author: CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. RICHARD SAVARIA, Defendant and Respondent.
    No. 89-594.
    Submitted on Briefs Sept. 27, 1990.
    Decided Oct. 30, 1990.
    As Modified on Denial of Rehearing Nov. 29, 1990.
    800 P.2d 696.
    Marc Racicot, Atty. Gen., Jennifer M. Anders, Asst. Atty. Gen., Helena, Harold Hanser, County Atty., Curtis L. Bevolden, Deputy County Atty., Billings, for plaintiff and appellant.
    John L. Adams, Billings, for defendant and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The State of Montana appeals the judgment of the Thirteenth Judicial District, Yellowstone County, which sentenced Richard Savaria to six months of imprisonment for misdemeanor escape under § 45-7-306(3)(c), MCA, following a jury trial that found Savaria guilty of a general violation of escape. The State argues that Savaria should have been sentenced for felony escape under § 45-7-306(3)(b)(i), MCA. We affirm.

The State raises the following issue:

Did the District Court properly sentence Savaria for misdemeanor escape under § 45-7-306(3)(c), MCA?

On April 12, 1990, Richard Savaria was among eight prisoners transported from the Yellowstone County Detention Facility to the Yellowstone County Courthouse for law and motion proceedings. On that day, Savaria was to be sentenced for a felony theft charge to which he had pled guilty. The court, however, did not sentence Savaria on that day due to his attorney’s absence; the corut continued his sentencing to the following week.

Following the close of law and motion, the eight prisoners were ushered, single-file, out of the courtroom and down a winding hall to the security elevator. One transport officer led the procession and another took up the rear. All of the prisoners were handcuffed and bellychained, and at no time during their court appearance or transport were the shackles removed. Savaria’s shackles, however, were hidden from view by the suit coat he was wearing.

While the procession was walking through the winding hallway, Savaria slipped unnoticed into a public elevator and exited the building through the front door. Shortly thereafter, the transporting officers noticed Savaria’s absence and radioed the sheriff’s office for assistance in apprehending him. Savaria was apprehended approximately three hours later in the nearby Grand Building, where he had first gotten a shave and a haircut at a barber shop prior to his eventual arrest in a basement restroom.

On April 17,1989, Savaria was charged by information with felony escape in violation of § 45-7-306(3) (b) (i), MCA. The information was later amended to charge a general violation of escape under § 45-7-306, MCA. Savaria entered a plea of guilty to the original charge, but changed his plea to not guilty after the State filed a notice of intent to have Savaria adjudged a persistent felony offender. On September 26,1989, following a jury trial, Savaria was found guilty of a general violation of escape.

At the sentencing hearing, the State argued that Savaria should be sentenced for felony escape under § 45-7-306(3)(b)(i), MCA. The District Court, however, found that Savaria had not escaped from “county jail” as required for felony escape under § 45-7-306(3)(b)(i), MCA, and accordingly, sentenced Savaria to six months imprisonment under misdemeanor escape, § 45-7-306(3)(c), MCA, this sentence to run consecutively with an eight-year term he was serving at the Montana State Prison. From this sentence, the State appeals.

Did the District Court properly sentence Savaria for misdemeanor escape under § 45-7-306(3)(c),MCA?

Section 45-7-306(3), MCA, provides:

“(3) A person convicted of the offense of escape shall be:
“(a) imprisoned in the state prison for a term not to exceed 20 years if he escapes from a state prison, county jail, city jail, or supervised release program by the use or threat of force, physical violence, weapon, or simulated weapon;
“(b) imprisoned in the state prison for a term not to exceed 10 years if he:
“(i) escapes from a state prison, county jail, city jail, halfway house, life skills center, or supervised release program; or
“(ii) escapes from another official detention by the use or threat of force, physical violence, weapon, or simulated weapon; or
“(c) fined not to exceed $500 or imprisoned in the county jail for a term not to exceed 6 months, or both, if he commits escape under the circumstances other than (a) and (b) of this subsection.”

The District Court held that because Savaria was not physically within the confines of the county jail when he escaped from custody, he could not be sentenced for felony escape under § 45-7-306(3)(b)(i), MCA. Accordingly, the District Court sentenced Savaria to six months imprisonment for misdemeanor escape under § 45-7-306(3)(c), MCA. The State argues that the District Court interpreted “county jail” too literally. Rather, the State argues that the court should have considered the degree of risk and the nature of the confinement to determine whether Savaria’s offense was a felony or misdemeanor citing State v. Whiteshield (1980), 185 Mont. 208, 605 P.2d 189, and State v. Kyle (1980), 189 Mont. 38, 614 P.2d 1059. We disagree.

In 1980, this Court held in Whiteshield that a departure from a prison furlough program was not a felony escape because a prison furlough program was not a “state prison” under § 45-7-306(3)(b)(i), MCA, and this escape did not create a risk of violence. Whiteshield, 185 Mont. at 211, 605 P.2d at 190-91. Later in 1980, in Kyle, this Court held that a departure from a youth camp was a felony escape because a youth camp is a “state prison” under § 45-7-306(3)(b)(i), MCA, and this escape created a greater risk of violence than found in Whiteshield because of the stronger degree of confinement in a youth camp than a furlough program. Kyle, 189 Mont. at 39-41, 614 P.2d at 1060-61.

In 1981, the Montana Legislature reversed Whiteshield by amending § 45-7-306(3)(b)(i), MCA, to further include escapes from halfway houses, life skills centers, and furlough placements as felony escapes. 1981 Mont. Laws, Ch. 72, § 1. Additionally, the 1981 Montana Legislature codified Kyle by including escapes from supervised release programs as felony escapes. 1981 Mont. Laws, Ch. 583, § 8.

Clearly, the Montana Legislature intended to close loop holes in § 45-7-306(3)(b)(i), MCA, by specifically listing further possible places of escape. The Montana Legislature, however, did not specifically address an escape by a prisoner during a transport from a court appearance. Because the statute fails to address this situation, Savaria’s escape cannot be deemed a felony escape. Furthermore, to hold that Savaria’s escape was an escape from a “county jail” would expand the meaning of a criminal statute which is forbidden by Shipman. Therefore, the District Court properly held that Savaria’s escape did not occur from a “county jail” under § 45-7-306(3)(b)(i), MCA, and properly proceeded with the only statutory alternative of sentencing Savaria under misdemeanor escape, § 45-7-306(3)(c), MCA.

Affirmed.

JUSTICES HARRISON, WEBER, HUNT and McDONOUGH concur.


source: Caselaw Access Project

author: JUSTICE SHEEHY

license: Public Domain

text:
    KARYN ANN BAIN, Plaintiff and Appellant, v. LARRY WILLIAMS, Brian Cloutier, and State Medical Services, Inc., a Montana corporation, Defendants and Respondents.
    No. 90-234.
    Submitted Aug. 9, 1990.
    Decided Oct. 30, 1990.
    Rehearing Denied Nov. 29, 1990.
    800 P.2d 693.

      E. Eugene Atherton, Kalispell, for plaintiff and appellant.
    Randy K. Schwickert, Whitefish, for defendants and respondents.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

The plaintiff, Karyn Ann Bain brought this action in the Eleventh Judicial District Court, Flathead County, to recover the unpaid balance due under the terms of a written promissory note. Although a jury trial had been initially requested by Bain, she later agreed to bifurcate the contract (promissory note) issues from the tort issues raised in her complaint and to try the contract issues in front of the court sitting without a jury. The defendants filed an action for declaratory judgment concerning the same contract and sought recovery of monies advanced to Bain. The District Court consolidated Bain’s collection actions with the declaratory judgment action. The District Court determined that the purpose for execution of the promissory note had been totally frustrated and, as a result, the remaining obligation of the defendants should be excused and the promissory note rescinded. The District Court then entered judgment in favor of the defendants and against Bain. Thereafter, Bain filed a Rule 59(g), M.R.Civ.R motion to alter or amend the judgment, which motion was deemed denied by the expiration of the 45 day time limit. (Rule 59(d), M.R.Civ.R) Bain now appeals the District Court judgment and the denial of the Rule 59 motion. We reverse and remand.

Bain raises the following issues on appeal:

1. Whether the trial court’s findings are supported by substantial evidence?

2. Whether the trial court erred by allowing the defendants to amend their answer on the day of trial?

Prior to January 28, 1983, Bain was married to Steven Boyd. During their marriage, Boyd started an in-home oxygen care business known as Montana Medical Oxygen and Supply, Inc. (hereafter MM). At the time of her divorce from Boyd in 1983, Bain acquired from him, as part of the divorce agreement, his promissory note for $900,000 and held 50% of the stock of MM as security for Boyd’s payment under the terms of the note. Late in 1983, Bain learned that Boyd was attempting to sell MM to the defendants. At the time, Bob Allison, an attorney in Kalispell, represented Bain, and he began negotiating with Williams on behalf of Bain in the effort by the defendants to purchase her interest in MM. During the negotiations with Williams, Bain and Allison demanded to know how much Williams was paying Boyd for MM, but were told by Williams that was none of their business and the negotiations with Bain was a “separate deal.”

The negotiations proved to be fruitful, and Bain agreed to accept $370,000 from the defendants for the marital obligation Boyd owed her, which included her security interest in the MM stock. As a result, on November 7, 1983, the defendants executed an agreement and promissory note to Bain for $370,000. Allison prepared this promissory note for the parties. After the execution of the promissory note, Bain conveyed her stock in MM to Williams.

Sometime in January of 1984, the parties began to suspect that the MM pin-chase was in trouble, and in fact the purchase did not close as planned or expected on February 29, 1984. The cause of the failure rested on Steven Boyd. Thereafter, Boyd told the defendants he intended to look for a new buyer for MM.

The defendants stopped making payments on the promissory note in March of 1984, and Bain filed this suit to enforce payment under the note. In their answer, the defendants contended that the execution of the promissory note has been conditioned on the purchase of Boyd’s half of MM, that they had failed to purchase Boyd’s MM stock, and therefore the defendants’ purpose in executing the promissory note had been totally frustrated.

On April 25, 1984, in a letter from defendants’ attorney to Bain, the defendants discussed filing the declaratory judgment action to determine their duty under the agreement with Bain. They also advised Bain that they would continue to make payments under the note, but that they would seek reimbursement for any money advanced. The defendants made payments through January, 1985.

After a bench trial, the District Court found that the execution of the promissory note was contingent upon the defendants’ successful purchase of Boyd’s half of MM. The court found that the failure to complete the purchase of Boyd’s half of MM constituted a frustration of purpose of their promissory note with Bain. The trial court determined that the promissory note should be rescinded, and the remaining payment obligation under the note excused. The court also ordered Bain to repay the money that the defendant had already paid her. From this judgment, Bain appeals.

I

The first issue is whether the District Court’s findings are supported by substantial evidence. The appellate standard for review is clear. This Court may not set aside findings of fact unless they are clearly erroneous. Rule 52(a), M.R.Civ.R Expanding on this standard, we have stated:

‘When reviewing findings of fact and conclusions of law of a district court, sitting without a jury, this Court has repeatedly held such findings and conclusions will not be disturbed if supported by substantial evidence and by the law.
Central Bank of Montana v. Eystad (1985), 219 Mont. 69, 73, 710 P.2d 710, 713, and cases cited therein.

The District Court made findings that (1) the defendants’ execution of the promissory note was contingent upon their successful purchase of Boyd’s half of MM; (2) the defendants did not complete their purchase of Boyd’s half of MM; (3) the failure to purchase Boyd’s share of the business constituted frustration of the principal purpose of the promissory note; and (4) the contract is rescinded due to this frustration of the principal purpose of the note.

The District Court’s findings and conclusions are not supported by substantial evidence and the law. We disagree with the court’s findings, and find the parties’ promissory note was not contingent on the defendants’ purchase of Boyd’s half of MM.

The District Court’s first obligation was to peruse the four corners of the promissory note to determine whether the claimed contingency existed. “Where the language of a written contract is clear and unambiguous there is nothing for the court to construe; the duty of the court is simply to apply the language as written to the facts of the case, and decide the case accordingly.” Danielson v. Danielson (1977), 172 Mont. 55, 58, 560 P.2d 893, 894; Nordlund v. School District No. 14 (1987), 227 Mont. 402, 404, 738 P.2d 1299, 1301. Courts have no power to change the contract or the express language used. Williams v. Insurance Company of North America (1967), 150 Mont. 292, 295, 434 P.2d 395, 397.

Here, the promissory note is unambiguous, and clearly does not include a contingency. Despite the obvious lack of contingency in the note, the defendants argue that paragraph 5 of the note reveals the note was conditioned upon the defendants operating MM. Paragraph 5 of the note states:

“That should Second Parties (defendants) decide in anyway sell or dispose of their majority interest or stock in and to the business entities known as State Medical Services, Inc. and Montana Medical Oxygen & Supply, Inc., at any time prior to having paid the obligations to First Party (Bain) as set out above in full, the entire balance remaining unpaid shall become immediately due and payable upon such a sale or transfer of their interest. In other words, this Agreement is not assignable and is conditioned upon the continuing operation of said business by Larry Williams, Brian Cloutier and Mark Hungerford.”

This paragraph does not state that the successful acquisition of Boyd’s business was contingent for the execution of the promissory note. Instead, it simply states that if the defendants were to sell or otherwise dispose of Boyd’s business before completing payment to Bain, then the entire remaining balance due to Bain would accelerate. The last sentence of the paragraph simply reasserts that the obligation to pay under the promissory note is not transferable or assignable to someone else and would accelerate unless the defendants continued to run Boyd’s business.

The defendants also argue that the promissory note is contingent on their purchase of Boyd’s half of MM, because the promissory note is peppered throughout with references of the defendants assuming the right to manage the assets of MM, and references to Bain’s and Boyd’s earlier property settle agreement. We disagree with the defendants, and will not read a contingency into the contract when one clearly does not exist on the face of the contract.

The District Court erred when it went beyond the four corners of the contract, and looked to the intent of the parties to determine if the contingency existed in the promissory note. Again, the intent of the parties is only looked at when the agreement is not clear on its face. Glacier Campground v. Wild Rivers, Inc. (1979), 184 Mont. 543, 547, 597 P.2d 689, 692. Here, the promissory note does not contain a contingency, and the court mistakenly looked at the intent of the parties. Courts may not disregard the express language of a contract. Williams, 434 P.2d at 397; Lemley v. Bozeman Community Hotel Co. (1982), 200 Mont. 470, 475, 651 P.2d 979, 981; New Hampshire Insurance Group v. Strecker (Mont. 1990), [244 Mont. 478], 798 P.2d 130, 47 St.Rep. 1736, 1738; See also § 28-3-401, MCA.

The District Court improperly granted the defendants the right of rescission. In its order, the court stated:

“Defendants’ right of rescission, based upon failure of consideration, excuses their continued performance under this contract, and they may rescind. Despite Plaintiff’s assertions to the contrary, Defendants failed to acquire the business of Montana Medical, and that acquisition was fundamental to the promissory note and agreement between the parties.”

The consideration in this case was not the acquisition of MM but Bain’s agreement to turn over her security interest in 50% of the MM stock to the defendants in exchange for the $370,000 under the promissory note. Accordingly, we find an exchange of consideration among the parties, and reverse the court’s rescission of the contract.

II

We need not address the second issue concerning amending the answer the day of trial, since we have found for Bain under the terms of the contract.

Conclusion

Since the contract was not contingent on the defendants purchasing Boyd’s half of MM, the defendants did not have a right to rescind the contract. Thus, when the defendants stopped their payments under the terms of the promissory note, Bain properly sent to the defendants a notice of default and accelerated the balance due under the promissory note. We reverse the District Court’s order and remand the case to the District Court to determine the amount of damages the defendants owe Bain under the promissory note. Under the terms of the promissory note, Bain, as the prevailing party is entitled to recover attorney’s fees. Reversed and remanded for further proceedings in accordance with this Opinion.

JUSTICES HARRISON, HUNT, BARZ and McDONOUGH concur.


author: JUSTICE WEBER

text:
    MANN FARMS INCORPORATED, A Montana corporation, John J. Mann, Francis Mann, Wilber Mann and Edna Mann, Plaintiffs and Appellants, v. TRADERS STATE BANK OF POPLAR, MONTANA, and Northeast Montana Bank Shares, Inc., Defendants and Respondents.
    No. 90-124.
    Submitted on Briefs June 28, 1990.
    Decided Nov. 8, 1990.
    As Revised on Denial of Rehearing Nov. 8, 1990.
    801 P.2d 73.

      James G. Edmiston, III, Billings, Richard A. Ramler & Belinda D. Rinker, Belgrade, for plaintiffs and appellants.
    Bruce A. Fredrickson & Charles R. Cashmore, Crowley, Haughey, Hanson, Toole & Dietrich, Billings, for defendants and respondents.
   JUSTICE WEBER

delivered the Opinion of the Court.

In what has come to be called a bad faith action, the District Court of the Fifteenth Judicial District, Roosevelt County, granted summary judgment to defendants. Plaintiffs appeal. We affirm.

The sole issue for our consideration is whether the District Court erred in granting summary judgment in favor of defendants?

The Mann family formed Mann Farms, Inc. (Maim Farms) in 1976. In the beginning, Traders State Bank (the Bank) carried the Mann Farms’ credit in an unsecured status. Over the years, Mann Farms’ debt with the Bank continued to increase. As a result of that increase, in 1983 the Bank took its first security on the Mann Farms’ line of credit.

Mann Farms had difficulty reducing the principal balance. In an effort to work out some kind of an agreement, John Mann met several times with Richard Loegering (Loegering), the Bank’s Executive Vice President. John Mann informed him that he was going to apply for a Small Business Administration (SBA) disaster loan. He also desired to rework his loan with the Bank. The Bank planned to take a second mortgage and requested Mann Farms to provide it with projections for Mann Farms’ 1985 credit needs. Mann Farms failed to comply.

Finally on May 1, 1985, Mann Farms executed a renewal note, second mortgages, and new security agreements. Loegeringinformed the Manns that he would present a request for $50,000 to the loan committee for approval based on Mann Farms’ projected operating loss for 1985 of $51,000.

The loan committee approved two loans for $25,000 each; the first on the condition that Mann Farms provide the Bank with additional collateral in the form of the corporation’s titled vehicles, and the second on the condition that Mann Farms receive the SBA disaster loan. Mann went to the bank and signed the first note for $25,000 on May 10, 1985. However, no funds were advanced because the additional collateral had not been provided. No note was ever signed representing the second $25,000.

Subsequently, Mann Farms bargained with Moe Motors, a farm implement dealer, to purchase a Caterpillar laser scraper, a Wagner four wheel drive tractor and a White two wheel drive tractor. He listed the Bank as a credit reference in his application for financing.

Mann Farms had not disclosed those purchase agreements to the Bank. The purchase agreements with Moe Motors showed that Mann Farms was trading in a 1973 Steiger tractor with a trade-in value of $24,400. Mann Farms did not own a 1973 Steiger tractor. There were also other discrepancies on the purchase agreements. Loegering received a phone call for a credit reference. Loegering informed the caller that Mann Farms was “heavily indebted” and had been “past due since December of ’84” with its payments to the Bank.

Because he knew that Moe Motors used Citizens First as its bank on purchase contracts, Loegering telephoned Richard Uithoven (Uithoven), President of Citizens First National Bank of Wolf Point (Citizens First). Uithoven informed Loegering that Mann Farms listed the Caterpillar Scraper as collateral for a loan, owed $28,000 to a third party on the Scraper, and that Mann Farms attempted to obtain financing from Citizens First to pay off the balance owed on the third party loan. Loegering informed Uithoven of the Bank’s experience with Mann Farms, including loan balances, current financial condition, and past delinquencies. Uithoven testified that his conversations with Loegering did not affect his bank’s decision regarding the Mann Farms’ credit application at that bank. The Bank decided it would not loan Mann Farms the first $25,000 unless the equipment purportedly purchased from Moe Motors was returned.

Mann Farms was unable to return the White tractor to Moe Motors because Moe Motors had already sold the contract. However the other pin-chases were returned and the purchase contracts rescinded. The Bank then decided that it would proceed with the first $25,000 conditional loan at Mann Farms’ request. Mann Farms never requested that the funds be advanced and the note eventually expired.

In the fall of 1985, the SBA approved a conditional disaster loan to Mann Farms. The Bank decided that it would agree to the SBA proposal conditioned upon the Bank’s receipt and approval of a reasonable cash flow/budget from Mann Farms projecting its 1986 expense needs. Loegering and John Witte, the Bank president, met with the Manns to attempt to work out the cash flows. No agreement was reached. Mann Farms filed Chapter 12 Bankruptcy. The final decision on that matter is pending.

On March 28, 1988, Mann Farms filed its complaint against Traders State Bank and Northeast Montana Bank Shares (the Holding Company) alleging breach of the implied covenant of good faith and fair dealing; breach of fiduciary obligations; negligent misrepresentation; interference with contract; and breach of implied contract of customer privacy. On December 1, 1989, defendants filed a motion for summary judgment pursuant to Rule 56, MR.Civ.R The District Court granted the motion against all claims and dismissed the complaint with prejudice. From that decision Mann Farms appeal.

Did the District Court err in granting summary judgment in favor of defendants?

The District Court condensed the material components giving rise to each of Mann Farms’ separate allegations into the following:

“1. The Bank’s exercise of its business judgment in temporarily withdrawing a $25,000 line of conditional operating credit from Mann Farms during the spring of 1985, after becoming aware of undisclosed equipment purchases by Mann Farms from Moe Motors Co., which, in the Bank’s judgment, impaired Mann Farms’ ability to service its debt at the Bank.
“2. The Bank’s discussions with Citizens First National Bank of Wolf Point, a potential purchaser of the Moe Motors equipment contracts, regarding Mann Farms’ financial situation.
“3. The Bank’s refusal to loan operating funds to Mann Farms during the Spring of 1986.
“4. The SBA’s refusal to loan disaster relief funds unless certain conditions were met.
“5. Plaintiffs also contend that the actions of John Witte give rise to potential liability against the Holding Company.”

The District Court concluded that the totality of the record established that there were no genuine issues of material fact and that both defendants are entitled to judgment as a matter of law on all counts of plaintiffs’ amended complaint. See Tucker v. Trotter Treadmills, Inc. (Mont. 1989), [239 Mont. 233,] 779 P.2d 524, 46 St.Rep. 1646. Following is a review of Mann Farms’ claims.

Implied Covenant of Good Faith and Fair Dealing

Mann Farms maintains that the Bank acted dishonestly and outside of any acceptable commercial practices in the banking industry. It maintains that the Bank breached its agreement to loan Mann Farms operating expenses of $50,000 after Mann Farms had agreed to renew the existing security agreements.

The Bank maintains that if the covenant of good faith and fair dealing existed in the instant case, and if there was a breach, that breach occurred on the part of Mann Farms and not the Bank. The Bank urges that all it did was make a good business decision after learning of the purported equipment purchase from Moe Motors. It maintains that the conditional agreement to loan was based in large part upon Mann Farms’ representations to the Bank on its March 15, 1985, financial statement and that Mann Farms never informed the Bank of its plans to undertake any additional obligations. We agree.

The financial statement required that Mann Farms provide a “true, complete, and accurate statement” of their financial condition and that “if any changes occur that materially reduce the means or ability of the undersigned to pay all claims and demands against us, the undersigned will immediately notify the Bank in writing.” The Moe Motors’ contracts resulted in an undisclosed debt of $74,000.

Relying largely on Montana Bank of Circle v. Ralph Meyers & Sons, Inc. (1989), 236 Mont. 236, 769 P.2d 1208, the District Court concluded that since Mann Farms committed the initial breach, it cannot complain of an alleged subsequent breach by the Bank. We affirm the conclusion of the District Court based upon the more recent and controlling decision of Story v. City of Bozeman (Mont. 1990), [242 Mont. 436,] 791 P.2d 767, 47 St.Rep. 850.

Every contract contains an implied covenant of good faith and fair dealing. A breach of the covenant is a breach of the contract. Story, 791 P.2d 767, 775. In Story, we set forth the standard of conduct required by the implied covenant:

“For every contract not covered by a more specific statutory provision, the standard of compliance is that contained in § 28-1-211, MCA:
“ ‘The conduct required by the implied covenant of good faith and fair dealing is honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade.’ ”

Story, 791 P.2d at 775. When one party uses discretion conferred by the contract to act dishonestly or to act outside of accepted commercial practices to deprive the other party of the benefit of the contract, the contract is breached. Story, 791 P.2d at 775.

Tort damages are only available in contracts involving a special relationship. In special relationship contracts, the standard of conduct is the same as for other contracts, that is, the “honesty in fact” standard set forth in § 28-1-211, MCA, and quoted above. Story, 791 P.2d at 776. Thus, for a plaintiff to maintain a cause of action for breach of the implied covenant, whether it is based in contract or based on the special relationship criteria giving rise to a tort, the plaintiff must first show a breach of this “honesty in fact” standard. Section 28-1-211, MCA; Kinniburgh v. Garrity (Mont. 1990), [244 Mont. 350,] 798 P.2d 102, 47 St.Rep. 1655.

Here, the record contains no evidence that the bank did not act in compliance with the honesty in fact standard. There is no evidence that the bank acted dishonestly in revoking the conditional agreement for Mann Farm’s failure to disclose its debt to Moe Motors. The bank’s revocation of its conditional offer to loan money did not offend reasonable commercial standards of fair dealing in the context of creditor/debtor relationships when it was honestly based on Mann Farm’s failure to provide a “true, complete and accurate statement” of its financial condition or immediately notify the bank of material changes in its ability to repay. The District Court correctly held that the Bank did not breach the covenant of good faith and fair dealing.

Fiduciary Duty

Mann Farms maintains that a fiduciary relationship existed based upon its fourteen year relationship with the Bank.

The Bank maintains, and the District Court agreed that the relationship between a bank and its customer usually does not give rise to fiduciary duty. See Simmons v. Jenkins (1988), 230 Mont. 429, 750 P.2d 1067. Rather, a fiduciary relationship exists when:

“special circumstances indicate exclusive and repeated dealings with the Bank. This Court has recently [required] a bank to act as a financial advisor in some capacity, other than that common in the usual arms-length debtor/creditor relationship, in addition to requiring a long history of dealings with the bank, to establish a fiduciary relationship, (citations omitted).”

See First Bank (N.A.)-Billings v. Clark (1989), 236 Mont. 195, 771 P.2d 84. Areview of the record confirms the District Court’s conclusion that the Bank and Mann Farms never acted beyond the usual arms-length debtor-creditor relationship. We agree with the District Court and conclude that such a relationship does not establish a fiduciary relationship.

Interference with Contract, Negligent Misrepresentation, and Implied Contractual Right of Customer Privacy

Mann Farms alleged that “the Bank failed to use reasonable care in evaluating the benefits which would have resulted to Plaintiffs”. It further maintains that Loegering had no authorization from Mann Farms to contact Uithoven at Citizens First to discuss confidential financial matters.

The Bank justifies Loegering’s phone call to Citizens First as an important business decision to protect its interests after becoming aware of the material undisclosed facts relating to Mann Farms’ purchase agreements with Moe Motors. Furthermore, it points out that in his deposition, Uithoven testified that his discussion with Loegering did not interfere with First Citizen’s decisions regarding the Mann Farms’ credit with that institution.

We first point out that there is no legal duty requiring a bank to loan money to a customer absent a clear contractual commitment. Furthermore, there is no duty for a bank to renegotiate a defaulted loan. Montana Bank of Circle, 769 P.2d at 1213. Testimony showed it was Bank policy to always conduct credit checks of potential borrowers, and to always inform them of that fact. Such a credit check serves a legitimate business purpose. We conclude it was appropriate for the Bank to make credit checks as was done here.

We conclude that Mann Farms has failed to set forth any evidence that any material issues of fact existed which made summary judgment improper. We hold that the District Court did not err in granting summary judgment in favor of defendants.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES BARZ, HARRISON, HUNT, SHEEHY and McDONOUGH concur.


author: JUSTICE WEBER JUSTICE SHEEHY,

text:
    In the MATTER OF T.S., Youth in Need of Care.
    No. 90-057.
    Submitted on Briefs Aug. 23, 1990.
    Decided Nov. 20, 1990.
    801 P.2d 77.

      Daniel Duame, Kawerak, Inc., Nome, Alaska, D. Michael Eakin, Montana Legal Services Assn., Billings, for appellant.
    Bradley B. Parrish, Lewistown, Guardian ad litem, Marc Racicot, Atty. Gen., ClayR. Smith, Asst. Atty. Gen., Helena, Jon A. Oldenberg, Lewistown, for respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

King Island Native Community, an Eskimo tribe located in Nome, Alaska, appeals from a judgment of the District Court, Tenth Judicial District, Fergus County, denying the Tribe’s motion to transfer jurisdiction of child custody proceedings of an Eskimo child under the Indian Child Welfare Act. We affirm.

The issues presented are:

1. Did the District Court err when it held that there was good cause not to transfer jurisdiction of child custody proceedings to King Island Tribal Court?

2. Did the District Court err when it failed to remove the guardian ad litem from the case when the guardian ad litem expressed misgivings about the ICWA?

T.S. was born in Alaska to a mother who is part Eskimo and is eligible for membership in the King Island Native Community (Tribe). Neither Mother nor T.S. is a member of the Tribe and neither have ever resided on the reservation during the lifetime of T.S. The record reveals a long history of transient lifestyle which was punctuated with domestic violence and physical abuse during the marriage of Mother and Stepfather. The evidence indicates that Mother was abused by Stepfather and T.S. was abused by both Mother and Stepfather.

Mother and Stepfather were residing in Fergus County, Montana on August 31, 1988, when T.S. was placed in protective custody by the Montana Department of Family Services (Department). T.S. was three and a half years old at the time. A petition for temporary investigative authority was filed and on September 2, 1988, the District Court appointed a guardian ad litem for T.S. and issued its order for protective services and order to show cause.

Shortly after T.S. was placed in a temporary foster home, Mother returned to Alaska. Mother contacted the Tribe and requested that the Tribe intervene in her case pursuant to the Indian Child Welfare Act (ICWA). On December 27, 1988, the Tribe filed a motion to intervene in the proceedings pursuant to 25 U.S.C. § 1911(c) of the ICWA and intervention was granted the following day. On December 29, 1988, the Department of Family Services filed a petition for permanent legal custody of T.S. and for termination of Mother’s parental rights. On February 21, 1989, the Tribe filed a motion to transfer jurisdiction to its tribal court pursuant to 25 U.S.C. § 1911(b). Mother joined the transfer request on March 10, 1989. A hearing to determine the jurisdictional issue was held on July 19, 1989. The District Court denied the Tribe’s motion to transfer jurisdiction, holding that there was good cause not to transfer because 1) it would not be in T.S.’s best interests to transfer jurisdiction, and 2) it would constitute an undue hardship to the parties and witnesses in Montana to appear in tribal court in Alaska.

I

Did the District Court err when it held that there was good cause not to transfer iurisdiction of child custody proceedings to King Island Tribal Court?

Section 1911(a) and (b) of the Indian Child Welfare Act states:

“(a) Exclusive jurisdiction
“An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law. Where an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child.
“(b) Transfer of proceedings; declination by tribal court
“In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child’s tribe, the court in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child’s tribe; Provided, That such transfer shall be subject to declination by the tribal court of such tribe. (Emphasis supplied.)” 25 U.S.C. § 1911(a), (b).

Since T.S. was not domiciled or residing within the reservation, subsection (b) applies which requires transferring jurisdiction in the absence of good cause to the contrary. This Court has held that in cases that fall under subsection (b):

“The burden of showing ‘good cause to the contrary5 must be carried by the State with clear and convincing evidence that the best interests of the child would be injured by such a transfer. We direct the District Court to consider the guidelines for state courts established by the Department of the Interior in its determination, although in addition thereto the best interest of the child could prevent transfer of jurisdiction upon a ‘clear and convincing showing by the State.”

In the Matter of M.E.M. Youth in Need of Care (1981), 195 Mont. 329, 336, 635 P.2d 1313, 1317.

The guidelines for state courts referred to in M.E.M. state:

“Determination of Good Cause to the Contrary
“(a) Good cause not to transfer the proceeding exists if the Indian child’s tribe does not have a tribal court as defined by the Act to which the case can be transferred.
“(b) Good cause not to transfer the proceeding may exist if any of the following circumstances exists:
“(i) The proceeding was at an advanced stage when the petition to transfer was received and the petitioner did not file the petition promptly after receiving notice of the hearing.
“(ii) The Indian child is over twelve years of age and objects to the transfer.
“(iii) The evidence necessary to decide the case could not be adequately presented in the tribal court without undue hardship to the parties or the witnesses.
“(iv) The parents of a child over five years of age are not available and the child has had little or no contact with the child’s tribe or members of the child’s tribe.
“(c) Socio-economic conditions and the perceived adequacy of tribal or Bureau of Indian Affairs social services or judicial systems may not be considered in a determination that good cause exists.
“(d) The burden of establishing good cause to the contrary shall be on the party opposing the transfer.”

44 Fed. Reg. 67591 (1979).

These guidelines were drafted by the Bureau of Indian Affairs (BIA) and represent the Department of Interior’s interpretation of what grounds would establish good cause. In the introduction, the Department of Interior states the guidelines are “not published as regulations because they are not intended to have binding legislative effect.” 44 Fed. Reg. 67584 (1979). Courts are “free to act contrary to what the Department has said if they are convinced that the Department’s guidelines are not required by the statute itself.” Id. “Primary responsibility for interpreting ... language used in the Act ... rests with the courts that decide Indian child custody cases. For example, the legislative history of the Act states explicitly that the use of the term ‘good cause’ was designed to provide state courts with flexibility in determining the disposition of a placement proceeding involving an Indian child.” Id.

In exercising this flexibility, this Court has determined that the “best interests of the child” test will be applied in Montana in determining good cause not to transfer jurisdiction of custody proceedings of Indian children under § 1911(b). M.E.M. at 336, 635 P.2d at 1317. This “best interests of the child” test should not be confused with the “best interests of the child” test applied under § 40-4-212, MCA, in custody determinations between parents in a dissolution. It should also not be confused with the criteria used to determine child abuse, neglect, and dependency and to terminate parent-child legal relationships under Title 41, Chapter 3, MCA.

In Indian child cases such as this, the first step is to determine the § 1911(b) jurisdiction issue by applying the “best interests of the child” test and considering the BIA Guidelines to determine good cause. M.E.M. at 336, 635 P.2d at 1317. The next step is to hold a temporary dispositional hearing under § 41-3-404, MCA, and a dispositional hearing under § 41-3-406, MCA, to determine whether the child is abused, neglected or is a dependent youth. These proceedings require the appointment of a guardian ad litem under § 41-3-303, MCA, to represent the child’s interests. The final step under Title 41, Chapter 3, is for the court to determine whether the parent-child legal relationship should be terminated under the criteria listed in § 41-3-609, MCA. This stage of the proceedings also requires the appointment under § 41-3-607(3), MCA, of a guardian ad litem to represent the child’s best interests.

In this case the proceedings are still at the jurisdictional level and the District Court properly applied the jurisdictional “best interests of the child” test and considered the BIA Guidelines.

The uncontroverted evidence at the hearing in this case strongly indicates that any transfer of T.S. from her present environment would “devastate” the child and would have long-term harmful effects upon her. This is the longest, most stable and protected environment she has ever known. The District Court properly considered the only loving environment T.S. has ever known in its application of the best interests test. She resides in a home where the mother is Native American and fully capable and willing to teach T.S. about her Indian heritage. T.S. has adapted to her home and the family desires to adopt her as soon as possible.

The Tribe argues that there is a profound difference between the culture of the Eskimo and the Indian culture of the foster mother and that difference makes it in T.S.’s best interests that jurisdiction be transferred. In essence the Tribe argues that § 1915 of the ICWA presumes that it is in the best interests of T.S. that jurisdiction be transferred. 25 U.S.C. §§ 1915, 1903 (1) (iii), (iv). Section 1915(b) suggests preferential foster care placement of an Indian child. That section states:

“(b) Foster care or preadoptive placements; criteria; preferences
“Any child accepted for foster care or preadoptive placement shall be placed in the least restrictive setting which most approximates a family and in which his special needs, if any, may be met. The child shall also be placed within reasonable proximity to his or her home, taking into account any special needs of the child. In any foster care or preadoptive placement, a preference shall be given, in the absence of good cause to the contrary, to a placement with —
“(i) a member of the Indian child’s extended family;
“(ii) a foster home licensed, approved, or specified by the Indian child’s tribe;
“(iii) an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or
“(iv) an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child’s needs.”

In this case T.S.’s maternal grandmother is unable to provide a home for T.S. and there are no other available family members known to the court. The Department of Family Services has made a good faith attempt to comply with the recommended preferential treatment by placing T.S. in a foster home within reasonable proximity to the child’s home in Fergus County and with an Indian foster mother who is fully capable and willing to teach T.S. about her Indian heritage. This Court notes that at the time of the placement, Fergus County was the child’s home. Mother did not move to Alaska until after the child was placed in the temporary foster home pending temporary investigative authority and protective proceedings under § 41-3-402, MCA. The Tribe has not had contact with T.S. and never shown any interest or concern for the living conditions that T.S. has been subjected to. The Tribe insists that it has had contact with T.S. and her Mother and also insists it has not intervened in T.S.’s behalf because it did not know of T.S.’s plight. The Tribe cannot have it both ways. There was no evidence in the record to indicate the Tribe has had any contact with T.S. or her Mother until it received notice of the pending matter in Montana courts. The District Court pointed out:

“... it is obvious from testimony adduced at the hearing and the record that the Tribe showed little or no interest in [T.S.] and [her mother] prior to this action being filed. There is a long and sad history of abuse and neglect of [T.S.] in the State of Alaska. There was also Social Service involvement with this family in Alaska with no intervention or help for [T.S.] by the Tribe.”

The District Court correctly concluded that it was not in the child’s best interest to remove her from the only stable, loving home she had known and send her to an isolated community with which she had never had previous contact. The Tribe claims there has been an intentional delay resulting in a greater period in which bonding has occurred in the foster home, thus suggesting that the failure to immediately transfer jurisdiction has been improper. The record does not demonstrate any intentional delay. The record does demonstrate careful examination by both the Department and the District Court and a vital and proper concern for this Indian child who has been abused for the greater part of her life. While it is true that Mother has joined the Tribe’s request for transfer, the evidence unfortunately shows Mother to be unable to adequately protect and care for this child. We note that the Tribe submitted no factual basis to allow the District Corut to find under the BIA Guidelines or under the best interests of the child test other than that it is in the child’s best interests that jurisdiction remain in Montana. We detect nothing in the proceedings to indicate animosity or lack of respect for the Tribe. Concern for the best interests of the child has been the motivating force for both the Department and the District Court.

Under the Guidelines the District Court determined that subsection (b)(iii) applies, which states that good cause not to transfer exists if the evidence necessary to decide the case could not be adequately presented to the court without undue hardship to the parties or the witnesses. 44 Fed. Reg. 67591 (1979). The witnesses and evidence upon which the Department of Family Services action was filed are all located in Montana. The District Court concluded that it would constitute an undue hardship if the parties and witnesses were required to travel from Montana in order to appear in Tribal Court in Alaska. We conclude there is substantial evidence to support that conclusion.

The Tribe argues that the court has overlooked the recommendation of the Department’s Indian Child Welfare Specialist concerning transfer of jurisdiction. The Specialist’s testimony was not presented at the jurisdictional hearing. The Tribe attempted to bring in the Specialist’s recommendation through a post-hearing motion to reconsider on grounds of new evidence. No evidence was presented in the subsequent hearing on the motion to reconsider to show that the Specialist’s testimony was unavailable at the time of the jurisdictional hearing, and therefore the evidence is not properly before the Court. In addition, cross examination of the Specialist at the hearing on the motion for rehearing, revealed that the Specialist had reviewed some unidentified file material but not the entire file or the transcript of the jurisdictional hearing. No evidence indicated the Specialist had interviewed T.S., her mother, or the foster parents. Without a proper foundation to support the Specialist’s recommendation, the court would have properly not considered the Specialist’s recommendation when applying the best interests of the child test had the evidence been properly before the court. The court correctly denied the motion for reconsideration and properly disregarded the Specialist’s recommendation.

The Tribe argues that a 1989 United States Supreme Court ruling mandates transfer of jurisdiction. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29. Holyfield was a § 1911(a) case that dealt with the definition of “domiciled.” Because T.S. had not been domiciled on the tribal reservation in Alaska, we agree with the conclusion of the District Court that § 1911(a) and Holyfield do not control. There is a valid distinction between a § 1911(b) case such as we have here and a § 1911(a) case such as Holyfield. When the child has been domiciled on the reservation and has significant contacts with the Tribe it is reasonable to assume that jurisdiction should be transferred to the Tribe. In this case we have the opposite circumstances which § 1911(b) is meant to address. T.S. has never lived on the reservation, is not a member of the Tribe and has never had any contact whatsoever with the Tribe. The record demonstrates a total absence of evidence demonstrating that it is in T.S.’s best interests that jurisdiction be transferred to the Tribe.

We hold that the District Court did not err in determining that the best interests of T.S. and undue hardship on parties and witnesses constitutes good cause not to transfer jurisdiction.

II

Did the District Court err when it failed to remove the guardian ad litem from the case when the guardian ad litem expressed misgivings about the ICWA?

The Tribe did not request the removal of the guardian ad litem and may not now predicate error on the District Court’s failure to take such action. In addition, the District Court admonished the guardian ad litem that his thoughts on the ICWA were irrelevant and would be treated as such by the court. We hold the District Court did not err by failing to remove the guardian ad litem.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES BARZ, HARRISON, HUNT and McDONOUGH concur.

JUSTICE SHEEHY,

dissenting:

It is improper and somewhat patronizing to assume that since the child is now placed with an Indian mother, though of a different tribe and territory, that the purpose of the Indian Child Welfare Act is fulfilled, and good cause shown for not assenting to the jurisdiction of the Eskimo tribe.

The very purpose of the Indian Child Welfare Act was to enable the several tribes to maintain their individuality and their cultures in a mobile and fast-changing national society. I daresay without investigation that the culture, mores, religious beliefs and mode of life is substantially different between the Eskimo tribe of the King Island Native Community and the Plains Indian Tribe to which the foster mother presumably belongs. The majority has determined “best interest” of the child lacking even a smidgeon of information of what the King Island Native Community has to offer. I would hold that the Eskimo tribe has a right to reach out and touch us where eligible members of the Eskimo tribe are concerned. One thing is certain: the culture of the Eskimos will not be preserved or prolonged in Montana. I believe you have to start with whale and seal meat, and the derivatives of these creatures, that made Eskimo life uniquely possible.

I would transfer jurisdiction to the Tribal Court of the Eskimo tribe.


author: JUSTICE McDONOUGH

text:
    GRANITE COUNTY, A Political Subdivision, Plaintiff and Appellant, v. CHARLES KOMBEREC, Defendant, Appellant and Respondent.
    No. 90-312.
    Submitted on Briefs Sept. 20, 1990.
    Decided Nov. 1, 1990.
    As Modified on Denial of Rehearing Nov. 20, 1990.
    800 P.2d 166.

      J. Allen Bradshaw, Granite County Atty., Philipsburg, for plaintiff and appellant.

      Fred Thomson, Missoula, for defendant, appellant and respondent.
    Robert L. Deschamps, III, County Atty., Martha E. McClain, Deputy County Atty., Missoula, for amicus.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

The defendant Charles Komberec appeals the judgment of the Montana Third Judicial District Court, Granite County, sitting without a jury, declaring a prescriptive right for a public road crossing Komberec’s property and enjoining Komberec from obstructing the road. We affirm.

Komberec raises the following issues on appeal:

(1) Does Granite County have standing to bring an action for acquisition of a road based on prescription?

(2) Did the District Court err in holding that the public has a right of way by prescription across Komberec’s property?

(3) Did the District Court err in ordering that “the Bureau of Land Management has the right to continue improvements and maintenance on a limited basis on the road”?

(4) Did the District Court err in denying attorney’s fees and costs to Komberec on his motion to compel discovery?

Granite County raises the following issue on cross-appeal: Did the District Court err in concluding that the road was not a county road created by petition of the Deer Lodge County Commissioners in 1889?

Komberec owns a patented mining claim near Garnet, Montana. The property is not now enclosed nor has it ever been. A single lane road about eight feet wide crosses Komberec’s property on an east west course and connects several other mining claims with the small community of Garnet on the west and a county road on the east.

Komberec presented evidence, including an 1896 Deer Lodge County road map, that this connecting county road on the east was originally a northerly spur from a county road created in 1889 which also ran west to Garnet, then called Mitchell, on a more southerly route. This route was known as the Springtown-Mitchell Road. Komberec’s evidence tended to show that beyond this county spur a private road extended to the west connecting more mining claims, including Komberec’s, with the county road spur on the east. Eventually this spur road again joined the county road at a point west of Komberec’s claim. This connecting road became known as the Summit Cabin Road. The portion of Komberec’s property through which this road runs became a part of Granite County in 1941. Komberec contended that at some time prior a portion of the southerly route of the Springtown-Mitchell Road was apparently abandoned in favor of using this northerly route which connected the several mining claims. Komberec produced photographic evidence of a southerly road that could potentially have been the original Springtown-Mitchell Road created by Deer Lodge County.

Komberec has owned his claim since 1984. In June of 1988 he placed a locked gate across the Summit Cabin Road going through his property. On October 28, 1988, the Granite County Commissioners, acting under the belief that the Summit Cabin Road was a county road, filed a complaint alleging that Komberec had obstructed a county road crossing his property and requesting a temporary injunction and a judicial determination of the road’s status. A temporary restraining order was issued enjoining Komberec from interfering with public use of the road pending judicial determination of its status. After a non-jury trial, judgment was entered in favor of the County on March 6, 1990. The court held that while the Summit Cabin Road was not the county road created by petition in 1889, the public had nevertheless acquired a right to use the road through prescription. Komberec appealed the court’s ruling on prescription and the County cross-appealed on the existence of a statutorily created road.

I.

Komberec contends that the County does not have standing to bring an action for acquisition of a public road based on prescription. Komberec concedes that the County has the authority under § 7-14- 2107(1), MCA, to acquire rights of way by eminent domain or petition. However, Komberec argues Article XI, Section 4 of the Montana Constitution precludes the County from acquiring roads by other means. He contends that Article XI Section 4 gives counties only (1) those powers expressly granted to them by the legislature and (2) those necessarily implied from the express grants of power. This contention lacks merit. Article XI, Section 4 of the Montana Constitution provides:

“Section 4. General Powers. (1) Alocal government unit without self-government powers has the following general powers:
“(b) A county has legislative, administrative, and other powers provided or implied by law.
“(2) The powers of incorporated cities and towns and counties shall be liberally construed.”

The literal language of the Constitution calls for liberal construction of county powers. Komberec’s contentions that a county’s powers are limited to those expressly granted are based on “Dillon’s rule”, the former rule prior to the 1972 Constitution regarding the powers of local governments that was modified by the framers of the 1972 Montana Constitution. See Montana Constitutional Convention, v. II, p.792-793, transcript pp. 2522-2524, 2530, 2534. Clearly, under liberal construction of a county’s general powers and its power to acquire roads, the County has standing to maintain an action on behalf of the public for acquisition of a road by prescription. See generally § 7-1-2103(1), MCA, and §§ 7-14-2101, MCA, et seq.

II.

Komberec also contends that the District Court erred in finding that the Summit Cabin Road was a public road by prescriptive use. He argues that the Comity’s evidence does not satisfy the requirements for a public prescriptive easement. We disagree.

Prescriptive easements may be proved by public or private use, but in either case, the party claiming the right must show open, notorious, exclusive, adverse, continuous and uninterrupted use of the easement for the full statutory period. Graham v. Mack (1954), 216 Mont. 165, 172-173, 699 P.2d 590, 595. Recently, in Johnson v. McMillan (1989), 238 Mont. 393, 778 P.2d 395, we discussed public acquisition of a prescriptive easement on a private road:

“That the public may acquire the right by prescription to pass over private land is undisputed and such is the law in Montana. To establish the existence of a public road by prescription it must be shown that the public followed a definite course continuously and uninterruptedly for the prescribed statutory period together with an assumption of control adverse to the owner. ...
“By ‘continuous and uninterrupted use’ is meant that the use was not interrupted by the act of the owner of the land, and that the right was not abandoned by the one claiming it. ...
“This court has said that to establish a prescriptive right it must be shown that the use was adverse and not by permission of the landowner. However, the older a road the more difficult it usually is to produce the proof of actual adverse use because the witnesses are no longer usually available.... [Citations omitted.]”

Johnson,778 P.2d at 396, citing Kostbade v. Metier (1967), 150 Mont. 139, 142-145, 432 P.2d 382, 384-386.

It is also established that use of an alleged easement for the full statutory period, unexplained, creates a presumption of use adverse to the owner which may be overcome by evidence that the use is permissive. ... Johnson, 778 P.2d at 396, citing Lunceford v. Trenk (1974), 163 Mont. 504, 508-509, 518 P.2d 266, 268. District courts sitting as fact finders occupy the best position to determine if the use was permissive or adverse. Johnson, 778 P.2d at 396, citing Lunceford, 518 P.2d at 267.

In affirming the district court in Johnson, we noted that there was substantial evidence to support a finding that public travelers pursued a definite, fixed course, continuously and uninterruptedly, for a long period of time (nearly 100 years). Johnson, 778 P.2d at 396. In this case, there is substantial evidence to support the same. Various witnesses testified that their use of the road began as early as 1927 or 1928 and continued up until the present. The United States Bureau of Land Management (BLM) used the road for timber management. The BLM and Champion Timberlands, Inc. performed maintenance on a portion of the Summit Cabin Road passing through BLM land in connection with a timber sale, however, the evidence indicates that Komberec is the only person to ever perform maintenance on that portion of the Summit Cabin Road crossing his property. The witnesses who testified to using the road themselves also testified that they observed the general public using the road. Among the various purposes of the road testified to were recreational, timber management, fire protection, snowmobiling access, mining and logging traffic. The Granite County Commissioners consider the road to be a county road created by the petition of and acquired from Deer Lodge County.

Komberec argues that the County’s evidence is insufficient to establish a public use that would support the creation of a prescriptive easement. Generally, seasonal use by hunters, fisherman, hikers, campers, use by neighbors visiting neighbors, and persons cutting Christmas trees and gathering firewood are not sufficient to establish such a use. See Medhus v. Dutter (1979), 184 Mont. 437, 443, 603 P.2d 669, 672; Oates v. Knutson (1979) 182 Mont. 195, 200, 595 P.2d 1181, 1184; Taylor v. Petranek (1975), 173 Mont. 433, 439, 568 P.2d 120, 123; Ewan v. Stenberg (1975), 168 Mont. 63, 68, 541 P.2d 60, 63. However, in this case there was evidence of uses other than recreational such as mining, logging, timber management, and fire protection. There is substantial evidence to support the elements of a use by the public over a fixed and definite route for the statutory period.

The element of adverse use is also satisfied. If all the other elements of open, notorious, exclusive, continuous, and uninterrupted use are demonstrated, the element of adverse use is established by presumption. Parker v. Elder (1988), 233 Mont. 75, 78, 758 P.2d 292, 294.

Komberec also contends that the County failed to satisfy all the elements of prescription because it must assert control tantamount to a declaration that the road is a public roadway. See Barnard Realty Co. v. City of Butte (1913), 48 Mont. 102, 136 P. 1064. The Barnard decision relies in part on the case of State v. Auchard (1898), 22 Mont. 14, 55 P. 361. However, the burden on a county of demonstrating that it acquired jurisdiction to create a road has been diminished with the overruling of both Auchard and Warren v. Choteau County (1928), 82 Mont. 115, 265 P. 676 in Reid v. Park County (1981), 192 Mont. 231, 627 P.2d 1210, 1212-1213. We decline to apply the reasoning of this line of cases to cases where a county alleges that it has acquired a road by prescription. Moreover, the Granite County Commissioners testified that they consider the Summit Cabin Road to be a county road, the one acquired by petition of Deer Lodge County in 1889. Thus, there was an assumption of control by the County adverse to Komberec. There is substantial evidence to support the District Court’s finding that the County acquired the Summit Cabin Road by prescription.

III.

Komberec also contends that the District Court erred in ordering “that the Bureau of Land Management has the right to continue improvements and maintenance on a limited basis on the road”. The record indicates that on occasion the County and the BLM made verbal agreements for the BLM to maintain and improve portions of the Summit Cabin Road crossing land other than Komberec’s. Komberec argues that the order is ambiguous as to whether maintenance by the BLM is a permissive right or the BLM’s duty. He further argues that it was error for the District Court to adjudicate rights or duties of the BLM, a non-party in this suit, and for the District Court to adjudicate maintenance of portions of the Summit Cabin Road other than that crossing Komberec’s property, the only portion subject to this suit.

We conclude that the order clearly gives the BLM a permissive right to maintain the road. We also note that such maintenance does not include a right to improve the road where the easement passes through Komberec’s property. Moreover, we decline to determine whether the order regarding improvements and maintenance for the remainder of the road was proper. Regardless of its'propriety, Komberec has failed to demonstrate how the court’s ruling will adversely affect him. To be aggrieved by an order or judgment and so be entitled to appeal a party must have an interest in the subject matter of litigation which is injuriously affected by the judgment or order. Matter of Dearborn Drainage Area (1988), 234 Mont. 331, 336; 766 P.2d 228, 231, Holmstrom Land Co. Inc. v. Meagher County Newlan Creek Water District (1979), 185 Mont. 409, 425, 605 P.2d 1060, 1069. In this case, because we have ruled that the County has a prescriptive right to the road, Komberec cannot be aggrieved by the order because he no longer has an interest in the road that permissive maintenance by the BLM will adversely affect. See Rule 1(b) M.R.App.Civ.P. We will not reverse unless error affects the substantial rights of a party. Dahlin v. Holmquist (1988), 235 Mont. 17, 21, 766 P.2d 239, 241. Thus, Komberec lacks standing to raise this issue on appeal.

IV.

Finally, Komberec contends that the District Court erred when it denied attorney’s fees and costs to Komberec following its order compelling discovery. An award of costs and fees on a motion to compel discovery is governed by Rule 37(a)(4) M.R.Civ.P., which provides in pertinent part:

“Rule 37(a). Motion for order compelling discovery.
“(4) Award of expenses of motion. If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.”

The language of the rule makes an award of costs and fees mandatory unless opposition to the motion was either substantially justified or other circumstances make the award unjust. Komberec argues that the lower court failed to specify either of these circumstances and denied the motion for costs and fees stating simply that sanctions are discretionary.

It is within the District Court’s discretion to decide what sanctions are to be imposed on a party who fails to comply with discovery rules. Barrett v. Asarco (1988), 234 Mont. 229, 234, 763 P.2d 27, 30; Sikorski v. Olin (1977), 174 Mont. 107, 111, 568 P.2d 571, 573; Wolfe v. Northern Pacific Railway Co. (1966), 147 Mont. 29, 40-41, 409 P.2d 528, 534. In interpreting discovery rules, this Court 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. Sikorski, 568 P.2d at 573, Wolfe, 409 P.2d at 534. However, this does not mean that a trial court has inherent power to apply discovery sanctions. State ex rel. Burlington Northern Railroad Co. v. District Court (1989), 239 Mont. 207, 219, 220, 779 P.2d 885, 893. While the trial court has discretion in these matters, the breadth of this discretion is available to the trial court within the statutory language of Rule 37 without any reference to an inherent power theory. Burlington Northern, 779 P.2d at 893.

Here, although the trial court gave no other grounds for denying Komberec his costs and fees on his motion to compel other than its discretionary powers, there is evidence in the record to support a finding that the opposition to the motion was substantially justified or that other circumstances would make an award of expenses unjust. In responding to Komberec’s motion to compel the County explained that the information requested was difficult to gather because the road in controversy was created by petition in 1889. The County also explained that the BLM had some of the materials requested and was slow in providing them. The trial judge, while declining in his discretion to award costs and attorneys fees did note in his memorandum opinion that such an award was a close issue in this case. Considering the explanation given by the County, this suggests and the record supports that the trial judge did find that opposition to the motion was substantially justified or that other circumstances would have made an award of expenses unjust.

V.

On cross appeal, the County and amicus curiae Missoula County argue that the current Summit Cabin Road is the road created by petition of the Deer Lodge Comity Commissioners in 1889 or that it is substantially the same road as the one created in 1889 with some minor variations. The County relies primarily on Reid v. Park County, supra, where this Court held that it is sufficient if the record as a whole shows that a public road was created. Amicus Missoula County cites the case of Central Pacific Railway Company v. County of Alameda (1932), 284 U.S. 463, 468, 52 S.Ct. 225, 227, 76 L.Ed. 402, 408, for the rule that once the establishment of a county road has been shown, the continuing identity of that road must be presumed until overcome by proof to the contrary.

These cases are distinguishable from the case at bar. In those cases there was no contention that two distinct roads once existed. Here, Komberec does not challenge the existence of a county road created in 1889, as in Reid, for the record as a whole indeed shows that a public road was created. Rather Komberec argues that the Summit Cabin Road is a different road than the Springtown-Mitchell road created in 1889. Komberec presented substantial evidence to the District Court to support his contention that the Summit Cabin Road is a different road than the county road created in 1889, thus we will not disturb the District Court’s judgment.

We affirm the District Court’s denial of costs and fees on Komberec’s motion to compel, its order granting the BLM a permissive right to maintain the road, and its conclusion that the public had acquired a prescriptive right for the Summit Cabin Road.

AFFIRMED.

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


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. KERMIT MEDICINE CLOUD KAO, Defendant and Appellant.
    No. 90-162.
    Submitted on Briefs Sept. 6, 1990.
    Decided Nov. 8, 1990.
    800 P.2d 714.

      Benjamin R. Anciaux, Esq., Poison, for defendant and appellant.
    Marc Racicot, Atty. Gen., Jennifer Anders, Asst. Atty. Gen., Helena, Larry J. Nistler, County Atty., Poison, for plaintiff and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Kermit Medicine Cloud Kao appeals his felony conviction of incest, following a jury trial in the Twentieth Judicial District, Lake County. We affirm.

Kao raises the following issues:

1. Did the District Court err in allowing hearsay testimony from two witnesses?

2. Did sufficient evidence exist in the record to support a guilty verdict?

3. Did the District Court improperly allow evidence of Kao’s prior crimes, wrongs, or acts?

4. Did the District Court improperly exclude certain evidence offered by Kao?

5. Did the District Court deny Kao a fair trial under the doctrine of cumulative error?

Kermit Medicine Cloud Kao married Frances Medicine Cloud Kao on March 3, 1983. At the time of their marriage, Frances had a five-year-old daughter, E.M. E.M. lived with her natural father, Tim Morris, in Helena, but through the years, she visited the Kaos in Missoula and later lived with the Kaos in Turtle Lake.

While living at the Kao residence in Turtle Lake, eleven-year-old E.M. ran away from home on two separate occasions, once around February 21, 1989 and once on March 11, 1989. Following the first run-away incident, the Lake County Sheriff’s Office referred E.M. to the Lake County Department of Family Services (DFS). During a counseling session with Linda Noble of DFS, E.M. disclosed that she had been sexually abused by her stepfather, Kao. E.M. also told her mother, Frances, of the abuse incident.

Linda Noble promptly notified the Lake County Sheriff’s Office of the abuse incident; the Sheriff’s Office, in turn, interviewed E.M. In a statement made to Officer Paula Gill on March 6,1989, E.M. stated that Kao had touched her vaginal area during Christmas vacation in 1985 when the Kaos lived in Missoula. E.M. was eight years old at that time.

Meanwhile, Frances wrote a letter to Kao, who was then serving a sentence for an unrelated matter in Montana State Prison. In her letter, Frances told Kao that E.M. had recently run away from home on two occasions and that E.M. was being difficult to manage. Frances, however, did not mention any allegations of sexual abuse.

Kao immediately responded to Frances’ concerns in a letter dated March 14, 1989. Kao’s letter, in relevant part, stated:

“The problems you are having with [E.M.] extend from me. She may have already been messed up, but I did not help matters at all. I turned it into a very sinful deed. It started in Missoula. I touched her intimately and I told her not to tell. That is why I was so mean with her, to scare her so she wouldn’t tell. Then this last time, at Turtle Lake, I knew it was wrong and I tried to ignor [sic] her. I tried really hard, and I almost made it. But I touched her again, just a quick feel, and I knew I was lost. It happened and I really felt dirty. I wanted to tell you, but the fact is I didn’t and because I didn’t I may have destroyed everything. Poor [E.M.], I am so sorry. Frances, I am sorry! And it comes from my heart. I do still have one.”

On May 24,1989, Kao was charged by information with one count of incest. At his one-day trial on November 20, 1989, Kao testified that he did not sexually abuse E.M. — he stated otherwise in his letter only to get E.M. removed from Frances’ residence so his two natural children, who also reside with Frances, would no longer be exposed to the troubled E.M. E.M. could not testify as she was undergoing inpatient psychiatric therapy at Rivendell Center in Butte at the time of the trial.

The jury found Kao guilty of incest as charged. On December 15, 1989, the District Court sentenced Kao to ten years imprisonment for the charge of incest and ten years imprisonment for being a persistent felony offender, both sentences to run consecutively. The court also ordered Kao to complete the sexual offender treatment program and designated him a dangerous offender for parole purposes. From this conviction, Kao appeals.

1. Did the District Court err in allowing hearsay testimony from two witnesses?

The District Court allowed Linda Noble of DFS and Lake County Officer Paula Gill to testify from their personal knowledge regarding 1) E.M.’s unavailability to testify, and, 2) the time-frame of E.M.’s charges as E.M. stated to them. The District Court restricted their testimony to these two areas, and stated that any specific details of the alleged crime which E.M. related to Noble and Gill would not be allowed into evidence. Kao argues that their testimony, however limited, was still hearsay, and unexcepted by Montana Rule of Evidence 804(b)(5) because the court failed to make certain preliminary findings under State v. J.C.E. (1988), 235 Mont. 264, 767 P.2d 309.

We see no error in the District Court’s ruling, but any possible error is harmless; Kao’s conviction will stand based on his admission in his letter as discussed below.

2. Did sufficient evidence exist in the record to support a guilty verdict?

The test for determining sufficiency of the evidence is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573; restated in State v. Wilson (Mont. 1981), [_ Mont. _,] 631 P.2d 1273, 1278-79, State v. Geyman (1986), 224 Mont. 194, 195-96, 729 P.2d 475, 476, and State v. Gilpin (1988), 232 Mont. 56, 68, 756 P.2d 445, 451. Kao argues that if this Court strikes the testimony of Noble and Gill, then the evidence in the record would he insufficient to support a guilty verdict. We disagree. Even if the testimony of Noble and Gill were stricken from the record, Kao’s letter independently establishes that Kao committed the crime of incest beyond a reasonable doubt.

Section 45-5-507, MCA, provides, in part, that a person commits the crime of incest when that person knowingly has sexual contact with a stepchild. Section 45-2-101(60), MCA, defines sexual contact as:

“any touching of the sexual or other intimate parts of the person of another for the purpose of arousing or gratifying the sexual desire of either party.”

This Court has liberally construed what constitutes “touching of the sexual or other intimate parts of the person.” See State v. Gilpin (1988), 232 Mont. 56, 68-69, 756 P.2d 445, 452 (rubbing buttocks and inner thigh); State v. Howie (1987), 228 Mont. 497, 503, 744 P.2d 156, 159 (rubbing belly and between legs); State v. Weese (1980), 189 Mont. 464, 467-68, 616 P.2d 371, 374 (rubbing belly and chest of prepubescent girl).

Here, Kao’s admission in his letter clearly satisfies the elements of incest:

“It started in Missoula. I touched her intimately and I told her not to tell. That is why I was so mean with her, to scare her so she wouldn’t tell. Then this last time, at Turtle Lake, I knew it was wrong and I tried to ignor [sic] her. I tried really hard, and I almost made it. But I touched her again, just a quick feel, and I knew I was lost. It happened and I really felt dirty.”

Although Kao, in his letter, excludes what part of E.M.’s body he intimately touched, this exclusion does not negate Kao’s admission that his touching was intimate. This letter alone is sufficient to satisfy, beyond a reasonable doubt, that Kao knowingly had sexual contact with E.M, and thereby is guilty of incest.

3. Did the District Court improperly allow evidence of Kao’s prior crimes, wrongs, or acts?

Montana Rule of Evidence 404(b) provides, in part:

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

Kao argues that the District Court erred when it allowed into evidence the fact that Kao was in prison in March, 1989, when he wrote the letter to his wife, which stated that he intimately touched E.M. Kao further argues that this “other crimes” evidence violated the notice requirements of State v. Just (1979), 184 Mont. 262, 602 P.2d 957. Kao’s imprisonment was mentioned by the State three times at trial: during opening statement, during direct examination of Frances, and during closing argument. However, Kao’s underlying offense for his imprisonment was never mentioned.

Kao’s argument is without merit, procedurally and substantively. Procedurally, Kao waived appellate review of this issue because he failed to timely object to the admittance of this fact when it was mentioned during the various times at trial. See §§ 46-20-104 and -701, MCA; State v. Kills on Top (Mont. 1990), [243 Mont. 56,] 793 P.2d 1273, 1299, 47 St.Rep. 984, 1012; State v. Ungaretti (1989), 239 Mont. 314, 319, 779 P.2d 923, 926.

Furthermore, Kao’s argument lacks substantive merit as the fact that Kao was in prison when he wrote the letter was not introduced to prove the character of Kao “in order to show that he acted in conformity therewith” under Montana Rule of Evidence 404(b). Rather, the evidence was submitted during the direct examination of Frances to establish the authenticity of Kao’s letter. And the references to Kao’s imprisonment during the State’s opening and closing statements were insignificant and did not prejudice Kao in light of the entire record. We therefore hold that the District Court properly allowed the fact that Kao was in prison when he wrote his letter admitting he intimately touched E.M.

4. Did the District Court improperly exclude certain evidence offered by Kao?

During trial, Kao testified that he was aware that Tim Morris, E.M.’s natural father, had sexually abused E.M. The State informed the court that any reference to sexual abuse by Morris was prohibited by § 45-5-511(4), MCA. The District Court thereby ordered Kao’s testimony stricken from the record and instructed the jury to disregard it.

Section 45-5-511(4), MCA, provides:

“No evidence concerning the sexual conduct of the victim is admissible in prosecutions under this part except:
“(a) evidence of the victim’s past sexual conduct with the offender;
“(b) evidence of specific instances of the victim’s sexual activity to show the origin of semen, pregnancy, or disease which is at issue in the prosecution.”

Kao argues that this evidence should have been admitted to establish that E.M.’s problems stemmed from additional sources besides Kao. Kao’s argument lacks merit and is a clumsy attempt to reduce his own culpability by casting blame on another. Clearly, § 45-5-511(4), MCA, provides no exception to warrant the admittance of this evidence to establish that another person had sexually abused E.M.

Kao further argues that this evidence is admissible under Montana Rule of Evidence 404 (a)(2), which allows “[e]vidence of a pertinent trait of character of the victim of the crime offered by an accused ...” Kao argues that this evidence establishes that E.M. had the pertinent character trait of accusing others of sexually abusing her. Kao’s assertion is unfounded and runs contrary to the intent of § 45-5-511(4), MCA, which prohibits evidence regarding E.M.’s sexual conduct.

Lastly, Kao argues that this evidence is admissible under Montana Rule of Evidence 404(b), the “other crimes” exception. Again, Kao’s argument lacks merit as the “other crimes” involved allege sexual conduct, which again, is specifically prohibited by § 45-5-511(4).

5. Did the District Court deny Kao a fair trial under the doctrine of cumuslative error?

“The doctrine of cumulative error ‘refers to a number of errors which prejudice defendant’s right to a fair trial.’" State v. Ottwell (1989), 239 Mont. 150, 157, 779 P.2d 500, 504 (citations omitted). Kao asserts that the District Court cumulatively erred by 1) allowing the fact that Kao was incarcerated when he wrote his letter admitting that he intimately touched E.M., 2) disallowing Kao’s testimony regarding alleged sexual abuse of E.M. by Tim Morris, and, 3) not dismissing the charges against Kao following the State’s case-in-chief or following Kao’s case-in-chief. Because we have held that the District Court, 1) properly allowed the fact that Kao was incarcerated when he wrote his letter, and 2) properly disallowed any evidence regarding alleged sexual abuse to E.M. by Tim Morris, we hold that the doctrine of cumulative error is inapplicable to this case.

Affirmed.

JUSTICES HARRISON, WEBER, HUNT and SHEEHY concur.


author: JUSTICE HUNT

text:
    In Re the MARRIAGE OF GRETCHEN B. OTTO, Petitioner and Appellant, v. ARTHUR E. OTTO, Respondent and Respondent.
    No. 90-020.
    Submitted Aug. 23, 1990.
    Decided Nov. 8, 1990.
    800 P.2d 706.

      James C. Bartlett, Hash, O’Brien & Bartlett, Kalispell, for petitioner and appellant.
    Stephen C. Berg, Warden, Christiansen, Johnson & Berg, Kalispell, for respondent and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

In November of 1989, the Flathead County District Court entered a decree of dissolution of the marriage of Arthur E. Otto and Gretchen B. Otto. Appellant appeals from the property settlement and child custody award. We affirm.

The issues for review are:

1. Whether the District Court erred in designating respondent the residential parent.

2. Whether the District Court erred in evaluating respondent’s veterinary practice.

Appellant filed a petition for dissolution on April 12,1989. Respondent filed a response on April 17, 1989. The trial on all contested issues was heard by the District Court on August 2 and 3,1989. The District Court entered its findings of fact, conclusions of law and decree of dissolution on November 2, 1989. On November 13, 1989, appellant filed a motion for amendment of findings of fact, conclusions of law and motion to alter or amend decree of dissolution. On November 17, 1989, respondent filed his memorandum opposing petitioner’s motions to amend or alter. A hearing was held on appellant’s motion in Cut Bank, Montana, on December 20,1989. On December 28, 1989, the District Court entered its supplementary findings of fact, conclusions of law and decree. On January 5, 1990, appellant filed her notice of appeal.

Respondent and appellant met at Northfield, Minnesota, while attending classes at St. Olaf College. Following a six-month courtship, they graduated from St. Olaf and married in June of 1967. Respondent received his undergraduate degree in biology and appellant received her undergraduate degree in psychology. Respondent then entered officer’s candidate school with the U.S. Navy at Newport, Rhode Island. Respondent was released from active duty in January of 1970. During the time respondent was in the Navy, appellant worked as a social worker and as a substitute teacher.

Following respondent’s release from the Navy, the couple managed a ranch near Gilford, Montana, for approximately six months until respondent was accepted to veterinary school at Colorado State University. While in veterinary school, appellant taught at a Montessori school, worked as a retailer with a Denver department store, served as a cocktail waitress, and continued as a social worker. During this time, her work was interrupted by two pregnancies. One child died a month after birth, the other child, Josh, their oldest, was bom in 1972.

Upon respondent’s graduation from veterinary school in 1975, the couple sold their trailer house and went on a trip, spending the money from the sale. Virtually penniless, the couple then moved to New Jersey where respondent embarked on his new veterinary career with a one-year internship. During this period, appellant took care of Josh and completed a course at an interior design school.

In August, 1976, the parties moved to Kalispell, Montana, where respondent started his own veterinary practice, which he has continued to the present date. The middle child, Gabe, was born on October 15, 1976. Upon moving to Kalispell, respondent practiced out of a remodeled house on the same site where the veterinary clinic was later built in 1981. The upstairs of the house also served as the family’s temporary residence until they bought a home on Seventh Avenue East. The family lived on Seventh Avenue East during the birth of their youngest son, Paul, on August 26, 1978. In 1983, they moved into their present home on Second Avenue East in Kalispell. Following the birth of Gabe in 1976, appellant began a part-time interior design business which she operated for about ten years. In addition to working as an interior designer, appellant served as a reporter for the local television station, and, approximately one and one-half years before the trial, had begun work at Glacier View Hospital as a psychiatric counselor, primarily involved with adolescents.

The testimony heard at trial was extensive and conflicting. Each party testified as to his or her superior parental skills and ability and introduced character witnesses to foster their claims. Each party also called its own expert witness who testified as to the value of the veterinary clinic. After hearing the testimony, the District Court entered its findings of fact, conclusions of law and decree.

In its decree, the District Court valued the veterinary clinic at $83,227. The District Court ordered an equal distribution of marital assets and awarded joint custody, care and maintenance of the children, with respondent designated primary residential custodian. The District Court awarded appellant liberal visitation including alternating weekends, and major holidays plus six weeks each summer. From this decree appellant appeals.

I.

The first issue raised on appeal is whether the District Court erred in designating respondent as the primary residential parent.

Appellant argues that the District Court’s findings of fact, conclusions of law and order are not supported by substantial evidence.

The District Court is to determine custody in accordance with the best interests of the child, considering all relevant factors, pursuant to § 40-4-212, MCA. The court found that it was in the children’s best interest for the parties to share joint legal custody, with respondent designated as primary residential custodian.

As this Court has said many times, the trial judge in a divorce proceeding is in a better position than this Court to resolve child custody. Lee v. Gebhardt, 173 Mont. 305, 567 P.2d 466 (1977). The District Court’s decision is presumed correct and will be upheld unless clear abuse of discretion is shown. The appealing party must show, by clear error (Rule 52(a), M.R.Civ.R) that the record does not support the judgment of the District Court. Lee, 173 Mont. at 309, 567 P.2d at 468. Despite conflicting testimony of the parties in this case, substantial evidence supports the District Court’s conclusion. Further, the findings show the court considered all factors listed in § 40-4-212, MCA.

Those criteria are as follows:

a) The wishes of the child’s parents as to his custody: The Court privately conferred with the children. The Court notes that both respondent and appellant requested to be designated as primary residential custodian.

b) The wishes of the child as to his custodian: The Court privately conferred with the children. The Court noted that the children unanimously wanted to remain together and live with their father.

c) The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interest: Much of the testimony which the Court heard pertained to this criterion. The Court considered this evidence as reflected in finding of fact VIII.

d) The child’s adjustment to his home, school and community: The evidence shows that the boys are all well-adjusted, intelligent, active individuals. The Court noted this in finding of fact VIII: “They [the children] appear to understand the importance of education and the need to become involved in community activities, which at this point of their lives means athletics and school-related affairs.”

e) The mental and physical health of all individuals involved: This was not an issue in the case as the parties and their children are well-adjusted and healthy. The remaining two criteria are also not applicable since the record did not show physical abuse or chemical dependency existed within this family.

The Court’s finding VIII specifically outlined its reasons in determining that it would be in the children’s best interest that respondent be designated primary residential custodian. First, the court found a “close long-term and deep” relationship between the children and respondent. The court found that this relationship focused on athletics, music and recreational activities. The court also found that this relationship focused on problem solving to which they looked to their father, respondent, for guidance. Second, the court noted the importance of the activities which the relationship focused on and found that “continued and uninterrupted involvement in these areas is more likely with” respondent than with appellant. Third, the court found that respondent’s occupation has allowed him freedom in the past to “actively and consistently participate with the children” in all their activities.

The trier of fact was present at trial to hear all the testimony of the parties involved, including the children whose custody is disputed.

At the time of trial the three children, Paul, Gabe and Josh were ages 10, 12 and 17, respectively. The District Court conferred with the children privately in chambers. The children expressed a shared desire to reside with their father but made it explicit that they wanted to visit their mother as much as, and whenever, they so desired. The children expressed that they did not want the court to set a schedule which dictated when they must and must not visit their mother. All the parties, including the children, agreed that the children should live in the same household.

Both parties presented credible evidence supporting their respective custody claims. The District Court found respondent’s testimony more substantial and credible. It is the District Court’s determination of the children’s best interest that controls. The factors set forth in § 40-4-212, MCA, were considered, appropriate findings were made, and sufficient evidence supported those findings.

Appellant also argues that by definition, in joint custody, the children will live in both parents’ households with time divided as equally as possible. This description is incomplete. We have recently held that “in joint custody, allotment of time for physical custody and residence of the children must be as equal as possible between the parents, but each case is to be determined according to its own practicalities, with the best interests of the child as the primary consideration.” (Emphasis added.) In re the Marriage of Lorenz [Lorenz v. Lorenz] (Mont.1990), [242 Mont. 62,] 788 P.2d 328, 331, 47 St.Rep. 546, 549. Therefore, the fact that the District Court awarded joint custody absent an equal time share of the children does not, per se, amount to an abuse of discretion. The District Court decided that the boys would reside with respondent during the school year and awarded appellant “liberal visitation to include, but not limited to, alternating weekend visitations, maximum communication with the children, alternating major holidays and six (6) weeks visitation each summer.” In making this custody decree, the District Court determined that it would not be in the best interests of the children to shuffle them back and forth between both parents and we find that the District Court did not abuse its discretion by so doing.

In light of the evidence found in the record, we find that the District Court’s findings, conclusions and decree regarding custody is supported by substantial credible evidence. There was no abuse of discretion. The custody award is affirmed.

II.

The next issue is whether the court failed to properly valúate the veterinary practice.

Appellant argues that the District Court’s valuation of the veterinary practice was not supported by sufficient evidence. Specifically, appellant argues that the veterinary practice was undervalued by the District Court at $83,227.

The District Court’s findings of fact must be viewed as a whole. In re the Marriage of Hockaday, 237 Mont. 413, 773 P.2d 1217 (1989). The standard of review in a distribution case is that, absent a clear abuse of discretion, the District Court will not be overturned where the District Court based its distribution of marital assets on substantial credible evidence. In re the Marriage of Stewart, 232 Mont. 40, 42, 757 P.2d 765, 767 (1988). We will not reverse the District Court on a property distribution determination without such a showing. Moreover, the District Court has far reaching discretionary powers when valuing property for distribution. The valuation need only be reasonable in the light of the evidence presented. In re Marriage of Milesnick (1988), 235 Mont. 88, 95, 765 P.2d 751, 755.

Both parties employed qualified appraisers to give expert opinions as to the present value of the subject veterinary practice. The court considered the deposition testimony of appellant’s expert together with the oral testimony of respondent’s expert. Appellant’s appraiser valued the veterinary practice at $185,000 while respondent’s appraiser valued it at $83,227. The District Court accepted the $83,227 appraisal and explained in its findings that this more conservative value was more realistic considering the facts that: 1) the veterinary practice was and always had been a solo practice; and 2) the market in Flathead County had become more competitive which was evidenced by the fact that the ratio of people to veterinarians is currently on the increase.

In the present case, the District Court predicated its $83,227 valuation on the expert testimony of an appraiser. We held in Milesnick, at 94, 765 P.2d at 755, that expert testimony is a reasonable premise for which the District Court may base a valuation. Appellant, however, argues that she too presented expert testimony that the veterinary practice had a value of $185,000 and that there was no rationale given by the court for its $83,227 valuation and, likewise, no rationale for its rejection of the $185,000 valuation. However, in Milesnick, at 95, 765 P.2d at 755, we stated:

“When confronted with conflicting evidence, the court must use its fact-finding powers to determine which evidence is more credible ... Unless there is a clear preponderance of the evidence against the District Court’s valuation, its findings, where based on substantial though conflicting evidence, will not be disturbed on appeal.”

The District Court’s $83,227 valuation of the veterinary practice was reasonable in light of the testimony presented and the rationale set forth in the District Court’s findings. There was no abuse of discretion.

Affirmed.

JUSTICES HARRISON, BARZ, WEBER and McDONOUGH concur.