text:
    WILBUR A. FADNESS, individually and as successor in interest to MILDRED H. FADNESS, Plaintiff and Appellant, v. DOROTHY CODY, ROGER J. WIMMER, d/b/a ROOSEVELT COUNTY ABSTRACT, Defendants and Respondents.
    No. 97-327.
    Submitted on Briefs December 4, 1997.
    Decided December 30, 1997.
    54 St.Rep. 1513.
    287 Mont. 89.
    951 P.2d 584.

      JUSTICE LEAPHART specially concurring.
    For Appellant: Z. Kent Sullivan, Sullivan & Tabaracci, Missoula.
    For Respondents: Ralph J. Patch, Attorney at Law, Wolf Point (for Dorothy Cody); Robert M. Knight; Knight, Masar & Poore; Missoula (for Roger J. Wimmer, d/b/a Roosevelt County Abstract).
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

Wilbur A. Fadness and Mildred H. Fadness appeal from the judgment of the Fifteenth Judicial District Court, Roosevelt County, granting summary judgment to Dorothy Cody and Roger Wimmer based on collateral estoppel and the Fadnesses’ failure to set forth sufficient facts to establish liability. We reverse.

The issue raised on appeal is whether the District Court erred when it granted summary judgment to Cody and Wimmer based on collateral estoppel and lack of sufficient facts to establish liability.

FACTUAL BACKGROUND

On January 30, 1989, the Fadnesses listed for sale 160 acres of land, located near Wolf Point, Roosevelt County, Montana, with Dorothy Cody of Cody Real Estate in Wolf Point. The terms of the property listing called for “$25,000. Negotiable. 30% down — 9% interest on Contract for Deed or Cash.”

In June 1989, William Kuntz III contacted Cody Real Estate by mail and requested information on the property. Cody provided the information requested. In August 1989, Kuntz made an offer to buy the property which Cody communicated to Mrs. Fadness. Cody prepared a buy-sell agreement which she forwarded to Kuntz in New York state. Kuntz made substantial alterations to the agreement and returned it to Cody. Cody drafted a second buy-sell agreement and once again sent it to Kuntz. Kuntz altered this second agreement and forwarded it directly to the Fadnesses. The Fadnesses accepted this offer on September 26,1989, and returned the buy-sell agreement to Cody.

Kuntz mailed Cody the earnest money and Cody ordered title insurance from Roger Wimmer at the Roosevelt County Abstract Office. Cody then delivered the contract to Gerard Schuster, a Wolf Point attorney, and requested that he draft whatever legal documents would be needed. Schuster provided Cody with a promissory note, a mortgage agreement, a deed, and a realty transfer certificate. Thereafter, Cody mailed the original mortgage agreement and a photocopy of the promissory note to Kuntz, and the original deed to the Fadnesses.

Once the parties received the documents, Kuntz insisted that the Fadnesses agree to include Mrs. Kuntz as a grantee on the deed, but not as an obligor on the mortgage agreement. Cody discussed Kuntz’s demand with Mrs. Fadness and testified that she advised Mrs. Fadness against adding Mrs. Kuntz’s name to the deed but not to the mortgage agreement. Mrs. Fadness later contacted Cody and explained that she had spoken to Kuntz and that she and Mr. Fadness had decided that it would be fine to add Mrs. Kuntz to the deed. Cody testified that she has no knowledge of whether the Fadnesses ever consulted an attorney regarding her advice not to allow Mrs. Kuntz to be a grantee on the deed.

Thereafter, Kuntz returned the signed mortgage and promissory note to Wimmer, the closing agent. Although Cody did not see these documents again, Wimmer contacted Cody when they arrived at his office. On November 6,1989, the Fadnesses signed the warranty deed and returned it to Cody. Cody delivered the deed and the earnest money deposit from her trust account to Wimmer, at Roosevelt County Abstract, for closing.

The transaction closed on October 3,1990, over nine months after Kuntz first demanded that his wife’s name be added to the deed. The deed, recorded on November 4,1990, contains the added name of Mrs. Kuntz. According to Mr. Kuntz, his wife’s name was added sometime while the deed was in escrow. The mortgage agreement, signed on September 28, 1990, by Mr. Kuntz, references a note in the amount of $19,500 with the rate of interest on the outstanding balance lined through. Mr. Kuntz admitted lining though that provision. The promissory note, referenced in the mortgage and sent to Mr. Kuntz, has never been located and its whereabouts remain unknown.

Cody testified that she was aware that Kuntz made several changes to both buy-sell agreements. She explained that, although she did not do so in this case, it is normally her custom to have all changes on buy-sell agreements initialed. Cody explained that she did not understand the effect of having Mrs. Kuntz’s name on the deed but not on the mortgage. She also testified that she did not suggest to the Fadnesses that they discuss, with an attorney, the impact of structuring the transaction in this manner. Cody received a fee for acting as the listing agent for the transaction.

Wimmer was the closing agent in this transaction and has been in the title insurance business for nearly twenty years. In a deposition, Wimmer explained that a closing agent owes a fiduciary duty to the parties involved in a real property transaction. He stated that he saw that the interest section of the mortgage had been lined out and that it and all other modifications had not been initialed. Like Cody, Wimmer explained that it is his custom and practice at closing to have all modifications initialed. According to Wimmer, the lined out interest rate, without being initialed, renders the mortgage questionable for title examination purposes.

Wimmer further testified that he was aware of the significance of adding Mrs. Kuntz’s name to the deed but not the mortgage agreement, and that any difference between the names on these documents was very important to the Fadnesses’ position in this real property transaction. Finally, Wimmer stated that he did not know whether the Fadnesses were aware of the addition of Mrs. Kuntz’s name to the deed, and that he did not warn them of the consequences of having the transaction structured in this manner.

On April 13, 1992, Kuntz defaulted on his payments and the Fadnesses sued to foreclose the purchase money mortgage and quiet title to the real property. Pursuant to § 71-1-232, MCA, the Fadnesses were precluded from recovering a deficiency judgment related to the debt secured by the mortgage. The jury returned a verdict for the Fadnesses with regard to the foreclosure.

Count II of the Fadnesses’ complaint against Kuntz, was an action to quiet title to the real property. The Fadnesses alleged that Kuntz’s wife’s name was added to the warranty deed without their approval. Kuntz admitted that he added his wife’s name to the deed while it was in escrow. Despite these allegations, the jury found that “Fadness gave real and free consent to Kuntz’s alteration of the deed.” The Fadnesses further alleged that a promissory note was missing and that the mortgage was altered, before it was returned for recording, by crossing through the amount of the interest rate. The Kuntzes denied ever receiving the promissory note. The jury awarded to the Fadnesses title to the property, punitive damages in light of Kuntz’s actual fraud, and attorney fees and costs.

The Kuntzes appealed to this Court. We affirmed the jury’s verdict and denied rehearing. See Fadness v. Kuntz (Mont. March 28, 1996), No. 95-133, slip op. at 13. The Kuntzes then filed a petition for writ of certiorari with the United States Supreme Court, which was denied. See Fadness v. Kuntz (Mont. March 28, 1996), No. 95-133, cert. denied (1996),_U.S._, 117 S. Ct. 390, 136 L. Ed. 2d 306.

The Fadnesses are now suing Wimmer, the closing agent, and Cody, the real estate agent, for breach of their fiduciary duties, their duties of care, and for negligence. Specifically, the Fadnesses allege that Wimmer was negligent and breached his fiduciary duty to the extent that the real estate transaction documents were “lost, altered, or forged” to the Fadnesses’ detriment. The Fadnesses further allege that Wimmer breached his fiduciary duty by failing to protect their interests by insuring the proper handling of the closing and the documents involved. The Fadnesses allege that Wimmer violated the regulations of the insurance commissioner of the State of Montana by failing to have written escrow instructions for the closing of the transaction.

The Fadnesses allege that Cody breached her fiduciary duty to assist the Fadnesses throughout the course of the transaction. They claim that Cody breached her duty of care and conduct by not safeguarding and protecting the Fadnesses’ interests. They further allege that Cody handled the transaction and closing negligently and that she violated the regulations of the Board of Realty Regulation by failing to advise the Fadnesses that they should consult legal counsel to determine the effect of the documents involved in the transaction. Finally, the Fadnesses allege that Cody was negligent in supervising the closing to the extent that the documents had been lost, misplaced, stolen, forged, or otherwise altered.

On March 24, 1997, Wimmer and Cody moved for summary judgment based upon collateral estoppel and res judicata. The District Court found that no genuine issue of material fact exists and that Wimmer and Cody are entitled to judgment as a matter of law.

The District Court framed the basic issue as whether or not Wimmer and Cody are liable for the structuring and handling of the real estate sale, and for the subsequent changes made to the documents related to the sale. Because the jury in the previous action against Kuntz found that Fadness and Kuntz gave “real and free consent” to the terms of the mortgage and the alteration of the deed, the District Court held that collateral estoppel keeps the Fadnesses from now attempting to prove the facts to be otherwise. The District Court granted Wimmer and Cody’s motion and stated that the issue in this case is identical to the issues in the Fadnesses’ previous case against Kuntz in which final judgment was rendered and affirmed by this Court. The District Court held that there are no facts to support the allegations made by the Fadnesses with regard to the liability of Cody and Wimmer.

DISCUSSION

Did the District Court err by granting Cody and Wimmer’s motion for summary judgment based on collateral estoppel and lack of sufficient facts to establish liability?

Our standard of review in appeals from summary judgment rulings is de novo. See Motarie v. Northern Montana Joint Refuse Disposal Dist. (1995), 274 Mont. 239, 242, 907 P.2d 154, 156; Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785. When we review a district court’s grant of summary judgment, we apply the same evaluation as the district court based on Rule 56, M.R.Civ.P. See Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903. In Bruner, we set forth our inquiry:

The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of material fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. We review the legal determinations made by a district court as to whether the court erred.

Bruner, 272 Mont. at 264-65, 900 P.2d at 903 (citations omitted).

It is the Fadnesses’ contention on appeal that the present action and the action against the Kuntzes are two separate and distinct causes of action. The Fadnesses argue that in Fadness v. Kuntz, they sought to recover the property from the Kuntzes by foreclosing on the mortgage and quieting title to the property, as well as damages suffered as a natural and probable consequence of the Kuntzes’ actions. The Fadnesses note that at no point were Cody and Wimmer a part of the first action and that no damages were sought from the Kuntzes for the wrongs of Cody and Wimmer. According to the Fadnesses, the present action was filed specifically to seek damages from Cody and Wimmer for the harm suffered as a natural and probable consequence of their actions. For these reasons, the Fadnesses contend that the doctrine of collateral estoppel does not apply.

Collateral estoppel, or issue preclusion, bars a party to a prior lawsuit from reopening an issue he or she has already had the opportunity to litigate. See Holtman v. 4-G’s Plumbing and Heating (1994), 264 Mont. 432, 439, 872 P.2d 318, 322. The doctrine has three elements:

1) the identical issue raised has been previously decided in a prior adjudication;
2) a final judgment on the merits was issued in the prior adjudication; and
3) the party against whom the plea is now asserted was a party or in privity with a party to the prior adjudication.

Holtman, 264 Mont. at 439, 872 P.2d at 322 (citing State v. Young (1993), 259 Mont. 371, 377, 856 P.2d 961, 965). Our analysis need not proceed beyond the first element.

Identity of issues is the most crucial element of collateral estoppel. See Holtman, 264 Mont. at 439, 872 P.2d at 322; Anderson v. State (1991), 250 Mont. 18, 21, 817 P.2d 699, 702. In order to satisfy this element, the identical issue or “precise question” must have been litigated in the prior action. See Holtman 264 Mont. at 438, 872 P.2d at 322; Anderson, 250 Mont. at 21, 817 P.2d at 702. To determine whether the issue raised is identical, we compare the pleadings, evidence, and circumstances surrounding the two actions. See Aetna Life Ins. Co. v. McElvain (1986), 221 Mont. 138, 146, 717 P.2d 1081, 1086.

It is true that the Fadnesses’ prior suit against Kuntz arose from the same events as their claim against Cody and Wimmer and, like their present claim, sought damages related to the sale of the Fadnesses’ real property. However, when this claim is compared to the Fadnesses’ mortgage foreclosure, quiet'title action, and claim of fraud against Kuntz as described above, it is clear that the identical issue, or precise question, raised in the present case was not raised and decided in the earlier litigation involving the Fadnesses.

The Fadnesses’ prior foreclosure and quiet title action can be read as alleging an intentional wrongful act by Kuntz, the breach of the mortgage agreement and Kuntz’s fraudulent conduct, followed by all the damage that flowed therefrom. To the extent the prior claim is read in this fashion, it is clear that the issues of the alleged negligence and breach of fiduciary duties owed by Cody and Wimmer in the present case, are not identical.

Furthermore, the Fadnesses’ claim against Kuntz did not raise the issue of Cody and Wimmer’s negligence in their handling of the real property transaction and closing. As we stated in Nautilus Ins. v. First Nat’l Ins. (1992), 254 Mont. 296, 299, 837 P.2d 409, 411, a negligence action is premised, first, on the existence of a duty. Cody and Wimmer have not established that their legal duties to the Fadnesses in handling and closing the real property transaction were co-extensive with-the duties owed them by the Kuntzes. The fact that each action arises from the same transaction does not mean that each involve the same issues.

We conclude that the “identical issue” element of collateral estoppel is not met under the circumstances in this case. The duties owed by Cody and Wimmer to the Fadnesses were not decided, nor even considered by the jury in the first case. Moreover, the District Court’s other reason for granting Cody and Wimmer’s motion for summary judgment, that the Fadnesses presented insufficient facts to support an allegation that Cody and Wimmer are liable, was not an issue before the District Court and was not a basis upon which Cody and Wimmer relied in their motion for summary judgment. Therefore, we hold that the District Court erred when it based summary judgment, in part, on its conclusion that the Fadnesses presented insufficient evidence to demonstrate liability, that they are collaterally estopped from asserting claims for negligence and breach of fiduciary duties, and when it granted summary judgment in favor of Cody and Wimmer.

We therefore reverse and remand this case for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT and NELSON concur.

JUSTICE LEAPHART,

Due to the incomplete state of the record in this appeal, I have no choice but to concur in the result reached by the court.

Even assuming that the real estate agent and the closing agent owed duties of care to the sellers and that they breached those duties and thereby rendered the mortgage potentially invalid, it is not clear to me that the Fadnesses, in fact, suffered damages which were not fully recompensed when they successfully litigated a mortgage foreclosure action against Kuntz. Fadness v. Kuntz (1996), No. 95-133 (Fadness I).

Although, in the present matter, Cody and Wimmer requested that Fadnesses file a statement of damages, Fadnesses did not respond to that request. Thus, in terms of trying to understand Fadnesses’ theory of damages, we are left with nothing other than Fadnesses’ somewhat less than specific prayer for “such damages as they may prove at trial.”

In Fadness I, Fadnesses sued Kuntz to foreclose the purchase money mortgage and to quiet title in their name. As the court states, Fadnesses were successful in their foreclosure action, they quieted title to the property and obtained an award of punitive damages plus their fees and costs. They cannot obtain a deficiency judgment for any outstanding balance on the debt. Section 71-1-232, MCA. I am at a loss as to what further damages, if any, Fadnesses may have incurred as a result of Wimmer’s and Cody’s alleged negligence in allowing Mrs. Kuntz’s name to appear on the deed but not on the mortgage. However, since the summary judgment was based upon collateral estoppel rather than failure to state a claim for damages, and since Fadnesses have not yet responded to the request to state their damages, I must give them the benefit of the doubt and let the matter proceed.


source: Caselaw Access Project

author: JUSTICE REGNIER

license: Public Domain

text:
    BILL GORDON POWELL, Plaintiff and Appellant, v. THE SALVATION ARMY, Defendant and Respondent.
    No. 97-489.
    Submitted on Briefs December 4, 1997.
    Decided December 30, 1997.
    54 St.Rep. 1518.
    287 Mont. 99.
    951 P.2d 1352.

      For Appellant: James T. Ranney, Attorney at Law, Missoula.
    For Respondent: Ronald A. Bender and Matthew J. Cuffe; Worden, Thane & Haines; Missoula; Kevin E. Coventon; Manning, Marder & Wolfe; Los Angeles, California.
   JUSTICE REGNIER

delivered the Opinion of the Court.

In March 1997, Bill Gordon Powell filed an action in the District Court for the Fourth Judicial District in Missoula County against the Salvation Army. Powell brought suit pursuant to § 49-2-303, MCA, and the Americans with Disabilities Act, 42 U.S.C. §§ 12010 to 12213 alleging the Salvation Army unlawfully discriminated against him by terminating his employment on the basis of Powell’s past history of alcoholism. The Salvation Army subsequently filed a motion to dismiss, which the District Court granted on July 1, 1997. It is from the court’s order dismissing his complaint that Powell presently appeals. For the reasons stated below, we reverse.

The sole issue on appeal is whether the District Court erred in granting the Salvation Army’s motion to dismiss for failure to state a claim due to lack of jurisdiction based on Powell’s failure to file a timely charge with the Montana Human Rights Commission.

FACTUAL AND PROCEDURAL BACKGROUND

For the purposes of this appeal, we look to Powell’s complaint and take as true the following allegations of fact.

In the spring of 1983, Powell began working as a truck driver for a Salvation Army thrift store located in Missoula, Montana. On February 18, 1994, the Salvation Army dismissed Powell from his employment for the stated reason that he had been “drinking on the job” that day. It was not until later that year, however, that Powell asserts he first learned the Salvation Army had instead, Powell alleges, discharged him due to his past history of alcoholism.

Powell initiated a grievance pursuant to Salvation Army procedures. On October 25,1994, following an internal grievance hearing, the Salvation Army upheld Powell’s termination. Powell subsequently filed a charge with the Montana Human Rights Commission (MHRC). Aright to sue letter was issued in late December 1996, and on March 20, 1997, Powell filed this action pursuant to the Americans with Disabilities Act, alleging the Salvation Army unlawfully discriminated against him by terminating his employment on the basis of his past history of alcoholism.

On April 24,1997, the Salvation Army filed a motion to dismiss for failure to state a claim, alleging lack of jurisdiction based on Powell’s failure to timely file his discrimination claim with the MHRC. On July 1, 1997, the District Court concluded it lacked jurisdiction, and accordingly granted the Salvation Army’s motion to dismiss for failure to state a claim for which relief could be granted. Powell appeals.

DISCUSSION

Did the District Court err in granting the Salvation Army’s motion to dismiss for failure to state a claim due to lack of jurisdiction based on Powell’s failure to file a timely charge with the Montana Human Rights Commission?

1. Standard of review

We first note that the Salvation Army filed its motion to dismiss “for the reason that plaintiff’s complaint fails to state a claim against the defendant upon which relief can be granted for lack of jurisdiction and failure to timely file a charge with the MHRC.” Nowhere in its motion or supporting brief does the Salvation Army specify by number the defense it asserts pursuant to Rule 12(b), M.R.Civ.P. For the sake of clarity on appeal, we conclude the Salvation Army’s motion is, in substance, a motion to dismiss for failure to state a claim upon which relief can be granted, properly brought pursuant to Rule 12(b)(6), M.R.Civ.P.

We review de novo a district court’s ruling on a motion to dismiss under Rule 12(b)(6), M.R.Civ.P. Gerber v. Commissioner of Insurance of State of Montana (1990), 242 Mont. 369, 370, 786 P.2d 1199, 1200. This Court reviews an appeal from a district court’s order granting a motion to dismiss based on the sufficiency of the complaint. Busch v. Kammerer (1982), 200 Mont. 130, 132, 649 P.2d 1339, 1340 (citing Conley v. Gibson (1957), 355 U.S. 41, 45, 78 S. Ct. 99, 101-02, 2 L. Ed. 2d 80, 84).

In Willson v. Taylor (1981), 194 Mont. 123, 634 P.2d 1180, we recognized that

[a] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. A motion to dismiss under Rule 12(b)(6), M.R.Civ.P, has the effect of admitting all well-pleaded allegations in the complaint. In considering the motion, the complaint is construed in the light most favorable to the plaintiff, and all allegations of fact contained therein are taken as true.

Willson, 194 Mont. at 126, 634 P.2d at 1182 (citations omitted).

Thus, “[i]n reviewing a motion to dismiss, we construe the complaint in the light most favorable to the plaintiff and take the allegations of the complaint as true.” HKM Associates v. Northwest Pipe Fittings, Inc. (1995), 272 Mont. 187, 191, 900 P.2d 302, 304 (citing Goodman Realty, Inc. v. Monson (1994), 267 Mont. 228, 231, 883 P.2d 121, 123).

Pursuant to this standard of review, this Court will affirm the court’s dismissal only if we “determine that plaintiff is not entitled to relief under any set of facts which could be proven in support of the claim.” Grove v. Montana Army National Guard (1994), 264 Mont. 498, 501, 872 P.2d 791, 793 (citing King v. State (1993), 259 Mont. 393, 396, 856 P.2d 954, 955).

The District Court’s determination that Powell’s complaint failed to state a claim is a conclusion of law. See Boreen v. Christensen (1994), 267 Mont. 405, 408, 884 P.2d 761, 762. This Court’s standard of review of a district court’s conclusion of law is whether the court’s interpretation of the law is correct. Boreen, 267 Mont. at 408, 884 P.2d at 762 (citing Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603).

At this juncture, it is worth recognizing that the Salvation Army attached a number of exhibits to its brief in support if its motion to dismiss. Powell similarly attached several exhibits, most of them letters, to his response brief. Where, as here, “matters outside the pleading are presented to and not excluded by the court” on a motion to dismiss for failure to state a claim for relief, Rule 12(b), M.R.Civ.P., requires that the court treat the motion “as one for summary judgment and disposed of as provided in Rule 56.” Furthermore, the district court shall give each party a “reasonable opportunity to present all material made pertinent to such motion by Rule 56.” Rule 12(b), M.R.Civ.P.

Although the parties clearly presented matters outside the pleadings to the District Court, whether the District Court in fact relied on those outside matters in granting the Salvation Army’s motion to dismiss is less clear. The District Court did not, as it should have, either expressly exclude that material from its consideration, or, in the alternative, notify the parties of its intent to treat the motion to dismiss as one for summary judgment pursuant to Rule 56, M.R.Civ.P. See, e.g., Wood v. Den Herder (1996), 277 Mont. 147, 152, 920 P.2d 105, 108. In any event, we conclude that resolution of the present appeal does not require us to look beyond the pleadings in this case. Accordingly, we undertake the ensuing discussion without relying upon the various exhibits in this case, and reach our conclusion based strictly upon our review of the pleadings.

2. Sufficiency of the complaint

As noted above, the Salvation Army moved to dismiss Powell’s complaint for failure to state a claim for relief, arguing the District Court lacked jurisdiction to entertain Powell’s suit due to his failure to timely file a complaint with the MHRC. Indeed, we have previously recognized that the timely filing of a complaint with the MHRC is a jurisdictional prerequisite to filing a suit for discrimination in district court. Hash v. U.S. West Communications Serv. (1994), 268 Mont. 326, 886 P.2d 442.

With respect to the timely filing of complaints, § 49-2-501(4)(b), MCA, requires that a claimant who initiates internal grievance procedures file a discrimination claim with the MHRC within 300 days after the alleged unlawfiol discriminatory practice occurred or was discovered. Section 49-2-50l(4)(b), MCA, specifically provides as follows:

If the complainant has initiated efforts to resolve the dispute underlying the complaint by filing a grievance in accordance with any grievance procedure established by a collective bargaining agreement, contract, or written rule or policy, the complaint may be filed within 180 days after the conclusion of the grievance procedure if the grievance procedure concludes within 120 days after the alleged unlawful discriminatory practice occurred or was discovered. If the grievance procedure does not conclude within 120 days, the complaint must be filed within 300 days after the alleged unlawftd discriminatory practice occurred or was discovered.

Thus, pursuant to § 49-2-501(4)(b), MCA, Powell had 300 days from the date the alleged unlawful discriminatory practice occurred or was discovered within which to file a complaint with the MHRC.

In its motion to dismiss, the Salvation Army argues the alleged unlawful discriminatory practice in this case was Powell’s termination for smelling of alcohol and having slurred speech, which both occurred and was thus discovered by Powell on February 18, 1994. The Salvation Army maintains that Powell did not file his complaint with the MHRC until December 19, 1994, 304 days after the date of his discharge. The Salvation Army thus argues that Powell failed to timely file his complaint with the MHRC pursuant to § 49-2-501(4)(b), MCA. The Salvation Army points to our decision in Hash, and argues that, because Powell failed to timely file his complaint with the MHRC, the District Court lacked jurisdiction to entertain Powell’s suit.

The District Court agreed, and on July 1, 1997, issued an order granting the Salvation Army’s motion to dismiss on that basis. In so doing, the court specifically noted it was undisputed by the parties that Powell was fired for “smelling of alcohol and having slurred speech,” and concluded that this allegedly discriminatory act both occurred and was discovered on February 18, 1994. The court thus concluded that Powell had failed to file his complaint with the MHRC within 300 days of his firing, and that the court lacked jurisdiction over the action. Accordingly, the court ordered Powell’s complaint dismissed for failure to state a claim for relief.

On appeal, Powell argues the court erred in concluding his cause of action accrued on the February 18, 1994, date of his termination. Instead, Powell argues his cause of action did not accrue until some months later when he first discovered the Salvation Army had terminated him, not for drinking on the job on February 18,1994, but due to his past history of alcoholism.

In his complaint, Powell specifically alleges the following:

Although Plaintiff believed initially that he was being discharged for “drinking on the job,” after an internal grievance hearing, a final decision was rendered discharging him permanently which, along with other communications attributable to the Defendant, have made it clear that Plaintiff was being fired for his past history of alcoholism ....

Powell argues the alleged unlawful discriminatory practice was not, as the Salvation Army contends and the District Court concluded, the Salvation Army’s decision to fire him for “drinking on the job,” or for “smelling of alcohol and having slurred speech,” but rather its subsequent reliance upon Powell’s “past history of alcoholism” to justify his termination. Powell alleges he did not discover the Salvation Army’s true reason for discharging him until sometime after his February 18,1994, termination, and that his cause of action thus did not accrue on February 18, 1994.

Unless otherwise provided by statute, the period of limitation applicable to any given cause of action begins to run “when the claim or cause of action accrues.” Section 27-2-102(2), MCA. Section 49-2-501(4)(a), MCA, specifically provides that a cause of action accrues under the Human Rights Act when “the alleged unlawful discriminatory practice occurred or was discovered.” Section 49-2-501(4)(a), MCA; see also Hash, 268 Mont. at 329, 886 P.2d at 444.

The plaintiff in Hash was informed by her employer on June 19, 1991, that her “job would be eliminated.” Hash, 268 Mont. at 328, 886 P.2d at 443. In response, the plaintiff sought another job with the same employer, but was unable to secure a position. Hash, 268 Mont. at 328, 886 P.2d at 443. Her employer eliminated her position on January 31,1992, and the plaintiff eventually filed a complaint with the MHRC some four months later. Hash, 268 Mont. at 329, 886 P.2d at 443. The employer moved for summary judgment on the grounds that the plaintiff had failed to timely file her complaint with the MHRC pursuant to § 49-2-501(4), MCA.

We affirmed the district court’s decision granting the employer’s motion for summary judgment, and concluded her cause of action accrued on the day her employer notified her of its decision to eliminate her position. Hash, 268 Mont. at 329-30, 886 P.2d at 444. We held the plaintiff had failed to “support her position that her cause of action did not accrue” on the day her employer “advised her that her position would be eliminated,” and therefore, concluded the plaintiff had failed to comply with the requirements of § 49-2-501(4), MCA, and timely file her complaint with the MHRC. Hash, 268 Mont. at 329-30, 886 P.2d at 444.

As in Hash, the plaintiff in the present case alleges his cause of action did not accrue on the day his employer notified him of his termination. More specifically, Powell argues that although the Salvation Army terminated his employment on February 18, 1994, he did not learn it did so in reliance upon his “past history of alcoholism” until sometime later. Thus, Powell contends, it was not until sometime after February 18,1994, that he discovered the alleged unlawful discriminatory practice and that his claim accordingly accrued.

Although the case of Hash is, in many ways, similar to the one at bar, it differs from the present appeal in one particularly fundamental respect. The appeal in Hash was from a district court order granting a motion for summary judgment, whereas the present appeal is from an order granting a motion to dismiss for failure to state a claim upon which relief can be granted. In Hash, we affirmed the district court’s decision granting the employer’s motion for summary judgment, concluding in part that the plaintiff “did not support her position that her cause of action did not accrue” on the date she learned her position would be terminated.

Because the present case involves an appeal from an order granting a motion to dismiss, we can reach no such conclusion here. We cannot look to the entire record to determine whether Powell has supported the allegations contained in his complaint. Rather, we are restricted to a review of the pleadings and a determination with respect to the sufficiency of Powell’s complaint. Assuming then, as we must for the purposes of this appeal, that the Salvation Army initially indicated to Powell that he was being fired for “drinking on the job” on February 18, 1994, and only later revealed he had actually been fired for his past history of alcoholism, Powell may well be able to demonstrate that his cause of action did not accrue until sometime after his February 18, 1994, termination and, therefore, that he complied with the applicable 300-day limitation period.

Thus, construing Powell’s complaint in his favor, we conclude the allegations contained therein are sufficient to withstand the Salvation Army’s motion to dismiss, and hold the District Court erred in concluding otherwise. Based on the foregoing, we hold the District Court erred in dismissing Powell’s complaint for failure to state a claim upon which relief can be granted. We reverse the District Court’s order granting the Salvation Army’s motion to dismiss, and remand for further proceedings consistent with this opinion.

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


author: JUSTICE GRAY JUSTICE HUNT

text:
    TERRY ALLEN LANGFORD, Petitioner, v. STATE OF MONTANA; DEPARTMENT OF CORRECTIONS, RICK DAY, DIRECTOR; WARDEN MIKE MAHONEY; ATTORNEY GENERAL JOE MAZUREK, Respondents.
    No. 97-586.
    Submitted December 2, 1997.
    Decided December 30, 1997.
    54 St.Rep. 1522.
    287 Mont. 107.
    951 P.2d 1357.

      JUSTICE HUNT specially concurred.
    For Appellant: Michael Donahoe, Attorney at Law, Helena.
    For Respondents: Honorable Joseph P. Mazurek, Attorney General; John Paulson, Assistant Attorney General, Helena.
   JUSTICE GRAY

delivered the Opinion and Order of the Court.

This is an original proceeding wherein Terry Allen Langford (Lang-ford) has petitioned this Court, pursuant to Rule 17, M.R.App.P., and § 3-2-205(2), MCA, for a writ of injunction enjoining the State of Montana (State) from executing him under § 46-19-103, MCA, as amended effective March 19, 1997.

BACKGROUND

On January 5,1989, Langford entered pleas of guilty to two counts of deliberate homicide, two counts of aggravated kidnaping, and one count each of aggravated burglary, robbery and theft. The Third Judicial District Court, Powell County, sentenced Langford to death for each of the deliberate homicide and aggravated kidnaping counts, as well as to various terms of imprisonment for each of the remaining counts. We affirmed Langford’s convictions and sentences in State v. Langford (1991), 248 Mont. 420, 813 P.2d 936.

Langford subsequently filed two unsuccessful petitions for post-conviction relief (see State v. Langford (1991), 249 Mont. 385, 819 P.2d 151; State v. Langford (1991), 250 Mont. 542, 822 P.2d 1092) and, thereafter, the District Court scheduled Langford’s execution for January 17, 1992. Pursuant to the then-current version of § 46-19-103(3), MCA, Langford affirmatively elected that death be imposed by hanging rather than by lethal injection.

In December of 1991, Langford moved the District Court for a declaration that execution by hanging is cruel and unusual punishment which violates the Eighth Amendment to the United States Constitution. The court denied Langford’s motion, determining that his election to be executed by hanging rendered his cruel and unusual punishment argument moot; we affirmed the District Court on appeal. State v. Langford (1992), 254 Mont. 44, 833 P.2d 1127.

Langford also petitioned the United States District Court, District of Montana, for a writ of habeas corpus, including within the petition an Eighth Amendment claim that execution by hanging constituted cruel and unusual punishment. The federal trial court denied relief, on the merits, and the United States Court of Appeals for the Ninth Circuit affirmed. Langford v. Day (9th Cir. 1997), 110 F.3d 1380. Langford then petitioned the United States Supreme Court for a writ of certiorari on July 11, 1997.

During the pendency of Langford’s federal habeas corpus proceedings, and prior to his July 11, 1997 petition for writ of certiorari, the Montana Legislature amended § 46-19-103, MCA, effective March 19,1997, to remove hanging as a means of execution and provide that the punishment of death shall be inflicted in all cases by means of lethal injection. 1997 Mont. Laws Ch. 92, Sec. 1. As a result of this legislative amendment, the Eighth Amendment claim in Langford’s federal habeas corpus proceeding — that hanging is a cruel and unusual punishment — became moot and nonjusticiable. As a result, Langford did not include his Eighth Amendment claim in his petition for writ of certiorari to the Supreme Court. The Supreme Court denied Langford’s petition on October 6, 1997.

In this original proceeding, Langford asserts that the State impermissibly truncated his ability to fully appeal his death sentence to the Supreme Court by removing hanging as a method of execution in Montana and, thereby, nullifying his federal Eighth Amendment claim of cruel and unusual punishment. He contends that the legislative amendment deprived him of his final opportunity to avoid the death penalty because, if the Supreme Court had held that hanging is an unconstitutional punishment, the State would have been precluded from executing him by any other means under the former version of § 46-19-103, MCA. Langford also contends that the amendment to § 46-19-103, MCA, is unconstitutional as applied to him because it is either an ex post facto law or a bill of attainder. He argues, on these bases, that the State should.be permanently enjoined from executing him under the current version of § 46-19-103, MCA.

DISCUSSION

I. JURISDICTION

As a threshold matter, we must address the propriety of exercising jurisdiction over Langford’s petition for injunctive relief. This Court has original jurisdiction to issue such writs as are provided by law, including writs of injunction. Art. VII, Sec. 2, Mont. Const.; § 3-2-202(1), MCA. In determining whether to exercise such original jurisdiction in any given case, however, we examine the substance of the petition in light of the statutory criteria relating to our issuance of a writ of injunction. Under those criteria, which are set forth in the disjunctive, an action for a writ of injunction may not be commenced in this Court unless the State is a party to the action, the issue is of public interest or the rights of the public are involved. Section 3-2-205(2), MCA. Furthermore,

[t]he supreme court is an appellate court but it is empowered by the constitution of Montana to hear and determine such original and remedial writs as may be necessary or proper to the complete exercise of its jurisdiction. The institution of such original proceedings in the supreme court is sometimes justified by circumstances of an emergency nature, as when a cause of action or a right has arisen under conditions making due consideration in the trial courts and due appeal to this court an inadequate remedy, or when supervision of a trial court other than by appeal is deemed necessary or proper.

Rule 17(a), M.R.App.P.

The State is clearly a party to this action by virtue of being a named respondent in Langford’s petition for injunctive relief. Moreover, the issue central to Langford’s petition implicates the State’s involvement as a party to the underlying controversy in two senses. First, it was the act of the State Attorney General (AG) in advocating the amendment of, and the State Legislature in amending, § 46-19-103, MCA, which resulted in Langford’s asserted inability to include his Eighth Amendment claim in his petition for writ of certiorari to the Supreme Court. Second, it is the State which ultimately requests that the procedures contained in the current version of § 46-19-103, MCA, be applied in executing Langford’s death sentence, and that is the precise action which Langford requests this Court to enjoin.

Furthermore, the public has an interest in establishing and maintaining the validity of state actions — or in establishing that a state action is invalid — in a proceeding which attempts to curtail the State’s ability to enact, amend and enforce state legislation. This public interest is especially apparent in the context of state criminal laws and procedure and the imposition of the death penalty thereunder. We conclude, therefore, that at least two of the three criteria in § 3-2-205(2-), MCA — that the State be a party to the proceeding and that the issue involved be of public interest — are met in this case.

The State argues that Langford has failed to allege emergency circumstances or other conditions making trial court consideration and subsequent appellate review an inadequate remedy, as required under Rule 17(a), M.R.App.R, and, therefore, that the petition is insufficient to justify our exercise of original jurisdiction. In this regard, we need only take judicial notice of the fact that, after Langford filed his petition for injunctive relief, the District Court scheduled Langford’s execution for February 24,1998. With less than two months remaining before that date, we conclude that circumstances of an emergency nature exist in this case which render due consideration in the trial court and appeal to this Court an inadequate remedy. Therefore, we accept jurisdiction of Langford’s petition for a writ of injunction.

II. INJUNCTIVE RELIEF

As a backdrop to our resolution of the merits of Langford’s arguments in support of his petition, it is appropriate to outline the underlying premise on which Langford bases his request for injunctive relief. Section 46-19-103, MCA, governs the execution of a death sentence in Montana. Prior to the 1997 amendment, § 46-19-103, MCA, provided two methods of execution: hanging and lethal injection; a person sentenced to death would be executed by hanging unless he or she affirmatively elected to be executed by lethal injection. Section 46-19-103(3), MCA (1995). When Langford’s original execution date was set for January 17, 1992, he affirmatively elected to be executed by hanging. Subsequently, Langford proceeded with his state and federal claims that hanging is cruel and unusual punishment. As set forth above, we ultimately held that his cruel and unusual punishment argument was moot, based on his election to be executed by hanging. See Langford, 833 P.2d at 1129. Langford then proceeded to raise his Eighth Amendment claim in the federal court.

While his federal action remained pending at the Ninth Circuit, the Montana Legislature amended § 46-19-103, MCA, effective March 19,1997, to provide that lethal injection is the only method of execution in Montana. The effect of the amendment removing hanging as a method of execution was to moot Langford’s Eighth Amendment cruel and unusual punishment argument and preclude his ability to raise that issue in his petition for writ of certiorari to the Supreme Court.

Langford’s argument regarding the effect of the statutory amendment on his attempt to avoid the imposition of the death penalty has two aspects. First, he contends that it was quite probable that the Supreme Court would have ruled in his favor on his Eighth Amendment claim had he been able to present it in his petition for writ of certiorari. Second, Langford asserts that, once the Supreme Court held hanging was cruel and unusual punishment, the State would have no legal process by which to execute him under the old version of § 46-19-103, MCA. This assertion is based on the language of § 46-19-103(3), MCA (1995), which provided that the punishment of death must be inflicted by hanging or, at the election of the defendant, by lethal injection and that, if the defendant wishes to choose execution by lethal injection, he or she must state that election at the hearing to set the execution date. According to Langford, if he refused to affirmatively elect death by lethal injection at the hearing to set a new execution date, the State would have no other means under the statute by which to execute him and, by his silence, he would avoid being put to death. Thus, Langford argues that the 1997 amendment to § 46-19-103, MCA, has eliminated his ability to present an argument whereby he could avoid execution altogether.

Langford’s specific arguments in support of his petition for injunctive relief fall into three categories: (A) the amendment to § 46-19-103, MCA, as applied to him, is an ex post facto law which violates Article II, Section 31 of the Montana Constitution; (B) the amendment is a bill of attainder which violates Article II, Section 30 of the Montana Constitution; and (C) the amendment violates his rights under the Montana Constitution because it truncated his ability to pursue his Eighth Amendment claim before the Supreme Court and, assuming the Supreme Court held in his favor, thereby denied him the opportunity to avoid imposition of the death penalty. We address each argument in turn.

A. Ex Post Facto law

Langford asserts that the amendment to § 46-19-103, MCA, as it applies to him, constitutes an ex post facto law in violation of Article II, Section 31 of the Montana Constitution. A statute is prohibited as ex post facto if it punishes as a crime an act which was not unlawful when committed, if it makes the punishment for a crime more burdensome or if it deprives the person charged with a crime of any defense available under the law at the time the act was committed. State v. Leistiko (1992), 256 Mont. 32, 36, 844 P.2d 97, 99-100 (citing Beazell v. Ohio (1925), 269 U.S. 167, 169-70, 46 S.Ct. 68, 68, 70 L.Ed. 216, 217). Langford argues that his pursuit ofhis Eighth Amendment claim is a “defense” as contemplated under the ex post facto prohibition because, had he been successful on this claim, “it would have permanently crippled the State from carrying out Langford’s death sentence under former § 46-19-103.”

Insofar as it is relevant here, the ex post facto clause is a prohibition against statutes which deprive a person of a defense to a charged crime. See Leistiko, 844 P.2d 99-100. In this case, Langford is not asserting a defense to a crime with which he was charged. He has already pleaded guilty to, and been sentenced for, the crimes he committed and the validity of those convictions is not at issue here. Section 46-19-103, MCA, comes into play only after a defendant has been convicted and a death sentence has been imposed and, at that point, it addresses only the procedure by which the sentence is to be carried out. Changes in the procedures by which a death sentence is executed do not affect substantial rights óf a prisoner in such a manner as to implicate the prohibition against ex post facto laws. See, e.g., McKenzie v. Day (9th Cir. 1995), 57 F.3d 1461, 1469.

Langford asserts, however, that the amendment to § 46-19-103, MCA, was more than a mere “procedural” change because, if his Eighth Amendment claim had been successful in the Supreme Court, “it would have provided a statutory, due process type immunity protecting Langford from execution altogether” under the prior version of the statute. This argument is not persuasive. Both the federal district court and the Ninth Circuit held against Langford on the merits of his Eighth Amendment cruel and unusual punishment claim and his assertion that the Supreme Court “very well could have been convinced to grant him relief’ is speculative, to say the least. Moreover, we cannot assume that, had the Supreme Court held in his favor on the Eighth Amendment claim, Langford’s interpretation regarding the effect of that holding on the prior version of § 46-19-103, MCA, also would prevail. Thus, Langford’s purely conjectural assertions that he potentially would have a due process-type right to avoid execution under the earlier version of the statute does not create a current substantive right which would be infringed by an amendment altering only the procedure by which his sentence is executed.

We conclude that § 46-19-103, MCA, as amended, is not an ex post facto law under Article II, Section 31 of the Montana Constitution, as applied to Langford.

B. Bill of Attainder

Langford also argues that the 1997 amendment to § 46-19-103, MCA, constitutes a bill of attainder in violation of Article II, Section 30 of the Montana Constitution. Bills of attainder are “ “legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial....’” State v. Fitzpatrick (1984), 211 Mont. 341, 342-43, 684 P.2d 1112, 1113 (quoting United States v. Lovett (1946), 328 U.S. 303, 315-16, 66 S.Ct. 1073, 1079, 90 L.Ed. 1252, 1259).

The amendment to § 46-19-103, MCA, clearly applies only to an easily ascertainable group — namely, certain persons sentenced to the death penalty. However, since those persons already have been convicted and sentenced to the death penalty, the amendment clearly does not inflict a punishment on that group of persons without a judicial trial. Indeed, § 46-19-103, MCA, does not inflict punishment at all, it merely delineates the procedure by which a previously imposed punishment is carried out. Langford’s sentence — that is, his “punishment” — is death and § 46-19-103, MCA, as amended, does not change that sentence. Thus, the 1997 amendment to § 46-19-103, MCA, which removed hanging as a method of execution in Montana, does not constitute a bill of attainder.

Langford argues, however, that the punishment inflicted by the statutory amendment is the preemptive extinguishment of his ability to have the Supreme Court address his Eighth Amendment claim regarding hanging. Essentially, Langford is contending that the Legislature amended § 46-19-103, MCA, in retaliation for his continued pursuit of his Eighth Amendment claim in the federal courts and, in this regard, he has provided us with transcripts of the legislative hearings on the bill which resulted in the 1997 amendment to § 46-19-103, MCA. Because the State does not dispute either the completeness or the accuracy of the transcripts, we accept them as part of the legislative history of the amendment for purposes of this case only and conclude that nothing in the record before us supports Langford’s claim that the amendment was enacted specifically to “punish” him.

The transcripts reveal various reasons for amending § 46-19-103, MCA. One such reason was to decrease the costs associated with death penalty cases by limiting the potential issues for appeal; others were that execution by hanging requires much more preparatory work by, and technical expertise from, officials carrying out the execution than does lethal injection and that human error is more of a factor in a hanging than in lethal injection executions. The hearing transcripts do not indicate, or even suggest, that the amendment to § 46-19-103, MCA, was enacted with the specific purpose of cutting off Langford’s ability to pursue his Eighth Amendment claim. Nor do they support Langford’s assertion that § 46-19-103, MCA, was amended in retribution for his efforts to challenge the constitutionality of hanging as a method of execution.

We conclude that the amendment to § 46-19-103, MCA, does not inflict punishment without a judicial trial and, therefore, that it is not a bill of attainder prohibited by Article II, Section 30 of the Montana Constitution.

C. Violation of other rights under the Montana Constitution

Finally, Langford argues that Article II, Sections 3, 4, 16, 17, 18, 19, 24 and 34 of the Montana Constitution protect his right to seek federal relief from his conviction and sentence and that the amendment to § 46-19-103, MCA, violated these constitutional provisions by denying him the ability to present his Eighth Amendment claim to the Supreme Court. He does not present substantive arguments under each delineated constitutional section, but merely directs his arguments in a general manner to his overall contention that the State should be enjoined from executing him under the current version of § 46-19-103, MCA. We address the arguments accordingly.

A large portion of Langford’s brief in support of his petition is devoted to discussing the role of the AG in the 1997 amendment to § 46-19-103, MCA. It is undisputed that the AG was a major proponent of the amendment and presented testimony during the legislative hearings. Langford infers that the AG’s support of the amendment arose from the AG’s recognition that Langford was likely to succeed on his Eighth Amendment claim in the Supreme Court and that his successful claim would preclude the State from executing him under the old version of § 46-19-103, MCA. Therefore, according to Langford, the AG advised the Legislature to amend the statute to ensure that he would be denied the opportunity to make his Eighth Amendment argument. Langford’s argument in this regard is not persuasive.

First, neither the transcripts of the legislative hearings nor any other evidence of record supports Langford’s inference regarding the AG’s motives vis-a-vis the 1997 amendment to § 46-19-103, MCA. While the transcripts reveal that the AG believed the amendment would reduce the available issues for appeal in death penalty cases, it is also clear that the AG’s desire to reduce available appeal issues was based on an interest in reducing the time and money expended by the State in death penalty appeals and collateral proceedings rather than on a concern that hanging might be found to be unconstitutional. If there are fewer issues available to appeal, death penalty cases can be resolved more quickly and with less expense to the State.

Moreover, Langford’s contentions to the contrary notwithstanding, the transcripts contain no admission by the AG that hanging is cruel and unusual punishment. While Mike Mahoney, warden of the Montana State Prison, made several statements during the legislative hearings to the effect that lethal injection is more humane than hanging, no one testifying on behalf of the AG made such statements. Furthermore, a statement that hanging may be less humane than another execution method does not equate to an admission that hanging is cruel and unusual punishment. The transcripts of the legislative hearings on the amendment simply do not support Lang-ford’s assertions that the AG, acting on behalf of the State, either admitted that hanging is cruel and unusual punishment or was concerned that an Eighth Amendment claim regarding hanging would be successful in the Supreme Court.

Additionally, the legislative hearing transcripts establish that, while the AG supported the amendment to § 46-19-103, MCA, the AG did not initiate the bill which resulted in the amendment. In the House Judiciary Committee hearing, Representative Bob Clark stated that he was sponsoring the bill at the request of the Montana Department of Corrections (DOC). Furthermore, Warden Mahoney testified that the reasons the DOC proposed the amendment were, first, that the preparatory work and technical expertise required to carry out an execution by hanging far exceeds that necessary for the preparation of a lethal injection; second, that human error is a greater factor in execution by hanging; and third, that there is greater expense associated with the preparation for, and execution of, a hanging than with a lethal injection. Thus, not only was the AG not the initiator of the amendment, the record indicates that the DOC proposed the amendment for primarily practical reasons and that those reasons were not related to Langford in particular or to his pending Eighth Amendment claim in federal court.

Langford’s claims regarding the AG’s motives for supporting the amendment of § 46-19-103, MCA, are not supported by the record before us. Thus, they do not buttress his overall claim that we should enjoin the State from executing him under the current version of § 46-19-103, MCA.

Langford’s final argument in support of his petition for injunctive relief is that, by mooting his Eighth Amendment claim prior to its presentation to the Supreme Court, the amendment to § 46-19-103, MCA, rendered the time spent in pursuing that claim retroactively useless and, therefore, the time he has spent on death row while arguing that claim should be charged to the State as a form of cruel and unusual delay. In support of this argument, he cites the dissenting opinion of Ninth Circuit Judge James R. Browning in McKenzie v. Day (9th Cir. 1995), 57 F.3d 1493, 1494, in which Judge Browning stated that a stay of execution should be granted to allow the trial court to consider McKenzie’s argument that a 20-year delay in executing his death sentence was, in itself, cruel and unusual punishment. A dissenting opinion is not precedent and does not provide support for Langford’s argument here. Moreover, while nearly nine years have passed since Langford was sentenced to the death penalty in 1989, this lapse of time does not begin to approach the 20-year delay which occurred in the McKenzie case.

Furthermore, we observe that Langford’s Eighth Amendment claim was not the only claim he pursued in his federal court habeas corpus proceeding. He also asserted that he should be allowed to withdraw his guilty pleas because he received ineffective assistance of counsel during the pleading and sentencing phases of his case. Both the federal trial court and the Ninth Circuit addressed Langford’s ineffective assistance claim on the merits and Langford apparently included it in his petition for writ of certiorari to the Supreme Court. Thus, the time spent on death row while Langford pursued his state and federal court remedies was not spent entirely on his Eighth Amendment claim and cannot be charged to the State as “cruel and unusual delay” relating to the 1997 amendment to § 46-19-103, MCA.

We conclude that Langford has not established that the 1997 amendment to § 46-19-103, MCA, violated his rights under Article II, Section 3, 4, 16, 17, 18, 19, 24 or 34 of the Montana Constitution by impermissibly denying him the ability to present his Eighth Amendment cruel and unusual punishment argument to the Supreme Court.

The Court having accepted jurisdiction of this original proceeding and having concluded that Langford has not established a violation of any of the provisions of the Montana Constitution on which his petition is grounded,

IT IS ORDERED that Langford’s petition for writ of injunction is DENIED.

CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, REGNIER, NELSON and LEAPHART concur.

JUSTICE HUNT

specially concurs.

I concur in the result of the opinion, but not in all that is said.


author: JUSTICE NELSON

text:
    IN RE THE MATTER OF THE CUSTODY OF D.M.G. and T.J.G., Minor Children, MICHEAL A. GREENE, Petitioner, Respondent and Cross-Appellant, and TAMMY J. PRICE, Respondent and Appellant.
    No. 97-411.
    Submitted on Briefs November 6, 1997.
    Decided January 5, 1998.
    1998 MT 1.
    55 St.Rep. 1.
    287 Mont. 120.
    951 P.2d 1377.

      For Appellant: Kirk S. Bond, Helena.
    For Respondent: Mark P. Yeshe, Helena.
   JUSTICE NELSON

delivered the Opinion of the Court.

¶1 In October 1996, Micheál A. Greene (Micheál) filed his petition for custody and visitation of his children, D.M.G. and T.J.G., (hereafter sometimes collectively referred to as the children) in the First Judicial District Court, Lewis and Clark County. Following an evidentiary hearing in March 1997, the court entered its decision on April 29, 1997. This is an appeal by the children’s mother, Tammy J. Price (Tammy), and a cross-appeal by Micheál from the findings of fact, conclusions of law and order of the District Court. The court awarded the parties joint custody of their children and provided that, in the event Tammy returns to the Helena area, she is to have primary physical custody of the children. However, if the parties continue to live in separate states, primary physical custody shall be alternated between the parties on a two-year basis with Micheál having custody commencing in August 1997. The court also provided for reasonable visitation by the non-custodial parent. We reverse and remand for entry of a further custody order consistent with this opinion.

BACKGROUND

¶2 Though they never married each other, the parties are the parents of twin sons, born in November 1993. Micheál is employed full time in Helena with a local title company. When the children were born, Tammy quit her employment, stayed home, and became the boys’ primary care-giver. When not at work, Micheál was actively involved with the children as a parent. After the parties separated in the summer of 1995, the children resided with Tammy and she received AFDC assistance. Micheál spent a good deal of time with the children, continued to be an actively involved parent, paid child support and provided health insurance. Tammy subsequently began working part time at a grocery store and also completed clerical training courses. Micheál often cared for the children when Tammy was at work or at class.

¶3 In July 1996, after informing Micheál the previous month that she was preparing to leave Helena, Tammy moved to Salem, Oregon. Micheál was not happy about the move, but did not try to stop Tammy from leaving. He testified that he believed the move was only temporary. The record indicates that Tammy’s change of residence was prompted because of personal conflict between the parties and because of the availability of better job opportunities and the nearness of family in Salem. Tammy testified that since moving, she feels more in control of her life. She is permanently employed as a shipping clerk. She is self-supporting and earns a salary of about $1,830 per month. Her employment includes medical, dental, retirement and life-insurance benefits. She and the children live in their own home. Her mother and step-father live in Salem and Tammy’s mother assists her with the children in the mornings before they go to pre-school and day care. According to Tammy, the children are doing well in Salem. Micheál offered no evidence to the contrary. Tammy has no desire to return to Helena. Micheál has considered moving to Oregon to be near his children, but feels that his roots, family and career are in Helena. Moreover, he states that he is uncertain that, were he to move, Tammy would not change residences again. Tammy and Micheál both have extended family in Helena; Micheál has no relatives in the Salem area.

¶4 Micheal’s expert, social worker/clinical counselor Dr. Leta Levoti, testified that generally it is in the best interests of the children of divorced or separated parents that the children have frequent and consistent contact with both parents and, to that end, that both parents should reside in the same community. She stated that occasional, longer visits are not as desirable, and that children who have a healthy, frequent and continuous relationship with both parents have the best chance for a healthy and well-adjusted development. She testified that children who do not enjoy this sort of relationship may suffer problems with regard to role-modeling, self-esteem, behavior, grieving, fantasizing (about the missing parent), attachment and abandonment. Dr. Levoti also testified, however, that when a parent has been the primary care-giver for most of a child’s life, it can be devastating to the child to be removed from that parent.

¶5 In preparation for her testimony, Dr. Levoti met with Micheál and his mother for 1 hour and 30 to 45 minutes. She never interviewed Tammy; she never evaluated either parent with the children; she did not evaluate the children’s home; nor did she evaluate the children or their social and emotional development. As indicated, Dr. Levoti opined generally about the detrimental effects on children who do not have a good relationship and frequent contact with both parents. She also testified as to the results of a study which indicated that about one-third of the children of separated parents grow up well adjusted, while one- third turn out “so-so,” with the remaining one-third growing up maladjusted. However, Dr. Levoti offered no testimony or opinion as to whether the children in this case, D.M.G. and T.J.G., have suffered or would likely suffer any of the detrimental effects to which she referred by reason of Micheál and Tammy living in distant cities, nor did she have an opinion that Tammy was not acting in the children’s best interests when she moved to Salem.

¶6 The parties conceded, and the court found, that both Tammy and Micheál were fit parents. The trial court also found that Tammy did not consider the children’s best interests in moving to Salem, but acted in her own personal interest and that she did not search for or demonstrate that she could not find comparable employment in Helena. The court rejected as being economically and logistically unrealistic Tammy’s stated desire that Micheál have a relationship with the children and visit the children frequently for short periods. The court also found, however, that since their separation, the parties have been able to mutually and amicably arrange reasonable visitation, and the court expected that cooperation to continue in the future.

¶7 Based upon this evidence and this record, the District Court concluded that it was in the children’s best interests that both parents reside in Helena and that it was not in the children’s best interests that Tammy relocated to Salem, Oregon, or that she remain there. The court determined that D.M.G.’s and T. J.G.’s best interests would be more appropriately served if the children were to have continuing contact with both parents and that this sort of contact could not reasonably occur if Tammy resided in Oregon and Micheál resided in Helena. Accordingly, the court entered the order referred to above. Tammy timely appealed, and Micheál timely cross-appealed.

ISSUES

¶8 Three issues are raised on appeal:

1. Does the District Court’s order violate Tammy’s constitutional right to travel?

2. Did the District Court err by failing to apply the statutory presumption at § 40-4-212(3)(a), MCA?

3. Did the District Court err by alternating custody every two years?

¶9 This third issue is also the subject of Micheal’s cross-appeal. We hold that the trial court’s order violates Tammy’s constitutional right to travel; that the court erred by failing to apply the statutory presumption at § 40-4-212(3)(a), MCA, in favor of Tammy; and that the court erred in alternating custody every two years.

STANDARD OF REVIEW

¶10 We review a district court’s findings of fact relating to child custody and visitation matters to determine whether the findings are clearly erroneous. A finding is clearly erroneous only if it is not supported by substantial evidence, the trial court has misapprehended the effect of the evidence, or a review of the record leaves this Court with the definite and firm conviction that a mistake has been committed. In re Marriage of Johnson (1994), 266 Mont. 158, 166-67, 879 P.2d 689, 694 (citations omitted). We will not overturn the district court’s decision unless a clear abuse of discretion is shown. In re Marriage of Huotari (1997), [285 Mont. 285], 943 P.2d 1295, 1297 (citations omitted). Our review as to questions of law is plenary. In re Marriage of Syverson (1997), 281 Mont. 1, 16, 931 P.2d 691, 700.

DISCUSSION

I.

Does the District Court’s order violate Tammy’s constitutional right to travel?

¶11 Tammy argues that, in conditioning her continued primary physical custody of D.M.G. and T.J.G. on the requirement that she relocate to Helena from her job, home and extended family in Salem, the trial court violated her constitutionally protected fundamental right of interstate travel. This right is recognized in a number of decisions of the United States Supreme Court and in a decision of this Court. On the other hand, Micheál maintains that, in the context of this custody dispute, Tammy’s constitutional right of interstate travel is qualified by the special obligations of custody, the state’s interest in protecting the best interests of the children and by the competing interests of the non-custodial parent. Though raised by Tammy in the proceedings below, the trial court did not address her constitutional argument in its decision. We conclude that the legal positions of both parties, summarized above, are correct.

¶12 The right of interstate travel has repeatedly been recognized as a basic constitutional freedom. Memorial Hospital v. Maricopa County (1974), 415 U.S. 250, 254, 94 S.Ct. 1076, 1080, 39 L.Ed.2d 306. This right is not mentioned in the federal constitution. Nevertheless, it is a right so fundamental and elementary that it was conceived from the beginning “to be a necessary concomitant of the stronger Union the Constitution created.” United States v. Guest (1966), 383 U.S. 745, 758, 86 S.Ct. 1170, 1178, 16 L.Ed.2d 239. As the Court described this right in Shapiro v. Thompson (1969), 394 U.S. 618, 629, 89 S.Ct. 1322, 1328, 22 L.Ed.2d 600, overruled on other grounds by Edelman v. Jordan (1974), 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662, it is, among other things, the right “to migrate, resettle, find a new job, and start a new life.” And because the right of interstate travel is fundamental, a classification which operates to penalize those persons who exercise this right must be justified by a compelling state interest. Memorial Hospital, 415 U.S. at 258, 94 S.Ct. at 1082 (citing Shapiro and Dunn v. Blumstein (1972), 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274). The burden on the government to justify this compelling interest is a heavy one. Memorial Hospital, 415 U.S. at 269, 94 S.Ct. at 1088.

¶ 13 Memorial Hospital, Dunn, and Shapiro held that various state statutory durational residency requirements violated the Equal Protection Clause of the Fourteenth Amendment by creating invidious classifications that impinged upon the right of interstate travel. Memorial Hospital, 415 U.S. at 269, 94 S.Ct. at 1088; Dunn, 405 U.S. at 338, 92 S.Ct. at 1001; Shaprio, 394 U.S. at 627, 89 S.Ct. at 1327. Guest involved a conspiracy to deprive African-Americans of their right of interstate travel based upon racial considerations. Guest, 383 U.S. at 757, 86 S.Ct. at 1177. Those are not precisely the sorts of legal restrictions which are at issue here. Nonetheless, Tammy correctly points out that we have referred to this constitutional right of interstate travel and have cited Shapiro in our own case law involving an issue of child custody. That case, In re Marriage of Cole (1986), 224 Mont. 207, 729 P.2d 1276, involved a fact situation wherein we affirmed the trial court’s refusal to restrict the right of the primary custodial parent to relocate the children out of state as part of a marital dissolution and joint custody determination. We will discuss this case in more detail later in this opinion.

¶14 In two other cases cited by Micheál, the change of residence issue was addressed but not vis-a-vis the constitutional right of interstate travel. In re Marriage of Bergner (1986), 222 Mont. 305, 310, 722 P.2d 1141, 1145, we ruled with no analysis whatsoever, that on the issue of whether a parent has the right to change residence subject to the best interests of the child, the answer is an “unqualified ‘yes.’ ” We cited § 40-6-231, MCA, which provides:

A parent entitled to the custody of a child has a right to change his residence, subject to the power of the proper court to restrain a removal which would prejudice the rights or welfare of the child.

In Bergner, the father, who was a joint custodian, sought modification of the custody decree. He asked to be awarded physical custody on the basis that the children had been integrated into his home after having been placed with him for an extended period of time. Bergner, 722 P.2d at 1142. In addressing the change of residence issue, we noted simply that the father was awarded custody of the children, not because the wife moved to Texas, but because the girls’ interest would best be served by allowing them to remain in the family, school and community they had enjoyed for several years. Bergner, 722 P.2d at 1145.

¶15 Micheál also cites In re Marriage of Elser (1995), 271 Mont. 265, 895 P.2d 619, overruled on other grounds by Porter v. Galarneau (1996), 275 Mont. 174, 911 P.2d 1143. In that case we affirmed the trial court’s denial of the mother’s motion for an order permitting her to remove the children to a permanent residence out of state and the court’s granting the father’s motion for an order designating him as the primary residential custodian. Elser, 895 P.2d at 623. Again, the constitutional right of interstate travel issue was not raised or addressed. We concluded simply that substantial evidence supported the District Court’s finding that the proposed relocation out of state was not in the children’s best interests, Elser, 895 P.2d at 623, again citing, among other authority, § 40-6-231, MCA. Elser, 895 P.2d at 621-22.

¶ 16 Finally, while not cited by either party, we also referred to this same statute in In re Marriage of Johnson (1989), 238 Mont. 153, 155, 777 P.2d 305, 307, and in In re Marriage of Paradis (1984), 213 Mont. 177, 181, 689 P.2d 1263, 1265. Again, however, we did not address the change of residence issue in the context of the constitutional right of interstate travel argument raised by Tammy here.

¶ 17 Since the constitutional issue was not raised in Bergner, Elser, Johnson or Paradis, our decisions in those cases are of only marginal assistance in our resolution of this issue. Furthermore, the case at bar presents a different factual twist from those in Bergner, Cole, Elser, Johnson and Paradis. In those cases the residence change issue was raised in the context of the court allowing or refusing to allow the custodial parent’s relocation from the children’s home in Montana to another state. In those cases either there was a previously existing custody decree for which modification was sought (Bergner, Elser, Johnson and Paradis) or the court’s decision was made as part of a marriage dissolution action in which the parties’ and children’s home was in Montana at the time custody was first determined (Cole).

¶18 The case at bar, however, involves a situation where the court is effectively requiring that the children’s primary residential custodian move to Montana from another state where the custodian had already established her home and the children’s home prior to the initial custody determination and prior to the relocation issue being raised. As noted later in this opinion, we conclude that the instant fact situation may impact the constitutional right of interstate travel to an even greater extent than would the facts in our previously decided cases.

¶19 With those initial observations we turn to our decision in Cole, the one case decided by this Court which is most clearly on point to our discussion here. Cole involved the trial court’s custody decision as part of a dissolution action. The parties had two children, one of whom (Robby) was diagnosed with Down’s Syndrome which entailed learning and physical disabilities. Considerable testimony was presented at trial concerning the custody arrangement which best suited Robby’s special needs. The child’s teachers, therapist and trainer all testified in their particular areas of expertise and experience with Robby and the court received recommendations from two court-appointed investigators. The court awarded the mother custody of the children for roughly the school year, and awarded the father custody for roughly two months in the summer. Cole, 729 P.2d at 1278.

¶20 Among other things, the father challenged the trial court’s refusal to restrict the mother from relocating to Tampa, Florida, claiming that he would be effectively removed from contact with his children for all but his two months of custody. The court considered the children’s best interest, the mother’s testimony that there were advanced employment opportunities in Tampa and testimony from Robby’s counselors that Tampa would likely provide a more complete line of services to disabled children. We concluded that, on this evidence, the court’s refusal was not an abuse of discretion. Cole, 729 P.2d at 1280.

¶21 We then went on to discuss the custody issue in the context of the constitutional right of interstate travel, citing Shapiro. We noted the “delicate balancing” required of courts in reconciling, on the one hand, the statutorily required best interests of the child, which are most appropriately served by consistent and continuing contact with both natural parents and, on the other hand, the custodial parent’s fundamental right to travel. We observed that

[t]he custodial parent who bears the burdens and responsibilities of raising the child is entitled, to the greatest possible extent, to the same freedom to seek a better life for herself or himself and the children as enjoyed by the noncustodial parent... [but that] ... the custodial parent’s freedom is qualified by the special obligations of custody, the state’s interest in protecting the best interests of the child and the competing interests of the noncustodial parent.

Cole, 729 P.2d at 1280 (citing Cooper v. Cooper (1984), 491 A.2d 606, 613).

¶22 Next, addressing the right to travel interstate and citing Shapiro for the rule that this, being a fundamental right, it can only be restricted in support of a compelling state interest, we stated:

We believe that furtherance of the best interests of a child, by assuring the maximum opportunities for the love, guidance and support of both natural parents, may constitute a compelling state interest worthy of reasonable interference with the right to travel interstate. [Citation omitted.] We caution, however, that any interference with this fundamental right must be made cautiously, and may only be made in furtherance of the best interests of the child. To that end, we require the parent requesting the travel restriction to provide sufficient proof that a restriction is, in fact, in the best interests of the child.

Cole, 729 P.2d at 1280-81.

¶23 Applying our rationale in Cole to the case at bar, we conclude that Micheál failed in his burden to provide legally sufficient proof that the best interests of the parties’ children would be most appropriately served by effectively requiring Tammy to relocate to Helena from Salem or, failing to do so, that she would lose her status as the primary physical custodian of D.M.G. and T.J.G. for the next two years.

¶24 For the most part, the evidence pertaining to the children’s best interest was presented through the testimony of Micheal’s expert Dr. Levoti. As pointed out above, since she had not interviewed Tammy; since she had not evaluated either parent with the children; since.she had not evaluated the children’s home; and since she had not evaluated the children or their social and emotional development, her testimony was, necessarily, limited to a general discussion about the detrimental effects on some children who, by reason of separation or divorce, do not enjoy a good relationship and frequent, consistent contact with both parents. Dr. Levoti offered no testimony or opinion as to whether the children in this case, D.M.G. and T.J.G., have suffered or will likely suffer any of the detrimental effects to which she referred, nor did she have an opinion that Tammy was not acting in the children’s best interests when she moved to Salem.

¶25 As regards the parties’ testimony, neither Micheál nor Tammy disagreed with the general proposition that it would be a good thing for their children if they both lived in the same community so that the children could enjoy the sort of frequent, consistent contact with each parent that Dr. Levoti recommended as being ideal. Nevertheless, when it came to deciding which community that might be, each party tended to equate the children’s best interest with his or her own perfectly legitimate desire to maintain his or her present life, home, community and career. Understandably, neither Tammy nor Micheál wants to relocate and lose the life each has established and each parent believes the best interests of the children will be better served if the other party is required to bear the burden of moving.

¶26 In truth, on this record and aside from the generalities and probabilities expressed by Dr. Levoti and each parties’ own view of the children’s best interest, there is virtually no evidence that would lead one to the firm conclusion that the best interests of these children would be most appropriately served by their living in Helena as opposed to Salem or in Salem as opposed to Helena. Both parties are fit and concerned parents; both have budding careers; each has the ability to make or has made a home for the children; there is extended family in each community; Micheál visits the children to the extent he is able and remains involved in their lives; and Tammy has not interfered in his efforts. To assert on this evidentiary record that D.M.G. and T.J.G. have been or will be in some way harmed or that their best interests will not be served because their parents happen to live in distant cities with the result that they may not have the sort of frequent, consistent contact with their father that may be the ideal, is pure speculation, unsupported by any case-specific evaluation, testimony or evidence to that effect.

¶27 Assuming that neither Tammy nor Micheál is willing to relocate (and that appears to be the situation facing the trial court), the bottom line is that the children are going to have to live primarily either in Helena or in Salem with one parent or the other. In this case, all things being, for the most part, equal, the question then becomes, can the court effectively require Tammy to relocate to Helena? In this respect, the court has given Tammy a true Hobson’s choice — either she gives up her home, career, life and residence in Salem and moves where she has chosen not to live, Helena, or she forfeits, for the next two years, her status as the children’s primary residential custodian, and the children move to Helena, with the devastating impact attendant to their being removed from their mother. This, obviously, is not only a lose-lose situation for Tammy but also is an unacceptable alternative for the children as well.

¶28 Moreover, as mentioned above, § 40-6-231, MCA, allows the court to “restrain” a custodial parent’s change of residence upon a showing that removal would prejudice the rights or welfare of the child. Our prior cases have been decided in that context — i.e., the custodial parent’s desire to relocate the children’s existing home from Montana to another state. Arguably, an even more difficult and serious problem is presented here. Instead of preserving the stability of the home and community to which the children are accustomed by restraining their relocation from their home state to another state, the court order at issue here effectively requires the custodial parent to disrupt the stability and continuity of the children’s home in the state where they have lived for a substantial portion of their young lives and to instead relocate and start over again in Montana. Under these latter circumstances, and balanced against the children’s best interests, Tammy’s right to live and to make her home where she chooses is even more compelling than were she simply being restrained from starting a new life elsewhere.

¶29 While, as a general proposition, it may be preferable that separated or divorced parents both live in the same community and that their children have frequent and consistent contact with each parent, realistically that ideal cannot always be met. Our courts must deal with the facts that a substantial number of this country’s marriages end in divorce; that a substantial percentage of our children are born out of wedlock; that ours is a mobile society; and that many custodial parents must move to seek or maintain employment, to avoid abusive relationships or to simply start a new life free from the burdens and reminders of the past.

¶30 As Tammy argues on appeal, if the best interests of the child standard, without more, always trumps the primary custodian’s constitutional right to travel and to relocate in another state, then courts can effectively order that all primary custodial parents live in the same community as the child’s non-custodial parent until the child reaches the age of majority. In short, if the judicial decision to restrain the custodial parent from relocating or, as here, to effectively require the custodial parent to return to Montana, is based upon legitimate, case-specific reasons and evidence pertaining to the particular child — i.e., the sort of case-specific evidence and reasons that we referred to in Cole (which we held justified relocation) — then the state’s interference with the custodial parent’s fundamental right of interstate travel may be justified in furtherance of the best interests of the child. Cole, 729 P.2d at 1280-81. Absent that sort of case-specific proof, however, there is no compelling state interest justifying a court ordering the custodial parent to live in a state other than in the one he or she freely chooses.

¶31 As we pointed out in Cole, the custodial parent who bears the burdens and responsibilities of raising the child is entitled, to the greatest possible extent, to the same freedom to seek a better life for herself or himself and the children as enjoyed by the noncustodial parent. In the context of this case and under our decision in Cole, Tammy has a fundamental, though qualified, constitutional right, in the words of Shapiro, “to migrate, resettle, find a new job, and start a new life.” Shapiro, 394 U.S. at 629, 89 S.Ct. at 1328. Moreover, given that Tammy enjoys this fundamental constitutional right, Micheál bears a heavy burden to demonstrate a compelling interest on the part of the state (here, the court) to interfere with this right. Memorial Hospital, 415 U.S at 269, 94 S.Ct at 1088. While the children’s best interests are appropriately balanced against this fundamental constitutional right of interstate travel, Micheál was required to provide sufficient proof that the court’s effectively forcing Tammy to relocate to Helena was, in fact, in D.M.G.’s and T.J.G.’s best interests. After carefully reviewing the record in this case, we conclude that the general, non-case-specific proof presented at trial on the best interests issue, as discussed above, was legally insufficient to demonstrate the sort of compelling state interest required as justification for interfering with Tammy’s fundamental constitutional right of interstate travel. Micheál did not sustain the heavy burden of proof which the law imposed upon him.

¶32 Accordingly, we hold that the court abused its discretion in ordering that, for the next two years, Tammy must forfeit her status as the children’s primary custodian absent her relocating to Helena with the children.

II.

Did the District Court err by failing to apply the statutory presumption at § 40-4-212(3)(a), MCA?

¶33 Tammy argues that the trial court erred in failing to apply the statutory presumption at § 40-4-212(3)(a), MCA, in her favor under the facts of this case. Micheál counters that Tammy’s argument must fail because the court designated her the residential custodian; because the presumption was rebutted; and because the statute has been repealed. Though Tammy cited this statute in her legal memorandum supporting her proposed findings of fact and conclusions of law filed in the District Court, the court did not address this argument, nor did it refer to this statute in its decision. Again, we agree with Tammy.

¶34 Section 40-4-212(3)(a), MCA, enacted by the 1995 Legislature, provides:

The following are rebuttable presumptions and apply unless contrary to the best interest of the child:
(a) Custody should be granted to the parent who has provided most of the primary care during the child’s life.

We have cited this statute in two previous decisions.

¶35 In In re Marriage of Abrahamson (1996), 278 Mont. 336, 924 P.2d 1334, we affirmed the trial court’s decision to grant the father’s motion to modify the joint custody provisions of the dissolution decree which designated the mother as the primary residential custodian. The father’s motion was prompted by the mother’s change of residence to Utah. Abrahamson, 924 P.2d at 1335. (Neither § 40-6-231, MCA, nor the constitutional right of interstate travel was raised or mentioned in our opinion.) Our opinion discloses that the record consisted of substantial, though conflicting, case-specific evidence. On this record, we held that the court did not err in failing to adopt the custody recommendations made by the parties’ expert, Abrahamson, 924 P.2d at 1337; that the court did not misapprehend the effect of certain proffered, conflicting, evidence; and that the best interests of the parties’ child required modification of the custody decree by granting residential custody to the father, Abrahamson, 924 P.2d at 1338.

¶36 In response to the mother’s argument that the district court erred in failing to apply § 40-4-212(3)(a), MCA, we concluded that, while not mentioning this statute in its decision, the court did, in essence, apply it. We also concluded that the court determined that the presumption had been rebutted and that, at most, the court committed harmless error in not explicitly mentioning the statute. We interpreted and applied the statute in the following fashion:

[The mother’s] reliance on the District Court’s finding that both parents are fit to have custody is misplaced. Section 40-4-212(3)(a), MCA, does not require the District Court to find that one parent is unfit to have custody. Rather, it establishes a presumption in favor of the preexisting custodial parent, but only a rebuttable presumption. And as we recognized previously in this opinion, there was substantial evidence upon which the District Court based its decision to modify custody. The District Court found that [the child’s] best interest required a modification of custody and the designation of [the father] as the primary residential custodian. ...
Our decision today does not render § 40-4-212(3)(a), MCA, meaningless. District courts should be cognizant of § 40-4-212(3)(a), MCA, and should take appropriate steps to ensure that it is, in all applicable cases, adequately considered. We hold only that, based on substantial evidence in this.case, the statutory presumption was adequately rebutted, and the District Court’s failure to specifically mention § 40-4-212(3)(a), MCA, does not constitute reversible error.

Abrahamson, 924 P.2d at 1338-39.

¶37 In In re Marriage of Tade (1997), 282 Mont. 449, 938 P.2d 673, the parties’ dissolution decree provided for joint custody with the parties sharing residential custody of their child on alternate weeks for the one year following the divorce. The mother petitioned for modification to be the primary residential custodian on deciding to move from the parties’ home in Glasgow to attend MSU-Billings. Based upon the evidentiary record, the trial court awarded residential custody to the father during the school year and residential custody to the mother during the summer. We affirmed. Tade, 938 P.2d at 674. Citing our admonition in Abrahamson, the mother claimed that the court erred in failing to properly apply § 40-4-212(3)(a), MCA. We rejected her argument, however, concluding that, based upon the court’s findings (which were supported by substantial evidence in the record), the statutory presumption had been rebutted and that modification of the child’s residential custody was made in his best interests. Tade, 938 P.2d at 675-76.

¶38 Reading Abrahamson and Tade together, we conclude that Micheal’s arguments are not well taken and that, in the case at bar, the District Court erred in not considering and properly applying the statutory presumption at § 40-4-212(3)(a), MCA, in favor of Tammy. ¶39 While, here, the District Court did designate Tammy as the residential custodian, it conditioned this designation for the following two years on her relocating to Helena — i.e., her status as the primary residential custodian is forfeitable in favor of Micheál if she chooses not to move. Moreover, while this case involved an initial legal custody and residential custody determination by the court, the record reflects that from the twin’s birth until the present, Tammy provided most of the primary care to D.M.G. and T.J.G., especially following her move to Oregon. That is not to diminish the important and conscientious involvement of Micheál in parenting his boys while they lived in Helena. Nonetheless, based upon the evidentiary record here, it would be difficult not to conclude, if one is required to label the parties as either primary or secondary care-givers, that Tammy would fit the former designation. In fact, the District Court found that after the children were born Tammy stayed home and was the children’s primary care-giver. Her status as primary care-giver has never changed.

¶40 Furthermore, unlike Abrahamson and Tade, there was not substantial evidence in the record here to rebut the statutory presumption. As we pointed out in our discussion of Issue 1, the record in this case is lacking any case-specific, substantial evidence that the best interests of D.M.G. and T.J.G. will not be served by continuing to live with their mother in Salem or that their best interests would be served by relocating to Helena without Tammy. In both Abraham-son and Tade, we affirmed the trial court’s decision to modify residential custody based upon the evidentiary record. The sort of case-specific, substantial evidence that supported the district court’s decisions in those cases is simply not present in the case at bar.

¶41 Accordingly, we hold that the District Court erred in not applying the § 40-4-212(3)(a), MCA, rebuttable presumption in favor of Tammy, and that the court abused its discretion in not awarding her primary residential custody of D.M.G. and T.J.G.

III.

Did the District Court err by alternating custody every two years?

¶42 Both Tammy and Micheál argue on appeal that the trial court erred in ordering that the children’s primary physical custody be alternated every two years. At the outset, we note that Micheál did not request this sort of relief in his petition nor did either party approach this case before the trial court on the premise that custody should be shared on a biennial basis. More importantly, the record is void of any evidence that would support the District Court’s conclusion that this sort of custodial arrangement would be in D.M.G.’s and T.J.G.’s best interests. In fact, the evidence — at least in the general terms in which it was presented by Dr. Levoti — is to the contrary. We conclude that, on the record here, the court abused its discretion in requiring custody of the children to be alternated between Micheál and Tammy every two years.

Summary

¶43 On the record here, we hold that in the context of her fundamental constitutional right of interstate travel and in the absence of legally sufficient proof of a compelling interest (in the form of D.M.G.’s and T.J.G.’s best interests) for interfering with this right, the court abused its discretion in effectively requiring Tammy to relocate to Montana or, in the alternative, to forfeit for the next two years her status as the children’s primary residential custodian. Moreover, we hold that the District Court erred and abused its discretion in failing to award Tammy primary residential custody based on § 40-4-212(3)(a), MCA. Finally, there being no evidence in the record to support the trial court’s conclusion that the best interests of the children would be served by alternating custody between Tammy and Micheál every two years, we hold that the court abused its discretion in imposing this requirement on the parties.

¶44 Reversed and remanded for entry of a further custody order consistent with this opinion.

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

      . Section 40-6-231, MCA, was in effect and applicable at all times pertinent to our decision in this case, but was repealed by the 1997 Legislature. Sec. 39, Ch. 343, L. 1997. This same legislature enacted § 40-4-217, MCA, which sets out the current statutory law regarding parental changes of residence. Sec. 22, Ch. 343, L. 1997. Chapter 343 applies to proceedings begun after October 1,1997, including proceedings regarding modification of orders or decrees existing on October 1, 1997. Sec. 43, Ch. 343, L. 1997. Accordingly, we express no opinion on the application or effect of § 40-4-217, MCA, to the facts of the case at bar.

      . This subsection of § 40-4-212, MCA, was repealed by the 1997 Legislature effective October 1, 1997. See Secs. 15 and 43, Ch. 343, L. 1997. Since this subsection of the statute was applicable to the proceedings in the case at bar, however, we will apply it here.