source: Caselaw Access Project

author: MR. JUSTICE HARRISON MR. JUSTICE SHEEHY,

license: Public Domain

text:
    LOCAL 1334, LABORERS INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO, Plaintiff and Appellant, v. CITY OF GREAT FALLS, Defendant and Respondent.
    No. 88-51.
    Submitted on Briefs July 21, 1988.
    Decided Aug. 25, 1988.
    760 P.2d 99.

      Joseph W. Duffy, Great Falls, for plaintiff and appellant.
    David Gliko, City Atty., Great Falls, for defendant and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This appeal is from an order and judgment of the District Court of the Eighth Judicial District, Cascade County, State of Montana, granting the City of Great Falls’ motion for summary judgment. The parties’ dispute concerns the terms and conditions of a labor agreement between them. We affirm.

Vance Morrison (Morrison), over whom this action arose, is a member of Local 1334, Laborers International Union of North America (Union). He was hired by the City of Great Falls (City) as a “temporary” employee on April 16, 1984, temporarily replacing a permanent employee, Richard Linton (Linton). Linton had suffered an industrial accident on the job and was unable to continue in his capacity as a full-time meter reader. Morrison was hired to perform Linton’s duties as a meter reader until Linton could recover and resume work.

Morrison worked from April 16, 1984 to October 12, 1984, two days short of six calendar months. Linton returned to work on October 15, 1984. However, due to his injury he worked approximately three days, and subsequently returned to workers’ compensation status. Thereafter, on November 2, 1984, Morrison was rehired for the second time to replace Linton pending the City’s decision on whether to create a permanent meter reader position. Morrison’s second hiring period with the City lasted from November 2, 1984 to April 30, 1985, one day short of six calendar months.

The City argues that after Linton was unable to return to work, the City decided to hire a new permanent employee. Further, since the City considered Morrison’s position to be temporary, he had not gained recall rights under the seniority clause of the Union contract because he had not been, employed for six continuous months.

Morrison, along with 276 other applicants, applied for the permanent meter reader position. Of the 276, fifteen applicants were selected after initial screening. Morrison rated eleventh out of the final fifteen. According to the city attorney, the job was given to an applicant who claimed veteran’s preference and scored second out of the final fifteen applicants.

The issues are as follows:

1. Whether the District Court erred in its interpretation of the contract at issue in the plaintiff’s complaint.

2. Whether the District Court erred in not directing the matter to be submitted to arbitration.

The appellant, Union is a labor organization certified to represent employees in collective bargaining matters and is so certified to represent employees working for the City. The City is an employer as defined by the Montana Public Employees Collective Bargaining Act. The Union argues that since Linton was unable to work, and the City had “recreated” the temporary meter reader’s position and rehired Morrison, and after Morrison’s second 179-day layoff, that the City could not advertise for a permanent employee to perform the same duties that both Linton and Morrison had previously performed. The Union argues that after Morrison’s second layoff the City violated his Union contract by: (1) creating a temporary position more than one time; (2) discharging Morrison, for the second time, from a position that could not have been temporary at that time; and (3) refusing to recall Morrison to the permanent position.

The Union argues that these matters are provided for by the contract for arbitration and that the City stalled and vacillated on the grievance in such a way that by the passage of time, the potential cost to the City of losing the grievance would exceed $500. Over the $500 mark, the City argued it could invoke Article VII, Step 6, B, of the Grievance Procedure, its working agreement, which excused it from the obligation of arbitration.

The section on arbitration in the contract contained in Article VII, Step 6, B, provides as follows:

“Any grievance involving a monetary issue, including those related to hours and working conditions which could have an apparent economic effect or impact less than five hundred dollars ($500) shall be subject to final and binding arbitration. Any monetary issue, as defined in the last sentence, in excess of five hundred dollars ($500) may be subject to final and binding arbitration only if mutually agreed upon.”

It is the City’s position that it held the job open for Linton, the injured worker, as long as it could. The reason for creating the temporary position was to help the injured worker and not to create a situation where the person hired in the temporary position could claim seniority benefits. The City also argues that Morrison understood this at the time of the hiring.

The Union argues, contrary to the City’s position, that Linton’s job was a permanent position and when Morrison was recalled to that position having worked 120 days, he established seniority. Furthermore, Morrison was entitled to continue in the position and, as such an employee and due to his second hiring, he was not in a temporary position and therefore entitled to proceed through the grievance procedure. The Union argues that Morrison had seniority rights because such was established after 120 days. However, as previously noted here, the 120 days were over two periods of hiring. The City’s argument stated that in order to have seniority rights, an employee must work a six-month continuous period.

The trial court found in its findings of fact that Linton was a permanent employee and because of his industrial accident Morrison was hired as a temporary employee. Morrison was hired the second time on a temporary basis pending the City’s decision to fill the position on a permanent basis. When it was determined that Linton could not return to work, the City advertised the position and hired a full-time meter reader on August 19, 1985. The District Court noted that Morrison was considered among various applicants for the position. The court found the parties were bound by the collective bargaining agreement entered into between the City and the Union. This collective bargaining agreement was considered by the court in its decision and was attached to the court’s findings of fact and conclusions of law as an exhibit. In addition, the District Court found that pursuant to the grievance procedure under the collective bargaining agreement, the Union grieved the failure of the City to hire Morrison as a permanent full-time employee in the full-time meter reader position. Additionally, the City denied the grievance through Steps 1 through 6 and further denied the plaintiff’s request for arbitration pursuant to Article VII, Step 6, B, of the agreement.

In granting summary judgment the District Court found that the City properly denied the grievance under the conditions of the collective bargaining agreement. The District Court correctly stated in its conclusions of law that “Morrison’s grievance claimed entitlement to the permanent full-time meter reader position inclusive of back-pay cannot be waived as matter of public policy.” See, Hoehne v. Sherrodd, Inc. (1983), 205 Mont. 365, 668 P.2d 232. In denying the Union arbitration, the court found the claim well in excess of $500 in monetary value and that the City properly denied the claim for arbitration under Article VII, Step 6, B,of the collective bargaining agreement.

As to summary judgment the court noted that Morrison’s employment fell short of six months on both occasions and thereby the position was a temporary position under Article III, Section C of the collective bargaining agreement.

The court also noted that the “temporary” position filled by Morrison was “not renewable” as contempláted by the last phrase of Article III, Section C. The court noted that Section 2-18-601, MCA, provides in part:

“(12) ‘Continuous employment’ means working within the same jurisdiction without a break in service of more than 5 working days or without a continuous absence without pay of more than 15 working days.

“(13) ‘Break in service’ means.a period of time in excess of 5 working days when the person is not employed and that severs continuous employment.”

The break in Morrison’s employment, twenty days, from October 12, 1984 to November 2, 1984, represented a substantial break in the service. Therefore, his employment cannot be considered continuous nor renewable as contemplated by the collective bargaining agreement.

Finally, the District Court found that Morrison did not qualify for “recall” under the seniority clause, Article XII of the collective bargaining agreement, since recall rights are not earned until an employee has been employed for six months of continuous service. We agree. Morrison did not work for six continuous months. The District Court correctly granted the motion for summary judgment.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER and McDONOUGH concur.

MR. JUSTICE SHEEHY,

dissenting:

I dissent.

The position under Art. VI, B that any employment dispute having an economic impact more than $500 is “non-grievable” (in the parlance of the parties) guts the protection to employees under the collective bargaining agreement. That position forecloses any arbitration except for the most minuscule of disputes.

What is more important to me in this case is the obvious use by the city of the collective bargaining agreement to engage in the unlawful practice of preventing a temporary employee from accumulation of annual leave time. The provisions of Sections 2-18-601(12), (13), MCA (“continuous employment” and “break in service”), relied on both by this Court and the city are definitions provided by the statutes for the determination of annual leave time under Part 6, Chapter 18, Title 2 of our codes. The use of these provisions should be limited to interpretations under Section 2-18-611, MCA, the computation of annual vacation leave which provides for temporary employees:

“(5) Temporary employees do not earn vacation leave credits, except that a temporary employee who is subsequently hired into a permanent position within the same jurisdiction without a break in service, and temporary employees or employed continuously longer than six months may count as earned leave credits for the immediate term of temporary employment.”

It seems obvious that the hiring of Morrison on a temporary basis for less than six months, laying him off for 14 working days and then rehiring him for an additional period of less than six months is a ploy to avoid the accumulation of benefits such as annual vacation leave for Morrison. Such a procedure is unlawful under Section 2-18-621, MCA:

“Unlawful termination. It shall be unlawful for an employer to terminate or separate an employee from his employment in an attempt to circumvent the provisions of 2-18-611, 2-18-612 and 2-18-614. Should a question arise out of this section, it shall be submitted to arbitration as provided in Title 27, Chapter 5, as if an agreement described in 27-5-114 is in effect, unless there is a collective bargaining agreement to the contrary applicable.”

Thus not only should the union have the right to submit to arbitration the question of the refusal to hire Morrison, but there is an additional question here of unlawful activity on the part of the city to avoid the accumulation of annual leave which is itself arbitrable by law.

But even if we should conclude that the job renewal issue is not one for arbitration under the collective bargaining agreement, the matter should not end here. Morrison himself, as an individual, has a right to question in the District Court, if the collective bargaining agreement does not apply, his contractual rights both for reemployment and to annual leave time if the city acted unlawfully.

I therefore dissent.


author: MR. JUSTICE GULBRANDSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ELDON CLARENCE SHAVER, SR., Defendant and Appellant.
    No. 88-73.
    Submitted on Briefs July 21, 1988.
    Decided Aug. 25, 1988.
    760 P.2d 1230.

      Donald L. Shaffer, Libby, for defendant and appellant.
    Mike Greely, Atty. Gen., George Schunk, Asst. Atty. Gen., Helena, Susan Loehn, County Atty., Scott Spencer, Deputy County Atty., Libby, for plaintiff and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

This is an appeal from the Nineteenth Judicial District Court, Lincoln County, Montana. Defendant/appellant Eldon Clarence Shaver, Sr. (Shaver) was found guilty by a jury on December 4, 1987 on two counts of deviate sexual conduct pursuant to Section 45-5-505, MCA. Shaver was sentenced to two eight-year terms at the Montana State Prison to be served consecutively, with all but sixty days suspended. As a condition of probation, Shaver was to direct his employer to deduct $185 per month from his paycheck for each of the two victims to be used to pay child support. From this verdict and sentencing Shaver appeals. We affirm.

Shaver presents four issues for review:

1. Did the District Court err in denying Shaver’s motion to suppress an oral confession because he did not knowingly, voluntarily and intelligently waive his constitutional rights?

2. Was Shaver substantially prejudiced and denied his Sixth Amendment right to present an effective defense when the District Court denied his motion to continue when a testifying witness/victim changed the time of the charged offense?

3. Was Shaver denied his due process right to a fair trial because of the District Court’s bias against his attorney?

4. Did the District Court violate Shaver’s constitutional right to procedural due process at the sentencing hearing by imposing a child support order without proper notice and allowing Shaver an opportunity to be heard on the issue?

Shaver maintained residence in Troy, Montana, from 1984 through June, 1986. Included in the family were his wife Della, his two natural sons from a prior marriage, F.S. and E.C.S., a stepson, and a daughter from his current marriage with Della. E.C.S. left Troy on June 12, 1986 to live with his natural mother and F.S. left sometime in 1986 to live with relatives in Oregon.

F.S., age twelve, and E.C.S., age fourteen, Shaver’s natural sons, made a report to the Yamhill County Sheriffs office in McMinnville, Oregon, that Shaver had sexually molested them. The Oregon authorities contacted Detective Clint Gassett (Gassett) of the Lincoln County, Montana Sheriffs office who obtained an arrest warrant.

Shaver was arrested July 28, 1987, on two counts of deviate sexual conduct on the basis of investigative reports from the Oregon authorities. Count I alleged Shaver engaged in deviate sexual relations with F.S. at the end of October, 1984, Count II alleged Shaver engaged in deviate sexual contact with E.C.S. on July 11, 1987. Later, on November 4, 1987, an amended information was filed stating the sexual contact between Shaver and E.C.S. occurred on July 11, 1986.

F.S. originally said he had been molested sometime during late October, 1984 or 1985. At trial, F.S. changed the period of time of the molestation to sometime between Thanksgiving and Christmas of 1984. E.C.S. told the authorities that he had been molested a number of times including the day before he left Montana to live with his mother in McMinnville, Oregon.

Shaver was arrested by Gassett and reserve deputy Bill Denton when he got off work at the local mine near Troy, Montana. Shaver testified at trial that as the officers passed his house en route to the Troy Police Department that he requested they stop to allow him to ask his wife to call an attorney. Shaver claims this request was ignored. The arresting officers testified that no request was made.

Once at the Police Department, Shaver was read his rights pursuant to Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. These rights were read by Gassett from a waiver form. Gassett testified as follows: “I read him his rights off a form that we use at the Sheriffs Department. I asked if he understood that. I gave him the form and asked him to read it over and sign it if he wished to talk to me.” Gassett asked Shaver if he understood the rights to which Shaver responded affirmatively. Shaver signed the form. Approximately twenty-five minutes after the questioning began, Shaver admitted to having sexual contact with his sons. Gassett then spent approximately fifteen minutes taping the confession.

Shaver later recanted his admission along with his waiver of constitutional rights. Shaver stated that he could neither read nor understand the Miranda form and had only “lied” to the officers so that he could maintain his family.

A motion to suppress Shaver’s admission was first mentioned at an omnibus hearing held September 14, 1987. The motion was filed October 22, 1987, and stated as grounds that Shaver had been awake “continuously for over 20 hours, and that he had requested permission to call his wife to have her seek counsel for him, and that request was denied . . .”

On November 4, 1987, the court held a hearing on the motion to suppress and was presented with testimony of Craig Montagne (Montagne), a psychologist for the local school district. Montagne had tested Shaver and concluded Shaver had an I.Q. between 71 and 75 which bordered on mental retardation and that his reading comprehension level was Grade 3.9. The District Court denied the motion stating in its findings of fact and conclusions of law filed November 25, 1987, that although Shaver was “no mental giant ... it is clear from the record that he knew and understood what he was doing, and he knew and understood his rights, which he voluntarily waived.”

On November 4, 1987, Shaver filed a Notice of Alibi, pursuant to Section 46-15-323(3), MCA, as to Count II of the amended information that stated some sexual contact occurred on June 11, 1986. Shaver claimed he worked that day. Shaver’s counsel asserts on appeal that the Notice of Alibi encompassed the intention that Shaver would show that due to his work schedule and the family’s routine, he never would have had the opportunity to commit the acts.

A jury trial was held December 3,1987. F.S. changed his testimony claiming that sexual contact occurred between Thanksgiving and Christmas of 1984. Shaver claimed that he had prepared an alibi for the dates of late-October, 1984, which was consistent with F.S.’s testimony to the Oregon authorities. Shaver’s counsel moved for a continuance to allow him to properly prepare the alibi defense but the motion was denied by the District Court on grounds that the specific time element was not a material element of the offense of deviate sexual conduct.

Defense counsel attempted to have Della Shaver admitted as a witness in Shaver’s case-in-chief. The State objected to Della’s testimony as she was not properly listed on the defense list of witnesses. Therefore, the District Court cited defense counsel for contempt of discovery deadline violations and imposed a fine. Nonetheless, Della was allowed to testify.

Shaver moved for a mistrial when the jury returned a guilty verdict on both counts. The motion was denied. Shaver was sentenced to two consecutive eight year sentences with all but sixty days suspended and was ordered to undergo counseling in a sex offender program. The District Court further took “notice of other proceedings” in regard to Shaver’s duty of child support and ordered as “a form of restitution under Section 46-18-201, M.C.A.” that Shaver be required to pay $370 per month for the victims.

In his first issue, Shaver seeks a new trial claiming the District Court erred in denying his motion to suppress statements of confession made after his arrest. Section 46-13-301, MCA, governs motions to suppress confessions or admissions:

“(1) A defendant may move to suppress as evidence any confession or admission given by him on the ground that it was not voluntary. The motion shall be in writing and state facts showing wherein the confession or admission was involuntary.

“(4) If the allegations of the motion state facts which, if true, show that the confession or admission was not voluntarily made, the court shall conduct a hearing into the merits of the motion. The prosecution must prove by a preponderance of the evidence that the confession or admission was voluntary.

“(5) The issue of the admissibility of the confession or admission may not be submitted to the jury. If the confession or admission is determined to be admissible, the circumstances surrounding the making of the confession or admission may be submitted to the jury as bearing upon the credibility or the weight to be given to the confession or admission.”

This Court has previously noted that “[t]he standard to be applied in our review of this issue is whether there is substantial credible evidence to support the District Court’s finding.” State v. Gould (Mont. 1985), [216 Mont. 455,] 704 P.2d 20, 27-28, 42 St.Rep. 946, 953.

The District Court found that Shaver had voluntarily waived his rights, including his right to an attorney, and had confessed to deviate sexual contact with his two sons. We must view the “totality of the circumstances” in our determination of whether substantial credible evidence exists to support the District Court’s findings that Shaver knowingly and intelligently waived his rights and confessed to the crimes charged. Gould, 704 P.2d at 28; State v. Blakney (1982), 197 Mont. 131, 134, 641 P.2d 1045, 1047. The “totality of the circumstances” includes “consideration of ‘[Shaver’s] demeanor, coherence, articulateness, his capacity to make full use of his faculties, his memory and his overall intelligence.’ ” Gould, 704 P.2d at 28 (citing United States v. Hollis (D.Del. 1975), 387 F.Supp. 213, 220); Blakney, 641 P.2d at 1049.

Shaver claims that he was unable to knowingly and intelligently waive his rights because he is mentally incompetent. We addressed a similar issue in State v. Phelps (Mont. 1985), [215 Mont. 217,] 696 P.2d 447, 42 St.Rep. 305, wherein we stated:

“Mental illness or deficiency does not in itself preclude admissibility of defendant’s statements so long as he was capable of understanding the meaning and consequences of his statements. It is an important factor to consider in examining the totality of the circumstances, but it is not conclusive (Citations omitted.)”

Phelps, 696 P.2d at 451. The circumstances of this case indicate that Shaver was capable of understanding the true meaning and consequences of his actions and that those actions were made knowingly and intelligently. Shaver conversed in a coherent and intelligent manner during his relatively short forty-minute interrogation by Officer Gassett on the night of his arrest. Shaver verbalized during the taped portion of the interview that he had, in fact, been read his Miranda rights, that he understood those rights, and that his prior act of waiving those rights was done voluntarily without coercion, threat, or promises of leniency. Shaver proceeded to admit that he sexually molested his sons and gave a specific detailed description of each molestation. At the conclusion of the interview, Shaver was again asked whether he had been coerced into his confession to which he replied, “No sir. You’ve been really nice.”

Coupled with Shaver’s actions and demeanor the afternoon of his arrest, the District Court was also presented with the fact that Shaver, a thirty-five-year-old gainfully employed husband and father, was able to intelligently and coherently express himself at the suppression hearing and at trial. The school psychologist testified that Shaver’s reading comprehension level was at least a 3.5 grade level and was possibly as high as a 5.0 grade level. Viewing the circumstances in their totality, we hold that there is substantial credible evidence showing Shaver knowingly and intelligently waived his rights. Accordingly, Shaver’s confession was voluntary and admissible pursuant to Section 46-13-301, MCA.

Shaver also claims that his confession was involuntary because he allegedly asked that he be allowed to stop at his home while en route to the Troy Police Department so he could have his wife call an attorney. Officer Gassett testified that Shaver did not ask for an attorney until after the interview. The District Court, as the trier of fact at the suppression hearing, was presented with the conflicting testimony of Shaver and Officer Gassett concerning the alleged request for an attorney. As the trier of fact, the District Court had to resolve the conflicting testimony. Sections 26-1-202, and 26-1-203, MCA. The District Court found that Shaver had not requested an attorney and had voluntarily waived his rights. Using the standard of review set forth above, there is substantial credible evidence to support the District Court’s conclusion that Shaver did not request an attorney.

Shaver’s second issue for review is based on the argument that the District Court substantially prejudiced Shaver when it would not grant a continuance after F.S. changed the time sequence of the sexual contact from October 1984 to between Thanksgiving and Christmas of 1984. Shaver bases this claim of prejudice on the fact that he had filed an alibi defense, that the State failed in its statutory duty to notify the defense that F.S.’s testimony would be different from the allegations in the complaint, and that, in light of the testimony, the two counts should have been severed.

Generally, as Shaver appropriately points out, a filed information should state the “time and place of the offense as definitely as can be done.” Section 46-ll-401(l)(c)(iv), MCA. However, as Shaver also notes, we have held:

“The law does not require that the time and place be stated with impossible precision; it merely requires that they be stated as definitely as possible under the circumstances of the case, unless time is a ‘material ingredient in the offense.’ ”

State v. Clark (Mont. 1984), 209 Mont. 473, 481, 682 P.2d 1339, 1344, 41 St.Rep. 833, 837; citing State v. Riley (1982), 199 Mont. 413, 422, 649 P.2d 1273, 1277.

Shaver contends that since he raised an alibi defense time is an essential element of the offense. Again, however, Clark is instructive. In Clark, this Court looked to the case of State v. Hall (1976), 171 Mont. 33, 554 P.2d 755 in regard to the argument that noticing an alibi defense thereby confers materiality and makes time a necessary element of the State’s case.

“Assertion of the alibi defense does not change the nature of the crime charged here. Defendant should have realized the State would present evidence proving the crime took place sometime . . . Defendant cannot restrict the state’s case by merely asserting intent to rely on an alibi defense for a limited period of time within which the crime could have occurred.” (Emphasis added.)

Clark, 682 P.2d at 1344, 41 St.Rep. at 838.

Additionally, this is a case of child abuse. Where children are victims the court will not mandate a specific period of time to be precisely stated in the information even after an alibi defense is asserted. Even though F.S. is older than the child involved in State v. D.B.S. (Mont. 1985), [216 Mont. 234,] 700 P.2d 630, 42 St.Rep. 770, we still find that case instructive.

“We should recognize that children, particularly four-year olds are not governed by the clock and calendar as adults are. They are generally at a loss to apply times or dates to significant events in their lives. ‘Children are less likely to distinguish dates and time with specificity.’ State v. Clark, 682 P.2d at 1344. The fact that the victim cannot set a date for the crime should not be fatal to the State’s case, thus making the defendant virtually immune from prosecution.”

D.B.S., 700 P.2d at 634.

We will not hold abused children to a standard requiring them to comprehend and remember specific times and dates. Defendant here was given a general time period in which the offense occurred. That is all that is required in these types of cases. See also State v. Cornell (Mont. 1986), [220 Mont. 433,] 715 P.2d 446, 43 St.Rep. 505.

A review of the alibi defense itself shows that the District Court did not err in disallowing a motion to continue. The court was understandably unimpressed by the testimony presented in regard to the alibi defense.

The basis of the alibi was that due to the nature of Shaver’s work shift and his family’s activities, he and the victims would not have had the opportunity to be alone. Witnesses called to buttress this argument stated differing interpretations of the hourly records at the mining operation where Shaver was employed. Therefore, these records themselves were suspect. However, on closer inspection, it is clear that Shaver was home a sufficient amount of time to have the opportunity to commit the acts. Therefore, the alibi defense was ineffective, even if the court had allowed the motion to continue.

Shaver’s claim that the State failed to inform him of F.S.’s changed testimony is also unpersuasive. Although it is undisputed that Section 46-15-322, and Section 46-15-327, MCA, require the State to disclose all pertinent information it may gather and the duty to disclose is continuing, the statutes have no effect until the State actually develops the knowledge of a specific act, fact, or information that exculpates the defendant. Here, there is no evidence in the record that the State discovered or knew that F.S. was going to vary his claim of dates as to when the alleged acts occurred. Without such knowledge, the State was not in violation.

Finally, Shaver’s claim of required severance is inappropriately before this Court. Issues raised for the first time on appeal will not be addressed. Sections 46-20-104(2), 46-20-701(2), MCA. See State v. Lamb (1982), 198 Mont. 323, 646 P.2d 516, and Matter of B.L.O. (Mont. 1984), [213 Mont. 164,] 689 P.2d 1246, 41 St.Rep. 2024.

In issue three, Shaver contends that the District Court’s bias against defense counsel constituted prejudicial bias toward Shaver preventing a fair and impartial trial. Initially, Shaver contends he was deprived of “[a] fair trial in a fair tribunal,” the basic requirement of due process. In re Murchison (1955), 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942, 946. This right, according to Shaver, allows for the disqualification of biased decision-makers. However, in this case, no attempt was ever made to disqualify the District Court judge.

Shaver claims he was unable to make a motion to disqualify the District Court judge because the motion had to be filed not less than twenty days before the original date of trial and “defense counsel was substituted in at a later date so as to preclude an opportunity to move to disqualify” the judge. Citing Section 3-1-802, MCA; State v. Harvey (Mont. 1986), [219 Mont. 402,] 713 P.2d 517, 43 St.Rep. 46. The State appropriately rebuts this contention since Section 3-1-802, MCA, has been superseded by Supreme Court Order dated June 17, 1987, amended July 29, 1987, and effective September 1, 1987. That Supreme Court Order created a new disqualification for cause statute, Section 3-1-805, MCA, that requires filing an affidavit for disqualification for cause more than thirty days before the date of a hearing or trial.

According to the notice of substitution of counsel in the record defense counsel was substituted by Shaver on September 29,1987. The first hearing date on the motion to suppress was scheduled for November 4, 1987, and therefore, counsel had five days in which to properly file for the disqualification of the judge.

On its merits, Shaver’s argument also fails. Shaver admits that the trial court was within its statutory authorized power to hold defense counsel in contempt for failing to comply with the discovery order. Section 46-15-329, MCA. The trial transcript shows that any comments made by the judge were done outside the presence of the jury. The adverse rulings against the defense counsel are simply proper compliance with .the laws of this state. We find no bias in the record sufficient to adversely affect Shaver’s right to a fair trial.

Finally, we hold there is no reversible error in the sentencing requirements rendered by the District Court in this case. Shaver’s contention in Issue Four is that the District Court violated his constitutional right to procedural due process at the sentencing hearing when it ordered him to pay child support for his two sons. Shaver claims he was not given notice or opportunity to be heard on this issue.

Under Section 46-18-201(1)(a), MCA, the District Court has authority to impose reasonable restrictions or conditions including restitution (Subsection (iv)), and “any other reasonable conditions considered necessary for rehabilitation . . .” (Subsection (x)). The statute further states “[t]he sentencing judge may impose on the defendant any reasonable restrictions or conditions during the period of suspended sentence.” Section 46-18-201(1)(b), MCA.

The presentence investigation made the court aware of Shaver’s previous child support payment problems. Shaver’s criminal history showed that he had previously served two five-day sentences on misdemeanor nonsupport charges in 1980 and 1981. Shaver admits that he was served with a copy of the presentence investigation prior to the hearing. This allowed him to prepare for the sentencing.

In State v. Nichols (Mont. 1986), [222 Mont. 71,] 720 P.2d 1157, 1162, 43 St.Rep. 1068, 1074, this Court stated:

“The statutes governing sentencing provide ample notice of matters which may come up. These, along with notice of the date of hearing, the full disclosure of presentencing information in open court; the ability of the defendant to propound evidence, to confront witnesses, and to participate in the sentencing proceeding provide a full panoply of due process safeguards for the liberty interest implicated.” (Citations omitted.)

Nichols, 720 P.2d at 1162.

Here, no due process was violated. Shaver knew that the child support violations were noted in the presentence investigation and therefore should have known that it might be considered by the court. The District Court’s order stated in part:

“8. The victims in this case are [E.C.S.] and [F.S.], children of the Defendant and persons for whom the Defendant owes the duty of support. The Court takes notice of other proceedings in this Court and of Defendant’s obligations thereunder. Defendant currently has income in the $22,000.00 to $24,000.00 range and has the ability to support these children, who, as stated, are Defendant’s victims. The Court sets $185.00 per month, per child, as the reasonable cost of their support which amount is within Defendant’s ability to pay. The Court notes Defendant has not paid all the support due for these children in the past and that they have been supported by public welfare during a part of the time Defendant was to pay support. Accordingly, the Defendant is ordered to direct his employer to deduct $185.00 per month, per child, for a total of $370.00 per month from Defendant’s pay, . . .

“The Court considers this unique order, and its rather unusual effect, to be a form of restitution under Section 46-18-201, M.C.A. It is also a rehabilitative provision to Defendant in that it makes him responsible to pay some minimal part of not only the care but any counseling required by these children because of Defendant’s abuse of them. This requirement ceases for each child upon the attainment of age 18.”

The District Court stated that the imposition of child support payment was for rehabilitative and restitution purposes. The State cites numerous cases that payment to victims of a crime is appropriate as a means of restitution. State v. Korussos (1986), 82 Or.App. 248, 728 P.2d 559; State v. Morgan (1982), 198 Mont. 391, 646 P.2d 1177; State v. Sullivan (1976), 24 Or.App. 99, 544 P.2d 616; People v. Williams (1975), 57 Mich.App. 439, 225 N.W.2d 798. Even more applicable are the cases that have held that child support obligations are a legitimate condition to be considered as part of probation. State v. Pettis (S.D. 1983), 333 N.W.2d 717; see also Ward v. State (Fla.Dist.Ct.App. 1987), 511 So.2d 1109; Dorsey v. State (1978), 145 Ga.App. 750, 245 S.E.2d 31 (cases where states have specific provisions providing for imposition of child support as probation conditions).

Finally, Shaver argues that his former wife, Barbara Gail Love (Love) and he contracted so that no child support was required for E.C.S. On June 12, 1986, a “Permanent Change of Custody Agreement” was signed by Love and Shaver. This document was notarized but was not signed by a judge. Although the District Court’s ruling is based on rehabilitation and restitution we note that parents do not have the ability to enter contracts to set child support. The “custody and support of children are never left to contract between the parties.” In re Marriage of Mitchell (Mont. 1987), [229 Mont. 242,] 746 P.2d 598, 603, 44 St.Rep. 1936, 1941-1942; In re Marriage of Carlson (Mont. 1984), [214 Mont. 209,] 693 P.2d 496, 500, 41 St.Rep. 2419, 2424.

The District Court is vested with significant discretionary power when it considers sentencing. Under the facts of this case, the District Court wisely provided for the victims in this unfortunate incident. Shaver received a minimal sentence in this case as all but sixty days of his sentence was suspended. This allows Shaver to maintain his employment which in turn should allow the victims to benefit.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER and HUNT concur.


author: MR. JUSTICE McDONOUGH

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. JAMES THOMAS, Defendant and Respondent.
    No. 88-152.
    Submitted on Briefs July 14, 1988.
    Decided Aug. 25, 1988.
    760 P.2d 96.
    Mike Greely, Atty. Gen., Helena, George Schunk, Asst. Atty. Gen., Helena, for plaintiff and appellant.

      George T. Radovich, Billings, for defendant and respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

The State appeals the decision of the Sixteenth Judicial District Court contending that the lower court erred in construing the limits of its jurisdiction. We agree with the State and reverse.

The issue is: Do state courts have jurisdiction over a non-Indian charged with violating Section 61-7-108, MCA, on an Indian reservation? Section 61-7-108, MCA, reads:

“Immediate notice of accidents. The driver of a vehicle involved in an accident resulting in injury to or death of any person or property damage to an apparent extent of $250 or more shall immediately by the quickest means of communication give notice of such accident to the local police department if such accident occurs within a municipality, otherwise to the office of the county sheriff or the nearest office of the highway patrol.”

The relevant facts are as follows: Respondent Thomas allegedly struck a calf owned by the Parkers, an Indian family ranching on the Northern Cheyenne Reservation. The State alleged that Thomas violated the statute by leaving the scene of the accident without giving notice to law enforcement.

The District Court held that state courts do not have jurisdiction for the crime of failing to report an accident where: the accident occurred within the reservation, the driver was a non-Indian, and the property involved in the accident belonged to an Indian. The lower court reached its conclusion by applying Oliphant v. Suquamish Indian Tribe (1978), 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209, and the adoption of the enabling act of Montana under Article I of the Montana Constitution. Oliphant, according to the lower court, prevents jurisdiction of the offense at issue in tribal court because respondent Thomas is a non-Indian. The Montana Constitution, according to the lower court, prevents jurisdiction in state courts under Montana’s enabling act because the act provides that reservations are under the absolute jurisdiction of the United States. We disagree with the lower court and reverse on the authority of United States v. Wheeler (1978), 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303, and Draper v. United States (1896), 164 U.S. 240, 17 S.Ct. 107, 41 L.Ed. 419. We hold for the purposes of remand that the state has jurisdiction.

First, in regard to the lower court’s holding on Article I of the Montana Constitution, the lower court failed to consider Draper. Draper held that the prohibition in Montana’s enabling act against state jurisdiction on Indian reservations did not prevent the State from assuming jurisdiction of crimes committed by non-Indians against non-Indians. Draper, 164 U.S. at 244, 17 S.Ct. at 108.

Construction of the applicable federal jurisdictional statute also confirms that state courts have jurisdiction of certain crimes committed on Indian reservations. The statute, 18 U.S.C. Section 1152, reads

“Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian Country.

“This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulation, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.”

18 U.S.C. Section 1152 (1983).

According to the United States Supreme Court:

“Despite the statute’s broad language, it does not apply to crimes committed by non-Indians against non-Indians, which are subject to state jurisdiction.”

Wheeler, 435 U.S. at 325 n. 21, 98 S.Ct at 1087 n. 21. Thus, Oliphant’s rule mandating federal jurisdiction for crimes committed by non-Indians against Indians or their property does not apply unless Section 61-7-108, MCA, can be classified as a crime against an Indian or an Indian’s property.

The difficulty here is in classifying an offense under Section 61-7-108, MCA, as one by a non-Indian against an Indian or an Indian’s property. The State argues that the offense constitutes a victimless crime because it makes the perpetrator culpable irrespective of injury to person or property. In this situation, the State argues that the following analysis applies:

“[I]n determining whether a state may properly assert its authority over the conduct of non-Indians engaging in activity on the reservation, the court should analyze the nature of the state, federal, and tribal interests at stake. See White Mountain Apache Tribe v. Bracker, 448 U.S.136, 144-45, 100 S.Ct. 2578, 2584, 65 L.Ed.2d 665, 673 (1980).

“Prosecution of the possessory offense involved in the case at bar within the state courts involves no infringement on tribal sovereignty. Burrola is a non-Indian whose alleged offense did not arise out of contact with an Indian or Indian property.”

State v. Burrola (App. 1983), 137 Ariz. 181, 669 P.2d 614, 615. Other courts facing inquiries concerning “victimless” crimes, such as DUI or possession of marijuana, have analyzed the issue in a similar manner. See State v. Warner (1963), 71 N.M. 418, 379 P.2d 66; State v. Herber (App. 1979), 123 Ariz. 214, 598 P.2d 1033. And one authority has explained that:

“Under the logic of United States v. McBratney and Draper v. United States, victimless crimes by non-Indians appear to be subject to state jurisdiction. Those cases held that jurisdiction over crimes by non-Indians against non-Indians in Indian country rests with the state. However, their reasoning and their holdings appear broad enough to encompass non-Indian victimless offenses as well. McBratney concluded that the state maintained jurisdiction over all white persons on the Ute reservation, and Draper held that the state had not been deprived of the power to punish crimes committed on a reservation ‘by other than Indians or against Indians.’ In practice, victimless offenses by non-Indians have been treated in a number of cases as subject to state jurisdiction under McBratney and Draper, on the theory that neither Indians nor their property are affected.” M.B. West, Manual of Indian Criminal Jurisdiction 99 (1977 & Supp. 1982).

Thomas responds that the crime charged here distinguishes this case from decisions by other courts on victimless crimes. Thomas points out that in Burrola, for example, the court described the crimes as not arising from contact with Indian property. Here, Thomas argues, the crime did arise from contact with Indian property, to wit, Parkers’ calf.

First, we agree with the State and hold that the crime in question cannot be characterized as an offense against Indian property. The allegedly criminal act is the failure to discharge a reporting duty, not infliction of damage upon property belonging to an Indian. Thus, the offense is analogous to crimes other courts classify as victimless, and it should be analyzed as a victimless crime for the purposes of determining jurisdiction.

In determining jurisdiction for victimless crimes, we agree that federal, tribal, and state interests should be examined. Burrola, 669 P.2d at 615. We hold here that the federal and tribal interests in providing a federal forum fail to outweigh the State’s strong interest in traffic safety. Our reasoning is based on the fact that the policy of providing a federal forum where criminal prosecutions pit the interests of non-Indian offenders against Indian victims is not furthered where, as here, the connection to destruction of Indiem property is only tangential to the crime charged. Under these circumstances, the State’s interests in highway safety control the issue. Thus, we reverse and remand for further proceedings.

Thomas, without raising the issue in the lower court, and without cross-appealing, has improperly attempted to claim denial of the right to a speedy trial on this appeal. See Rule 14, M.R.App.P. We refuse to review the issue.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, GULBRANDSON and HUNT concur.


author: MR. JUSTICE WEBER

text:
    RAE SUBDIVISION COUNTY WATER AND SEWER DISTRICT NO. 313, Plaintiffs and Appellants, v. GALLATIN COUNTY, and Loy R. Carroll, Gallatin County Treasurer, Defendants and Respondents.
    No. 88-192.
    Submitted on Briefs July 14, 1988.
    Decided Aug. 30, 1988.
    760 P.2d 755.

      Michael J. Lilly, Lilly, Andriolo & Schraudner, Bozeman, for plaintiffs and appellants.
    A. Michael Salvagni, Co. Atty., James McKenna, Deputy Co. Atty., Bozeman, for defendants and respondents.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

RAE Subdivision County Water and Sewer District No. 313 (RAE) petitioned for a writ of mandamus to compel Gallatin County to collect delinquent water and sewer assessments. The District Court for the Eighteenth Judicial District, Gallatin County, denied RAE’s petition. RAE appeals. We affirm.

The issues are whether RAE has shown the two elements necessary for a writ of mandamus: a clear legal duty and the absence of a plain, speedy, or adequate remedy in the ordinary course of law. Because we hold that the trial court was correct in concluding RAE has not shown that Gallatin County had a clear legal duty to collect the delinquent water and sewer assessments, we do not discuss the second element.

RAE is a water and sewer district formed just outside of Bozeman. It levies assessments against landowners within the district for water and sewer service. Frank J. Trunk is one of those landowners. He did not pay his 1982, 1983, 1984, 1985, and 1986 assessments.

RAE filed a lien against Frank Trunk’s property and then filed an action to foreclose the lien in district court. The court dismissed the complaint, ruling that Gallatin County was the proper party to collect the delinquent assessments. RAE chose not to appeal that judgment. It asked the county treasurer to collect the taxes. However, the county attorney’s office, on behalf of the county, informed RAE that Gallatin County was not going to collect the taxes.

RAE then filed this action before a second judge sitting in the same judicial district. RAE here petitioned for a writ of mandamus to compel Gallatin County to begin proceedings to collect the delinquent assessments from Mr. Trunk. After hearing arguments by the parties and studying the applicable statutes, that court ruled that RAE had failed to establish that Gallatin County has a clear legal duty to collect the assessments. It noted that since it found no such clear legal duty, it did not need to address the second requirement for issuance of a writ of mandamus under Section 27-26-102, MCA, that the applicant has no plain, speedy or adequate remedy at law. RAE appeals from the court’s refusal to issue the writ.

Did the trial court err in concluding that Gallatin County did not have a clear legal duty to collect the delinquent water and sewer assessments levied by RAE?

This issue may be restated as whether past due water and sewer assessments are collectible by the board of directors of the water and sewer district as are regular water and sewer assessments, or by the county as are taxes for bonded debts. The answer to this question is reached through statutory interpretation. The role of the courts in construing a statute is to declare what is there, not to insert what has been omitted or omit what has been inserted. Section 1-2-101, MCA.

The board of directors of a water and sewer district sets and collects the charges for sewer service and for sale and distribution of water:

“7-13-2301. Establishment of charges for services. (1) The board of directors shall fix all water and sewer rates and shall, through the general manager, collect the sewer charges and the charges for the sale and distribution of water to all users.

“(2) The board in the furnishing of water, sewer service, other services, and facilities shall fix such rate, fee, toll, rent, or other charge as will pay the operating expenses of the district, provide for repairs and depreciation of works owned or operated by it, pay the interest on any bonded debt, and so far as possible, provide a sinking or other fund for the payment of the principal of such debt as it may become due.

In contrast, the county commissioners have the duty to levy taxes for payment of bond obligations for water and sewer districts:

“7-13-2302. Levy of taxes to meet bond obligations and other expenses. (1) If from any cause the revenues of the district shall be inadequate to pay the interest or principal of any bonded debt as it becomes due or any other expenses or claims against the district, then the board of directors must. . . furnish to the board or boards of county commissioners and to the auditor or auditors, respectively, an estimate in writing:

“(2) The board of county commissioners of such county or city and county, annually, at the time and in the manner of - levying other county or city and county taxes, must:

“(a) until any such bonded debt is fully paid, levy upon the lands so benefited and cause to be collected the proportionate share to be borne by the land located in their county of a tax sufficient for the payment thereof, to be known as the . . . district bond tax; and

“(b) until all other expenses or claims are fully paid, levy upon all of the lands of the district and cause to be collected the proportionate share to be borne by the land located in their county of a tax sufficient for the payment thereof, to be known as the . . . district water and/or sewer tax.

“(3) Such taxes for the payment of any such bonded debt shall be levied on the property benefited thereby, as stated by the board of directors in the resolution declaring the necessity therefor, and all taxes for other purposes shall be levied on all property in the territory comprising the district.”

Water and sewer district taxes are collected in the same manner as are county taxes and are a lien upon the property:

“7-13-2309. Collection of taxes. (1) All taxes referred to in 7-13-2302(3) shall be collected at the same time and in the same manner and form as county taxes are collected and when collected shall be paid to the district for which such taxes were levied and collected.

“(2) Such taxes, if not paid, shall become delinquent at the same time as do county taxes.

“7-13-2310. Taxes to be lien. (1) If such taxes are levied for the payment of a bonded debt for the benefit of certain property within the district, as stated in the aforesaid resolution of the board of directors, such taxes shall be a lien upon each lot or parcel of said property to the extent of the levy of said taxes upon said lot or parcel. All taxes for other purposes shall be a lien upon each lot or parcel of land within the entire area comprising the district, to the extent of the levy of said taxes upon said lot or parcel.

“(2) Said taxes, whether for the payment of a bonded indebtedness or for other purposes, shall be of the same force and effect as other liens for taxes, and their collection shall be enforced by the same means as provided for in the enforcement of liens for state and county taxes.”

After setting forth the above statutory framework, the District Court ruled that

“[t]axes imposed and collected by the county must be distinguished from charges imposed and collected by the district for maintenance and service. Authority for the former is derived from Section 7-13-2302, MCA, while authority for the latter is derived from Section 7-13-2301, MCA. I find no statutes which grant to the county authority or a duty to collect the district’s semi-annual charges.”

We conclude that the statutes do not set forth a clear legal duty on the part of the county to collect the delinquent water charges. The county can assess taxes sufficient to cover both the bonded indebtedness payments and operating expenses, but in order to do so there must be notice given in advance so that all interested parties may protest the tax levy. Sections 7-13-2304 through 2307, MCA. Delinquent water and sewer assessments levied against an individual are different from taxes levied against all property within the district under Section 7-13-2302, MCA.

RAE points to the reference in Section 7-13-2310(2), MCA, to “[s]aid taxes, whether for the payment of a bonded indebtedness or for other purposes.” (Emphasis supplied.) RAE argues that because of the reference to “other purposes,” the word “taxes” includes delinquent water and sewer charges. However, that reference is consistent with the language of Section 7-13-2302(1), MCA, as to “bonded debt ... or any other expenses or claims against the district,” for which the board of directors is authorized to levy taxes. Again, these “other expenses” are subject to the notice requirements and are levied upon all property in the district, unlike the delinquent assessments here.

RAE has the power to sue under Section 7-13-2217(1)(b), MCA. We conclude that under that statute and Section 7-13-2301, MCA, RAE had the power to bring an action to collect the delinquent assessments from Mr. Trunk, without referring the same to the county for collection as taxes. We recognize that this conclusion contradicts the ruling of the district court in the first action brought by RAE. Unfortunately, RAE chose not to appeal the judgment in that case.

Because there is no clear legal duty on the part of the county to collect the delinquent assessment, we affirm the denial of RAE’s petition for mandamus.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HUNT, SHEEHY and McDONOUGH concur.


author: MR. JUSTICE HUNT

text:
    In re the MARRIAGE OF B.H.J., Petitioner and Respondent, and D.J., Respondent and Appellant.
    No. 88-232.
    Submitted on Briefs Aug. 4, 1988.
    Decided Aug. 30, 1988.
    760 P.2d 753.
    Bruce E. Lee, Billings, for respondent and appellant.
    Fred E. Work, Jr., Work Law Firm, Billings, for petitioner and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Husband appeals the decision of the District Court of the Thirteenth Judicial District, Yellowstone County, denying his request for extended and overnight visitation with his minor children. We affirm.

The sole issue presented on appeal is whether the District Court abused its discretion by denying husband extended and overnight visitation with the children of the marriage.

The parties in this case married on August 16, 1980 in Billings, Montana. The three children born of the marriage are now ages seven years, six years and eighteen months. After marital difficulties, the parties separated in February 1986 and the wife petitioned for a dissolution of the marriage in March 1987. The parties primary dispute centers around husband’s visitation of the children.

The District Court ordered joint custody to both parents with wife designated as the primary residential custodian. Husband sought liberal visitation with the two older children, specifically every other weekend beginning on Friday at 5:00 p.m. and ending on Sunday at 8:00 p.m.; alternating major holidays including Christmas, Thanksgiving, Easter, July 4th, Labor Day and Memorial Day; and eight continuous weeks each summer. Husband also requested that the infant, after he reached a suitable age, be included in the visitation schedule of the older children. Until such time, however, he requested reasonable visitation with the infant after consideration of the child’s age. Wife sought to restrict husband’s visitation schedule with the older children to alternate Saturdays from 9:00 a.m. to 8:00 p.m.

The District Court limited husband’s visitation to every Saturday from 9:00 a.m. to 8:00 p.m. Husband appeals, arguing that the District Court abused its discretion by basing its denial of his request for overnight visitation with the older children on its suspicion that he is sustaining himself through distribution of illegal drugs, yet the record does not contain any credible evidence to suggest that he was, at the time of trial or within a substantial time preceding trial, involved in using, dealing or selling illegal drugs.

Husband also notes that Section 40-4-224(1), MCA, states that “the court shall presume joint custody is in the best interest of a minor child . . .,” and then argues that the District Court’s order, although labeled a “joint custody,” in reality vests wife with sole custody while severely restricting his visitation with the children. Husband then argues that the court did not follow the serious endangerment standard specified by the visitation statute, Section 40-4-217, MCA, when determining his visitation rights.

This statute addressing visitation rights of a parent, Section 40-4-217, MCA, states in pertinent part that “[a] parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child’s physical, mental, moral, or emotional health.” Section 40-4-217(1), MCA. This statute implies that the visitation schedule be consistent with the best interests of the child. Jones v. Jones (Mont. 1980), [190 Mont. 221,] 620 P.2d 850, 851, 37 St.Rep. 1973, 1975. On appeal, this Court will not disturb a visitation schedule ordered by the District Court when it is supported by substantial credible evidence. In Re the Marriage of J.A.M. and D.A.M. (Mont. 1988), [231 Mont. 68,] 750 P.2d 1097, 1098, 45 St.Rep. 437, 438; In Re the Support of Rockman (Mont. 1985), [217 Mont. 498,] 705 P.2d 590, 593, 42 St.Rep. 1323, 1327.

We hold that substantial credible evidence does exist to support the District Court’s order limiting husband’s visitation with his minor children to every Saturday from 9:00 a.m. to 8:00 p.m. In ordering the visitation schedule, the court took note of husband’s past but extensive involvement as a user and distributor of illegal drugs. While husband claims he no longer engages in such activities, the court noted that he has maintained a comparatively affluent lifestyle with only the help of his live-in friend who works part-time as a waitress earning minimum wages. Exposure to such illegal activities would certainly meet the serious endangerment standard outlined in Section 40-4-217, MCA.

The record also contains a report by Court Services, recommending that the husband be denied overnight visitation rights. This recommendation was based upon the children’s desire not to spend the night with their father and the “very strong indication that [husband] is chemically dependent and should successfully complete inpatient treatment for his dependency.” The court also took note of the clinical report stating that husband did not successfully complete the chemical dependency program in which he was enrolled.

Based upon the above circumstances, the court deemed it in the best interests of the children that husband not have overnight visitation rights. The court then stated that it would reconsider overnight visitation when husband could demonstrate that he has obtained employment and can meet his expenses from his own efforts rather than creating a suspicion that he is meeting them through illegal means.’

The district courts are in the superior positions to determine the best interests of a child in a custody dispute, In Re Marriage of Rolfe (Mont. 1985), [216 Mont. 39,] 699 P.2d 79, 82, 42 St.Rep. 623, 626, likewise, the same is true regarding a parent’s visitation rights. Consequently, the district courts’ decisions are presumed correct and will be upheld unless a clear abuse of discretion is shown. Rolfe, 699 P.2d at 82, 42 St.Rep. at 626. Husband has failed to show by clear error that the record does not support the District Court’s order.

We affirm.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY and GULBRANDSON concur.


author: MR. CHIEF JUSTICE TURNAGE

text:
    In re the MARRIAGE OF LYNNE CALLAHAN, Petitioner and Appellant, and EDWARD CALLAHAN, Respondent and Respondent.
    No. 87-566.
    Submitted on Briefs July 21, 1988.
    Decided Sept. 1, 1988.
    762 P.2d 205.

      Nye & Meyer, Billings, for petitioner and appellant.
    Brad Belke, Butte, for respondent and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Appellant, Lynne Callahan, appeals the findings of fact, conclusions of law, and order of the Honorable Arnold Olsen, Second Judicial District, Silver Bow County. Respondent moved for modification of child support and visitation rights and obligations of the dissolution decree of December 10, 1984. The District Court found that the amount of child support per month was too high; that although the father had not made any support payments, this was mitigated by extenuating circumstances; and that the mother was secreting the children from respondent. Judge Olsen entered his findings on November 6, 1987.

The following issues are brought on appeal;

1. Whether the District Court rulings on abandonment and ability to pay child support were within its subject matter jurisdiction.

2. Whether the District Court abused its discretion in modifying the child support agreement.

3. Whether the District Court erred in adopting respondent’s alleged mitigating circumstances for unpaid child support.

4. Whether the District- Court abused its discretion in finding that the mother secreted the children from respondent.

5. Whether the District Court erred in finding that the respondent owed no more than $9,300.00 in arrears for child support.

6. Whether the District Court abused its discretion in accepting the respondent’s findings of fact wholesale.

We reverse.

Appellant and respondent were divorced on December 10, 1984. In the dissolution decree it was agreed that the mother would have custody of the three children from the marriage and the father would receive visitation during holidays, weekends, and summers. Respondent was ordered to pay $100.00 per month per child in child support. Respondent failed to pay any support in the three years between the decree and the July 6, 1987, hearing. Respondent only visited the children twice shortly after the divorce proceedings. When he took the children back to appellant’s residence after the first visit in Stevensville, he allegedly swore at the appellant, threw the children’s luggage out of the car, and pointed a gun at the appellant.

Thereafter, the appellant did not tell the respondent her new address when she moved. She testified that she did not tell the respondent because she feared for her life and the lives of her children. She did, however, leave a forwarding address with the postal service and held a valid driver’s license with the most current address. Respondent claimed that he went to extensive means to find the appellant and the children but was unsuccessful for two years.

Appellant served respondent a petition for adoption of the children by Ed Wright, appellant’s new husband. Respondent moved for a post-dissolution hearing which would clarify his visitation rights, where he claimed mitigating circumstances for not paying child support, and requested that appellant be held in contempt of court for secreting the children from him. It is from the District Court’s findings in this action that appellant appeals.

The first issue in this case is whether the District Court had proper subject matter jurisdiction over the matters of abandonment and the father’s ability to pay child support. The post-dissolution hearing from which this case arises centered around the issues of unpaid child support and respondent’s visitation rights. Three years after the dissolution decree, this hearing was held shortly after the respondent was served with an adoption proceeding notice. Appellant’s husband, Ed Wright, is petitioning for the adoption of the Callahan children. Lynne Callahan and Wright claim that because respondent has not made payments and has not visited the children for over a year, he abandoned the children, pursuant to Section 40-8-lll(a)(iii), MCA, and Section 41-3-102(3)(d), MCA. Respondent moved to have child support payments modified, visitation rights clarified, and a finding against abandonment. In the order of November 6, 1987, Judge Olsen found that Ed Callahan had not abandoned his children and desired a continuous relationship with them.

The question of abandonment was outside the scope of the Second Judicial District’s subject matter jurisdiction. Pursuant to Rule 12(h)(3), M.R.Civ.P., “whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” It is clear in this case that the court holds jurisdiction over the issues which were included in the original dissolution decree. Those issues are: dissolution of the marriage, child support, property distribution, and visitation rights. This list does not include abandonment. The question of abandonment is one which is to be decided by the court which hears the adoption proceeding. In a case for modification of rights and obligations in a dissolution of marriage, lack of subject matter jurisdiction may be raised at any time and a court may not acquire the jurisdiction even with the consent of both parties. Corban v. Corban (1972), 161 Mont. 93, 504 P.2d 985; Marriage of Cox (Mont. 1987), [226 Mont. 176,] 736 P.2d 97, 44 St.Rep. 567.

Ability to pay, on the other hand, is an issue which is within the purview of the District Court’s jurisdiction. The ability of the father to pay is an important feature of child support. The lower court has subject matter jurisdiction over matters relating to support payments.

The second issue is whether the District Court abused its discretion in modifying the child support. Under Section 40-4-208(2) (b)(i), MCA, when a decree for modification contains provisions relating to support, modification may be made by the court only “upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable.” The burden of showing the necessary change for modification is on the movant, in this case, the respondent. State of Or. ex rel. Worden v. Drinkwalter (Mont. 1985), [216 Mont. 9,] 700 P.2d 150, 42 St.Rep. 599. Respondent has failed to do so here.

In the original dissolution decree of December 10, 1984, the District Court ruled that Edward Callahan was to pay $100.00 per month per child in support. It made this ruling knowing that respondent was a substitute teacher, had a limited salary, and that he had a spinal injury limiting some of the work that he could do. The District Court made modifications apparently without considering the fact that in the three years since the decree, respondent’s income and health have remained nearly the same. There have been no substantial changes which call for modification of the decree. Nor has respondent passed the burden of proof to show that a change is necessary. In fact, respondent has not shown anything to this Court which would cause us to affirm the modified decree. He has never made a support payment and he received $20,000.00 in settlement for his spinal injury, none of which was used for child support.

It is within the District Court’s discretion to decide whether the noncustodial parent has the ability to pay child support when considering modification of child support. In Matter of Adoption of K.L.J.K. (Mont. 1986), [224 Mont. 418,] 730 P.2d 1135, 1139, 43 St.Rep. 2297, 2301, we instructed trial judges to consider certain elements when determining whether a parent is able to contribute to the support of a minor child, including:

(1) The parent’s ability to earn an income;

(2) The parent’s willingness to earn an income and support his child;

(3) The availability of jobs;

(4) The parent’s use of his funds to provide himself only with the bare necessities of life prior to providing support for his child.

In taking these factors into consideration when deciding whether the noncustodial parent is able to pay, it it is easier to also decide if there has been a substantial change in circumstances. The trial court abused its discretion in modifying the support payments without a proper examination of the requirements.

The trial court also erred in modifying the amount of child support to $50.00 per month. While the guidelines suggest that no support can be for less than $50.00, to clarify, that amount should be $50.00 per month per child. This will assure that the custodial parent can properly care for the children.

When determining the proper amount of support to be paid by respondent, we would suggest that the District Court use the Uniform Child Support Guidelines (Mont. 1987), [227 Mont. 1,] 44 St.Rep. 828, and the requirements cited here before modifying the original decree.

Respondent claimed that there were mitigating circumstances which prevented him from making payments, namely: the lack of income, a spinal injury suffered in 1979, and his lack of knowledge of the whereabouts of the children in order to make payments. The District Court ruled that the circumstances did call for mitigation. The District Court abused its discretion in adopting mitigating circumstances.

The respondent claims lack of income as a mitigating excuse. The District Court ruled that Edward Callahan was to pay $300.00 per month support in the original decree. Although he has essentially the same income now that he had in 1984, the District Court modified the original decree on the grounds that respondent’s income was insufficient to pay child support. Respondent has not made a single payment of child support and makes issue of the payments three years later. Moreover, he received a settlement of $20,000.00, paying doctor’s bills and debts without making any payments to support the children. At the hearing, the District Court was disturbed with the fact that respondent had not used any of the settlement for child support, but made no mention of the settlement when he adopted the mitigating circumstances in the order.

Respondent also claims that the spinal injury limits the work he can do. A friend of the respondent, though, deposed that Edward Callahan turned down full time jobs because they were outside of Butte. Respondent also stays active by riding horses two or three times a week and doing minor excavation in the basement of his home.

The third of the mitigating circumstances was that respondent did not know the location of his children in order to send the support money. However, the respondent knew where the family was living from the time of the dissolution decree, December 1984, through the fall of 1985, and still made no payments to the appellant. Moreover, the appellant left forwarding addresses with the United States Postal Service and respondent had only to send the checks to her Stevensville address and they would have arrived at the Boyd address. The District Court erred in adopting the mitigating circumstances.

The fourth issue is whether the District Court abused its discretion in finding that the mother secreted herself and the children from the respondent.

The District Court held appellant in contempt for not keeping the respondent apprised of the location of her and her children. After the divorce appellant moved with the children to Stevensville and was there until the fall of 1985 when she moved to Boyd. She did not contact respondent to tell him that they had moved but did leave a forwarding address with the post office. Section 40-4-222, MCA, on joint custody, states:

“The legislature of the state of Montana finds and declares that it is the public policy of this state to assure minor children frequent and continuing contact with both parents after the parents have separated or dissolved their marriage and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy

6i 9f

Although both parents are to carry the rights and responsibilities, the custodial parent does not have an affirmative duty to tell the noncustodial parent of every move within the state. It is, however, our suggestion that each parent keep the other parent apprised of each other’s whereabouts. In the case on appeal, it was sufficient that the mother left forwarding addresses with the postal service and held a valid Montana driver’s license with her most current address. The father could have, with little difficulty, located the mother and children.

The fifth issue is whether the District Court erred in finding respondent in arrears the sum of $9,300.00. This was the amount due for child support up to the time of the post-dissolution hearing in July 1987. However, the court erred in not adding the accrued support due from July to December 1987 in its order of November 6, 1987. Moreover, appellant is entitled to interest accruing on the past payments still due. Torma v. Torma (1982), 198 Mont. 161, 645 P.2d 395.

The last issue is whether the District Court erred in accepting wholesale the findings of fact of the respondent. We hold here that it did so err. Error occurs when the court accepts one party’s proposed findings of fact without proper consideration of the facts and where there is lack of independent judgment by the court. In Re Marriage of Alt (Mont. 1985), [218 Mont. 327,] 708 P.2d 258, 42 St.Rep. 1621; In Re Marriage of Goodmundson (1982), 201 Mont. 535, 655 P.2d 509; In Re Marriage of Hunter (1982), 196 Mont. 235, 639 P.2d 489.

In accepting the respondent’s proposed findings, the court failed to address the $20,000.00 settlement when considering respondent’s ability to pay and whether that amount should have been used to pay support. The court also accepted respondent’s excuse that the payments were mitigated. By doing this, the court disregarded the fact that the respondent’s financial status and physical abilities were the same as they had been when the original dissolution decree was decided. Respondent claims that he could not pay support because he did not know where his children were living; but, in accepting this, the court did not consider that the respondent knew where the appellant was for one and one-half years during which time no child support payments were made.

On these grounds we reverse and remand for new proceedings. On remand, the District Court will carefully consider these issues and find accordingly. The case on appeal is one where neither of the parties has fulfilled the obligations of the dissolution decree. The mother avoided visitation attempts by the father, although they were few. The father did not make child support payments or try very diligently to locate his children to make those payments.

Reversed.

MR. JUSTICES HARRISON, SHEEHY, HUNT and McDON-OUGH concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. CARL ESSIE JOHNSON, Defendant and Appellant.
    No. 88-29.
    Submitted on Briefs July 21, 1988.
    Decided Sept. 1, 1988.
    760 P.2d 760.
    John Keith, Great Falls, for defendant and appellant.
    Mike Greely, Atty. Gen., Peter Funk, Asst. Atty. Gen., Helena, Patrick L. Paul, Co. Atty., Great Falls, Stephen Hagerman and Kim Schulke, Deputy Co. Attys., for plaintiff and appellant.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

The defendant, Carl E. Johnson, appeals his conviction and sentence entered by the District Court of the Eighth Judicial District, Cascade County. The jury found Mr. Johnson guilty of aggravated kidnapping, felony assault, sexual intercourse without consent, and aggravated burglary. He was sentenced to life imprisonment without possibility for parole, and received a total of 130 years to run consecutively, plus an additional 100 years as a persistent felony offender. We affirm the conviction.

The single issue for our consideration is whether the burden of proof was impermissibly shifted to the defendant by the denial of defendant’s motion for a mistrial following the comments of the deputy county attorney during closing argument.

The uncontradicted testimony of Holly Shippers established that on January 4, 1987, she was awakened at approximately 4 a.m. She heard the striking of a match. When she turned on the light she discovered Mr. Johnson standing in the doorway of her bedroom. After Ms. Shippers screamed, the defendant jumped on top of her, held a knife to her throat, and told her to shut up. The testimony of Ms. Shippers established that the defendant then committed rape upon her by forcing her to engage in oral sex and sexual intercourse. The defendant then forced Ms. Shippers into her own automobile and drove her to his own apartment. Over the course of the next several hours, the defendant again repeatedly raped Ms. Shippers by forcing her to engage in sexual intercourse and oral sex. Later the defendant told Ms. Shippers that it was “time for one of us to die.” The defendant went into the bathroom and returned with several pills which he swallowed. After requiring Ms. Shippers to write out a will for him, the defendant became unconscious. Ms. Shippers ran to the nearby apartment of a friend and notified the police. She led the police back to the defendant’s apartment where he was found still unconscious. An ambulance was called for the defendant and the police also took Ms. Shippers to the hospital for examination and treatment.

At trial, Ms. Shippers identified the defendant as her attacker and described the events of January 4, 1987, in detail. There were no eyewitnesses to the crimes, although the State called a number of witnesses who corroborated the details of Ms. Shippers’ story. David Cowden, the friend to whom Ms. Shippers fled, testified as to her condition upon arriving at his home. The prosecution presented testimony with regard to the examination of Ms. Shippers and samples of hair, swabs, saliva, and blood as part of a rape examination kit. In addition, an FBI laboratory agent testified that the hairs taken from various pieces of evidence matched those of the defendant and the victim.

Mr. Johnson did not call any witnesses or present any evidence in his defense. Rather, defense counsel’s closing argument was based solely upon the failure of the State to present sufficient evidence to prove its case beyond a reasonable doubt. During the State’s final closing argument, the following discussion took place before the jury:

“Prosecution: Also remember that while the State of Montana produces evidence, it’s under no obligation to produce all the evidence. And, moreover, while the State can subpoena Mr. Podolak from Washington, D.C. and all the other witnesses, the defense has the same opportunity . . .

“Defense: I object. The defendant is not required to produce any evidence. I ask the jury to be instructed that that’s clearly an erroneous statement.

“The Court: Don’t talk about what they are supposed to do or can do. Don’t talk about their power of subpoena, because I have given an instruction.

“Prosecution: On the defendant not testifying, and we cannot comment on that.

“The Court: But I am giving an instruction that the defendánt need not prove his innocence.

“Prosecution: That’s correct.

“The Court: Don’t get into any question about their power of subpoenaing witnesses. The objection is sustained.

“Defense: Thank you.

“The Court: And I want the jury to be admonished to disregard any remarks by Mr. Hagerman about the defendant’s right to subpoena witnesses from Washington, D.C. or any where else.

“Prosecution: Suffice it to say that the State of Montana doesn’t have to produce all of the evidence that there may be in the case.”

In chambers the defendant moved for mistrial and the District Court denied that motion. The defendant appeals that denial.

Did the District Court properly deny defendant’s motion for a mistrial in light of the prosecutor’s comments made during his closing argument?

The prohibition against a prosecutor’s comments on the defendant’s failure to testify is contained in Griffin v. California (1965), 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, and Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. The holdings in Griffin and Chapman form the foundation for the Montana cases which have considered the same issue. As pointed out in State v. Gladue (Mont. 1984), 208 Mont. 174, 677 P.2d 1028, 41 St.Rep. 249:

“In Griffin v. California . . . the United States Supreme Court set aside a judgment of conviction holding that the federal constitution ‘forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.’ ” 677 P.2d at 1031.

In Gladue, this Court also discussed the qualification placed on Griffin by the U.S. Supreme Court in the Chapman case:

“The Chapman court adopted the position that it would not adopt a per se rule, and that instead it would look at such cases where error occurred and determine, ‘that before a federal constitutional issue can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.’ ”

677 P.2d at 1031. This Court concluded that because the Court was unable to determine beyond a reasonable doubt that the prosecutor’s comments did not contribute to the verdict against Gladue, the conviction should be reversed.

In State v. Wilkins (Mont. 1987), [229 Mont. 78,] 746 P.2d 588, 44 St.Rep. 1794, applying the same rationale, this Court concluded that the District Court’s comments had the effect of focusing the jury’s attentions on the defendant’s silence at a late stage and that the court was not convinced the curative instruction had remedied the error. The Court noted that in order to rebut the presumption, the State must prove beyond a reasonable doubt that the error did not taint the conviction, citing Gladue.

In State v. Gonyea (Mont. 1987), [225 Mont. 56,] 730 P.2d 424, 44 St.Rep. 39, the same standards were applied. After a careful consideration of the entire transcript, the Court concluded that the comments were harmless beyond a reasonable doubt.

We conclude that the comments by the prosecution were improper in several respects. We agree with the District Court that it was not proper for the prosecution initially to comment on the defendant’s opportunity to subpoena witnesses. Next counsel referred to the fact that he could not comment on the defendant not testifying. While that remark undoubtedly was inadvertent, it was not proper. Last the prosecution reemphasized that the State did not have to produce “all the evidence.” That comment could have been construed by the jury to again suggest that the defendant somehow had failed in his duty to present a case to them. The record does not suggest an intentional comment on the accused’s silence. Nonetheless we conclude that the remarks clearly were objectionable.

The State’s evidence, which we will review further, was direct and compelling, with no significant contradictory evidence. Given the strength of the State’s case, there was clearly no need for any comments of this nature. Before considering the effect of these objectionable remarks in the present case, we wish to make a comment for the benefit of the prosecution in other criminal cases. Do not comment, even indirectly, on the silence of the accused.

Because we find the remarks to be objectionable, we must next consider the Chapman rule to determine if the error was harmless beyond a reasonable doubt. The testimony submitted by the State, including the extensive and unrebutted testimony of Ms. Shippers, clearly established the commission of the crimes by the defendant. Because of the revolting nature of the evidence, we have not discussed it at length. However, we wish to emphasize that the evidence of guilt was overwhelming. Even the circumstantial corroborating evidence was uncontradicted. In addition, the District Court gave numerous instructions during the course of the trial concerning the State’s burden of proof. The admonition of the jury immediately following the prosecutor’s remark demonstrates the trial court’s efforts to impress upon the jury the right of the defendant to remain silent and not to present any evidence. We therefore conclude that the evidence was so overwhelming that the comments can be classed as harmless beyond a reasonable doubt. We hold that the District Court’s denial of the motion for mistrial was proper.

We affirm the conviction of Mr. Johnson.

MR. JUSTICES HARRISON, GULBRANDSON, HUNT and Mc-DONOUGH concur.


author: MR. JUSTICE HARRISON

text:
    JANEEN L. (WEDUM) BREIDENBACH, Plaintiff, Counter-defendant and Respondent, v. JOHN RANDALL WEDUM, Joseph Ray Wedum and Sharon L. McBride, Defendants and Counterclaimants, and Appellants, and The ESTATE OF JOHN J. WEDUM, State National Guard Associations Insurance Trust and Nationwide Insurance, and John Does 1-10, Defendants.
    No. 88-71.
    Submitted on Briefs Aug. 4, 1988.
    Decided Sept. 1, 1988.
    760 P.2d 1237.

      Pauly & Hopgood, Peter C. Pauly, Helena, for defendants and counterclaimants, and appellants.
    Jackson, Murdo, Grant & Larsen, P.C., John H. Grant, Robert T. Cummings and Robert J. Sewell, Jr., Helena, for plaintiff, counterdefendant and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This appeal comes from an order and judgment of the District Court of the First Judicial District, Lewis and Clark County, State of Montana, granting Janeen Breidenbach’s motion for summary judgment. The parties primarily involved are the children of John J. Wedum, deceased. The dispute involves the effect of a family settlement agreement in which the signing heirs agreed to share equally their father’s estate. The issue on appeal is whether the family settlement agreement constitutes a valid renunciation of insurance proceeds and a survivor’s interest in joint property.

John J. Wedum died March 1, 1987. At his death, Mr. Wedum held joint tenancy accounts with his daughter Janeen Breidenbach in certain local banks and also had acquired life insurance in which he named Janeen primary beneficiary. On March 9, 1987, four of John J. Wedum’s children entered into a family agreement in which the signatories would share the estate equally. John Randall Wedum, one of the children, drafted and delivered to the signatories the agreement which reads as follows:

“We, the undersigned heirs of John J. Wedum, after due consideration and review of the assets of the estate and having in mind our father’s , intentions to treat all of his children equally do hereby mutually agree, and the consideration for the making of the agreement is relinquishment of any objection that the undersigned would have to the disposition of his estate and to carry out his wishes and intentions evidenced by his last will and testament and his conversations with the undersigned and as evidence of our love and affections for our deceased father and each other, do hereby agree that we, his four heirs, shall share equally, share and share alike, in all of his estate, wherever situated and however comprised and however held and whether to be designated as being distributed by law, by devise, or by last will and testament.

“This agreement made this 9 day of March, 1987, at Helena, Montana.”

This agreement was signed by John R. Wedum, Joseph R. Wedum and Janeen L. Breidenbach. Sharon L. McBride did not sign the agreement but apparently consented to its terms.

After the agreement was signed, the attorney for the estate of John J. Wedum notified the various financial institutions by letter dated March 9, 1987, that an agreement between the “affected parties hereto” and Janeen Breidenbach was reached which rendered the “accounts held jointly” assets and part of the estate. The financial institutions evidently were notified of a dispute over the intention of the parties to the agreement because the banks would not release the money to any of the parties. Janeen Breidenbach filed this action to compel the release of the insurance and joint account funds.

The District Court found the bank accounts wholly vested in Janeen at the instant of her father’s death, since survivorship is the essential characteristic of joint tenancy property, and also that the life insurance proceeds were payable to Janeen at the death of her father because she was the named beneficiary. The defendants below argued that the agreement constituted a renunciation by Janeen of the joint accounts and insurance proceeds, whereupon the property became part of the estate. The District Court held, however, that the agreement did not constitute a valid renunciation. We agree.

Under Section 72-2-101, MCA, a surviving joint owner or beneficiary under an insurance contract may renounce, in whole or in part, any interest in the property by filing a written instrument which must:

a) describe the property or interest renounced;

b) be signed by the person renouncing; and

c) declare the renunciation and the extent thereof.

The appellants argue that the agreement is not only a valid family settlement agreement but also suffices as a written renunciation of interests outside of the estate. Appellants contend the renunciation is effective by reading together the following two clauses in the agreement: “[a]nd the consideration for the making of the agreement is relinquishment of any objections that the undersigned would have to the disposition of his estate . . and “[i]n all of his estate, wherever situated and however comprised and however held and whether to be designated as being distributed by law, by devise, or by last will and testament.”

We reject such strained construction. Our emphasis goes to the words “disposition of his estate” and “in all of his estate” in the above two quoted clauses. It is not our job to cut and paste in order to find what appellants allege was the intention of the parties. Appellants are attempting to transform an awkwardly drafted family settlement agreement into a renunciation of property interests which have already vested in the respondent, and are outside the estate. We hold that, with respect to property held outside of the estate, this agreement fails to meet the statutory requirements of Section 72-2-101, MCA, and is therefore ineffective as a renunciation or relinquishment of those vested rights. We do not address the adequacy of the settlement agreement itself.

Initially, the agreement does not describe any property interests to be renounced. It merely states that the parties will relinquish their “objections ... to the disposition of his estate.” Nowhere in the agreement are joint tenancy bank accounts or life insurance proceeds mentioned. Yet, even assuming that this clause is an effective renunciation, it applies only to estate property, not to Janeen’s vested personal property.

Additionally, the broad, encompassing language of “wherever situated and however comprised and however held,” describes and modifies the estate property which is being equally distributed by the terms of the agreement. It would be absurd to construe this language as an expansion of the “relinquishment” clause.

Second, the agreement does not declare that it operates as a renunciation of property interests or the extent of any renunciation. Even if we assume the “relinquishment” clause is a valid renunciation, it extends only to objections to the distribution of the estate.

We have examined the effectiveness of claimed renunciations in earlier cases. In Casagranda v. Donahue (1978), 178 Mont. 479, 585 P.2d 1286, the following statement in a letter from one joint tenant to the other was claimed to be a renunciation:

“As I told you in my last letter, Mickey, your money is yours to do with what you want. I hope you don’t feel an obligation to include me in your will . . .” Casagranda, 178 Mont. at 482, 585 P.2d at 1287-1288. We held that this statement was not a renunciation, stating:

“Respondent’s statement in a letter expressing her appreciation for being named in a Will cannot be construed in any manner to amount to a renunciation of her interest in the bank accounts. The accounts are not mentioned in the letter. Nothing is said about the devise or from what source it is to be made.”

Casagranda, 178 Mont. at 485, 585 P.2d at 1289.

In Lundgren v. Hoglund (Mont. 1985), [219 Mont. 295,] 711 P.2d 809, 42 St.Rep. 2031, judgment creditors attempted to reach trust income held under a spendthrift provision by contending that assignments by the beneficiary of a portion of the inherited estate amounted to a renunciation of the trust. We held there was no renunciation, stating “[t]he assignments did not declare the renunciation nor properly describe the interest renounced.” Lundgren, 711 P.2d at 814.

The fundamental rule in construing statutes is to give effect to the intention of the Legislature as expressed in the statute. In so doing, we must look to the plain language of the statute and the object sought to be accomplished. The thrust of our opinions in Casagranda and Lundgren, and what we now expressly hold, is that a renunciation of property rights or interests under Section 72-2-101, MCA, must be clear and unequivocal. That clearly was the intent of the legislature in specifically requiring a written renunciation, signed by the person renouncing, that it describe the property or interest, and declare the renunciation and its extent.

In the alternative, the appellants argue the agreement is ambiguous, and therefore, parol evidence should be heard to determine the parties’ intention. But upon our reasoning above, this avenue is of no assistance for if a renunciation is to be clearly and unequivocally stated in a written, signed and filed instrument, an ambiguity therein will render it ineffective as a matter of law. We find appellants’ argument equally unpersuasive because they argued to the District Court that the agreement was “clear and unambiguous on its face.” Ambiguity or not, there is no valid renunciation. Therefore, the District Court correctly granted the motion for summary judgment.

AFFIRMED.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES SHEEHY, GULBRANDSON and McDONOUGH concur.