author: JUSTICE TRIEWEILER

text:
    IN RE THE MARRIAGE OF BONNIE LOZON, Petitioner and Respondent, and LARRY LOZON, Respondent and Appellant.
    No. 92-112.
    Submitted on Briefs May 21, 1992.
    Decided December 18, 1992.
    49 St.Rep. 1135.
    256 Mont. 59.
    843 P.2d 793.

      For Respondent and Appellant: Elizabeth A. Best, Great Falls.
    For Petitioner and Respondent: John F. Iwen, Great Falls.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Larry Lozon appeals from a decree of dissolution of his marriage to Bonnie Lozon, entered in the Eighth Judicial District Court, Cascade County, which awarded Bonnie $200 per month for maintenance for two years, in addition to an award of costs and attorney fees.

Larry contends that there is not substantial evidence in the record to support the awards of maintenance, costs, and attorney fees. We affirm the District Court decision.

Larry raises the following issues on appeal:

1. Did the District Court err when it awarded maintenance to Bonnie Lozon?

2. Did the District Court err when it awarded costs and attorney fees to Bonnie Lozon?

Bonnie and Larry Lozon were married in Great Falls on September 30, 1972. The parties separated in August 1988 and have lived apart since that time. On June 20, 1990, Bonnie filed a petition for dissolution with the District Court.

The parties have two children. Prior to the date of dissolution, Jason, who is 17, moved to live with his father in Maryland. Danielle, who is nine, resides with her mother in Great Falls. At the time of the hearing, Bonnie was 38 years old and Larry was 39 years old.

Larry worked as a drug and alcohol counselor with the United States Army throughout the parties’ 19-year marriage. In late 1990 and 1991, Larry earned approximately $2400 per month after taxes as a counselor, and an additional $600 per month from his part-time work at a bowling alley in Maryland. Larry’s yearly earnings from 1987-1990 averaged between $25,000 and $30,000.

In a deposition taken in August 1991, Larry stated that he was retiring from his military job in September 1991. He anticipated finding new employment as a drug and alcohol counselor in private industry or with the government and expected that his annual salary would be approximately $16,000. Larry is entitled to receive $998 per month as his military retirement pension. He estimated that his one-half share of his pension, coupled with a $16,000 salary, would provide him with a yearly income of $22,223. In addition, Larry will receive free medical care from the military for the rest of his life.

Bonnie has a tenth grade education. During the 19 years of marriage, she worked primarily as a homemaker, raising the children. She has held a few jobs outside the home. In 1974, Bonnie worked in Alaska as a dish washer. In 1979, she worked in Miesau, Germany, bussing tables and washing dishes. Between February and December 1987, and on and off in 1988, she worked in Furth, Germany, in the Commissary as a store worker. Due to a back injury, Bonnie has not done any stocking of shelves or lifting since December 1987. She is currently taking medication for both back pain and asthma. Bonnie has been unemployed since August 1988. She unsuccessfully applied for employment in 1991, but did not seek employment during the year before the trial.

Since the parties’ separation in August 1988, Bonnie’s only source of income has been child support. Immediately prior to the dissolution, she received voluntary monthly child support payments of $225. She supplemented this income with food stamps worth $200 per month.

As a property settlement, the parties agreed, in view of the length of their marriage, to equally divide Larry’s monthly retirement pension of $998. As of the date of the dissolution, Bonnie shall receive $499 per month as her one-half share. The parties mutually divided the personal property accumulated by them during their marriage. Bonnie retained the furniture. Larry received the 1976 Ford truck. The parties did not own any real property.

The District Court granted joint legal custody of the minor children and the parties agreed that it would be in the best interest of the children for primary care, custody, and control of Danielle to be placed with Bonnie, and for primary care, custody, and control of Jason to be placed with Larry. The court ordered Larry to pay Bonnie $215 per month as child support for Danielle. Additionally, the court awarded Bonnie $200 per month for maintenance for a period of two years. The District Court explained its award of maintenance in Finding of Fact No. 8:

Petitioner lacks sufficient property to provide for her reasonable needs and is unable to support herself through appropriate employment.
When the divorce is final, Petitioner will receive $499.00 per month as her share of Respondent’s retirement pension with the military. This sum of money is not sufficient to meet Petitioner’s monthly expenses. Petitioner is further entitled to spousal maintenance from Respondent based upon the duration of the marriage and the financial resources available to the Respondent. The spousal maintenance will be in the sum of [$200] per month for a period of two years from the date of this Decree to enable Petitioner to get retraining to become self-sufficient and perhaps obtain employment which would provide her with health and accident insurance.

In addition to ordering child support and maintenance, the District Court awarded Bonnie costs and attorney fees. Larry appeals the District Court’s award of maintenance, costs and attorney fees. He alleges that there is not sufficient evidence to support either award.

I

Did the District Court err when it awarded maintenance to Bonnie Lozon?

This Court will not reverse the district court’s award of maintenance unless the findings are clearly erroneous. In re the Marriage of Eschenbacher (Mont. 1992), 831 P.2d 1353, 1355, 49 St. Rep. 393, 394; In re the Marriage of Eide (1991), 250 Mont. 490, 493, 821 P.2d 1036, 1037. An award of maintenance is governed by Section 40-4-203, MCA. In re the Marriage of Dunn (1991), 248 Mont. 95, 98, 809 P.2d 571, 573; In re the Marriage of Sullivan (1990), 243 Mont. 292, 298, 794 P.2d 687, 690. As we stated in Dunn:

An award of maintenance is premised upon a finding by the court that the individual seeking maintenance ‘lacks sufficient property to provide for his reasonable needs; and is unable to support himself through appropriate employment.’ Section 40-4-203(l)(a) and (b), MCA.

Dunn, 809 P.2d at 573.

In the present case, Lariy asserts that the financial resources available to Bonnie are not inadequate to provide for her needs. Larry also contends that Bonnie is unemployed by choice. However, the District Court found to the contrary. We conclude that the court’s findings are not clearly erroneous.

Substantial evidence exists to support the court’s finding that Bonnie does not have sufficient income to pay her monthly expenses. Bonnie has $499 per month available to her from Larry’s pension. Adding this to the amount she was receiving for child support, her monthly income equals $724. Her monthly expenses are $885.20.

There was also substantial evidence to support the court’s finding that Bonnie is unable to support herself through appropriate employment. The records indicate that Bonnie has been a homemaker for 19 years. She has a tenth grade education and a limited work history. She has held primarily minimum wage jobs. Because of a back injury she has not done any stocking of shelves or lifting since December 1987. Furthermore, she has health problems which, while unsupported by medical testimony, are uncontroverted by any substantial evidence.

The District Court’s findings regarding Bonnie’s eligibility for maintenance were not clearly erroneous. There was sufficient evidence to support the District Court’s finding that the requirements of Section 40-4-203(1), MCA, were satisfied.

After determining maintenance eligibility, the District Court must determine the appropriate amount and duration of maintenance. Section 40-4-203(2), MCA, sets forth specific factors for the court to consider:

(a) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
(b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(c) the standard of living established during the marriage;
(d) the duration of the marriage;
(e) the age and the physical and emotional condition of the spouse seeking maintenance; and
(f) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.

As we stated in Dunn, “[a] specific finding by the District Court as to each of these relevant facts is not required as long as the court considered proper information in addressing these facts and based its decision upon substantial credible evidence.”Dunn, 809 P.2d at 573; Sullivan, 794 P.2d at 691. Moreover, “these relevant facts are to be considered by the comb as a whole in the determination of the final maintenance awardDunn, 809 P.2d at 573; Sullivan, 794 P.2d at 691.

Substantial credible evidence exists to support the District Court’s monthly maintenance award of $200 to Bonnie. The court based its decision on the 19 year duration of the marriage, Bonnie’s inability to meet her monthly expenses independently without further employment training, and Larry’s ability to make the maintenance payments as a drug and alcohol counselor.

Larry testified that his monthly expenses were approximately $1260, plus what he spends on recreation. The court determined that given Larry’s ability to earn $22,223 per year, he could afford to pay Bonnie maintenance of $200 per month. The court decided that maintenance for a duration of two years would enable Bonnie to obtain the retraining and further education she needs to secure employment and to become self-sufficient.

In awarding maintenance to Bonnie, the District Court considered the couple’s work history, skills, and employment capabilities. The court’s award of maintenance to Bonnie is supported by substantial credible evidence.

II

Did the District Court err when it awarded costs and attorney fees to Bonnie Lozon?

Larry claims that the District Court erred when it granted Bonnie her costs and attorney fees. Awarding of attorney fees is governed by Section 40-4-110, MCA, which states:

The court from time to time, after considering the financial resources of both parties, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under chapters 1 and 4 of this title and for attorney’s fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after the entry of judgment.

The awarding of attorney fees is clearly permissive under this statute. Sullivan 794 P.2d at 691; In re the Marriage of Smith (1990), 242 Mont. 495, 503, 791 P.2d 1373, 1378. The appropriate standard for reviewing a district court decision awarding costs and attorney fees under Section 40-4-110, MCA, is whether the court abused its discretion when it awarded such fees and costs. In re the Marriage of Manus (1987), 225 Mont. 457, 465, 733 P.2d 1275, 1279; In re the Marriage of Johnston (1986), 223 Mont. 383, 388, 726 P.2d 322, 326. To insure that there is no abuse of discretion when fees and costs are awarded, Section 40-4-110, MCA, requires the court to consider the relative financial resources of the parties before making its decision. Sullivan, 794 P.2d at 692.

In its Conclusion No. 8, the District Court states that:

Petitioner has incurred attorney’s fees and Court costs to prosecute her action, none of which have been paid; based upon the financial disparity between the parties’ income producing abilities, the necessity shown by the Petitioner, the entire economic and financial facts and circumstances herein set out, the Court concludes that Petitioner does not and will not have the capability to pay her attorney’s fees and costs. The Respondent should pay the same.

The record reveals that the District Court was aware of the financial resources and financial burdens of both Bonnie and Larry as required by Section 40-4-110, MCA, and that the court made an informed, proper decision to award Bonnie attorney fees. The District Court’s decision in this case was not a simple or easy one. Based on the combined resources of the parties, which are evident from the record, it was obviously difficult to apportion them in a way that comfortably supports two households and still leaves enough to pay for the cost of litigation. However, we conclude that the District Court’s award of costs and attorney fees was not an abuse of discretion and the District Court’s award of maintenance was not clearly erroneous.

We affirm the District Court.

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


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff, vs. MICHAEL C. DAWSON, Defendant.
    NO. 8888
    DECISION
    DATED this 25th day of September, 1992.
   On October 1,1990, the Defendant was sentenced to ten (10) years plus conditions for Theft. This sentence is to be served consecutively to Cause #9364.

On September 25,1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was represented by Robert Deschamps.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentence which was imposed by Judge Douglas Harkin. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges.

The Sentence Review Board wishes to thank Michael Dawson for appearing pro se, and would also like to thank Robert Deschamps, County Attorney from Missoula for representing the State of Montana.


text:
    STATE OF MONTANA, Plaintiff, vs. KENNETH JOSEPH FEES, Defendant.
    NO. 9527
    DECISION
    DATED this 25th day of September, 1992.
   On February 14, 1991, the Defendant was sentenced to Count I, ten (10) years for Theft; Count II, ten (10) years with five (5) years suspended plus conditions, for Burglary; the sentences shall run consecutive with each other and credit is given for 63 days time served.

On September 25,1992, the Defendant’s application for review ofthat sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentence which was imposed by Judge Jack Green. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. The defendant acknowledged that he understood this and stated that he wished to proceed.

The defendant asked for his sentence to be reduced by five years so he would only have to serve a fifteen (15) year sentence instead of a twenty (20) year sentence. After careful review of the sentence imposed by Judge Green, Judge McLean informed the defendant that with the last five (5) years suspended on Count II, he is serving a fifteen (15) year sentence.

The defendant then asked that the proceedings be stopped and he no longer wanted his sentence reviewed. He also requested that the Sentence Review Board inform the records department at the Montana State Prison that he is serving a fifteen (15) year term and not a twenty (20) year term.

IT IS HEREBY ORDERED THAT the application for Sentence Review is hereby dismissed. A copy of the Judgment rendered by the Hon. Jack Green, February 28, 1991, will be forwarded to the records department at the Montana State Prison along with a letter of explanation.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges.


text:
    STATE OF MONTANA, Plaintiff, vs. TIMOTHY LEON MORRIS, Defendant.
    NO. 7089
    DECISION
   On December 24, 1990, the Defendant was sentenced to five (5) years for the revocation of Criminal Possession of Dangerous Drugs; to be served consecutively to the term imposed on federal charges; credit is given for 31 days time served.

DATED this 25th day of September, 1992.

On September 25,1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Dirk Beccari, Public Defender from Missoula. The state was represented by Robert Deschamps, County Attorney from Missoula.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges.

The Sentence Review Board wishes to thank Dirk Beccari, Public Defender from Missoula for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. ANTHONY DION HEANEY, Defendant.
    NO. 9358
    DECISION
   On May 22, 1991, the Defendant was sentenced to forty (40) years for Sexual Intercourse without Consent. It is recommended that the defendant shall complete the sexual offender treatment program and the anger management program before being eligible for parole; dangerous offender designation; credit for 186 days time served.

On September 25,1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was represented by Robert Deschamps, County Attorney from Missoula.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentence which was imposed by Judge Ed McLean. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would he rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision.

The defendant stated that he would like to have his sentence dismissed with the option to refile for sentence review at a later date.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the petition for sentence review shall be dismissed at this time. The defendant will he given ninety (90) days in which to refile for sentence review. If the application goes beyond ninety (90) days, the defendant will have to Petition for Sentence Review and submit reasons why the application was not filed within ninety (90) days.

DATED this 25th day of September, 1992.

The reason for the decision is to allow defendant the necessary time in which to seek appropriate counsel.

A copy of this Order shall be sent to Susan Furth, Student at the Montana Defender Project.

Hon. Thomas Honzel, Acting Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges.


text:
    STATE OF MONTANA, Plaintiff, vs. RONALD EUGENE KNAPP, Defendant.
    NO. 9210
    DECISION
    DATED this 25th day of September, 1992.
   On December 5, 1990, the Defendant was sentenced to Count I, twenty (20) years for Sexual Intercourse Without Consent; Count II, twenty (20) years, for Sexual Assault; the sentences shall run concurrent with each other and five (5) years of each sentence is suspended upon terms and conditions; the defendant shall not be eligible for parole until he completes the sexual offender program; and he shall be designated as a dangerous offender. Credit is given for 235 days time served.

On September 25,1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was represented by Robert Deschamps, County Attorney from Missoula.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentence which was imposed by Judge Ed McLean. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Corut.

Hon. Thomas Honzel, Acting Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges.

The Sentence Review Board wishes to thank Ronald Knapp for appearing pro se and also wishes thank Robert Deschamps for representing the State of Montana.


text:
    STATE OF MONTANA, Plaintiff, vs. JAMES THEODORE WARREN, Defendant.
    NO. C-580
    DECISION
    DATED this 25th day of September, 1992.
   On November 1, 1990, the Defendant was sentenced to Count I, twenty (20) years for Burglary; Count II, twenty (20) years for Burglary; Count III, twenty (20) years for Burglary; all to be served consecutively to each other and consecutive to the offense for which the defendant is currently on parole. Defendant is given 301 days credit for time served in custody on these charges. Plus the defendant shall receive an additional sixty (60) years for being adjudicated as a Persistent Felony Offender. This sentence is to run concurrently with the sixty (60) years imposed above. Defendant is designated as a Dangerous Offender and ineligible for parole consideration.

On September 25,1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was represented by Robert L. Deschamps, County Attorney from Missoula.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentence which was imposed by Judge Ed McLean. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, there is a split decision by the Sentence Review Board. Judges Baugh and Honzel vote to amend the sentence given by Judge McLean.

IT IS HEREBY ORDERED that the sentence shall remain the same as originally imposed by Judge McLean with one amendment, Count I, twenty (20) years for Burglary; Count II, twenty (20) years for Burglary; Count III, twenty (20) years for Burglary; all to be served consecutively to each other and consecutive to the offense for which the defendant is currently on parole. Defendant is given 301 days credit for time served in custody on these charges. Plus the defendant shall receive an additional sixty (60) years for being adjudicated as a Persistent Felony Offender. This sentence is to run concurrently with the sixty (60) years imposed above. The defendant shall be designated a dangerous offender, however, the provision which makes James Warren ineligible for parole shall be dropped.

The reason for the decision is the defendant’s criminal history justifies the length of the sentence and the dangerous designation, however, his crimes were nonviolent and were property crimes as well as a violation of his probation.

Hon. Thomas Honzel, Chairman and Hon. G. Todd Baugh, Judges.

THE HONORABLE THOMAS McKITTRICK DISSENTS:

Judge McKittriek voted to affirm the sentence as imposed by Judge McLean in its entirety. Rule 17 of the Sentence Review Division of the Montana Supreme Court provides:

“The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.”

The record clearly shows that James Warren is a career criminal. Judge McKittrick finds that reasons advanced for modification are insufficient to be deemed inadequate or excessive. Furthermore, there was no showing that the sentence was contrary to the recommendation of the pre-sentence report.

The Sentence Review Board wishes to thank James Warren for appearing pro se and also thanks Robert Deschamps for appearing on behalf of the State of Montana.


text:
    STATE OF MONTANA, Plaintiff, vs. MARTIN WAYNE VAREBURG, Defendant.
    NO. 9181
    DECISION
    DATED this 25th day of September, 1992.
   On September 19,1990, the Defendant was sentenced to Count I, twenty (20) years for Sexual Intercourse Without Consent with ten (10) years suspended; Count II, ten (10) years for Assault all suspended; the terms shall run consecutive to each other plus conditions; the defendant shall not be eligible for parole until he completes the sexual offender treatment program; credit is given for 191 days time served and he is designated a dangerous offender.

On September 25,1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentence which was imposed by Judge Ed McLean. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed. The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas Honzel, Acting Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges.

The Sentence Review Board wishes to thank Martin Vareburg for appearing pro se.


text:
    STATE OF MONTANA, Plaintiff, vs. ALBERT FRANCIS CHARLO, Defendant.
    NO. 7194
    DECISION
    DATED this 22nd day of October, 1992.
   On April 7,1986, the Defendant was sentenced to twenty (20) years for Aggravated Assault plus ten (10) years for the use of a dangerous weapon; the sentences shall be served consecutively; $20 surcharge; 185 days credit for time served; Dangerous Designation.

On October 22, 1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentence which was imposed by Judge Harkin. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative, to increase the sentence, the proceedings will be stayed, and an attorney would be appointed. The proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. The defendant acknowledged that he understood this and stated that he did not want to proceed, but wanted his case dismissed.

The petition is dismissed without prejudice at this time. Upon showing of good cause, the petitioner can reapply for Sentence Review at a later date.

Hon. Thomas M. McKittrick, Acting Chairman, Hon. Robert Boyd and Hon. G. Todd Baugh, Judges.


text:
    STATE OF MONTANA, Plaintiff, vs. MICHAEL JAMES KOONTZ, Defendant.
    NO. CDC-90-185
    DECISION
   On January 15, 1991, the Defendant was sentenced to Count I, Accountability to Robbery, thirty (30) years; Count III, Theft, six (6) months in the Lewis and Clark County Jail; Count IV, six (6) months in the Lewis and Clark County Jail; all sentences shall be served concurrently with each other and concurrently with the sentence imposed in Cause No. 5211. The defendant shall not be eligible for parole unless he has satisfactorily completed the Addictive Diseases Program offered at Montana State Prison. The defendant shall receive credit for 188 days time served; plus conditions.

On October 23, 1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

DATED this 23rd day of October, 1992.

The Defendant was present and was represented by Patricia Day-Moore, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended by suspending ten (10) years from the thirty (30) year sentence imposed for Count I, Burglary. All other portions of the sentence shall remain the same as originally imposed.

The reasons for the amended decision are:

(1) uniformity in sentencing; and

(2) to bring the defendant’s sentence more in compliance with the sentence received by the co-defendant.

Hon. Thomas M. McKittrick, Acting Chairman, Hon. Robert Boyd and Hon. G. Todd Baugh, Judges.

The Sentence Review Board wishes to thank Patricia Day-Moore, Legal Intern from the Montana Defender Project for her assistance to the defendant and to this Court.


author: JUSTICE GRAY

text:
    MISSOURI-STONE CO., a Montana corporation, Plaintiff and Respondent, v. BARBER SEED SERVICE, INC., a Montana corporation, Defendant and Appellant.
    No. 92-144.
    Submitted on Briefs July 23, 1992.
    Decided December 18, 1992.
    49 St.Rep. 1139.
    256 Mont. 66.
    844 P.2d 112.
    For Defendant and Appellant: James A. Hubble, Christensen & Hubble, Stanford.
    For Plaintiff and Respondent: Katherine M. Irigoin, Habedank, Cumming, Best & Savage, Sidney.
   JUSTICE GRAY

delivered the Opinion of the Court.

Barber Seed Service, Inc. appeals from an order of the Seventh Judicial District, Richland County, denying its motion for change of venue. We affirm.

The only issue on appeal is whether the District Court erred in denying a motion for change of venue.

Appellant Barber Seed Service, Inc. (Barber) is a Montana corporation engaged in the business of buying and selling farm products; its principal place of business is in Fergus County, Montana. Respondent Missouri-Stone Co. (Missouri-Stone) is a Montana corporation engaged in the farming business, with its principal place of business in Richland County, Montana. The parties entered into a contract in March of 1991. Under the contract, Barber was to furnish squash seeds to Missouri-Stone. Missouri-Stone was to plant, grow, harvest, collect, pack and store the squash until called for delivery by Barber; it was then to deliver the squash to Barber. The contract price was 8Mi cents per pound of squash. No place of delivery was specified. Missouri-Stone ultimately delivered squash to Barber’s packing and grading plant in Billings, Montana.

Missouri-Stone brought an action in the Seventh Judicial District Court, Richland County, alleging that Barber had failed to pay it in accordance with the parties’ contract. Barber filed a motion for change of venue to Fergus County, its principal place of business. The District Court denied the motion in orders dated January 22, 1992, and February 20, 1992, and this appeal followed.

Did the District Court err in denying Barber’s motion for change of venue?

The District Court noted that the contract did not specify the place of performance and determined that the contract contained “an element of personal service” whereby Missouri-Stone undertook specifically to grow, harvest and store the crop. The court considered all of the obligations of the parties, determined under Section 25-2-121(l)(b)(ii), MCA, that the principal activity of the contract occurred in Richland County and concluded that venue was proper in that county.

Montana’s venue statute for contract actions is Section 25-2-121, MCA. It provides generally that venue for contract actions is proper in either the county in which the defendant resides or the county in which the contract is to be performed. Section 25-2-121(1), MCA. Where no county is named as the place of performance of the contract, venue is proper in “the county in which, by necessary implication from the terms of the contract, considering all of the obligations of all parties at the time of its execution, the principal activity was to take place.” Section 25-2-121(l)(b)(ii), MCA. Subsections (a) through (d) of Section 25-2-121(2), MCA, provide statutory venue determinations for certain contracts which do not specify a place of performance.

Barber contends that Fergus County and Yellowstone County are the only proper venues for this action. Fergus County is the county in which Barber resides under Section 25-2-121(l)(a), MCA. Barber argues that the contract at issue is one for the sale of goods pursuant to Section 25-2-121(2)(a), MCA, and, therefore, that the proper venue under Section 25-2-121(l)(b), MCA, is Yellowstone County — the county where possession of the goods was delivered. Thus, according to Barber, since the action was filed in an “improper” county, the court erred under Section 25-2-201(1), MCA, in denying the motion for change of venue to Fergus County. We disagree.

Resolution of this dispute rests on a straightforward reading and application of Montana’s contract venue statute. It is clear that, at the option of a plaintiff in a contract action, venue is proper in either the county in which the defendant resides or the county in which the contract is to be performed. Section 25-2-121(1), MCA. Therefore, it is clear that a proper venue for this action is Fergus County. The dispute before us centers on the place of performance. The parties agree that the contract does not specify a place of performance and, as a result, that place must be determined in accordance with Section 25-2-121, MCA. The only question is whether Section 25-2-121(2)(a), MCA, controls the determination, as appellant asserts.

If the contract belongs to one of the classes set forth in subsections (2)(a) through (d) of Section 25-2-121, MCA, proper venue is determined by the statute itself. If, however, the contract does not fall into one of those classes, it is “subject to analysis under subsection (l)(b)(ii) [of Section 25-2-121, MCA] to establish venue.” Mont. Code Ann. Section 25-2-121, Evidence Commission Recommendations for Revisions Annot. (1991), p. 27.

It is true, as appellant asserts, that a sale of harvested squash by Missouri-Stone to Barber is an element of the contract. It is also true, as the District Court determined, that the contract involves services. These two elements of the contract coincide with subsections (2)(a) and (2)(b) of Section 25-2-121, MCA. Thus, the contract does not fall into only one of the classes of contracts set forth in Section 25-2-121(2), MCA, and the venue determination must be made pursuant to Section 25-2-121(l)(b)(ii), MCA.

It is clear that most of the contract is to be performed in Richland County. That is where the squash seeds provided by Barber are planted, grown, harvested, stored and prepared for delivery by Missouri-Stone. The place of delivery is not specified in the contract but took place in Yellowstone County.

Schutz Foss Architects v. Campbell (1990), 243 Mont. 194, 793 P.2d 821, involved a contract for architectural services for the construction of a medical clinic. The architectural firm was located in Yellowstone County. The building was to be constructed in Broadwater County and the contract required the architect to visit the site during construction. As in the case before us, the contract did not specify a place of performance; the defendant urged that the contract was a construction contract under subsection (d) of Section 25-2-121(2), MCA, and, therefore, that venue was where the construction was to occur. We determined that the contract was one for services to be performed principally at the offices of the architectural firm in Yellowstone County and concluded that the district court did not abuse its discretion in denying the motion for change of venue.

We reach a similar result here. The contract between Missouri-Stone and Barber does include a sale of goods; it is also, and primarily, a contract for services. Thus, Section 25-2-121(2), MCA, is not applicable. The District Court did not err in concluding under Section 25-2-121(l)(b)(ii), MCA, that the principal activity of the contract — the planting, growing, harvesting and storing of the squash — occurred in Richland County and, therefore, that Richland County is a proper venue for the contract action.

Affirmed.

JUSTICES HARRISON, McDONOUGH, TRIEWEILER and WEBER concur.


text:
    STATE OF MONTANA, Plaintiff, vs. BENNIE LEE WISE, Defendant.
    NO. BDC-90-191
    DECISION
   On July 23, 1991, the Defendant was sentenced to Count I, Burglary, twenty (20) years; Count II, Burglary, twenty (20) years; Count III, Burglary, twenty (20) years; the sentences shall run consecutively to each other and concurrently with the sentence imposed in Cause No. 1311, in Jefferson County; Dangerous Offender Designation.

On October 23, 1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Michelle Maltese, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

DATED this 23rd day of October, 1992.

Hon. Thomas M. McKittrick, Acting Chairman, Hon. Robert Boyd and Hon. Mark P. Sullivan, Judges.

The Sentence Review Board wishes to thank Michelle Maltese, Legal Intern from the Montana Defender Project for her assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. BENNIE LEE WISE, Defendant.
    NO. 1311
    DECISION
    DATED this 23rd day of October, 1992.
   On July 17, 1991, the Defendant was sentenced to Aggravated Kidnapping, 100 years; Felony Assault, twenty (20) years; five counts of Burglary, an aggregate term of 100 years; three counts of Theft, an aggregate term of thirty (30) years; each of the herein imposed sentences aggregating 250 years, shall run consecutive; for the Defendant’s use of a dangerous weapon in the commission of felony assault, his sentence of twenty (20) years is enhanced for an additional twenty (20) years to run consecutive; Dangerous Designation for purposes of probation and parole eligibility; the Defendant under no circumstances is to be eligible therefor until he has served thirty (30) years of the aggregate sentence of 280 years, and then only if he has successfully completed the prison’s sexual offender program.

On October 23, 1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Michelle Maltese, Legal Intern from the Montana Defender Project. The state was represented by Richard Llewellyn. Mr. Kelly Patser, the victim’s husband, also appeared.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, hut also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall he affirmed except for Sentencing paragraph II, on page three of the sentencing order, and that is with the agreement of the State of Montana, that the sentence for Felony Assault, the Defendant is sentenced to a term of ten (10) years, as provided by statute. The remaining portion of the sentence shall be affirmed in all other respects.

The reason for the amended decision is to comply with § 45-5-202(2) MCA.

Hon. Thomas M. McKittrick, Acting Chairman, Hon. Robert Boyd and Hon. Mark P. Sullivan, Judges.

The Sentence Review Board wishes to thank Michelle Maltese, Legal Intern from the Montana Defender Project for her assistance to the defendant and to this Court and the Board also wishes to thank Mr. Llewellyn for appearing on behalf of the State of Montana.


author: JUDGE MARK SULLIVAN DISSENTS:

text:
    STATE OF MONTANA, Plaintiff, vs. MARK BLAINE McGUIRE, Defendant.
    NO. 1240B
    DECISION
    DATED this 23rd day of October, 1992.
   On May 2, 1991, the Defendant was sentenced to twenty (20) years for Burglary and Theft.

On October 23, 1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Colleen Collier, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, there is a split decision of the Sentence Review Board. Judges Boyd and McKittrick vote to affirm the sentence as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas M. McKittrick, Acting Chairman, Hon. Robert J. Boyd, Judges.

JUDGE MARK SULLIVAN DISSENTS:

He would vote to reduce the sentence to conform with Judge Sherlock’s sentencing in the other companion type cases; the defendant had no prior felony criminal history; and the youthfulness of the defendant.

The Sentence Review Board wishes to thank Colleen Collier, Legal Intern from the Montana Defender Project for her assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. ARTHUR ROY RAY, Sr., Defendant.
    NO. 1104
    DECISION
   On January 11, 1990, the Defendant was sentenced to Count I, Sexual Assault, twenty (20) years; Count VI, Sexual Intercourse without Consent, twenty (20) years; both sentences are to be served concurrently; defendant must complete the sexual offenders program in Montana State Prison or an approved private sexual offenders program after completing his prison term as a further condition of his sentence.

On October 23, 1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

DATED this 23rd day of October, 1992.

The Defendant was present and was represented by Steven Cameron, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas M. McKittrick, Acting Chairman, Hon. Robert Boyd and Hon. Mark P. Sullivan, Acting Member, Judges.

The Sentence Review Board wishes to thank Steven Cameron, Legal Intern from the Montana Defender Project for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. CLIFFORD DEE BECKER, Defendant.
    NO. DC-89-90
    DECISION
   On July 16, 1990, the Defendant was sentenced to five (5) years for the offense of Felony Assault; the sentence is to be served consecutive to the term currently being served; the Court recommends that the defendant be transferred to the Washington State Penitentiary in Walla Walla, Washington.

On October 23,1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by William A. Hritsco, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

Upon reviewing the information in this case, Judge Boyd recused himself from this matter as he was the sentencing judge in a prior matter in Powell County. The Defendant was then given a choice to proceed with two judges or have the matter continued until a three member Board could be empaneled. The Defendant gave his consent to proceed with a two-member board.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

DATED this 23rd day of October, 1992.

The Defendant may apply for arehearingbefore athree-memberboardif he so chooses.

Hon. Thomas M. McKittrick, Acting Chairman, Hon. Mark P. Sullivan, Acting Member, Judges.

The Sentence Review Board wishes to thank William Hritsco, Legal Intern from the Montana Defender Project for his assistance to the defendant and to this Court.


text:
    IN THE MATTER OF H.D., a Youth in Need of Care.
    No. 91-598.
    Submitted on Briefs July 2, 1992.
    Decided December 22, 1992.
    49 St.Rep. 1141.
    256 Mont. 70.
    844 P.2d 114.

      For Appellant: Gary L. Spaeth, Spaeth Law Firm, Red Lodge.
    For Respondent: Marc Racicot, Attorney General, Micheál S. Wellenstein, Assistant Attorney General, Helena; and AW. “Tony” Kendall, Carbon County Attorney, Red Lodge.
    Guardian Ad Litem: Damon L. Gannett, Gannett & Ventrell, Billings.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

This is an appeal from the judgment of the District Court of the Thirteenth Judicial District, Carbon County, declaring H.D. a youth in need of care and granting temporary custody to the Department of Family Services for a period of one year. H.D.’s father appeals. We affirm.

Appellant raises the following issues:

1. Did the District Court abuse its discretion when it declared H.D. a youth in need of care and ordered temporary care, custody, and control of H.D. be awarded to the Department of Family Services of the State of Montana for a period of one year?

2. Did the District Court err when it retained jurisdiction throughout the custody hearings?

3. Did the District Court err when it denied the motion by H.D.’s father to compel discovery responses from the State?

H.D. was bom on May 31,1985. H.D.’s natural mother and father were divorced three years later and the court awarded the father custody of both H.D. and her brother, N.D. H.D.’s father has been her primary caretaker since 1988.

In early June 1990, H.D.’s father moved with his two children and his fiance, O.D., from California to Red Lodge, Montana. Shortly thereafter, the father and O.D. were married.

The Montana Department of Family Service’s (DFS) first contact with H.D.’s family arose during a custody dispute in 1988 between H.D.’s father and her natural mother, L.D. L.D. alleged that the father sexually abused H.D. Similar allegations were also made by O.D. in 1990 during a divorce proceeding between O.D. and H.D.’s father.

H.D. has been in the physical custody of the DFS since November 24, 1990. On December 10, 1990, the DFS filed a petition for ternporary investigative authority of H.D. and her brother, N.D. The District Court granted the DFS’s petition relative to H.D., however, denied the request as it pertained to N.D.

A guardian ad litem was appointed for H.D. On February 22,1991, the DFS petitioned for temporary legal custody of H.D. As of the date of the petition, H.D. was a resident of Carbon County, Montana. Hearings on the DFS’s petition were held on March 13, 1991, April 15 and 16, 1991, and May 15, 1991. At the time of the temporary custody hearings in 1991, H.D. was five years old.

Four professionals, including a physician, two clinical psychologists, and a licensed social worker, testified at the temporary custody hearings. All four were qualified to testify as experts in the areas of child abuse and child sexual abuse. All four of them concluded that H.D. was a victim of sexual abuse.

The two psychologists expressed the opinion that H.D. was seriously damaged emotionally. They testified that H.D. was in need of mental health intervention and recommended that she undergo professional, individual therapy. The other experts agreed therapy was necessary. The experts also concurred that H.D.’s father should undergo therapy.

In addition to hearing from the expert witnesses, the District Court listened to other witnesses familiar with H.D.’s situation. The court viewed a video deposition of H.D., considered 21 nude photographs of H.D. taken by her father and natural mother, and listened to evidence that H.D.’s father had physically abused O.D. in the presence of his children.

After considering the testimony and evidence, the District Court entered its Findings of Fact and Conclusions of Law and Order. In its order dated July 16, 1991, the court concluded that H.D. “is abused and neglected and is therefore a Youth in Need of Care within the meaning and definitions of Sections 41-3-102(2) and (11) M.C.A.” Finding that H.D.’s health is harmed or threatened by acts or omissions of her father, the court ordered that H.D. be removed from her father’s care and placed in the custody of the DFS for a period of one year. The father appeals from this judgment.

I

Did the District Court abuse its discretion when it declared H.D. a youth in need of care and ordered temporary care, custody, and control of H.D. be awarded to the Department of Family Services of the State of Montana for a period of one year?

Before modifying the rights of a parent and awarding temporary custody of a child to the DFS, the district court must adjudicate the child to be a “youth in need of care.” Section 41-3-406(1), MCA. Section 41-3-102(11), MCA, defines “youth in need of care” to be a child who is dependent, abused, or neglected. According to Section 41-3-102(2), MCA, an abused or neglected child means:

[A] child whose normal physical or mental health or welfare is harmed or threatened with harm by the acts or omissions of his parents or other person responsible for his welfare. [Emphasis added.]

Section 41-3-102(3), MCA, provides that “harm to a child’s health or welfare” includes the harm that occurs whenever the parent commits sexual abuse or allows such abuse to be committed against the child.

When we consider a trial court’s award of temporary custody pursuant to Section 41-3-406, MCA, the ruling of the court is presumed correct. It will not be reversed by this Court unless there is (1) a mistake of law, or (2) a lack of substantial credible evidence to support the findings amounting to an abuse of discretion. Matter of T.A. (1991), 249 Mont. 186, 190, 814 P.2d 994, 997; Matter of S.P. (1990), 241 Mont. 190, 194, 786 P.2d 642, 644.

The father contends the District Court clearly abused its discretion by finding H.D. a youth in need of care. Specifically, the father argues that no direct evidence exists to prove he sexually abused his daughter.

First of all, we note that it was not necessary that the DFS prove H.D. had been sexually abused by her father. It was sufficient to show that H.D.’s mental health or welfare was harmed by her father’s acts or his “omissions.” There was substantial evidence from four different experts revealing that H.D.’s mental health had been damaged while her father was responsible for her. Second, there was also evidence that H.D. was sexually abused by her father. However, that finding was not a prerequisite to a conclusion that H.D. was a youth in need of care.

At the hearings, each expert witness testified that H.D. had been sexually abused. Dr. Patrick J. Sauer’s determination was based on discussions with H.D., as well as observations of the young girl. Dr. Sauer testified that H.D. told him that both Bob Lee (a former boyfriend of H.D.’s mother) and her father had touched her chest and vagina. Dr. Sauer explained that when he asked H.D. how her breasts were touched, H.D. provided him with a spontaneous, visual demonstration. Dr. Sauer determined that the spontaneity of the demonstration gave weight to H.D.’s testimony.

Dr. Donna Veraldi, clinical psychologist and expert witness, testified that H.D.’s behavior was characteristic of a sexual abuse victim. Her conclusion was based on a personal interview with H.D., formal tests she administered for H.D., and the reports of other professionals who examined H.D. Specifically, Dr. Veraldi attested that H.D. exhibited symptoms and suffered from post-traumatic stress disorder. She defined this disorder as “an emotional and often physiological re-experiencing of a traumatic event.” According to Dr. Veraldi, H.D. experienced nightmares and bed wetting — particularly around times of visitation with her father. H.D. also exhibited a sense of foreshortened future and avoidance of discussing traumatic events. Dr. Veraldi further explained that H.D.’s behavior deteriorated when she asked her to discuss “the touching and her father.” This deteriorating behavior, testified Dr. Veraldi, was consistent with a child who has been sexually abused.

Ed Lambrecht, licensed social worker for the DFS who conducted the investigation concerning H.D., testified that his interviews with H.D. led him to conclude H.D. was sexually abused.

Dr. Tranel, a psychologist, was called as an expert witness by the father. After reviewing H.D.’s video deposition and a taped interview of H.D. by Mr. Lambrecht, Dr. Tranel testified that he was convinced that H.D. was exposed to sexually inappropriate conduct. He testified that, in his opinion, H.D. had been abused by her primary caretaker or someone in her family constellation. Dr. Tranel explained that:

All of [H.D.’s] problems are generated by a solar milieu, a family constellation, an environment that is lacking in a lot of healthy features, security, stability, and consistency, and probably oversexualized activity, including the strong possibility of sexual abuse.

Dr. Tranel concluded that the abuser was one of H.D.’s primary caretakers. The record reveals that since the dissolution in 1988, H.D. had lived with her father and he was her primary caretaker.

In addition to expert testimony, the court viewed H.D.’s video deposition. H.D. testified that her father had touched her on “her bottom” and on her breasts. She told others so that he would stop touching kids, and she did not want to live with her father.

Both psychologists, Dr. Veraldi and Dr. Tranel, determined H.D. to be emotionally abused and in need of mental health intervention. Dr. Tranel testified that H.D. is “seriously emotionally disturbed.” He indicated that without professional, individual therapy, H.D. may develop, in the long term, multiple personalities as a result of the sexual abuse she has experienced. Dr. Veraldi expressed the opinion that H.D. suffered from post-traumatic stress disorder. Both Dr. Veraldi and Mr. Lambrecht recommended that H.D. not be returned to her father’s custody.

In making its decision to modify the father’s parental rights, the court relied on a combination of the testimony of four expert witnesses, a video deposition of H.D., a series of nude photographs of H.D., and evidence of physical abuse by H.D.’s father against his ex-wife, O.D., in the presence of his children. Additionally, the court based its decision in part on the father’s choice not to provide as evidence the results of a court-ordered psychological evaluation of the father. The court’s findings and conclusions were supported by substantial credible evidence. We find no abuse of discretion by the District Court.

II

Did the District Court err when it retained jurisdiction throughout the custody hearings?

As his second issue on appeal, H.D.’s father contends that the court’s jurisdiction expired on March 15, 1991, and that after such time, the court was without authority to make a determination concerning the custody of H.D. He maintains that each and every time the court provided for a continuation of protective services for his daughter after March 15, 1991, it did so without authority. Consequently, the father argues that his daughter should be returned to him.

On February 22, 1991, the DFS petitioned for temporary custody of H.D. Due to a conflict in schedules, the original hearing date of March 5, 1991, was rescheduled until March 13, 1991. The parties agreed that the temporary investigative authority and protective services granted to the DFS on December 10,1990, and originally set to expire on March 10, 1991, would remain in effect until March 15, 1991.

At the end of the March 13, 1991, temporary custody hearing, the District Judge ordered the proceedings to continue on April 15,1991. He also ordered conditions in existence under the temporary investigative authority order of December 10, 1990, to remain in effect until further order of the District Court.

Further hearings were conducted on April 15 and 16,1991. At the conclusion of those hearings, the court ordered, until the next hearing, the continuation of the same December 10, 1990, temporary investigative and protective service arrangements pertaining to H.D.

The final hearing occurred on May 15, 1991. The same arrangements were continued once again until the court issued its findings of fact and conclusions of law and order on July 16, 1991.

H.D.’s father has offered no statutory authority for his argument that, once granted, investigative authority cannot be continued by further order of the court. We decline to impose limitations, based on the facts of this case, that were not imposed by the legislature.

We conclude that in ordering a continuation of protective services of H.D., the District Court acted at all times pursuant to statutory authority. Section 41-3-403, MCA, entitled “Order for immediate protection of youth,” gives the trial court authority to provide for immediate protective services. Upon the filing of a petition for temporary investigative authority and protective services, Section 41-3~403(2)(g), MCA, permits the court to grant as relief “such other temporary disposition as maybe required in the best interest of the youth.”

Subsection (2)(g) of Section 41-3-403, MCA, is applicable in the present case. It authorized the District Court to use broad power to make continuing arrangements for H.D.’s protection.

Ill

Did the District Court err when it denied the father’s motion to compel further discovery responses from the State?

On March 22, 1991, after the first hearing was continued, the parties exchanged formal requests for discovery. H.D.’s father submitted written interrogatories and requests for production to the DFS. Responses were provided by the DFS on April 1, 1991.

On April 9,1991, six days before the continued hearing date, H.D.’s father moved the court to compel further answers to his interrogatories numbered 1, 2, and 3. Those interrogatories basically asked the DFS to identify its expert witnesses and the substance of their testimony. They also requested that the DFS specify in detail the basis for its petition and identify the witnesses who would testify to those details. In response to those interrogatories, the DFS identilled the expert witnesses who would be called to testify and provided records setting forth the results of their examinations and investigation. The father was referred to the records for further information.

The District Court denied the father’s motion for the reasons that it considered the answers adequate under the circumstances; there was not adequate time prior to trial to provide for the detailed kind of supplemental responses sought by the father; and since the same witnesses had been identified long ago, the father had some obligation to interview them and determine the substance of their opinions on his own.

The District Court has inherent discretionary power to control discovery and that power is based upon the court’s authority to control trial administration. Massaro v. Dunham (1979), 184 Mont. 400, 404, 603 P.2d 249, 251. In judging whether a party has failed to properly answer interrogatories, “necessarily it must lie within the authority of the trial judge to determine from the circumstances of each case what constitutes compliance and non-compliance ....” Wolfe v. Northern Pac. Ry. (1966), 147 Mont. 29, 40, 409 P.2d 528, 534. “[W]e will reverse the trial judge only when his judgment may materially affect the substantial rights of the appellant and allow a possible miscarriage of justice.” Wolfe, 409 P.2d at 534.

The father has not shown that the court’s ruling prejudiced his case. To the contrary, the record reveals that the court administered the discovery process fairly. The DFS provided the father with a substantial amount of documentation which would enable him to understand the reasons for the DFS’s petition and the nature of the evidence the DFS would present. Additionally, the DFS gave the father the names of all the witnesses it planned to call at trial. The father was free to interview the named witnesses to discover their opinions in greater detail.

We conclude that the District Court did not abuse its discretion when it denied appellant’s motion to compel discovery.

The judgment of the District Court is affirmed.

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


text:
    STATE OF MONTANA, Plaintiff, vs. JEFFREY DELAPHIANO, Defendant.
    NO. DC-90-118
    DECISION
    DATED this 23rd day of October, 1992.
   On August 10,1990, the Defendant was sentenced to twenty (20) years for Burglary with credit for 141 days time served.

On October 23, 1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Colleen Collier, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas M. McKittrick, Acting Chairman, Hon. Robert Boyd and Mark P. Sullivan, Acting Members, Judges.

The Sentence Review Board wishes to thank Colleen Collier, Legal Intern from the Montana Defender Project for her assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. SCOTT CLYDE MAGRUDER, Defendant.
    NO. DC-87-159
    DECISION
    DATED this 23rd day of October, 1992.
   On February 11, 1988, the Defendant was sentenced to Count I, ten (10) years for Felony Assault; Count II, forty (40) years for Mitigated Deliberate Homicide. Counts I and H shall be served concurrently to each other. The Defendant knowingly use a dangerous weapon and is sentenced to a term of ten (10) years. This sentence shall be served consecutively with the terms imposed for Count I and Count II. The additional ten (10) year sentence shall run concurrently on each Count, however. It was further ordered that the defendant is designated a Persistent Felony Offender, and the consecutive sentence imposed for use of a dangerous weapon is sufficient to also apply to the Persistent Felony Offender statute in Section 46-18-502, MCA. The Defendant is given credit for 252 days time served and is designated as a Dangerous Offender.

On July 23, 1992, the Defendant’s application for review of that sentence was considered by the Sentence Review Division of the Montana Supreme Court. On October 23, 1992, the matter was again reviewed.

The Defendant was present and was represented by William Hritsco, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority to increase the sentence, to leave it as it is, or reduce it. In the event that there is a possibility of increasing the sentence, the proceedings will be stayed, an attorney will be appointed, and the matter will be rescheduled for hearing at a later date.

The defendant explained to the Board that all his legal papers were confiscated after the riot, and requested a second continuance.

The motion was granted, there will be a continuance for good cause shown, and the matter shall be rescheduled for the next Sentence Review Hearing.

Hon. Thomas M. McKittrick, Acting Chairman, Hon. Robert Boyd and Hon. Mark P. Sullivan, Acting Member, Judges.

The Sentence Review Board wishes to thank William Hritsco, Legal Intern from the Montana Defender Project for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. RUSSELL THEODORE HEIT, Defendant.
    NO. Dc-88-333
    DECISION
   On August 16, 1989, the Defendant was sentenced to Count II, 100 years for Deliberate Homicide; Count III, forty (40) years for Robbery; and credit is given for 321 days time served; Dangerous Designation.

On October 23, 1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

DATED this 23rd day of October, 1992.

The Defendant was present and was represented by Susan Aaberg-Firth, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to have his sentence continued at this time.

The motion was granted and the matter shall be continued until the next Sentence Review Hearing.

Hon. Thomas M. McKittrick, Acting Chairman, Hon. Robert Boyd and Hon. Mark P. Sullivan, Acting Member, Judges.

The Sentence Review Board wishes to thank Susan Aaberg-Firth, Legal Intern from the Montana Defender Project for her assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. ANTHONY L. MUELLER, Defendant.
    NO. Dc-92-008B
    DECISION
    DATED this 23rd day of October, 1992.
   On February 22, 1992, the Defendant was sentenced to ten (10) years for Theft; credit is given for 65 days time served; the corut recommends the defendant serve his term at the Swan River Youth Forest Camp.

On October 23, 1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Susan Aaberg-First, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended to five (5) years with three (3) years suspended; 65 days credit for time served; the court recommends that the defendant serve his term at Swan River Youth Forest Camp.

The reason for the amended judgment is in the interest of justice and also to prevent a grave miscarriage of justice in that the record reflects that the Defendant plead guilty to a felony charge when the facts only support a conviction for a misdemeanor. Specifically, the amount of money that was alleged stolen was only $300.

Furthermore, this board would recommend that upon the Defendant’s release from the Montana State Prison that he pursue post-conviction relief and have the record reflect that his conviction was for misdemeanor theft and not felony theft.

Hon. Thomas M. McKittrick, Acting Chairman, Hon. Robert Boyd and Hon. Mark P. Sullivan, Judges.

The Sentence Review Board wishes to thank Susan Aaberg-Firth, Legal Intern from the Montana Defender Project for her assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. SHELDON TALMADGE JENKINS, Defendant.
    NO. BDC-91-161
    DECISION
    DATED this 22nd day of October, 1992.
   On January 24,1992, the Defendant was sentenced to Count II, five (5) years with four (4) years suspended for Criminal Mischief; Count III, six (6) months, all suspended, in the Cascade County Jail for Assault; the two terms are to be served concurrently and credit is given for twenty (20) days time served.

On October 22, 1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded pro se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he did not wish to proceed and wanted to dismiss his application. After careful consideration, it is the unanimous decision of the Sentence Review Division that the petitioner’s request is hereby granted and the Petition for Sentence Review shall be dismissed with prejudice.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges.


text:
    STATE OF MONTANA, Plaintiff, vs. PATRICK TURNER, Defendant.
    NO. DC-91-95
    DECISION
   On November 18, 1991, the Defendant was sentenced to twenty (20) years for Burglary; credit is given for 175 days time served and shall receive credit for such additional days the defendant shall serve after November 18,1991, until his transportation to the Montana State Prison. This sentence shall be served concurrently with the five (5) year prison sentence imposed in Cause No. DC-84-137. The Defendant is not to be paroled before he completes whatever alcohol abuse courses are available to him at the Montana State Prison.

On October 22, 1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

DATED this 22nd day of October, 1992.

The Defendant was present and was represented by Patricia Day-Moore, Legal Intern from the Montana Defender Project. The state was represented by Marty Lambert, Deputy County Attorney from Bozeman.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick and Hon. G. Todd Baugh, Judges.

The Sentence Review Board wishes to hank Patricia Day-Moore, Legal Intern from the Montana Defender project for her assistance to the defendant and to this Court and would like to thank Marty Lambert for appearing on behalf of the State of Montana.


text:
    STATE OF MONTANA, Plaintiff, vs. MARK WHITNEY SHUMAKER, Defendant.
    NO. 3062 and 3303
    DECISION
   On October 31,1990, the Defendant was sentenced to five (5) years for Intimidation in Cause No. 3062; and ten (10) years for Criminal Sale of Dangerous Drugs in Cause No. 3303. Cause No. 3303 shall be run concurrently with the balance of time given for cause 3062. Credit is given for 41 days time served, September 2, 1990 until October 12, 1990. Credit is also given for time served on probation October 30, 1989 until October 31,1990.

On October 22, 1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Kevin Vainio, Attorney at Law from Butte. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

DATED this 22nd day of October, 1992.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick and Hon. G. Todd Baugh, Judges.

The Sentence Review Board wishes to thank Kevin Vainio, Attorney at Law from Butte for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. ROBERT KELLER, SR., Defendant.
    NO. DC-91-46
    DECISION
    DATED this 22nd day of October, 1992.
   On January 10, 1992 the Defendant was sentenced to ten (10) years for Bail Jumping; said sentence is to be served consecutively with Cause No. DC-91-25.

On October 22, 1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded pro se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he did not wish to proceed, and wanted his application for sentence review dismissed.

It is the unanimous decision of the Sentence Review Division that the petitioner’s request is hereby granted and the Petition for Sentence Review shall be dismissed with prejuice.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick and Hon. G. Todd Baugh, Judges.


text:
    STATE OF MONTANA, Plaintiff, vs. ROBERT KELLER, SR., Defendant.
    NO. DC-91-25
    DECISION
   On January 8,1992 the Defendant was sentenced to ten (10) years for the revocation of Felony Assault. The Defendant is not eligible for parole during the first two (2) years of his incarceration. Credit is given for 122 days time served.

On October 22, 1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded pro se. The state was not represented.

DATED this 22nd day of October, 1992.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there -is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he did not wish to proceed, and wanted his application for sentence review dismissed.

It is the unanimous decision of the Sentence Review Division that the petitioner’s request is hereby granted and the Petition for Sentence Review shall be dismissed with prejudice.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick and Hon. G. Todd Baugh, Judges.


text:
    STATE OF MONTANA, Plaintiff, vs. DENNIS LEON VALCOURT, Defendant.
    NO. ADC-91-131
    DECISION
    DATED this 22nd day of October, 1992.
   On December 4, 1991, the Defendant was sentenced to Count II, forty (40) years for Aggravated Burglary; the defendant is denied any eligibility for parole.

On October 22, 1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was represented by Mike McGrath, County Attorney from Helena.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he did not wish to proceed and wanted his case dismissed.

The petition is dismissed without prejudice at this time. Upon showing of good cause, the petitioner can reapply for Sentence Review at a later date.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick and Hon. G. Todd Baugh, Judges.


text:
    STATE OF MONTANA, Plaintiff, vs. MIKE POMA, Defendant.
    NO. BDC-91-061
    DECISION

      DATED this 22nd day of October, 1992.
   On August 8,1991, the Defendant was sentenced to twenty (20) years with two (2) years suspended for Sexual Assault; the defendant shall be under the supervision of the Montana Department of Corrections and Human Services and shall abide by all of its rules and regulations; credit shall be given for 112 days time served.

On October 22, 1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was represented by Mike McGrath, County Attorney from Helena.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he did not wish to proceed and wanted his application for sentence review dismissed.

The petition is dismissed without prejudice at this time. Upon showing of good cause, the petitioner can reapply for Sentence Review at a later date.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick and Hon. G. Todd Baugh, Judges.


text:
    STATE OF MONTANA, Plaintiff, vs. TROY FORD, Defendant.
    NO. ADC-91-107
    CDC-91-49
    DECISION
    DATED this 22nd day of October, 1992.
   On June 14,1991, the Defendant was sentenced to ADC-91-107, Bail Jumping, five (5) years revoked; CDC-91-49, Criminal Mischief, ten (10) years revoked; the sentences shall be served consecutively. Before the defendant may be eligible for parole he must successfully complete alcohol treatment at the Prison; credit is given for all time served.

On October 22, 1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was represented by Mike McGrath.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he did not wish to proceed because Mike McGrath was present. The defendant stated he wanted his application dismissed.

It is the unanimous decision of the Sentence Review Division that the petitioner’s request is hereby granted and the Petition for Sentence Review shall be dismissed with prejudice.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick and Hon. G. Todd Baugh, Judges.