text:
    WILD WEST MOTORS, INC., Plaintiff and Respondent, v. MARCELLAMAE LINGLE, Defendant and Appellant.
    No. 85-171.
    Submitted on Briefs June 28, 1985.
    Decided Nov. 18, 1986.
    728 P.2d 412.

      Hash, Jellison, O’Brien & Bartlett, James C. Bartlett, Kalispell, for defendant and appellant.
    Measure, Ogle & Ellingson, Jeffrey D. Ellingson, Kalispell, for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

In this case, we determine that a prejudgment writ of attachment issued by the District Court, Eleventh Judicial District, Flathead County, was in error and we therefore vacate the same. We further determine that the possession by the attorney for Wild West Motors, Inc. of $10,000 due to Marcellamae Lingle “in trust” is in violation of the Canons of Professional Ethics, and we direct the immediate transfer of those funds by the attorney to Marcellamae Lingle.

In a decree of dissolution of marriage between Marcellamae Lingle and Robert L. Lingle on July 29, 1980, in the same District Court, the separation and property settlement agreement between the married persons was incorporated as a part of the decree. Under the terms of the agreement, now decretal, Robert was to pay Marcellamae $200 per month, continuing until súch time as he paid “to wife the cash sum of $20,000.” The cash payment of $10,000 was agreed to be a property division, apparently to be derived from the sale of marital real estate by the husband. It is specifically designated “not alimony or maintenance.”

When Robert had paid monthly payments amounting to approximately $10,000, he apparently thought that his total obligations, under the decreed agreement were complete. Marcellamae’s attorney, however, insisted in writing that in addition to the monies already paid, Marcellamae was to receive a cash sum of $10,000 as a property division, and that until the cash payment was made by Robert, the $200 per month payments continued.

Robert, contending he did not understand that part of the property settlement agreement, sought counsel other than the attorney who had represented him in the dissolution action. He retained Jeffrey D. Ellingson as his attorney on April 23, 1984. On Robert’s behalf, Ellingson contacted both Robert’s former attorney and the attorney for Marcellamae. Marcellamae was adamant that she was entitled to the full amount of the cash payment and that the monthly payments continued until she received the cash payment. The malpractice carrier for Robert’s former attorney denied any claim.

In the meantime, in November, 1982, Robert Lingle, Jr. the son of Robert and Marcellamae, purchased under a contract and security agreement a 1983 Toyota 4x4 pickup. Marcellamae signed the contract and security agreement as a co-buyer, apparently in accommodation for her son. The vehicle was purchased at Wild West Motors, Inc. The purchasers under the contract did not make the payments as required, and the vehicle was repossessed and resold, resulting in a deficiency of $4,241.76 still owing on the contract.

Ellingson had begun representing Wild West Motors, Inc. on January 19, 1984. On August 22, 1984, he became aware of the claim of Wild West Motors, Inc. against Marcellamae for the deficiency under the contract. Ellingson, as attorney for Wild West Motors, Inc., undertook to collect the deficiency from Marcellamae. It appears indirectly from the papers here filed that Robert Lingle, Jr. was probably judgment-proof.

On April 23, 1984, therefore, under the facts of this case, Ellingson was representing Wild West Motors, Inc. for its claim against Marcellamae arising out of the purchase of the Toyota vehicle. He was also representing Robert Lingle, Sr. in the cash payment dispute arising out of the marital dissolution between Robert Lingle, Sr. and Marcellamae Lingle.

In Ellingson’s own words, this is what happened:

“On August 28, 1984, I met with Bob Sr. He had decided at that time to pay over the additional $10,000 payment to Bartlett [Marcellamae’s attorney] under the terms of the property settlement agreement with Marcellamae. He decided not to pursue any further claim against either Marcellamae or [the former attorney]. I told him at that meeting that I had been approached by Wild West to bring a claim against his son, Bob Jr. and his former wife, Marcellamae, as joint and several obligors for the deficiency. I told him that the claim would be for approximately $5,000. I asked him whether he had any objections to my bringing the claim against his former wife, Marcellamae. Bob Sr. stated that he had no such objection. By that time he was quite angry with his former wife and thinking that she was not deserving of the additional $10,000.
“It was at that meeting of August 28, 1984 that I first discussed with Bob Sr. the possibility of attaching the $10,000 payment in order to pay off my other client, Wild West. I told Bob Sr. that Wild West had agreed not to go after Bob Jr. for repayment if they could collect from Marcellamae. Bob Sr. was very pleased with the idea of having some of the $10,000 pay off his son’s debt rather than go to his former wife. His only concern was that he not be held liable for any further payment after paying the $10,000 into my trust account. I advised him that I would discuss the matter with Dugan Anderson of Wild West and get back to Bob Sr.
“I called Dugan Anderson also on August 28, 1984, and explained the situation to him. I advised Mr. Anderson that Bob Sr. would allow the attachment of the $10,000 so long as he was held harmless from any other claims as a result of that attachment. Mr. Anderson agreed to such an indemnification agreement and asked me to draft the appropriate documents. Dugan Anderson told me that Bob Jr. was apparently insolvent and that Wild West’s only possible means of collecting was against Marcellamae. Marcellamae also appeared to be judgment proof in that her only substantial asset was her home, protected by a homestead exemption. It appeared, therefore, that the only way Wild West would be able to recover the deficiency would be by attachment of the $10,000 from Bob Sr. to Marcellamae.
“Bob Sr. deposited $10,000 into my trust account on August 31, 1984.”

Robert Lingle, Sr. and his wife, Ardeth Lingle, on August 31, 1984 signed the agreement with Wild West Motors, Inc. and Wild West signed the same on September 5, 1984. By its terms, Lingle paid $10,000 to Ellingson to be held in trust by him until such times as the funds “are duly attached through proper legal process or until Wild West Motors, Inc. directs Jeffrey D. Ellingson to pay all or any of such funds to Marcellamae Lingle in full satisfaction of the above described decree of dissolution.” The agreement further provided that Wild West Motors, Inc. would pay the $200 per month to Marcellamae during the pendency of the agreement until payment to Marcellamae was complete. Wild West was granted a lien in the $10,000 for any payments made by it.

In a further letter to Robert Lingle, Sr., on September 4, 1984, Ellingson made clear that by the execution of the agreement with Wild West Motors, Robert Lingle was to be fully indemnified by Wild West Motors from any further loss or claim which Marcellamae might make against him.

On October, 24, 1984, Wild West Motors, Inc. filed suit against Marcellamae Lingle for the deficiency arising out of the purchase of the Toyota vehicle, On the same date, Ellingson, as attorney for Wild West Motors, Inc. filed a motion for a prejudgment writ of attachment of $6,000 of the monies now held in trust by him, as attorney for Robert Lingle, Sr. After briefs and hearings, the District Court ordered a prejudgment writ of attachment against the “trust” funds. By stipulation the funds have been placed in an interest-bearing account awaiting the final disposition of the matter by the courts.

Marcellamae appealed to this Court from the prejudgment writ of attachment. She contends for various reasons that the writ was issued in error, including her contention that the son, Robert Lingle, Jr. had signed a promissory note after his default for the amount of the deficiency which constituted a novation. Wild West Motors, Inc. has responded that the writ of attachment was properly issued; that the monies impounded are a debt due to Marcellamae; and that no novation arose because of the promissory note.

Upon examination of the matter on appeal, this Court determined that further findings of fact were necessary from the District Court. Accordingly, we remanded to the District Court for a full determination relating to the facts concerning the property settlement agreement, and particularly the attorney-client relationships that existed between Wild West Motors, Inc., Robert Lingle, Sr., and Jeffrey D. Ellingson. The above statement of facts reflects those findings.

The findings of the District Court in answer to our remand came to us on March 1, 1986. The District Court found that since Ellingson had kept Wild West Motors, Inc. and Robert Lingle, Sr. fully informed of all risks and advantages of the attachment of the said $10,000 and since it was in both parties’ interests to have the funds attached from Ellingson’s trust account, there was no impropriety on Ellingson’s part during the course of these events. The court found that Robert Lingle, Sr. had requested the attachment to be made, was agreeable to the attachment in order to have his son’s debt paid by his former wife and was apparently more than happy to have the funds attached, if they did not go to his former wife, and the credit for such “funds did clear off Robert Lingle, Sr’s son’s debt with Wild West Motors.”

The District Court apparently judged Ellingson’s professional conduct under Rules 1.7 and 1.8 of the Rules of Professional Conduct relating to conflict of interest. Ellingson did, in truth, reveal to his clients, Wild West Motors, Inc. and Robert Lingle, Sr. all of the facts relating to the transaction. Their interests were not adverse: Robert Lingle, Sr. could save his son from an unpaid judgment, and at the same time cause a reduction of the monies he had agreed to pay Marcellamae. Wild West Motors, Inc. was assured of collecting a deficiency it might not otherwise get.

There is, however, another Rule of Professional Conduct against which Ellingson’s actions must be weighed. Rule 1.15 of the Rules of Professional Conduct provides in (b):

“Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.”

Ellingson’s duty under the foregoing rule was upon receiving the monies in trust for Marcellamae to deliver the monies to her promptly. Ellingson’s client, Robert Lingle, Sr. owed those monies to Marcellamae, in a marital matter entirely separate from the vehicle purchase. Ellingson could not properly “by agreement with his client” frustrate the payment to Marcellamae. If his agreement with Robert Lingle, Sr. interfered with his duty of prompt payment as trustee, Ellingson as an attorney should not have accepted the trust. Having accepted the money in trust, it was his duty to transmit it promptly to Marcellamae. Instead he withheld the funds from Marcellamae from August 31, 1984, when he received the funds in trust, to March 8, 1985, when the prejudgment writ of attachment was ordered. The distribution of funds to Marcellamae is still subject to his signature and control today.

Under Rule 4.4 of the Rules of Professional Conduct, it is stated:

“In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, . . .”

The prejudgment writ of attachment issued by the District Court was in error. Ellingson admits he holds the money “in trust.” A voluntary trust is created when the trustor indicates with reasonable certainty the subject, purpose and beneficiary of the trust. Section 72-20-108, MCA. The subject of this trust was the $10,000; the purpose of the trust was to satisfy Robert Lingle, Sr.’s contractual obligation to Marcellamae; and Marcellamae was the beneficiary of the trust. In all matters concerning this trust, Ellingson was bound to act in good faith toward his beneficiary and not to obtain any advantage therein over Marcellamae by the slightest adverse pressure of any kind. Section 72-20-201, MCA. He was prohibited from using or dealing with the trust property for his own benefit or for any other purpose not connected with the trust in any manner. Section 72-20-203, MCA. The prejudgment writ of attachment order issued by the District Court included attorney fees for Ellingson’s firm of $734.35.

When a party undertakes the obligation of a trustee to receive money or property for transfer to another, he takes with it the duty of undivided loyalty to the beneficiary of the trust. The undivided loyalty of a trustee is jealously insisted on by the courts which require a standard with a “punctilio of an honor the most sensitive.” Meinhard v. Salmon (1928), 249 N.Y. 458, 164 N.E. 545. A trustee must act with the utmost good faith towards the beneficiary, Campbell v. U.S. (9th Cir. 1926), 12 F.2d 873, and may not act in his own interest, or in the interest of a third person. Restatement 2d, Trusts, Section 170(1). Upon development of an irreconcilable conflict between self-interest and fiduciary responsibility, the trustee has a choice of subordinating his self-interest or resigning his trust. A trustee may not deal with himself as an individual concerning the trust funds for any purpose not connected with the trust. In re Allard Guardianship (1914), 49 Mont. 219, 141 P. 661. Even though here the trustor, Robert Lingle, Sr., authorized the self-dealing of the trustee, Ellingson as trustee was required to renounce all self-interest and to act in finest loyalty to the beneficiary within the terms of the trust. 76 Am.Jur.2d Trusts, 538-539, Section 319. If the terms of the trust make loyalty to the beneficiary impossible, the trustee should decline the trust.

There was a route open to Wild West Motors, Inc. which might have brought about a prejudgment attachment of the $10,000 payment. Section 27-18-405, MCA, provides for the attachment of debts or credits in the possession of a third person. Robert Lingle, Sr.’s contractual debt to Marcellamae was attachable, certainly before the transfer of the funds in trust to Ellingson. Once Ellingson received in trust possession of the legal payment for transfer to Marcellamae, his trust relationship barred his acting in any way disadvantageous^ to Marcellamae.

The prejudgment writ of attachment issued in this cause in the District Court is hereby vacated and set aside. Jeffrey D. Ellingson, as an officer of this Court, is hereby directed to pay over to Marcellamae, through her attorney, the full amount of $10,000, plus any accrued interest thereon. Because this Court was not aware that the order of the District Court in answer to our remand was on file in this Court from March 1,1986 through October 1,1986, the monthly payments to Marcellamae which may otherwise be due for that period are herewith excused. Remittitur of this cause shall occur forthwith.

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


source: Caselaw Access Project

author: MR. JUSTICE WEBER

license: Public Domain

text:
    CITY OF BILLINGS, Plaintiff and Respondent, v. RODNEY O. SKURDAL, Defendant and Appellant.
    No. 86-269.
    Submitted on Briefs Sept. 4, 1986.
    Decided Nov. 18, 1986.
    730 P.2d 371.

      Rodney O. Skurdal, pro se.
    Bonnie J. Sutherland, City Atty’s. Office, Billings, for plaintiff and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Rodney Skurdal was charged with the misdemeanor crimes of speeding, foreign license plates, foreign driver’s license, no proof of insurance, and obstructing a peace officer. A jury trial was held in the District Court of the Thirteenth Judicial District and Mr. Skurdal was found guilty of all charges. Mr. Skurdal appealed.. We affirm.

The issues presented to us are:

1. Were Mr. Skurdal’s constitutional rights violated by requiring him to carry a motor vehicle license, a driver’s license, and proof of vehicle insurance?

2. Was Mr. Skurdal’s right to counsel violated?

3. Was Mr. Skurdal brutalized or threatened by the city police?

4. Were Mr. Skurdal’s constitutional rights violated when he was not given a Miranda warning after he was stopped?

5. Was there an unlawful search of Mr. Skurdal prior to placing him in the police station holding cell?

6. Is radar an appropriate device for measuring the speed of vehicles?

7. Was Mr. Skurdal denied his right to a jury trial?

8. Did the state courts have jurisdiction over this matter? Is the collection of fines by paper money in violation of the United States Constitution? Is the “unlimited taxation by the use of paper money” unconstitutional?

On May 29, 1985, Rodney Skurdal was driving his automobile south along Regal Street in Billings, Montana. Officer Ness of the Billings Police Department was operating a stationary radar gun out of the driver’s window of his police vehicle on Regal Street. At approximately 9:28 p.m., Officer Ness observed Mr. Skurdal’s vehicle approach him and estimated Mr. Skurdal’s vehicle speed to be at least 35 miles per hour. The posted speed limit on Regal Street is 25 miles per hour. Officer Ness clocked Mr. Skurdal’s vehicle at 38 miles per hour on his radar unit.

Officer Ness pulled Mr. Skurdal over and informed Mr. Skurdal that he had been speeding. Officer Ness then asked Mr. Skurdal for his driver’s license, driver’s registration, and proof of insurance. Mr. Skurdal asked Officer Ness by what authority he was asking for this information. Officer Ness informed Mr. Skurdal that he was a police officer for the City of Billings and that he had the authority to ask for such information. Mr. Skurdal refused to give the items to Officer Ness and handed Officer Ness a “Public Servant’s Questionnaire” and asked him to fill it out. Officer Ness refused to fill out the form and again asked for Mr. Skurdal’s driver’s license, registration, and proof of insurance. Mr. Skurdal refused to hand over the requested items, saying that the Constitution did not require him to do so.

Officer Ness called for a back-up officer and a short time later Officer Lueck of the Billings Police Department arrived. After Officer Lueck arrived, Officer Ness once again asked Mr. Skurdal for his driver’s license, registration, and proof of insurance. Mr. Skurdal again refused to supply the requested information, so Officer Ness advised him that he was under arrest for obstructing a peace officer. Officers Ness and Lueck then pulled Mr. Skurdal out of his vehicle as Mr. Skurdal refused to voluntarily get out of the car and locked his hands around the steering wheel.

After the officers removed Mr. Skurdal from the car, they handcuffed him, put him in Officer Ness’ police vehicle, took him to the police station and read him his Miranda rights. While riding the elevator to the third floor of City Hall where the police station is located, Officer Lueck turned Mr. Skurdal toward the elevator wall and removed his wallet to get his identification and to check for any weapons. After checking the wallet, Officer Lueck took the driver’s license and returned the wallet to Mr. Skurdal.

Mr. Skurdal was issued traffic citations for speeding, carrying a foreign driver’s license, having foreign license plates, and having no proof of insurance. In addition, Mr. Skurdal was issued a complaint for obstructing a peace officer.

On April 1, 1986, the jury in the District Court trial found Mr. Skurdal guilty on all charges. Mr. Skurdal then appealed to this Court.

I

Were Mr. Skurdal’s constitutional rights violated by requiring him to carry a motor vehicle license, a driver’s license, and proof of vehicle insurance?

Mr. Skurdal claims that the State of Montana cannot regulate his right to use and own a vehicle by requiring vehicle licenses, driver’s licenses, and proof of vehicle insurance. This Court has previously addressed this issue:

“The United States Supreme Court in 1837 recognized that state and local governments possess an inherent power to enact reasonable legislation for the health, safety, welfare, or morals of the public. Charles River Bridge v. Warren Bridge Co. (1837), 36 U.S. (11 Pet.) 420 L.Ed. 773. This Court has also recognized that such a police power exists even though the regulation may frequently be an infringement of individual rights. State v. Rathbone (1940), 110 Mont. 225, 241, 100 P.2d 86, 92. See also, State v. Penny (1910), 42 Mont. 118, 111 P. 727. Regulations that are formulated within the state’s police power will be presumed reasonable absent a clear showing to the contrary. Bettey v. City of Sidney (1927), 79 Mont. 314, 319, 257 P. 1007, 1009 ....
“We have previously recognized the power of the State to regulate licensing of drivers in the interests of public safety. Sedlacek v. Ahrens (1974), 165 Mont. 479, 483, 530 P.2d 424, 426.”

State v. Deitchler (1982), 201 Mont. 70, 72-73, 651 P.2d 1020, 1021-22.

We conclude that Mr. Skurdal has not shown that Section 61-3-301(1), MCA, (which requires license plates), Section 61-5-102(1), MCA, (which requires a driver’s license), or Section 61-6-302(4), MCA, (which requires proof of insurance), are unreasonable. We hold that Mr. Skurdal’s constitutional rights were not violated by requiring him to carry a motor vehicle license, a driver’s license, and proof of vehicle insurance.

II

Was Mr. Skurdal’s right to counsel violated?

Mr. Skurdal claims that he was denied his Sixth Amendment right to counsel. However, there is nothing in the record to indicate that Mr. Skurdal raised this issue at the District Court level where he appeared pro se. This Court has consistently held that normally objections which are urged for the first time on appeal will not be considered by this Court. Mont. Ass’n of Underwriters v. State, etc. (1977), 172 Mont. 211, 218, 563 P.2d 577, 581. We point out that the record shows that Mr. Skurdal discharged his original court appointed counsel and did not seek additional counsel. We conclude that this issue was not raised at the District Court and thus is not properly before us.

Ill

Was Mr. Skurdal brutalized or threatened by the city police?

Mr. Skurdal alleges that he was threatened and brutalized by the Billings police when he was arrested. Apparently, Mr. Skurdal’s ■assertions arise from the removal of his wallet while he was riding the elevator to the police station. Mr. Skurdal presented no evidence in the court proceedings below which support these claims. We hold that Mr. Skurdal has not presented any credible evidence that suggests he was threatened or brutalized by the Billings police.

IV

Were Mr. Skurdal’s constitutional rights violated when he was not given a Miranda warning after he was stopped?

Mr. Skurdal contends that his constitutional rights were violated when Officer Ness stopped him for speeding and did not give him the Miranda warning. The United States Supreme Court has held that there must be a custodial interrogation before the Miranda warning need be given. Custodial interrogation does not occur at a traffic stop based upon: (1) the routiness of the questions; (2) the generally brief detention; and (3) the fact that such stops are in the public view. Berkemer v. McCarty (1984), 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317. Accordingly, we hold that Mr. Skurdal’s constitutional rights were not violated when Officer Ness stopped him for speeding and did not give him the Miranda warning.

V

Was there an unlawful search of Mr. Skurdal prior to placing him in the police station holding cell?

Mr. Skurdal claims that the officers performed an illegal search upon him when he was patted down prior to being placed in the police station holding cell and that the officers needed a search warrant prior to the pat down. This Court has stated:

“It is well settled that law enforcement officers may make a full body search pursuant to a lawful arrest for the purposes of protecting themselves or seizing evidence of the crime. Section 95-702, R.C.M. 1947; Kotwicki, [v. District] [166 Mont. 335, 532 P.2d 694,] supra; United States v. Robinson (1973), 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427.”

State v. Cripps (1978), 177 Mont. 410, 420, 582 P.2d 312, 318.

Officer Ness had probable cause to arrest Mr. Skurdal for obstructing a peace officer and Officer Ness complied with Section 46-6-106, MCA, the procedure for making an arrest without a warrant. We hold that the search of Mr. Skurdal was not illegal or unconstitutional.

VI

Is radar an appropriate devise for measuring the speed of vehicles?

Mr. Skurdal challenges the validity of the use of radar to measure the speed of vehicles. The Montana legislature has recognized radar as an acceptable means of measuring speed. Section 61-8-702, MCA, provides:

“The speed of any motor vehicle may be measured by the use of radio microwaves or other electrical device. The results of such measurements shall be accepted as evidence of the speed of such motor vehicle in any court or legal proceedings where the speed of the motor vehicle is at issue.”

Officer Ness testified that his radar unit was used correctly and was operating properly on the night in question. Mr. Skurdal failed to present any evidence which challenged the validity of the use of radar. Consequently, the evidence submitted by the state regarding the use of radar is sufficient to meet the requirements of the statute. We therefore affirm the District Court on this issue.

VII

Was Mr. Skurdal denied his right to a jury trial in City Court?

Mr. Skurdal contends that he was denied his right to a jury trial in City Court. Section 46-17-201, MCA, states that a trial by jury may be waived in City Court if the consent of both parties is expressed in court. In this case, we do not have a copy of the City Court transcript. No evidence has been presented suggesting that Mr. Skurdal demanded a jury trial at the City Court level. In addition, this issue was not raised at the District Court level. Therefore, this issue is not properly before us.

VIII

The last three issues that Mr. Skurdal raises will be consolidated. Did the state court have jurisdiction over this matter, even though the court requires the payment of fines with money? Is the collection of fines by paper money in violation of the United States Constitution? Is the “unlimited taxation by the use of paper money” unconstitutional?

The record does not demonstrate that Mr. Skurdal has been required to make payment of any type by the use of paper money. Mr. Skurdal may pay his fines or other costs by silver, such as quarters or fifty cent pieces. A basis for these three issues is not present. Therefore, we need not consider the three issues consolidated above. For the above reasons, we affirm the decision of the District Court in full.

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


author: MR. CHIEF JUSTICE TURNAGE MR. JUSTICE SHEEHY,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. COURTNEY BROOKE ATLAS, Defendant and Appellant.
    No. 84-543.
    Submitted Oct. 9, 1986.
    Decided Nov. 18, 1986.
    Rehearing Denied Dec. 11, 1986.
    728 P.2d 421.

      Jackson Law Firm, Gregory Jackson argued, Helena, for defendant and appellant.
    Mike Greely, Atty. Gen., James M. Scheier, Asst. Atty. Gen., argued, Mike McGrath, Co. Atty., Helena, for plaintiff and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Defendant Atlas appeals from a jury conviction of deliberate homicide and arson in the First Judicial District Court, Lewis and Clark County. On August 10, 1985, Atlas was designated a dangerous offender and sentenced to 120 years imprisonment with no parole.

We affirm.

Defendant Atlas raises six issues for our review:

1. Did substantial evidence support the verdicts of guilty?

2. Does the destruction of potentially exculpatory evidence by the State require reversal of Atlas’ conviction?

3. Did the District Court err when it allowed testimony of a crematorium operator about the effects of cremation on the human body?

4. Did the District Court err when it allowed videotaped testimony by Atlas’ former lover about Atlas’ extramarital affair?

5. Did the District Court err when it sustained the State’s objection to Atlas’ cross-examination of the coroner about motive and bias?

6. Did the District Court err when it refused Atlas’ Instruction No. 10, which stated that an unexplained fire is presumed to be accidental?

Defendant Atlas was 41 years old and resided in the Helena valley with his wife, Donna, and their son, Brian, and daughter, Michelle. Defendant filed for bankruptcy in early 1983. Atlas was the beneficiary of casualty homeowners’ insurance and Donna’s life insurance, totaling approximately $250,000.

At 5:18 a.m. on Sunday, July 17, 1983, firefighters and sheriff’s officers responded to a fire at the Atlas residence. The house burned to the ground. At 7:45 a.m. on July 17, firefighters discovered the charred remains of Donna Atlas in the living room.

Two days prior to the fire, Donna and Michelle had traveled to Donna’s parents’ ranch near Wisdom, Montana. Donna planned to stay through the weekend and leave Michelle for the remainder of the summer. Defendant Atlas remained in Helena. Brian was at a Lions’ Camp near Elliston, Montana. Donna planned to pick up Brian on her return trip to Helena on Sunday, July 17.

However, Donna received a phone call from defendant on Saturday afternoon, July 16. Donna appeared upset after the call. She immediately returned to Helena, alone and one day early. Her burned body was found sixteen hours later.

Defendant contends that the evidence against him is circumstantial and not sufficient to support a conviction. We will discuss the evidence in detail in the course of this opinion. However, *we note that defendant’s statements about the events of Saturday night and Sunday morning are riddled with contradictions. Saturday evening, while Donna waited outside in Atlas’ truck, defendant told an acquaintance that he had just picked Donna up at the hospital and that she had terminal cancer. Donna did not have cancer. Defendant told investigators that Donna had a sore back, yet also testified that Donna helped him slide a large couch through an upstairs opening, then helped him carry it around the house and into the downstairs. Defendant told investigators that Donna started a fire in the basement stove because the night was cool, yet testified that he shifted bedrooms because the night was so hot. Defendant changed his story several times about which bedroom he used on Saturday night.

Upon noticing the fire, defendant testified that he crawled through thick, choking smoke. However, no witness saw any ash on him, heard him cough from the smoke’s effect, or smelled any smoke on the defendant’s clothing. The jury did not accept several of defendant’s explanations: why he did not break the locked sliding glass door to the living room and help Donna; why he did not unlock the sliding glass door with the spare key he kept next to the door; or why he did not enter through a second door, located on the same floor and on the same side of the house.

Throughout the investigation and trial, defendant Atlas’ statements varied in major details and conflicted with other witness’ testimony. These variances and defendant’s explanations were fully presented to the jury for its consideration as the fact-finding body.

Issue No. 1

Did substantial evidence support the verdicts of guilty?

The substantial evidence test is whether a reasonable person would accept the conclusion, when viewed in the light most favorable to the prevailing party. State v. Wilson (Mont. 1981), 631 P.2d 1273, 1278, 38 St.Rep. 1040, 1047. The evidence in defendant’s trial was primarily circumstantial, there being no witnesses to the homicidal act or the arson. If circumstances are capable of two interpretations, the trier of fact determines which is the most reasonable.

A careful review of the trial transcript convinces us that the evidence fully supports the defendant’s conviction of deliberate homicide. The State’s two pathologists and defendant’s pathologist testified to the severe thermal damage to Donna’s body, which was found on the burned remains of the stuffed couch. The State’s pathologist testified that such damage is unusual without the use of accelerants. He indicated an accelerant may have been applied to the body because 90 percent of the body was completely charred. Both parties' experts agreed that Donna’s airway had no soot or thermal damage. Furthermore, Donna’s blood and tissue had less than 10 percent carbon monoxide. The State’s pathologist concluded that the lack of soot in the windpipe and minimal carbon monoxide indicated that Donna was dead before the fire began. The thiocyanate level in Donna’s tissue was compatible with the pathologists’ conclusions, because her body was exposed to the heat, the falling debris, and the firefighters’ water. In addition, she was found lying face up with limbs spread, while most fire victims are found face down in a fetal position. The State’s pathologists also testified that the pulmonary edema in Donna’s lungs could have resulted from strangulation and that her throat may have been cut out.

Defendant’s fire expert based much of his opinion on interviews with the defendant. The expert did not personally examine any tissue, did not interview any firefighters, and did not consult any fire investigators. Yet, he concluded that Donna was alive during the fire. The jury may appropriately attach less weight to his testimony.

In summary, the evidence of deliberate homicide is substantial and supports defendant’s conviction. “This [substantial evidence] test is met if a reasonable mind would accept the evidence as supporting the conclusion reached ... If the evidence conflicts, it is within the province of the trier of fact to determine which shall prevail.” State v. Oman (Mont. 1985), [218 Mont. 260,] 707 P.2d 1117, 1120, 42 St.Rep. 1565, 1568.

On the issue of arson, the deputy state fire marshal secured the area where Donna’s body was found, which was also the area of origin of the fire. For several days, he hand-sifted through the debris. The state fire marshal also inspected the fire scene. Both fire marshals eliminated the heating pad under Donna, the wood stove in the living room, any electrical short, and acts of God as causes of the fire. They concluded that arson caused the fire.

The fire marshals based their arson conclusion on several facts. The intense heat far exceeded the temperature of a normal house fire, as indicated by the destruction of Donna’s limbs and facial bones. The complete consumption of the carpet indicated that the floor temperature in the living room reached at least 790°F., while a typical house fire has floor temperatures below 250°F. The one-hour fire wall between floors burned through in much less than one hour. The burn patterns along the baseboards and the even burn in the living room indicated the use of an accelerant. Defendant’s own expert admitted that the “alligator patterns” on the charred wood were compatible with the use of flammable liquids.

In summary, the evidence supports the defendant’s conviction for arson. “The United States Supreme Court and this Court have both stated that a conviction cannot be overturned when the evidence, viewed in the light most favorable to the prosecution, would allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.” State v. Doney (Mont. 1981), 636 P.2d 1377, 1383, 38 St.Rep. 1707, 1713.

Although circumstantial, the evidence is abundant and fully supports the defendant’s convictions of both deliberate homicide and arson.

Issue No. 2

Does the destruction of potentially exculpatory evidence by the State require reversal of defendant’s conviction?

Defendant contends that the materials in the living room were shoveled three or four times and then dumped outside the building. He asserts that the materials directly under the body were discarded without laboratory testing, and that the couch, the carpet, and the mopboards were not secured. Defendant further contends that the condition of the scene prevented his expert from examining the evidence and thus robbed defendant of his right to present a complete defense.

However, Deputy Fire Marshal Houston carefully preserved any burned material with evidentiary value, while removing non-evidentiary material from the fire site. The fire marshal hand-sifted the evidentiary debris with a garden trowel. The baseboard remnants were preserved in an evidence locker, along with the electrical wiring. The carpet-backing found beneath Donna’s body tested free of accelerants and was carefully set to the side. The front-end loader, which was used to clean up the fire scene, never entered the living room area and never disrupted the evidentiary material. The State showed great care and diligence in preserving all relevant evidence. The debris removed by the loader was irrelevant and nonexculpatory. Furthermore, all the evidentiary material was available at all times for inspection by defendant’s fire expert. We note that the fire expert based his opinion primarily on interviews with defendant, and prior to examining any physical evidence.

Defendant claims that the piled debris was exculpatory, yet offers no factual basis for its potential exculpatory use. “In order to amount to denial of due process, negligently suppressed evidence must be vital to the defense of the accused ... To obtain a new trial, the accused must show more than suppression; he must show the evidence was material and of some substantial use to him.” State v. Craig (1976), 169 Mont. 150, 153, 545 P.2d 649, 651. Defendant Atlas has shown neither negligent destruction nor vital material use. On the contrary, the State has shown diligent preservation of all relevant evidence. We find no merit in this issue raised by defendant.

Issue No. 3

Did the District Court err when it allowed testimony of a crematorium operator about the effects of cremation on the human body?

Before trial, defendant moved for an in limine prohibition of the operator’s testimony on the grounds of inflammatory prejudice and incompetence. He asserted that prejudicial testimony is admissible only if it accurately depicts conditions as they existed, and if it is useful to explain the evidence. Defendant further contended that the operator had no personal knowledge of Donna’s remains.

At trial, defendant argued that the thermal damage to Donna’s body was more closely related to house fires than to crematoriums. Defendant produced two pathologists, who testified that they had seen thermal damage similar to Donna’s in other house fires. Defendant concluded that the slight relevance of the operator’s testimony was outweighed by its gruesome prejudice.

The trial court questioned the State about the relevance of the operator’s testimony. The State responded that the probative value of the testimony was supported by the operator’s estimates of the time and high temperature necessary for the near-cremation of Donna’s body. This testimony corroborated the fire marshal’s estimates of the time and high temperature of the Atlas fire, thereby indicating accelerants and arson. The operator’s testimony also supported the testimony of State’s pathologists on the intense heat necessary to char Donna’s bones. The operator’s testimony was brief and clinical. Furthermore, the operator’s testimony on cremation was a far less prejudicial alternative than the photographs of Donna’s limb-less corpse.

The question of whether the probative value of evidence is outweighed by potential prejudice must be determined in the trial court’s discretion. A District Court’s weighing of potential prejudice against probative value will be upheld where there is no abuse of discretion. State v. Pease, Jr. (Mont. 1986), [222 Mont. 455,] 724 P.2d 153, 161, 43 St.Rep. 1417, 1427. “We will not demand that a trial be sanitized to the point that important, probative evidence must be excluded.” State v. Austad (1982), 197 Mont. 70, 83, 641 P.2d 1373, 1380. In summary, we find no abuse of discretion in the trial court’s allowing the operator’s testimony.

Issue No. 4

Did the District Court err when it allowed videotaped testimony by defendant’s former lover about defendant’s extramarital affair?

In his opening statement, defense counsel portrayed Courtney Atlas as a loving husband frozen by grief. “At that time [of the fire] Mr. Atlas was basically so totally grief stricken that he was just unfunctionable and he wandered around crying and whatnot and waiting for the fire department and police to come as he watched everything he owned and the woman he loved burn in the fire.”

Prior to the videotaped testimony, defense counsel cross-examined several witnesses about Atlas’ affection toward Donna. He asked one of Donna’s co-workers: “Okay. So as far as seeing that there was a lack of emotional display in the presence of other people, you couldn’t say whether it was Courtney’s disposition or Donna’s disposition, could you?” He later asked another co-worker: “So as far as seeing any, you know, real close affection flowing back and forth between Courtney and Mrs. Atlas, that wouldn’t have been unusual for Donna, would it, not to have been kissing or hugging in public?”

The videotaped testimony was made by defendant’s former lover, Diana Olson. On appeal, defendant contends that Olson’s testimony was character evidence which had not been drawn into issue by defendant during trial, and was therefore inadmissible under Rule 404(a), Mont.R.Evid. The State, however, used Olson’s videotaped testimony as probative evidence to refute defendant’s opening assertions and cross-examinations. Thus, defendant himself opened the door on the relevancy of Atlas as a loving husband.

Furthermore, during the videotaped cross-examination of Olson, defense counsel attempted to minimize the impact of the affair on Atlas’ marriage:

“Q. And during the time that there was involvement between the two of you, there has never been any commitment by Courtney that he was going to leave Donna —
“A. No.
“Q. — for that relationship.
“A. No.”

After Olson’s testimony, defense counsel continued his theme of defendant as a loving husband. On direct examination of defendant, he asked:

“Q. How would you describe your relationship with Donna then over the years?
“A. I think as an average pretty good, because of our similar interests. I would call it a good — we, I think, had ups and downs like anybody, but we had a pretty good, pretty good relationship . . .
“Q. And did you love Donna?
“A. Yes, very much.”

Throughout defendant’s portrayal of himself as a loving husband, and the State’s rebuttal of that portrayal, the trial court properly assessed relevancy. “The District Court has broad discretion to determine whether or not the evidence is relevant. Without a showing that the District Court has abused its discretion, this Court will not overturn the District Court’s determination of relevancy.” State v. Oman, [218 Mont. 260,] 707 P.2d at 1119-1120, 42 St.Rep. at 1568.

The testimony about defendant’s relationship with Olson was also relevant to defendant’s homicidal motive. We have previously held that the testimony of a defendant’s ex-lover was admissible when, “evidence of defendant’s past intimacies was highly relevant to the defendant’s claim that he killed [his wife] in the heat of passion upon learning of her affair . . .” State v. Doll (Mont. 1985), [214 Mont. 390,] 692 P.2d 473, 478, 42 St.Rep. 40, 47.

Defendant Atlas further contends that the videotaped testimony concerned an affair which was too remote in time. Defendant asserted that the affair’s physical relationship had ended seven months prior to the fire. However, the remoteness in time goes to weight and not to admissibility. Even the remoteness was questionable, because Olson testified that, although the physical relationship had ended seven months earlier, defendant continued to visit her house “just as friend to friend.”

In summary, Olson’s testimony was relevant to rebuttal and motive. We find that the trial court did not abuse its discretion in allowing the videotaped testimony about defendant’s extra-marital affair.

Issue No. 5

Did the District Court err when it sustained the State’s objection to defendant’s cross-examination of the coroner about motive and bias?

On State’s direct examination, the coroner testified: “It is the worst, worst body that I have ever viewed.” On cross-examination, Atlas’ counsel asked” “You don’t like Mr. Atlas?” The coroner responded: “Definitely not.” The State immediately objected. Defendant contends that he was improperly cut short of his impeaching inquiry into the coroner’s credibility and hostile feelings.

The court did not abuse its discretion by sustaining the State’s objection. Defendant’s cross-examination about the coroner’s bias went beyond the scope of the State’s direct examination. The cross-examination was also irrelevant because it had no bearing on the condition of Donna’s body.

Furthermore, the sustained objection did not prevent defendant from pursuing a related line of inquiry. “The latitude of cross-examination is in the discretion of the trial court, and this Court will not interfere unless it is manifest that the trial court abused its discretion.” State v. Gallaher & Coleman (1978), 177 Mont. 150, 159, 580 P.2d 930, 935. Also, if defendant thought that the objection cut him short, defendant could have called the coroner during his case-in-chief.

Defendant Atlas suffered no prejudice as a result of the court’s ruling, because the coroner answered before the State could interpose an objection. If, arguendo, the sustained objection was in error, it did not impair a substantial right because the jury heard the answer.

In either case, defendant failed to make any timely offer of proof about his cross-examination, in accordance with Rule 103(a), Mont.R.Evid. He raised the issue for the first time on appeal. As we have previously held: “This Court will not review a matter raised for the first time on appeal.” State v. Transgrud (1982), 200 Mont. 303, 308, 651 P.2d 37, 40.

Issue No. 6

Did the District Court err when it refused defendant’s Instruction No. 10, which stated that an unexplained fire is presumed to be accidental?

Defendant Atlas’ proposed Instruction No. 10 read: “You are instructed that, ordinarily, it will be presumed that an unexplained fire was caused by an accident or natural causes or, at least, that it was not of criminal origin.” Defendant cited C.J.S. and Am.Jur.2d, which collectively implied that an unexplained fire is presumed to be accidental. Defendant claimed that the burden is on the State to overcome such a presumption, and that he was entitled to a specific instruction on that point.

The instruction was properly refused because it incorrectly states the law. The instruction language is an out-of-context summation of a larger discussion of arson in 6A C.J.S. Sections 38 and 39. The full discussion reveals that the statement only applies when no suspicious facts accompany the fire. At the Atlas fire, investigators found a plastic jug containing gasoline, several aerosol cans with holes punched in the bottoms, massive thermal destruction, and burn patterns indicating arson. Any presumption of a non-criminal fire is rebuttable by such evidence of criminal design. State v. Collins (1973), 13 Or.App. 614, 511 P.2d 440, 442. Therefore, the instruction was properly denied.

In conclusion, we note the exemplary conduct of the trial judge during a long and complicated trial. In addition, all trial counsel held to the highest standards of zealous advocacy. The issues raised by defendant, taken singly or as a whole, are not substantial enough to overturn defendant’s conviction.

The jury verdicts are affirmed.

MR. JUSTICES HARRISON, WEBER, MORRISON, GULBRANDSON and HUNT concur.

MR. JUSTICE SHEEHY,

concurring in the result:

The court committed two errors in this cause, the unduly limited restriction on the cross-examination of the coroner, and two, the admission of testimony about an extra-marital affair.

The latter is the most serious. There is no rational basis to assume without question that a man indulging in extra-marital sex does not really love his wife. The prejudicial effect of such testimony outweighed any probative effect the evidence had, and should have been excluded.

The remaining evidence against the defendant is so weighty that I would regard these two errors as not significant. Therefore, I concur in the result.


author: MR. JUSTICE MORRISON

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. JOSEPH FLOYD RORVIK, Defendant and Respondent.
    No. 85-620.
    Submitted on Briefs Sept. 25, 1986.
    Decided Nov. 18, 1986.
    728 P.2d 419.
    Mike Greely, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, Russell R. Andrews, Teton Co. Atty., Choteau, for plaintiff and appellant.
    Charles M. Joslyn, Choteau, for defendant and respondent.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

The State of Montana appeals from an order of the Ninth Judicial District Court granting defendant’s motion to suppress. We reverse and remand.

During the early morning hours of January 13, 1985, a burglary occurred at the residence of Lloyd and Joanne Cunniff in Choteau, Montana. Numerous undergarments and swimsuits belonging to Joanne were stolen. The stolen items were valued at more than $300. The burglary was reported to the Teton County Sheriff’s office and Ms. Cunniff informed the investigating officer that she suspected defendant.

On January 14, 1985, Deputy Sheriff William Hicks and Choteau Police Chief Anderson went to defendant’s home and asked him to accompany them to the sheriff’s office for an interview. Deputy Hicks desired to discuss the Cunniff burglary and Chief Anderson suspected defendant of taking a book from the Choteau library. Defendant agreed to the interview and accompanied the officers to the sheriff’s office. He was not placed under arrest.

At the sheriff’s office, Chief Anderson read defendant his Miranda rights and defendant signed a waiver of rights. First, Chief Anderson questioned defendant concerning the stolen library book. Deputy Hicks then questioned defendant about the Cunniff burglary. Hicks requested that defendant take a polygraph test and defendant refused. Defendant was told that there were fingerprints and footprints found at the residence which would possibly link him to the crime. These statements were untrue. Hicks pressed defendant further and suggested that he make a written statement. Defendant declined and stated he wanted to talk to an attorney. Questioning continued for another few minutes then the interview was terminated.

During the next week, Chief Anderson encountered defendant on the street and on two occasions asked defendant if he had talked to his attorney. Defendant responded that he had been busy but would attempt to do so. On January 21, 1985, Chief Anderson again met defendant on the street. Defendant still had not spoken with an attorney but agreed to go to the sheriff’s office for another interview. Anderson and Hicks did not question defendant, however defendant agreed at this time to submit to a polygraph test upon being assured the results could not be used as evidence.

The polygraph examination occurred in Shelby on January 23, 1985. Defendant was transported to Shelby by Deputy Hicks. Defendant signed a polygraph permission form and was advised that the test results could not be used as evidence. Following the test, the examiner informed Deputy Hicks that defendant had been deceptive on four questions. Deputy Hicks told defendant he had been untruthful and asked if he wanted to confess to the burglary. Defendant desired to give a statement so Hicks again had defendant sign a waiver of rights form.

Hicks told defendant that if he had any kind of a problem Hicks would do everything possible to see that defendant received some help. Defendant then said, “I never do this unless I’m drunk.” Defendant confessed to the Cunniif burglary and also produced a gem stone he had stolen from another home in Choteau. At that point, defendant requested they return to Choteau where he would sign a written statement.

Pursuant to Hick’s request, Hicks and defendant stopped at defendant’s home to gather the evidence from the burglaries. They proceeded to the Sheriff’s office where a taped interview was conducted and the defendant confessed in detail to the burglaries. Following the interview, Hicks had defendant take home a written confession form to fill out, which defendant completed the following week.

Counsel was appointed for defendant. A motion to suppress was filed covering all statements made by defendant and any evidence obtained as a result of such statements. The District Court granted the motion, finding that defendant had asserted his right to counsel and that further police initiated contact violated defendant’s request for counsel.

The State appeals and raises the following issue: Did the District Court err in granting defendant’s motion to suppress?

The District Court concluded that defendant’s request for counsel at the first interview barred further police initiated interrogation. The court cited Smith v. Illinois (1984) 469 U.S. 91, 105 S.Ct. 490, 83 L.Ed.2d 488, as being decisive of the suppression issue. A reading of Smith reveals that the rule against further questioning once a defendant has asserted his right to counsel applies to custodial interrogation. In the present case, the District Court did not address whether defendant had been subjected to custodial interrogation. Based upon the facts in the record, we find that he was not.

In State v. Dupre (1982) 200 Mont. 165, 650 P.2d 1381, we held that the custodial interrogation situation requiring Miranda warnings does not arise merely because an individual is the focus of police investigation or because questioning takes place at the station house when there is no indication that freedom to depart is in any way restricted. In this instance, there is not a Miranda issue because defendant was given Miranda warnings prior to each interview with the police. Whether defendant was “in custody” depends upon whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. California v. Beheler (1983) 463 U.S. 1121, 103 S.Ct. 3517, 77 L.Ed.2d 1275.

There is nothing in the record indicating defendant believed he was under arrest or was not free to leave the station house during any of the interview. Defendant agreed to accompany the officers to the station house for the interviews and he agreed to take a polygraph test. The facts do not support defendant’s assertion that he was not free to leave during the polygraph test and interview in Shelby. Defendant went to Shelby voluntarily to take the polygraph in order to clear up suspicion that he committed the Cunniff burglary. Further, during the interview following the polygraph test, defendant’s request to return to Choteau was granted.

The suppression issue in this case requires analyzing two questions. First, whether defendant’s confession was voluntary. Second, whether defendant made a knowing and intelligent waiver of his right to counsel. State v. Blakney (1982) 197 Mont. 131, 641 P.2d 1045. The District Court did not address the voluntariness issue. The court did address waiver, but concluded that Smith v. Illinois, Supra, prohibited the police from further questioning of defendant once he had asserted his right to counsel. As noted above, the Smith rule does not apply in this instance for there was no custodial interrogation.

We reverse the suppression order of the District Court and remand for hearing on the issues of voluntariness and waiver.

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

MR. JUSTICE SHEEHY concurs in the result.


text:
    A.A. QUALITY CONSTRUCTION, a Montana corporation; Plaintiff and Appellant, v. TOMMATHEW T. THOMAS, Defendant and Respondent.
    No. 86-212.
    Submitted on Briefs Sept. 11, 1986.
    Decided Nov. 8, 1986.
    As Amended on Denial of Rehearing Dec. 16, 1986.
    728 P.2d 416.
    Nye & Meyer, Jerrold L. Nye, Billings, for plaintiff and appellant.
    R.W. Heineman, Wibaux, for defendant and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

A.A. Quality Construction (A.A.) brought this action to foreclose a mechanics’ lien. A.A. appeals the decision of the District Court for Dawson County, which instead awarded damages on a theory of contract and debt. Dr. Thomas cross-appeals. We affirm.

The issues are:

1. Was partial summary judgment granted without a hearing?

2. Is A.A.’s mechanics’ lien invalid?

3. Should the trial court have awarded Dr. Thomas additional offsets for work not completed or improperly done?

A.A. contracted to do plumbing work on Dr. Thomas’ rental property on a time and material basis. Dr. Thomas paid A.A.’s first bill for some $2,700, but was dissatisfied with A.A.’s work and refused to pay a second bill of $3,745.55. A.A. filed a mechanics’ lien with the Dawson County Clerk and Recorder, then filed this fiction to foreclose the lien. Dr. Thomas moved for partial summary judgment that the mechanics’ lien was invalid because it was not verified by affidavit. Through a series of delays and a transfer of the case to a new judge, no hearing was ever held on the motion. After the pretrial conference, at which the motion for partial summary judgment was not discussed, the District Court issued an order granting the motion.

At the beginning of the trial. A.A. moved to set aside the partial summary judgment order, contending that no proper motion remained before the court and that a hearing on the motion was necessary. The court heard the parties’ arguments for and against the summary judgment and took the issue under advisement. Trial went ahead on a breach of contract theory. During the trial, Dr. Thomas testified about his expenses in bringing A.A.’s work up to par.

In its findings and conclusions, the court reaffirmed the partial summary judgment. It awarded A.A. damages on a theory of contract and debt, reducing the damages by $1,000 for Dr. Thomas’ costs to repair defective work and by $595.75 for A.A.’s overcharges. The money judgment awarded to A.A. was then $2,149.80. The court also gave Dr. Thomas an offset of $930 for attorney fees in successful defense on foreclosure of the mechanics’ lien.

I

Was partial summary judgment granted without a hearing?

A.A. argues that Rule 56(c), M.R.Civ.P., requires a hearing on every motion for summary judgment:

“Motion and proceedings thereon. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits . . .” On this record we need not decide whether partial summary judgment may be granted without a hearing, because the trial court heard the parties’ arguments and reconsidered the partial summary judgment prior to the trial on the merits. After reconsidering the matter, it reaffirmed its judgment. We conclude that since the court allowed a hearing on the summary judgment motion, there is no reversible error.

II

Is A.A.’s mechanics’ lien invalid?

The trial court ruled that A.A.’s mechanics’ lien did not meet the requirement of verification by affidavit in Section 71-3-511, MCA. The lien was signed by the President of A.A. and was notarized as follows:

“STATE OF MONTANA
“COUNTY OF DAWSON
“On this day of September, 1981, before me, a Notary Public for the State of Montana, personally appeared ALBERT ALDINGER, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same.
“IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.
s/Jerrold L. Nye
Notary Public for the State of
Montana. Residing at Billings.
My commission expires 5/18/82”

This is an acknowledgement, see Section 1-5-203, MCA, not an affidavit. The body of the lien is well-drafted and clearly states that A.A. provided labor and materials, and the amount due and owing. However, even when considered together, the body of the lien and the acknowledgement do not constitute a binding oath of the truth of the statements, which is the role of the affidavit. Saunders Cash-Way, Etc. v. Herrick (1978), 179 Mont. 233, 236, 587 P.2d 947, 949. Because of the extraordinary nature of the claim placed on property by a mechanics’ lien, the affidavit is an essential part of the lien, and without it, no lien exists. Sanders, 587 P.2d at 950.

We affirm the District Court’s ruling that A.A.’s mechanics’ lien was invalid because it was not verified by affidavit.

Ill

Should the trial court have awarded Dr. Thomas additional offsets for work not completed or improperly done?

The District Court found that Dr. Thomas incurred $500 in costs for repairing a basement leak caused by A.A. The court made findings that it would not award damages for certain other work, including installation of a second water line, because “the defendant failed to prove the majority of these damages” and “the Court cannot speculate at this time the cost of the work and materials . . . .” It concluded that Dr. Thomas was entitled to a $1,000 offset for costs necessary to correct A.A.’s work. It also granted Dr. Thomas an offset of $595.75 for overcharges by A.A.

Dr. Thomas argues that he is entitled to additional offsets for the second water line and for repairs of defective work. He gave estimates of the amounts of costs and damages he incurred, totaling over $2,600. He argues that his estimates were sufficient proof of damages. A.A., on the other hand, presented testimony that its work was done in a satisfactory manner.

The amounts listed in the trial court’s findings of fact total less than the $1,000 offset it allowed to Dr. Thomas. Clearly, the trial court has granted some offset for Dr. Thomas’ work, properly considering the contradictory evidence submitted by A.A. The offset awarded is within the range of evidence presented to the court. We conclude that the offset granted is supported by substantial evidence.

Dr. Thomas points out that he is entitled to his attorney fees on appeal for his successful defense against A.A.’s mechanic’s lien, under Section 71-3-124, MCA. Dr. Thomas is not entitled to attorney fees on his cross-appeal. Because a hearing before the Dsitrict Court would involve considerable additional travel and legal expenses for both parties, and because Dr. Thomas’ counsel has submitted an affidavit of fees with no objection by A.A., we will set the amount of reasonable fees on this appeal. We have considered the fee affidavit and conclude that a reasonable fee for this appeal is $500.

Affirmed.

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


author: MR. JUSTICE WEBER MR. JUSTICE MORRISON, MR. JUSTICE HUNT, MR. JUSTICE HARRISON,

text:
    MARY PAT MILLER, Plaintiff and Appellant, v. CATHOLIC DIOCESE OF GREAT FALLS, BILLINGS and Roman Catholic Bishop of Great Falls, jointly and severally, Defendants and Respondents.
    No. 86-095.
    Submitted Oct. 2, 1986.
    Decided Nov. 20, 1986.
    728 P.2d 794.

      Nye & Meyer, Victoria Francis argued, Billings, for plaintiff and appellant.
    Cure, Borer & Davis, Maxon R. Davis argued, Great Falls, Crowley Law Firm, Peter F. Habein, Billings, for defendants and respondents.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Mary Pat Miller (now Mrs. Mullner) appeals the summary judgment dismissing her wrongful discharge complaint against defendants. The District Court for Yellowstone County concluded that applying the tort of bad faith in this case would infringe upon the free exercise of religion. We affirm.

The issue is whether the free exercise of religion clauses of the United States and Montana Constitutions bar consideration of the tort of breach of the covenants of good faith and fair dealing in the discharge of Mrs. Mullner for her failure to maintain discipline in the classroom.

The defendants also raise the issue of whether summary judgment can be upheld because no breach of the implied covenant of good faith and fair dealing is established in the record.

Little Flower School in Billings is part of the Catholic school system administered by the Catholic Diocese of Great Falls-Billings. Mrs. Mullner taught fifth and sixth grade students there during the school year 1983-84. Her immediate supervisor evaluated her as “outstanding” in every category. Her contract was renewed and she received a $1,000 raise for the 1984-85 school year.

During the 1984-85 school year, Mrs. Mullner had a new supervisor (the head teacher). The new head teacher did not approve of Mrs. Mullner’s teaching methods. The District Court file contains a copy of the head teacher’s dated notes documenting her concerns and the concerns of parents, other teachers, and the school administrator about a lack of discipline in Mrs. Mullner’s classroom. Mrs. Mullner admits that the head teacher spoke with her “on more than one occasion” about problems in her classroom. In November 1984 Father Wagner, the school administrator, told Mrs. Mullner that the next day would be her last day of teaching at the school, because she was not properly disciplining the children in her class. She was paid for the following fifteen days, pursuant to the termination clause in her teaching contract.

Mrs. Mullner filed this suit alleging breach of the covenant of good faith and fair dealing in employment. Discovery was conducted, including depositions of Mrs. Mullner, the head teacher, and Father Wagner. Defendants produced various documents, including copies of Mrs. Mullner’s employment contract, her evaluation, and the 1984-85 Little Flower School handbook and code of conduct booklet. The defense moved for summary judgment that application of the tort of bad faith would impermissibly interfere with freedom of religion. The District Court granted that motion.

Since an affirmative answer to the issue raised by defendants would eliminate the necessity of reaching the constitutional issue, we will discuss defendants’ issue first.

I

Can summary judgment be upheld because no breach of the implied covenant of good faith and fair dealing is established in the record?

The defendants argue that nothing in the record establishes any breach of an implied covenant of good faith and fair dealing. They maintain that there were no objective manifestations of job security to Mrs. Mullner, and that there were indications to her that she was not performing satisfactorily. They also maintain that there has been no evidence of lack of good faith on the part of Father Wagner.

The defendants’ brief to the District Court in support of their motion for summary judgment did not raise this argument. It discussed only the constitutional issue. Issues not raised before the district court are generally not considered on appeal. Mont. Ass’n of Underwriters v. State, etc. (1977), 172 Mont. 211, 218, 563 P.2d 577, 581. However, this Court has the power to grant summary judgment even when no motion has been made. Treasure State Industries Inc. v. Welch (1977), 173 Mont. 403, 410, 567 P.2d 947, 951. Even so, the complaint’s allegation of defendants’ bad faith is supported by Mrs. Mullner’s deposition. She further contends that she would have submitted additional evidence on this point, had it been raised in the lower court. Her position is that she reasonably believed her employment would continue. We conclude the record does not support summary judgment on this basis.

II

Do the free exercise of religion clauses of the United States and Montana Constitutions bar consideration of the tort of breach of the covenants of good faith and fair dealing in the discharge of Mrs. Mullner for her failure to maintain discipline in the classroom?

The relevant constitutional provisions are U.S. Const. Amend. I:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; . . .” and Art. II, Section 5, Mont. Const.:

“Freedom of religion. The state shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” Former Chief Justice Burger has acknowledged for the United States Supreme Court, in regard to the federal provision, that “[c]andor compels acknowledgment. . . that we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law.” Lemon v. Kurtzman (1971), 403 U.S. 602, 612, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745, 755. The Court provided more guidance on application of the free exercise clause in Wisconsin v. Yoder (1972), 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15. In that case, the Court held that a Wisconsin requirement that all children attend school until the age of 16 was unconstitutional when applied to the Amish respondents, because compelling public school attendance beyond the eighth grade unconstitutionally interfered with their religious beliefs. The Court stated:

“The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.”

Yoder, 406 U.S. at 215, 92 S.Ct. at 1533. We use that standard as our guide.

The parties do not dispute that Little Flower School played an important role in the religious mission of the Roman Catholic Church — that is, teaching the students the elements of the Catholic faith. Defendants point out that all aspects of parochial school education, including discipline, are permeated with the religious mission of the school. We agree with the conclusion of the District Court in Lemon that parochial schools constitute an integral part of the religious mission of the Catholic Church, and with the statement that “[i]n short, parochial schools involve substantial religious activity and purpose.” Lemon, 403 U.S. at 616, 91 S.Ct. at 2113.

This case must be distinguished from the cases cited by Mrs. Mullner involving such issues as wage rates in parochial schools or the application of neutral principles of law to division of property claimed by various members of a church group. See e.g., Donovan v. Shenandoah Baptist Church (D.C.Va. 1983), 573 F.Supp. 320; Jones v. Wolf (1979), 443 U.S. 595, 99 S.Ct. 3020, 61 L.Ed.2d 775. In order to consider Mrs. Mullner’s contentions, this case requires an analysis of the discipline methods used in teaching various school subjects, including religion itself. The suggestion is made that consideration can be given to the methods of discipline without becoming involved with claims which are rooted in a religious belief. Father Wagner’s deposition testimony demonstrates why this division of discipline from religious instruction cannot easily be made. He testified that he was not able to successfully teach religion to the students in Mrs. Mullner’s classroom because of the absence of proper discipline. This example demonstrates how the failure to discipline in an acceptable manner directly interfered with the teaching of religion, which is one of the aspects of the free exercise of religion. Further, defendants point out that discipline itself is an essential element of the religious faith taught at Little Flower School.

A judicial determination of the presence or absence of good faith on the part of Father Wagner would require the court to examine the school’s discipline policy as applied to classroom instruction covering both religious and nonreligious subjects, and to evaluate Father Wagner’s interpretation and application of that discipline policy. Such an examination of necessity would impinge upon elements of the teaching of religion, or the free exercise of religion. We conclude that discipline in the classroom is so intertwined with teaching which in turn is intertwined with religious principles that a court cannot properly make the determination requested here without interfering with a legitimate claim to the free exercise of religion.

The breach of the covenant of good faith and fair dealing in employment is a common-law tort which has been recently recognized in Montana but is not universally recognized. Gates v. Life of Montana Ins. Co. (1982), 196 Mont. 178, 638 P.2d 1063, 39 St.Rep. 16. We apply the Yoder standard as our guide and conclude that Mrs. Mullner’s tort claim is not a right “of the highest order and not otherwise served” so as to overbalance defendants’ claim to the free exercise of religion. We hold that this suit is barred by the free exercise of religion, clauses of the United States and Montana Constitutions.

Mrs. Mullner argues that resolution of this issue in defendants’ favor will result in excessive government entanglement with religion, in violation of the Establishment Clause of the United States Constitution. A three-factor balancing test has been developed for evaluating Establishment Clause claims. The factors are: (1) the character and purpose of the institution involved; (2) the nature of the law’s intrusion into church affairs; and (3) the resulting relationship between the government and the religious authority. Lemon, 403 U.S. at 615, 91 S.Ct. at 2112. The religious character and purpose of Little Flower School is not disputed. Denying application of the tort of bad faith in this case does not result in an intrusion into church affairs. The resulting relationship between government and the religious authority is negligible, at best, because our holding applies only to this particular situation, and not to all applications of the tort of bad faith to religious organizations. We conclude after examining the three factors set forth in Lemon that prohibiting Mrs. Mullner’s lawsuit does not violate the Establishment Clause.

Because allowing Mrs. Mullner’s lawsuit to go forward would impermissibly interfere with the free exercise of religion, we affirm the summary judgment of the District Court.

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

MR. JUSTICE MORRISON,

dissenting:

The issue in this case is not whether the Catholic school officials have a right to set conditions of employment for teachers respecting the discipline of students. Of course they do. To deny the churches the right to afford a complete religious instruction, and the means to assure that the student receives the instruction, would be an unconstitutional infringement upon free exercise of religion.

Plaintiff’s case here does not involve the teaching of religion. Plaintiff’s case is premised upon the fact that she was denied due process in connection with her termination. She was not afforded an opportunity to change. She was not given a hearing in which she could explain her position. Although the church is entitled to set whatever standards it wants respecting and imparting religious education to its students, the law does require that certain fair procedures are necessary in order to accord due process.

The dismissed teacher here takes the position that she was an excellent teacher, disciplined the students, and the complaints lodged against her are false. She only asks for a hearing to explain her position. The denial of this opportunity does not promote free exercise of religion; rather it denies due process rights and the legal protection of the covenant of good faith and fair dealing to the plaintiff.

This case represents another example of this Court engaging in “bottom line” decision making without careful legal analysis of the issues. I sense an attitude on the part of the majority that says, “The courts have no business interfering in the churches’ business”. Although that may be true when dealing with religious instruction the principle has no application to a claim that a teacher was denied procedural due process and therefore the covenant to deal fairly and in good faith was breached.

I would reverse and remand for trial.

MR. JUSTICE HUNT,

dissenting:

I agree with the majority opinion that summary judgment cannot be upheld because of any absence of breach of the implied covenant of good faith and fair dealing.

I dissent on the second issue and would hold that the application of the implied covenant of good faith and fair dealing to the facts of this case would not unconstitutionally inhibit the free exercise of religion nor violate the free exercise of religion clauses of the United States and Montana Constitutions. Summary judgment was not proper on these grounds and I would reverse and remand this case for trial on the merits.

Defendant contends Little Flower School played an important role in the religious mission of the Roman Catholic Church and that all aspects of their education are permeated with religious mission. The majority has stated that this case involves the process of discipline and instruction itself within a religious school setting.

I have no quarrel with these statements as far as they go but they do not fully address the facts and issue before this Court. Plaintiff herself acknowledges that she was told she was dismissed because of problems with discipline in her classroom. She does not question that improper discipline can be used as a reason to terminate an employee under the terms of the school’s contract.

Rather her claim addresses whether she had notice of the shortcomings that displeased her employer so she could correct them and whether the discipline used by her met the disciplinary standards set out by her employer, Little Flower School. Nowhere does plaintiff challenge the validity of that disciplinary standard.

The First Amendment protects against government establishment of religion and prohibition of the free exercise thereof. Art. II, Section 5 of the Montana Constitution provides these same protections.

I find Cantwell v. State of Connecticut (1940), 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 instructive for direction on the issue of free exercise of religion. In its discussion on the First Amendment, the U.S. Supreme Court found that:

“. . . the Amendment embraces two concepts, — freedom to believe and freedom to act. The first is absolute but, in the nature of things the second cannot be. Conduct remains subject to regulation for the protection of society . . . .”

Id. at 303-304, 60 S.Ct. at 903, 84 L.Ed. at 1218.

“. . . Nothing we have said is intended even remotely to imply that, under the cloak of religion, persons may, with impunity, commit frauds upon the public . . .

“Even the exercise of religion may be at some slight inconvenience in order that the State may protect its citizens from injury.” Id. at 306. 60 S.Ct. at 904. 84 L.Ed. at 1219.

The case before us involves a private citizen seeking to enforce a common law tort through the courts of this state against her employer, a church-operated school. The cases relied on by the majority regarding excessive entanglement between church and state are not fully applicable here. Rather, a wealth of case law indicates that although federal and state courts have no jurisdiction over solely internal ecclesiastical affairs or the validity of religious beliefs, they may exercise jurisdiction over torts incurred by religious institutions and in church controversy which impinges on property or civil rights. Lund v. Caple (1984), 100 Wash.2d 739, 675 P.2d 226; Turner v. Unification Church (D.R.I. 1978), 473 F.Supp. 367 aff’d (1979) 602 F.2d 458; Saul v. Roman Catholic Church of Arch. of Sante Fe (1965), 75 N.M. 160, 402 P.2d 48. Federal courts have directly addressed the issue of whether the free exercise clause immunizes defendant churches from tort claims.

In Turner, the court stated that:

“. . . . the ‘operational activities’ of a religion, those activities that are not solely in the ideological or intellectual realm, are subject to judicial review and may be regulated to achieve a sufficiently important state objective.”

Id. at 371-372.

In a similar case Van Schaick v. Church of Scientology of Cal., Inc. (D. Mass. 1982), 535 F.Supp. 1125, the court observed that:

“Whether or not such immunity exists depends, in part, on whether the adjudication of the claim would require a judicial determination of the validity of a religious belief . . .”
“Causes of action based upon some proscribed conduct may, thus, withstand a motion to dismiss even if the alleged wrongdoer acts upon a religious belief or is organized for a religious purpose. (Emphasis added.)”

Id. at 1135.

In the present case the application of the tort of good faith and fair dealing to the church-operated school does not require a determination of the validity of a religious belief. A clergy administrator’s religious role, in itself, does not bar application of the tort of good faith or any other common law tort. Religious leaders and organizations are responsible for breach of duty under common law. This Court has jurisdiction to apply the common law to this situation because such a review of a dismissal for the failure to use proper discipline in a classroom, whether a public or religious classroom, does not involve a judicial determination of the validity of a religious belief.

Further, a series of case law decisions have indicated that neutral application of common law has been constitutionally applied to some circumscribed situations involving internal church disputes. For example, in Konkel v. Metropolitan Baptist Church, Inc. (App.1977), 117 Ariz. 271, 572 P.2d 99, the court found that where the issue is whether the expelling organization had acted in accordance with its own regulations the court had jurisdiction to determine whether the expulsion was proper. Id. at 100. Other jurisdictions follow a similar view. Ogden Street Church, Etc. v. Gospel Temple Church, Etc. (Colo.App.1974), 522 P.2d 757; Gospel Tab Body of Christ Church v. Peace Pub. & Co. (1973), 211 Kan. 420, 506 P. 2d 1135; Mount Zion Baptist Church v. Second Baptist Church (1967), 83 Nev. 367, 432 P.2d 328; Wolozyn v. Begarek (Okla.1963), 378 P.2d 1007.

The Supreme Court in Jones v. Wolf (1979), 443 U.S. 595, 99 S.Ct. 3020, 61 L.Ed.2d 755 stated:

“The neutral-principles approach cannot be said to ‘inhibit’ the free exercise of religion, any more than do other neutral provisions of state law governing the manner in which churches own property, hire employees, or purchase goods.”

Id. at 606, 99 S.Ct. at 3027, 61 L.Ed.2d at 786.

Thus since courts have been found to have jurisdiction to settle certain internal church disputes, I believe there is abundant authority for this Court to allow application of neutral tort law to respondent’s external dispute.

The majority opinion also relies on Wisconsin v. Yoder (1972), 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 for the authority that only values of the “highest nature” can be grounds for inhibiting First Amendment rights.

They do not appear to consider the fact that the Yoder court found that only certain claims would invoke the protection of the First Amendment. The Supreme Court held that:

“. . . to have the protection of the Religion Clauses, the claims must be rooted in religious belief. Although a determination of what is a ‘religious’ belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.” (Emphasis added.)

Id. at 215-216, 92 S.Ct. at 1533, 32 L.Ed.2d at 25.

While maintenance of discipline is important to any school, whether public or private, I would argue that it is not the correct factor in the equation to apply to the above standard.

More accurately this Court should ask whether plaintiff’s claim that she was terminated unfairly or in bad faith is a claim that impinges on the defendant’s religious belief. I would argue that application of the tort of bad faith in these circumstances does not do so.

Employers owe a duty to deal fairly and in good faith in employment relationships. This Court has found that a breach of this duty is a tort. Gates v. Life of Montana Ins. Co. (Mont. 1983), [205 Mont. 304,] 668 P.2d 213, 40 St.Rep. 1287.

Employees have an investment in their employment which is protected. Their very livelihood is dependent on their employment. Loss of employment often jeopardizes the family home and structure. The State of Montana has a compelling interest in maintaining that structure and stability for the citizens of this state. The duty of an employer to treat an employee fairly and terminate employment in good faith was recognized because it struck an important balance between the inherent inequality of bargaining power present in many employment relationships. Dare v. Montana Petroleum Marketing Co. (Mont.1984), [212 Mont. 274,] 687 P.2d 1015, 41 St.Rep. 1735.

The State of Montana has an important state objective in applying the obligation of good faith to employment relationships including lay teachers at church-operated schools. This common law tort as applied to Little Flower School is not a violation of the First Amendment and I would reverse the grant of summary judgment and allow plaintiff to bring her action to a jury for trial on the merits of her case.

MR. JUSTICE HARRISON,

dissenting.

I dissent. I would have this case go to trial and not be decided by summary judgment.


author: MR. JUSTICE HUNT

text:
    In re the MARRIAGE OF RAE MARIE KUZARA, Petitioner and Respondent and JOSEPH KIM KUZARA, Respondent and Appellant.
    No. 86-64.
    Submitted on Briefs Aug. 28, 1986.
    Decided Nov. 20, 1986.
    728 P.2d 786.

      Joseph K. Kuzara, pro se.
    Ralph L. Herriott, Billings, for petitioner and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Joseph Kim Kuzara appeals from a final award of joint custody and denial of costs on appeal from the Musselshell County District Court after a hearing on remand from this Court for sufficient findings of fact relating to the best interests of the Kuzara children.

We affirm the District Court in part but remand the case with instructions to amend the decree to include reasons for not ordering child support and to include the other applicable portions of the original dissolution decree that had been omitted from the final decree.

The issues on appeal are:

1. Did the District Court err in denying appellant’s motion for costs on the original appeal?

2. Did the District Court err after ordering home investigations and reports by not making them available to the parties for review?

3. Do the District Court’s findings support an award of joint custody?

4. Did the District Court err in failing to state reasons for not ordering child support and a joint custody implementation plan?

The parties were married on June 22, 1968, and two children were born: Joseph Ray Kuzara on November 10, 1970 and David Michael Kuzara on October 14, 1974. The dissolution was initiated by the mother on February 17, 1983, and the matter was heard on July 22, 1983. A decree of dissolution signed on August 8, 1983, provided for joint custody of the parties’ minor children with physical custody to remain in the father.

In addition, the original decree provided that the minor children spend alternating weekends and Easter, Labor Day, Thanksgiving and Christmas with respondent. Thirty days each summer vacation were to be spent with the respondent mother as well.

On September 7, 1983, the father filed a notice of appeal of the dissolution decree. On October 5, 1983, a show cause order was issued by the District Court, upon motion of the mother, seeking termination of the joint custody provisions of the decree and that the father be held in contempt of court for failing to abide by the decree. A hearing on the order to show cause was held on November 4, 1983, at which time the father was found to be in contempt. Because of his objections to the termination of joint custody, no consideration of the requested change of custody was made at that time.

Thereafter the father applied for a writ of review before this Court and that action was then consolidated with the appeal of the decree of dissolution by this Court. The mother did not appear on the original appeals on these matters. In November, 1983, the parties’ children, through their attorney, moved this Court for permission to appear as amici curiae and a brief was then filed on their behalf.

In our June 21, 1984 order, this Court denied the application for appellant’s writ of review of his contempt proceeding. In Re Mar. of Kuzara (Mont. 1984), [211 Mont. 43,] 682 P.2d 1371, 41 St.Rep. 1201. We vacated the dissolution decree and remanded with directions for a hearing to determine sufficient findings regarding the children’s desires as to custody and best interests of the Kuzara children.

In August, 1985, the District Court held a hearing pursuant to the above order. The Kuzara children were interviewed in chambers. Both children said they would “probably prefer” to stay with their father, the appellant, and work out visitation with their mother. They liked living in Roundup since they grew up there and all their friends and sports activities were there. Thus they did not wish to move to Billings with their mother.

On October 23, 1985, the District Court found it to be in the children’s interest to grant joint custody once again. The findings stated that the home investigation reports for both parents were evaluated by the District Court. Appellant was awarded physical custody and a flexible visitation schedule was delineated for the respondent.

The court also found that based on Section 25-10-104, MCA and State ex rel. Nesbitt v. District Court (1946), 119 Mont. 198, 173 P.2d 412, no significant legal issues were reversed in favor of either party and the parties were ordered to pay their own costs on the original appeal. Both parties were ordered to share the cost of counsel for the minor children.

Appellant’s first contention is that the District Court abused its discretion when it denied his motion for costs on the original appeal because costs should automatically have been awarded to him under Rule 33, M.R.App.Civ.P.

Rule 33, M.R.App.Civ.P. reads in part as follows:

“(d) Costs in original proceedings . . . and if not otherwise provided by the court in its decision, will be awarded to the successful party against the other party . . . .”

Appellant contends he was the successful party on the original appeal. The District Court disagreed with this contention and held that the slight modification in the previous decree did not make appellant the successful party on the appeal.

The interpretation of the term “successful party” was discussed by this Court in State ex rel. Nesbitt v. District Court, supra. In that case, defendant appealed an award for the plaintiff and this Court decreased the amount that had originally been awarded to the plaintiff. This Court found that if appellant was successful, costs could be recovered from the other party pursuant to the statute. We held that while the award was slightly decreased this could not be considered a success for the appellant. No legal questions were reversed.

In this case, there were minor changes made in the grant of custody and no legal questions were reversed. Nesbitt is persuasive here. We affirm the decision to hold each party responsible for its own costs on the original appeal and that the costs of the children’s lawyer be equally divided between the parties.

Appellant next contends that the District Court erred in not making the home investigation reports available to the parties or providing an opportunity for cross-examination on them.

The hearing on remand was held in August, 1985. At the hearing, motions were made and granted for a home investigation and report on each party’s home. The reports were received by the District Court at the end of September and early October. Neither party received a copy of the reports.

The reports indicated that both homes appeared suitable for the children and that the children’s custodial desires should be taken into account in reaching a decision.

Section 40-4-215(3), MCA, says:

“(3) The court shall mail the investigator’s report to counsel and to any party not represented by counsel at least 10 days prior to the hearing. The investigator shall make available to counsel and to any party not represented by counsel the investigator’s file of underlying data and reports, complete texts of diagnostic reports made to the investigator pursuant to the provisions of subsection (2), and the names and addresses of all persons whom the investigator has consulted. Any party to the proceeding may call the investigator and any person whom he has consulted for cross-examination. A party may not waive his right of cross-examination prior to the hearing.”

The District Court did err in not forwarding copies of the reports to counsel upon their receipt. Copies should have been mailed for review by counsel pursuant to Section 40-4-215, MCA. However, a review of the records indicates that the reports provided no additional information or insight for the District Court to rely on in making a custody determination. Therefore, in the specific limited circumstances of this case, we hold that such error was harmless.

Appellant’s third contention is that the District Court’s findings do not support an award of joint custody. In particular, he claims that the findings are not specific with regard to the children’s wishes, do not reflect the desires of the children, and do not contain any reasons why the desires of the children were not followed.

We do not agree.

The Kuzara children were interviewed in chambers by the trial judge at the remand hearing and their desires were ascertained. They indicated they wanted to reside in Roundup, Montana, with their father; to remain in school in Roundup; and to work out a suitable visitation arrangement with their mother. The youngest son indicated he had not liked the past joint custody arrangements but did want to continue seeing his mother. The boys expressed concern that they be able to continue in sports and that weekend visitation not interfere with those events. They also indicated some problems getting along with their new stepfather in Billings.

Physical custody was granted to the father. The children were allowed to remain in the Roundup school system. A flexible visitation plan was provided so that visitation with their mother could occur six weekends each quarter. Those weekends were to be worked out between the children and their mother without interference from their father.

Appellant’s claim that the judge did not properly consider the children’s desires is meritless. A judge need not go along with a child’s simple statement that he does not like joint custody. A review of the findings of fact and conclusions of law reveals that the District Court considered the desires of the children as instructed by this Court. It incorporated those desires into the decree in a manner it deemed to be in the children’s best interest. It appears that appellant would only be satisfied with an extremely limited grant of visitation to respondent. Whether that grant of custody was sole custody or joint custody, Section 40-4-223, MCA, does not allow appellant to deny respondent the opportunity for frequent and continuing contacts with her children. Here joint custody was found by the District Court to be in the best interests of the Kuzara children. That finding will not be disturbed and appellant must facilitate the decree as ordered.

The next contention raised by appellant is that the District Court erred in not ordering a custody implementation plan. This is not supported by the evidence. Custody proposals were presented and the District Court chose an arrangement which was flexible enough to incorporate the concerns of the children and the parties. There was no error in this regard.

Finally, appellant claims the District Court erred in failing to state reasons for not ordering respondent to pay child support. In October, 1983, Section 40-4-204(2), MCA, was enacted. It states that:

“(2) If the court does not order a parent owing a duty of support to a child to pay any amount for the child’s support, the court shall state the reasons for not ordering child support.”

Respondent argues that child support provisions were covered by the August 8, 1983 decree and these original provisions remained in effect.

On June 21, 1984, this Court vacated the original decree and remanded the case. Thus the original decree was no longer in effect. Section 40-4-204(2), MCA, was effective law at the time this second decree was signed. The District Court did err by omitting the reasons for not ordering child support and by not including the rest of the applicable terms from the original decree in the final decree. This case is therefore remanded to the District Court with instructions to amend the October 23, 1985 decree to include reasons for not ordering child support and to include the other applicable portions of the dissolution decree that were included in the original decree but omitted in the final decree. The award of joint custody and costs on appeal are fully affirmed. .

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