text:
    IN RE THE MARRIAGE OF MICHELLE L. TADE, formerly known as MICHELLE L. HLAD, Petitioner and Appellant, and MICHAEL E. HLAD, Respondent and Respondent.
    No. 96-489.
    Submitted on Briefs April 10, 1997.
    Decided May 15, 1997.
    54 St.Rep. 426.
    282 Mont. 449.
    938 P.2d 673.
    See C.J.S. Divorce § 629.

      For Appellant: Thomas W. Trigg, Missoula; Vicki Knudsen, Roundup.
    For Respondent: Brian Lilletvedt, Bosch, Kuhr, Dugdale, Martin & Kaze, Havre.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Michelle Tade appeals from the order of the Seventeenth Judicial District Court, Valley County, modifying primary residential custody of her son. We affirm.

We address the following issues:

1. Did the District Court abuse its discretion when it designated Michael as primary residential parent?

2. Did the District Court abuse its discretion when it awarded custody because Michelle moved to Billings to further her education?

BACKGROUND

Michael Hlad and Michelle Tade were married and had one child, Aaron, who was born in 1991. In 1994, the Hlads’ marriage was dissolved by decree of the District Court. Incorporated into the decree was a custody agreement which provided that the parties would have joint custody of Aaron, with physical custody shared on an equal basis, alternating weekly. At that time the parties both lived, as they had during their marriage, in Glasgow, Montana. The parties also agreed to review custody in one year and to modify it if appropriate.

In 1995, Michelle was accepted to Montana State University-Billings. However, she and Michael were unable to agree on a change in Aaron’s custody arrangement. Michelle petitioned for modification, requesting primary physical custody of Aaron based on her anticipated substantial change in circumstances.

At the modification hearing, Michelle testified on the importance of consistency of herself as Aaron’s primary physical custodial parent. Michael testified about Aaron’s ties to home, school, community, and family located in Glasgow. The court heard testimony that Michelle had been Aaron’s primary care provider for three years. When Aaron was three years old and the shared custody plan went into effect, Michael provided primary care on an equal basis for one year. Family members testified that Michael and Michelle are from the Glasgow area and both have close relationships with Aaron.

Following the hearing, the District Court issued findings of fact and conclusions of law. The court granted Michael primary residential custody of Aaron during the school year, with Michelle to have nine days of visitation per month. During the summer, Michelle will have primary residential custody with Michael receiving one monthly weekend visitation.

Michelle appeals from the order modifying custody.

DISCUSSION

1. Did the District Court abuse its discretion when it designated Michael as primary residential parent?

This Court recently explained the jurisdictional requirements for a district court to approve a request for modification of a joint custody decree:

[I]n custody modification cases [,] if a request for modification of a joint custody decree would have the effect of substantially changing the primary residence of the parties’ children, the court, before engaging in modification, must first find that the requirements of [§ 40-4-219, MCA] have been met. If the court finds that (1) “a change has occurred in the circumstances of the child or the child’s custodian,” § 40-4-219(1), MCA, and (2) further finds that the custodial parent and the child or children have moved or are going to move from one location to a different location ... and that this move will hinder the effectiveness of the existing custody arrangement, then (3) § -219’s jurisdictional requirements shall be deemed to have been met, and the court may proceed to modify the custody arrangement according to the “best interest” criteria set out in § 40-4-212, MCA.

In re Marriage ofSyverson (1997), [281 Mont. 1], 931 P.2d 691, 702.

The District Court found that it had jurisdiction to modify custody based on a change in circumstances arising from Michelle’s move to Billings, Montana, and that the change made the previous custody plan no longer practical. Neither party disputes these findings. Therefore, we must determine whether the District Court erred when it modified primary residential custody because, as Michelle claims, the court did not apply the primary care presumption contained at § 40-4-212(3)(a), MCA.

Section 40-4-212(3)(a), MCA, states:

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

The District Court made the following relevant findings in support of its order modifying custody:

Aaron has an interaction and interrelationship with other significant persons in his life who reside and make their home in ... or around the community of Glasgow. Aaron’s home has always been in Glasgow ... a significant community in [his] life. [Michelle’s attending college] is a significant adjustment in her life and represents added stress, and that in turn will be an adjustment for Aaron to also make. Aaron has shown a great ability to make adjustments. The time that Michelle has to spend with Aaron [in Billings] [should not] have school interference and work interference as a significant factor .... Michelle has been a very stable person in Aaron’s life. [T]he circumstances under which this decree is given represent the time and effort that [Michelle] must give to further her education and to finance it. [0]nce she’s completed [her] education, that will represent a change in circumstances that might be sufficient to consider modification.

We will reverse a court’s decision to modify custody only where an abuse of discretion is clearly demonstrated. Syverson, 931 P.2d at 703 (citation omitted). Michelle maintains that she was Aaron’s primary caregiver during the first three years of his life and that the District Court abused its discretion when it modified custody because it misunderstood § 40-4-212(3)(a), MCA, and failed to weigh it properly with other statutory criteria. More specifically, Michelle argues that the court considered she and Michael shared primary care of Aaron equally since their divorce, rather than considering that she “provided most of Aaron’s primary care ‘during the child’s life.’ ”

Michelle cites In re Marriage of Abrahamson (1996), 278 Mont. 336, 924 P.2d 1334, in support of her argument that the District Court inadequately considered § 40-4-212(3)(a), MCA. In Abrahamson, we held that “District courts should be cognizant of § 40-4-213(3)(a), MCA, and should take appropriate steps to ensure that it is, in all applicable cases, adequately considered.” Abrahamson, 924 P.2d at 1338. Abrahamson is distinguishable from Michelle’s situation. There, a custody agreement designated the mother as primary residential custodian. In the Hlads’ custody agreement incorporated as part of their original dissolution decree, however, there was no designation of a primary caregiver or custodian.

Contrary to Michelle’s argument that the District Court misapplied § 40-4-212(3)(a), MCA, we conclude that, based on the court’s findings, the statutory presumption in favor of the primary caretaker was rebutted. Section 40-4-212(3), MCA, applies “unless contrary to the best interests of the child.” See § 40-4-212(3), MCA. The record demonstrates that the court considered the statutory factors contained at § 40-4-212, MCA, when it determined what custody arrangement was in Aaron’s best interest. The court considered both parents’ wishes as to custody; Aaron’s interaction and interrelationship with his parents and other persons who significantly affect his best interest; Aaron’s adjustment to home, school, and the community of Glasgow; and the mental and physical health of all the individuals involved.

We conclude that the District Court did not abuse its discretion when it designated Michael as Aaron’s primary residential parent.

2. Did the District Court abuse its discretion when it awarded custody because Michelle moved to Billings to further her education?

Michelle argues that the District Court penalized her for her decision to attend college. She claims that the court erred when it assumed that she could not both attend college and raise a small child successfully, and that there is no evidence that she would be unable to fulfill roles as both a student and parent.

After a thorough review of the record, we conclude that the evidence does not support Michelle’s claim. The court stated that it gave “significant weight to the adjustment [Michelle] must make to further her education.” It complimented Michelle for her efforts to attend college and explained that they were not negative consequences. The record does not indicate that the court intended to punish Michelle for her decision to attend college. The court did not state that she could not raise a small child successfully while attending college. Rather, the standard was what custody arrangement is in Aaron’s best interest.

As we held previously in this opinion, the court exercised its discretion and considered Aaron’s best interests by applying the statutory criteria for modifying custody contained at § 40-4-212, MCA. We hold that the District Court did not abuse its discretion when it modified custody because Michelle moved to Billings to attend college.

Affirmed.

JUSTICES HUNT, REGNIER, LEAPHART and TRIEWEILER concur.


source: Caselaw Access Project

author: JUSTICE LEAPHART

license: Public Domain

text:
    RONALD U. LURIE, Plaintiff and Appellant, v. 8182 MARYLAND ASSOCIATES, a Limited Partnership, Defendant and Respondent.
    No. 97-024.
    Submitted on Briefs April 3, 1997.
    Rehearing Denied June 5, 1997.
    Decided May 15, 1997.
    54 St.Rep. 429.
    282 Mont. 455.
    938 P.2d 676.

      See C.J.S. Courts § 40.
    For Appellant: Ronald U. Lurie, Pro Se, Bozeman.
    For Respondent: Michael F. McMahon; Harrison, Loendorf, Poston & Duncan, Helena.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Ronald U. Lurie (Lurie), appeals from the Eighteenth Judicial District Court’s order dismissing his complaint due to lack of jurisdiction. We affirm.

Lurie was a general partner and managing partner of the Missouri law firm of Popkin & Stem. In March of 1992, a Chapter 7 involuntary bankruptcy petition was filed against Popkin & Stern in the United States Bankruptcy Court for the Eastern District of Missouri. 8182 Maryland Associates (8182 Maryland), is the largest creditor in Popkin & Stem’s bankruptcy and owns the building where Popkin & Stern conducted its law practice.

8182 Maryland Associates is a limited partnership with one general partner and ten limited partners. Nancy Lurie, Ronald Lurie’s wife, is a limited partner in 8182 Maryland. The general partner is a Missouri corporation, and each of the limited partners except Nancy Lurie are residents of the state of Missouri. The Luries are presently residing in the state of Montana.

In June of 1996, Lurie filed a complaint against 8182 Maryland in Montana’s Eighteenth Judicial District Court alleging that 8182 Maryland breached a Global Settlement Agreement which was approved by the Bankruptcy Court in Missouri and executed between the parties in settlement of ongoing litigation arising out of various pending actions in the state of Missouri. In his complaint, Lurie maintains that the Eighteenth Judicial District Court for the state of Montana has jurisdiction because the action is between citizens of the state of Montana and the amount in controversy exceeds $50,000.

The District Court determined that exercise of long arm jurisdiction over 8182 Maryland was not justified under the seven factors set forth in Nelson v. San Joaquin Helicopters (1987), 228 Mont. 267, 271-72, 742 P.2d 447, 450. After considering each factor, the District Court “declined” jurisdiction. Lurie contends that 8182 Maryland is a citizen of Montana and thus the Montana courts have jurisdiction over suits against 8182 Maryland under Rule 4B, M.R.Civ.R He contends that since 8182 Maryland is a citizen of Montana, the District Court erred in engaging in a long-arm jurisdiction analysis. Rather, since 8182 Maryland is a citizen of the state of Montana, the state need not “acquire” jurisdiction over 8182 Maryland, and, finally, that the Montana court does not have the option of “declining” jurisdiction over a Montana citizen.

We agree that long-arm jurisdiction was not the appropriate analysis since Lurie is not arguing long-arm jurisdiction, but rather that 8182 Maryland is a person found in the state for purposes of general jurisdiction under the first sentence of Rule 4B(1), M.R.Civ.R The question of whether a court may “decline” jurisdiction would arise only if the court had jurisdiction in the first instance. Since we conclude that there is no jurisdiction, we need not address the issue of whether a court can “decline” to exercise jurisdiction.

We restate the issue as follows:

Whether 8182 Maryland, by virtue of a limited partner’s residency in Montana, is a person who can be found in the state of Montana and thus subject to general jurisdiction under Rule 4B(1), M.R.Civ.R

Discussion

The standard of review of a district court’s conclusions of law is whether the court’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686; see also Kreger v. Francis (1995), 271 Mont. 444, 898 P.2d 672.

In determining whether there is in personam jurisdiction, we first determine whether the party comes within the general jurisdiction of the court or qualifies under the long-arm jurisdiction statutes.

Rule 4B(1), M.R.Civ.P., states in relevant part:

(1) Subject to jurisdiction. All persons found within the state of Montana are subject to the jurisdiction of the courts of this state. In addition, any person is subject to the jurisdiction of the courts of this state as to any claim for relief arising from the doing personally, through an employee, or through an agent, of any of the following acts:
(a) the transaction of any business within the state;
(b) the commission of any act which results in accrual within this state of a tort action;
(c) the ownership, use or possession of any property, or of any interest therein, situated within this state;

We have characterized the substance of Rule 4B, M.R.Civ.P, as follows:

The first sentence deals with the question of general jurisdiction, that is, whether the party can be “found within” the state. A party is “found within” the state if he or she is physically present in the state or if his or her contacts with the state are so pervasive that he or she may be deemed to be physically present there. Anonresident defendant that maintains “substantial” or “continuous and systematic” contacts with the forum state is found within the state and may be subject to that state’s jurisdiction even if the cause of action is unrelated to the defendant’s activities within the forum.

Simmons Oil Corp. v. Holly Corp. (1990), 244 Mont. 75, 83, 796 P.2d 189, 194 (citations omitted).

If a defendant’s activities or presence in the state is not sufficient to constitute a finding that the defendant can be “found” within the state so as to subject it to Montana’s general jurisdiction, we then proceed to an analysis of whether the exercise of long-arm jurisdiction would be commensurate with defendant’s due process rights. San Joaquin Helicopters, 742 P.2d at 449. Although the District Court analyzed the case in terms of whether the court should exercise long-arm jurisdiction, we note that Lurie eschews any reliance on a long-arm jurisdiction theory. His sole argument is that 8182 Maryland is a citizen of, and present in, the state of Montana and is therefore subject to the general jurisdiction of our state courts under the first sentence of Rule 4B(1), M.R.Civ. P.

Lurie contends that since limited partner Nancy Lurie is a citizen of Montana, so too is the limited partnership. In support of his argument, Lurie cites to the United States Supreme Court decision, Carden v. Arkoma Associates (1990), 494 U.S. 185, 110 S.Ct. 1015, 108 L.Ed.2d 157. Carden involved an action between a limited partnership, Arkoma Associates (Arkoma), organized under Arizona law, and two citizens of the state of Louisiana, Tom Carden and Leonard Limes (the Defendants). In Carden, the Defendants moved to dismiss the case contending that there was no diversity of citizenship because one of Arkoma’s limited partners was a citizen of the state of Louisiana. The district court denied the motion. The United States Supreme Court reversed because the district court failed to consider limited partners as well as general partners in determining whether there was diversity of citizenship under 28 U.S.C.A. § 1332. The Carden Court held, “[fin sum, we reject the contention that to determine, for diversity purposes, the citizenship of an artificial entity, the court may consult the citizenship of less than all of the entity’s members. We adhere to our oft-repeated rule that diversity jurisdiction in a suit by or against the entity depends on the citizenship of ‘all the members.’ ” Carden, 494 U.S. at 195,110 S.Ct. at 1021 (citation omitted).

Lurie maintains that, in accordance with the United States Supreme Court’s holding in Carden, Nancy Lurie’s citizenship in Montana must be considered in determining whether the District Court has jurisdiction over 8182 Maryland. Lurie contends that because limited partner Nancy Lurie is a citizen of the state of Montana, the District Court has jurisdiction over 8182 Maryland under Rule 4B(1), M.R.Civ.P. In other words, because limited partner, Nancy Lurie can be “found” within the state of Montana, the partnership itself (8182 Maryland) may also be “found” within the state of Montana. Thus, Lurie concludes, a suit between Lurie and 8182 Maryland is a suit between two citizens of the State of Montana and falls within the purview of general jurisdiction.

Lurie’s reliance on the United States Supreme Court’s holding in Carden is misplaced. Carden involves the interpretation of a federal statute, 28 U.S.C.A. § 1332, which defines federal diversity of citizenship jurisdiction. Montana state district courts do not apply diversity of citizenship principles in order to determine jurisdiction. Rather, they apply Montana statutory law and the “minimum contacts” principles enunciated in International Shoe Co. v. Washington (1945), 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95; Estate of Ducey (1990), 241 Mont. 419, 787 P.2d 749, to determine whether the defendant’s activities are so “substantial” or “systematic and continuous” that it can be said the defendant is “found” ^vithin the state.

Lurie does not contend that 8182 Maryland’s activities are so substantial or continuous that it can be “found” in the state of Montana. Rather, he contends that since one limited partner of 8182 Maryland resides in the state of Montana, the partnership itself is therefore a citizen of the state of Montana. We reject his contention. Carden’s holding that a limited partnership is a citizen of each state in which any of its partners, either general or limited, hold citizenship, is not controlling outside the context of determining federal diversity jurisdiction. We hold that the mere fact that a limited partner resides in Montana does not mean that the limited partnership is therefore a “person” found in this state for purposes of general jurisdiction. Furthermore, the mere fact than a partner resides in this state does not establish the minimum contacts necessary to warrant a finding that the limited partnership can be “found” within the state for purposes of general jurisdiction.

The District Court’s decision dismissing Lurie’s complaint is affirmed.

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


author: JUSTICE HUNT

text:
    In Re the Marriage of SUSAN J. PFEIFER, Petitioner, Respondent and Cross-Appellant, v. PHILIP CHRISTOPHER MEREDITH PFEIFER, Respondent, Appellant and Cross-Respondent.
    No. 96-108.
    Submitted on Briefs February 6, 1997.
    Rehearing Denied June 26, 1997.
    Decided May 20, 1997.
    54 St.Rep. 432.
    282 Mont. 461.
    938 P.2d 684.

      See C.J.S. Divorce § 417.

      For Appellant: Philip J. O’Connell, Missoula.
    For Respondent: Evonne Smith Wells, Colleen E. Ambrose, Laurence J. Ginnings, Missoula.
   JUSTICE HUNT

delivered the Opinion of the Court.

The marriage of Appellant Philip Christopher Meredith Pfeifer (Chris) and Respondent and Cross-Appellant Susan J. Pfeifer (Sue) was dissolved pursuant to the findings of fact, conclusions of law and decree of dissolution entered by the Twentieth Judicial District Court, Lake County. Chris appeals the court’s attorney fee award, and Sue cross-appeals the court’s division of the marital estate and the court’s failure to award her maintenance.

We affirm in part, reverse in part, and remand.

Chris’s single issue on appeal is whether the District Court erred in awarding Sue attorney fees.

Sue raises five issues in her cross-appeal. Those issues are as follows:

1. Were the District Court’s findings concerning Sue’s contribution to the marital estate clearly erroneous?

2. Did the District Court erroneously value Sue’s possessory interest in the family home?

3. Did the District Court abuse its discretion in distributing the marital estate by failing to award Sue sufficient income-producing property?

4. Did the District Court err in charging against the marital estate debt owed to trusts from which Chris receives income?

5. Did the District Court err when it failed to award Sue maintenance?

BACKGROUND

Chris and Sue were married in Arizona in 1988. They have one child together, Barbara, who was bom in 1988. A short time before marrying Chris, Sue was involved as a party in divorce and related bankruptcy proceedings. Sue entered into the marriage with Chris with two minor children from her prior marriage, a 1985 Toyota Cressida, and some $10,000 in cash. Sue has earned a high school education and an Associate of Arts degree from Scottsdale Community College in Arizona, and prior to her marriage with Chris had been employed both as a nurse’s aide and a restaurant hostess.

Chris, too, was married and divorced once before entering into the marriage with Sue. Chris has a minor daughter, Michelle, from his first marriage who now lives in Arizona with her mother. Chris receives a monthly disbursement of approximately $50,000 from a number of trusts created for him by his parents and other relatives. Chris has earned a GED high school equivalency degree.

In 1989, Chris, Sue, Barbara and Sue’s two sons from her prior marriage moved from Arizona to a Pfeifer family home in St. Ignatius, Montana. The home and 160 acres surrounding it were purchased from Chris’s father. Chris and Sue attempted to operate the property as a ranch. They purchased cattle and horses, and hired ranch hands to assist in the ranching duties. The parties claim that the purpose of starting up the ranch was to generate a loss to off-set income from the sale of stock that Chris inherited. The ranch has not been profitable.

While married, Chris and Sue enjoyed an expansive lifestyle. They traveled extensively, and purchased many material goods, including Arabian horses, boats, and automobiles. In addition, they purchased two more tracts of land in the St. Ignatius area, although the family continued to live in the home purchased from Chris’s father. The parties also purchased homes in Scottsdale, Arizona and Missoula, Montana. To assist in the care of the children, Chris and Sue hired nannies and housekeepers.

In the early 1990s the marriage began to deteriorate, the parties separated, and in 1994 Sue filed a petition for dissolution. After a hearing, the court on December 15,1995, entered its findings of fact, conclusions of law and decree of dissolution dividing the $2,560,644.00 marital estate. The court declared Sue the primary residential custodian of Barbara and ordered Chris to pay $6,977 per month for Barbara’s support, but declined to award Sue maintenance. The court ordered Chris to pay Sue’s attorney fees as well as his own. Chris appeals, and Sue cross-appeals, from this decree.

CHRIS’S ISSUE ON APPEAL

Did the District Court err in awarding Sue attorney fees?

We review a district court’s award of attorney fees in a dissolution action to determine whether the court abused its discretion. In re the Marriage ofRoullier (1987), 229 Mont. 348,360, 746 P.2d 1081, 1088 (citations omitted). A district court has abused its discretion if its award of attorney fees is not supported by substantial evidence. In re the Marriage of Hall (1990), 244 Mont. 428, 436, 798 P.2d 117, 122.

The attorney fees at issue here were awarded pursuant to § 40-4-110, MCA, which states:

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

This Court has held that an appropriate attorney fee awarded pursuant to § 40-4-110, MCA, is one which is: (1) based on necessity; (2) reasonable; and (3) based on competent evidence. In re the Marriage of Barnard (1994), 264 Mont. 103, 109, 870 P.2d 91, 95 (citing In re the Marriage of Zander (1993), 262 Mont. 215, 227, 864 P.2d 1225, 1233). Moreover, the district court must conduct a separate hearing after trial in order to determine the reasonableness of the attorney fees. In re the Marriage of Davies (1994), 266 Mont. 466, 479-80, 880 P.2d 1368, 1377. Chris contends that the District Court’s attorney fee award did not comply with any of these requirements. We agree.

In its findings of fact the court found:

[t]hat after considering the financial resources of both parties pursuant to Sec. 40-4-110, MCA, [Chris] should be responsible for paying [Sue’s] attorney fees and costs incurred in the this [sic] action, as well as his own.

In its conclusions of law, the court stated:

[t]hat [Chris] should pay [Sue’s] reasonable attorney fees and costs of suit as well as his own.

Sue contends that “this Court has repeatedly affirmed an award of attorney’s fees where the record shows that the District Court considered the financial resources of both parties,” citing Roullier, 746 P.2d at 1088; In re the Marriage of Manus (1987), 225 Mont. 457, 465, 733 P.2d 1275, 1279-80; and, In re the Marriage of Carr (1983), 205 Mont. 269, 273, 667 P.2d 425, 427. However, there is nothing in Sue’s contention, or in the cases she cites, that requires us to affirm the court’s award here. The court’s statement that it considered the parties’ financial resources, without more, is an insufficient basis upon which to determine that an attorney fee award is necessary. The court made no other findings that would indicate how a consideration of the parties’ respective financial resources dictated an award to Sue. Moreover, our review of the record does not reveal any evidence which would clarify how the parties’respective financial resources leads to, and supports, the court’s conclusion. We reverse the award of attorney fees.

CROSS-APPEAL ISSUE ONE

Were the District Court’s findings concerning Sue’s contribution to the marital estate clearly erroneous?

We review a district court’s findings regarding the distribution of the marital estate to determine if those findings are clearly erroneous. In re the Marriage ofEklund (1989), 236 Mont. 77,80, 768 P.2d 340,343. We employ the following three-part test in determining whether a district court’s findings are clearly erroneous:

(1) the Court will review the record to see if the findings are supported by substantial evidence; (2) if the findings are supported by substantial evidence, the Court determines if the trial court has misapprehended the effect of the evidence; and (3) if substantial evidence exists and the effect of the evidence has not been misapprehended, the Court may still find that “a finding is clearly erroneous when, although there is evidence to support it, a review of the record leaves the court with the definite and firm conviction that a mistake has been committed.”

In re the Marriage of Schmitz (1992), 255 Mont. 159, 165, 841 P.2d 496, 500 (citing Interstate Production Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287).

In distributing the marital estate, a district court is required to consider, among other things, a spouse’s contribution as a homemaker. Section 40-4-202(1), MCA. The District Court found that Sue

was a homemaker during the parties’ marriage and made minor contributions to the parties’ ranching operation. The income [Chris] received from his trusts allowed the employment of others to perform most housekeeping and child rearing duties during the marriage. Most of [Sue]’s contribution to the maintenance of the marital estate consisted of spending funds provided by [Chris].

Sue contends that these findings are clearly erroneous because they are not supported by substantial evidence. We disagree.

Our review of the record reveals substantial evidence that Sue was not employed outside the home, but was a homemaker. Further, there is substantial evidence supporting the court’s finding that Chris and Sue employed housekeepers, nannies, and ranch hands to assist with household and ranch duties. There is testimony in the record to the effect that the majority of these duties were performed by the hired help, rather than Chris and Sue. Finally, the record documents Chris’s and Sue’s extravagant spending; neither party can seriously argue otherwise.

However, Sue argues that the court was presented with evidence that established her substantial, rather than minor, contributions to the child rearing and ranching duties. This argument is largely irrelevant in light of the fact that the court’s findings were supported by substantial evidence. See In re the Marriage of Peetz (1992), 252 Mont. 448,454, 830 P.2d 543, 547. In resolving conflicting testimony, we defer to the district court. As we stated in Peetz:

The trial court sits in the best position to judge the credibility of the testimony proffered by the parties to a dissolution action. Because the District Court had the opportunity to observe the demeanor of the witnesses, we defer to its resolution of any conflicting evidence.

Peetz, 830 P.2d at 547 (citation omitted). The District Court’s findings are supported by substantial evidence, and are not clearly erroneous.

CROSS-APPEAL ISSUE TWO

Did the District Court erroneously value Sue’s possessory interest in the family home?

As part of its marital property distribution, the District Court ordered that Sue was entitled to possession of the family home in St. Ignatius and the surrounding 160 acres until July 1, 2007, at which time Barbara will have reached the age of majority. The court valued Sue’s possessory interest at $552,000, and credited her with this amount in calculating the overall property distribution. Sue argues that because this figure is not supported by evidence, the court erred in its valuation. We agree.

While the parties stipulated that the value of the house and acreage was $480,000, the court nevertheless valued Sue’s eleven-year possessory interest at $552,000. As Sue indicates, she would have been credited with a lesser portion of the marital estate if she had been awarded the house and acreage “free and clear of encumbrances.”

That the court attributed a higher value to Sue’s possessory interest than the stipulated value of the house and acreage is not in and of itself erroneous. It was error, however, for the cotut to reach such a determination without a substantial evidentiary basis. Sue argues, and Chris concedes, that there was no direct evidence presented at trial regarding the value of Sue’s possessory interest in the home and acreage. Chris’s argument, despite this concession, that the court properly valued the possessory interest based on “reasonable judgment and common sense,” as well as an extrapolation from the stipulated value of the home and evidence of the rental value of an adjacent home owned by Chris, must fail. The District Court’s “reasonable judgment and common sense” are not in doubt, nor are they at issue here. Rather, what is controlling is the lack of evidence directly addressing the value of Sue’s possessory interest. The court erred in valuing Sue’s possessory interest.

We reverse and remand this issue to the District Court so that it may consider evidence regarding the value of Sue’s possessory interest in the family home and 160 acres.

CROSS-APPEAL ISSUE THREE

Did the District Court abuse its discretion in distributing the marital estate by failing to award Sue sufficient income-producing property?

In distributing the marital estate, the trial court is to consider the factors contained in § 40-4-202(1), MCA, some of which are set out below:

[T]he duration of the marriage and prior marriage of either party; the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties; custodial provisions; whether the apportionment is in lieu of or in addition to maintenance; and the opportunity of each for future acquisition of capital assets and income.

Sue concedes that the court “correctly recited” the factors found in § 40-4-202(1), MCA, but argues that the court “failed to give sufficient weight to the trusts [of which Chris is a beneficiary] in dividing the [marital] property in light of the two statutory factors most relevant to this case: (1) the property division was the alternative to maintenance, and (2) the property division left significantly disparate opportunities to acquire assets and income in the future.”

Sue does not contend that she is entitled to a portion of Chris’s trusts; rather, Sue argues that because the court ordered that the property division was to serve as an alternative to maintenance, and because Chris will continue to be the sole beneficiary of multi-million dollar trusts, a truly equitable property distribution would require that she be granted more income-producing property. Sue contends that the court did not award her sufficient income-producing property.

The court found, on the basis of testimony given by a vocational expert, that Sue’s annual income potential is $16,000. On the other hand the court found that Chris, because of his status as trust beneficiary, has a “substantial” opportunity to acquire income or assets in the future. Sue points out that the parties have widely disparate income acquisition potential, and that the court’s property division did not sufficiently alleviate this disparity. Moreover, Sue contends that the court’s division was additionally insufficient because her award was in lieu of maintenance. This contention is discussed in more detail in Cross-Appeal Issue Five.

It is not entirely clear for what lifestyle or purpose an award of $335,465 in property, $400,000 in cash, $6,977 per month in child support, and an as yet inconclusively valued temporary possessory interest in a 160 acre ranch would be insufficient. Sue impliedly argues that the court’s award will not allow her to enjoy the standard of living she had while she was married, but has presented no concrete argument or evidence to support this assertion; in fact, the amount of property and cash that she received supports a contrary argument. Indeed, the court found that this award would enable Sue to maintain a standard of living similar to the one she enjoyed during the marriage and also provide her with the opportunity to acquire income or assets in the future. Sue testified that she could, and would prefer to, support herself through self-employment on the ranch, particularly by raising livestock and harvesting ostrich eggs; Sue’s ability to undertake this type of work, perhaps with some assistance, is supported by testimony from the vocational expert. Sue was awarded a possessory interest in the ranch, whose mortgage, property tax and insurance costs are to be paid by Chris during the period of Sue’s possession. Sue was awarded a number of horses and cattle and two pair of ostriches. Sue was awarded a substantial amount of cash, a portion of which could presumably be used to hire ranch help as needed. As we see it, the court provided Sue with ample resources to pursue the vocation and lifestyle of her choosing.

Sue makes much of the disparity between her income acquisition potential, and Chris’s. Sue cites In re the Marriage of Smith (1981), 191 Mont. 200, 622 P.2d 1022, where this Court remanded the case to the district court to make a more equitable property division because of a substantial disparity in the parties’ respective earning potentials. In that case, the trial court had determined the husband’s income to be $2,500 per month, and the wife’s income to be $1,900 per year. The court divided the $81,066.95 marital estate nearly equally. In order to reach that equality, the court imposed on property awarded to the wife a $14,161 mortgage in favor of the husband. We concluded that imposing the mortgage on the wife’s property manifested the court’s failure to consider the wife’s inability to acquire property in the future. Smith, 622 P.2d at 1024.

Smith does not require that we find the court here in error. Simply, in Smith, on the basis of the facts in that case, we determined that the court’s property distribution was inequitable in that it did not sufficiently balance the disparity in the parties’ respective earning potentials. Here, pursuant to the relevant facts and circumstances of this case, we conclude that the District Court’s property distribution is equitable as it sufficiently balances the disparity in the parties’ respective income acquisition potentials. As stated, Sue has been awarded a large amount of property and cash. Unlike the situation in Smith, there is no reasonable basis here for a contention that this award is inadequate. We conclude that the court’s property division will sufficiently meet Sue’s needs where perhaps her own earning power alone would not. The property division brings the income disparity reasonably into balance. The court did not err.

CROSS-APPEAL ISSUE FOUR

Did the District Court err in charging against the marital estate debt owed to trusts from which Chris receives income?

The court calculated $952,433.56 as the amount of debt attributable to the marital estate. Of this total debt amount, $631,000 is derived from two loans Chris borrowed from two of the trusts of which he is the beneficiary. $431,000 was borrowed in order to purchase a home in Arizona, while $200,000 was borrowed to purchase the home and 160-acre ranch property hi St. Ignatius. Sue contends the court erred in attributing to the marital debt the $631,000 borrowed from, and repayable to, the trusts of which Chris is the sole beneficiary.

Sue argues that the $631,000 should not be considered a true debt because in repaying the trust for that loan, Chris is essentially repaying himself. Chris disagrees, contending that his repayment obligations on these loans are genuine. In support of this contention, Chris points to the deposition testimony of Karol Mauk, Chris’s trust officer, who explained that: Chris signed promissory notes for the two loans, and that the notes are secured by mortgages on the Arizona and Montana homes purchased with the loan proceeds; Chris has been making and will continue to make interest payments on the loans; and that the loans must ultimately be repaid in full. Chris asserts that this evidence supports the court’s decision to include as marital debt the $631,000 loan borrowed from the trusts.

Sue contends, however, that Ms. Mauk’s deposition testimony is insufficient evidence to support the court’s decision. Sue cites Schmitz, 841 P.2d 496, as support for her contention. In Schmitz, the court included as marital debt a $22,600 loan that the husband claimed that he owed his father. Both the husband and the father testified as to the existence of the loan, but their descriptions of the amount of the loan were inconsistent. Moreover, the husband testified that his obligation to repay the loan was pursuant to a verbal agreement; however, the husband had not yet made any payments, nor had the father demanded any payment. Schmitz, 841 P.2d at 500. We concluded that “[n]o evidence was presented of a loan agreement, note, check, form of receipt, or existence of terms of loans.” Schmitz, 841 P.2d at 501.

Sue argues that Schmitz requires that, in the context of determining the marital estate, a party asserting the existence of a valid debt chargeable to the estate must present documentary evidence to that effect. We disagree with Sue’s interpretation of Schmitz. Schmitz does not require documentary evidence of a loan agreement, it merely requires competent evidence of a loan agreement. As stated, evidence was presented through Ms. Mauk’s testimony of the existence of two promissory notes secured by mortgages on the homes purchased with the loan proceeds. We conclude that this evidence was sufficient to support the court’s decision to include the $631,000 in loans as debt chargeable to the marital estate. The court did not err.

CROSS-APPEAL ISSUE FIVE

Did the District Court err when it failed to award Sue maintenance?

When a court awards maintenance in a dissolution proceeding, it must do so pursuant to the guidelines set forth in § 40-4-203, MCA. However, maintenance awards are generally not favored in Montana. In re the Marriage ofLuisi (1988), 232 Mont. 243, 247, 756 P.2d 456,459. A maintenance award should only be made if, first, the spouse seeking maintenance lacks sufficient property to provide for that spouse’s reasonable needs, and, second, the spouse is unable to support himself through appropriate employment or is otherwise precluded from seeking employment outside of the home. Section 40-4-203(1), MCA; see also In re the Marriage ofDorville (1992), 254 Mont. Ill, 113, 836 P.2d 588, 589. We review a court’s decision regarding maintenance to determine whether the court’s findings supporting its decision are clearly erroneous. In re the Marriage of Bross (1993), 256 Mont. 174, 177, 845 P.2d 728, 730.

The District Court decided not to award Sue maintenance, determining that Sue had been awarded sufficient property to provide for her reasonable needs. Sue argues, however, that the court’s decision not to award her maintenance was erroneous because the court did not award her sufficient income-producing property. This Court has defined “sufficient property” as that phrase appears in § 40-4-203, MCA, to mean “income-producing property.” Luisi, 756 P.2d at 459-60. Sue contends that her possessory interest in the 160-acre ranch is not an income-producing asset, but an income-consuming asset. Sue asserts that because she did not receive enough horses, cattle, and equipment, she cannot make money through ranching. Moreover, Sue contends that even if she were able to make a profit from ranching, it could never be enough to meet her reasonable needs as established by the lifestyle she enjoyed during the marriage. We do not agree with Sue, as the record supports the court’s findings to the contrary.

With respect to its decision not to award maintenance, the court found:

That [Sue] asks for spousal maintenance of $8,000.00 per month and [Chris] asks that no maintenance be awarded. Sec. 40-4-203, MCA provides that the Court may grant a maintenance order only if it finds that the spouse seeking maintenance: (a) lacks sufficient property to provide for her reasonable needs; and (b) is unable to support herself through reasonable employment. The Court finds that [Sue] entered the marriage with virtually no assets and will exit the marriage a millionaire with a substantial monthly payment for the support of her minor child, and she is able to support herself through appropriate employment on the 160-acre ranch or otherwise. [Sue], therefore, will have sufficient property to provide for her reasonable needs and is able to support herself through appropriate employment and is not entitled to spousal maintenance.

The court’s findings in this regard are supported by substantial evidence. We have described already the property award to Sue: the cash payment of $400,000; the possession and use of the 160-acre ranch, without the obligation to pay mortgage, tax, or insurance costs; and, the award of livestock (seven horses, ten charolois cattle, two longhorn cattle, and two pair of ostriches) and equipment (horse trailers, irrigation line, “Hotsy” cleaning system). We have also described the testimony regarding Sue’s desire and ability to support herself through employment on the ranch. This evidence supports the determinations that the property award will provide Sue with income-producing property, will allow Sue to support herself through the employment of her choosing, and will enable Sue to enjoy a standard of living similar, if not identical, to her standard of living while married. Sue’s contentions that the ranch is not an income-producing asset, and alternatively, that she has not received sufficient income-producing assets, are unfounded and in any event largely irrelevant, as “[fit is not a question of whether we could be persuaded to reach a different conclusion after considering the same evidence. The test is whether the District Court had adequate evidence to support its conclusions.” Bross, 845 P.2d at 730-31. The court’s findings are supported by substantial evidence, and are not clearly erroneous. The court did not err in its decision not to award Sue maintenance.

CONCLUSION

Our review of the record in this matter leaves us with the firm conviction that, for the most part, the District Court properly addressed the issues before it in this matter. The court equitably distributed the marital estate, giving due consideration to the respective needs, desires, and abilities of the parties. There are, however, two exceptions to our overall “firm conviction,” and on those bases we reverse and remand. First, we conclude that the court erred in awarding Sue attorney fees, and on that issue we therefore reverse. Second, we conclude that the court erred in its valuation of Sue’s possessory interest in the St. Ignatius home and 160-acre ranch. On remand, the court must conduct a hearing where it shall consider evidence which directly addresses the value of this possessory interest.

Affirmed in part, reversed in part, and remanded.

JUSTICES REGNIER, NELSON, LEAPHART and GRAY concur.


author: JUSTICE NELSON

text:
    JOE YARBOROUGH, Petitioner and Appellant, vs. MONTANA MUNICIPAL INSURANCE AUTHORITY (MMIA), Respondent and Insurer for CITY OF BILLINGS, Employer and Respondents.
    No. 96-376.
    Submitted on Briefs May 8, 1997.
    Rehearing Denied June 19, 1997.
    Decided May 20, 1997.
    54 St.Rep. 438.
    282 Mont. 475.
    938 P.2d 679.
    See C.J.S. Workmen’s Compensation § 555(14).

      For Appellant: Patrick R. Sheehy, Halverson, Sheehy & Plath, Billings.
    For Respondent: Oliver H. Goe, Browning, Kaleczyc, Berry & Hoven, Helena.
   JUSTICE NELSON

delivered the Opinion of the Court.

On June 28, 1996, the Workers’ Compensation Court entered findings of fact, conclusions of law and judgment denying Petitioner/Appellant Joe Yarborough (Yarborough) compensation and medical benefits for an alleged work-related injury as well as attorney fees, costs and a penalty. Yarborough appeals only that portion of the judgment denying him compensation and medical benefits for his alleged work-related injury. We affirm.

We restate the issues raised on appeal as follows:

1. Did the Workers’ Compensation Court err in determining that Yarborough did not suffer a compensable injury when he developed post-traumatic stress disorder?

2. Did the Workers’ Compensation Court err in determining that Yarborough did not suffer any permanent physical restriction from the October 22, 1987 injury?

3. Did the Workers’ Compensation Court err in determining that Yarborough’s wages during 1987 were $1,780 per month or $21,360 annually?

4. Did the Workers’ Compensation Court err in failing to award wage supplement benefits for the period 1988 to 1995?

FACTUAL AND PROCEDURAL BACKGROUND

Yarborough worked as a firefighter for the City of Billings in Yellowstone County, Montana, from 1983 until 1987. On October 22, 1987, Yarborough responded to a fire at a residential home in Billings, Montana. Upon approaching the burning home, a “fireball” exploded from the home, striking and injuring Yarborough and one other firefighter. Yarborough was taken to the emergency room in Saint Vincent Hospital and treated for first and second degree bums on his face and hands. He did not return to work for two and one-half weeks. Thereafter, Yarborough resumed his normal duties without restriction until he resigned. His last day of work was December 24,1987.

Prior to the October 22, 1987 accident (the accident), Yarborough had been treated for depression, substance abuse, family problems and work problems beginning in 1983. After the accident, Yarborough’s psychiatrist diagnosed him as suffering from post-traumatic stress disorder (PTSD) as a result of the accident.

On May 24,1995, Yarborough filed a Petition for Hearing with the Workers’ Compensation Court seeking an award of temporary total disability benefits, permanent partial disability benefits and medical benefits for the injuries he sustained on October 22,1987. After the Montana Municipal Insurance Authority (MMIA), Respondent and Insurer for the City of Billings, filed a motion for summary judgment, Yarborough abandoned all claims to temporary total disability benefits. On May 7,1996, the Workers’ Compensation Court held trial on Yarborough’s claim to permanent partial disability benefits, specifically wage supplement benefits.

On June 28, 1996, the Workers’ Compensation Court entered its findings of fact, conclusions of law and judgment denying Yarborough any compensation or medical benefits. The Workers’ Compensation Court held that Yarborough’s PTSD arose from “emotional or mental stress,” and, therefore, was excluded from the definition of injury as set forth under § 39-71-119, MCA (1987). Accordingly, the Workers’ Compensation Court held that Yarborough’s condition was not compensable under the Montana Workers’ Compensation Act (the Act). From this judgment, Yarborough appeals. We affirm.

DISCUSSION

With regard to Issue 1, we hold that the Workers’ Compensation Court correctly determined that Yarborough’s PTSD is not a compensable injury under § 39-71-119, MCA (1987). Consequently, we affirm the Workers’ Compensation Court’s judgment denying Yarborough compensation and medical benefits. Accordingly, because Issue 1 is dispositive, we will not address the remaining three issues raised on appeal.

Did the Workers’ Compensation Court err in determining that Yarborough did not suffer a compensable injury when he developed post-traumatic stress disorder?

In Conclusion of Law No. 3, the Workers’ Compensation Court stated in pertinent part:

The claimant in this case was fully credible. Nonetheless, I conclude that as a matter of law claimant’s psychological condition is not a compensable injury within the meaning of the Montana Workers’ Compensation Act.
In this case, ... there is no evidence indicating that claimant’s PTSD was caused by injuries he suffered on ... October 22, 1987. The injuries were resolved in a short time and were inconsequential. Rather, the evidence demonstrates that it was the mental shock or mental fright that gave rise to claimant’s disability. Thus, his mental condition is one “arising from ... emotional or mental stress” and is excluded from the injury definition [under § 39-71-119, MCA (1987)]. Since claimant’s PTSD and resulting disability were not a consequence of his physical injuries, they are not compensable under the Workers’ Compensation Act.

We review the Workers’ Compensation Court’s conclusions of law to determine whether those conclusions are correct. Wunderlich v. Lumbermens Mut. Cas. Co. (1995), 270 Mont. 404, 410, 892 P.2d 563, 567.

The relevant portion of § 39-71-119, MCA (1987), provides:

(1) ‘Injury” or “injured” means:
(a) internal or external physical harm to the body;
(2) An injury is caused by an accident. An accident is:
(a) an unexpected traumatic incident or unusual strain;
(b) identifiable by time and place of occurrence;
(c) identifiable by member or part of the body affected; and
(d) caused by a specific event on a single day or during a single work shift.
(3) “Injury’ or “injured” does not mean a physical or mental condition arising from:
(a) emotional or mental stress; or
(b) a nonphysical stimulus or activity.

Yarborough argues that the Workers’ Compensation Court’s conclusion of law is in error. He asserts that § 39-71-119, MCA (1987), requires a claimant to prove three things: (1) the claimant has an injury; (2) the claimant’s injury was caused by an accident; and (3) if a mental condition is associated with that injury, that mental condition cannot arise from “emotional or mental stress” or “a nonphysical stimulus or activity.” Yarborough contends that he proved all three elements. Specifically, Yarborough contends that unlike the injuries at issue in both Stratemeyer v. Lincoln County (1993), 259 Mont. 147, 855 P.2d 506 (Stratemeyer I); and Kleinhesselink v. Chevron, U.S.A. (1996), 277 Mont. 158, 920 P.2d 108, his PTSD did not arise from emotional or mental stress, but rather arose from a physical stimulus — bums he received from the house-fire accident. See Stratemeyer I, 259 Mont. 147, 855 P.2d 506 (holding that § 39-71-119(3), MCA (1987), which precluded Stratemeyer from recovering under the Act for his mental injuries arising from emotional or mental stress, was constitutional). Alternatively, Yarborough contends that § 39-71-119(3), MCA (1987), does not require that a mental condition result from physical harm to the body, but rather only requires a physical stimulus or activity such as the house-fire explosion. Therefore, Yarborough argues that he suffered a compensable injury as defined in § 39-71-119, MCA (1987).

MMIA responds that the Workers’ Compensation Court’s conclusion of law is correct. While MMIA does not dispute that Yarborough suffered physical injuries on October 22, 1987, MMIA also asserts that his physical injuries healed quickly, left no permanent disability, and Yarborough returned to work after a short period of time. Agreeing with the Workers’ Compensation Court, MMIA argues that Yarborough’s PTSD resulted not from his physical injuries which were resolved within several weeks of the accident, but from the emotional and mental stress of the accident combined with his pre-existing psychological distress. Therefore, MMIA argues that the Workers’ Compensation Court correctly held that Yarborough’s PTSD is not a compensable injury under § 39-71-119, MCA (1987).

This first issue on appeal centers on the Workers’ Compensation Court’s interpretation of § 39-71-119(3), MCA (1987), as it applies to Yarborough’s PTSD. We must determine whether the Workers’ Compensation Court correctly concluded that Yarborough’s mental condition arose from “emotional or mental stress.” In Stratemeyer v. Lincoln County (1996), 276 Mont. 67, 915 P.2d 175 (Stratemeyer II), Stratemeyer, a deputy sheriff, sued his employer in tort for mental injuries he allegedly suffered after responding to a suicide call and witnessing the aftermath. On appeal, we addressed the issue of whether Stratemeyer could bring a tort action against his employer for mental injuries which were excluded from the Act. Stratemeyer II, 915 P.2d at 179-82 (second appeal arising from mental injuries he suffered while working as deputy sheriff). See Stratemeyer I, 259 Mont. 147,855 P.2d 506. We held that because Stratemeyer’s mental injury was by definition excluded from coverage under the Act pursuant to § 39-71-119, MCA, his mental injury was also excluded from the exclusive remedy provision of § 39-71-411, MCA, and, therefore, he could sue his employer in tort. Stratemeyer II, 915 P.2d at 179-82.

Our conclusion that Stratemeyer’s mental injury did not satisfy the definition of compensable injury pursuant to § 39-71-119, MCA, was based upon our classification of Stratemeyer’s emotional distress as “mental-mental” (mental stimulus, mental consequence). Stratemeyer II, 915 P.2d at 182. As defined under § 39-71-119(3), MCA, “ ‘[ilnjury’ or ‘injured’ does not mean a physical or mental condition arising from: (a) emotional or mental stress; or (b) a nonphysical stimulus or activity.” Consequently, because Stratemeyer’s mental condition arose from emotional or mental stress, his injury was excluded from coverage by the Act. Sections 39-71-119(3) and 39-71-411, MCA.

Following the rationale set forth in Stratemeyer II, we held in Kleinhesselink that Kleinhesselink also was precluded from recovery under the Act, and, therefore, he could proceed with his tort action against his employer. Kleinhesselink, 920 P.2d at 111. Kleinhesselink worked as a safety coordinator at a mining company. An accident occurred when Kleinhesselink’s safety instructions were ignored, resulting in the death and injury of mine workers. Due to this accident, Kleinhesselink requested workers’ compensation benefits, alleging that he suffered from a variety of symptoms including guilt, depression, chronic fatigue, insomnia, nausea, headaches, muscle spasms and digestive problems. His request was denied. Kleinhesselink, 920 P.2d at 109-10.

On appeal, we compared Kleinhesselink’s injuries to those Stratemeyer suffered. In addition to allegedly suffering “mental-mental” injuries, as did Stratemeyer, Kleinhesselink also allegedly suffered from “mental-physical” injuries. Kleinhesselink, 920 P.2d at 111. That is, Kleinhesselink alleged that he suffered mental, emotional and physical injuries which arose from the emotional or mental stress caused by the mining accident deaths and injuries. Kleinhesselink, 920 P.2d at 111. While Kleinhesselink’s injuries were both physical and mental, we noted that § 39-71-119(3)(a), MCA, excluded from the Act both physical and mental conditions arising from emotional or mental stress, i.e. “mental-physical” injuries and “mental-mental” injuries are excluded. Kleinhesselink, 920 P.2d at 111. Consequently, because Kleinhesselink’s physical and mental conditions arose from emotional and mental stress, he could not recover under the Act for his alleged injuries, and, therefore, could proceed with his tort action against his employer. Kleinhesselink, 920 P.2d at 111.

Just as in Stratemeyer II and Kleinhesselink, Yarborough allegedly suffers from a mental condition of PTSD. However, Yarborough argues that, unlike Stratemeyer and Kleinhesselink, his mental injuries resulted from a physical stimulus. While we agree with Yarborough’s suggested analytical approach concerning the requirements of § 39-71-119, MCA (1987), we disagree with Yarborough’s argument that his mental injuries resulted from a physical stimulus as required by § 39-71-119(3), MCA (1987). First, we find unpersuasive Yarborough’s alternative argument that the house-fire éxplosion itself constituted the required physical stimulus. Furthermore, based on the evidence presented, we also disagree with Yarborough’s argument that the bums to his hands and face constituted a physical stimulus which caused his mental injury of PTSD.

Rather, based upon the plain language of § 39-71-119, MCA (1987) and the evidence presented, we agree with the Workers’ Compensation Court that Yarborough’s PTSD arose from emotional or mental stress, and, therefore, is not a compensable injury. First, Yarborough did suffer first and second degree bums to his hands and face, and, therefore, experienced an “injury” as defined by § 39-71- 119(l)(a), MCA (1987). Second, he received these bums in the house-fire explosion on October 22,1987, and, therefore, his injury was caused by an “accident” as defined by § 39-71-119(2), MCA (1987). However, Yarborough’s subsequent mental condition of PTSD did not arise from a physical stimulus, i.e. the bums to his hands and face, as required by § 39-71-119(3), MCA (1987). The Workers’ Compensation Court explained that no evidence indicated that Yarborough’s injuries from the accident caused his PTSD, but, “[r]ather, the evidence demonstrates that it was the mental shock or mental fright that gave rise to [Yarborough’s] disability.” Thus, the Workers’ Compensation Court concluded that Yarborough’s PTSD arose from emotional or mental stress, and, therefore, his mental condition was excluded from the injury definition under. § 39-71-119(3), MCA (1987). Consequently, the Workers’ Compensation Court ruled that Yarborough’s PTSD was not a compensable injury under the Act.

Upon review of the expert medical testimony, we agree with the Workers’ Compensation Court that no evidence indicates that Yarborough’s PTSD was caused by the physical injuries he suffered from the accident on October 22, 1987. In fact, both medical experts linked Yarborough’s PTSD with the accident itself and not with Yarborough’s physical injuries — i.e. the first and second degree bums which where treated and quickly healed without incident. In his opinion letter dated January 8, 1996, Yarborough’s psychiatrist, Thomas W. Van Dyk, M.D., stated the following:

In my opinion the traumatic events of the fire on October 22,1987 aggravated and exacerbated [Yarborough’s] previous mental condition and added a new feature to his psychiatric diagnosis, that being Post Traumatic Stress Disorder. Because of this Post Traumatic Stress Disorder he was no longer able to continue his employment as a fire fighter because he experience [sic] increased anxiety and revulsion and fear in dealing with fire situations..... I feel that Mr. Yarborough should be permanently restricted from working as a fire fighter because of the traumatic events of October 22, 1987, the consequent Post Traumatic Stress Disorder and exacerbation of his other mental conditions.

Additionally, after testifying on May 7, 1996, that he determined the explosion of October 22, 1987 to be the cause of Yarborough’s PTSD, Dr. Van Dyk explained why he stated in his opinion letter of January 8, 1996, that Yarborough should be permanently restricted from working as a fire fighter:

I feel that if he were to return to fire fighting and be exposed to another explosion or dangerous fire situation where — or these ambulance events, there is the possibility of his anxiety getting worse, these post-traumatic symptoms getting worse and him not functioning as a fire fighting or ambulance person, being a [sic] dangerous to others or being dangerous to himself by not being able to function, and becoming physically injured.

Similarly, on September 25,1995, after conducting an independent psychological examination of Yarborough, Joseph K. McElhinny, Psy.D., included the following in his psychological evaluation:

Mr. Yarborough’s inability to function as a fire fighter, by his report, after the work related accidents in 1987 is primarily a result of his pre-existing personality style and the non-work related psychosocial stressors he was experiencing at the time..... The work related accidents no doubt exacerbated his psychologic problems and it is difficult to determine at this late date when the post-accident trauma actually was resolved.....
I would estimate that at least 80% of Mr. Yarborough’s psychiatric difficulties post-accident, were due to longstanding issues and 20% were exacerbation directly related to the accidents.

After reviewing the evidence in the record, we hold that the Workers’ Compensation Court correctly concluded that Yarborough’s PTSD arose from emotional or mental stress, and, therefore, that Yarborough’s PTSD was not a compensable injury as defined by § 39-71-119, MCA (1987). Although Yarborough did suffer bums to his face and hands, no medical expert testified that Yarborough’s PTSD directly resulted from those physical injuries. Rather, the medical testimony linked Yarborough’s PTSD only to the house-fire explosion itself. Consequently, just as in Stratemeyerll and Kleinhesselink, Yarborough’s PTSD resulted from emotional or mental stress, and, therefore is a “mental-mental” injury, excluded from the definition of injury as set forth under § 39-71-119, MCA (1987). See Stratemeyerll, 915 P.2d at 182 andKleinhesselink, 920 P.2d at 111. Accordingly, we affirm the Workers’ Compensation Court’s judgment denying Yarborough compensation and medical benefits.

Affirmed.

JUSTICES GRAY, LEAPHART, TRIEWEILER and HUNT concur.


author: JUSTICE TRIEWEILER

text:
    DOROTHY J. LAKE, on her own behalf, and as the personal representative of the estate of CHARLES EDWARD LAKE, deceased, on behalf of his heirs, Plaintiff and Appellant, v. STATE OF MONTANA, Defendant and Respondent. MARK JEFFREY HODIK, a minor, in his own behalf, and by MARY JO HODIK, his next friend and the personal representative of the estate of JAMES D. HODIK, deceased, Plaintiff and Appellant, v. STATE OF MONTANA, Defendant and Respondent.
    No. 96-095.
    Submitted October 22, 1996.
    Decided May 27, 1997.
    54 St.Rep. 442.
    282 Mont. 484.
    938 P.2d 698.
    See C.J.S. States § 196.

      For Appellants: Ira D. Eakin (argued) and Michael G. Eiselein; Lynaugh, Fitzgerald, Eiselein & Eakin; Billings.
    For Respondent: Anita Harper Poe (argued), Sherman V. Lohn, and William Evan Jones; Garlington, Lohn & Robinson; Missoula.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The plaintiffs, Dorothy J. Lake and Mary Jo Hodik, individually and as personal representatives of the estates of Charles Edward Lake and James D. Hodik, commenced separate actions in the District Court for the First Judicial District in Lewis and Clark County to recover damages for personal injuries to and the wrongful deaths of their deceased husbands, whom they claim were injured while working on property owned and controlled by the defendant, State of Montana, through its Department of Military Affairs. After the cases were consolidated by the District Court, the State moved the court to dismiss plaintiffs’ complaints by summary judgment pursuant to Rule 56, M.R.Civ.P. After considering the arguments of the parties, the District Court concluded that both claims were barred by the U.S. Supreme Court’s decision in Feres v. United States (1950), 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 2d 152, and the Ninth Circuit Court of Appeals’ decision in Stauber v. Cline (9th Cir.1988), 837 F.2d 395, cert. denied (1988), 488 U.S. 817, 109 S.Ct. 55, 102 L.Ed.2d 33. The District Court granted the State’s motion to dismiss both complaints with prejudice. Both plaintiffs appeal from the District Court’s order. We reverse the judgment of the District Court.

We consider the following issue dispositive:

Can a person who is allegedly injured by the negligence of the State of Montana, acting through its Department of Military Affairs, while in the course of his employment as a civil service technician employed by the United States Army, sue the State of Montana to recover damages for those injuries?

STANDARD OF REVIEW

Summary judgment is governed by Rule 56(c), M.R.Civ.R, which provides, in relevant part, as follows:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Rule 56(c), M.R.Civ.R

This Court reviews an order which grants summary judgment de novo and applies the same criteria as the district court. Fenger v. Flathead County (1996), 277 Mont. 507, 509-10, 922 P.2d 1183, 1184.

In this case, the District Court’s order is based on its conclusions of law. We review conclusions of law to determine whether they are correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

FACTUAL BACKGROUND

Plaintiffs alleged by complaint that their deceased spouses, Charles Edward Lake and James D. Hodik, were injured on June 7,1989, while testing M-l Abrams tanks when those tanks collided on a test track at Fort Harrison near Helena, Montana. Hodik died from his injuries on the same date. Lake survived for a period of time, but subsequently died as a result of his injuries on August 9,1991.

Plaintiffs alleged that at the time of the collision which caused their husbands’ deaths, both Lake and Hodik were employed by the United States Department of Defense as civil service technician-mechanics, and had been employed to operate the tanks owned by the Department of Defense during a fielding program designed to test the tanks’ mechanical performance before turning over ownership of the tanks to the State of Montana and its Department of Military Affairs.

Finally, the plaintiffs alleged that pursuant to its agreement with the Department of Defense, the State of Montana had a duty to provide a safe and suitable test area, but that it negligently failed to do so, and that the State’s failure was a cause of the collision which caused Lake’s and Hodik’s injuries and deaths.

In answer to the plaintiffs’ complaints, the State admitted that at the time of Lake’s and Hodik’s injuries they were employed by the United States Department of Defense as civil service technician-mechanics and that the State, through its Department of Military Affairs, had entered into an agreement with the United States Department of Defense for the acquisition of several M-l tanks, which Lake and Hodik were operating at the time of their collision. However, the State denied the remaining allegations of the plaintiffs’ complaints.

After the two claims were consolidated by the District Court, the State moved for summary judgment on several bases. Those bases which are relevant to this appeal were that: (1) the District Court lacked jurisdiction over the two claims because sovereign immunity had not been waived with regard to activities of the Montana Army National Guard, based on Evans v. Montana National Guard (1986), 223 Mont. 482, 726 P.2d 1160; and (2) the State cannot be sued for injuries to National Guard members which are “incident to military service,” based on Feres v. United States (1950), 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 2d 152, and its progeny. In support of its motion for summary judgment, the State of Montana submitted affidavits from Gary Hindoien, Brigadier General, Montana National Guard; Doug Booker, Centralized Services Administrator of the Department of Military Affairs for the State of Montana; and Lieutenant Colonel Anthony Morrison. Those affidavits established the following facts which are uncontradicted:

At the time of their collision on June 7,1989, Lake and Hodik were federal technicians employed pursuant to 32 U.S.C. § 709 (1997) and were performing duties such as were contemplated by 32 U.S.C. § 709(a)(2), which included the maintenance and repair of federal equipment. As required by 32 U.S.C. § 709(b), Lake and Hodik were also members of the Montana National Guard, but were not in active service of the Guard at that time and place. As technicians, they were considered federal employees and were paid by the federal government.

Lake and Hodik, while performing as technicians, were supporting a federally funded mission to test federally owned tanks under the supervision of the Tank Automotive Command of the U.S. Army (TACOM). The tanks that they were operating at the time of their collision belonged to TACOM, which was under the jurisdiction of the Department of the Army. Hodik and Lake were part of the fielding team which performed under the direct supervision of TACOM. The purpose of the fielding team was to test the tanks for the U.S. Army before turning them over to the Montana National Guard.

Because their deaths were caused by their collision, Lake’s and Hodik’s beneficiaries were eligible for various benefits pursuant to their status as federal employees. However, neither Lake nor Hodik, nor their beneficiaries, have received, nor are they eligible for, any benefits from the State of Montana, including state retirement benefits, life insurance, or workers’ compensation benefits.

Lake and Hodik were members of a collective bargaining unit known as the Association of Civilian Technicians, and were covered by the terms of that Association’s collective bargaining agreement with the State of Montana while serving as federal technicians. If they had had a complaint about the terms of their employment on the date of their injury, they would have been able to express that complaint through the labor management grievance process detailed in the labor-management agreement. However, had they been on active duty for the Montana National Guard, the collective bargaining agreement and its grievance process would have been inapplicable. In that event, they would have been subject to the Uniform Code of Military Justice.

In support of its motion for summary judgment, the State contended, pursuant to Evans, that it had not waived sovereign immunity from claims against the National Guard. The State also contended that, pursuant to Evans, Feres, and Stauber, the claims on behalf of Lake and Hodik were barred because they were based on injuries sustained “incident to military service.”

In opposition to the State’s motion for summary judgment, the plaintiffs pointed out that Article II, Section 18, of the Montana Constitution, abolished sovereign immunity; Article II, Section 32, of the Montana Constitution, subjects the Department of the Military to civilian power; and Article II, Section 16, of the Montana Constitution, provides that injured workers are entitled to full legal redress for injuries caused during the course of their employment by persons other than their employer or fellow employees. Plaintiffs also contended that the Feres and Evans decisions are distinguishable from the facts of this case, and that the District Court should follow decisions from the State of Washington in Kirtley v. State (Wash. App. 1987), 748 P.2d 1128, and Emsley v. Army National Guard (Wash. 1986), 722 P.2d 1299.

The District Court agreed with the State of Montana and held that pursuant to Stauber, the Feres doctrine, as adopted in Evans, also applied to the facts in this case. The District Court therefore held that Lake’s and Hodik’s injuries which caused their deaths were “incident to military service” and that it lacked subject matter jurisdiction to entertain the plaintiffs’ complaints. Based on these conclusions, the District Court found it unnecessary to discuss the other issues raised in the State’s motion for summary judgment. Neither do we review those issues.

As stated, the issue on appeal is simply whether a person who is allegedly injured by the negligence of the State of Montana, acting through its Department of Military Affairs, while in the course of his employment as a civil service technician employed by the United States Army, can sue the State of Montana to recover damages for those injuries.

The parties’ respective arguments on appeal mirror those which were made to the District Court.

We conclude, based on the reasoning set forth in our recent decision in Trankel v. State of Montana (1997), [282 Mont. 348], 938 P.2d 614 that Feres is inapplicable to the facts in this case, and that the plaintiffs’ claims are not barred by our prior decision in Evans, nor by the Ninth Circuit’s decision in Stauber.

Our conclusion is compelled by Article II, Section 16, of the Montana Constitution, which provides as follows:

Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, or character. No person shall be deprived of this full legal redress for injury incurred in employment for which another person may be liable eoccept as to fellow employees and his immediate employer who hired him if such immediate employer provides coverage under the Workmen’s Compensation Laws of this state. Right and justice shall be administered without sale, denial, or delay.

(Emphasis added.)

As we stated in Trankel, [282 Mont. 348], 938 P.2d at 623:

We reaffirm that pursuant to the second sentence in Article II, Section 16, of the Montana Constitution, any statute or court decision which deprives an employee of his right to hill legal redress, as defined by the general tort law of this state against third parties, is absolutely prohibited. That sentence is mandatory and self-executing, and leaves no room for erosion based on what federal courts or the courts of other states would do pursuant to federal laws or the laws of other states.

At the time of the injuries for which Lake’s and Hodik’s survivors seek compensation, they were employed by the Department of the Army of the United States. The State of Montana was neither their employer nor a fellow employee, but instead, a third party for purposes of the application of Article II, Section 16, of the Montana Constitution. Therefore, pursuant to that constitutional provision, their right to full legal redress is preserved as a matter of state constitutional law, notwithstanding the authorities relied on by the State and the District Court.

For these reasons, the judgment of the District Court is reversed. This case is remanded to the District Court for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, LEAPHART, HUNT, NELSON and DISTRICT JUDGE PURCELL concur.

      . 32 U.S.C. § 709 provides, in relevant part, as follows:
      (a) Under regulations prescribed by the Secretary of the Army or the Secretary of the Air Force, as the case may be, and subject to subsection (b) of this section persons may be employed as technicians in--
      (1) the administration and training of the National Guard; and
      (2) the maintenance and repair of supplies issued to the National Guard or the armed forces.
      (b) Except as prescribed by the Secretary concerned, a technician employed under subsection (a) shall, which so employed--
      (1) be a member of the National Guard;
      (2) hold the military grade specified by the Secretary concerned for that position; and
      (3) wear the uniform appropriate for the member’s grade and component of the armed forces while performing duties as a technician.
      (c) The Secretary concerned shall designate the adjutants general referred to in section 314 of this title, to employ and administer the technicians authorized by this section.
      (d) A technician employed under subsection (a) is an employee of the Department of the Army or the Department of the Air Force, as the case may be, and an employee of the United States. However, a position authorized by this section is outside the competitive service if the technician employed therein is required under subsection (b) to be a member of the National Guard.


author: JUSTICE GRAY

text:
    JAMES GENTRY, Petitioner and Appellant, v. STATE OF MONTANA, DEPARTMENT OF JUSTICE, MOTOR VEHICLE DIVISION, Respondent and Respondent.
    No. 96-345.
    Submitted on Briefs February 20, 1997.
    Rehearing Denied June 26, 1997.
    Decided May 27, 1997.
    54 St.Rep. 450.
    282 Mont. 491.
    938 P.2d 693.

      See C. J.S. Motor Vehicles § 164.35.
    For Appellant: Kevin R. Peterson; Great Plains Law Firm, Billings.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Brenda Nordlund, Assistant Attorney General, Helena;
   JUSTICE GRAY

delivered the Opinion of the Court.

James Gentry appeals from the order of the Seventh Judicial District Court, Dawson County, denying his petition to challenge the suspension of his driving privileges for refusing to submit to a breathalyzer test under Montana’s implied consent law. We affirm.

We address the following issues on appeal:

1. Did the District Court err in refusing to apply the “confusion doctrine?”

2. Did the District Court err in denying Gentry’s petition where the record discloses that a notary public was not present when the arresting officer signed the affidavit upon which the suspension was based?

BACKGROUND

James Gentry (Gentry) was stopped by Officer Richard Rowe (Rowe) of the Glendive Police Department for suspicion of speeding and careless driving. Rowe asked Gentry for his driver’s license, registration and proof of insurance. As Gentry was getting his license, Rowe detected the odor of an alcoholic beverage coming from Gentry and noticed that Gentry’s eyes were glassy and bloodshot. Rowe asked Gentry if he had been drinking, and Gentry replied that he had. Rowe administered a series of field sobriety tests, which Gentry failed. Rowe arrested Gentry for driving under the influence of alcohol (DUI) and transported him to the Glendive Police Department.

On the way to the police station, Gentry repeatedly asked Rowe to see the speed at which his vehicle had been clocked on Rowe’s radar unit. Rowe had stopped Gentry without using his radar device and explained that, as a result, the speed was not recorded on the radar unit. After arriving at the police station, Gentry requested a drink of water and asked if he could call his attorney. According to Gentry, Rowe told him he could not have a drink because it would effect the breathalyzer test Rowe was going to ask him to take, and that he “couldn’t use the phone at that time.”

Rowe gave Gentry a copy of the implied consent advisory form, and read it aloud as Gentry read along. Rowe then requested Gentry to submit to a breathalyzer test to determine the alcohol concentration in his body. Gentry refused the test and insisted on a blood test. Rowe explained that taking a blood test was not an option, but that he had a right to get one, at his own expense, when he left the police station. Based on Gentry’s refusal of the breathalyzer test, Rowe completed the State of Montana Alcohol/Drug Testing Refusal Affidavit (refusal affidavit), seized Gentry’s driver’s license, and issued him a notice of suspension or revocation and a citation for the DUI offense. A notary public was not present when Rowe signed the refusal affidavit.

Gentry subsequently filed a petition in the District Court, pursuant to § 61-8-403, MCA, challenging the suspension of his driver’s license; he also requested a stay of the license suspension. The District Court ordered the Department of Justice, Motor Vehicles Division (the Department), to reinstate Gentry’s driving privileges pending the outcome of proceedings on his petition.

The District Court conducted a hearing and ordered the parties to submit proposed findings of fact and conclusions of law. Although the issue at the hearing was whether Rowe had reasonable grounds to stop Gentry and probable cause to arrest him, Gentry raised two additional issues in his proposed findings of fact and conclusions of law. First, he sought application of the “confusion doctrine” to his case. He claimed that Rowe advised him of his rights to an attorney before reading him the advisory form, and that he was confused when Rowe told him he could not talk to an attorney before deciding whether to take the breathalyzer test. Gentry also stated he was confused about the information contained in the advisory form and the fact that he could not take a blood test instead of a breath test. Second, Gentry contended that the Department failed to establish that the refusal affidavit was properly notarized, thus violating § 61-8-402(3), MCA, which requires that a sworn report be forwarded to the Department.

In its findings of fact, conclusions of law and order, the District Court determined that Rowe had reasonable grounds to believe that Gentry was operating a motor vehicle upon the ways of the state open to the public while under the influence of alcohol, drugs, or a combination of both; that Rowe arrested Gentry; and that Gentry refused, upon request of a peace officer, to submit to a breathalyzer test. The court also concluded that Gentry did not plead the confusion doctrine and did not testify, offer other evidence or argue that he was confused at the time he declined the breathalyzer test. The court did not address the notarization issue. The District Court denied Gentry’s petition and ordered that his driving privileges were subject to suspension. Gentry appeals.

STANDARD OF REVIEW

Gentry claims that the District Court’s denial of his petition was premised on incorrect legal conclusions. We review a district court’s conclusions of law to determine whether they are correct. Anderson v. State Dept. of Justice (1996), 275 Mont. 259, 262, 912 P.2d 212, 214 (citation omitted).

DISCUSSION

1. Did the District Court err in refusing to apply the “confusion doctrine?”

In a § 61-8-403, MCA, action for reinstatement of a suspended or revoked driver’s license, the burden is on the petitioning motorist to prove that the suspension or revocation of the license is invalid. See § 26-1-401, MCA; Hunter v. State (1994), 264 Mont. 84, 87, 869 P.2d 787, 789; Jess v. State, Dept. of Justice, MVD (1992), 255 Mont. 254, 259-60, 841 P.2d 1137, 1140. Pursuant to § 61-8-403(4), MCA, a district court’s review is limited to three issues: (1) whether a peace officer had reasonable grounds to believe that the person had been driving or was in actual physical control of a vehicle upon ways of this state open to the public while under the influence of alcohol, drugs, or a combination of the two; (2) whether the person was placed under arrest; and (3) whether the person refused to submit to the test for the presence of alcohol or drugs in the person’s body.

Gentry argues on appeal that he was in a state of confusion when he refused the breathalyzer test and that his refusal should be excused, as a matter of law, under the “confusion doctrine.” He contends that Rowe read him his Miranda rights,, including his right to an attorney, after Rowe arrested him and placed him in the back of the patrol car to be transported to the police station. Gentry claims that Rowe did not explain to him why he could not contact his attorney prior to taking or refusing the breathalyzer test and that, as a result, he was confused concerning his right to counsel. Gentry also claims he did not understand the advisory form and why he could not take a blood test instead of the breathalyzer.

At the outset, we address whether the confusion doctrine falls within one of the three issues properly before a district court in a proceeding challenging a driver’s license suspension. It is clear from our brief recitation of Gentry’s confusion doctrine argument that the doctrine relates to whether the person did or did not refuse the test; that is, the confusion doctrine — if adopted and applicable — serves to excuse what would otherwise be a refusal of the test. Thus, we conclude that the confusion doctrine is within the scope of § 61-8-403(4)(iii), MCA, pursuant to which a district court must determine whether the person refused to submit to the requested breathalyzer test for the presence of alcohol in the person’s body. Therefore, the doctrine need not be specifically pleaded. The burden, of course, remains on the petitioner to prove that the license suspension was invalid. See § 26-1-401, MCA; Hunter, 869 P.2d at 789.

Under the confusion doctrine, when a police officer introduces the subject of a DUI arrestee’s right to counsel by giving a Miranda warning prior to requesting a chemical test, the arrestee’s subsequent refusal to take the designated test until an attorney is consulted might not constitute a “refusal to submit” to a chemical test. Blomeyer v. State (1994), 264 Mont. 414, 418-19, 871 P.2d 1338, 1341(citation omitted). The basis of the doctrine is that a driver may be confused by being informed via his Miranda rights that he has a right to counsel and then being asked to take a breathalyzer test under the implied consent law, where no right to counsel exists; the confusion may mislead the driver to believe he has the right to an attorney before deciding whether to submit to a test. Blomeyer, 871 P.2d at 1342 (citations omitted).

A number of jurisdictions have adopted the confusion doctrine. Blomeyer, 871 P.2d at 1341 (citing Rust v. Department of Motor Vehicles, Div. of Driver’s Lic. (Cal. App.1968), 73 Cal.Rptr. 366; State Department of Highways v. Beckey (Minn.1971), 192 N.W. 2d 441; and State v. Severino (Haw. 1975), 537 P.2d 1187). To date, while we have recognized the doctrine’s existence, we have declined to decide whether to adopt it until presented with a case which would warrant its application. Blomeyer, 871 P.2d at 1342. We follow the Blomeyer approach here, determining first whether the facts and circumstances of this case would warrant application of the confusion doctrine.

In Blomeyer, we stated that the confusion doctrine would apply only when Miranda rights are given prior to, or contemporaneously with, a driver being advised of his or her rights and obligations under the implied consent law. Blomeyer, 871 P.2d at 1342. There, we determined that the confusion doctrine was not applicable, because the driver was Mirandized after the implied consent form was read and after he had refused to submit to a breathalyzer test. Blomeyer, 871 P.2d at 1342. Thus, there was no likelihood that he confused his right to counsel under Miranda with his rights and obligations under the implied consent law. Blomeyer, 871 P.2d at 1342.

In the present case, the District Court did not make a specific finding as to when Gentry was given his Miranda rights, and the record contains conflicting evidence on that question. Gentry testified that Rowe “read me my rights” at the time of arrest, prior to being taken to the police station; he did not specifically testify that he was advised of his right to counsel at that time. Rowe was not asked when he Mirandized Gentry during either his direct, cross-, redirect or recross-examination. His offense report indicates, however, that Rowe read Gentry his Miranda rights at the police station after Gentry refused the breathalyzer test. This factual dispute need not be resolved, however, because we conclude that even assuming Gentry was Mirandized prior to his refusal of the breathalyzer test, he has not established the applicability of the confusion doctrine to the facts of this case.

As we stated above, a petitioner challenging a driver’s license suspension for refusing a test under the implied consent statute must prove that the suspension was invalid. See § 26-1-401, MCA; Hunter, 869 P.2d at 789. In the context of claimed reliance on the confusion doctrine, “[w]hether a suspect is confused is a question of fact and must, therefore, be established by sufficient evidence.” Ehrlich v. Backes (N.D. 1991), 477 N.W. 2d 211, 213 (citation omitted).

Here, Gentry did not testify that he was confused by the sequence of the Miranda warning and the statement on the advisory form that he was not entitled to counsel before taking or refusing the test. Nor did he offer other evidence establishing — or even suggesting — any confusion on his part regarding a right to counsel prior to deciding whether to submit to the breathalyzer test. Gentry merely testified that he asked Rowe to repeat several of the statements on the advisory form so that “there could be a full understanding” of what was being asked and that he “wanted to be sime what Officer Rowe was reading” and “make double sure what I was going over.” Based on the record before us, it is clear that Gentry did not establish facts and circumstances which would warrant application of the confusion doctrine.

Given the total absence of evidence supporting application of the confusion doctrine in this case, it is not necessary to further define the nature and extent of facts and evidence which would warrant application of the doctrine where a person is Mirandized prior to, or contemporaneously with, being requested to submit to a chemical test under Montana’s implied consent statute. Suffice it to say that jurisdictions which have adopted and applied the confusion doctrine state the requirements in different terms. In Ehrlich, for example, the Supreme Court of North Dakota mentioned only “the need for the arrestee to testify that she was confused in order to raise the issue as one of fact.” Ehrlich, 477 N.W.2d at 213 (citation omitted). In California, the driver must manifest confusion by asserting the alleged right to an attorney; after such a manifestation, the peace officer has a duty to explain that the right to counsel does not apply to the breathalyzer test. McDonnell v. Department of Motor Vehicles (Cal. App. 1975), 119 Cal.Rptr. 804, 807-08. Only objective, officer-induced confusion supports relief from a driver’s license suspension for refusing or failing to submit to chemical testing after a valid arrest. Monter v. Director of Motor Vehicles (Cal. App. 1990), 268 Cal.Rptr. 301, 306. In Washington, drivers who advance the confusion doctrine have the burden of showing that they made their confusion apparent to the officer and were denied further clarification. Haas v. State, Dept. of Licensing (Wash. App. 1982), 641 P.2d 717, 719 (citation omitted). As noted, further refinements to our perception of the confusion doctrine are unnecessary unless and until such time as we determine that application of the doctrine is warranted and formally adopt the doctrine as part of Montana law.

We hold that the District Court did not err in failing to apply the confusion doctrine.

2. Did the District Court err in denying Gentry’s petition where the record discloses that a notary public was not present when the arresting officer signed the affidavit upon which the suspension was based?

As noted above, the District Court did not rule on Gentry’s contention that his driver’s license suspension should be invalidated because Rowe’s signature on the refusal affidavit was not notarized and, as a result, a sworn report was not submitted to the Department as required by law. Gentry contends it is undisputed that a notary public was not present when Rowe signed the refusal affidavit and, furthermore, that the Department failed to establish at the hearing that the affidavit was ever notarized. Citing to authority from other jurisdictions, he argues that a sworn report is a jurisdictional prerequisite, or mandatory condition precedent, to the suspension of his driver’s license. The Department contends that Gentry waived the issue by failing to timely raise it.

We addressed a similar situation in Thompson v. Department of Justice (1994), 264 Mont. 372, 871 P.2d 1333. There, Thompson was arrested for DUI and refused a breathalyzer test; the Department suspended his driver’s license. Thompson, 871 P.2d at 1334. Thompson challenged the suspension in the district court, arguing that the Department had no authority to suspend his license because the refusal affidavit was not a sworn report as required by § 61-8-402(3), MCA. Thompson, 871 P.2d at 1334. The court inquired whether Thompson had notified the county attorney’s office that the alleged lack of the required sworn report was an issue in the case, and Thompson responded that he had not done so. Thompson, 871 P.2d at 1335. The court concluded that it should not consider the issue. We affirmed, emphasizing that no notice was given that the issue was being raised and, as a result, neither the county attorney’s office nor the Department had the opportunity to present evidence to refute Thompson’s contentions. Thompson, 871 P.2d at 1335-36. We concluded that the sworn report issue was not properly raised or presented and did not address it substantively. Thompson, 871 P.2d at 1336.

Thompson is applicable here. Notwithstanding Thompson’s holding that lack of notice of an issue outside the scope of those set forth in § 61-8-403(4), MCA, prevents consideration of the issue, Gentry did not plead — and thereby give notice of — the absence of a sworn report to the Department. He merely inquired of Rowe at the hearing regarding the lack of notarization at the time Rowe signed the refusal affidavit. He then included his legal position regarding the lack of a sworn report in his post-hearing findings of fact and conclusions of law. As was the case in Thompson, the Department had no opportunity to present evidence to refute Gentry’s allegations. Consideration of such a late-raised issue, where the issues before the court are ordinarily limited by § 61-8-403(4), MCA, and the burden is on the petitioner rather than the Department, would be both unfair and prejudicial to the Department. Therefore, we conclude that Gentry waived the sworn report issue by not timely raising it and we decline to address the issue substantively.

Affirmed.

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