source: Caselaw Access Project

author: MR. JUSTICE McDONOUGH

license: Public Domain

text:
    In re the MARRIAGE OF KATHLEEN LOIS PENNING, Petitioner and Respondent, and DALE EVERETT PENNING, Respondent and Appellant.
    No. 88-502.
    Submitted on Briefs June 1, 1989.
    Decided June 30, 1989.
    776 P.2d 1214.

      Andrew M. Small, Billings, Mont., for respondent and appellant.
    Jack E. Sands, Sands Law Firm, Billings, Mont., for petitioner and respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

This appeal from the Thirteenth Judicial District, Yellowstone County, concerns issues arising from the divorce of Kathleen and Dale Penning. Dale appeals the District Court’s decisions on custody, the proper amount of child support and maintenance, and the propriety of an award of attorney fees to Kathleen. We affirm.

The parties married on March 27, 1981. The District Court dissolved the marriage on April 21, 1988. Four children, aged from one year old to six years old, were born of the marriage. Kathleen also has an eight-year-old child from a prior marriage.

Dale contracts work at the Exxon refinery in Billings, and receives approximately $47,000 annually. Dale employs a person he describes as a close friend for unskilled or semi-skilled labor at $12.50 an hour. The parties dispute the net income retained by Dale from the $47,000 in earnings.

Kathleen has performed only unskilled labor in the past, and currently has no special skills which would enable her to take a job that would adequately cover her child care expenses. The primary caretaker of the parties’ children has been Kathleen. The lower court awarded Kathleen $260.00 per month, per child in child support, and $400.00 per month in maintenance. The lower court also named Kathleen the residential custodian of the parties’ children.

Dale presents the following issues:

(1) Whether the District Court erred in naming Kathleen residential custodian?

(2) Whether the District Court erred in awarding Kathleen $260.00 per month per child for child support?

(3) Whether the District Court erred in awarding maintenance to Kathleen?

(4) Whether the District Court erred in awarding attorney fees to Kathleen?

I.

Dale makes several contentions on the issue of the proper residential parent for implementing the joint custody provisions of the decree. First, Dale contends that the District Court failed to consider the presence of physical abuse of the children inflicted by Kathleen as by required by § 40-4-212(6), MCA. Testimony indicated that Kathleen has, on occasion, slapped or spanked the children. Testimony also indicated that some of the children have suffered from diaper rash, and that one child, while left unattended by Kathleen, fell from the parties’ van to the pavement. The only other incident of alleged abuse involves punishment meted out by Kathleen for two of the children’s behavior in playing with dog feces. Kathleen testified that the parties’ dog messed on the floor of their basement. Her two young boys discovered the mess and, according to Kathleen, managed to become covered with it. Kathleen testified that she smeared some of the matter on their noses and made them stand in the corner for five minutes.

We hold that the District Court acted within its discretion by refusing to find that these incidents constituted child abuse. Thus, no error may be predicated here based on the required findings under § 40-4-212(6), MCA.

Dale further contends that the lower court committed reversible error in finding:

“[Kathleen’s] home and interaction with the children has been observed by a number of witnesses. All of whom testified that she is a good mother.”

Dale points out that not all of the witnesses testified that Kathleen was a good mother. We disagree that the District Court erred in interpreting the testimony of the witnesses.

Witnesses testifying for Dale criticized Kathleen’s' parenting skills. However, they also admitted that Kathleen had good abilities in some areas of parenting. Moreover, even if all of Dale’s witnesses testified that Kathleen was not a good mother, other witnesses held the opposite opinion. Thus, the record would only reflect conflicting evidence on this issue, and it is the function of the District Court to resolve such conflicts. We will not reverse the decision of the District Court on what constitutes a custody arrangement in the best interest of the children based on the proper weight assigned to conflicting evidence. In re Marriage of Rolfe (1985), 216 Mont. 39, 45, 699 P.2d 79, 82. Nor will we reverse for incomplete or partially erroneous findings unless appellant demonstrates the District Court failed to base its decision on substantial evidence. In re Marriage of Saylor (Mont. 1988), [232 Mont. 294,] 756 P.2d 1149, 1151, 45 St.Rep. 1062, 1065.

Dale also contends that the lower court erred in relying on a report from a Court Services Investigator in its findings because the report was never admitted into evidence. Kathleen responds that Dale stipulated to a Court Services investigation which was to “make appropriate recommendations to the Court.” We agree that Dale’s stipulation to the report properly places it in the record as evidence.

Dale asserts that his citations to the record show that substantial evidence does not support the District Court’s decision to make Kathleen the residential parent. We disagree.

By and large, witness testimony supports the conclusion that the best interests of the children will be served by making Kathleen the residential custodian. Several witnesses testified favorably concerning Kathleen’s parenting skills. One stated:

“Q. Have you had occasion to be in her home?
“A. Yes. On several occasions I have visited her home.
“Q. And have you observed her and her children in her home?
“A. Yes, quite often.
“Q. Could you describe the home environment there?
“A. Well, yes. It always strikes me that it is a very difficult sitúation that she is in. She had the five children, and it always struck me how remarkably she controlled that.”

Another witnesses testified:

“Q. Could you describe the relationship between Kathy and her children?
“A. They seem to be very close. I don’t know. She was just a real good mother.”

Some witnesses having knowledge of Dale’s parenting skills indicated that Dale did not provide adequate care for the children. Therefore, the decision of the District Court on the residential parent is supported by substantial evidence and we affirm on this issue.

II.

Dale asserts that the District Court erred in determining the amount of child support. The lower court calculated Dale’s support obligation as $260.00 per child each month.

In determining Dale’s gross income, the District Court refused to deduct the $12.50 per hour, 20 hours per week, employment expenses Dale incurs for employing his close friend. The lower court allowed such expenses at $5.00 per hour. This is the main objection to the lower court’s calculations in arriving at Dale’s net income for determining child support. We hold that the lower wage figure properly reflects evidence in the record that the unskilled or semi-skilled labor performed by Dale’s close friend is worth only $5.00 per hour. Thus, the lower court acted correctly in discounting Dale’s assertions to the contrary.

Dale also objects to the addition of workers’ compensation benefits as income for determining his ability to make support payments. He claims that he no longer receives the benefits. Kathleen asserts that the issue is not properly reviewable on this appeal. We agree that the existence of a reduction in Dale’s income following the proceedings in the lower court cannot be considered as an issue reviewable on this appeal.

Dale also objects generally to the lower court’s award of support in light of the Guide for Determination of Child Support Obligations, adopted and approved for use by district courts by this Court on January 13,1987. Dale claims that the District Court misapplied the Guidelines by failing to subtract the proper amount of his business expenses from his gross income to arrive at his net income. Kathleen responds that under the proper application of the Guidelines, Dale’s support obligations would exceed the amount arrived at by the lower court.

The Guidelines mandate that only “legitimate” business expenses be subtracted to arrive at net income. Guide for Determination of Child Support Obligations, Part 5. As previously discussed, there exists some controversy over the proper amount of legitimate expenses incurred by Dale. Moreover, the Guidelines:

“are not binding upon such judges and officials [using the guidelines]. We so order to prevent appeals based upon claimed failure to observe or follow the guidelines.”

In the Matter of Adoption of a Uniform District Court Rule on Child Support Guidelines, Order of the Supreme Court of Montana, [227 Mont. 1,] [44 St.Rep. 828,] No. 86-223, Filed January 13, 1987. Obviously, there exists no reversible error based on the improper use of the Guidelines here. Thus, we affirm on this issue.

III.

Dale contends under this issue that the lower court erred in setting the amount of maintenance to be received by Kathleen at $400.00 per month. According to Dale, the lower court erroneously failed to consider Dale’s ability to “meet his needs while meeting those of the spouse seeking maintenance,” as required by § 40-4-203(2) (f), MCA.

The thrust of Dale’s argument on this point is that the lower court erred in increasing the amount of available income for maintenance by finding that Dale was sharing expenses with the close friend he employs for $12.50 an hour. Dale contends that evidence in the record demonstrated that he and the friend do not share expenses. We disagree. At the trial, one of Dale’s witnesses testified that he had stayed with Dale the weekend prior to the trial, and that Dale’s close friend was present in the household during the weekend. Another witness testified that while on visitation with Dale, the children have gone from Dale’s close friend’s house to his house to play. This testimony is sufficient to sustain the District Court’s conclusion that Dale and his close friend/employee share expenses.

Dale also objects to the lower court’s decision on the ability of Kathleen to provide for the children’s financial needs. The record does not contain evidence sufficient to support this assertion. On the contrary, evidence indicates Káthléen is patently unable to hold down a job which would bring in income sufficient to reduce Dale’s obligation. Thus, we reject Dale’s contentions on this issue.

IV.

Dale argues that the District Court abused its discretion by awarding attorney fees to Kathleen. Again, the focus of the argument concerns Dale’s finances, this time in regard to his ability to pay the fees. We have already held that the District Court acted within its discretion in determining Dale’s income. Thus, we affirm.

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


text:
    RODNEY and DEBRA THELEN, Richard and Dana Buecher, Susan Grasso, Larry and Nancy Pinnow, and George W. Cleveland, Jr., Plaintiffs/Appellants, v. CITY OF BILLINGS, Heights Sewer Board, Black and Veatch, COP Construction Co., Sanderson, Steward, Gaston Engineering, Inc., and Christian, Spring, Seilbach & Associates, jointly and severally, Defendants/Cross-Appellants.
    No. 89-099.
    Submitted on Briefs May 25, 1989.
    Decided July 5, 1989.
    776 P.2d 520.

      Jerrold L. Nye, Nye & Meyer, Billings, for plaintiffs/appellants.
    Mark S. Werner, McNamer & Thompson, Ronald R. Lodders, Crowley, Haughey, Hanson, Toole and Dietrich, W. Anderson Forsythe, Moulton, Bellingham, Longo and Mather, J. Dwaine Roybal, Keefer, Roybal, Hanson & Stacey; Billings, for defendants/cross-appellants.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

This appeal concerns alleged negligence and inverse condemnation on the part of a city government, a contractor and an engineering firm in designing and constructing a sewer system. Plaintiffs Rodney and Debra Thelen, et al. (Plaintiffs) appeal from the Amended Judgment of the District Court of the Thirteenth Judicial District, Yellowstone County. The court granted summary judgment in favor of defendants City of Billings, Black & Veatch and COP Construction Co. We affirm.

Plaintiffs present a single issue on appeal:

Whether the Amended Judgment of November 16, 1988, granting summary judgment to Defendants by the Montana District Court and dismissing Plaintiffs’ case was proper.

In 1984, construction began on a sewer system project undertaken by the City of Billings in the Billings Heights area. The City hired engineering firms and a contractor to design, supervise and build the project. Preliminary studies showed that the soil in the area where Plaintiffs’ homes are located contained ground water in quantities that might interfere with the excavation of trenches where sewer lines would be buried. The plans therefore called for the contractor, COP Construction Co., to take steps to “dewater” the trenches through the use of “dewatering wells”.

Construction of the project began in a neighborhood some distance from Plaintiffs’ homes. Dewatering wells were employed to keep water out of the trenches. The water that collected in the wells was pumped into an existing irrigation ditch that ran through the area, passing near Plaintiffs’ homes. At the time in question, the ditch was alleged to have been in use for irrigation of fields near the homes. The use of the ditch for disposal of water from the dewatering wells was alleged to have increased the amount of water in the ditch beyond normal levels used for irrigation.

The first construction activity in Plaintiffs’ neighborhood consisted of COP digging a “test hole” in an alley. The workers digging the hole encountered a high water table that prevented completion of the hole and any further excavation. While the hole was being dug, a water main was broken. COP turned off the water and repaired the main, but it broke again the next day. The main was again turned off and remained off until more permanent repairs were made some time later. COP then refilled the test hole and suspended work in Plaintiffs’ vicinity, moving to another area of the project.

While the exact time frame is disputed in the record, sometime after COP’s departure from the area Plaintiffs’ basements began to flood. Some testified in deposition that the water rose as much as two feet into their basements, causing damage to carpet, wall coverings and concrete. Plaintiffs and other residents of the area held a public meeting attended by COP, the City and project engineers, at which it was agreed that COP would install dewatering wells to alleviate the flooding. The wells were installed, and the water receded from Plaintiffs’ basements. There were no further problems with flooding for the duration of the construction work, and the project was completed.

Plaintiffs filed this lawsuit in August of 1985, naming a number of persons and entities involved with the project as defendants. Plaintiffs alleged that the defendants’ failure to anticipate and control the ground water they “knew or should have known” to be present amounted to negligence, and also worked a wrongful taking of Plaintiff’s property by inverse condemnation. After several motions for partial summary judgment, the field of parties being sued was eventually reduced to the City of Billings, the engineering firm Black and Veatch, and COP Construction Co., referred to here as Defendants. Defendants each moved separately for summary judgment. In a single Memorandum and Order, the District Court granted the motions, holding (1) Defendants breached no duty running from themselves toward Plaintiffs, and (2) Plaintiffs were unable to show damage to their property that was proximately caused by Defendants. This appeal followed.

On appeal, Plaintiffs first argue that the District Court misapplied the summary judgment standard used in this state. Plaintiffs’ argument, however, is based on a misunderstanding of Montana law. Plaintiffs argue that Defendants were required to show “that the flooding was not caused by or did not occur as a direct result of the sewer excavation and work.” While Defendants were required to show that they were entitled to judgment as a matter of law, that burden did not require Defendants to prove the reverse of Plaintiffs’ case. Defendants had to prove as a matter of law that Plaintiffs were not entitled to relief. Plaintiffs thus appear to confuse the burden of proof imposed on a party moving for summary judgment with that imposed on a plaintiff in every civil suit. This fundamental misunderstanding taints Plaintiffs’ arguments to this Court.

In order for summary judgment to issue pursuant to Rule 56(c), M.R.Civ.P., the movant must show that there is no genuine issue as to any fact deemed material in light of the substantive legal principles entitling the movant to judgment as a matter of law. All reasonable inferences that can be drawn from offered proof will be drawn in favor of the party opposing the motion. Cereck v. Albertson’s, Inc. (1981), 195 Mont. 409, 637 P.2d 509. If the movant meets this burden, it then shifts to the non-moving party to demonstrate a genuine issue of material fact. “Mere denial or speculation will not suffice, the non-moving party must show facts sufficient to raise a genuine issue.” Gamble Robinson Co. v. Carousel Properties (1984), 212 Mont. 305, 312, 688 P.2d 283, 287. These same standards apply to this Court’s review of the decision below. Kronen v. Richter (1984), 211 Mont. 208, 683 P.2d 1315.

Most of the District Court’s memorandum in this case deals with a single substantive legal principle held to entitle Defendants to judgment as a matter of law: the principle of proximate cause. Proximate cause is an element of the cause of action for negligence, and must be proven in order for a plaintiff to recover damages. Young v. Flathead County (Mont. 1988), [232 Mont. 274,] 757 P.2d 772, 45 St.Rep. 1047. Proximate cause is also a required element of the cause of action for inverse condemnation. Rauser v. Toston Irrigation District (1977), 172 Mont. 530, 565 P.2d 632. The initial burden was therefore on Plaintiffs to come forth with sufficient proof to raise issues of material fact concerning each element of their case, including proximate cause. Absent a showing of proximate cause, both of Plaintiffs’ claims would fail, and Defendants would be entitled to judgment as a matter of law.

As this Court noted in Young, 757 P.2d at 777, proximate cause has not been defined clearly in Montana law:

“Liability, in any cause of action, attaches if the plaintiff can prove first that defendant’s act is a cause in fact of injury and then that the injury is the direct or indirect result, proximately caused by the negligent act. Causation in fact has been determined by the use of the ‘but for’ test . . .
“In Montana, proximate cause is one which in a natural and continuous sequence, unbroken by any new, independent cause, produces injury, and without which the injury would not have occurred. [Citations] This definition of proximate cause incorporates the ‘but for’ definition in the words of the last clause ‘[a]nd without which the injury would not have occurred.’ It is from this wording that the distinction between cause in fact and proximate, or legal, cause has become clouded.”

The Young opinion therefore went on to focus on the “natural and continuous sequence, unbroken by any new, independent cause,” which must be shown to establish proximate cause.

Before the District Court, Plaintiffs relied largely on their own deposition testimony and a “Preliminary Investigation Report” prepared by a hydrogeologist hired by Plaintiffs. Defendants argued in briefs filed in support of their motions for summary judgment that this evidence alleged insufficient facts on which to base a showing of proximate cause, relying instead on mere speculation. In other words, on the basis of the pleadings and proof in the record, it was impossible for Plaintiffs to show that Defendants’ actions, through a natural and continuous sequence unbroken by any new, independent cause, produced Plaintiffs’ injuries. The District Court agreed.

Because of Plaintiffs’ misunderstanding of Montana’s summary judgment standard, their arguments on appeal suffer from the same flaw addressed by the District Court. Plaintiffs argue to this Court that “undisputed facts” in the record raise sufficient issues of material fact to avoid summary judgment: (1) Plaintiffs had no problems with basement flooding prior to the events at issue; (2) the soil tests performed prior to construction indicated that dewatering wells would be necessary to control ground water in excavations; (3) COP Construction began excavating in Plaintiffs’ vicinity before installing dewatering wells and encountered ground water; (4) Plaintiffs’ basements began flooding “within a day or two” after COP began excavation; (5) once dewatering wells were installed, the flooding subsided; and (6) Plaintiffs have had no further flooding problems in their basements. Plaintiffs state in their brief to this Court that the essence of their argument is thus “but for” Defendants’ actions associated with excavating the test hole, Plaintiffs’ basements would not have flooded. Plaintiffs cite the Young opinion for the proposition that the “but for” test is appropriate in this case.

The Young opinion quoted above states the distinction between cause in fact and proximate cause. Plaintiffs correctly cite Young for the “but for” test, but they apply the test incorrectly. “But for” is a test of cause in fact, not proximate cause. Stated another way, the “but for” test establishes that if the act complained of had not taken place, the injury would not have resulted. This same argument, however, can be applied to any cause that might have contributed to the flooding; e.g., the presence of water in the irrigation ditch, the composition of the soil, or the water from septic tank drain fields in the neighborhood. By taking the argument to its logical extreme, it could be said that if Plaintiffs had not built their houses with basements, they would have had no flooding problems (several homes in the neighborhood had no basements and thus no flooding).

This is why the law requires an act to be the proximate cause of injury before liability will attach. Which one or more of the contributing causes identified by the “but for” test, through a natural and continuous sequence unbroken by any new, intervening cause, produced Plaintiffs’ injury? Certainly Plaintiffs’ choice made years ago to build homes with basements would appear so logically remote that it could not be the proximate cause of the flooding. However, by resting their case on “undisputed facts” asserted to meet the “but for” test, Plaintiffs ignore the required showing that Defendants’ actions were the proximate cause of the flooding. The facts recited by Plaintiffs do not go to the question of whether there was a natural, continuous, uninterrupted sequence between Defendants’ actions and the flooding. They simply allege “but for”.

The hydrogeologist’s preliminary report relied upon by Plaintiffs below does not remedy the flaw in their argument. The report drew two main conclusions: (1) increased water flow in the irrigation ditch could have caused the flooding, and (2) excavation of a sewer trench between the irrigation ditch and Plaintiffs’ homes could have caused or contributed to the flooding. The report also states, “Other factors that would affect water table level at the basements [including climate, storms, irrigation of crops and normal water table fluctuation] were examined in a brief preliminary manner.” This report, as is evident from its very title, was preliminary. It is based on the application of hydrogeological theory to a number of possible causes, and its conclusions express no certainty of any kind as to the natural or continuous sequence of events under Plaintiffs’ theories. It is cursory and speculative. We have held that speculative statements are insufficient to raise a material issue of fact. B.M. by Berger v. State (1985), 215 Mont. 175, 179, 698 P.2d 399, 401.

Keeping in mind the rule from the Cereck case that all reasonable inferences drawn from the report must be drawn in favor of Plaintiffs, it must be noted that the report’s treatment of “other factors” could address the question of proximate cause. Examination of other possible causes could show whether the “sequence” between the Defendants’ actions and the Plaintiffs’ injury was “unbroken by any new, independent cause”. However, the report’s treatment of “other factors” is equally speculative, drawing conclusions such as, “[r]andom inspection of water table records . . . suggests that such occurrences may be rare.” The only portion of Plaintiffs’ offered proof that reasonably could be construed as addressing proximate cause thus fails to raise an issue of material fact under the rule in Berger.

The proof offered by Plaintiffs below failed to raise a material issue of fact on the question of proximate cause. Defendants moved for summary judgment, and pointed out the flaw in Plaintiffs’ case. This had a dual effect. By pointing out that Plaintiffs’ had failed to raise a genuine issue of material fact as to proximate cause and supporting that assertion with briefs, exhibits and affidavits, Defendants at the same time showed their entitlement to summary judgment. Plaintiffs then had the duty to present sufficient proof to show that an issue of material fact actually existed; mere denial or speculation would not suffice. Gamble Robinson, 688 P.2d at 287.

Plaintiffs failed to come forth with sufficient proof in the District Court. Instead, they merely reiterated their allegations of fact which they assert preclude summary judgment by their own force, and pointed to the hydrogeologist’s report which in a preliminary fashion speculates as to the possible causes of the flooding. As shown above, the proof thus far advanced by Plaintiffs is insufficient to avoid summary judgment. By arguing that it was Defendants’ burden to disprove their theory of the case, Plaintiffs seek to reverse the burden of proof under Montana law. This would leave the District Court in the position of having to guess at whether Plaintiffs could present a viable case, or would simply waste the court’s time in a futile trial. This Court has specifically refused to require such a guessing game.

“. . . the trial court, in considering a motion for summary judgment, has no duty to anticipate possible proof that might be offered under the pleadings and that asking for such foresight demands ‘clairvoyance’ not possessed by even a trial judge.”

Larry C. Iverson, Inc. v. Bouma (1981), 195 Mont. 351, 374, 639 P.2d 47, 59.

We affirm the judgment of the District Court.

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


author: MR. JUSTICE HUNT

text:
    In the Matter of the SUSPENSION OF THE DRIVER’S LICENSE OF BYRNE KENNEDY GEBHARDT, Petitioner and Respondent, v. STATE OF MONTANA, Respondent and Appellant.
    No. 88-210.
    Submitted on Briefs March 23, 1989.
    Decided July 6, 1989.
    775 P.2d 1261.

      Marc Racicot, Atty. Gen., Peter Funk, Asst. Atty. Gen., Helena, Floyd A. Brower, County Atty., Roundup, for respondent and appellant.
    John L. Pratt, Ask & Pratt, Roundup, for petitioner and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

The State of Montana appeals from an order of the District Court of the Fourteenth Judicial District, Musselshell County, which held that respondent Byrne Kennedy Gebhardt was justified in refusing to submit to a chemical test of his breath for the purpose of determining the alcoholic content of his blood because the officer who arrested him did not have reasonable grounds to believe he was in actual physical control of a motor vehicle while under the influence of alcohol. We reverse and remand.

The sole issue raised on appeal is whether the District Court erred in ruling that the arresting officer did not have reasonable grounds to believe that Gebhardt was in actual physical control of a vehicle upon the ways of the state open to the public while under the influence of alcohol.

On January 29, 1988, at approximately 1:30 a.m., Montana Highway Patrolmen George Kostelecky and Jeffree McLaughlin responded to a call concerning a vehicle stuck in the ditch near the intersection of Shilo and Hesper Roads, a residential area on the outskirts of Billings. Upon arrival, the patrolmen found a Chevrolet pickup located approximately ten feet off the traveled portion of the road. The vehicle was mired in mud up to its axles with its engine running. Its headlights were off, but its parking lights were on.

The patrolmen observed tire chains next to the rear wheels of the pickup and a bumper jack behind the vehicle. Tire tracks indicated that the pickup had become stuck when the driver attempted to negotiate a U-turn on the nearby road.

The patrolmen discovered Gebhardt asleep, lying across the front seat of the pickup with his feet and legs beneath the steering wheel and his head near the passenger door. The officers had to shake and yell at Gebhardt to rouse him. When awakened, he was belligerent and uncooperative. The officers smelled an odor of alcohol in the cab of the pickup and on Gebhardt’s breath.

Patrolman Kostelecky placed Gebhardt under arrest for being in actual physical control of a vehicle while under the influence of alcohol, a violation of § 61-8-401, MCA. The patrolmen did not conduct any sobriety tests at the scene, but they conducted a series of physical tests when they arrived at the Yellowstone County Courthouse. Gebhardt failed two of the three tests administered.

Because Gebhardt refused to take a chemical test of his breath to determine the alcoholic content of his blood, his driver’s license was seized pursuant to the mandates of the implied consent law, § 61-8-402, MCA. He was issued a 72-hour driving permit in place of the license.

Before the Department of Justice formally acted to suspend his license, Gebhardt filed a petition seeking judicial review of the license seizure and anticipated suspension. The District Court issued an order staying the suspension of Gebhardt’s driver’s license pending a hearing.

On February 22, 1988, a hearing was held on the petition for judicial review. Following the hearing, the District Court ordered that the arresting officer did not have reasonable grounds to believe that Gebhardt was in actual physical control of a vehicle upon the ways of this state open to the public while under the influence of alcohol. Therefore, Gebhardt’s subsequent refusal to take a chemical breath test was justified and he was entitled to a driver’s license. The State of Montana appeals from this order.

Under Montana law, an individual who is arrested for operating a motor vehicle while under the influence of alcohol is deemed to have given his consent to a chemical test for the purpose of determining the alcoholic content of his blood. Refusal to submit to a chemical test results in immediate seizure of the individual’s driver’s license and formal suspension of the driving privilege by the Department of Justice. This law, commonly known as the implied consent statute, is set out at § 61-8-402, MCA, which provides in pertinent part:

“(1) Any person who operates a vehicle upon ways of this state open to the public shall be deemed to have given consent, subject to the provisions of 61-8-401, to a chemical test of his blood, breath, or urine for the purpose of determining the alcoholic content of his blood if arrested by a peace officer for driving or in actual physical control of a vehicle while under the influence of alcohol. The test shall be administered at the direction of a peace officer having reasonable grounds to believe the person to have been driving or in actual physical control of a vehicle upon ways of this state open to the public while under the influence of alcohol. The arresting officer may designate which one of the aforesaid tests shall be administered.
“(3) If a resident driver under arrest refuses upon the request of a peace officer to submit to a chemical test designated by the arresting officer as provided in subsection (1) of this section, none shall be given, but the officer shall, on behalf of the department, immediately seize his driver’s license. The peace officer shall forward the license to the department, along with a sworn report that he had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a vehicle upon the ways of this state open to the public, while under the influence of alcohol and that the person had refused to submit to the test upon the request of the peace officer. Upon receipt of the report, the department shall suspend the license for the period provided in subsection (5).
“(4) Upon seizure of a resident driver’s license, the peace officer shall issue, on behalf of the department, a temporary driving permit, which is valid for 72 hours after the time of issuance.
“(5) The following suspension and revocation periods are applicable upon refusal to submit to a chemical test:
“(a) upon a first refusal, a suspension of 90 days with no provision for a restricted probationary license;
“(b) upon a second or subsequent refusal within 5 years of a previous refusal, as determined from the records of the department, a revocation of 1 year with no provision for a restricted probationary license.
“(7) All such suspensions are subject to review as hereinafter provided.”

Judicial review of the suspension of a driver’s license for failure to take a chemical test is governed by § 61-8-403, MCA, which provides:

“The department shall immediately notify any person whose license or privilege to drive has been suspended or revoked, as herein-before authorized, in writing and such person shall have the right to file a petition within 30 days thereafter for a hearing in the matter in the district court in the county wherein such person resides or in the district court in the county in which this arrest was made. Such court is hereby vested with jurisdiction and it shall be its duty to set the matter for hearing upon 10 days’ written notice to the county attorney of the county wherein the appeal is filed and such county attorney shall represent the state, and thereupon the court shall take testimony and examine into facts of the case, except that the issues shall be limited to whether a peace officer had reasonable grounds to believe 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, whether the person was placed under arrest, and whether such person refused to submit to the test. The court shall thereupon determine whether the petitioner is entitled to a license or is subject to suspension as heretofore provided.” (Emphasis added.)

A hearing held under this statute is a civil proceeding, separate and distinct from a criminal trial on the charge of operating a motor vehicle while under the influence of alcohol. In re Blake (1986), 220 Mont. 27, 31, 712 P.2d 1338, 1341. During the course of the criminal proceedings resulting from the citation for driving under the influence, the judge or jury determines the ultimate issue, that is, whether, beyond a reasonable doubt, the defendant had been driving or was in actual physical control of a vehicle on the ways of this state open to the public while under the influence of alcohol. However, during the civil proceedings reviewing the propriety of the suspension of the petitioner’s driver’s license for failing to submit to a chemical test, the judge determines only:

(1) whether the arresting officer had reasonable grounds to believe the following:

(a) that the petitioner had been driving or was in actual physical control of a vehicle;

(b) that the vehicle was on a way of this state open to the public; and

(c) that the petitioner was under the influence of alcohol;

(2) whether the individual was placed under arrest; and

(3) whether the individual refused to submit to a chemical test.

Neither party in this case has ever contended that Gebhardt was not arrested nor that he refused to submit to a chemical test. The only issue presented to the District Court for review was whether the arresting officer had reasonable grounds to believe that Gebhardt was in actual physical control of a vehicle on a public way while under the influence of alcohol.

In ruling from the bench, the District Court expressed doubt as to whether Gebhardt’s vehicle was on a “way of this state open to the public.” Section 61-8-101(1), MCA, defines this phrase in the following manner:

“As used in this chapter, ‘ways of this state open to the public’ means any highway, road, alley, lane, parking area, or other public or private place adapted and fitted for public travel that is in common use by the public.”

The term highway is defined by § 6N1-201, MCA, as follows:

“ ‘Highway’ means the entire width between the boundary lines of every publicly maintained way when any part there of is open to the use of the public for purposes of vehicular travel, except that for the purpose of chapter 8 [governing traffic regulation] the term also includes ways which have been or shall be dedicated to public use.” (Emphasis added.)

These statutes clearly provide that, with regard to matters involving a motorist driving under the influence of alcohol, a “way of this state open to the public” is not limited to the traveled portion of the road but extends to the accompanying right-of-ways that are dedicated to public use. Indeed, in State v. Taylor (1983), 203 Mont. 284, 661 P.2d 33, a case in which we upheld the conviction of an individual who was discovered asleep behind the steering wheel of a vehicle stuck in a borrow pit, we concluded that a borrow pit that had been dedicated to public use constituted a “highway” within the meaning of § 61-1-201, MCA.

The question presented to the District Court was not whether the vehicle was, beyond a reasonable doubt, on a public highway, but whether the arresting officer had reasonable grounds to believe that the pickup was on a public highway. Considering the statutory language and the precedent set by Taylor, the arresting officer had reasonable grounds to believe that Gebhardt’s pickup, located approximately ten feet from the traveled portion of the roadway, was on a way of the state open to the public.

The District Court also ruled from the bench that, because the vehicle was mired in the mud and could not be moved, Gebhardt did not have actual physical control of the pickup. However, in Taylor, where the defendant’s vehicle was stuck in a borrow pit and immobile, we stated that movement of a vehicle is not required for “actual physical control.” A motorist does not relinquish control over a vehicle simply because it is incapable of moving. Taylor, 203 Mont, at 287, 661 P.2d at 34.

Nor does a motorist relinquish actual physical control over a vehicle because he is lying across the front seat, asleep. In Taylor, the defendant was asleep and slumped over the steering wheel of his vehicle with its engine running and its lights on. We held that he was in actual physical control of the vehicle. Similarly, in State v. Ryan (Mont. 1987), [229 Mont.7,] 744 P.2d 1242, 44 St.Rep. 1735, we held that a motorist who was lying across the front seat of a vehicle with his feet near the gas and brake pedals while the engine was running and the lights were on was in actual physical control of the vehicle.

In the present case, Gebhardt was found alone in the pickup. He was asleep, lying across the front seat with his legs beneath the steering wheel. The engine was running and the parking lights were on. This set of facts gave Officer Kostelecky reasonable grounds to believe that Gebhardt was in actual physical control of the vehicle.

The District Court also concluded that the arresting officer did not have reasonable grounds to believe that Gebhardt was under the influence of alcohol. It appears that the court based this conclusion on the fact that Officer Kostelecky failed to administer any sobriety tests at the scene. We agree with the District Court to the extent that a motorist’s failure to pass sobriety tests given at the scene strengthens the State’s case. However, the failure to administer field sobriety tests does not, by itself, constitute lack of reasonable grounds to believe that a motorist may be under the influence of alcohol. Rather, reasonable grounds exist if the facts and circumstances within the personal knowledge of the arresting officer would be sufficient to warrant a reasonable person to believe that the motorist is under the influence of alcohol. See State v. Lee (Mont. 1988), [232 Mont. 105,] 754 P.2d 512, 515, 45 St.Rep. 903, 906-07.

In this case, Officer Kostelecky observed Gebhardt asleep in a vehicle while the motor was running. Gebhardt was difficult to rouse and, once awakened, was belligerent. Gebhardt’s breath and the cab of the pickup smelled of alcohol. This combination of facts constitutes reasonable grounds to believe that Gebhardt was under the influence of alcohol.

We reverse the District Court and remand for entry of an order consistent with this opinion.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES McDON-OUGH, HARRISON and SHEEHY concur.


author: MR. JUSTICE WEBER

text:
    CITY OF GREAT FALLS, Montana, Plaintiff & Respondent, v. ALICE PRICE, Defendant & Appellant. ALICE PRICE, Cross/Plaintiff & Appellant, v. CITY OF GREAT FALLS, MT, a municipal corporation; Richard D. Stevens; John Doe Austin; William B. Reid; Austin-Reid Demolition, a business association, Cross/Defendants & Respondent.
    No. 89-041.
    Submitted on Briefs June 1, 1989.
    Decided July 6, 1989.
    775 P.2d 1260.
    La Rue Smith, Great Falls, for defendant-appellant.
    J. David Slovak and Mark J. Higgins, Ugrin, Alexander, Zadick and Slovak, Great Falls, for plaintiff and respondent.
   MR. JUSTICE WEBER

Alice Price appeals from an order of the District Court for the Eighth Judicial District, Cascade County, dismissing with prejudice her cause of action against the City of Great Falls and Richard D. Stevens, hereinafter referred to as “defendants.” We affirm.

Ms. Price raises seven issues for our review, none of which directly address the propriety of the District Court’s dismissal of this action. We therefore restate the issue on appeal as whether the District Court properly granted defendants’ motion to dismiss pursuant to Rule 12(b), M.R.Civ.P. on the basis that defendants were immune from suit? Since we conclude that dismissal was proper, we will not discuss the remaining issues raised by Ms. Price.

On October 30, 1987, Alice Price was cited for violation of Great Falls City Ordinance 8.48.080 for knowingly and purposely allowing waste paper, clothing, boxes, discarded furniture, appliances, and other rubbish to accumulate on her property. The notice to appear and complaint was signed by Richard D. Stevens, a Zoning Technician for the City of Great Falls, who is a named defendant in this action.

At a non-jury trial in City Court, Ms. Price was found guilty of creating a nuisance, on her property at 620 6th Avenue South. The court ordered Ms. Price to completely abate the nuisance within seven days, and further ordered that if the nuisance was not completely abated by March 2, 1988, the City of Great Falls shall do so and charge the cost of the procedure to Ms. Price. When she did not clean up her property by the ordered date, Richard Stevens, pursuant to the court’s order, contracted out the clean-up project and billed Ms. Price for the cost, which was $495.

Ms. Price appealed her conviction to the District Court, and in subsequent pleadings, sought compensatory damages for personal property which was allegedly wrongfully removed, and for mental distress and suffering, as well as punitive damages and attorney fees. These damages were asserted against defendants Richard Stevens and the City of Great Falls, as well as the two individuals hired to complete the clean-up of Ms. Price’s property. The City of Great Falls and Richard Stevens filed a motion to dismiss Ms. Price’s claims for relief pursuant to Rule 12, M.R.Civ.P., based on procedural errors, including the transformation of a criminal matter to a civil action under a rule providing for appeals of civil cases to district court. Defendants also argued that they were immune from suit. The District Court granted defendants’ motion, concluding that both the City of Great Falls and Richard Stevens were immune from suit for damages under the facts of this case. It is from this order that Ms. Price appeals.

The actions complained of in this case relate to Richard Stevens’ activities in carrying out, on behalf of the City of Great Falls, the sentence legally imposed by the City Court Judge. The District Court determined that in so doing, Mr. Stevens was immune from suit under § 2-9-112, MCA, as interpreted in Knutson v. State (1984), 211 Mont. 126, 683 P.2d 488. Section 2-9-112, MCA, provides:

“Immunity from suit for judicial acts and omissions. (1) The state and other governmental units are immune from suit for acts or omissions of the judiciary.”

In regard to that section this Court first stated:

“. . . The immunity statute applies to judicial acts with no stated limitation. It applies to protect the state and governmental agencies whenever the judicial power of the state is put to use in a judicial action . . . .”

683 P.2d at 490.

In that case Ms. Knutson argued that the immunity statute did not apply to the Department of Institutions which she contended had miscomputed the good time allowance. The Court concluded that the Department of Institutions was protected under the immunity section, stating:

“Sentences are pronounced by courts, not by the Department of Institutions. Knutson’s sentencing was the result of a judicial act. Further, the immunity statute protects any governmental agency involved in the judicial act of sentencing. ” (Emphasis supplied.)

683 P.2d at 490.

The issue in the present case is whether or not the City as well as Mr. Stevens are protected by the immunity statute. Under the analysis of Knutson, we conclude that they are. In carrying out the express provisions of the sentence, Mr. Stevens was directly involved in an act of the judiciary and is therefore afforded immunity. Since he was acting as an agent of his employer, the immunity statute also protects the City of Great Falls. We hold that § 2-9-112, MCA, provided immunity for both the defendants City of Great Falls and its agent, Richard Stevens.

We affirm the order of the District Court dismissing the plaintiffs case with prejudice.

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


author: MR. CHIEF JUSTICE TURNAGE

text:
    GREAT FALLS TRIBUNE COMPANY, INC., Petitioner and Respondent, v. CASCADE COUNTY SHERIFF, Barry Michelotti, and City of Great Falls, Municipal corp., Respondents and Appellants.
    No. 89-86.
    Submitted on Briefs May 18, 1989.
    Decided July 6, 1989.
    775 P.2d 1267.

      David V. Gliko, City Atty., Great Falls, for respondents and appellants.
    Peter Michael Meloy, Helena, for petitioner and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The City of Great Falls appeals from an order of the District Court for the Eighth Judicial District, Cascade County, that the City must publicly disclose the names of three law enforcement officers disciplined as the result of a November 30, 1988, incident. We affirm.

The issue is whether the privacy rights of the individual police officers exceed the merits of public disclosure of the names of the officers in the Great Falls Tribune.

On November 30, 1988, certain police officers and deputies from the Cascade County Sheriffs Office engaged in a high-speed automobile chase through the City of Great Falls in an attempt to apprehend a suspect. The suspect left his car and continued his flight on foot. A deputy sheriff attempting to stop the suspect ran his squad car up on a city sidewalk and struck the suspect.

When the suspect was taken to jail, a jailer noticed that the suspect had suffered injuries to his head and face. The jailer brought the injuries to the attention of the sheriff and an investigation followed.

As a result of the investigation, a sheriff’s deputy was suspended for a period of time, one police officer was fired, and two other police officers were given the option to resign or be terminated. They resigned. A reporter from the Great Falls Tribune (Tribune) had been given access to an “initial offense report” which contained the names of a number of officers involved in the incident without specifying how they were involved. He attempted to obtain the names of the officers disciplined. The reporter asked the Cascade County Sheriff, the Great Falls City Police Chief, and the Great Falls City Manager for the names of the officers disciplined, but all three refused to disclose the names on the grounds of the officers’ right to privacy.

The Tribune filed a petition in District Court seeking an order directing the defendants to release the names of the law enforcement officers who had been disciplined. The City of Great Falls (City) moved to dismiss and filed an answer asserting the individual officers’ right to privacy under Article II, Section 10 of the Montana Constitution. The court held a hearing at which two witnesses for the Tribune testified. The City did not call witnesses but filed an affidavit by the Police Chief which was entered by stipulation as part of the record.

On January 17, 1989, the District Court issued its opinion and order directing the City to disclose the identity of the officers who were disciplined. The court noted that the Cascade County Sheriff had disclosed the name of the deputy sheriff to the Tribune and had been dismissed from the lawsuit.

In analyzing the issue before it, the District Court conducted a balancing of two rights guaranteed under the Montana Constitution. The right to know is set forth at Art. II, Section 9, Mont.Const.:

“Section 9. Right to know. No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.”

The right of privacy is set forth at Art. II, Section 10, Mont. Const.:

“Section 10. Right of privacy. The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.”

The court determined that “the demands of individual privacy as shown on this record do not clearly exceed the merits of public disclosure.” It ordered the City to provide the Tribune with the names of the officers disciplined as a result of the November 30th incident, along with information on which officers were terminated and resigned.

Before conducting our analysis, we will review recent cases in which this Court has been asked to balance the right of privacy against the right to know.

This Court has used a two-part test in determining whether a person has a constitutionally-protected privacy interest. Montana Human Rights Div. v. City of Billings (1982), 199 Mont. 434, 442, 649 P.2d 1283, 1287. First, we determine whether the person has a subjective or actual expectation of privacy. Next, we evaluate whether society is willing to recognize that expectation as reasonable. In Human Rights, the issue was whether the Human Rights Division had the authority to subpoena employment records of employees other than the employee who was accusing the employer of discrimination. The Court concluded that the other employees had a high expectation of privacy worthy of protection under Art. II, Section 10, Mont.Const., since their files presumably contained sensitive information. This Court next balanced the right of privacy of the other employees against the State’s interest in prohibiting employment discrimination, using as its standard whether there was a compelling state interest which overrode the right to individual privacy. Human Rights, 649 P.2d at 1288. This Court concluded that the State had a compelling interest. The Court ordered that the information sought by the Human Rights Division must be released, but that a protective order must also issue to prevent release of names of the other employees outside of the investigating agency.

In Missoulian v. Board of Regents of Higher Educ. (1984), 207 Mont. 513, 675 P.2d 962, this Court was asked to balance the public right to know about the performance of a university president against the president’s expectation of privacy in job performance evaluations. After determining that the university president had a constitutionally-protected privacy interest, the Court used as its standard the Art. II, Section 9, Mont.Const., test of whether the demand of individual privacy clearly exceeded the merits of public disclosure. Missoulian, 675 P.2d at 970. The Court ruled that closed job performance evaluations were justified because the individual privacy interest of the university president clearly exceeded the public’s right to know. Missoulian, 675 P.2d at 973.

In Belth v. Bennett (Mont. 1987), [227 Mont. 341,] 740 P.2d 638, 44 St.Rep. 1133, the balance was between insurance companies’ privacy interests in national regulatory reports on them and the public’s right to disclosure of the reports. The Court first determined that the insurance companies had a constitutionally-protected privacy interest. The Court then stated the balancing test as whether the demand of individual privacy clearly exceeded the merits of public disclosure. Belth, 740 P.2d at 641. Because the Court found that there were ways other than reviewing the reports to obtain similar information about insurance companies’ performance and financial status, and because the reports had been represented to the insurance companies as confidential during data gathering, the Court affirmed the District Court in denying release of the requested information.

In Engrav v. Cragun (Mont. 1989), [236 Mont. 260,] 769 P.2d 1224, 46 St.Rep. 344, we weighed the public right to know about county law enforcement operations, as represented by appellant’s desire to do a school research project, against the privacy interest of persons named in daily logs of telephone calls, case files of criminal investígations, pre-employment investigation reports, and a list of persons arrested. We determined that the individuals whose names would be disclosed by release of the information had an actual expectation of privacy which society recognized and that this privacy interest outweighed the appellant’s right to do a study for his school research project. We stated that no compelling state interest justified invading the privacy of the individuals affected. Engrav, 769 P.2d at 1229.

In the present case, the District Court declared that “it is not good public policy to recognize an expectation of privacy in protecting the identity of a law enforcement officer whose conduct is sufficiently reprehensible to merit discipline.” We agree. The law enforcement officers in the present case may have had a subjective or actual expectation of privacy relating to the disciplinary proceedings against them. However, law enforcement officers occupy positions of great public trust. Whatever privacy interest the officers have in the release of their names as having been disciplined, it is not one which society recognizes as a strong right.

On the other hand, the public has a right to know when law enforcement officers act in such a manner as to be subject to disciplinary action. The public health, safety, and welfare are closely tied to an honest police force. The conduct of our law enforcement officers is a sensitive matter so that if they engage in conduct resulting in discipline for misconduct in the line of duty, the public should know. We conclude that the public’s right to know in this situation represents a compelling state interest.

When we balance the limited privacy interest of the law enforcement officers against the public’s right to know which officers have been disciplined for unlawful acts, we conclude that the District Court was correct. The privacy interest of the officers does not clearly exceed the public’s right to know. We note that we are not ruling that the entirety of any personnel files must be revealed. The District Court ordered only the release of the names of the officer who was terminated and those who resigned.

Affirmed.

MR. JUSTICES HARRISON, GULBRANDSON, WEBER, HUNT, McDONOUGH and SHEEHY concur.


author: MR. JUSTICE GULBRANDSON

text:
    In re the MARRIAGE OF GENE G. MILLER, (Deceased), Petitioner and Appellant, and NANCY G. MILLER, Respondent and Respondent.
    No. 89-87.
    Submitted on Briefs May 18, 1989.
    Decided July 6, 1989.
    Rehearing Denied Aug. 11, 1989.
    776 P.2d 1218.

      D.R. Matthews, H.L. Garnaas, Missoula, for petitioner and appellant.
    Michael Sol, Sol & Wolfe, Missoula, for respondent and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Gene Miller appeals from an order of the Fourth Judicial District Court, Missoula County, denying his motion to amend the order issued November 14, 1988, which had set aside a prior decree of dissolution. We reverse.

The parties married June 14, 1985. The husband filed a petition for legal separation three months later, contending that the marriage was irretrievably broken. On October 4,1985, the wife was personally served with a copy of this petition and with a summons requiring her to answer the petition. The wife failed to file an answer or make any other appearance. Consequently, the husband moved for a default judgment. Following a brief hearing on November 8, 1985, the court entered a default judgment granting the husband’s petition for a decree of legal separation.

On September 2, 1986, attorney for the wife, Larry Meyer, filed and served upon the husband’s attorney a motion for entry of a decree of dissolution. The motion was based on the fact that more than six months had passed, without reconciliation, since the decree of legal separation. Hearing on this motion was indefinitely continued per the request of attorney Meyer, who did not take any further action in this matter. Meyer moved to California prior to issuance of notice of the petition for dissolution.

The husband filed a similar motion for entry of decree of dissolution on May 6, 1988. This motion was served on attorney Meyer, who remained the attorney of record for the wife; Meyer did not notify the wife of this motion. A hearing on husband’s motion was held on May 27, 1988. Neither the wife nor an attorney acting on her behalf were present at this hearing. The District Court entered a decree of dissolution at the conclusion of this hearing. No notice of entry of this decree was filed or served by either party.

The husband died intestate on June 19, 1988. Thereafter, on August 22,1988, the wife filed a motion to set aside the decree of dissolution and to substitute the personal representative of the estate of Gene Miller for the deceased in this matter. By affidavit offered in support of this motion, the wife alleged the District Court erred in granting the decree of dissolution as the marriage was not irretrievably broken. She contends this allegation is supported by the fact she and the deceased were traveling to Missoula to remarry when the husband suffered a heart attack and died.

On September 2, 1988, attorney for the husband’s estate filed a motion to dismiss the wife’s August 22, 1988 motion. A memorandum in support of this motion was filed on September 13, 1988.

The District Court did not enter judgment on either motion until November 14, 1988, at which time the court granted the substitution motion and ordered the decree of dissolution set aside for the following reasons: 1) the decree was void for lack of any testimony or evidence that the parties had lived apart for more than 180 days or that the marriage was irretrievably broken; 2) the wife had not received proper notice of the motion for dissolution of the marriage; and 3) the court deemed the wife’s allegations to be well taken since the attorney for the estate failed to file a brief in support of his motion to dismiss within the time required by Rule 2 of the Uniform District Court Rules. Notice of entry of this judgment was filed the same day. The District Court subsequently denied the estate’s motion to amend this November 14, 1988 judgment, and the petitioner thereafter filed this appeal.

The following issues are submitted upon appeal:

1. Did the District Court lose jurisdiction by failing to rule within 45 days of the date the motion to set aside the decree of dissolution was filed?

2. Did the District Court err in holding that the petitioner’s late filing of his brief in opposition to the motion to set aside the dissolution warranted a summary ruling in favor of the wife?

3. Did the District Court err in holding that no testimony existed indicating that the marriage was irretrievably broken?

4. Did the District Court err in determining that the wife was not represented by counsel at the time of dissolution and that service of the motion for dissolution upon attorney Meyer failed to give her proper notice?

The wife contends that the husband’s failure to file a response brief within the mandatory time limits automatically deemed the motion to set aside the judgment admitted as well taken. The wife argues that this admission “cannot then be undone by subsequent application of Rule 60(b) or Rule 59(g), M.R.Civ.P.”

Rule 2 of the Uniform District Court Rules did in fact require the husband, as the adverse party, to file a response brief to the wife’s motion within ten days after the wife filed her motion and supporting brief. The husband failed to file his brief within this period. This failure is deemed an admission by the husband that the motion is well taken. See Rule 2(b), U.D.C.R. The District Court then could, within its discretion, grant a summary ruling in favor of the wife. The court, however, failed to immediately grant such a ruling. Instead, the court waited approximately 74 days before so ruling. The court’s ruling, per Rule 2, U.D.C.R., thus was not a prior ruling, as argued by the wife, which would automatically preempt any subsequent application of Rules 60(b) and 59(g), M.R.Civ.P.

The wife next contends that the 45 day limit specified in Rules 60(c) and 59(g), M.R.Civ.P., during which a district court must rule on a motion properly before it or the motion will be deemed denied, had not expired prior to the November 14, 1988 ruling. She asserts that a notice of entry of judgment begins the running of all jurisdictional time limits. Because such a notice had not been filed after the May 8, 1988 dissolution decree, she contends that none of the post-trial motion time limits had even begun to run, let alone expire, when the court issued its November 14, 1988 order setting aside the decree. This argument, which goes beyond the clear and unambiguous language of the statute, finds no support in law.

A court is required to rule on a post-judgment motion to set aside (Rule 60(b), M.R.Civ.P.) or to amend (Rule 59(g), M.R.Civ.P.) a judgment within 45 days of the date the motion is filed. Rules 60(c) and 59(g), M.R.Civ.P., expressly state that this 45 day limit is the same as that respecting motions for a new trial as set forth in Rule 59(d), M.R.Civ.P.:

“If the court shall fail to rule on a motion for new trial within 45 days from the time the motion is filed, the motion shall, at the expiration of said period, be deemed denied.” (Emphasis added.)

The rules clearly state that the 45 day time limit for ruling on such post-trial motions begins on the actual date the motion is filed.

No statutory provision exists, unlike that provision existing for a notice of appeal, which states that this 45 day period, in cases in which a post-judgment motion is filed prior to notice of entry of judgment, shall be treated as beginning on the day of the notice of entry of judgment. Cf. Rule 5(a)(2), M.R.App.P. (expressly stating that a prior notice of appeal will be treated as filed on the subsequent date that notice of entry of judgment is filed). We therefore hold that a notice of entry of judgment, in regard to post-judgment motions, will not affect the time within which a court must rule on the motion. However, if the notice is never filed, a moving party potentially would have an unlimited time within which to file the respective motion. Once the motion is made, however, the time frame within which the court must act begins. See, e.g., Winn v. Winn (1982), 200 Mont. 402, 408, 651 P.2d 51, 54.

When the court failed to rule on the wife’s motion to set aside the judgment within 45 days of the date the motion was filed, the matter was deemed denied and the court lost jurisdiction of the particular issue. Having so ruled, we need not discuss the other challenges to the validity of the November 8 and December 16, 1988 orders issued by the District Court.

We reverse and reinstate the decree of dissolution entered May 27, 1988.

MR. JUSTICES HARRISON, SHEEHY, McDONOUGH and WEBER concur.


text:
    MONTANA STOCKGROWERS ASSOCIATION, Joseph F. “Bud” Maurer; and Tom Lorang, Plaintiffs and Respondents, v. The STATE OF MONTANA, DEPARTMENT OF REVENUE, and John D. LaFaver, Director of the Department of Revenue, Defendants and Appellants.
    No. 88-374.
    Submitted April 20, 1989.
    Decided July 7, 1989.
    777 P.2d 285.

      Larry G. Schuster argued, Dept, of Revenue, Helena, for defendants and appellants.
    Thomas E. Hattersley argued, and Ronald Waterman argued, Gough, Shanahan, Johnson and Waterman, Helena, John C. Hoyt, Hoyt & Blewett, Great Falls, for plaintiffs and respondents.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

This appeal concerns a judgment from the District Court of the Eighth Judicial District, Cascade County, declaring classification of livestock in property tax valuation unconstitutional in violation of equal protection guarantees in the United States and Montana Constitutions. The Department of Revenue (DOR) appeals this decision, and also appeals the District Court’s interpretations of applicable statutes, its decision to take judicial notice of facts denied by the DOR in answer to requests for admissions from Respondent, the Montana Stockgrowers Association (MSA), and the remedy provided the MSA for the DOR’s alleged improper assessment of taxes. We reverse the District Court’s decision on the initial issues, and thus render the issue of the appropriate remedy moot.

Issues

(1) Did the District Court err by concluding that the enactment of Senate Bill 47 and Senate Bill 283 denied MSA equal protection of the law?

(2) Did the District Court err by concluding that all livestock in Montana are business inventory?

(3) Did the District Court err by taking judicial notice of certain facts called for by the plaintiffs’ requests for admission?

(4) Did the District Court err in its interpretation of Chapter 330 and Chapter 613 of the Laws of Montana 1981?

(5) Did the District Court err by fashioning a remedy which is beyond the scope of the Uniform Declaratory Judgments Act, and § 15-1-406, MCA?

In the lower court, MSA, three members of MSA, and three stock owners brought suit seeking a declaration that the classification of livestock separate from business inventory was invalid. Both parties moved for judgment on the pleadings. The District Court granted the motion made by MSA.

The legislature’s enactment of laws affecting the rate of taxation for business inventory and livestock spawned the current litigation. In 1981, the legislature passed two bills which affected tax rates for livestock and business inventories. Senate Bill 47, entitled “AN ACT TO REMOVE LIVESTOCK, POULTRY, AND THE UNPROCESSED PRODUCTS OF BOTH FROM CLASS SEVEN AND PLACE THEM IN CLASS SIX FOR PURPOSES OF PROPERTY TAXATION; AND PROVIDING AN APPLICABILITY AND IMMEDIATE EFFECTIVE DATE; AMENDING SECTIONS 15-6-136 AND 15-6-137, MCA” appeared to mandate that livestock be valued with property defined as class six in the tax code, effective on approval. See I Laws of Montana, Chapter 330 (1981). SB 47, however, did not provide a directive to code compilers to actually amend § 15-6-136, MCA, so that livestock would be listed in the code books with class six property following its passage. Instead, and engendering some confusion, another bill also passed in 1981, accomplished the actual code amendment. Senate Bill 283, entitled “AN ACT TO EXEMPT BUSINESS INVENTORIES FROM TAXATION; PROVIDING TAX CREDITS FOR BUSINESS INVENTORY TAXES PAID PRIOR TO EXEMPTION; AMENDING SECTIONS 15-6-136, 15-6-202, 15-8-104, AND 15-24-301, MCA; AND REPEALING SECTIONS 15-24-402 AND 15-24-403, MCA; AND PROVIDING EFFECTIVE DATES” directed code compilers to amend the list of class six property contained in § 15-6-136, MCA, to include livestock. II Laws of Montana, Chapter 613 (1981). SB 283 also directed code compilers to delete business inventory from the list of class six property. The effective date of this amendment, however, was January 1, 1983.

Following the 1981 Session, the DOR recognized that the effect of the passage of SB 283 and SB 47, while clearly spelling out treatment of livestock property for the tax year 1983 when SB 283 became effective, left the classification of livestock in limbo for the tax year 1982. The title of SB 47 indicated that livestock would no longer be taxed as class seven property effective on passage of SB 47 in 1981. However, the placement of livestock in class six (which provided a lower tax rate than class seven), was not effective until SB 283 became effective, that is, in 1983. To provide for classification in the interim, the DOR drafted ARM § 42-21-120 (1981) which proposed classifying livestock as class six property for the 1982 tax year. The DOR submitted this proposal to the Legislature’s Revenue Oversight Committee. Thus, we are assured that at least the Committee scrutinized the DOR’s interpretation of SB 43 and SB 283. However, the Committee did not specifically poll the legislature on the issue of whether livestock should be treated as class six property for the 1982 tax year. Following applicable procedures, the DOR adopted the rule and taxed livestock as class six property for the 1982 tax year. In 1983, code compilers specifically listed livestock as Class six property. The legislature has not amended the statute to provide the same exemption for livestock which has been effective for business inventory since 1983.

I.

The District Court held that no distinction exists which would justify classification of livestock separate from business inventory. Therefore, according to the lower court, the classifications attempted by SB 47 and SB 283 violated equal protection guarantees found in the Fourteenth Amendment to the United States Constitution, and in Article II, § 4 of the Montana Constitution. The lower court applied both the rational basis test and middle tier analysis to conclude that the classification at issue violated equal protection guarantees.

The DOR contends that the District Court erred because middle tier analysis does not apply, and a review of the history of livestock tax treatment demonstrates that livestock has always been reasonably classified as a distinct type of property. MSA responds that the District Court correctly concluded that no distinction exists between livestock and business inventory which would justify disparate tax treatment under state and federal equal protection guarantees.

Initially, we note that middle tier scrutiny does not apply in this case. The District Court’s decision to apply middle tier analysis rests on its interpretation of Article XII, § 1 of the Montana Constitution, which reads:

“Section 1. Agriculture. (1) The legislature shall provide for a Department of Agriculture and enact laws and provide appropriations to protect, enhance, and develop all agriculture.”

The lower court held that the interest in agriculture possessed by MSA resulting from the constitutional provision mandated middle tier scrutiny citing Butte Community Union v. Lewis (1986), 219 Mont. 426, 712 P.2d 1309. Butte Community Union held that the guarantee to the needy to receive state assistance as provided by Article XII, § 3(3) of the Montana Constitution, mandated middle tier scrutiny of classifications burdening certain individuals’ interest in obtaining welfare benefits. We disagree that Butte Community Union provides the rule for this case.

Article XII, § 1 requires the Legislature to “enact laws and provide appropriations to protect, enhance, and develop agriculture”. We disagree. Article XII, § 1, imparts to stock growers a constitutionally significant interest in tax classifications. The language provides a broad directive whose specifics are implemented through legislative decision, not by constitutional mandate. Thus, it is in no sense a self-executing provision which can be enforced by this Court. See generally 16 Am. Jur. 2d Constitutional Law § 143. Moreover, the power to exempt particular classes of properties is specifically enumerated under Article VIII, § 5 of the Montana Constitution. Reading this provision with the vague instruction to enact laws to benefit agriculture in Article XII, § 1, leads us to conclude that middle tier scrutiny is not required. Therefore, we reverse the District Court and hold the middle tier analysis inapplicable.

The proper test for the classification at issue here is the rational basis test. As explained by the United States Supreme Court, to survive scrutiny under the rational basis test, classifications must be reasonable, not arbitrary, and they must bear a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike. Eisenstadt v. Baird (1972), 405 U.S. 438, 447, 92 S.Ct. 1029, 1035, 31 L.Ed.2d 349, 359. In applying this test the Court in Eisenstadt framed the inquiry as:

“whether there is some ground of difference that rationally explains the different treatment . . .”

Eisenstadt, 438 U.S. at 447, 92 S.Ct. at 1035.

Decisions by this Court have explained and employed the rational basis test to determine whether various tax classifications pass equal protection muster:

“Equal protection of the law is seldom, if ever, obtained; and because of the very frailty of human agencies, the authorities all recognize the right of the legislative branch of government to make reasonable classifications of subjects, for property or occupation taxes * * * and if the classification is reasonable, and if all of the subjects within a given class are accorded the same treatment, the legislation cannot be said to deny to anyone within such class the equal protection of the law, even though the burden imposed upon him may be more onerous than that imposed upon a member of another class, [citing cases] But to justify such discriminatory legislation, and avoid the condemnation of the Fourteenth Amendment to the federal Constitution, the classification must be reasonable that is, must be based upon substantial distinctions which really make one class different from another.”

Peter Kiewit Sons’ Co. v. State Board of Equalization (1973), 161 Mont. 140, 147, 505 P.2d 102, 106-07 (quoting State ex rel. Schulz-Lindsay v. Board of Equalization (1965), 145 Mont. 380, 403 P.2d 635; emphasis in original). An older case concerning tax classifications reflects the same judicial deference for legislative classifications of taxable property in analyzing equal protection guarantees:

“A classification is not open to objection unless it precludes the assumption that the classification was made in the exercise of legislative judgment and discretion. [Citation omitted.]
“Any classification is permissible which has a reasonable relation to some permitted end of governmental action. [Citations omitted.]
“When there is a difference between various properties, it need not be great or conspicuous in order to warrant classification. [Citations omitted.] . . .
“It makes no difference that the facts on which the classification is based may be disputed or their effect opposed by argument and opinions of serious strength. It is not within the province of the courts to arbitrate any such contrariety. [Citation omitted.]”

Bank of Miles City v. Custer County (1933), 93 Mont. 291, 296-97, 19 P.2d 885, 887.

Under this authority, the issue here is whether there exists a distinction between business inventory and livestock sufficient to justify a classification which exempts business inventory from taxation while taxing livestock at 4% of its market value. The Colorado Supreme Court faced a similar question on different tax treatment for mobile homes and other residential property, and in disposing of the appeal, the Court explained the operation of the rational basis test in judicial inquiry over such distinctions:

“[A]fter deciding that movable structures have been placed in a separate class for taxation, we need now only decide whether the legislature could have constitutionally treated and classified movable structures differently than conventional residences .... If the classification conceivably rests upon some reasonable considerations of difference or policy, there is no constitutional violation. The burden is therefore on the one attacking the classification to negative every conceivable basis which might support it, at least where no fundamental right is imperiled.”

American Mobile Home Association, Inc. v. Dolan (Colo. 1976), 553 P.2d 758, 762. (Emphasis added.)

The record leaves no doubt that the burden MSA must bear has not been met. The State has affirmatively demonstrated not only conceivable bases for different treatment, the State has answered MSA’s contentions with actual policy reasons submitted to successive legislatures justifying different treatment of livestock and business inventory. For example, a study completed in 1966 for the Montana Legislative Council Subcommittee on Taxation pointed out certain problems in assessing business inventories, and outlined improvements for assessing livestock. The Study recommended an exemption for business inventories, but not for livestock. Other legislative materials also demonstrated differences in livestock and business inventory justifying disparate treatment. For example, one legislator contrasted the difference between breeding stock and business inventory pointing out that breeding stock is not property held for sale, rather, it is property held to produce products for sale. (Minutes of the Senate Taxation Committee, March 6, 1987.) Another legislator, arguing against a proposal which would have reduced rates on livestock in 1977, pointed out his constituency’s reliance on livestock property to raise revenue for local government. (Minutes of the Senate Taxation Committee, April 6, 1977.) These legislative materials support finding that the legislature rationally decided livestock and business inventory should be treated differently for property tax purposes.

Furthermore, the legislature has always made a distinction between livestock and stocks of merchandise of all sorts, the classification which formerly covered business inventories. For example, in 1919 the legislature provided for Montana’s first property tax classification system. Laws of Montana, Chapter 51 (1919). Livestock and merchandise of all sorts appear in the 1919 classification system in the same tax class, but are listed separately.

The separation of livestock and merchandise within the same class existed in Montana law until 1975. In 1975, the legislature went further in distinguishing between these properties by placing them in separate tax classifications with different percentages of taxable value. See II Laws of Montana, Chapter 507 (1975). The legislature once again grouped livestock and business inventories in the same class in 1979, but maintained a separate listing in the code for the two types of properties. Section 15-6-136, MCA. Of course, finally, the separate treatment received by livestock and business inventories in 1981 created the current dispute. The history of separate treatment, and the legislative debates concerning the proper classification of business inventory and livestock, support the conclusion that the different tax treatment for the two types of property is justified.

Other conceivable differences between the two types of property also support this conclusion. For example, one could effectively contrast the distributions of livestock property as compared to placement of business inventories in Montana. Many counties have an abundance of livestock and little in the way of business inventories. These and doubtless other conceivable differences in use, productivity, and discoverability serve to justify the classification at issue here. Thus, the legislature acted rationally in classifying the two properties differently, and continuing the tax on livestock serves the legitimate state interest in raising revenue. We reverse the District Court and hold that the classification at issue passes muster under the applicable equal protection analysis.

II.

The District Court also erred in holding that livestock constitutes business inventory under § 15-6-202(5), MCA. Subsection (5) defines business inventory as:

“ ‘Business inventories’ includes goods primarily intended for sale and not for lease in the ordinary course of business and raw materials and work in progress with respect to such goods. Business inventories do not include goods leased or rented or mobile homes held by a dealer or distributor as part of his stock and trade.”

Section 15-6-202(5), MCA. The District Court took judicial notice of the “fact” that livestock property by and large becomes goods destined for sale for food consumption, and thus concluded that livestock constituted business inventory under the subsection.

In construing statutory definitions according to the intent of the legislature, it is fundamental that the specific prevails over the general. Section 1-2-102, MCA. The intent of the legislature in inserting livestock as class six property through SB 283, and deleting business inventory through the same bill, obviously indicates that the two types of property are to receive separate treatment. In addition: § 15-l-101(i), MCA, specifically defines livestock; § 15-24-902, MCA, continues to provide an assessment methodology for taxing livestock; § 15-8-201, MCA, provides that livestock is subject to the general assessment date of the tax code; and § 15-8-706, MCA, maintains a reporting requirement for assessors of livestock. Construction of the definition of business inventory to include livestock would be to presume that these assessment statutes are superfluous. Such a construction is to be avoided. Section 1-2-101, MCA. Finally, even though business inventory, a class of property formerly denoted as “stocks of merchandise of all sorts”, has at times been taxed at the same rate as livestock, it has always appeared in the tax code separately from livestock. We find nothing in the record demonstrates that the legislature intended to depart from the historically separate treatment of the two properties. Thus, for all the reasons stated above on this issue, we reverse the District Court.

III.

The District Court memorandum records its decision to take judicial notice of facts alleged by the MSA as follows:

“1. Judicial Notice
“The Defendant’s [sic] denied certain requests for admissions stating the requests called for legal conclusion. The Plaintiff’s [sic] request this Court take judicial notice of the matters denied by the Defendant’s [sic].
“Specific requests denied by the Defendant [sic] are as follows: (numeric references correspond to Plaintiffs’ numeration)
“1. a commercial enterprise which raises livestock intended for sale in the ordinary course of business constitutes a ‘business’;
“2. that livestock are things which are movable at the time of identification to a contract for sale;
“3. that livestock constitute ‘personal property’;
“4. that ‘inventory’ designates personal property held for sale in the ordinary course of business;
“5. that livestock raised and intended for sale in the ordinary course of business constitute ‘inventory’;
“6. that livestock raised and intended for sale in the ordinary course of business constitute ‘business inventory.’
“The Defendant’s [sic] denials of the above referenced requests for admissions were improper. The matters requested to be admitted are not subject to reasonable dispute. Those matters are ‘generally known within the territorial jurisdiction’ of this Court and are ‘capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.’ Those are the standards governing judicial notice of facts. Rule 201, Montana Rules of Evidence. Therefore, this Court takes judicial notice of the above mentioned facts.”

We have held on the prior issue that livestock is not included in the definition of business inventory for property tax classification. Thus, at least in the context relevant here, it is obvious that the District Court incorrectly noticed “facts” supporting a legal interpretation of two separate property classifications as one classification. This construction violates the rule that:

“[TJechnical words and phrases and such others as have acquired a peculiar and appropriate meaning in law . . . are to be construed according to such peculiar and appropriate meaning or definition.”

Section 1-2-106, MCA. Here, the tax code supplies the definitions applicable for determining appropriate tax treatment of livestock and business inventory. We reverse the District Court’s decision to take judicial notice of the terms in MSA’s requests for admissions.

IV.

The District Court ruled that the passage of SB 43 and SB 283 created an ambiguity in the proper classification of livestock which must be construed against the taxing authority. This conclusion is also erroneous and we hereby reverse on this issue.

The directive provided by passage of SB 283 that livestock be specifically included in § 15-6-136, MCA, supports the DOR’s argument that no ambiguity exists in regard to tax treatment of livestock for the tax year 1983. Since 1983, the legislature has not amended § 15-6-136 to exempt livestock from taxation. For the tax year 1982, the title of SB 43 demonstrates legislative intent to place livestock in class six effective as of the passage of SB 43. But more specifically, the effect of passage of both SB 43 and SB 283 was spelled out in a coordination instruction attached to SB 283:

“Section 5. Coordination instruction. Senate Bill 47, introduced in the 47th legislature, removes livestock, poultry, and the unprocessed products of both from class seven and places them in class six for purposes of property taxation. If Senate Bill 47 is passed and approved, then Section 1 of this act [SB 283] is to be replaced with the following section:

“Section 1. Section 15-6-136, MCA, is amended to read:

“15-6-136. Class six property — description — taxable percentage. (1) Class six property includes:

“(a) livestock and poultry and the unprocessed products of both;” II Laws of Montana, Chapter 613 at p. 1404 (1981). The coordination instruction attached to SB 283, the same bill which provides the exemption for business inventory, conclusively demonstrates that livestock property was not included in the exemption provided for business inventory. Therefore, the District Court erred in concluding that the statute’s treatment of livestock was ambiguous.

As noted in the facts surrounding this dispute, SB 283 was not effective until the 1983 tax year. Thus, as the District Court correctly pointed out, SB 283 provides no directive as to treatment of livestock for the tax year 1982. Nevertheless, the effect of SB 43 and SB 283 was sufficiently unambiguous that the DOR drafted and passed a rule which was sent to the Revenue Oversight Committee governing treatment of livestock for the tax year 1982. Moreover, even if SB 47 and SB 283 were ambiguous as to the types of property included in the exemption for business inventory, such an ambiguity relative to exemptions is generally strictly construed against the taxpayer, not against the taxing authority. See Montana Bankers Association v. Department of Revenue (1978), 177 Mont. 112, 580 P.2d 909. Finally, as passage of the rule providing for class six treatment of livestock indicates, the delay in the actual code amendment was only a mistake in timing, not an ambiguity in tax treatment. Therefore, we hold that the passage of SB 47 and SB 283 properly classified livestock separately from business inventory, and we reverse the District Court on this issue.

V.

The last issue here concerns whether the District Court erred in deciding the appropriate remedy for the improper assessment of the MSA’s property. Our decision that the DOR properly assessed the MSA’s property moots this issue. Therefore, we reverse on all relevant issues and remand for proceedings in accordance with this opinion.

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


author: MR. JUSTICE SHEEHY

text:
    In re The MARRIAGE OF CINDY GRECIAN, Petitioner and Respondent, and STEWART F. GRECIAN, Respondent and Appellant.
    No. 88-496.
    Submitted on Briefs April 13, 1989.
    Decided July 7, 1989.
    777 P.2d 283.

      Gary A. Ryder, Forsyth, for respondent and appellant.
    Garry P. Bunke, Forsyth, for petitioner and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

This is an appeal by Stewart Grecian from a division of marital property and a determination of child support in a judgment and decree issued against him by the District Court of the Sixteenth Judicial District, Rosebud County. We affirm.

The parties, Cindy and Stewart Grecian were married February 14, 1981 in Forsyth, Montana. One child, Amber, was born of the marriage on August 24, 1982. Cindy filed a petition for dissolution of the marriage January 20, 1988. A hearing on motion for temporary child support and maintenance was held February 8, 1988. The parties entered into a stipulation at the the urging of the District Court which was adopted by the District Court on March 11, 1988. The parties agreed that Stewart would pay $600.00 per month child support and $300.00 per month maintenance during the pending dissolution proceeding. A bench trial was held May 23, 1988. On June 8, 1988 the District Court made its findings of fact and conclusions of law. The judgment and decree were entered on July 7, 1988. Joint custody was ordered with the child residing with Cindy during the school year. Based upon the earlier stipulation, Stewart was ordered to pay $600.00 per month child support reviewable in two years by request of either party. Stewart will not be required to pay child support during summer visitation. Stewart was also ordered to pay $150.00 per month for maintenance for 24 months while Cindy is enrolled in a re-education program.

Property awarded to Cindy includes:
Toyota $ 2,500
J e welry/Thimbles 6,350
Household goods 8,000
Mobile home 8,000

And one-half of the net proceeds of a settlement of a lawsuit in favor of the parties to the divorce.

Property awarded to Stewart includes:
Olds $ 2,500
GMC 4X4 300
0 Chev. Coupe
Tools 25,212

Plus the other half of the proceeds of the lawsuit.

The complaint by Stewart about the property distribution is confined to the proceeds of the lawsuit settlement in favor of Stewart and Cindy.

I.

Did the District Court err in its award of one-half of the anticipated proceeds from the settlement of the lawsuit resolved prior to the divorce?

According to testimony presented at trial by Cindy, Stewart’s father (Richard) had a power of attorney from Stewart. Richard deeded property in California to Stewart and was conducting real estate transactions with Stewart’s power of attorney without Stewart’s knowledge. Cindy and Stewart began to receive bills and tax notices associated with the property. Cindy and Stewart hired an attorney to revoke the power of attorney but still ended up having to pay taxes on part of the property and Richard refused to reimburse Cindy and Stewart. Richard sued Cindy and Stewart to get the property back and Cindy and Stewart countersued. The matter was settled for $50,000.00 plus 26% net equity value of the real estate involved. As of the date of the hearing, the settlement proceeds had not been paid, although Cindy stated she expected the amount to be approximately $250,000.00 before attorney fees are deducted. Stewart claims the property Richard deeded to him and eventually sued him for were gifted to him, and should not have been considered by the court as part of the marital estate.

The District Court, in its findings of fact, characterizes the right to receive the proceeds of the settlement as a chose in action which is personal property that can be divided by the District Court. Stewart argues that the District Court erred by finding that Cindy automatically obtained an interest in the land (prior to its transformation to personal property) because California is a community property state. Stewart cites Hughes v. Hughes (1978), 91 N.M. 339, 573 P.2d 1194 for the proposition that the domicile of the parties is what determines whether property acquired during the marriage is subject to community property law or, as in Montana, equitable distribution law. This is a misstatement of that case. In Hughes, the court stated the general rule as:

“. . . funds or property, brought in from a non-community property state where the funds or property were there considered to be the separate property of an individual, will retain the same character when traceable into New Mexico property.”

Hughes, 573 P.2d at 1198; citing Koprian v. Mennecke (1949), 53 N.M. 176, 204 P.2d 400.

The facts involved in Hughes distinguish it from the present case. In Hughes, the husband had separate property in Iowa, reduced the property to monetary form, moved to New Mexico (a community property state) where he invested the money in another piece of real property. Upon divorce, husband contended community property law did not extend to the New Mexico property because it could be traced to his separate property in Iowa and the New Mexico court agreed. The New Mexico Court applied Iowa law which is essentially equitable distribution and arrived at the same result. The present case involves property located in California and the domicile of the parties has always been Montana. The Montana courts do not have jurisdiction over real property located outside its jurisdiction, nor would Montana law apply. In the final analysis, it does not really matter because the character of the property was transformed from real property outside the state of Montana, which the Montana court would have no power over, to personal property found in the state of Montana, over which the Montana court does have jurisdiction to equitably distribute under § 40-4-202, MCA.

Judgment by the District Court will not be altered in a dissolution proceeding unless a clear abuse of discretion is shown. Marriage of Dailey (1988), 232 Mont. 235, 756 P.2d 1131, 1133. We hold that the District Court did not abuse its discretion by awarding Cindy one-half of the settlement in the case in which she was a named defendant. There is substantial evidence in the record to indicate something more was going on than a gift to Stewart from his father. It appears that Richard was attempting to make transfers of property without incurring tax liability which cannot be categorized as a gift. If analyzed under either community property law or equitable distribution law, the same result is reached. Maintenance of this asset involved being a party to the lawsuit initiated by Richard and he named both Stewart and Cindy as defendants and both participated in the defense which resulted in the settlement at issue. There is no set formula as to how assets of this type are to be distributed, and each case is decided on its own merits. Marriage of Herron (1980), 186 Mont. 396, 404, 608 P.2d 97, 101. We, therefore, affirm the division of this marital property.

II.

Did the District Court err in its determination of child support?

Stewart, the appellant, sets out the issue as to whether the District Court erred in its determination of child support by failing to apply the Child Support Guidelines adopted by this Court. We stress that our order dated January 13, 1987 adopting the Child Support Guidelines specifically provide that the Guidelines are not binding upon judges and further:

“We so order to prevent appeals based upon claimed failure to observe or follow these guidelines.”

The court, in setting the amount of child support, looked to the stipulation of the father that he would pay $600 per month in temporary child support. The evidence is not clear as to the actual income of the father because of his extra-employment activities, but his earnings average over $35,000 per year. The wife had no employment at the time of the decree, except for part-time cleaning work. The decision of the court to continue for two years the monthly amount stipulated for during the pendency of the lawsuit seems reasonable, especially since no support is due during the two months the child will be with the father. Because of the temporary nature of the amount of child support, and the amount stipulated, we find no abuse of discretion at this point relating to child support. Thus, the court considered the relevant factors. Marriage of King (1985), 216 Mont. 92, 700 P.2d 591.

Affirmed.

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