text:
    IN RE THE MARRIAGE OF ANTIONETTE MARIE DREESBACH, Petitioner and Appellant, and ALAN WILLIAM DREESBACH, II, Respondent and Respondent.
    No. 93-421.
    Submitted on Briefs February 24, 1994.
    As Modified on Denial of Rehearing June 28, 1994.

    Decided April 21, 1994.
    51 St.Rep. 374.
    875 P.2d 1018.
    265 Mont. 216.

      For Appellant: Christopher Daly, Missoula.
    For Respondent: Christine Somers, Haxby & Somers, Butte; Kevin Callaghan, Missoula, (guardian ad litem).

       JUSTICE HUNT would deny the petition for rehearing, JUSTICE TRIEWEILER would grant the petition for rehearing.

   JUSTICE HARRISON

delivered the Opinion of the Court.

Appellant Antionette Marie Dreesbach (Antionette) appeals the findings of fact, conclusions of law and decree of dissolution from the Second Judicial District Court, Silver Bow County. Antionette challenges several of the court’s determinations, including issues of custody, contempt, visitation, division of marital assets, and modification of custody. We affirm in part and reverse in part.

Antionette raises eight issues on appeal. We consolidate and restate the issues which are properly before this Court:

1. Did the District Court err by awarding joint custody?

2. Did the District Court err by awarding visitation?

3. Did the District Court err by finding Antionette in contempt and in its related punishment?

4. Did the District Court err in dividing the marital assets?

5. Did the District Court err by modifying custody pending appeal?

This case arises from a protracted, bitter marriage dissolution. Alan William Dreesbach, Jr. (Alan) and Antionette were married on July 18,1987. Antionette entered the marriage with a daughter, Reva Wansrath (Reva), from a previous relationship. Alan was not Reva’s natural father, nor did he adopt her. Alan and Antionette had one child, Morgan Antone Dreesbach (Morgan), on February 26,1987.

Antionette alleges that over the course of their marriage, Alan physically abused Morgan, and physically and sexually abused Reva. Alan adamantly denied these allegations. Because of this alleged abuse, the District Court appointed a guardian ad litem to represent Morgan’s best interest and to assist the court with its custody decision. Despite a court order, Antionette refused to allow Alan to visit Morgan.

Antionette’s experts testified that they had uncovered circumstantial evidence of abuse through sessions with Antionette and the two minor children; however, neither of these experts evaluated Alan. The District Court appointed Dr. Sarah Baxter to conduct a custodial evaluation. Dr. Baxter could not confirm sexual or physical abuse. Rather, Dr. Baxter concluded that Antionette suffered from acute paranoia, was terrified of losing control of Morgan, and was extremely hostile toward Alan.

After several hearings, a hearing to dissolve the marriage between Alan and Antionette was held on May 18,1993. In its order of July 2, 1993, the District Court granted joint custody of Morgan, and designated Antionette as Morgan’s primary physical custodian. The District Court determined .that Antionette’s allegations of physical and sexual abuse were false; that there was insufficient evidence to substantiate sexual or physical abuse of the children; and that Antionette had intentionally and persistently interfered with Alan’s right to visit Morgan. The court found Antionette in contempt for frustrating Alan’s visitation attempts. The District Court also divided the couple’s marital assets and elected not to remove Alan’s name from Reva’s birth certificate.

On August 26, 1993, the District Court issued a temporary order modifying custody, pending appeal. That order gave Alan sole custody of Morgan. Antionette filed a writ of supervisory control with this Court, which was denied on September 16,1993. Antionette appeals.

I

Did the District Court err by awarding joint custody?

Our standard of review in a child custody case is whether the district court’s findings are clearly erroneous. In re Marriage of Maxwell (1991), 248 Mont. 189, 193, 810 P.2d 311, 313. The court’s decision will be upheld unless a clear abuse of discretion is shown. In re Marriage of Susen (1990), 242 Mont. 10, 13-14, 788 P.2d 332, 334.

We have held that findings of fact must be based on substantial credible evidence. In re Marriage of Hurley (1986), 222 Mont. 287, 296, 721 P.2d 1279, 1285. Furthermore, a presumption exists in favor of joint custody. Section 40-4-222, MCA.

The district court is required to consider the child’s “best interest” when determining custody. Section 40-4-212, MCA. The statute provides a list of factors which the court must consider in making its determination; however, the court is not required to make specific findings on each individual factor. In re Marriage of Merriman (1991), 247 Mont. 491, 493, 807 P.2d 1351, 1353.

In the present case, the parties presented conflicting evidence as to Morgan’s best interest. Antionette wanted sole custody of Morgan, while Alan wanted joint custody. The District Court granted joint custody of Morgan, with Antionette as the primary physical custodian. Despite the District Court’s specific findings to the contrary, Antionette insists that Alan sexually abused the children.

According to Antionette, the court adopted the majority of its findings of fact nearly verbatim from the findings proposed by the guardian ad litem. In so doing, Antionette argues, the District Court failed to exercise independent judgment. See In re Marriage of Tahija (1992), 253 Mont. 505, 508, 833 P.2d 1095, 1096 (citation omitted). For example, she argues that Finding 20(b) indicates that Antionette willfully and consistently frustrated visitation, while the record indicates that both parties frustrated visitation. Moreover, the court found that Marsha Kirchner, a professional counselor from the Department of Family Services, was credible at an April 6, 1992, hearing; however, the court found that Ms. Kirchner was not credible during the May 18, 1993, trial.

The record demonstrates that the court did, in fact, exercise independent judgment. First, the District Court appointed a guardian ad litem to represent Morgan’s interests. It also ordered a custodial evaluation, which was conducted by Dr. Sarah Baxter, a psychologist, and Dr. William Stratford, a psychiatrist.

The court further heard testimony from Dr. Baxter that Morgan did not mention any sexual abuse by Alan. Moreover, Dr. Baxter could not confirm or discredit the allegations of sexual and physical abuse in her evaluations of Morgan and the parents.

The custodial evaluation also indicated that Alan and Morgan interacted well together; that Alan displayed no hostility to either Morgan or Antionette; and that during the supervised visitation, Alan behaved appropriately. Notably, even Antionette’s expert witness, Ms. Kirchner, testified that she had not ruled out the possibility that Antionette might have caused Morgan’s withdrawal symptoms.

The District Court considered — and we have reviewed — the depositions of Lynn Stewart, a professional counselor, and Dr. Timothy Carte, both of whom were retained by Antionette. The District Court found that Ms. Stewart’s deposition and testimony were not credible. However, the court found the evaluations of Drs. Baxter and Stratford and the testimony of Dr. Baxter to be persuasive. The District Court was in the best position to observe the witnesses and their demeanor. See In re Marriage of Ernst (1990), 243 Mont. 114, 122, 793 P.2d 777, 782.

The District Court thoroughly analyzed the record before it. The court reviewed, considered and relied on the opinions of the neutral experts, which were requested by the court to conduct a custodial evaluation. See In re Marriage of Ereth (1988), 232 Mont. 492, 494, 757 P.2d 1312, 1313-14. Contrary to Antionette’s assertions, the record is replete with substantial credible evidence which supports the District Comb’s findings. Furthermore, the court carefully considered the factors set out in § 40-4-212, MCA, when it made its determination. The District Comb’s findings were not clearly erroneous.

II

Did the District Court err by awarding visitation which differed from the proposal of the custody evaluator?

Our standard of review for visitation is whether substantial credible evidence supports the district court’s findings. In re Marriage of Nash (1992), 254 Mont. 231, 234, 836 P.2d 598, 600. We will overturn a court’s visitation decision only when the court’s findings and conclusions clearly demonstrate an abuse of discretion. In re Marriage of Anderson (1993), 260 Mont. 246, 254-55, 859 P.2d 451, 454.

During trial, Dr. Baxter recommended that: 1) Antionette continue receiving psychotherapy; 2) Alan and Morgan be involved in joint family therapy; 3) therapy should be overseen by someone other than Ms. Stewart; 4) overnight or lengthy, unsupervised visits between Alan and Morgan were not favored at that time; 5) Alan and Antionette have no contact; and 6) the guardian ad litem or a case manager should be appointed to ensure that therapy appointments were kept.

Antionette argues that the District Court ignored these recommendations when it made its findings. Antionette contends that the court essentially “rubber stamped” the guardian ad litem’s proposed findings and failed to exercise independent judgment by not conforming its findings to Dr. Baxter’s testimony. Antionette is mistaken.

Although the District Court adopted the visitation schedule proposed by the guardian ad litem, it specifically found that Dr. Baxter or her chosen representative should supervise Alan and Morgan’s visitation “for the shortest duration [which Dr. Baxter or a professional chosen by Dr. Baxter] deem[s] appropriate and reasonable” before unsupervised visitation begins. The District Court allowed for joint therapy at Dr. Baxter’s discretion “to repair the damage to [Alan and Morgan’s] relationship which has been caused by [Antionette’s] conduct.”

While it is true that a separate case manager was not appointed to ensure that therapy appointments were kept, this Court concludes that there is no need for a separate case manager. Rather, as the District Court determined, Dr. Baxter or her chosen representative shall be entrusted to supervise visitation and oversee the process until unsupervised visitation is deemed appropriate. We hold that the District Court’s visitation determination was based on substantial credible evidence, was not clearly erroneous, and will not be overturned.

Antionette also challenges the award of visitation to Morgan’s great grandmother and great-great grandmother on Alan’s side of the family. She argues that Montana’s grandparent visitation statutes do not address great-grandparent visitation. See §§ 40-9-101 et seq., MCA. However, the record is clear that no independent grandparent or great-grandparent visitation rights have been sought or granted. District Court Finding No. 20(s) provides that “[t]he Respondent’s grandparental visitations shall be had during visitations with the Respondent.” Absent allegations of attempted independent great-grandparent visitation or a District Court finding on independent great-grandparent visitation rights, we conclude that the issue is moot. However, we note that nothing prohibits the great-grandmother and great-great grandmother from visiting Morgan when Alan is exercising his visitation rights.

Ill

Did the District Court err by finding Antionette in contempt and in its related punishment?

Although contempt orders by the district court are final and not normally reviewable by this Court, per § 3-1-523, MCA, we make an exception in family law cases. In re Marriage of Boharski (1993), 257 Mont. 71, 77, 847 P.2d 709, 713 (citations omitted). Our review is limited to whether the district court acted within its jurisdiction and whether the evidence supports the contempt. In re Marriage of Sullivan (1993), 258 Mont. 531, 539-40, 853 P.2d 1194, 1200.

The District Court found, and the record shows, that Antionette repeatedly frustrated Alan’s visitation attempts. For example, although ordered by the court to allow Alan supervised visitation with Morgan at a day care center, Antionette on one occasion never showed up with the child. On two other occasions, Antionette met Alan at the day care center, but insisted that he sign a sheet of “visitation rules” — prepared by Antionette — before he could see Morgan. On both occasions, Alan refused and was denied the right to visit Morgan. In all instances, Alan had driven from Butte to Missoula to visit, and called to confirm the visits before making the trips.

The District Court held a contempt hearing on July 30, 1992; however, it reached no decision and the contempt proceedings were incorporated into the final trial on the merits. Antionette claims that her rules arose from revelations by Morgan to Lynn Stewart during therapy — apparently that Alan had physically abused Morgan. Antionette contends that she had a right to require Alan to sign her rules because she believed she was acting in Morgan’s best interest. According to Antionette, this Court has held that if a party disregards a court order based on concerns for a child’s health and not on a desire to restrict access, contempt is not proper. In re Marriage of Jacobson (1987), 228 Mont. 458, 464, 743 P.2d 1025, 1028.

In the present case, the court ordered supervised visitation. It was Antionette — not the court — who decided that visitation would endanger Morgan’s health. Antionette had no authority to limit, or place any restrictions on, Alan’s visitation. Undoubtedly, the District Court was correct in finding Antionette in contempt for consistently frustrating Alan’s visitation of Morgan and for levying “false accusations of sexual and physical abuse against [Alan] without reasonable justification in a calculated [sic] attempt to deprive [Alan] contact with his child and to gain advantage in this proceeding.”

We turn, then, to whether the District Court’s punishment for contempt was appropriate. Section 3-1-519, MCA, provides in pertinent part, that:

[i]f it be adjudged that he is guilty of the contempt, a fine may be imposed on him not exceeding $500 or he may be imprisoned not exceeding 5 days or both.

Antionette challenges the contempt punishment imposed by the District Court, which required Antionette to seek on-going professional counseling and bear the costs of that counseling. It also resolved the issue of Alan’s alleged child support arrearages and day care obligations in his favor. Antionette contends that requiring her to pay counseling costs amounts to an “open-ended blank check.” She further argues that the court’s equitable powers cannot contravene Montana statutes, which limit the financial punishment for contempt to $500. Section 3-1-519, MCA.

Alan contends that despite the finding that she was in contempt, Antionette went unpunished for contempt. First, Alan correctly argues that the court, in Finding No. 28, had already found him to be current in his child support and day care obligations. Second, Alan argues, and we agree, that the District Court has equitable powers to punish a party for contempt beyond the confines of § 3-1-519, MCA. See Boharski, 847 P.2d at 713 (thirty-day jail term for contempt upheld); In re Marriage of Redfern (1984), 214 Mont. 169, 173, 692 P.2d 468, 470 (reasonable attorney’s fees permissible in a contempt action).

Despite the District Court’s decree, we note that Antionette’s attorney continues to refer to Alan as a “substantiated child abuser.” We further note that the District Court did not, as it could have, find Antionette in contempt for each of her numerous acts of contempt. Moreover, for the most part, the “punishments” levied against Antionette were not, in fact, punishments. Rather, Finding No. 21 already required — upon recommendation of the guardian ad litem and custodial evaluator, Dr. Baxter — that Antionette seek and continue psychological counseling and therapy.

After a careful review of the record, we are convinced that the District Court was warranted in ordering Antionette to continue therapy for two years. Although the two-year therapy requirement will likely cost Antionette more than the $500 provided for in § 3-1-519, MCA, we hold that 1) the evidence supports the finding of contempt; 2) the court acted within its jurisdiction and equitable powers when imposing the punishment; and 3) the contempt penalties imposed by the court had, in large part, been previously imposed through Finding Nos. 21 and 28.

IV

Did the District Court err in dividing the marital assets?

The District Court appointed a special master to handle the financial aspects of this case. Antionette contends that when, as here, a special master is used, the procedures outlined in Rule 53, M.R.Civ.P., must be followed. Antionette also argues that the District Court failed to consider the total value of the marital estate when dividing the marital assets, as required by this Court in In re Marriage of Peterson (1981), 195 Mont. 157, 159, 636 P.2d 821, 822-24.

When a special master is appointed, the district court must follow the procedures outlined in Rule 53, M.R.Civ.P. The district court must give the special master an order of reference to follow. See Rule 53(c), (d), and (e), M.R.Civ.P.

The order of reference to the master may specify or limit the master’s powers and may direct the master to report only upon particular issues or to do or perform particular acts or to receive and report evidence only and may fix the time and place for beginning and closing the hearings and for the filing of the master’s report.

Rule 53(c), M.R.Civ.P. Rule 53(e)(1), M.R.Civ.P., requires the special master to provide the district court with a report based on the order of reference and file the report with the clerk of court. The parties then have ten days to object to the special master’s report. Rule 53(e)(2), M.R.Civ.P.

Here, the District Court failed to submit an order of reference to the special master and the special master’s proposed decision went directly to the District Court. The court, in turn, stated in its findings that there was an equitable division of the debts and assets. Although the District Court erred by not following the procedures outlined in Rule 53, M.R.Civ.P., we conclude that the error was harmless. In re Marriage of Lopez (1992), 255 Mont. 238, 245, 841 P.2d 1122, 1126. “[T]o warrant reversal, [an error] must materially affect the substantial rights of the party.” Lopez, 841 P.2d at 1126.

Here, Antionette’s rights were not materially affected. Even though the District Court adopted the special master’s findings, the findings were not clearly erroneous. See In re Marriage of Danelson (1992), 253 Mont. 310, 317, 833 P.2d 215, 219. In fact, the findings reflected a thorough consideration of the factors listed in § 40-4-201, MCA.

Further, Alan contends that the District Court was not required to make a specific determination as to net worth of the marital assets because it did not order a distribution of property. Rather, Alan argues that the District Court considered the parties’ net worth in terms of income and income producing ability.

We must examine the record to determine whether the district court’s findings as a whole are sufficient to determine the net worth and to decide if the distribution was equitable. In re Marriage of Stephenson (1989), 237 Mont. 157, 160, 772 P.2d 846, 848 (citation omitted). In this case, the District Court fully considered the factors in § 40-4-201(1), MCA. It considered the incomes and financial affidavits of both parties, which evidenced significant debts. For example, Antionette owed more than $3,400 in litigation/attorney expenses, almost $ 5,900 in student loans, $3,500 to Lynn Stewart, and $1,700 in other loans. Alan, on the other hand, owed $4,200 in litigation-related expenses, more than $10,000 in student loans, $2,800 to Dr. Baxter, and $400 in credit card bills.

Antionette challenges the “heavy” burden imposed on her by the District Court. The court ordered her to handle all of Reva’s psychological costs and those of Morgan not covered by Alan’s insurance; all of her own psychotherapy; all family therapy — including that between Alan and Morgan not covered by Alan’s insurance; all of her attorney’s fees, half of Morgan’s other uninsured medical expenses, and half of the guardian ad litem’s fees. Alan was ordered to provide insurance coverage for Morgan and Reva, and to pay $500 per month in child support to Antionette.

The court found that the special master, as instructed, had equitably divided the marital property. It further determined that each party pay its own attorney’s fees, and that Antionette was employed full-time and had sufficient assets to pay her own attorney’s fees. After a thorough review of the record, we hold that the District Court’s division of liabilities and acceptance of the special master’s division of marital property was not clearly erroneous. We further hold that the District Court’s failure to specify the net worth of the parties, in light of the record before us, was not reversible error.

V

Did the District Court err by modifying custody pending appeal?

On August 12, 1993, Antionette appealed the District Court’s decision. On August 26,1993, the District Court ordered a temporary change in custody, a temporary restraining order against Antionette, and an order to show cause. The order, based on a motion by the guardian ad litem and supported by the affidavits of Alan and Dr. Baxter, was based on the following concerns: 1) that Antionette had not sought therapy — designed to safeguard Morgan’s best interest — as required by the District Court; 2) that Antionette continued to challenge the decreed visitation plan, which successfully progressed from supervised to extended unsupervised visitation; 3) that Antionette continued to allege that Alan was sexually abusing Morgan, and sought medical examinations to prove such abuse; and 4) that Dr. Baxter, who has withdrawn from the case (based on the appeal and on Antionette’s dissatisfaction with her performance) in favor of Dr. Cindy Miller, is concerned that Antionette “is continuing to stifle Morgan’s normal emotional responses and desire for a relationship with her father.”

The order placed Morgan in Alan’s sole custody and limited Antionette to supervised visitation only. It required Antionette to undergo immediate psychological evaluation to determine

whether Petitioner and her demonstrated course of conduct constitute a danger to Morgan’s physical, mental and emotional health and ... whether Petitioner is capable of obeying the specific orders of this Court and the conditions imposed upon her previously awarded residential custody.

The order required Antionette to transfer custody of Morgan to Alan; restrained Antionette from harassing, molesting or disturbing the peace of Morgan or Alan; temporarily waived Alan’s child support obligation; and ordered Antionette to appear before the District Court on September 3, 1993, to show cause for her actions. On September 2,1993, the Court vacated the District Court hearing set for September 3, 1993.

We note that Morgan is now living with Alan in Butte, and Antionette has not attempted to visit Morgan. On August 24, 1993, Antionette moved this Court for a writ of supervisory control, seeking a stay of the decreed visitation and substitution of the judge. We denied her motion on September 16, 1993.

When, as here, a notice of appeal has been filed, the long-established rule in Montana is that jurisdiction passes from the district court and vests with this Court. Powers Mfg. Co. v. Leon Jacobs Ent. (1985), 216 Mont. 407, 411, 701 P.2d 1377, 1380 (citation omitted). Some exceptions exist, however. See, e.g., Churchill v. Holly Sugar Corp. (1981), 192 Mont. 533, 536, 629 P.2d 758, 760 (court retains jurisdiction over ancillary matters); Northern Plains Resource Council v. Board of Health and Environmental Sciences (1979), 184 Mont. 466, 472, 603 P.2d 684, 688 (court can correct clerical errors); State ex rel. Kaasa v. District Court (1978), 177 Mont. 547, 551, 582 P.2d 772, 775 (court can award necessary maintenance, child support and suit monies after judgment has been entered in a dissolution proceeding pending appeal).

The present case falls under no exception of which this Court is aware. The District Court, though arguably acting in the best interest of Morgan, lacked jurisdiction to generate any orders relating to those issues on appeal to this Court. Therefore, we vacate the District Court’s temporary order of August 26, 1993.

Finally, we will address an issue not raised but discussed in the briefs, whether the court erred in failing to remove Alan’s name from Reva’s birth certificate. Testimony at trial indicated that Alan, during the initial hearing in April, 1992, testified that it was his belief that Antionette wanted him to adopt her daughter, Reva. In fact, Alan had hired an attorney to assist them in the adoption proceedings. Alan was uncertain as to why they never followed through with the procedure, although Antionette obtained Reva’s birth certificate on her own and it was amended to state that Alan was Reva’s father.

We conclude that this matter is not properly before this Court on appeal and that an alternative procedure for a change of name, pursuant to §§ 27-31-101 et seq. MCA, is available to Antionette if she desires to have Reva’s last name amended on her birth certificate.

Because of the sensitive nature of this case, the unusual events which have transpired, and the potential emotional harm to Morgan, we remand this case to the District Court for a hearing on the issue of custody. We reinvest with the District Court jurisdiction for the limited purpose of determining custody. A custody hearing will ensure the due process rights of Antionette and Alan, and provide them ample opportunity to present evidence and be heard with regard to custody. To promote stability and continuity in Morgan’s life until a final custody determination is made, Alan shall retain sole custody of Morgan. We direct the District Court to expedite the hearing on this matter.

Affirmed in part and remanded for a custody hearing to be conducted consistent with this opinion.

JUSTICES HUNT, TRIEWEILER, NELSON and GRAY concur.


source: Caselaw Access Project

author: JUSTICE NELSON JUSTICE TRIEWEILER

license: Public Domain

text:
    J.M., JR. individually and by his parents, and next friends, J.M. and S.M., Plaintiffs/Respondents, v. MONTANA HIGH SCHOOL ASSOCIATION and the BOARD OF CONTROL of the Montana High School Association, and BUTTE CENTRAL HIGH SCHOOL, Defendants/Appellants.
    No. 93-463.
    Submitted on Briefs March 10, 1994.
    Decided May 5, 1994.
    51 St.Rep. 401.
    875 P.2d 1026.
    265 Mont. 230.

      For Appellants: Jock O. Anderson, David C. Dalthorp, Gough, Shanahan, Johnson & Waterman, Helena.
    For Respondents: David J. Wing, Butte.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from the Second Judicial District Court, Silver Bow County, granting a preliminary injunction against the defendants, the Montana High School Association (MHSA), the Board of Control of MHSA, and Butte Central High School (Butte Central), enjoining them from enforcing MHSA’s maximum participation eligibility rules against the plaintiff. MHSA and the Board of Control appealed, asking this Court to dissolve the injunction. We reverse, remand and dissolve the injunction.

ISSUES

This appeal involves two issues which relate to whether the District Court erred in applying the statutory rights and remedies of the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et. seq., (IDEA), to enjoin MHSA from enforcing its eligibility rules against the plaintiff, J.M., Jr. The two issues are as follows:

1. Whether rights arising under IDEA afford protections to students who may be learning disabled but who do not have a written Individualized Education Program (IEP), and are not otherwise participating in a special education program prescribed under IDEA.

2. Whether the principles enunciated in T.H. v. Montana High School Ass’n. (D. Mont., Sept. 24, 1992), CV-92-150-BLG-JFB, apply to students who have exhausted their allotted eligibility under MHSA’s rules.

BACKGROUND

This case involves an eighteen year old Butte Central student who claims learning disabilities, and who ran afoul of MHSA’s maximum participation eligibility requirements. Under those rules, he was ineligible to play football or to wrestle during his senior year of high school. MHSAis a non-profit association incorporated under the laws of Montana. Membership in MHSAis voluntary, and is comprised of public and private high schools in Montana, including Butte Central. MHSA has the exclusive authority and responsibility for supervising and controlling all phases of interscholastic programs among its member schools. MHSA prohibits member schools from allowing any student to participate in interscholastic athletics if that student is ineligible to participate under MHSA rules and bylaws, and it has the power to sanction and penalize member schools which allow ineligible students to participate.

The two MHSA rules at issue in this case are called “maximum participation rules,” in that they delineate the maximum semesters or seasons of eligibility for student participants in interscholastic contests.

The first rule prohibits students from participating in any MHSA regulated activity for more than eight semesters. The “eight semester” rule provides:

No student shall be eligible to participate in an Association Contest who has been in attendance in any secondary school more than eight (8) semesters. An attendance of twenty (20) days during a semester shall constitute one semester’s attendance under this section. ...

Montana High School Ass’n. Official Handbook (1993-1994), By-Laws, Article II, Section (9), p. 19.

The second rule, or “four season” rule, provides:

No student shall be eligible to participate in an Association Contest during more than four seasons in any one sport....

Montana High School Ass’n. Official Handbook (1993-1994), By-Laws, Article II, Section (11), p. 20.

Inasmuch as students gain physical and mental maturity each season that they participate in sports and thereby gain the advantage of size, strength, and speed over younger students, MHSA established these maximum participation rules to promote safety, interscholastic competition, the opportunity to compete, and to insure that students do not delay graduation for athletic purposes.

The student involved in this case, J.M., Jr., had participated in four seasons of football prior to the 1993 fall season. J.M., Jr.’s high school football career began in 1989, when he played freshman football at Helena High School. In late October of 1989, J.M., Jr. and his family moved to Missoula. Because of educational difficulties, J.M., Jr. finished the remainder of the 1989-90 school year in the eighth grade. In the summer of 1990, J.M., Jr. moved with his family to Butte. He enrolled as a freshman in Butte Central, a private school, and played football for Butte Central for the 1990, 1991, 1992, seasons, thereby playing four seasons of football. Because J.M., Jr. had already participated in four seasons of football, he was ineligible to play football in the fall of 1993 at the commencement of his senior year, by reason of the MHSA four seasons rule. J.M., Jr. also wrestled for Butte Central, competing during the spring semesters of 1991,1992 and it appears, although not completely clear from the record, spring semester of 1993. Because of the eight semester rule, J.M., Jr. would have been ineligible to compete in spring semester wrestling during school year 1993-94.

In January 1993, in anticipation of J.M., Jr.’s potential ineligibility, his parents requested a formal ruling from MHSA regarding their son’s eligibility to play football and to wrestle, for the 1993-94 school year. In February 1993, MHSA, through its executive director, Dan Freund, ruled that because the fall semester of 1993 would be J.M., Jr.’s fifth season of fall sports, and the spring semester would be his ninth semester of school, J.M., Jr. would be ineligible to participate in any interscholastic activities for the 1993-94 school year. J.M., Jr.’s parents appealed this decision to MHSA’s Board of Control, the governing body responsible for the interpretation and enforcement of MHSA rules.

Subsequent to an eligibility hearing held in mid-April, 1993, the Board of Control denied J.M., Jr.’s request to waive the four season rule for the fall semester of the 1993-94 school year, but approved the request for a waiver of the eight semester rule for the spring semester. The Board of Control based its decision on the fact that J.M., Jr. had already competed in four seasons of fall sports, but had only competed in three seasons of spring sports.

The following chart illustrates J.M., Jr.’s participation in high school athletics and the expiration of his eligibility under MHSA’s four season and eight semester rules.

Pall Spring

Semester/Season Semester/Season

1989-1990 (9th/8th grade) X

1990-1991 (9th grade) X X

1991-1992 (10th grade) X X

1992-1993 (11th grade) X X

Total Semesters/Seasons of 4 3 = 7

eligibility before 1993-1994 school year

J.M., Jr. was not found to be ineligible for any other reason, i.e., because of age limitations, or academic performance. He was denied eligibility solely because his eligibility had expired under the four season rule.

On September 3, 1993, J.M., Jr.’s parents filed a complaint in District Court alleging, primarily, that he had constitutional rights and statutory rights under IDEA which allowed him to participate in fall semester sports. On this same date, J.M., Jr.’s parents moved for, and were granted, a temporary restraining order, restraining MHSA and the Board of Control from enforcing its rules against J.M., Jr., thereby permitting him to participate in fifth season football during the pendency of the order.

The defendants moved to dissolve the temporary restraining order, and an evidentiary hearing was held on September 9, 1993. After considering the parties’ testimony and other evidence, the District Court filed on September 20, 1993, its Amended Findings of Fact, Conclusions of Law and Order dated September 10, 1993, which preliminarily enjoined MHSA from enforcing its four seasons rule against J.M., Jr., and from imposing sanctions against Butte Central, pending a further good faith, meaningful hearing by MHSA into the propriety of waiving the rule. The District Court also ordered MHSA to reconsider its action as it affects J.M., Jr., in wrestling, so as not to deny him permission to begin practice for wrestling during the fall semester. The complaint also raised other claims not at issue here.

The District Court based its order on the protections afforded by IDEA, and the holding set forth in T.H. v. Montana High School Ass’n. (D. Mont., Sept. 24, 1992), CV-92-150-BLG-JFB. Defendants appeal from the District Court’s order and request that the preliminary injunction be dissolved.

STANDARD OF REVIEW

Granting a preliminary injunction is within a trial court’s discretion, and we will not interfere unless manifest abuse is shown. Frame v. Frame (1987), 227 Mont. 439, 444, 740 P.2d 655, 659. However, no discretion is involved when the court arrives at a conclusion of law, and we review the district court’s conclusions of law to determine whether the district court’s interpretation of the law is correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603. In the instant case, we conclude that the District Court’s interpretation of the law was erroneous and that, accordingly, the preliminary injunction was improperly granted.

DISCUSSION

The District Court found that J.M., Jr. had rights under IDEA. This Act guarantees that all children with disabilities have available to them a free appropriate public education and related services to meet their unique needs. 20 U.S.C. § 1400(c).

IDEA provides federal funding for states which provide students with disabilities, special education services according to the Act. 20 U.S.C. §§ 1400(b)(9), 1412, 1413. The Act is implemented through both the “State education agency” and through “local education agencies,” the public school system. 20 U.S.C. §§ 1401(a)(7)&(8), 1412(6), 34 C.F.R. § 300.2(b) (1992). The State and local education agencies are required to guarantee procedural safeguards for handicapped children, in providing a free and appropriate public education. 20 U.S.C. § 1415(a). Central among the safeguards is the development of a written IEP for each child. 20 U.S.C. § 1401(a)(20), 34 C.F.R. § 300.130(a), W.G. v. Board of Trustees of Target Range School D. (9th Cir. 1992), 960 F.2d 1479, 1483.

The IEP is a formal, written statement which delineates the disabled student’s unique educational goals, objectives, curriculum, and related services. 20 U.S.C. § 1401(a)(20), 34 C.F.R. § 300.346 (1992).

IDEA and the Code of Federal Regulations specify the mechanism by which a person is determined to be learning-disabled and by which he or she qualifies for education-related benefits under IDEA. In summary, that process includes: (1) the identification of the student potentially in need of special education services; (2) the appointment of a Child Study Team (CST) which determines whether the student qualifies for such services, 34 C.F.R. §§ 300.531, .532, .540 (1992); (3) the addition of the parents of the student to the CST, assuming the student is initially found to be qualified by the CST, 34 C.F.R. § 300.345 (1992); (4) the determination of the student’s special needs and services which are necessary to provide the student with an appropriate education, 34 C.F.R. §§ 300.341 -.345 (1992); and, (5) the incorporation of the student’s special needs and necessary services into a formalized, written IEP which controls the student’s curriculum, 34 C.F.R. §§ 300.341, .346 (1992).

Importantly, IDEA’S regulations require that a student receive special education related benefits only pursuant to an IEP. 34 C.F.R. §§ 300.340, .342(b)(l)(1992). Under the federal regulations implementing IDEA, “[a]n individualized education program must: (1) Be in effect before special education and related services are provided to a child.” 34 C.F.R. § 300.342(b)(l)(1992). The requirement of a written IEP, insures that those students truly in need of special education receive services designed to meet their individual needs. 20 U.S.C. §§ 1401(a)(20), 1412(2)(c), 34 C.F.R. 300.340 - .349 (1992). It is clear, that a formal, written IEP developed pursuant to the Act is a critical component of IDEA. In fact, the Act requires that an IEP be in effect, before special education services are provided to a child. 34 C.F.R. §§ 300.340, .342 (1992).

In its decision, the District Court relied on T.H. v. Montana High School Ass’n. (D. Mont., Sept. 24, 1992), CV-92-150-BLG-JFB. In that case, a 19 year old learning disabled high school student became ineligible to play sports during his senior year because of MHSA’s “age rule,” codified at Article II, § 8 of the MHSA By-Laws. That rule prohibits any student who becomes 19 years of age on or before midnight of August 31, of a given year, from participating in any interscholastic sports contest.

T.H. applied for a waiver of the age rule based upon his special needs as a learning disabled student. T.H. (D. Mont., Sept. 24,1992), CV-92-150-BLG-JFB at 5. MHSA denied the waiver, and the student sought a preliminary injunction in Federal District Court. T.H. (D. Mont., Sept. 24, 1992), CV-92-150-BLG-JFB at 1, 6. The Federal District Court granted the preliminary injunction, holding that the student had a federally protected right under IDEA, as his IEP required that he participate in interscholastic sports as a motivational tool. T.H. (D. Mont., Sept. 24, 1992), CV-92-150-BLG-JFB at 9. The Federal District Court in T.H., found that the guarantee to a free and appropriate public education and related services for handicapped children, extends to interscholastic sports when such participation is included as a component of their IEP. T.H. (D. Mont., Sept. 24, 1992), CV-92-150-BLG-JFB at 9.

As the Federal Court observed in T.H., generally speaking, a student has no constitutional right to participate in interscholastic sports, it is a privilege which may be withdrawn by the school or by a voluntary association whose rules the school has agreed to follow. T.H. (D. Mont., Sept. 24, 1992), CV-92-150-BLG-JFB at 9. (Citations omitted.)

Furthermore, limitations on maximum eligibility for participation have been generally upheld. Smith v. Crim (Ga. 1977), 240 S.E.2d 884; Mitchell v. Louisiana High School Athletic Ass’n. (5th Cir. 1970), 430 F.2d 1155; California Interscholastic Federation v. Jones (Cal. App. 1988), 243 Cal. Rptr. 271; Alabama High School Athletic Ass’n. v. Medders (Ala. 1984), 456 S.2d 284; Murtaugh v. Nyquist (N.Y. Sup. 1974), 358 N.Y.S.2d 595; David v. Louisiana High School Athletic Ass’n. (La. App. 1971), 244 So.2d 292; Burtt v. Nassau County Athletic Ass’n. (N.Y. Sup. 1979), 421 N.Y.S.2d 172. In State ex rel. Bartmess v. Board of Trustees of School Dist. No. 1 (1986), 223 Mont. 269, 726 P.2d 801, we determined that academic eligibility standards as a condition of participation in extracurricular activities were lawful.

However, once interscholastic sports are offered, they acquire the protection from an unconstitutional deprivation. Bartmess, 726 P.2d at 804-805. In T.H. the Federal District Court concluded that “[w]hen participation in interscholastic sports is included as a component of an IEP as a ‘related service’, see 20 U.S.C. § 1401(a) (1), (a)(17), the ‘privilege’ of competing in interscholastic sports is transformed into a federally protected right.” T.H. (D. Mont., Sept. 24, 1992), CV-92-150-BLG-JFB at 9.

The Federal District Court also ruled that “due process requires that the MHSA conduct an individualized inquiry to determine whether any of the four stated concerns underlying the age rule are implicated and violated by [the learning disabled student’s] participation in interscholastic sports, before it may deny a waiver of that rule.” T.H. (D. Mont., Sept. 24, 1992), CV-92-150-BLG-JFB at 10.

As a result of the decision in T.H., MHSA’s Board of Control established a rule codifying the hearing process for addressing the concerns underlying the age rule. The rule provides that the student requesting the hearing prove that:

(1) the student does not create a safety risk to other players, and
(2) the student does not skew the overall competitiveness of the particular activity(ies) for which the student will participate, and
(3) the student’s participation will not result in the exclusion of other eligible players, and
(4) the student meets all other criteria necessary for participation in MHSA activities, and
(5) the student has an IEP in compliance with OPI requirement standards, and
(6) the petition for a hearing must be initiated sufficiently in advance of the affected school year to allow the MHSA a reasonable opportunity to make an informed decision. ...

Montana High School Ass’n. Official Handbook (1993-1994), By-Laws, Article VII, Section (4), p. 30-31.

In the instant case, relying on T.H., the District Court found that, although J.M., Jr. did not have a formalized IEP, there was evidence indicating that there was an unwritten IEP in effect for J.M., Jr. at Butte Central which had been formulated by his teachers, principal, counselor, private doctor and parents. Therefore, the District Court concluded that J.M., Jr. had rights under IDEA. The District Court granted the preliminary injunction allowing J.M., Jr., to participate in a fifth season of football and, since the MHSA hearing process developed pursuant to T.H. had not been available to J.M., Jr., the District Court also directed MHSA to hold an individualized inquiry into the propriety of waiving the maximum participation rules with respect to J.M., Jr.

At the outset, we note that T.H. involved a maximum participation rule based on age, unlike this case, where the maximum participation rules are based on the number of seasons played or number of semesters attended. However, since the basic rationale for maximum participation rules and the legal principles discussed are the same, we conclude that distinction is not material for purposes of this opinion.

Furthermore, whether J.M., Jr., is learning disabled and, therefore, eligible for special education benefits and services under IDEA, and if so, whether Butte Central, the Butte Public School District or the State, (the latter two entities not being parties to this litigation), are required to provide those special education benefits and services to him, is not before us and, we do not address those issues here.

Respondents argue that J.M., Jr. was entitled to have special education and related services provided to him at public expense pursuant to the provisions of IDEA, 20 U.S.C. § 1413(a)(4)(B)(i). They also claim that if they had sought involvement of the local education agency, a written IEP would have been developed. Assuming, arguendo, that their conclusions are correct, it remains that J.M., Jr.’s parents did not seek the involvement of the appropriate State or local education agencies; that the statutory and administrative mechanism for identifying J.M., Jr., as learning-disabled and qualifying him for IDEA benefits and services was not implemented; and that a formal, written IEP requiring his participation in interscholastic sports was not adopted to govern J.M., Jr.’s curriculum. Although J.M., Jr., had a specialized educational program, he was not participating in a formal, written IEP established under the statutory and administrative mechanism mandated by IDEA and its implementing regulations.

That point is dispositive for purposes of the issues addressed in this opinion. The Federal District Court’s grant of the preliminary injunction in T.H. and its requirement for a further individualized inquiry was premised on the fact that the disabled student in that case had been placed in a formal, written IEP tailored to meet his particular needs, in accordance with IDEA. T.H. (D. Mont., Sept. 24, 1992), CV-92-150-BLG-JFB at 4. One important and integral component of that IEP was a requirement that he participate in interscholastic sports. T.H. (D. Mont., Sept. 24,1992), CV-92-150-BLG-JFB at 4. The combination of those two factors led the Federal District Court to conclude the “privilege” of competing in interscholastic sports was transformed into a federally protected right which could not be abrogated, absent a case-specific factual inquiry into T.H.’s waiver request and denial on a sufficient evidentiary basis. T.H. (D. Mont., Sept. 24, 1992), CV-92-150-BLG-JFB at 9-10.

That the Federal District Court was duly mindful of the potentially serious ramifications of its decision and the necessity for carefully following the mechanism for adopting and considering the components of the formal IEP is evident in the Court’s decision:

As an aside, and as a final matter, the Court would strongly encourage the Fairview High School, and other schools developing IEPs under the IDEA, to exercise prudence when including as a component of an IEP any activity for which a student is ineligible because of the MHSA age rule or any other factor beyond the control of the school. By doing so, the school is potentially making a promise it simply cannot keep, and is setting students like T.H. up for disappointment and failure when and if valid restrictions on eligibility are ultimately enforced.

T.H. (D. Mont., Sept. 24, 1992), CV-92-150-BLG-JFB at 13.

We conclude that the District Court’s reliance on T.H., in the instant case was error. The student in T.H., had a written IEP developed according to the requirements of IDEA that required his participation in interscholastic sports as an integral component, whereas J.M., Jr. did not. It was improper for the District Court to elevate J.M., Jr.’s privilege of participating in interscholastic sports to the level of a federally protected right under IDEA and to afford him the individualized inquiry referenced in T.H., and codified in Article VII, Section (4) of MHSA Official Handbook’s By-Laws, when J.M., Jr. had not followed the statutorily and administratively mandated mechanism for identifying and qualifying him under IDEA and for developing his formal, written IEP, assuming that he did qualify.

Moreover, whether his formal, written IEP would have mandated J.M., Jr.’s, participation in interscholastic sports as an integral component of the program, thereby elevating his privilege to participate to the status of a federally protected right with concomitant individualized hearing rights, is simply academic unless and until J.M., Jr. first qualifies for IDEA benefits and services and until a formal IEP incorporating that requirement is, in fact, adopted. Here, J.M., Jr. seeks to avail himself of rights under a particular statutory scheme even before he has complied with the requirements of those very laws which, arguably, might bring those rights into existence. J.M., Jr., has put the cart before the horse.

Furthermore, MHSA is not a State or local education agency as defined under IDEA. T.H. (D. Mont., Sept. 24, 1992), CV-92-150-BLG-JFB at 12-13. MHSA has no obligation under IDEA to identify or evaluate J.M., Jr.’s special education needs. Therefore, we are reluctant to impose upon MHSA the obligation to conduct an individualized hearing, with the potential for further litigation if the hearing decision is not to the liking of the respondents, absent J.M., Jr.’s request for waiver being premised on a federally protected right to participate in interscholastic sports contests under a formal, written IEP developed in accordance with IDEA mandates. Accordingly, we hold that it was improper for the District Court to grant the preliminary injunction and to require MHSA to conduct an individualized inquiry into the propriety of waiving its maximum participation rules when J.M., Jr. had not first established a federally protected right to participate in interscholastic sports in contravention of those rules.

The dissent contends that the issues presented on appeal are moot because the District Court’s restraining order was only in effect during the fall semester of the 1993-1994 school year, and it is now April, 1994. We disagree and conclude that although the time has lapsed on the District Court’s preliminary injunction, the mootness doctrine does not bar our review. Aside from the fact that J.M., Jr., did not argue that we should not rule on the merits of this appeal because of mootness, we also note that given the amount of time inherent in the litigation process, and given our reluctance to entertain original proceedings and special writs except under extraordinary circumstances, it would be nearly impossible for any case such as this to ever reach this Court, via the usual litigation/appeal process, within the time during which the injunction was in effect.

To mechanically apply the doctrine of mootness under such circumstances would effectively deny the remedy of appeal. Where MHSA will, undoubtedly, be faced with future challenges to its maximum participation rules on issues and facts such as those presented here, it has a right to a final decision of this Court on the merits of its appeal.

For the foregoing reasons, we reverse the District Court’s order dated September 10, 1993 and dissolve the preliminary injunction. To the extent that other issues remain to be resolved under respondent’s complaint, we remand for further proceedings.

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

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority opinion.

The District Court’s preliminary injunction pertained only to athletic activities during the fall semester of the 1993-94 academic year. As I review the majority’s proposed opinion, it is April 18,1994.

The District Court’s restraining order is no longer in effect. The issues raised on appeal are moot. The majority’s opinion is merely advisory and has no direct bearing on the respective interests of the parties who are before the Court. Therefore, I would dismiss the appeal and not reach the merits in this case.

For these reasons, I dissent from the majority’s decision to issue an opinion which has no effect on the rights of either party in this case.


author: JUSTICE WEBER

text:
    DAVID DUNKELBERGER, Respondent and Petitioner, v. BURLINGTON NORTHERN RAILROAD COMPANY, Appellant and Respondent.
    No. 94-111.
    Submitted on Briefs April 19, 1994.
    Rehearing Denied June 23, 1994.
    Decided June 2, 1994.
    51 St.Rep. 499.
    876 P.2d 218.
    265 Mont. 243.

      For Appellant and Respondent: Jeff Hedger, Kroschel & Yerger, Billings.
    For Respondent and Petitioner: Kurt M. Jackson, Hoyt & Blewett, Great Falls.
   JUSTICE WEBER

delivered the Opinion of the Court.

This action is before the Court on Petitioner Dunkelberger’s motion to dismiss. We grant Dunkelberger’s motion for dismissal of this appeal.

We consider the following issue on review:

Pursuant to Rule 6(a), M.R.Civ.P., were December 24, 1993 and December 31, 1993, either “holidays” or “legal holidays” in 1993 because both Christmas Day and New Year’s Day fell on Saturdays?

Burlington Northern (BN) filed a notice of appeal on March 11,1994, seeking to reverse a jury verdict entered on December 14,1993 in favor of Petitioner Dunkelberger (Dunkelberger). Dunkelberger has petitioned this Court to dismiss BN’s appeal because the notice of appeal was filed too late under the Montana Rules of Civil Procedure.

Notice of Entry of Judgment reflecting the jury verdict was filed and mailed to BN’s attorneys on December 15,1993. BN filed a motion for extension of time on December 29, 1993, erroneously believing that it could extend the ten-day time period in which to serve notice of a motion for new trial pursuant to Rule 59(b), M.R.Civ.P. Subsequently, BN filed its motion for a new trial on January 4,1994. The court ruled on BN’s motion for extension of time to file a post-trial motion for new trial on January 7,1994, three days after the motion for extension of time was filed. The court never ruled on the January 4, 1994 motion for new trial.

Dunkelberger contends that BN is limited to ten days in which to serve a motion for new trial pursuant to Rule 59(b), M.R.Civ.P. Dunkelberger further contends that a party has thirty days to appeal a judgment according to Rule 5, M.R.Civ.P., unless the party requests an extension of time, which was not done in this case in accordance with the rule. Dunkelberger argues that because BN’s motion for new trial was served after the ten-day limit, the thirty-day time limit for filing an appeal was not tolled and, thus, its appeal is untimely and must be dismissed.

BN contends that interpretation of Rule 6(a) and 6(e), M.R.Civ.P, concerning computation of time involving post-trial motions, in addition to appropriate statutes as well as rules issued by the Department of Administration, indicate that its motion for new trial was timely. According to BN, because its motion was timely and because the court did not rule on this motion, the motion was deemed denied forty-five days after filing or February 22, 1994, pursuant to Rule 59(d). BN contends that the thirty-day appeal time began to run on February 23, 1994, making its March 11, 1994, appeal timely.

In order to understand the procedure and time constraints required of the parties in this case, we quote the following rules from the Montana Rules of Civil Procedure:

Rule 59(b). Time for motion. A motion for new trial shall be served not later than 10 days after service of notice of the entry of the judgment. (Emphasis added.)
Rule 59(d). Time for ruling on motion. If the court shall fail to rule on a motion for new trial within 45 days from the time the motion is filed, the motion shall, at the expiration of said period, be deemed denied.
Rule 6(a). Computation. In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or legal holiday, or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the clerk of the district court inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays and holidays shall be excluded in the computation. ... (Emphasis added.)
Rule 6(b). Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under Rules 50(b) and (c)(2), 52(b), 59(b), (d), (e) and (g) and 60(b), except to the extent and under the conditions stated in them. (Emphasis added.)
Rule 6(e). Additional time after service by mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, 3 days shall be added to the prescribed period. (Emphasis supplied.)

We first note that Rule 59(b), M.R.Civ.R, requires only that the motion for new trial be “served” within ten days. The rule does not state that the motion must be filed. Service on the other party in an action can be accomplished without the use of the courts of this State. Service means providing the other party or the party’s counsel with a copy of the applicable document. Rule 5(b), M.R.Civ.R

We note that counsel in this case may have orally stipulated to an extension of time in which to bring the motion for a new trial. In its Motion for Extension of Time, BN stated, “Plaintiff’s counsel has been contacted and has no objection to this motion for extension of time.” Counsel cannot stipulate to override the effect of the mandatory time constraints contained within the Montana Rules of Civil Procedure. We emphasize here that Rule 59(b), M.R.Civ.R, provides that the ten days permitted for service of a motion for new trial cannot be extended under any circumstances.

The legal question which we must answer is whether BN’s calculation of the ten days was correct. Rule 6(e), M.R.Civ.R, states that when service of a motion is by mail, three days mailing time must be counted before the ten days’ time for service of motion can begin. DeTienne Assoc. v. Montana Rail Link, Inc. (1993), 261 Mont. 238, 241-42, 862 P.2d 1106, 1108. As discussed in more detail below, our opinion in DeTienne was intended to clarify the method for calculating the prescribed period of time when service of a motion is made by mail if such prescribed period is less than eleven days.

In order to accurately calculate the ten-day period, we first must consider the meaning of the words “holidays” and “legal holidays” found in the computation rule, Rule 6(a), M.R.Civ.R If BN is correct, its motion for new trial was timely and subject to the forty-five day automatic denial as well as the tolling of the thirty days permitted by the rules of appellate procedure for filing an appeal.

Notice of Entry of judgment was mailed on December 15,1993. We do not count the day of mailing, but rather begin counting the three days on December 16,1993. Thus, the three days allowed for mailing ended on December 18, 1993 — a Saturday. Rule 6(a), M.R.Civ.R, provides that when a rule calls for less than eleven days, Saturdays and Sundays are not counted. However, we held in DeTienne that Saturdays and Sundays would not be excluded from the initially added three days which are allowed for mailing and that these days would be counted prior to the counting of the prescribed period for serving a motion. DeTienne, 862 P.2d at 1108.

We must then begin our calculations on December 20, 1993, a Monday, and include December 21,22,23,24,27,28,29,30 and 31,1993. The tenth and final day for serving was Friday, December 31, 1993. Under the foregoing calculation, BN’s motion was not served in time.

BN argues that December 24 and December 31 were legal holidays because the Department of Administration had so provided in 2.21.620, ARM, and these dates should be excluded. Dunkelberger contends that the days before Christmas Day and New Year’s Day, that being December 24 and December 31, are not legal holidays and should not have been considered as holidays in the calculation of the ten day period. Whether these two days are “legal holidays” or some other kind of holiday because Christmas Day and New Year’s Day fell on Saturdays is the key question. If they are either “holidays” or “legal holidays” according fo the rule, then BN would have filed and served its January 4, 1994 motion for new trial within the ten-day period.

Dunkelberger cites § 1-1-216, MCA, for the proposition that December 24 and December 31 are not legal holidays. Section 1-1-216, MCA, in pertinent part provides:

Legal holidays and business days. (1) The following are legal holidays in the state of Montana: ...
(b) New Year’s Day, January 1;
(k) Christmas Day, December 25;
(2) If any of the above enumerated holidays ... fall upon a Sunday, the Monday following is a holiday. All other days are business days.

The statute makes no provisions for the circumstance where Christmas Day and New Year’s Day fall on Saturdays. Nor does it list December 24 and 31 as “legal holidays.”

BN attempts to rebut this argument by stating that the Department of Administration has issued regulations which make this very determination with regards to holidays that fall on Saturdays. 2.21.620, ARM. It is true that the Administrative Rules of Montana make this determination — but only within the context of holidays for state personnel.

Dunkelberger would have us interpret the aforementioned Administrative Rules within the confines of § 3-1-302, MCA:

(1) No court may be open nor may any judicial business be transacted on legal holidays, as provided in 1-1-216, MCA, and on a day appointed by the president of the United States or by the governor of this state for a public fast, thanksgiving, or holiday.... (Emphasis added.)

This statute speaks to the issue of the availability of courts. BN contends that pursuant to the Administrative Rules of Montana, all courts in the State of Montana, including the Supreme Court, were closed on December 24,1993, and December 31,1993 — the Fridays preceding the holidays.

It is true that all state employees and court personnel of the State of Montana did not work on the Fridays before Christmas Day and New Year’s Day in accordance with 2.21.620, ARM. However, what we are concerned with is service on a law office which is a private business. No evidence exists in the record to indicate that private businesses were closed in Montana on that date. In addition, we point out that there is no evidence that the Governor of the State appointed these days as holidays under the statute. We conclude that whether the courts were open on December 24 and December 31 is not decisive because BN’s responsibility was to “serve” notice on Dunkelberger’s counsel. Service does not require accessibility to the court system of this state.

No evidence exists to indicate that December 24 and December 31 were “holidays” or “legal holidays” within the meaning of Rule 6(a), M.R.Civ.R Therefore, BN had until December 31, 1993, in which to serve notice on Dunkelberger that it was filing a post-trial motion for a new trial.

We conclude that BN has miscalculated the time in which to file its motion for new trial and, therefore, its March 11, 1994 appeal of the underlying judgment was not timely made. This Court has no alternative but to dismiss this action due to an untimely appeal and for lack of jurisdiction to consider the appeal.

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


author: CHIEF JUSTICE

text:
    IN RE THE MARRIAGE OF: TOM E. NOEL, Petitioner and Respondent, and BRENDA S. NOEL, Respondent and Appellant.
    No. 94-030.
    Submitted on Briefs May 5, 1994.
    Decided June 7, 1994.
    51 St.Rep. 505.
    875 P.2d 358.
    265 Mont. 249.

      For Respondent and Appellant: James B. Wheelis, Montana Legal Services Association, Kalispell.
    For Petitioner and Respondent: Gregory E. Paskell, Kalispell.
    For Amicus Curiae: Amy Pfeifer, Department of Social and Rehabilitation Services, Helena.
   CHIEF JUSTICE

Turnage delivered the Opinion of the Court.

This dissolution of marriage was filed in the District Court of the Eleventh Judicial District, Flathead County. The parties submitted to the court a property settlement agreement which did not require the mother to pay child support for the child of the marriage, who was in the father’s custody. The court refused to accept the agreement and ordered the mother to pay child support to the father in the amount of $33 per month. She appeals. We reverse and remand.

The issue is whether the District Court abused its discretion in applying the Montana Child Support Guidelines when it declined to deduct child care costs allowed by Rule 46.30.1516(3), ARM, from income imputed to the mother under Rule 46.30.1513, ARM.

The parties were married in 1986 and had one child. They separated in 1989. Between the parties’ separation and the date of dissolution, the mother had two children by another man. At the time of the dissolution hearings, she was expecting a third child from that relationship.

The parties arrived at a property settlement agreement which awarded custody of their son to the father. When the parties submitted the agreement to the District Court, the court declined to approve it because the agreement did not require the mother to pay child support. The court stated, “I don’t approve of property settlement agreements where minor children are involved, as here, that provide for no support from a non-custodial parent who is able-bodied and making babies.”

At a subsequent hearing, the mother testified that she had been sporadically employed at minimum wage jobs since finishing high school. She was unemployed and had been receiving AFDC payments at the time of the hearing. She testified that the father of her youngest children, with whom she and the children lived, was a college student who worked during the summers as a firefighter.

In calculating the mother’s child support obligation, the court imputed income to the mother at minimum wage, pursuant to Rule 46.30.1513, ARM. It ruled that the reference in Rule 46.30.1513(2)(c), ARM, to deductible child care costs included only those costs for children of the marriage or the relationship in question, rather than for children produced after the termination of that relationship. Then, the court treated as discretionary the provision of Rule 46.30.1516, ARM, allowing a deduction from income for child care expenses. The result of the court’s calculations was a $33 per month child support obligation for the mother.

Did the District Court abuse its discretion in applying the Montana Child Support Guidelines when it declined to deduct child care costs allowed by Rule 46.30.1516(3), ARM, from income imputed to the mother under Rule 46.30.1513, ARM?

The Montana Child Support Guidelines, which are published in the Administrative Rules of Montana at Title 46, Chapter 30, sub-chapter 15, are promulgated by the Department of Social and Rehabilitation Services pursuant to § 40-5-209, MCA. The Guidelines establish detailed standards for calculating child support obligations. The standards, generally stated, require each parent to contribute child support in an amount proportionate to that parent’s share of the combined resources of both parents, after specific allowable deductions have been made from each parent’s gross income.

In this case, the mother was not employed outside the home. Rule 40.30.1513, ARM, sets forth the procedure for imputing income to an unemployed parent:

(1) “Imputed income” means income not actually earned by a parent, but which may be attributed to the parent because the parent is voluntarily unemployed, is not working full-time when full-time work is available, or the parent is intentionally working below his or her ability or capacity to earn income.
(2) Income may be imputed according to one of two methods as appropriate:
(a) Determine employment potential and probable net earnings level based on the parent’s recent work history, occupational qualifications, and prevailing job opportunities and earnings level in the community. If there is no recent work history, and no higher education or vocational training, income may be imputed at the minimum wage level.
(c) Whenever income is imputed to an unemployed parent who is providing in-home care for the child for whom support is being calculated, and if that parent would be required to incur child care expenses if employed at the imputed level, then the imputed income should be reduced by the reasonable value of the parent’s child care service.

The court imputed income to the mother at a minimum wage rate. It refused to allow the mother a deduction for child care expenses under subsection (2)(c) above, reasoning that subsection (2)(c) applied only to children of the marriage.

Rule 46.30.1516, ARM, Determination of Net Income, provides at subsection (3):

Reasonable expenses for items such as child care or in-home nursing care for the parent’s legal dependents other than those for whom support is being determined, which are actually incurred and which are necessary to allow the parent to work, less federal tax credits, if any, may be deducted from gross income.

The court “cho[se] to deny a deduction” to the mother for child care costs, ruling that such a deduction is discretionary.

Our standard of review of a ruling establishing a child support obligation is whether the district court abused its discretion. In re Marriage of Weed (1992), 254 Mont. 162, 165, 836 P.2d 591, 593. However, a district court must apply its discretion in a realistic manner, taking into account the actual situation of the parties. In re Marriage of Gebhardt (1989), 240 Mont. 165, 172, 783 P.2d 400, 404. Here, we conclude that the court abused its discretion.

The District Court’s decision does not realistically reflect the mother’s income earning ability. It is apparent that, in order to work, the mother would need someone to care for the children who live with her. She testified that there were no relatives or other people available to assume full-time care of the children.

If income is to be imputed to the mother, then a deduction for necessary child care expenses is clearly allowable under Rule 46.30.1516(3), ARM. We hold that, in this case, a deduction for child care expenses should have been allowed.

As suggested in the amicus curiae brief filed in this matter by the Child Support Enforcement Division, it appears that a portion of the mother’s child care cost may be assignable to the father of those children, as his responsibility. Evidence on this point should be considered on remand.

Reversed and remanded for further proceedings in conformity with this Opinion.

JUSTICES HUNT, HARRISON, TRIEWEILER and NELSON concur.


author: JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RONALD L. KUNTZ, Defendant and Appellant.
    No. 93-526.
    Submitted on Briefs April 28, 1994.
    Decided June 7, 1994.
    51 St.Rep. 502.
    875 P.2d 1034.
    265 Mont. 253.
    For Appellant: John C. Schulte, Missoula.
    For Respondent: Joseph P. Mazurek, Attorney General, Kathy Seeley, Assistant Attorney General, Helena; Robert Slomski, Sanders County Attorney, Thompson Falls.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Defendant Ronald L. Kuntz, the managing partner of KMMC Investments, was charged by information in the District Court for the Twentieth Judicial District in Sanders County with six counts of felony theft in violation of § 45-6-301(1), MCA (1991). The District Court denied Kuntz’s motions to dismiss and for reconsideration, after which Kuntz pled guilty to one count of felony theft in exchange for the State’s dismissal of the remaining five counts. Pursuant to the plea agreement, Kuntz reserved the right to appeal the denial of his motions.

We affirm.

The issue on appeal is whether the District Court erred when it refused to dismiss the charges against Kuntz.

For purposes of deciding Kuntz’s motion, the following facts, which were alleged in the charging documents, are assumed to be true. KMMC Investments Partnership, doing business as National Log Construction Company, was formed in 1985. Pursuant to the partnership agreement, Kuntz was named the managing partner of KMMC and was the only partner involved in the day-to-day operation of the business until the latter part of 1991. The agreement provided that all partnership funds would be deposited with the First State Bank of Montana in Thompson Falls. There was never an agreement by the partners to establish accounts at any other financial institution.

During the summer of 1991, the other partners became suspicious of Kuntz. They examined partnership records and accounts and, over Kuntz’s objection, requested an audit which had been provided for in the partnership agreement.

It was eventually discovered that accounts had been established in a Seattle bank with Kuntz and his wife, the secretary/bookkeeper for the partnership, as authorized signatories. By transferring funds to these accounts, Kuntz and his wife diverted thousands of dollars of partnership funds for their personal use.

On February 16,1993, Kuntz was charged with six counts of felony theft in violation of § 45-6-301(1), MCA (1991), for allegedly exerting unauthorized control over the partnership’s property. Kuntz moved to dismiss these charges on the ground that, under existing Montana law, a partner cannot be held criminally liable for the theft of partnership property. Kuntz cited State v. Brown (1909), 38 Mont. 309, 315, 99 P. 954, 957, for the proposition that because partners are co-owners of partnership property, they cannot misappropriate what is already theirs.

On June 11,1993, the District Court denied the motion to dismiss, and later denied a subsequent motion for reconsideration. Thereafter, Kuntz entered into a plea bargain agreement pursuant to which he pled guilty to one count of felony theft in violation of § 45-6-301(l)(c), MCA (1991), for exerting unauthorized control over cash in excess of $300 owned by KMMC. The plea was entered in exchange for the State’s dismissal of the remaining five counts. The court deferred imposition of sentence for three years subject to several conditions.

The plea agreement also reserved Kuntz’s right to appeal the denial of his motions. This appeal followed.

Did the District Court err when it refused to dismiss the charges against Kuntz?

When reviewing a District Court’s conclusions of law, this Court determines whether the court’s interpretation of the law was correct. In re Marriage of Brownell (1993), 263 Mont. 78, 865 P.2d 307, 309.

Kuntz contends that the required elements for felony theft cannot be proven in this instance because, as the managing partner of KMMC, he had actual authority to exert control over the property in question, and therefore, cannot be held criminally liable for the theft of partnership property. He asserts that Brown, 99 P. at 954, is the controlling law in Montana. In that case, this Court adopted the common law rule that a partner cannot be guilty of stealing partnership property because a partner’s interest or ownership extends to every portion of the partnership property.

Kuntz further contends that Montana’s adoption of the Uniform Partnership Act (UPA) in 1947 did not have the effect of overruling Brown. Although there is a UPA provision, codified in Montana at § 35-10-502(2), MCA (1991), which states that partnership property is to be used for partnership purposes unless the partners consent otherwise, he notes that other states have unsuccessfully attempted to base criminal liability on this provision. See, e.g., People v. Clayton (Colo. 1986), 728 P.2d 723; State v. Birch (Wash. Ct. App. 1984), 675 P.2d 246; State v. Elsbury (Nev. 1946), 175 P.2d 430. Furthermore, although amendments were made to Montana’s UPA in 1993 which make a partnership an entity from which assets could presumably be stolen by a partner, this change was not yet in effect at the time charges were filed against Kuntz.

We agree that § 35-10-502(2), MCA (1991), does not, by itself, create or define a crime. However, we hold that Montana has, through its criminal statutes enacted in 1973, abandoned the common law theory on which Kuntz relies.

The statute under which Kuntz was charged and convicted states that a person commits the offense of theft when he purposely or knowingly exerts unauthorized control over property of the owner and uses, conceals, or abandons it, knowing that this will probably deprive the owner of the property. Section 45-6-301(l)(c), MCA(1991). Section 45-6-303(1), MCA(1991), further states that “[i]t is no defense to a charge of theft of property that the offender has an interest therein when the owner also has an interest to which the offender is not entitled.”

When this section was enacted and codified in 1973, the Criminal Law Commission Comments made clear that this provision removed any doubt about the criminal liability of a “co-owner, such as a partner ... who exercises unauthorized control with the purpose to permanently deprive a co-owner of his interest in the property.” The Commission Comments further clarify that Montana’s theft statutes are consistent with the approach taken in the Model Penal Code which rejects the common law theory that a person with an interest in property cannot be held liable for theft of that property. See People v. Sobiek (Cal. 1973), 30 Cal. App. 3d 458, cert. denied (1973), 414 U.S. 855, 94 S.Ct. 155, 38 L.Ed.2d 104 (American Law Institute and Model Penal Code reject rule that a partner cannot steal from a partnership.)

Kuntz contends that the language of § 45-6-303(1), MCA (1991), is inapplicable because it requires that an owner of property must have an interest to which the offender is “not entitled.” It is his assertion that there can be no part of partnership property to which a partner is not “entitled.”

We disagree with this assertion. Even though we previously stated that § 35-10-502(2), MCA (1991), of Montana’s UPA does not create or define a crime, this section makes clear that a partner’s property right only extends to a partner’s use of that property for partnership purposes and that there is “no right to possess such property for any other purpose without the consent of the other partners.” Therefore, even though Kuntz has an interest in KMMC’s property, he was not entitled to divert property for personal use without the knowledge and consent of the other partners.

Kuntz urges this Court to adopt the same reasoning set forth in our previous decision of State v. Haack (1986), 220 Mont. 141, 713 P.2d 1001, where we held that § 45-6-303(1), MCA (1991), did not apply and a joint tenant of a bank account could not be charged with theft because there is no interest to which the joint tenant is not entitled. Unlike a joint tenancy, however, the laws governing property rights in partnership property do establish that a partner’s entitlement to partnership property is limited. Therefore, our reasoning in Haack does not apply in this situation.

We conclude that our decision in Brown is superseded by the amendments to the Penal Code and Uniform Partnership Act we have discussed, and therefore, overrule Brown. We hold that under current Montana law a partner can be liable for theft of partnership property.

The decision of the District Court is affirmed.

JUSTICES HUNT, HARRISON, WEBER and NELSON concur.