided Feb. 11, 1992.
    49 St.Rep. 127.
    252 Mont. 15.
    826 P.2d 537.

      For Appellant: Deirdre Caughlan, Dunlap & Caughlan, Butte.
    For Respondent: Daniel R. Sweeney, Attorney at Law, Butte.
   JUSTICE HARRISON

delivered the opinion of the Court.

This matter comes to us on appeal from the District Court of the Second Judicial District, Silver Bow County, Montana, regarding respondent John L. McKeon and appellant Dixie McKeon’s marriage of thirty-three years which was dissolved by final decree of the District Court in September of 1979. Since that time there have been two modifications of the original property settlement agreement and this matter concerns the District Court’s judgment of November 8, 1990, wherein it relieved the respondent of his obligation to pay maintenance of $300 per month to the appellant for life. We reverse and remand to the District Court.

The background facts of this marriage are as follows:

John L. “Luke” McKeon (Luke) and Dixie McKeon (Dixie) were married in 1946. Four children were born to the couple during the course of the marriage with only the youngest, John, being seventeen at the time of the dissolution in 1979, and had therefore not reached the age of maj ority. Prior to the dissolution of the marriage, on August 20, 1979, Luke and Dixie entered into a property settlement agreement which was incorporated into the final decree of dissolution entered by the District Court on September 12, 1979.

Luke pursued a legal career and was admitted first to the bar in 1951 and again in 1982. At the time of the hearing on his petition to be relieved of Dixie’s maintenance payments, Luke was involved in a professional corporation practicing law with his son, Timothy.

Dixie was employed outside the home only during the last few years of the marriage. Evidence at trial indicated that Dixie had limited education, no professional training, has had long-term emotional and health problems and at the time of the filing of these briefs was 67 years old.

Luke petitioned the court for the dissolution in 1979 and Dixie signed the petition and property settlement agreement which had been prepared by Luke. In 1980 Dixie moved to set aside the decree on the grounds of undue influence and fraud alleging that she was in poor health and was unduly influenced by the circumstances affecting her ability to enter into the property settlement agreement. In its Findings of Fact and Conclusions of Law dated June 15, 1981, the court upheld the agreement. However, the court found that the property settlement agreement had been voluntarily modified by Luke and found that Luke’s obligation to pay the rent on the property in which Dixie lived would be “continuing unless the Respondent remarries, and should the rent of the Respondent be increased, that cost shall be borne by Petitioner and such sum shall be deemed support and maintenance payments to Respondent.”

The original property settlement agreement also provided, in Paragraph III, that following the payment of the mortgages on some business properties that the parties owned during the marriage that “the wife shall receive the net income for said property for life.” (Emphasis added.)

Dixie never received an income under the provisions of Paragraph III of the property settlement agreement, and in 1984 the parties amended the property settlement agreement by striking that paragraph in its entirety and substituting the following language:

“That the Wife shall receive as maintenance for life the sum of $300.00 per month from the Husband. That this sum shall commence in the month of February, 1984, and shall continue to be paid to the Wife each and every month for life.” [Emphasis added.]

The amendment to the Property Settlement Agreement contained language permitting Luke to take the maintenance deduction consistent with the provision for alimony under the Internal Revenue Code as a deduction and continued:

“However, it is specifically understood that the maintenance herein provided shall continue for life (barring the prior death of the Husband) regardless of the future marital status of the Wife.”

In 1989, Luke unilaterally discontinued paying the $300 monthly maintenance payments. Dixie filed a motion and citation in August 1989, to compel payment. In lieu of a hearing in this matter, Luke made maintenance payments through the month of September 1989. In November 1989, Luke again unilaterally discontinued paying the maintenance and no payments have been made since that time. In December 1989, Luke filed several documents including: a “Motion For Order To Show Cause,” “Supplemental Affidavit,” “Memorandum In Support of Petition to Modify Support Payments” and a “Petition To Amend Order of Court Relative To Support Payments.” This matter was heard on June 25, 1990. On the same date, Dixie submitted “Proposed Findings of Fact And Conclusions Of Law.” The parties were given ten additional days to file “Supplemental Findings And Conclusions.” In October 1990, Dixie’s attorney wrote to the presiding Judge, Mark P. Sullivan, to check on the status of the case. This letter was copied to counsel for Luke and within approximately one week counsel received, on October 31, 1990, the “Supplemental Findings of Fact, Conclusions Of Law And Judgment.” On November 2, 1990, Dixie filed a “Motion And Brief To Strike Petitioner’s Proposed Findings of Fact, Conclusions Of Law And Judgment” as untimely as well as objecting to several specific findings as not conforming to the evidence.

Thereafter, on November 8, 1990, the District Court filed its Findings of Fact, Conclusions of Law and Judgment relieving Luke of the responsibility of paying maintenance of $300 per month to Dixie for the term of her life.

The issues presented to this Court for consideration are:

1. Whether the District Court erred in creating a new contract from the amendment to property settlement agreement.

2. Whether the District Court erred in failing to allow inquiry into the original property settlement agreement.

3. Whether Luke presented credible financial evidence to justify modification of the terms of the amended property settlement agreement.

The first issue presented is whether the District Court erred in interpreting the property settlement agreement on maintenance “for life.” In the words of the property settlement agreement these are words of contract. Section 40-4-201(5), MCA (1989), provides that marital or property settlement agreements are governed by the laws of contract. Quinn v. Quinn (1981), 191 Mont. 133, 136, 622 P.2d 230, 232. Here, the maintenance provision was a contract between the parties and was for life, not until Dixie reached any age or received any specific benefits.

We find Luke’s testimony, that it was “my understanding” or it was a “belief on my part” that the maintenance would continue until social security became effective, to be incredible. However, when asked by counsel of his definition of “for life” the following testimony was taken:

“Q. [By Appellant’s counsel] Would you please tell me what ‘for life’ means to you?
“A. [By Luke] For life means for my life or her life.” [Emphasis added.]

By this response it is clear that Luke, who was a practicing attorney, understood what his obligation was under the terms of the maintenance agreement. The words “for life” are not open to any other interpretation than the plain meaning of these words on their face. Sections 28-3-303, 28-3-401 and 28-3-501, MCA, are important in reviewing the interpretation of this contract. Section 28-3-303, MCA, provides that the writing generally determines intention:

“When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone if possible, subject, however, to the other provisions of this chapter.”

Here the language of the contract is plain and unambiguous. The language alone controls and there is nothing for the Court to interpret or construe. Payne v. Buechler (1981), 192 Mont. 311, 317, 628 P.2d 646, 650.

This Court has held in numerous cases and the law is well established that where there is no ambiguity the cotut is without power to insert new provisions into the contract. See City of Billings v. Public Serv. Comm’n (Mont. 1981), [194 Mont. 173,] 631 P.2d 1295, 1307, 38 St.Rep. 1162, 1173. In Danielson v. Danielson (1977), 172 Mont. 55, 58, 560 P.2d 893, 895, this Court held that it is the duty of the district court to enforce contracts not to make new ones for the parties, however unwise the terms may appear.

The second issue concerns itself of whether the District Court erred in not allowing inquiry into the original property settlement agreement. It would appear from the record that the trial judge, in refusing to allow evidence or consideration to be given as to the original property settlement agreement and as to the basis for the original property settlement agreement, was concerned only with the present status of the parties rather than the intent of the parties entering into the property settlement agreement. The very fact that the District Court Judge concluded that the payment of social security benefits to Dixie was a sufficient reason to eliminate the obligation already in existence in the property settlement agreement, proves the court did not consider that there is no mention in the property settlement agreement eliminating maintenance at any future time upon the receipt of social security payments to Dixie.

Had the court allowed inquiry into the original property settlement agreement and the 1984 modification, it would have observed that the 1984 modification gave Dixie maintenance for life in lieu of property from which she was to receive income. Here the maintenance provision of the agreement replaced a property settlement and the agreement was quasi-maintenance and quasi-property. Dixie was entitled to maintenance especially when the court could have heard evidence that she was granted no property under the original property settlement agreement with the exception of some income from office property of the parties which she testified she never received. As noted the provision for receiving the above income from office property of the parties was modified out of the original agreement and Luke received all other property that the parties had, including any other income consuming or income producing property. We believe that the inquiry into the original property settlement agreement was appropriate because maintenance was intricately linked to property settlement. See In re the Marriage of Robertson (1989), 237 Mont. 406, 773 P.2d 1213. Here Dixie gave up the right to property in exchange for maintenance and the District Court erred in not allowing inquiry into the parties’ original property settlement agreement and in modifying maintenance payments without considering necessary information.

The third issue concerns whether Luke presented substantial credible financial evidence to justify the modification of terms that would amend the property settlement agreement.

Luke presented testimony that he had a reduced income from his professional corporation, but we note that he refused to turn over pertinent financial data such as the corporation’s income tax returns. In addition, he claimed to be supporting the parties’ children. We note the fact that the youngest of the children, John, was seventeen years of age in 1979, the time the parties’marriage was dissolved; and was twenty-eight years old in 1990; the time that the husband still claimed to be supporting him. We note further, that the husband’s tax returns provided in the interrogatories reflected that his 1989 wages were approximately $40,000; that in 1988 his adjusted gross income was $57,901 including dividend income from his professional corporation in the amount of $5,566; that in 1987 his adjusted gross income reflected a sum of $72,565; and his 1986 adjusted gross income was $47,274. While Luke reached the age of 65 in 1990, there was no substantial evidence showing his medical status or his inability to provide finances to live up to his $300 per month obligation to Dixie as provided for in the dissolution decree.

Here, Luke drew up the property settlement agreement and while he was not satisfied with it, it is clear that he failed to provide substantial credible evidence to allow the maintenance provision to be modified.

This case is reversed and remanded to the District Court in conformance with this Opinion.

JUSTICES HUNT, WEBER, and McDONOUGH concur.

JUSTICE TRIEWEILER

dissenting:

I dissent from the majority opinion.

It is first necessary to point out that the majority adopts as true allegations in the appellant’s brief which are not supported by the record.

For example, the majority opinion states that the original property settlement agreement provided for income to the wife from property owned by the parties. Paragraph III of the original settlement agreement, however, actually pertains to the property that was conveyed to the children during the marriage. It provided that after the mortgages were paid off on those properties in 1984 and 1985 the net income would be paid to the wife for life.

However, before those mortgages were ever paid, the wife, while represented by an attorney, proposed an amendment to Paragraph III which substituted the $300 per month maintenance payment which was the subject of this petition for modification.

The majority opinion states:

“Had the court allowed inquiry into the original property settlement agreement and the 1984 modification, it would have observed that the 1984 modification gave Dixie maintenance for life in lieu of property from which she was to receive income. Here the maintenance provision of the agreement replaced a property settlement and the agreement was quasi-maintenance and quasi-property... . Here Dixie gave up the right to property in exchange for maintenance and the District Court erred in not allowing inquiry into the parties’ original property settlement agreementand in modifying maintenance payments without considering necessary information.”

The original property settlement agreement did not give Dixie property from which she was to receive income. It simply provided that at some future date she would receive income from property owned by her children after her husband paid off the mortgage. There is no record regarding the amount of net income that was to be expected. The 1984 amendment simply substituted one form of maintenance payment ($300 per month) for a different form of maintenance payment (an unspecified amount of net income). At the time of the 1984 amendment Dixie was represented by counsel. In fact, it was her counsel who proposed the form of the 1984 amendment. It is assumed that the amendment was in her best interest and she understood all the legal implications of maintenance payments.

One of the legal implications of receiving maintenance is that pursuant to 40-4-208(2)(b), MCA:

“Whenever the decree proposed for modification contains provisions relating to maintenance or support, modification under subsection (1) may only be made:
“(i) upon a showing of changed circumstances so substantial and continuing as to unconscionable ... .”

In this case, the District Judge, after listening to testimony from Luke and Dixie, and after receiving documentary evidence regarding their financial circumstances, found as a fact:

“11. That there has been a showing of changed conditions as required by MCA 40-4-208 so substantial and continuing as to make the terms of the Property Settlement Agreement incorporated in the decree now unconscionable.”

The majority has set aside that findings of fact. However, pursuant to Rule 52(a), M.R.Civ.P., “[findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”

After reviewing the transcript of Luke’s and Dixie’s testimony, I conclude that the District Court’s finding of a change in circumstances which made the prior maintenance payments unconscionable was not clearly erroneous.

Subsequent to the time that the parties entered into the maintenance agreement, Dixie qualified for social security benefits in an amount equal to that amount being paid for maintenance. Therefore, her income increased.

On the other hand, Luke’s health and financial condition both deteriorated dramatically.

From 1987 until 1989 Luke’s annual income declined steadily from $72,000 to $42,000. The evidence was that in the first half of 1990 his income had declined even further due to health problems which included a serious heart condition, colitis, an ulcer, shoulder surgery, and impending surgery on his neck. It was anticipated that his income would decline even further based on his retirement at the age of 65 on October 7, 1990. After that time his primary income was to be from social security benefits and from the public employees retirement system at $870 and $570 per month respectively.

In addition, Luke owed the federal government $129,000 for taxes, and had to borrow money from a financial institution in order to make payments on that debt. At the time of trial, he had a debt over and above his tax debt in the amount of $80,000. His monthly expenses were $3,535, and his estimated monthly income from all sources was $2,382.

Dixie’s living expenses, including food, shelter, electricity, and utilities were provided for at the home where she resided. The cost of residing at the home was paid by her son in exchange for office space provided to him by his father. The fact that these expenses were provided enabled Dixie to live within the amounts received as social security and workers’ compensation benefits. Although the proportion is uncertain, the evidence was that any additional amounts paid to her by Luke would simply increase the amount charged for her living expenses at the home where she resided.

This is not a case of the District Court rewriting a contract to provide for something beyond the original terms of the agreement. Neither is this a case where the court failed to give proper consideration to the earlier distribution of property.

This is simply a case of the parties substituting one form of maintenance payment for an earlier more uncertain form of payment and a modification of that obligation, based on a change in circumstances. There was absolutely no property given up by Dixie in exchange for the amended maintenance provision, and there was no reason to consider circumstances prior to the 1984 amendment in the District Court’s determination of whether circumstances had changed since that amendment.

For these reasons, I would affirm the judgement of the District Court.


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    IN THE MATTER OF THE ESTATE OF ROSE M. JOCHEMS, Deceased. DANIEL F. JOCHEMS, Petitioner and Appellant, v. MARY ANN BUCSIS, Respondent and Respondent.
    No. 91-268.
    Submitted on briefs Dec. 31, 1991.
    Decided Feb. 4, 1992.
    49 St.Rep. 116.
    252 Mont. 24.
    826 P.2d 534.

      For Appellant: Chadwick H. Smith and Lewis K. Smith, Smith Law Firm, Helena.
    For Respondent: Thomas K. Harlen and Richard L. Parish, Harlen, Thompson & Parish, Helena.
   CHIEF JUSTICE TURNAGE

delivered the opinion of the Court.

Daniel F. Jochems appeals from a decision of the District Court for the First Judicial District, Lewis and Clark County, denying his petition for an adjudication that his mother, Rose M. Jochems, died intestate. We affirm.

The dispositive issues are:

1. Did the District Court err in concluding that Daniel Jochems failed to prove undue influence by his sister Mary Ann Bucsis over their mother Rose Jochems?

2. Did the District Court err in concluding that Rose Jochems possessed the requisite mental capacity to execute her will in December 1988 and to transfer certain certificates of deposit in February and July of 1989?

Daniel Jochems (Dan) and Mary Ann Bucsis (Mary Ann) are the adult children of Rose Jochems (Rose), who died on December 25, 1989, at the age of 86 years. Dan has challenged the validity of Rose’s will dated December 8,1988, and of her transfer of several certificates of deposit (CD’s) to Mary Ann, on the grounds of lack of capacity and undue influence. In this action, he seeks to have the will declared invalid, to have Rose declared intestate, to prevent Mary Ann from disposing of or transferring any property she received from Rose during the last year of Rose’s life, and to be appointed as personal representative of Rose’s estate.

Rose resided in a senior citizens’ apartment complex in Helena, Montana, for the last two years of her life, following the death of her husband. She suffered from emphysema and congestive heart failure. Mary Ann visited her biweekly and handled her financial affairs. Dan and his wife visited Rose at least weekly, escorting her to doctors’ appointments and running errands for her.

During her last years, Rose made numerous transfers of money to Dan and his wife. These included $10,000 to allow Dan to pay off an obligation for back child support; $20,000 to pay off his home mortgage; $2,000 for clothing and travel expenses to Conrad, Montana, to allow Dan to visit his parents and attend his father’s funeral; and $5,800 for a new garage and tools. The total amount Dan received from Rose between June and November 1987 was $37,800.

In late 1987, Rose signed a will devising $37,800 to Mary Ann “because I [Rose] have previously advanced an equal sum” to Dan. The residue of Rose’s estate was devised in equal shares to Mary Ann and Dan. In June 1988, Rose gave Dan $1,300. In July 1988, she executed a new will in which she devised $39,100 to Mary Ann “because I have previously advanced an equal sum to my son, [Dan], prior to the execution of this will.”

During the next three months, Rose bought Dan a new pickup truck and paid for some dental work he needed. This brought the total funds advanced to Dan since June 1987 to $51,889.

In October 1988 Mary Ann removed Rose’s CD’s from Rose’s safety deposit box. According to Mary Ann, Rose had previously asked her to help protect her money because Dan frequently asked for money and she did not have the ability to refuse. However, when Rose learned that Mary Ann had taken the CD’s, she was upset and asked Dan to find her an attorney. At Rose’s request, that attorney prepared a revocation of Mary Ann’s power of attorney, a power of attorney in favor of Dan and his wife, a letter demanding that Mary Ann return the CD’s, and a new will.

On December 5,1988, Rose went to the attorney's office and signed a cancellation of the power of attorney in favor of Dan and his wife. She asked for the will the attorney had drafted for her, and took it with her.

Three days later, on December 8,1988, Rose signed a will prepared by Mary Ann and witnessed by acquaintances of Rose at her apartment complex. This will left Rose’s entire estate to Mary Ann with the exception of one dollar to Dan. Attached to the will was an undated, signed “codicile” stating that the pickup truck given to Dan was to be considered an advance on his inheritance.

When this new will was executed, Rose’s estate consisted of five CD’s totalling $70,000. The CD’s had been transferred to joint tenancy with Mary Ann during the summer or fall of 1988. In January 1989, four of the CD’s were reissued for a six-month term in Rose’s name alone. In July 1989, all five CD’s were reissued in the names of both Rose and Mary Ann.

In October 1989, Mary Ann cashed one of the CD’s, which both she and Rose had endorsed, in the amount of $10,000, as Rose’s “funeral fund.” On October 13,1989, Rose granted a new power of attorney to Mary Ann. Based on this power of attorney, the four remaining CD’s were reissued in Mary Ann’s name for a one-year term.

The District Court concluded that the December 8, 1988 will is valid and that the transfers of the CD’s to joint tenancy with Mary Ann were consistent with Rose’s intended disposition of her estate and were not unnatural. It ruled that, as a result, the validity of Mary Ann’s power of attorney and her subsequent transfer of the CD’s to herself alone is immaterial. The court named Mary Ann as personal representative of Rose’s estate and awarded her costs and attorney fees.

I

Did the District Court err in concluding that Daniel Jochems failed to prove undue influence by his sister Mary Ann Bucsis over their mother Rose Jochems?

Section 28-2-407, MCA, provides that

“Undue influence consists in:
“(1) the use by one in whom a confidence is reposed by another ... for the purpose of obtaining an unfair advantage over him;
“(2) taking an unfair advantage of another’s weakness of mind; or
“(3) taking a grossly oppressive and unfair advantage of another’s necessities or distress.”

The elements necessary to prove undue influence are: 1) confidential relationship of the person attempting to influence the testator; 2) physical condition of the testator as it affects her ability to withstand influence; 3) mental condition of the testator as it affects her ability to withstand influence; 4) unnaturalness of the disposition as it relates to showing an unbalanced mind or a mind easily susceptible to undue influence; 5) the demands and importunities as they may affect the particular donor, taking into consideration the time, the place, and all the surrounding circumstances. Matter of Estate of Luger (1990), 244 Mont. 301, 303-04, 797 P.2d 229, 231, citing Christensen v. Britton (1989), 240 Mont. 393, 784 P.2d 908.

Dan asserts that it is significant that the December 8, 1988 will was typed by Mary Ann and that the attached “codicile” concerning the pickup truck is inconsistent with the provision in the will leaving him only one dollar. He testified at trial, and now argues, that the gifts to him of $10,000 and $20,000 were belated compensation for the sale in the late 1960’s of his parents’ ranch, which he had been leasing and operating. He maintains that his virtual omission from Rose’s will is unnatural.

Prior wills may be considered in evaluating the naturalness of a disposition. Luger, 244 Mont. at 304, 797 P.2d at 231. Rose’s 1987 and 1988 wills establish a pattern of treating monies given to Dan as advancements on his inheritance. The wills support the view that Rose provided for Dan through inter vivos transfers.

Mary Ann testified that Rose felt that Dan could not handle his personal finances so that she needed to take care of his needs while she was alive and that she considered the transfers of money to Dan during her lifetime to be his inheritance. The total amount of the inter vivos transfers to Dan is approximately equal to the amount devised to Mary Ann. The statement about the pickup truck in the undated, signed “codicile” attached to the December 8,1988 will fits the pattern established in prior wills. Mary Ann’s role in typing the will does not lessen the significance of the established pattern demonstrated in those prior wills.

We hold that because Dan has failed to establish that the disposition in Rose’s December 8,1988 will is unnatural, the District Court did not err in concluding that he failed to prove undue influence.

II

Did the District Court err in concluding that Rose Jochems possessed the requisite mental capacity to execute her will in December 1988 and to transfer certain certificates of deposit in February and July of 1989?

A testator is competent to perform an act if she is possessed of the mental capacity to understand the nature of the act and to understand and recollect the nature and situation of her property and her relations to persons having claims on her bounty whose interests are affected by her will. Guardianship of Estate of Tennant (1986), 220 Mont. 78, 84, 714 P.2d 122, 126.

Dan relies upon testimony of Dr. Kremer that Rose used tank oxygen daily and experienced periods of lightheadedness and that he had to make written notes for her concerning medications and when or how she should take them. Dr. Kremer also testified that, in his opinion, her ability to make a logical judgment was “very poor” by December of 1988. Dr. Stephen Cade, Rose’s treating physician for the last few weeks of her life, stated that, in his opinion, Rose was not competent to make sound judgments at any time from when he began treating her on October 12,1989, to the date of her death, due to her condition and medications. Dan’s wife testified that several times Rose became confused in stores and tried to try on clothes without retiring to the dressing rooms.

However, an employee at the bank where Rose had her CD’s testified that Rose always seemed to have her mental faculties about her when she visited the bank, including the time she changed the CD’s to joint ownership with Mary Ann. The bank employee testified that she explained the consequences of changes to Rose and confirmed that Rose understood the nature of the changes. Lola Eschenbacher, who witnessed the December 8, 1988 will, testified that Rose was a very strong willed person who very much made her own decisions as late as November of 1989. Nick Jacques, the attorney Dan located for Rose, testified that on the day she came to retrieve the will he had drafted for her, which was three days before she signed the new will typed by Mary Ann, Rose’s demeanor was brisk and businesslike. Dan himself testified that Rose was very strong-willed and making rational decisions as late as October 1988, when she bought him the pickup truck.

The District Court concluded that “[a]lthough she was ailing physically, and her mental faculties were not perfect, the evidence failed to establish that she was incapable of making rational decisions with respect to the disposition of her estate.” After reviewing the record, we hold that the District Court did not err in reaching this conclusion.

Our holdings on the above two issues render immaterial, for purposes of this action, the remaining issues concerning whether CD’s and money from certain bank accounts are assets of Rose’s estate. Affirmed.

JUSTICES HARRISON, WEBER, HUNT, and McDONOUGH concur.


author: JUSTICE HUNT

text:
    IN THE MATTER OF J.H., S.H., and N.H., Youths in Need of Care
    No. 91-107.
    Submitted on briefs Oct. 17, 1991.
    Decided Jan. 30, 1992.
    49 St.Rep. 112.
    252 Mont. 31.
    825 P.2d 1222.

      For Appellant: Patrick F. Flaherty, Attorney at Law, Great Falls.
    For Respondent: Marc Racicot, Attorney General, and Elizabeth L. Griffing, Assistant Attorney General, Helena; Patrick L. Paul, Cascade Comity Attorney, and Tammy Plubell, Deputy Cascade County Attorney, Great Falls.
   JUSTICE HUNT

delivered the opinion of the Court.

Appellant Sheila Hill, the natural mother of J.H., S.H., and N.H., appeals from an order of the Eighth Judicial District Court, Cascade County, terminating her parental rights of her three children. The District Court awarded legal custody to the Montana Department of Family Services (hereinafter DFS) with the right to consent to adoption.

We affirm.

Appellant raises two issues on appeal.

1. Whether there is substantial credible evidence to uphold the District Court’s determination to terminate the parental rights of the appellant.

2. Whether the State should be estopped from terminating appellant’s parental rights.

The events leading to the termination of parental rights occurred on March 4, 1989. On that day, appellant and her husband, David Hill, the natural father, drove to the home of some friends. Mr. Hill went inside the home, leaving appellant and their three children, J.H., age five, S.H., age three, and A.H., age ten months, in an unheated car. At the time, the outside temperature was approximately three degrees above zero fahrenheit. The eldest child needed to go to the bathroom, so appellant covered the other two children with a blanket and left the car in order to take the oldest child into the house. Approximately an hour later appellant and Mr. Hill returned to the car. After a few minutes, appellant realized A.H. was not breathing. They drove to appellant’s mother’s home and attempted CPR, but were unsuccessful. An ambulance was called and A.H. was pronounced dead at the hospital.

According to the autopsy report, the cause of death was undetermined, although the findings of the report were consistent with Sudden Infant Death Syndrome (commonly known as SIDS). The emergency room physician and pediatrician was Dr. Nancy Maynard. She testified that the cause of death was undetermined because the baby was too old to be a true SIDS case. She stated that other circumstances, such as leaving the child in the extreme cold, could have been a contributing factor.

On April 20, 1989, the District Court issued an order authorizing protective services and to show cause. On May 8,1989, a show cause hearing was conducted. The parents did not object to DFS being granted temporary investigative authority for 90 days. On June 1, 1989, the parents agreed to a case plan. During the 90 days the children were to remain in appellant’s care as long as the children were not in danger of abuse or neglect. A social worker monitored the placement. In addition, appellant was to successfully complete parenting classes, undergo a chemical dependency evaluation, attend a domestic violence support group, complete a psychological exam, and continue with therapy. The District Court also appointed a guardian ad litem for the children. During this period the appellant was pregnant with her fourth child.

On June 12, 1989, N.H. was born. On July 12, 1989, the child was hospitalized for failure to thrive because appellant was unable to adequately care for her. On July 14, 1989, DFS placed all of the children in foster care. DFS petitioned the District Court for temporary legal custody on July 17, 1989.

On September 27, 1989, the District Comb found the children to be youths in need of care and granted DFS temporary legal custody for six months. A treatment plan was stipulated to by all the parties and approved by the District Court. Appellant and Mr. Hill were to complete the plan within six months.

In summary, the treatment plan required appellant to complete an aftercare program, continue parenting classes, enroll in a treatment program to deal with her severe depression, attend a domestic abuse program, and complete individual therapy. The purpose of the treatment plan was to reunite the parents with their children and it set several goals for the parents to achieve. One such goal was for appellant to achieve adequate parenting skills.

Mr. Hill failed to complete the treatment plan and voluntarily consented to the termination of his parental rights, provided that DFS allow him some sort of contact with the children in the future. The District Court granted this request.

On June 8,1990, DFS petitioned the District Court for permanent legal custody and termination of appellant’s parental rights. The DFS mainly alleged that appellant failed the treatment plan because she had not demonstrated any improvement in her ability to adequately parent the children and that she was unlikely to improve within a reasonable time. On November 1, 1990, a termination hearing was held.

On December 12,1990, the District Court ruled that although the appellant complied with the requirements of the treatment plan, her parenting abilities had not improved and she was still making decisions that would endanger her children if they were in her care. The court granted DFS permanent legal custody with authority to consent to the adoption of the children. Appellant appeals the order.

I

Whether there is substantial credible evidence to uphold the District Court’s determination to terminate the parental rights of the appellant.

The State has the burden of proving by “clear and convincing” evidence that the statutory criteria under 41-3-609, MCA (1989), have been met. Matter of F.M. (1991), 248 Mont. 358, 811 P.2d 1263, 1266 48 St.Rep. 407, 409. Thus, it is up to the District Court to determine whether the State has met this burden of proof, and whether the parent’s custodial and parental rights should be terminated. Matter of J.L.S. (1988), 234 Mont. 201, 205, 761 P.2d 838, 840.

We afford the District Court “all reasonable presumptions as to correctness of the determination ... .” Matter of R.A.D. (1988), 231 Mont. 143, 148, 753 P.2d 862, 865. We will not disturb such decision on appeal “regarding findings of fact if those findings are supported by substantial credible evidence.” Matter of F.M., 811 P.2d at 1266 (quoting Matter of R.B. (1990), 242 Mont. 141, 143-44, 788 P.2d 1361, 1363. Therefore, we presume that the District Court’s determination is correct unless it is clearly erroneous as to the facts.

The relevant statute to this case is 41-3-609(l)(c), MCA (1989), which states the following:

“The court may order a termination of the parent-child legal relationship upon a finding that... :
“(c) the child is an adjudicated youth in need of care and both of the following exist:
“(i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and
“(ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time.” [Emphasis added.]

When deciding “whether the conduct or condition of the parents is unlikely to change within a reasonable time,” the District Court must enter a finding that to continue the legal relationship between the parent and child “will likely result in continued abuse or neglect or that the conduct or the condition of the parents renders the parents unfit, unable, or unwilling to give the child adequate parental care.” Section 41-3-609(2), MCA (1989). The court shall consider but is not restricted to the following factors when making such determinations:

(a) [E]motional illness, mental illness, or mental deficiency of the parent of such duration or nature as to render the parent unlikely to care for the ongoing physical, mental, and emotional needs of the child within a reasonable time;
(b) a history of violent behavior by the parent;
(c) a single incident of life-threatening or gravely disabling injury to or disfigurement of the child caused by the parent;
(d) excessive use of intoxicating liquor or of a narcotic or dangerous drug that affects the parent’s ability to care and provide for the child;
(e) present judicially ordered long-term confinement of the parent;
(f) the injury or death of a sibling due to proven parental abuse or neglect; and
(g) any reasonable efforts by protective service agencies that have been unable to rehabilitate the parent.

Section 41-3-609(2)(a)-(g), MCA (1989). When examining the factors fisted above, the court shall give primary consideration to what is in the best interests of the children. Section 41-3-609(3), MCA (1989).

Appellant did not contend that the children are not youths in need of care. Appellant did argue that the State failed to show by clear and convincing evidence that the treatment plan was unsuccessful because she complied with all of the conditions of the plan. In addition, appellant asserted that the State did not prove that conditions rendering appellant unfit were so inherently poor that they could not be improved within a reasonable time. We disagree. The testimony of the state’s witnesses, as well as appellant’s witnesses, constituted substantial credible evidence to support the court’s findings of fact and conclusions of law.

Dr. Craig Matelich, the family pediatrician, expressed serious concerns about the level of appellant’s parenting skills and how that adversely affected the children’s welfare. For example, Dr. Matelich’s first examination of newborn N.H. following her release from the hospital revealed a significant weight loss. Dr. Matelich spent a considerable amount of time explaining to appellant how to increase milk production for breast feeding but she failed to follow through with the recommendations. During this period N.H. also suffered from an eye infection which, if not treated properly, could have resulted in permanent damage to her eye. The doctor prescribed some medication for the baby and explained to appellant how it should be administered. She failed to properly administer the medication. Upon notification by the doctor, DFS intervened and sought temporary custody of the children.

Dawn Gandolf, a psychiatric technician, provided appellant with one-to-one parenting sessions. When she first visited appellant’s home in November 1988, it was dirty and cluttered. Appellant did not have any food, money, transportation, or resources for taking care of the children. Ms. Gandolf attempted to train appellant in parenting skills for approximately ten months and spent considerably more time with appellant than she had contracted for with DFS. Unfortunately, appellant was unable to improve her parenting skills. Ms. Gandolf also expressed concern about appellant being the sole parent of the children, because appellant was unable to satisfy the children’s basic needs of proper supervision, discipline, nutrition, and cleanliness.

Rich Kuka, director of the parenting program, evaluated the parenting skills of appellant. He also had doubts about appellant’s ability to parent effectively. She exhibited little evidence that she had retained what she learned in attending two ten week parenting classes. He concluded that she would not benefit from attending a third parenting class.

The record not only reflected that appellant was not capable of parenting her children effectively, but it also revealed that the children improved their physical, emotional, and intellectual health while under foster care.

Hebe Chestnut was the court appointed guardian ad litem for the children. She also testified that she did not witness any improvement in appellant’s parenting skills. In contrast, she did notice a remarkable improvement in the children’s behavior once taken out of the abusive environment and placed in a foster home.

Ms. Pohold, the children’s first foster parent, described the changes in the children once they were brought to her home. Initially, the children were not disciplined. They did not know what time to go to bed nor did they know what time to eat. The son, J.H., exhibited aggressive behavior as well as emotional problems. In addition, J.H. was diagnosed as having a learning disability. The daughter, S.H., also exhibited aggressive behavior and an inability to communicate effectively with others. By the time these children left the care of Ms. Pohold a year later, they were increasingly behaving like children of their age. In addition, N.H., the infant, began to thrive and develop at a normal rate once placed in foster care.

Andrea Deligdish was the children’s therapist. She stated the children suffered greatly from the alcohol abuse and domestic violence they witnessed in appellant’s home. She added that the children’s educational, emotional, and social skills were seriously impaired but quickly changed once moved out of the abusive environment. She concluded that the children were in need of a stable and permanent home. It was not in their best interest to prolong their placement.

Lastly, the evidence indicates that the conduct or condition of the appellant was unlikely to change within a reasonable time, and that to continue it would likely result in continued abuse and neglect of the children. Only three weeks prior to the termination hearing, appellant placed herself in an abusive situation by living with another man who had a history of domestic violence and alcohol abuse. Appellant indicated that she would like to continue a friendship with this person. She lived in an apartment complex that consisted of a common bathroom which was shared by other tenants. There was no place for the children to play. In addition, DFS spent a considerable amount of time with appellant attempting to teach her basic parenting skills but was unsuccessful. Although appellant demonstrated strong motivation for learning parenting skills, she was unsuccessful in applying the knowledge practically. Moreover, appellant admitted during her testimony that she was not ready to take care of her children. The testimony of her own witnesses showed that she needed work on her own problems before caring for her children.

The District Court concluded that the treatment plan was unsuccessful because appellant had not achieved one of the stated goals of the plan which was for appellant to improve her parenting abilities. In a recent decision, we stated “mere compliance with the treatment plan is not enough. Section 41-3-609(l)(c)(i), MCA, imposes the additional requirement that the treatment plan be successful.” Matter of F.M., 811 P.2d at 1267.

The District Court properly considered the criteria listed in 41-3-609 (l)(c), MCA (1989), especially the efforts exerted by DFS in trying to rehabilitate appellant, as well as the circumstances surrounding the death of one infant and the factors surrounding the abuse and neglect of the newborn and the other children.

We hold that the District Court’s findings that the treatment plan was -unsuccessful and that the appellant’s conduct or condition was unlikely to improve within a reasonable time were not clearly erroneous and that it was in the best interests of the children to terminate appellant’s parental rights. We affirm the District Court on this issue.

II

Whether the State should be estopped from terminating appellant’s parental rights.

Appellant contends that the State should be estopped from terminating her parental rights because she relied on representations made and known by the State to be inadequate in helping her make changes necessary to improve her parenting skills. Appellant’s contention lacks merit.

For the District Court to terminate the parental rights of a parent, it must give primary consideration to what is in the best interests of the children. Section 41-3-609(3), MCA (1989). The evidence shows that while the children were in their mother’s care they were being neglected. One infant had died and another infant had to be hospitalized. The two elder children demonstrated intellectual, social, and physical abilities well below the normal range. Only after being placed in foster care did the children begin to improve. We hold that the appellant’s contention is without merit and that the District Court properly considered what was in the children’s best interests.

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


author: s/ J.A. Turnage. Chief Justice s/ John C. Harrison. Justice s/ Karla M. Gray. Justice s/ Terry Trieweiler. Justice s/ R.C. McDonough. Justice s/ William E. Hunt. Sr.. Justice s/ Fred J. Weber. Justice

text:
    KAREN SPARKS, Petitioner, v. BRAD JOHNSON, personally and as City Judge of WHITEFISH CITY COURT, Respondent.
    No. 91-543.
    Decided Feb. 6, 1992.
    49 St.Rep. 124
    252 Mont. 39.
    826 P.2d 928.

      For Petitioner: Karen Sparks, pro se.
    For Respondent: Marc Racicot, Atty. Gen., George Schunk, Asst., Helena, Tim Cooper, Whitefish City Atty., Whitefish
   OPINION AND ORDER

This is an original proceeding arising out of a criminal theft prosecution in the City Court of Whitefish, Montana. Petitioners Karen Sparks, the defendant in that proceeding, and Jerry O’Neil seek declaratory and injunctive relief, including a writ of mandamus. They request this Court’s declaration that O’Neil and other non-attorneys similarly situated have the right, pursuant to §§ 25-31-601 and 37-61-210, MCA, to act as attorneys in Montana courts of limited jurisdiction on a regular and recurring basis. The Office of the Attorney General responded, as did Whitefish City Judge Brad Johnson.

The petition before us raises the question of lay representation in Montana’s courts of limited jurisdiction. While it is clear that Article VII, § 2(3) of the 1972 Montana Constitution vests exclusive jurisdiction in this Court to make rules governing practice in all Montana courts, we have not heretofore comprehensively addressed this issue which now is arising with increasing frequency. Because of the statewide importance and implications of the issue, we accept original jurisdiction of this petition pursuant to Article VII, § 2(1) of the 1972 Montana Constitution, and the procedures set forth in Rule 17 of the Montana Rules of Appellate Procedure, in order to provide guidance on the question of lay representation to the courts of limited jurisdiction throughout the state.

The underlying facts upon which this proceeding is based are not in dispute. The Whitefish City Attorney filed a complaint against Karen Sparks in Whitefish City Court for misdemeanor theft pursuant to § 45-6-301, MCA. At her initial appearance on September 18, 1991, Sparks appeared and acknowledged that she possessed a copy of the complaint and that she was aware an arrest warrant had been issued. Sparks was informed of her right to counsel and her right to a continuance so she could obtain counsel. Sparks pled not guilty and requested a court-appointed attorney. The court explained that it was not seeking confinement for Sparks and, therefore, would not provide her with a court-appointed attorney. Sparks persisted, prompting the court to provide defendant with an Affidavit/Request for Court Appointed Counsel form.

After Sparks’ repeated attempts to secure court-appointed counsel, the court issued a Memorandum on October 17, 1991, concluding again that she was not entitled to court-appointed counsel but could obtain private counsel. On or about October 21, 1991, Jerry O’Neil filed a notice of appearance in the Whitefish City Court indicating that he would appear on behalf of defendant Sparks. The court subsequently denied O’Neil the right to represent Sparks in City Court and a jury trial was set for November 7, 1991.

The present petition was filed with this Court on November 8, 1991, seeking a stay of pending proceedings in the Whitefish City Court, a declaratory judgment that O’Neil has the right under §§ 25-31-601, MCA, and 37-61-210, MCA, to act as an attorney in the justice and city courts of Montana, and related injunctive and mandamus relief. This Court stayed the underlying proceedings. Additionally, Sparks requested that she be awarded her costs and expenses pursuant to 42 U.S.C. § 1988. We do not address herein Sparks’ request for costs and expenses pursuant to 42 U.S.C. § 1988.

Standing is a threshold issue. Stoianoff v. State of Montana (9th Cir. 1983), 695 F.2d 1214. Thus, we must determine at the outset whether Jerry O’Neil has standing in the action before us. We conclude that he does not.

Although included as a “petitioner” in the caption of the petition to this Court, O’Neil essentially seeks to come before us as a legal representative of Sparks. O’Neil, an acknowledged lay person and not an attorney of record, possesses no legally recognized relationship to Sparks; therefore, he will not be recognized by this Court in the conduct or disposition of the case. Clinton v. Miller (1951), 124 Mont. 463, 226 P.2d 487. We construe this action to be a pro se action by Karen Sparks seeking representation by the person of her choice in the city court criminal proceeding in which she is a defendant.

Sparks contends that § 25-31-601, MCA, authorizes lay representation in criminal cases in Montana justices’ courts. She argues further that § 37-61-210, MCA, extends that right to lay representation in criminal cases to city courts. We disagree.

Section 25-31-601, MCA, provides that “[pjarties injustice’s court may appear and act in person or by attorney; and any person, except the constable by whom the summons or jury process was served, may act as attorney.” The statute is found in Title 25 of the Montana Code Annotated, entitled “Civil Procedure.” Chapter 31 of that Title is “Procedure in Justices’ Courts.”

Section 25-31-601, MCA, is limited, by its plain language and placement in the Montana codes, to civil litigation injustices’ courts. It does not apply to criminal proceedings in those courts or in other courts of limited jurisdiction. The criminal procedure statutes applicable to courts of limited jurisdiction, set forth in Title 46, Chapter 17, parts 1 through 4, do not contain language permitting representation by “any person.”

Sparks’ further contention that lay representation in criminal proceedings is extended to city courts by virtue of § 37-61-210, MCA, is also incorrect, even aside from our conclusion above that Montana law does not authorize lay representation in criminal proceedings in justices’ courts.

Section 37-61-210, MCA, is entitled “penalty for practicing without license” and provides that “[i]f any person practices law in any court, except a justice’s court or a city court, without having received a license as attorney and counselor, he is guilty of a contempt of court.” Sparks’ reliance on § 37-61-210, MCA, as authority for legal representation by “any person” in a criminal proceeding in city court, is erroneous. Both the plain language and the placement of § 37-61-210, MCA, in the Licensing part of Title 37 (entitled “Professions and Occupations”), Chapter 61 (entitled “Attorneys at Law”) of the Montana Code Annotated make it clear that it is a licensing and penalty statute. It does not, by its terms, authorize practice in either justices’ or city courts; it merely alludes to, and exempts from penalty, such practice as may be authorized by other statutes. Therefore, we conclude that only such practice before courts of limited jurisdiction as is specifically authorized by existing statute or Court rule can be undertaken by lay people.

Sparks’ reliance on a past Order of this Court in a case to which she was not a party is also to no avail. Orders without accompanying opinions have no precedential value from case to case, but pertain only to the circumstances of the action involved. 20 Am. Jur.2d, Courts §189.

Sparks’ final contention is that § 25-31-601, MCA, authorizes lay representation of parties in courts of limited jurisdiction on a regular and recurring basis. While this is a case of first impression in Montana, statutes similar to § 25-31-601, MCA, have been addressed in other states and held applicable only to a “one time” representation of a party in a justice or magistrate court.

State ex rel. Freison v. Isner (W.Va. 1981), 285 S.E.2d 641, involved a collection agency appearing in magistrate court on behalf of petitioner’s creditors through its nonlawyer manager. The court found that the statute authorizing appearances by lay persons in civil litigation did not permit the unauthorized practice of law, but anticipated the representation of a party by a nonlawyer on a “casual, non-recurring, non-pay basis as a means of assisting the party pro se.” Freison, 285 S.E. 2d at 655. The Freison court concluded that the West Virginia law, similar to Montana’s, provides only for “an isolated or casual appearance by a non-lawyer friend or relative of a party to proceedings in magistrate court... .’’Freison, 285 S.E.2d at 654.

Similarly, the Supreme Court of Iowa held that a bill collector who attempted to bring suit injustice court as an assignee of his various clients was prohibited from doing so. Bump v. Barnett (Iowa 1944), 16 N.W.2d 579. The Iowa court, in referring to a statute much like § 25-31-601, MCA, stated that:

“The salutary purpose of the statute may not thus be perverted to encourage the growth of a class of ‘justice court lawyers,’ unfettered by the rules that bind licensed attorneys and without training in law and ethics.”

Bump, 16 N.W.2d at 582-583. The Iowa court concluded that the bill collector was engaged in the illegal practice of law by his repeated representations in justice court.

We agree with the reasoning of the West Virginia and Iowa courts. Section 25-31-601, MCA, was not intended to permit the unauthorized practice of law; the intent is to enable a friend or relative to assist and speak on behalf of a party at one proceeding. We hold that the statute is a “one-time only” grant of a privilege in justices’ court civil proceedings. Further, we extend this specific privilege to civil proceedings in city courts pursuant to our constitutional authority to make rules governing practice for all Montana courts.

Finally, even if the underlying proceeding in Whitefish City Court were a civil one, it is clear that O’Neil’s representation of Sparks would not be permissible. We take judicial notice that O’Neil attempted to represent at least one other person in a criminal action in a court of limited jurisdiction. See Jerry O’Neil and Clark Albertson v. Dale E. Gifford, Order No. 88-145, April 25,1988. We also note that petitioner’s brief herein provides a list of O’Neil’s “clients.” Neither O’Neil nor any other lay person has authority to represent “clients” on a recurring basis in courts of limited jurisdiction. Such recurring representation constitutes the unauthorized practice of law.

Nothing herein impacts on the “student practice rule” at the University of Montana School of Law. Under this rule, students who have completed two years of law school are supervised by a licensed attorney and perform legal activities in Montana courts.

IT IS THEREFORE ORDERED that the Petition herein, and all relief requested therein, is denied and dismissed.

IT IS FURTHER ORDERED that the stay of further proceedings in City of Whitefish v. Karen Sparks is hereby lifted.

DATED this 6th day of February, 1992.

s/ J.A. Turnage. Chief Justice

s/ John C. Harrison. Justice

s/ Karla M. Gray. Justice

s/ R.C. McDonough. Justice

s/ William E. Hunt. Sr.. Justice

s/ Fred J. Weber. Justice


author: JUSTICE GRAY JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. MARY KELLY YARNS, Defendant and Respondent.
    No. 91-253.
    Submitted on briefs Sept. 19, 1991.
    Decided Feb. 12, 1992.
    49 St.Rep. 132.
    252 Mont. 45.
    826 P.2d 543.

      For Appellant: Marc Racicot, Attorney General, and John Paulson, Assistant Attorney General, Helena; Mike Salvagni, County Attorney, and Gary Balaz, Deputy County Attorney, Bozeman.
    For Respondent: Marcelle C. Quist, Bolinger & Quist, Bozeman.
   JUSTICE GRAY

delivered the Opinion of the Court.

The appellant, State of Montana, appeals an order of the District Court of the Eighteenth Judicial District, Gallatin County, dismissing the State’s appeal of a Justice Court order suppressing evidence, remanding the case to the Justice Court, and directing that the time of the appeal be charged to the State and that the Montana Department of Fish, Wildlife and Parks pay the fees of appointed defense counsel. We reverse and remand to the District Court for a trial de novo.

The issues on appeal are:

1. Did the District Court err in remanding the case to the Justice Court for trial after the State had appealed from the Justice Court’s order suppressing evidence?

2. Did the District Court err in ordering the fees of appointed defense counsel to be paid by the Montana Department of Fish, Wildlife and Parks?

On March 11, 1990, officials of the Montana Department of Fish, Wildlife and Parks learned that approximately eighteen buffalo were at Horse Butte on Hebgen Lake, which is located ten miles northwest of West Yellowstone, Montana and five miles outside of Yellowstone National Park in Gallatin County. That evening a game warden notified three buffalo hunters that a hunt would take place on March 13, 1990.

On the morning of March 13, the hunters met with several game wardens and other persons including a biologist, a researcher, three State veterinarians, a national park ranger, and members of the news media. The group then traveled on snowmobiles to the Horse Butte area where the buffalo had last been seen. The buffalo were gone when the group arrived. Several State officials then searched for the buffalo, which were found being herded toward Yellowstone National Park by a group of eleven men and women. The officials were advised that this group was there to prevent the killing of the buffalo.

Eventually, hunter Hal Slemmer shot one of the buffalo. As Mr. Slemmer was standing with a game warden near the buffalo, he was approached by a woman who was with the protest group. The woman, later identified as the defendant Mary Yarns, dipped her hand into the blood of the buffalo and wiped both of her cheeks with the blood. After making a comment to Mr. Slemmer, the phraseology of which is disputed by the parties on appeal, the defendant then wiped the blood from the buffalo down the middle of Mr. Slemmer’s face.

On July 3,1990, the Gallatin County Attorney filed a complaint in the Justice Court, charging the defendant with misdemeanor assault in violation of § 45-5-20l(l)(c), MCA (1989). The complaint was supported by an affidavit of probable cause and alleged that on March 13, 1990, the defendant had purposely or knowingly made physical contact of an insulting or provoking nature with Hal Slemmer when she wiped Mr. Slemmer’s face with the blood from a buffalo. The defendant was arrested on July 7, 1990.

Trial in Justice Court was set for December 20, 1990. On the morning of trial, but prior to its commencement, the State filed a motion in limine requesting a pretrial ruling on the admissibility of a videotape which depicted the events surrounding the hunt protest. The State argued that the entire tape was admissible under the transaction rule, § 26-1-103, MCA(1989), and was necessary to show the defendant’s purpose in going to the buffalo hunt location and her intent at the time she committed the assault. The Justice Court ruled that it would allow the State to present only that portion of the videotape showing the blood being placed on Mr. Slemmer’s face and the scenes immediately following that event. The State was not allowed to present portions of the videotape showing another protest group member assaulting another hunter prior to the assault with which the defendant is charged. Those prohibited portions of the videotape also show actions of other members of the group.

The State then filed a notice of appeal from the Justice Court’s order for trial de novo in the District Court of the Eighteenth Judicial District, Gallatin County, and moved to transfer the Justice Court record to the District Court. Trial in the District Court was set for March 25, 1991.

On January 16, 1991, the defendant filed a motion to dismiss the State’s appeal. The defendant’s motion was briefed by the parties and argued to the District Court on February 19, 1991. On March 21, 1991, the District Court issued an order dismissing the State’s appeal, remanding the case to the Justice Court, and directing that the time of the appeal be charged to the State and that the Montana Department of Fish, Wildlife and Parks pay the fees of appointed defense counsel. The District Court relied on decisions from Kansas and Illinois as well as the American Bar Association Project on Standards for Criminal Justice in concluding that the State should be required to show that the suppression order seriously impeded the continuation of the prosecution in order for the State to exercise its right of appeal. The court concluded that the Justice Court’s order did not seriously impede continuation of the prosecution and that the matter should be remanded for trial in the Justice Court.

I

Did the District Court err in remanding the case to the Justice Court for trial after the State had appealed from the Justice Court’s order suppressing evidence?

The State contends that the District Court exceeded its constitutional and statutory authority by assuming the role of an appellate court, reviewing the Justice Court’s order, and remanding the case for trial. It asserts that the proper procedure in this case was a trial de novo in the District Court.

Article VII, Section 4(2) of the Montana Constitution provides that the district court “[sjhall hear appeals from inferior courts as trials anew unless otherwise provided by law.” Section 46-17-311, MCA (1989), in effect at the time of the State’s appeal, sets forth the appeal procedure for criminal cases arising in justice court:

“Appeal. (1) Except as provided in 46-17-203 [plea of guilty in justice court waives right to trial de novo in district court], all cases on appeal from justices’ or city courts must be tried anew in the district court....
“(2) Aparty may appeal to the district court by giving written notice of his intention to appeal within 10 days after judgment, except that the state may only appeal in the cases provided for in 46-20-103.

The scope of the State’s right to appeal is set forth in § 46-20-103, MCA (1989), which provides in pertinent part:

“Scope of appeal by state. (1) Except as otherwise specifically authorized, the state may not appeal in a criminal case.
“(2) The state may appeal from any court order or judgment the substantive effect of which results in:
“(e) suppressing evidence;

In State v. Kesler (1987), 228 Mont. 242, 741 P.2d 791, this Court held that the constitutional and statutory provisions set forth above require the district court to try anew any appeal by the State from a justice court order, entered pretrial, suppressing evidence. As in the present case, the State in Kesler appealed to the district court from a pretrial suppression order of the justice court. The defendant moved to affirm the suppression order and dismiss the appeal, contending that the district court had appellate jurisdiction to review the suppression order. We held that a district court does not have appellate jurisdiction to review a justice court order suppressing evidence and that the clear legislative intent of § 46-17-311, MCA, is to require a trial de novo on all appeals from justice court.

“Section 46-17-311(2), MCA, as amended, now permits the State to appeal justice court orders and judgments in certain circumstances. The clear intent of Section 46-17-311(1), MCA, is to require a trial de novo in district court on all appeals from justice court. The legislature could have prohibited a trial de novo in district court by amending Subsection (1) of Section 46-17-311, MCA. The legislature did not prohibit trial de novo when it amended the statute and we will not judicially amend the statute to create such a prohibition.” Kesler, 228 Mont. at 245, 741 P.2d at 793.

The defendant argues that the Justice Corut ruling was an evidentiary ruling rather than a suppression ruling and was therefore not appealable, citing People v. McCollins (Ill. App. Ct. 1984), 468 N.E.2d 196. In McCollins, the Appellate Court of Illinois, Third District, made a distinction, for purposes of the state’s right of appeal, between the suppression of evidence and the exclusion of evidence. The defendant argues that a similar distinction should be made in this case. We disagree.

In State v. T.W. (1986), 220 Mont. 280, 715 P.2d 428, this Court addressed the issue of whether the district corut’s granting of the defendant’s pretrial motion in limine, precluding the State from using certain evidence at trial, was appealable by the State pursuant to § 46-20-103(2)(e), MCA. Quoting from Rogers v. United States (D.C. Cal. 1958), 158 F.Supp. 670, we stated that “suppress” means “to effectively prevent from using” and upheld the State’s right to appeal from any pretrial order which effectively prevents the State from using evidence, regardless of whether the constitutional rights of the defendant are at issue. T.W., 220 Mont. at 287, 715 P.2d at 432.

The defendant farther argues that the Justice Court’s order was not appealable in light of this Court’s decision in State v. Carney (1986), 219 Mont. 412, 714 P.2d 532. In Carney, we held that a midtrial ruling sustaining an objection to the admission of evidence could not be appealed by the State under § 46-20-103(2)(e), MCA. However, Carney is clearly distinguishable from the present case where the order was entered and appealed pretrial and the jury had not yet been impaneled and sworn. As we stated in T. W.:

“There is an important distinction between interlocutory appeals on pretrial rulings and those taken in the course of the trial. Mid-trial appeals place the defendant in double jeopardy in violation of the Fifth Amendment to the United States Constitution and Article II, Section 5 of the Montana State Constitution and are not appealable. State v. Carney (1986), [219 Mont. 412], 714 P.2d 532, 43 St.Rep. 54. No jeopardy attaches here, as the jury had not yet been sworn. Crist v. Bretz (1978), 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24. Because there is no double jeopardy problem in this case the ruling is appeal-able.”

T.W., 220 Mont. at 287, 715 P.2d at 432.

The District Court in the present case recognized that the Justice Court’s order was an order suppressing evidence within the meaning of § 46-20-103(2)(e), MCA (1989). However, while the District Court acknowledged the State’s right to appeal, it conditioned that right upon a showing that the suppression order substantially impaired or seriously impeded the State’s ability to prosecute the case. The District Court relied upon State v. Newman (Kan. 1984), 680 P.2d 257, and People v. Young (Ill. 1980), 412 N.E.2d 501, to arrive at its conclusion that the State is required to make a showing of substantial impairment in order to appeal a suppression ruling. It also stated that the American Bar Association Project on Standards for Criminal Justice “recommends that the prosecution should not be permitted to appeal from pretrial orders suppressing evidence unless ‘the effect is to seriously impede, although not completely foreclose, continuation of the prosecution.’ ”

The State argues that this Court has not imposed such a condition upon the State’s right to appeal. It further argues that the District Court’s imposition of this condition, sua sponte and ex post facto, exceeded its authority and deprived the State of its statutory right to a trial de novo. We agree.

This Court in T.W. cited the Newman and Young decisions in rejecting a narrow interpretation of the appeals statute which would have limited interlocutory appeals by the State to situations where evidence was suppressed because it was obtained in violation of a defendant’s constitutional rights. We did not hold in T.W. that the State’s right to appeal was conditioned upon a showing or certification of the effect of the suppression order on the State’s case.

The District Court’s conditioning of the State’s right to appeal upon a showing that the suppression order substantially impaired or seriously impeded the continuation of the prosecution is contrary to the clear legislative intent of § 46-17-311(1), MCA (1989). As we stated in Kesler, the clear intent of that statute is to require a trial de novo on all appeals from justice court; a district court cannot assume appellate jurisdiction to review a justice court order suppressing evidence. Kesler, 228 Mont. at 245-46, 741 P.2d at 793-94.

Moreover, the legislature has not limited the State’s right to appeal a justice court order suppressing evidence in the manner imposed by the District Court. The plain language of § 46-20-103 (2)(e), MCA (1989), provides that the State may appeal from any court order the substantive effect of which results in suppressing evidence. To allow a court to formulate a standard for appealability of such an order would be to empower that court to determine the State’s right to appeal, in derogation of a clear statutory right. Such a court action is necessary under circumstances such as those we addressed in Carney involving constitutional impediments. Absent such circumstances, however, it is not the role of the courts to insert into a statute that which has been omitted. Section 1-2-101, MCA. The proper procedure in this case was a trial de novo by the District Court.

The defendant presents two additional arguments in support of the District Court’s order which we will address briefly. First, the defendant argues that her motion to dismiss was “effectively a motion for summary judgment” under the Montana Rules of Civil Procedure and that the District Court’s ruling was not appealable “until appeal of the final judgment in this case is had.” This argument lacks merit. Title 46, MCA, governs the procedure in the courts of Montana in all criminal proceedings except as otherwise specifically provided by law. Section 46-1-101, MCA (1989), repealed (recodified as § 46-1-103, MCA (1991)). The scope of the State’s appeal is governed by § 46-20-103, MCA (1989). The State is not required to await final judgment in order to exercise its right of appeal since double jeopardy considerations would preclude any appeal by the State in the event of an acquittal, and the State has no right to appeal following a conviction. See State v. Cool (1977), 174 Mont. 99, 568 P.2d 567; State v. Armstrong (1980), 189 Mont. 407, 616 P.2d 341.

The defendant further argues that the Justice Court’s ruling on the admissibility of the videotape was a discretionary evidentiary ruling which should not be overturned unless an abuse of discretion is shown. Whether the Justice Court abused its discretion is not at issue in this case. The District Court does not have appellate jurisdiction to review the Justice Court’s ruling. Kesler, 228 Mont. 242, 741 P.2d 791.

We also note that, in its order dismissing the State’s appeal and remanding the case to the Justice Court, the District Court directed that the time of appeal be charged to the State. It appears from the record before us that the issue of allocation of delay for speedy trial purposes was not raised in the motion to dismiss or argued by the parties. In light of our holding in this case, the District Court’s allocation of delay to the State is vacated.

We hold that the District Court erred in remanding the case to the Justice Court for trial after the State had appealed from the Justice Court’s order suppressing evidence. We remand the case to the District Court for trial de novo.

II

Did the District Court err in ordering the fees of appointed defense counsel to be paid by the Montana Department of Fish, Wildlife and Parks?

In its order dismissing the State’s appeal and remanding the case to the Justice Court, the District Court cited § 46-8-201, MCA (1989), as authority for ordering the Montana Department of Fish, Wildlife and Parks to pay the fees of appointed defense counsel. The record does not support the court’s order.

Section 46-8-201(2)(b), MCA (1989), provides that when there has been an arrest by agents of the Department of Fish, Wildlife and Parks and the charge is brought and prosecuted by personnel of that State agency, the expense of court-appointed defense counsel must be borne by the agency; otherwise, the expense is chargeable to the county in which the proceeding arose, the Department of Commerce, or both, as provided in § 3-5-901, MCA (1989). Here, the complaint and warrant of arrest indicate that the defendant was charged with misdemeanor assault and is being prosecuted by the Gallatin County Attorney’s office. Although officials of the Department of Fish, Wildlife and Parks were at the scene of the incident, the record does not show any further involvement by department personnel. Accordingly, we hold that the District Court erred in ordering the Department of Fish, Wildlife and Parks to pay the fees of appointed defense counsel.

Reversed and remanded to the District Court for trial de novo.

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

JUSTICE TRIEWEILER

dissenting.

I dissent from the opinion of the majority.

The majority decision repeatedly refers to the District Court’s obligation pursuant to statute and the Montana Constitution to hear appeals from Justice Court de novo. However, before the District Court has an obligation to try appeals from the Justice Court de novo, it has a right to determine whether there was a proper statutory basis for appeal in the first place. In this case, I disagree with the majority’s conclusion that there was a proper basis for appeal.

Section 46-17-311(2), MCA, provides in relevant part that “[t]he prosecution may only appeal in the cases provided for in 46-20-103.” The only part of § 46-20-103, MCA, which is applicable to this case is subsection (2)(e) which allows for an appeal by the State from an order which results in “suppressing evidence.”

In my opinion, there is a significant difference between the “suppression of evidence” and an evidentiary ruling which excludes material or information which is offered but is neither relevant to nor probative of the issues in the case.

In this case, on the day the trial was scheduled to begin in Justice Court, with the Justice Court ready to begin and the jury panel standing by, the prosecutor filed a pretrial motion seeking permission to play a video tape of a protest over Montana’s bison hunt. The Justice of the Peace ruled that the defendant’s conduct, where shown on the tape, was admissible, but that other protesters’ conduct was irrelevant and would not be shown. The State immediately filed its notice of appeal, and according to the opinion of the majority, effectively divested the Justice Court of any further jurisdiction over this case.

In my opinion, the ruling by the Justice of the Peace did not suppress evidence, but excluded material which had no evidentiary value whatsoever. To allow the State to avoid the jurisdiction of justice courts by appeals like the one in this case, is to encourage circumvention of justice court jurisdiction based on any pretrial appeal, no matter how frivolous. I do not agree that that was the intention when § 46-20-103(2)(e), MCA, was enacted.

I agree with the Appellate Court for the Third District in the State of Illinois when it held in People v. McCollins (Ill. App. Ct. 1984), 468 N.E.2d 196, that there is a distinction for purposes of a state’s right to appeal between suppression of evidence and the exclusion of evidence. In that case, the defendant who was charged with driving under the influence of alcohol moved prior to trial to exclude evidence of his refusal to submit to a breath analysis after his arrest. His motion was granted and the state appealed. However, that appeal was dismissed based upon Illinois Supreme Court Rule 604(a)(1) which is identical to § 46-20-103(2)(e), MCA. That court stated:

“On the facts in this case, the state may appeal only if the substantive effect of the trial court’s order which granted the defendant’s motion in limine was to suppress evidence. If not, then the order does not become appealable simply because the State certified that its ability to prosecute is substantially impaired.
“As the Illinois Supreme Court has recognized, defining that which constitutes an order of suppression and determining whether a trial court’s ruling falls within that definition is a difficult task. (People v. Young (1980), 82 Ill.2d 234, 45 Ill.Dec. 150, 412 N.E.2d 501.) In the context of Supreme Court Rule 604(a)(1), a distinction must be made between the suppression of evidence and the exclusion of evidence. This distinction is not merely semantic. Rule 604 was not intended to give the State the right to appeal from every ruling excluding evidence offered by the State. (People v. Van De Rostyne (1976), 63 Ill.2d 364, 368, 349 N.E.2d 16, 19.) It is suppression orders, as distinguished from evidentiary rulings that are appealable under the rule. People v. Flatt (1980), 82 Ill.2d 250, 258, 45 Ill.Dec. 158, 162, 412 N.E.2d 509, 513.
“... As stated above, it is suppression orders, not evidentiary rulings, that are appealable under the rule. We find that the trial court’s order which granted the defendant’s motion in limine is not a suppression order as that term is used in Supreme Court Rule 604(a)(1) and, therefore, is not appealable.”

McCollins, 468 N.E.2d at 197-98.

The effect of the majority’s decision is to provide the State with the option of divesting justice courts of jurisdiction to try misdemeanor cases whenever the State chooses to do so. I do not believe that was the result intended by the legislature, and therefore, believe that the decision of the Illinois court is the better reasoned approach to defining the scope of appeal intended under § 46-20-103, MCA. I would affirm the District Court’s dismissal of the State’s appeal.

JUSTICE HUNT concurs in the foregoing dissent of JUSTICE TRIEWEILER.


author: JUSTICE WEBER

text:
    IN RE THE MARRIAGE OF ERMA R. VAKOFF, Petitioner and Respondent, and TONY G. VAKOFF, Respondent and Appellant.
    No. 91-416.
    Submitted on briefs December 30, 1991.
    Decided February 19, 1992.
    49 St.Rep. 144.
    252 Mont. 56.
    826 P.2d 552.

      For Appellant: F.R. Randy Harrison, Missoula.
    For Respondent: M. Dean Jellison, Kalispell.
   JUSTICE WEBER

delivered the Opinion of the Court.

After a hearing, the District Court for the Eleventh Judicial District, Flathead County, distributed the marital property of the parties in a dissolution proceeding, ordering the husband, Tony G. Vakoff, to pay the sum of $65,283.44 to the wife, Erma R. Vakoff. Mr. Vakoff appeals. We affirm.

There are three issues for our review.

1. Did Mr. Vakoff have the mental capacity to proceed as a pro se litigant at the final hearing on the parties’ dissolution?

2. Did the District Court abuse its discretion when it failed to grant Mr. Vakoff a new trial, or in the alternative, an amended judgment?

3. Did the District Court fail to equitably apportion the parties’ marital property as required by § 40-4-202, MCA?

Mr. and Mrs. Vakoff married in 1985. In August of 1989, the parties separated and Mrs. Vakoff filed a petition for dissolution that same month. Ahearing was held in the District Court and on March 1,1991, the court filed its Findings of Fact and Conclusions of Law. After finding that the marriage of the parties was irretrievably broken in that there was “serious marital discord which adversely affects the marriage”, the court entered the decree of dissolution. Mrs. Vakoff was 62 years of age and Mr. Vakoff was 63 years of age at that time.

In its division of marital property, the court first considered the property owned at the time of marriage. Mrs. Vakoff owned property valued at $236,072.44 at the time of marriage and Mr. Vakoff owned property worth $92,425.65 at the same time, making a total of $328,498.09 of marital property at the time of marriage. At the time of divorce the net worth of the marital property had reduced to $314,283.20. After considering the duration of the marriage, the age, health, station, occupation, earning capacity and income of the parties, and the opportunity of each for future acquisition of capital assets, the court concluded that the marital estate should be divided so as to restore to each party the net worth brought into the marriage, less the decrease in net worth in the amount of $14,214.89. The court concluded that Mrs. Vakoff’s contribution as a homemaker, as well as the income produced by the assets she brought into the marriage, made at least an equal contribution toward the maintenance and accumulation of assets. The court therefore concluded that the $14,214.89 decrease in net worth should be divided one-half to each Mr. and Mrs. Vakoff. In its initial distribution of assets, before considering this issue, distribution was made to Mrs. Vakoff of property worth $163,681.55 and to Mr. Vakoff property worth $150,601.65. After equally dividing the decrease in net worth, the District Court concluded that Mr. Vakoff was required to pay $65,283.44 to Mrs. Vakoff. Mr. Vakoff appeals that determination.

I

Did Mr. Vakoff have the mental capacity to proceed as a pro se litigant at the final hearing on the parties’ dissolution?

From the filing of the petition for dissolution to the hearing, Mr. Vakoffhired and fired three attorneys. He appeared pro se at the final hearing accompanied by two friends who assisted him. On appeal he maintains that the District Court erred in allowing him to proceed pro se when it had knowledge of Mr. Vakoff’s diminished mental capacity. He maintains that he did not clearly understand the issues and that the hearing should have been continued until he obtained a new counsel or a guardian ad litem to adequately represent his interests.

Mrs. Vakoff points out that at no time did Mr. Vakoff or any of his three attorneys request a continuance. She maintains that while it is true that Mr. Vakoff suffers some degree of disability as a result of a stroke, such degree of disability does not equate to incompetence.

After the entry of the decree setting forth the property distribution, Mr. Vakoff petitioned the court for a new trial on the basis that his mental disability prevented him from representing himself adequately in his pro se appearance. In denying a new trial, the District Court stated that it had observed Mr. Vakoff during trial and he demonstrated that he understood the issues, represented himself and presented evidence as well as a pro se litigant can be expected to do. We have carefully reviewed the transcript and conclude that the record fails to demonstrate any aspect in which Mr. Vakoff failed to competently represent himself. We conclude there is substantial evidence to support the District Court’s conclusion that Mr. Vakoff had represented himself as well as a pro se litigant can be expected to do.

Section 37-61-416, MCA, provides that a party to a civil action who is of full age may prosecute or defend the same in person or by attorney at his election unless he has been judicially declared to be incompetent to manage his affairs. In State of Montana ex rel. Dept. of Health and Envt’l. Science v. Bernhard (1986), 220 Month 275, 279, 714 P.2d 558, 561, the pro se defendant appealed maintaining that he had been incompetent to represent himself at the hearing in the lower court. In Bernhard, this Court held that the pro se litigant presented no evidence that he had been judicially declared incompetent; knew and understood the charges against him; and was therefore competent to represent himself at the hearing.

The same reasoning should be applied in the present case. Mr. Vakoff failed to present evidence to establish incompetence. The transcript demonstrates that Mr. Vakoff clearly understood the issues. Mr. Vakoff has failed to set forth any evidence he failed to present at the time of the hearing. As previously mentioned, the District Court determined that Mr. Vakoff represented himself as well as a pro se litigant could be expected to do. We hold that Mr. Vakoff did have the mental capacity to proceed as a pro se litigant at the final hearing.

II.

Did the District Court abuse its discretion when it failed to grant Mr. Vakoff a new trial, or in the alternative, an amended judgment?

Following the entry of the dissolution decree, Mr. Vakoff filed a motion for a new trial or in the alternative, a motion to amend the judgment with respect to the division of the marital property. Again he maintains that his diminished mental capacity affected his ability to represent himself and as a result he failed to present relevant evidence relating to the division of the marital property. The District Court denied his motions.

On appeal, Mr. Vakoff maintains that because of his diminished mental capacity he should have been allowed a new trial or to amend the judgment under Rule 59(g) or Rule 60(b), M.R.Civ.R Mrs. Vakoff maintains that even if Mr. Vakoff suffered from a diminished mental capacity to the point it would effect his pro se representation, he failed to state what relevant evidence he would have introduced that would have affected the District Court’s distribution of the marital estate.

Our holding on Issue I necessarily is determinative of this issue as we concluded that Mr. Vakoff’s pro se representation was adequate. As previously mentioned, Mr. Vakoff failed to describe any evidence which he had failed to present at the hearing. We hold that the District Court did not abuse its discretion when it denied Mr. Vakoff a new trial, or in the alternative, an amended judgment.

III.

Did the District Court fail to equitably apportion the parties’ marital property as required by § 40-4-202, MCA?

Mr. Vakoff maintains that the District Court acted inequitably in ordering him to pay Mrs. Vakoff the stun of $65,283.44 and in its attempt to restore the parties to their premarital net worth. He cites Marriage of Keepers (1984), 213 Mont. 350, 691 P.2d 810, for the proposition that the property should be apportioned between the parties however and whenever acquired, and that the court is not bound to restore the parties to their premarital status. Mrs. Vakoff maintains that the District Court’s division of property is fair and reasonable and should not be disturbed absent a clear abuse of discretion. We agree.

Section 40-4-202, MCA, provides (in part)

“[A] court... shall... finally equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether the title thereto is in the name of the husband or wife or both. In making apportionment, the court shall consider the duration of the marriage ...; the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties; ... and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of a spouse as a homemaker or to the family unit. In dividing property acquired prior to the marriage; ... the increased value of property acquired prior to marriage; and property acquired by a spouse after a decree of legal separation, the court shall consider those contributions of the other spouse to the marriage, including:
“(a)the nonmonetary contribution of a homemaker;
“(b)the extent to which such contributions have facilitated the maintenance of this property; and
“(c)whether or not the property division serves as an alternative to maintenance arrangements.”

“A district court has far-reaching discretion in dividing the marital property.” Marriage of Cannon (1990), 242 Mont. 230, 234, 790 P.2d 479, 482; Marriage of Stewart (1988), 232 Mont. 40, 42, 757 P.2d 765, 767.

After reviewing the record we conclude that the District Court did not abuse its discretion. The District Court made extensive findings of fact after considering all the relevant factors for the division of property as required in § 40-4-202, MCA. It listed the relevant property owned by each at the time of marriage, including values, and also listed the marital property as it existed at the time of separation, including values. The District Court determined that the most equitable way to divide the property was to restore to each the net worth brought into the marriage, less the decrease in net worth in the amount of $14,214.89 which was divided equally between Mr. and Mrs. Vakoff. The District Court concluded that awarding Mrs. Vakoff $65,283.44 was necessary to accomplish an equitable division of the property. We conclude that the findings on the part of the District Court are not clearly erroneous under Rule 52(a), M.R.Civ.P, and hold that the District Court equitably apportioned the marital property as required by § 40-4-202, MCA.

Affirmed.

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


text:
    AUDIT SERVICES, INC., a Montana Corporation, Plaintiff and Appellant, v. LLOYD SYSTAD, Defendant, Respondent and Cross-Appellant.
    No. 91-244.
    Submitted on Briefs November 14, 1991.
    Decided February 13, 1992.
    49 St.Rep. 137.
    252 Mont. 62.
    826 P.2d 549.

      For Appellant: Dennis Tighe, Cure, Borer & Davis, Great Falls.
    For Respondent: Greg Skakles, Johnson, Skakles & Kebe, Anaconda.
   JUSTICE WEBER

delivered the Opinion of the Court.

The appellant, Audit Services, Inc. (Audit Services), assignee of claims owed to the Montana Operating Engineers’ Trust, brought an action in the Third Judicial District, Deer Lodge County, for contributions allegedly owed by respondent, Lloyd A. Systad (Systad) to the Union’s trust funds. The District Court found that Systad had no obligation under the Special Union Agreement to contribute to the trust. Audit Services appeals. Systad cross-appeals on the District Court’s order denying attorney’s fees. We reverse and remand.

We conclude the following issue is dispositive:

Did the District Court correctly conclude the labor agreement was clear on its face and did not apply to the disputed workers?

Atlantic Richfield Co. (ARCO) contracted with Cleveland Wrecking Company (Cleveland) to demolish buildings and structures at the Anaconda smelter site. Systad, subcontracted with Cleveland to cut salvaged metal from the demolition site into sizes suitable for rail transport from the site.

In July 1983, Systad entered into a compliance agreement with the Montana Operating Engineers, Local Union #400 which incorporated by reference a Special Union Agreement signed by Cleveland and the Union. The Special Union Agreement required Systad to make contributions to the operating Engineers’ pension and vacation trusts for employers covered under the collective bargaining agreement.

Audit Services claims Systad failed to make $6992.81 in required contributions to the pension and vacation trusts on behalf of three workers: Ron Surina, James Tuss, and John Sladich. Systad claims Surina, Tuss, and Sladich were not covered by the collective bargaining agreement; thus, he was not required to make contributions on their behalf. The agreement provides:

“This is an agreement covering the indicated unions and employees engaged in the demolition and salvage at the smelter in Anaconda, Montana and shall cover all employees of the specific classifications listed and shall be in effect for the term of the employer’s work in connection with the project. This agreement does not include or cover any other work.” (Emphasis added.)

The classifications listed within the agreement are as follows:

Crane Oiler, Assistant to Engineer $9.58/hr.
Shovel Oiler, 9.50/hr. Assistant to Engineer 3 cy. & Under
Shovel Oiler, 9.91/hr. Assistant to Engineer Over 3 cy.
Electric Overhead Crane Operator 10.29/hr.
Crane Operator, 10.37/hr. Up to 80’ Boom
Crane Operator, 10.52/hr. 81’-130’Boom
Crane Operator, 10.57/hr. 131’-150’Boom
Push Tractor, Dozer Opr. 10.21/hr.
Track Type Front End Loader Up to 5 cy. 10.21/hr.
Track Type Front End Loader 5 cy. to 10 cy. 10.44/hr.
Oiler-Driver, 9.58/hr. Rubber Tired Cranes Assistant to Engineer
Gradall Operator 10.21/hr.
Rubber Tired Front End Loader 1 cy. to 3 cy. 10.21/hr.
Rubber Tired Front End Loader 3 cy. to 5 cy. 10.33/hr.
Rubber Tired Front End Loader 5 cy to 10 cy. 10.43/hr.
Shovels 1 cy. to 3 cy. 10.39/hr.
Shovels 3 cy. to 5 cy. 10.66/hr.

Shovels Over 5 cy 10.79/hr.

A subsequent amendment modified the agreement to include the classification of “mechanic on job” at $10.59 per hour and operators of “dump trucks and similar equipment.” No other classifications were added to the agreement.

Testimony at trial established that Surina, a machinist, assisted Systad in the assembly of the shear machine. Once the shear was operating he would remove broken parts from the shear machine, take them to his shop for repair, and replace the parts on-site. It also established that Tuss, a welder, welded the foundation and footings for Systad during the shear machine’s original assembly. In addition, he repaired cracks in the footings which occurred after the machine was operational. Finally, it established that Sladich operated the shear machine for Systad.

The District Court found Tuss, Surina and Sladich were not covered by the collective bargaining agreement. Thus, Systad had no obligation to contribute to the trusts on their behalf. Audit Services’ appeals this judgment.

Did the District Court correctly conclude the labor agreement was clear on its face and did not apply to the disputed workers?

The trial court found this Special Union Agreement was plain and unambiguous. When interpreting contracts, it is a question of law whether an ambiguity exist. Nordlund v. School District No. 14 (1987), 227 Mont. 402, 405, 738 P.2d 1299, 1301. Thus, in reviewing the trial court’s interpretation, we will determine if it correctly interpreted the contract.

The District Court found the express language in the agreement limited its application to the listed classifications and did not include other work performed. We agree with the District Court. The express language of the contract limits its application to work listed in the classifications. “Where the language of a written contract is clear and unambiguous ... the duty of the court is simply to apply the language as written to the facts of the case and decide the case accordingly.” Nordlund, 227 Mont. at 404, 738 P.2d at 1301.

Audit Services contends that this is a “wall to wall” agreement covering all of the demolition project. However, by expanding the collective bargaining agreement to include unlisted work classifications, this Court would be disregarding the express language of the agreement. Where the agreement provides it “does not include or cover any other work,” we must apply the contract language. Here we conclude the collective bargaining agreement limits coverage to the listed work classifications.

Next, we examine whether the listed classifications are ambiguous. “An ambiguity exists when a contract is subject to two interpretations and parol testimony can be used to determine what the parties intended.” Monte Vista Co. v. Anaconda Co. (1988), 231 Mont. 522, 528-529, 755 P.2d 1358, 1362. Here, after reviewing the contract and trial testimony, we conclude the classification “mechanic on job” is subject to differing interpretations, and creates an ambiguity in the contract. Here, the District Court failed to address this ambiguity within its findings. Thus, we reverse on this issue.

While the record indicates that the District Court admitted parol evidence of industry custom regarding the classification of “mechanic on job,” it failed to address the ambiguity in its findings.

We hold the District Court was incorrect in concluding the labor agreement was clear on its face, and remand for findings on whether the classification “mechanic on job” applies to work performed by Sladich, Tuss, and Surina.

Reverse and remand for proceedings in accordance with this opinion.

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