text:
    KIRK JOHNSON, Plaintiff and Appellant, v. GREEN MEADOW COUNTRY CLUB, INC., a Montana non-profit corporation, Defendant and Respondent.
    No. 86-05.
    Submitted on Briefs May 9, 1986.
    Decided July 31, 1986.
    721 P.2d 1287.

      Picotte Law Firm, Carter Picotte, Clancy, for plaintiff and appellant.
    Skedd, Ashley, McCabe & Weingartner, J.C. Weingartner, Helena, for defendant and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Appellant appeals from a summary judgment granted by the District Court of the First Judicial District finding that he had suffered no property damages and that he was not entitled to punitive damages because of the actions of the board of directors of a country club when it changed his golfing handicap and sent him a letter of reprimand.

We affirm.

Two issues were presented to the District Court: (1) Does appellant have a right to a handicap that cannot be arbitrarily changed; and (2) was appellant damaged or injured by the actions of the board of directors whose actions in this case included sending appellant a letter of reprimand.

As a member of the United States Golf Association (USGA) the Green Meadow Country Club follows the system established by that organization to determine the handicap of its golfers. The Board of Directors of the country club has designated the club pro as the handicap committee to make the necessary determination of the handicap of each member. Handicaps are determined by previous scores as reported on properly attested score cards submitted to the handicap committee. Under the rules of the USGA, handicaps may be established arbitrarily when the members fail to turn in properly attested cards to the committee.

In 1984 appellant had a handicap of five. In the summer of that year the club pro determined that the handicap should be lower. On one occasion appellant had a score of 66. This score was recorded in the handicap computations and was combined with two scores of games not actually played, as allowed by the USGA. This had the effect of reducing appellant’s handicap to zero. The District Court found that a golfer has no right to a specific handicap, but rather, must earn one in accordance with the standards and procedures of the USGA which are used by the Montana Golf Association and the Green Meadow Country Club. We agree with that conclusion.

The evidence shows that appellant did not comply with the rules and turn in properly attested score cards. He left the golf pro with no figures to calculate or certify his handicap. He is not precluded from re-establishing his handicap at any time by turning in the required number of properly attested score cards in accordance with the rules of the USGA. It was his own action, or lack of action, and not any act of the defendant that lost appellant his once established handicap and only he can do the deeds necessary to reinstate it.

The second issue involves the necessity of notice. Green Meadow Country Club by-laws provide that if a member is to be suspended or terminated that person is entitled to notice before any action can be taken by the board of directors. There is no provision for notice of a letter of reprimand. Appellant was never suspended or terminated as a member of the Green Meadow Country Club. He was, and still is, a member of the club with all the rights and privileges of membership. He was sent a letter of reprimand but there is no showing of damages as a result of that letter.

Appellant argues that there are facts in conflict, both material and otherwise and that summary judgment should not have been granted. As he views the main issue, he has a property right in the club that has been damaged by the letter of reprimand, and, further, the board of directors has no authority to send the letter. He believes that in doing so the directors acted in violation of Mont. Const. Art. II, Sections 3, 7 and 17. In appellant’s view the controversy is over due process, not whether he wishes to have, or is entitled to have, any particular golf handicap. The focus on the handicap is a mere sideshow according to appellant. However that may be, there is still no showing of damages.

Judge Honzel found that there is no requirement of notice for a letter of reprimand. Section 10 of the respondent’s by-laws require notice when the board of directors is considering suspension or termination of membership which carries with it the loss of equity and privileges in the facilities of the club. The letter does not go that far. The letter addressed to the appellant states:

“The matter involving your handicap, including correspondence has been carefully reviewed by the Board of Directors of Green Meadow Country Club. It is our conclusion that such conduct on your part is prejudicial to the welfare, best interest and reputation of GMCC, as per section 10 of the By Laws.

“You may consider this letter as a reprimand for such conduct. Your continued membership in Green Meadow is contingent upon your ability to follow all rules and refraining from abuse of others including those regulating play.

“In the event you choose not to conduct yourself in the manner set forth above, we will accept your resignation and will refund your membership fee in accordance with the By Laws.

“Your handicap has been withdrawn in accordance with Section 8 of the USGA Golf Handicap System, and the MSGA has been so advised.”

We agree with what the Florida Court said when faced with the same question:

“. . . courts should leave to the members of a private social club or to the proper board to which the members have lawfully delegated that power, the right to determine whether the action of a member has been such that, in the opinion of such Board, it would interfere with the pleasant, friendly, congenial social relationship between members. In the absence of a clear allegation and convincing proof, if the case reaches that stage, of fraud or bad faith, the action of the members or duly delegated board shall not be reviewed by the courts.”

Everglades Protective Syndicate v. Makinney (Fla. App. 1980), 391 So. 2d 262, 265, citing State ex rel. Barfield v. Florida Yacht Club (Fla. App. 1958,) 106 So. 2d 207, 211.

The summary judgment of the District Court is affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE SHEEHY

license: Public Domain

text:
    ALLEN M GEISSLER, Plaintiff and Respondent, v. HOWARD NELSON, Defendant and Appellant.
    No. 86-103.
    Submitted on Briefs May 15, 1986.
    Decided July 31, 1986.
    722 P.2d 632.
    Berger Law Firm, Chris Nelson, Billings, for defendant and appellant.
    J. David Penwell, Bozeman, for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Appellant, Howard Nelson, appeals from the judgment of the District Court, Eighteenth Judicial District, County of Gallatin, awarding respondent $3,927.00, plus attorney fees. We affirm.

On April 9, 1979, Nelson sold to Geissler, his business known as Royal Honda Motors in Bozeman, Montana. The terms of the sale provided for a total purchase price of $130,000.00. Geissler made a downpayment of $65,000.00 and agreed to pay the remaining $65,000.00 at the rate of $1,309.05 per month over a five year period. Nelson was also the owner of the premises that houses Royal Honda Motors. Accordingly, the parties entered a lease whereby Geissler leased the business premises from Nelson.

Among other requirements, the lease contained a provision that Geissler deposit with Nelson a security deposit in the amount of $9,034.00. The lease stated that the security deposit was to be held:

“[F]or the performance by tenant of the [terms] of this lease. Said security deposit shall be retained by landlord without interest until termination of this lease and provided that tenant has complied with all of the terms hereof and paid all of the rental, such amount shall be returned unto tenant.”

The parties’ lease also provided Geissler would pay monthly rent of $4,517.05 per month. The parties, however, apparently agreed that $3,208.00 of the payment was actually rent and the remainder, $1,309.05, represented the money being paid by Geissler to Nelson to be applied against the $65,000.00 balance owed by Geissler on the purchase price of Royal Honda Motors.

Prior to the initiation of this action, on June 7, 1983, Nelson brought suit on the parties’ lease in Cause No. DV-83-537, in the same District Court. On October 1, 1983, however, the lease was terminated by the parties when Nelson entered a new lease covering the business premises with Simpson Motors Cars Limited to whom Geissler had sold Royal Honda Motors. Thereafter, Cause No. DV-83-537 was dismissed by stipulation of the parties, signed October 31, 1983. Accordingly, in the instant case, the District Court found that the matters in the parties’ previous lawsuit involving the lease agreement were “res judicata with the exception of the question of the security deposit which was not contemplated in the said action in Cause No. DV-83-537.”

Subsequent to termination of the lease by the parties, Geissler made demands for the payment and refund of the security deposit of $9,034.00. Nelson failed to refund the deposit until January 25, 1984 when he tendered a check to Geissler written in the amount of $3,911.00. Nelson arrived at a $3,911.00 refund by subtracting from the $9,034.00 deposit, set-off claims in the amount of $1,196.00 for claimed damages to the leased premises and $3,927.00 for nonpayment of the last three installments of $1,309.05 owing on the balance of the purchase price of the business. In other words, Nelson arrived at the set-off of $3,927.00 by adding the portion of the lease payment attributable to Nelson’s payment on the purchase price of the business of $1,309.05 for three months. On the back of the check tendered by Nelson the following restrictive endorsement appeared:

“Endorsement by and payment of this check to the named payee constitutes payment and return in full of all security deposits made said payee on a certain commercial lease dated April 8th, 1979.” Nelson crossed out the above endorsement wrote “Endorsement Rejected” thereunder, endorsed the check and then negotiated the same.

On February 3, 1984, Geissler commenced this action for return of the remainder of his security deposit. In his answer Nelson raised the affirmative defense of accord and satisfaction. Trial was held without a jury on April 26, 1985. The District Court found that damages were done to the business premises entitling Nelson to a set-off against the security deposit in the sum of $1,196.00. The District Court, however, also found that Nelson was not entitled to his second claimed set-off in the sum of $3,927.00 because on October 1, 1983, Nelson entered an agreement with Simpson Motor Cars Limited for the lease of the same premises previously leased to Geissler and received compensation in the same amount being received from Geissler. In other words, the District Court determined that no damages were suffered by Nelson as a result of Geissler’s alleged failure to make payments upon the purchase price claimed as a set-off.

Nelson raises four issues for our review:

1. Whether the District Court erred in not finding that the previous action between the parties was a bar, either by res judicata or estoppel, or both, to the subsequent claim herein for return of the security deposit;

2. Whether the District Court erred in not finding that the restrictive endorsement on the check that was sent by Nelson to Geissler constituted an accord and satisfaction when Geissler endorsed and cashed the check;

3. Whether the District Court erred in failing to make a finding as to whether or not $1,309.00 per month was for the purchase of the business or was for other consideration; and,

4. Whether the District Court erred in finding that any of the security deposit monies were due and owing from Nelson to Geissler.

Nelson first contends that Geissler’s present action for the return of his security deposit given to secure performance under the parties lease is barred by res judicata. The record in Cause No. DV-83-537 indicates that although the previous action did indeed refer to the existence of the lease between the parties, the only claims for relief in that action by Nelson were: 1) the payment of back rent; 2) a demand for the retaking of possession of certain personal property pledged as security for the payment of said rent; and, 3) a claim for general damages and punitive damages. In the previous action Geissler counterclaimed for specific performance of the terms of an option he had under the lease which Nelson had refused to honor. No other issues were raised by either party in Cause No. DV-83-537.

This court has stated the criteria to be used in determining whether an action is barred by res judicata as follows:

1. The parties or their privies must be the same;

2. The subject matter of the action must be the same;

3. The issues must be the same and must relate to the same subject matter; and

4. The capacities of the persons must be the same in reference to that subject matter and to the issues between them. Fox v. 7L Bar Ranch Co. (1982), 198 Mont. 201, 206, 645 P.2d 929, 931, S-W Co. v. John Wright, Inc. (1978), 179 Mont. 392, 405, 587 P.2d 348, 355.

In the present case Nelson’s res judicata claim fails as it relates to criteria 2 and 3. Clearly, neither the subject matter nor the issues raised were the same in both cases. The subject of the unpaid security deposit and the issue of its payment were never before the District Court in Cause No. DV-83-537 since refund of the entire deposit was not refused until January 25,1984 when Nelson tendered a partial refund and the prior case was terminated by stipulation of the parties on October 31, 1983. We, therefore, affirm the District Court’s finding that all matters involving the lease agreement were res judicata with the exception of the security deposit which was not contemplated in the previous action.

Nelson next contends that the District Court erred in not finding that the restrictive endorsement on the check sent by Nelson to Geissler constituted an accord and satisfaction. Geissler, in the converse, contends that the District Court correctly ruled that there was no accord entered into by the parties.

The phrase “accord and satisfaction” means the substitution of a “new agreement” in satisfaction of an obligation, different from the original rights existing under an antecedent liability. From that premise it follows that when an accord has been executed it operates as a complete bar to an action on the original claim. See Sawyer v. Somers Lumber Co. (1929), 86 Mont. 169, 171, 282 P. 852, 854.

In Montana both accord and satisfaction are defined by statute. Section 28-1-1401, MCA, provides:

“An accord is an agreement to accept in extinction of an obligation something different from or less than to which the person agreeing to accept is entitled. Though the parties to an accord are bound to execute it, yet it does not extinguish the obligation until it is fully executed.”

Section 28-1-1402, MCA, defines satisfaction as follows: “Acceptance by the creditor of the consideration of an accord extinguishes the obligation and is called satisfaction.”

There is no doubt in the instant case but that Geissler accepted the consideration tendered by Nelson which would constitute a satisfaction if in fact the parties entered into an accord. Section 28-1-1401, MCA, clearly defines an accord as an “agreement” to extinguish the original obligation for something different or less than the creditor is entitled. There, however, is the additional requirement that an offer to enter an accord be accepted in writing. Section 28-1-1403, MCA, provides:

“Part performance of an obligation, either before or after a breach thereof, when expressly accepted by the creditor in writing in satisfaction or rendered in pursuance of an agreement in writing for that purpose, though without any new consideration, extinguishes the obligation.” (Emphasis added.)

In Sawyer, we held that the endorsement of a check by a creditor for the purpose of cashing it is not such a writing as is contemplated by Section 28-1-1403, MCA. Sawyer, 86 Mont. at 177, 282 P. at 854. In the instant case there was also no agreement in writing to enter an accord other than Geissler’s endorsement of the check. To hold on the facts of this case that the parties did enter an accord simply by Geissler endorsing Nelson’s check would be akin to condoning a form of commercial blackmail. We, therefore, hold that the District Court properly found that there was no accord entered by the parties because there was no such “agreement” and even if there was it was not in writing.

The final two issues raised by Nelson are simply repetitious. We, therefore, decline to discuss them further.

We affirm the District Court.

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


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

text:
    HARVEY D. HURTT, Plaintiff and Appellant, v. SCHOOL DISTRICT NO. 29, BIG HORN COUNTY, Montana, Defendant and Respondent.
    No. 85-424.
    Submitted on Briefs March 14, 1986.
    Decided Aug. 1, 1986.
    723 P.2d 205.

      MR. CHIEF JUSTICE TURNAGE dissented and filed an opinion in which MR. JUSTICES HARRISON and GULBRANDSON joined.
    Felt & Martin, James D. Walen, Billings, for plaintiff and appellant.
    Smith Law Firm, Chadwick H. Smith, Helena, for defendant and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Harvey Hurtt appeals the judgment of the District Court, Thirteenth Judicial District, holding that he was not entitled to recover from the school district for breach of contract and failure to follow statutory notice and hearing requirements.

We affirm in part, reverse in part and remand for determination of damages.

Appellant raises four issues on appeal:

(1) Whether the contract for the 1979-1980 school year between Hurtt and the school district was fully performed.

(2) Whether the school district was required to give notice of non-renewal of appellant’s 1980-1981 contract, and whether failure to give notice resulted in the automatic renewal of that contract.

(3) Whether any damages awarded for the 1980-1981 contract should be reduced by the amount of retirement, unemployment benefits and work study wages.

(4) Whether attorney’s fees and statutory penalties should be assessed as additional damages.

On August 30, 1979 the respondent school district hired appellant Hurtt as the administrator of the district. The contract between the parties described the position as “Superintendent/Principal.” The school district indicated the duration of the contract was “for the school term of two hundred and twenty days and 7 pupil-instruction related days.” The contract did not indicate any beginning or termination dates. Hurtt’s compensation was set at $20,000.00 salary plus a housing allowance.

Appellant acted as both superintendent and principal throughout the 1979-1980 school year. Instruction for that school year ended May 30. During a school board meeting on June 4,1980, Hurtt notified the trustees that he believed his 1979-1980 contract would be completed June 10, 1980. He based this conclusion upon a time report which he presented to the board. The time report indicated he had worked 26 days in addition to instruction and instruction-related days. The additional time was used by attending ten school board meetings that had lasted past midnight and by working 16 Saturdays and Sundays on school business.

The trustees voted to reject Hurtt’s time report and decided to contact the county attorney for an opinion to resolve the issue of when performance under the contract would be completed. The trustees asked Hurtt to stay on until the opposing contentions relating to the contract could be resolved. Hurtt indicated he would be willing to stay on and that he would negotiate for either compensatory time or added compensation. The trustees then voted to continue the meeting in executive session. When they returned to the open meeting at approximately 1:30 a.m. on June 5, they orally informed Hurtt that his contract would not be renewed for the 1980-

1981 school year. This was the first time the trustees had discussed renewing or not renewing Hurtt’s contract. They gave no reasons for their decision.

On June 6, 1980 the board requested by letter the opinion of the county attorney. Hurtt was not advised of any opinion from the county attorney, nor did the board discuss the dispute with Hurtt, prior to June 11, 1980. Hurtt continued on the job through June 11, 1980 and moved from the school district that day to look for other employment.

The county attorney never issued an opinion as to the duration of the contract. No written notice was ever sent by the school board to Hurtt informing him that his contract for the 1979-1980 school year was terminated, or that his contract would not be renewed for the 1980-1981 school year. On the advice of counsel, the board did send Hurtt notice that he would not be offered a contract for the 1981-

1982 school year. The board did pay Hurtt $17,636.54 salary, $1,250.00 housing allowance and $113.64 unused sick leave under the 1979-1980 contract and nothing thereafter.

Hurtt sued the school district for alleged breach of the 1979-1980 contract and for failure to timely notify him that his contract would not be renewed for the 1980-1981 school year. The District Court found as a matter of law that the term 220 days meant 220 week days, that Hurtt himself had breached the 1979-1980 contract, and that he was not entitled to notice of non-renewal.

The first issue presented on appeal is whether the 1979-1980 contract was fully performed. There is no dispute that Hurtt left Wyola June 11, 1980, leaving unfinished work behind. We will not disturb the District Court’s findings and conclusions when they are adequately supported by the evidence. Bartel v. State (Mont. 1985), [217 Mont. 380,] 704 P.2d 1067, 1076, 42 St. Rep. 1, 10.

Appellant presents a second issue: Whether his contract for the 1980-1981 school year was automatically renewed by operation of law, because the school board failed to notify him in writing before April 15, 1980 that his contract would not be renewed for 1980-1981 school year.

The resolution of this second issue presented on appeal depends on whether Hurtt is a Superintendent, subject to termination without notice under Section 20-4-401(3) MCA, or, a Principal entitled to notice under Section 20-4-206(1) MCA, which provides that “[T]he trustees shall provide written notice by April 15 to all nontenure teachers who have been reelected. Any nontenure teacher who does not receive notice of reelection or termination shall be automatically reelected for the ensuing school fiscal year.” The School District contends Hurtt served as superintendent and is entitled to be treated only as a superintendent. Hurtt responds that he served in both a superintendent’s and principal’s capacities.

We hold that Hurtt was a principal as well as a superintendent and was therefore entitled to the statutory processes regarding non-renewal of a principal’s and a superintendent’s contract.

Hurtt’s employment contract titled his position as Superintendent/ Principal. This title does not indicate which duties Hurtt would perform, or how much time Hurtt would spend under each part of his title. However, the language clearly indicates Hurtt would be required to perform both capacities. Where language of a contract is clear and unambiguous on its face, it is the duty of the court to enforce it as the parties made it. Wortman v. Griff (1982), 200 Mont. 528, 651 P.2d 998, see also Section 28-3-201, MCA. The language clearly indicates that Hurtt was both a principal and a superintendent. For us to hold that he filled only one of those positions would be to impermissibly rewrite the contract between the parties. Lemley v. Bozeman Community Hotel Co. (1982), 200 Mont. 470, 651 P.2d 979; Herrin v. Herrin (1979), 182 Mont. 142, 595 P.2d 1152.

This meaning of the contract is buttressed by the applicable statutes. School trustees are elected officials with the duty to employ and dismiss administrators as provided by Title 20, MCA. Sections 20-3-324 and 20-3-361, MCA. Section 20-4-401(1), MCA, provides that the trustees of a high school district may join with the trustees of the elementary district where the high school is situated to jointly employ a superintendent. As in the case of many small schools, the Wyola trustees wished to hire only one administrator. However, Section 20-4-403, MCA, allows school districts, in lieu of hiring a superintendent, to employ a principal who shall perform the duties of a principal and a district superintendent. That statute provides:

“(1) Whenever the trustees of a district employ and appoint a school principal but do not employ and appoint a district superintendent, such principal shall perform the duties of the district superintendent as prescribed in Subsections (4), (5), (6), (7), and (8) of 20-4-402 and shall have general supervision of such school and personnel assigned to such school.

“(2) If granted authority by the board of trustees, a school principal in a district that does employ and appoint a district superintendent may suspend for good cause any pupil of the school where the principal is employed.”

We must assume Hurtt was hired pursuant to Sections 20-4-401 and 20-4-403, MCA, and therefore was both principal and superintendent.

Section 20-4-401(3), MCA sets out the powers of school board trustees to terminate a superintendent’s employment. That subsection, in relevant part, provides:

“[A superintendent’s] contract shall be for a term of not more than 3 years, and after the second successive contract, the contract shall be deemed to be renewed for a further term of 1 year from year to year thereafter unless the trustees shall, by resolution passed by a majority vote of its membership, resolve to terminate the services of the district superintendent or the county high school principal at the expiration of his existing contract.”

While Hurtt, in his capacity as a superintendent cannot complain that his employment was unlawfully terminated, he also served as a principal and termination of his employment in that capacity must follow statutory procedures outlined for principals.

We now turn to the statutes applicable to a principal. Section 20-1-101(11), MCA, provides, “for the purposes of this title, any reference to a teacher shall be construed as including a principal as herein defined.” The same subsection defines principal as “any person who holds a valid class 3 Montana teacher certificate with an applicable principal’s endorsement and who has been employed by a district as a principal.” Hurtt held such a certificate and was hired as a principal.

Because Hurtt was a principal, the provisions of Section 20-4-206, MCA, apply to the nonrenewal of Hurtt’s contract. That statute, in relevant part, provides:

“The trustees shall provide written notice by April 15 to all non-tenure teachers who have been reelected. Any nontenure teacher who does not receive notice of reelection or termination shall be automatically reelected for the ensuing fiscal year.

“When the trustees notify a nontenure teacher of termination, the teacher may within 10 days after receipt of such notice make written request of the trustees for a statement in writing of the reasons for termination of employment. Within 10 days after receipt of the request, the trustees shall furnish such statement to the teacher.”

Under the statute nontenure principals must receive written notice from the trustees by April 15 that they will not be re-elected for the following school year. If notice of termination is timely received the principal can request and shall receive a written statement of the reasons for the termination. Hurtt did not receive timely notice, therefore he had been reelected for the 1980-1981 school year on April 16, 1980. In order to terminate that 1980-1981 contract the trustees needed to comply with Section 20-4-207, MCA, which provides for dismissal of a teacher under contract. The trustees did not comply with that statute.

Hence, we hold that Hurtt is entitled to damages for breach of the 1980-1981 contract, subject to mitigation of damages, but is not entitled to damages stemming from the 1979-1980 contract.

The third issue presented concerns the measurement of damages awarded under the 1980-1981 contract. The trial record reveals a finding by the court relating to the measurement of Hurtt’s damages. We remand this issue to the District Court for determination in light of Wyatt v. School District No. 104 (1966), 148 Mont. 83, 417 P.2d 221.

Hurtt also seeks attorneys fees. We hold an award of attorneys fees is not proper in this case because there is no specific applicable contract provision or statutory grant of attorneys fees. See, Pryor School v. Super, of Publ. Instruction (Mont. 1985), [218 Mont. 73,] 707 P.2d 1094, 1098, 42 St.Rep. 1405, 1413.

This case is remanded to the District Court for further proceedings consistent with this opinion.

MR. JUSTICES WEBER, SHEEHY and MORRISON concur.

MR. CHIEF JUSTICE TURNAGE,

dissenting:

I respectfully dissent from the majority opinion and would affirm the District Court.

The District Court Finding of Fact Nos. 5 and 18 state:

“5. That on August 30, 1979, Plaintiff and Defendant school district, through its Board of Trustees, executed a written contract, prepared by Defendant, whereby Plaintiff was employed to supervise the school of the Defendant district for the school term of 1979-1980, consisting of 220 days and seven (7) pupil instruction related days, for a total compensation of $20,000.00, payable over a 12-month period, plus a housing allowance of $125.00 per month.”

“18. That Plaintiff testified that he would have accepted the job for the 1980-1981 school term, had it been offered to him, but he made no request of the school board, nor did he notify the Defendant that he would so accept, or that he in fact wanted it. Plaintiff left Wyola on June 11, 1980, leaving his forwarding address, and leaving several reports and applications for funds unfinished.”

The District Court’s Conclusion of Law No. 1 states:

“1. That Plaintiff breached and did not fully perform his contract with the Defendant for the school year 1979-1980 in that he performed only 193 of the required 227 days of service; that Plaintiff was not entitled to a day’s credit for service performed on Saturdays or Sundays during the school year, or for a day’s credit for school board meetings that extended past midnight; that such interpretation was not intended by the contracting parties and was not later approved by the Defendant.”

The first issue presented on appeal is whether the 1979-1980 contract was fully performed. I do concur with the majority in their disposition of the first issue as expressed by the majority:

“The first issue presented on appeal is whether the 1979-1980 contract was fully performed. There is no dispute that Hurtt left Wyola June 11, 1980, leaving unfinished work behind. We will not disturb the District Court’s findings and conclusions when they are adequately supported by the evidence. Bartel v. State (Mont. 1985), [217 Mont. 380,] 704 P.2d 1067, 1076, 42 St. Rep. 1, 10.”

This issue and its disposition as articulated by the majority is dis-positive of the entire case.

Appellant breached his contract with respondent by failing to complete his obligation to perform 227 days service and performed only 193 days service and in leaving his employment without completing several reports and applications critical to the interest of the school district. He clearly breached his contract and is entitled to no further notice of its non-renewal.

The judgment of the District Court should be affirmed.

MR. JUSTICES HARRISON and GULBRANDSON join in the foregoing dissent of MR. CHIEF JUSTICE TURNAGE.


author: MR. JUSTICE SHEEHY MR. JUSTICE GULBRANDSON,

text:
    TAMELA BUCK, Alice Keys, Kelly Keys, John A. Buck and Dorothy J. Buck, Individually and as personal representatives of the estate of Elizabeth Ruth Buck, deceased, Plaintiffs and Appellants, v. STATE OF MONTANA, a body politic and Madison County, a political subdivision of the State of Montana, Defendants and Respondents.
    No. 84-504.
    Submitted May 15, 1986.
    Decided Decided Aug. 4, 1986.
    Rehearing Denied Sept. 2, 1986.
    723 P.2d 210.

      Corette, Smith, Pohlman & Allen, Dolphy Pohlman, Butte, argued, Hash, Jellison, O’Brien & Bartlett, James C. Bartlett, Kalispell, argued for plaintiffs and appellants.
    John H. Maynard and Daniel Hoven argued, for State of Montana.
    Harrison, Loendorf & Poston, James T. Harrison, Jr., Helena, argued, for Madison County.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

This is an appeal by each of the plaintiffs above named from a judgment entered against them and in favor of the State of Montana and the County of Madison after jury trial in the District Court, Fifth Judicial District, Madison County.

On August 30, 1980, at approximately 2:15 o’clock a.m., Tamela Buck, Alice Keys, Kelly Keys and Elizabeth Ruth Buck were traveling in a 1973 Volkswagon from Whitehall to their home on the South Boulder River in Madison County, Montana. A single car accident occurred at that time approximately one mile southeast of Cardwell on Highway 359 in Madison County. The driver, Kelly Keys, was injured as were two passengers, Alice Keys and Tamela Buck. A third passenger, Elizabeth Ruth Buck, died from injuries received from the accident.

Kelly Keys, Alice Keys, and Tamela Buck filed separate actions against the State of Montana. Later the three plaintiffs filed a consolidated amended complaint naming the State of Montana and the County of Madison as defendants.

In 1983 John A. Buck and Dorothy J. Buck, individually as parents and as personal representatives of the estate of Elizabeth Ruth Buck, deceased, filed a complaint against the State of Montana, and County of Madison. By later stipulation, all of the plaintiffs’ cases were consolidated for trial in Virginia City, Montana.

Highway 359 was a secondary highway owned by the State of Montana on the date of the accident. The section of highway where the accident occurred was subject to a maintenance agreement between the State of Montana and Madison County.

The principal issue of fact in this case was what caused the accident. The plaintiffs each contended that the section of roadway where the accident occurred was curved and that there was no curve sign or other warning of the upcoming curve presented to the driver of the Volkswagon. They contend that instead of following the curve, because of the lack of warning, the driver drove in a straight direction off the left side of the highway, corrected to get back on the highway surface and then the Volkswagon collided with a wooden railing bridge. A shaft or timber from the wooden bridge came through the Volkswagon, pinning the passengers in the rear seat, and apparently causing the death of Elizabeth Ruth Buck. The plaintiffs attack the construction of the bridge as unsafe.

The plaintiffs contended that the State of Montana had a legal duty to design and construct Highway 359 in a reasonably safe condition for motorists and that it failed such legal duty; that the County of Madison had the legal obligation to maintain Highway 359 in a reasonably safe condition at the time of the accident and it failed its contractual duty; and that these factors were a proximate cause of the injuries suffered by the four persons in the Volkswagon.

The State and County contended that there was no breach of legal duty in the design or construction; that they maintained the highway in a reasonably safe condition at the time; that the driver of the vehicle Kelly Keys had a statutory duty to drive upon the right side of the roadway and not to drive while under the influence of alcohol; that the driver failed to keep a lookout and that her breaches of statutory and common law duties were the sole proximate cause of the accident from which the injuries to all plaintiffs arose. The State and County further contended that the passengers other than the driver had a duty to protect themselves from unreasonable risk of harm and that by occupying the vehicle with a driver known to them to have been drinking they breached that duty, were contributorily negligent, and proximately caused their own injuries.

The evidence adduced by the plaintiffs indicated on the evening before the accident they had gone into Whitehall to a bar at the Borden Hotel to join friends already present. It was Saturday evening of a Labor Day weekend. The parties had some beers and danced. About 1 a.m. Kelly Keys and Alice Buck went to an adjoining restaurant to eat a hamburger and drink coffee. As the bar closed they purchased a six pack of beer to take home. Kelly had stopped drinking, and had consumed in all bottles of beer. They left the bar at about 2 a.m. and proceeded to the place where the accident occurred.

The accident site had been designed and constructed in 1957 by the State of Montana. The roadway in that section proceeds directly east for about half a mile before entering a sharp right hand curve at the end of the straight-away. Half way through the right hand curve was a wooden bridge with wooden railings on each side. A “curve sign” had been designed for the curve and had at one time been placed at that location, but on the night of the accident the warning curve sign was missing.

At the curve, the Volkswagon went straight ahead, crossed the center line and smashed into the left bridge abutment. After the impact, Kelly was injured but able to get out of the vehicle and find help from a neighboring family. Alice and Tamela were both injured and had to be removed by Allen Pochelon. All were taken to the St. James Community Hospital in Butte from the Pochelon residence. Elizabeth Ruth Buck died while in the vehicle and her body was removed and taken to the mortuary at Ennis, Montana.

The State contended this accident was a result of the drinking by Kelly Keys, the driver. The State and County contended that the evidence showed that Kelly Keys lost control of the automobile, drifted across the middle of the road to the left hand side and went off the paved surface of the road 105 feet 11 inches before the final resting place of the vehicle. The highway investigating officer testified that no evasive action was taken until immediately prior to the impact. At one time the automobile was off the paved surface and on the gravel shoulder so that its right rear wheel was away from the paved road a distance of four feet six inches.

The nurse who accompanied the ambulance testified that Kelly Keys was under the influence of alcohol; she testified that Kelly Keys interfered with the performance of her duties and needed restraining. A blood alcohol test was taken in the hospital at 6 a.m. of Kelly Keys. It showed a .07 blood alcohol content at the time. Dr. Kenneth H. Mueller testified that for such a blood alcohol content to exist at 6 a.m., following the accident, “her blood alcohol would have to have been .11 to .15” at 2 a.m. He testified that Kelly Keys must have consumed six, perhaps as high as ten drinks. He said it was impossible to have a .07 blood alcohol result from 2 Vi bottles of beer SV2 hours before the blood test.

Contrary evidence on the intoxication of Kelly Keys was had from John Buck, the father of Elizabeth Ruth Buck, who talked to Kelly Keys at the hotel in Whitehall just before she left to drive the Volkswagon. From his close observation, she did not appear intoxicated to him. Mr. Buck later drove his automobile down the same roadway, and testified that there was no warning curve sign along the road’s edge and that he himself had nearly run off the road before he realized he was approaching a curve.

Other contra evidence on intoxication came from Allen and Debbie Pochelon. They occupied a house a distance from the site of the accident. Following the impact, Kelly Keys got out of her automobile, and went back on the highway towards the Pochelon residence. There she banged on the door, and both Allen and Debbie observed Kelly Keys, her head covered with blood, hysterical, but in their opinion there was no indication of any intoxication or drinking. Kelly Keys remained at the house until the ambulance came. The other two passengers also came to the Pochelon residence. The Pochelons saw no evidence of drinking in the other two passengers.

Issues of fact were submitted to the jury on a special verdict devised by the District Court. In the first two issues, the jury determined that the State of Montana was negligent, but that its negligence was not a proximate cause of the accident. In issues 3 and 4, it also found that Madison County was negligent, but that its negligence was not a proximate cause of the accident. Under the form of the verdict as submitted, they having so answered the questions, none of the other issues of fact was decided by the jury, whose foreman signed the verdict form which was returned to the Court. On the basis of the special verdict, the District Court entered judgment in favor of the State and of the County.

Assignments of error raised by the appellants include instructional error in refusing to instruct on concurrent cause; and evidentiary error in refusing to allow evidence of subsequent improvements to Highway 359; excluding the opinion of a witness as to the effect on the driver of the missing curve sign; and admitting evidence that the driver was not wearing a seat belt. It is also contended by appellants that the court erred in instructing the jury that it was unlawful for a person to drive a motor vehicle while under the influence of alcohol.

INSTRUCTIONS

The principal problem in this case lies in instructions given and not given to the jury by the District Court.

Here we have a case of an injured driver suing the State and the County for injuries that she claims were brought about by the negligence of the State and the County. Her case was consolidated for trial with the separate actions of three passengers in her automobile who also sued the State and the County for their claimed negligently caused injuries. The rules that permit recovery by an injured driver from negligent actors are different from those applying to non-drivers in the same automobile who seek damages from the same negligent actors. The instructions as given do not set forth those differences.

Although the State is not an insurer of one who uses the highways, State ex rel. Bjord v. District Court (1977), 175 Mont. 63, 67, 572 P.2d 201, 203, it is under a duty to keep its highways in a reasonably safe condition for the ordinary use thereof.

The State’s duty extends to the paved portion of the roadway, and to the shoulders and the adjacent parts thereof, including guard rails, or bridge abutments, Cech v. State (1979), 184 Mont. 522, 604 P.2d 97, as it is common experience that vehicles may stray or swerve from the usual traveled portion thereof. 39 Am.Jur.2d 886 Highways, Streets, and Bridges Section 488.

It is the further duty of the State to construct and maintain its highways so that no latent nor hidden defect or trap thereon constitutes an unreasonable danger to persons and vehicles, including those portions of the highway where it may reasonably be foreseen that vehicles might traverse though off the paved portion of the highway. 39 Am.Jur.2d 887 Highways, Streets, and Bridges Section 489.

These duties apply whether the defect occurs in the original construction, or later through repair, reconstruction, resurfacing or maintenance. Beeman v. State (1968), 29 A.D.2d 1040, 289 N.Y.S.2d 263.

When defects are present the State’s duty to cure or remove the same, or give warning thereof begins when it has notice of the same and opportunity to act. Cameron v. State of California (1972), 7 Cal.3d 318, 102 Cal.Rptr. 305, 497 P.2d 777; Parfait v. State Department of Highways (Louisiana 1976), 334 So.2d 549.

The duty of the County in this case, under its maintenance contract with the State, was so to maintain the highway as to reasonably protect the traveling public, including the maintenance and upkeep of highway warning signs. The County had no duty with respect to the original construction and design of the highway.

The pertinent duties of the driver Kelly Keys in this case included the duty to keep a lookout, to keep her automobile under control, and to operate the same at a reasonable speed under the circumstances. She had a further duty not to drive her vehicle if she were under the influence of alcohol.

Different rules from those of the driver govern the passengers in this case. The negligence, if any of Kelly Keys in driving the Volkswagon, cannot be imputed to the passengers in the car. The negligence of Kelly Keys in driving and operating the automobile would be no bar to recovery by the passengers from the State and the County if the State and County proximately caused the injuries to the passengers. The default of a driver in disobeying statutory provisions regarding the operation of the automobile cannot by imputation be made the default of a passenger. Kudrna v. Comet Corporation (1977), 175 Mont. 29, 572 P.2d 183; Hernandez v. Chicago Burlington and Quincy Railroad Company (1965), 144 Mont. 585, 398 P.2d 953; Wolf v. Barry O’Leary, Inc. (1957), 132 Mont. 468, 318 P.2d 582.

If however a passenger agrees to ride in an automobile with a person he feels to be intoxicated and an unsafe driver, the passenger then assumes the risk, under our law a form of comparative negligence, and if the County and the State were also negligent, the case of the passenger would call for comparison and apportionment of the damages. Johnson v. United States (U.S.D.C. Mont. 1980), 496 F.Supp. 597, aff'd. 704 F.2d 1431 (9th Cir.1983).

Having the foregoing principles in mind, we append in the footnote below all of the instructions given by the court in this case on negligence. It will be seen that the instructions contain no proper mention of comparative negligence, concurrent cause, or in the case of the passengers, imputed negligence.

(Because all of the offered instructions in this case related to proximate cause, we leave aside from this discussion whether the jury should have been instructed on the basis of legal cause rather than proximate cause. For a discussion of legal cause and its application to this type of case, see Rudeck v. Wright (Mont. 1985), [218 Mont. 41,] 709 P.2d 621, 628, 42 St.Rep. 1380, 1388; and Streich v. Hilton-Davis (Mont. 1984), [214 Mont. 44,] 692 P.2d 440, 450, 41 St.Rep. 2310, 2322 (Mr. Justice Morrison, concurring.)

Instruction No. 22, given by the court in this case (fn. 1 at P. 11) speaks of concurring proximate cause. Undoubtedly the jury followed this instruction, because although it found both the State and the County negligent, it determined that such negligence was not a proximate cause of the injuries here. Court’s Instruction No. 22 comes from Halsey v. Uithof (1975), 166 Mont. 319, 327, 532 P.2d 686, 690, as repeated in Giles v. Flint Valley Forest Products (1979), 179 Mont. 382, 389, 588 P.2d 535, 539. Instruction No. 22 in this case is defective because it doesn’t take into account that the negligence of the State and the County in this case, if it existed, was a continuing state of negligence which did not end at the moment that the Volkswagon veered from the paved roadway. In this case, the negligent conduct of the State and the County, as found by the jury, necessarily created or increased a foreseeable risk of harm through the intervention of another force, by failing to maintain a curve sign on the roadway, and by maintaining a dangerously unprotected wooden bridge. As the Federal District Court stated in Deeds v. U.S. (U.S.D.C. Mont. 1969), 306 F.Supp. 348, where the negligent conduct of an actor creates or his action increases the risk of particular harm and is a substantial factor in causing that harm, the fact that the harm was brought about through the intervention of another force does not relieve the actor of liability except where the harm is intentionally caused by the third person and is not within the scope of the risk created by the actor’s conduct. Court’s Instruction No. 22 improperly allowed the jury to determine that the driving of the vehicle by Kelly Keys was the sole proximate cause of the injuries received by her and her fellow passengers without giving consideration to the continuing nature of the negligence of the County and the State to and through the time of the accident. If the jury found that the curve sign was missing, or that the bridge was improperly protected, or both, it is idle to argue that direct injuries resulting from such conduct is not foreseeable, or “not reasonably to be expected to happen in a natural sequence of events.” Otherwise there would be no necessity for curve signs or for bridge protection.

For that reason alone, we must reverse this case. There are however other factors in the instructions that deserve comment.

Since 1975, it has been the law in this State that contributory negligence does not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or injury to person or property if the contributory negligence was not greater than the negligence of the person against whom recovery is sought. In such case the damages are diminished in proportion to the amount of negligence attributable to the person recovering. Section 27-1-702, MCA.

Under that statute, it is the duty of the trial court, where there is evidence supporting the negligent acts of both the plaintiff and the defendant to instruct the jury on comparative negligence. This is because a party is entitled to instructions adaptable to his theory of the case, Meinecke v. Skaggs (1949), 123 Mont. 308, 213 P.2d 237, and “trial by jury” requires that all material issues of the fact be submitted to and determined by the jury. Dasinger v. Andersen (1959), 136 Mont. 277, 347 P.2d 747.

In like manner, the jury should have been instructed that the negligence of the driver in this case, if any, was not to be imputed to the passengers riding with her. Further, if sufficient evidence existed in the record to show that in the exercise of ordinary care the passengers should not have entered the automobile because of the intoxication of the driver, the jury should be so instructed as a separate issue of negligence involving the passengers. Once again, if the jury were to find the passengers negligent in that manner, such negligence would again have to be compared with the negligence of the defendant State and County.

RULINGS ON EVIDENCE

The bridge on which this accident occurred was constructed in 1957. Its width was no wider than the paved surface of the roadway approaching it. The sides of the bridgework were constructed of wood railings attached to wooden uprights. The railings ran the length of the bridge. The stringers or railings consisted of two 2x10s or 2x8s bolted together and to the uprights. Thus the butt end of the stringers presented an area of 4x8 inches or 4x10 inches. It was the butt end of one of these stringers that entered the Volkswagon automobile into and over the backseat of the Volkswagon. There were no guard rails guarding the approach to the bridge itself.

Sometime after the date of the accident on August 30, 1980, and while this litigation was going on, the State of Montana improved the approach to the bridge and the bridge itself by placing steel approach guard rails and a steel bridge railing across the bridge. The briefs of the defendants indicate the highway reconstruction took place in 1981, several months after the accident in question. It is also stated in the State’s briefs that the reconstruction was planned prior to the accident and not in response to the accident nor to any other accident. The State made a motion in limine that the Court hold inadmissible any evidence or offered evidence relating to the subsequent improvement project on the highway.

The Court granted the motion in limine, subject to the reservation that the evidence “might be admissible for impeachment purposes.”

Rule 407, Montana Rules of Evidence provides:

“When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event.

“This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if converted, or impeachment.”

The plaintiffs called David Johnson, a highway department engineer to the stand, who testified that prior to August 30, 1980, it would have been feasible to use “W”-beam steel rail for bridge railing and approach guardrail. Thereafter the following colloquy occurred:

“Q. But at the time of this accident on August 30, 1980, there was no such steel guardrail used either across the bridge or at the entrances to the bridge on the north or the south, isn’t that correct?

“A. At the time of the accident?

“Q. At the time of the Accident. A. Yes. Yes, that’s correct.

“Q. Prior to the accident, and I know you’ve reviewed a lot of records and a lot of plans, prior to the accident, did the State of Montana ever plan to change the guardrail and use approach guard rail of the steel type on this particular bridge on 359?”

An objection was made to the question, conference was held in the chambers of the Court, where plaintiffs’ counsel made an offer of proof that Johnson would answer the question in the affirmative and thereafter counsel would ask Johnson why the planned improvements had not been made prior to the accident, to which counsel did not know the answer.

The Court ruled that the question violated the motion in limine and overruled the offer of proof.

Johnson had already testified that improving the bridge and its approach by the use of W-beam steel railings was feasible, so the Court was correct in refusing the offer of proof and denying the question on that point. However, the question went to two other issues of fact important in this case, that is, notice of hazardous condition, if it was hazardous, and time and opportunity to act. The Court erred in denying the offer of proof and in not permitting the witness to answer the proposed question on those grounds. Such issues were an integral part of the plaintiffs’ cases they should have been allowed to pursue the knowledge and opportunity of the state with respect to the condition, if it was a hazardous condition, of the bridge. Again the Court committed reversible error.

There are further reasons that were not raised by counsel that the evidence should have been permitted. Plaintiffs’ expert engineer later testified that the use of W-beam steel railings was recommended in a document entitled “Highway Design and Operational Practices Related to Highway Safety, Second Edition, 1974.” promulgated by the American Society of State Highway Officials. Defense counsel on cross examination of Lee elicited that a part of the text of the document stated “it is basically intended that the concepts included, seasoned with proper judgment should be applied after date of circulation of the book to the design of all new construction which could be reevaluated and modified as necessary without unreasonable rework or design effort.”

On further cross-examination of Lee, the following occurred:

“Q. Do you know if that special report has been adopted by any organization for application on any highway system in the United States of America.”

“A. I sure do not.

“Q. Do you know specifically, I take it, from that you know you don’t know whether it’s been adopted for any highway system in the State of Montana?

“A That’s right.”

Thus the jury was given the impression, although it may not have been true in this case, that the state had not adopted the steel guardrail standards when in fact they may have been in the plans then existing for reworking Highway 359.

Other evidentiary issues raised by appellants have been reviewed by us and we find no error with respect to the same. It is unnecessary to burden this opinion with their recitation.

The judgment as to each plaintiff is reversed and remanded for a new trial or trials.

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

MR. JUSTICE GULBRANDSON,

concurring:

I concur in the result but not in all that is said in the majority opinion.

        FOOTNOTES

      1. Instructions relating to negligence issues given by the Court follow:
      INSTRUCTION NO. 2
      The instructions of the Court apply to all parties to the litigation unless otherwise specifically stated in the particular instruction.
      INSTRUCTION NO. 9
      You are instructed that the “proximate cause” of an injury is that cause which in the natural and continuous sequence, unbroken by any new and independent cause, produces the injury, and without which it would not have occurred. There may be more than one cause of an injury.
      INSTRUCTION NO. 10
      You are instructed that the State of Montana has a duty to construct and maintain its highways in a reasonable, safe condition for public use; however, this does not make the State an insurer of the highways.
      This duty of the State to construct and maintain roadways is subject to realistic, viable, and state-of-the-art limitations.
      INSTRUCTION NO. 11
      The State is not required to undertake reconstruction of a highway simply because standards for highway construction have changed since the highway was originally constructed.
      INSTRUCTION NO. 12
      You are instructed that the County of Madison had a duty to reasonably maintain Highway 359 on the date of the accident and before.
      INSTRUCTION NO. 13
      You are instructed that Madison County has no responsibility for the original design or construction of the road or bridge involved in this matter.
      INSTRUCTION NO. 14
      You are instructed that it is unlawful for any person who is under the influence of alcohol to drive or be in actual physical control of a motor vehicle upon the highways of this State.
      INSTRUCTION NO. 15

        Whether a person involved in an accident was then intoxicated or under the influence of intoxicating liquor is a question for the jury to consider in determining whether he was negligent. In making this determination, the question to be answered is whether as a result of drinking intoxicating liquor the individual’s physical or mental abilities were impaired so that he was unable to conduct himself with the caution of a sober person of ordinary prudence under the same or similar circumstances.
      One is not necessarily intoxicated or under the influence of intoxicating liquor as a result of taking one or more drinks. The circumstances and the effect must be considered.
      Intoxication is no excuse for failure to act as a reasonably prudent person would act. A person who is intoxicated or under the influence of intoxicating liquor is held to the same standard of care as a sober person.
      INSTRUCTION NO. 15B
      You are instructed that if a reasonably prudent person would not be able to detect a driver’s intoxicated state, then that person cannot be denied recovery against the Defendants on the basis of contributory negligence.
      INSTRUCTION NO. 16
      Every person operating or driving a vehicle of any character on a public highway of this state shall drive the same in a careful and prudent manner, and at a rate of speed no greater than is reasonable and proper under conditions existing at the point of operation, taking into account the amount and character of traffic, condition of brakes, weight of vehicle, grade and width of highway, weather conditions, including the condition of the roadway surface, and freedom from obstruction of the view ahead, so as not to unduly or unreasonably endanger the life, limb, property, or other rights of any person entitled to the use of the street or highway.
      INSTRUCTION NO. 17
      The driver of a motor vehicle is presumed to see that which he could see by looking. He will not be permitted to say that he did not see what he must have seen had he looked. The duty to keep a lookout includes a duty to see that which is in plain sight.
      INSTRUCTION NO. 18
      Violation of a statute enacted for the safety of the public is negligence. However a violation of law is of no consequence unless it was a proximate cause of the injuries sustained.
      INSTRUCTION NO. 19
      You are instructed that Montana law requires as follows: Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway.
      INSTRUCTION NO. 20
      Negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under circumstances similar to those shown by the evidence.
      It is the failure to use ordinary or reasonable care.
      Ordinary or reasonable care is that care which persons of ordinary prudence would use in order to avoid injury to themselves or others under circumstances similar to those shown by the evidence.
      INSTRUCTION NO. 21
      You are instructed that if you find that either of the defendants were negligent, before either of the defendants can be held liable for the plaintiffs’ damages, you must find that defendants’ negligence was a proximate cause of the plaintiffs’ injuries and resulting damages.
      INSTRUCTION NO. 22
      You are instructed that if you find negligence to have been present on the part of either or both Defendants, this test to determine if it was a proximate cause is to be applied: Did the wrongful act, in a natural continuous sequence of events, which might reasonably be expected to follow, produce the injury? If so, it is a concurring proximate cause of the accident even though the later negligent act of another cooperated to cause it.
      On the other hand, if the later act of negligence in causing the accident was of such a character as not reasonably to be expected to happen in the natural sequence of events, then such later act of negligence is the independent, intervening cause and therefore the sole proximate cause of the injury.
      INSTRUCTION NO. 22A
      The negligence of a deceased plaintiff is attributable to the parents of the deceased.
      INSTRUCTION NO. 23
      Although there are two defendants in this action, it does not follow that if one is liable, both are liable. Each defendant is entitled to a fair consideration of his own defenses and is not to be prejudiced by any finding that you may make against the other. Except as otherwise indicated, all instructions given to you govern the case as to each defendant.
      INSTRUCTION NO. 24
      You are instructed that you are not to consider any testimony with respect to seat belts in your deliberation of this of this case (sic). The failure to use seat belts is not a proper defense under the laws of the State of Montana.


author: MR. JUSTICE GULBRANDSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RONALD R. ENFINGER, Defendant and Appellant.
    No. 83-561.
    Submitted on Briefs June 20, 1986.
    Decided Aug. 5, 1986.
    722 P.2d 1171.

      Keith C. Rennie, Poison, for defendant and appellant.
    Mike Greely, Atty. Gen., James M. Scheier, Asst. Atty. Gen., Helena, John Frederick, Co. Atty., Poison, for plaintiff and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Ronald Enfinger appeals a Lake County jury verdict convicting him of mitigated deliberate homicide. He also appeals the Lake County District Court’s action in designating him as a dangerous offender. The two issues on appeal are: (1) whether the District Court erred in instructing the jury on self-defense, and (2) whether the District Court improperly designated appellant as a dangerous offender. We affirm the conviction and the sentence imposed on appellant.

In the early morning hours of March 23, 1983, the appellant stabbed his friend Glenn Howard to death in Poison, Montana. The appellant admitted that he stabbed the victim but asserted that he did so in self-defense. Appellant testified that he and the victim got into a fight and while they were fighting, the victim repeatedly attempted to grab a large knife from a knife rack to use on appellant. Appellant’s testimony showed that he voluntarily engaged in the fight with the victim. Appellant stated he believed the victim would attack him with the knife. Appellant seized the knife and struck out at the victim, killing him. Appellant was arrested and charged with deliberate homicide. Appellant filed a notice of intent to rely upon the defense of justifiable use of force. The Lake County District Court held appellant’s trial in July of 1983. On July 22, 1983 the jury acquitted appellant of deliberate homicide but convicted him of mitigated deliberate homicide.

On August 24, 1983 the District Court imposed the following sentences upon appellant: thirty years in prison for mitigated deliberate homicide, ten years in prison with five years suspended for committing the offense with a dangerous weapon, and forty years in prison with twenty-five years suspended as a persistent felony offender. The court ordered that the three sentences were to be served consecutively. The court then remanded appellant to the custody of the sheriff for delivery to state prison officials.

Later that same day the District Court brought appellant back into court for a further proceeding. The district judge stated that earlier he had failed to state his reasons for imposing the sentences upon appellant and that it was necessary for him to do so. Defense counsel objected to any further proceedings. The district judge gave his reasons for sentencing appellant as he did. At that point, the deputy county attorney stated that he was not sure whether the court had specifically found that appellant was a dangerous offender. The judge stated, “I believe I did. If I didn’t, I do so now. That was the reason for that one sentence.” Defense counsel again objected to the entire proceeding and appellant later filed this appeal.

The first issue is whether the District Court erred in its instructions to the jury on justifiable use of force, more commonly known as self-defense. The District Court gave the following instructions pertaining to the charges and to the justifiable use of force.

“INSTRUCTION NO. 11

“To sustain the charge of deliberate homicide, the State must prove beyond a reasonable doubt the following propositions:

“First, that Ronald Enfinger caused the death of Glenn Roy Howard with the knowledge that he was causing said death, or with the purpose of causing said death;

“Second, that the use of force by Ronald Enfinger was not justified.

“If you find from your consideration of all the evidence that either of these propositions has not been proved beyond a reasonable doubt, then you should find Ronald Enfinger not guilty.

“If you find from your consideration of all the evidence that both of these propositions has [sic] been proved beyond a reasonable doubt, then you should find Ronald Enfinger guilty.

“INSTRUCTION NO. 13

“To sustain the charge of mitigated deliberate homicide, the State must prove the following propositions:

“First, that Ronald Enfinger performed the acts that caused the death of Glenn Roy Howard with the knowledge that he was causing it, or with the purpose of causing said death; and

“Second, that Ronald Enfinger performed those acts under the influence of extreme mental or emotional stress for which there is a reasonable explanation or excuse.

“If you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

“If you find from your consideration of all the evidence that both these propositions have been proved beyond a reasonable doubt, then you should find the defendant guilty.

“INSTRUCTION NO. 17

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself against such other’s imminent use of unlawful force. He is justified in the use of force likely to cause death or serious bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or serious bodily harm to himself.

“INSTRUCTION NO. 18

“In order to justify the use of force likely to cause death or serious bodily harm (often called deadly force), it must appear to the Defendant that the danger was so urgent that, in order to save his own life, or to save himself from serious bodily harm, the use of such deadly force was absolutely necessary. And it must further appear that the deceased was the assailant. A bare fear of the commission of the offense, to prevent which the Defendant used a deadly weapon, is not sufficient to justify it; but the circumstances must be sufficient to excite the fears of a reasonable man, and the Defendant must have acted under the influence of such fears alone. It is not necessary, however, to justify the use of a deadly weapon that the danger be actual. It is enough to be an apparent danger; such an appearance as would induce a reasonable person to believe he was in danger of serious bodily harm. Upon such appearance a party may act with safety, nor will he be held accountable though it would afterward appear that the indications upon which he acted were wholly fallacious, and that he was in no actual peril. The rule in such case is this:

“ ‘What would a reasonable person — a person of ordinary caution, judgment and observation — in the position of the Defendant, seeing what he saw, knowing what he knew, suppose from this situation and these surroundings? If such reasonable person so placed would have been justified in believing himself in imminent danger, then the Defendant would be justified in believing himself in such peril and acting upon such appearances’ (Emphasis added.)

“INSTRUCTION NO. 20

“If the defendant voluntarily engaged in a fight with Glenn Howard or in some other manner, by his words or actions provoked the use of force against himself which apparently did not involve the use or [sic] deadly force, but then unexpectedly he is threatened with deadly force, he has a qualified right to protect himself by using deadly force. First, however, the defendant must have used any method which is reasonably available to him to avoid the use of deadly force including a “retreat to the wall.” (Emphasis added.)

Appellant complains that the District Court erred in failing to instruct the jury that if they found appellant’s use of force justified, they should acquit appellant of mitigated deliberate homicide and negligent homicide. The court did instruct the jury that they must acquit appellant of deliberate homicide if they found his use of force was justified. The effect of this, alleges appellant, is that if the jury found the use of force was justified, they would acquit him of deliberate homicide but convict him of mitigated deliberate homicide or negligent homicide. Appellant, citing United States Ex Rel. Collins v. Blodgett (Mont. D.C. 1981), 513 F.Supp. 1056, charges that instructions on self-defense are insufficient where those instructions define when the use of force is justified but do not state that a finding of justifiable force requires acquittal.

The standard of review is that “[i]f the instructions, viewed as a whole, fully and fairly present the law to the jury, the jury has been properly instructed.” State v. McHugh (Mont. 1985), [215 Mont. 296,] 697 P.2d 466, 471, 42 St.Rep. 371, 376. “The instructions must be viewed as a whole to determine whether the defendant was limited in fairly presenting his theory.” State v. Short (Mont. 1985), [217 Mont. 62,] 702 P.2d 979, 984, 42 St.Rep. 1026, 1031. Moreover, “[t]he effect of a jury instruction is determined by the way in which a reasonable juror could have interpreted it, not by the state court’s interpretation of its legal import.” State v. Lucero (Mont. 1984), [214 Mont. 334,] 693 P.2d 511, 516, 41 St.Rep. 2509, 2515.

In reviewing the instructions from this case, we note that instruction No. 11 (quoted above) was an erroneous statement of the law because it “includes the absence of justifiable use of force as an element of the crime of deliberate homicide; . . State v. Graves (Mont. 1981), 622 P.2d 203, 210, 38 St.Rep. 9, 16. However, this erroneous instruction is not an issue on appeal because: (1) appellant did not object to it, (2) appellant offered an almost identical instruction, and (3) it benefited appellant’s case in any event. See Graves, 622 P.2d at 211.

The instructions did not instruct the jury to acquit appellant of mitigated deliberate homicide and negligent homicide if they found that he acted in self-defense. However, instruction No. 17, supra, stated that under certain circumstances appellant would be justified in his use of force. Instruction No. 18, supra, in essence stated that, in the face of actual or apparent danger of serious bodily harm, a person could use a deadly weapon “with safety” and he would not “be held accountable.” That instruction also stated that appellant could be “justified in believing himself in such peril and acting upon such appearances.” Finally, instruction No. 20 stated that if the appellant voluntarily engaged in a fight with the victim (which the undisputed evidence showed he did), he would still have a “qualified right to protect himself by using deadly force” if other prerequisites were also met. We hold that these instructions, when viewed as a whole, fully and fairly instructed the jury that self-defense is a complete defense to criminal homicide. The instructions stated that, in the defined circumstances warranting self-defense, the appellant could act with safety, he would not be held accountable, he had a limited right to act, and the force would be justified. We find that a reasonable juror would interpret these instructions to mandate acquittal of the appellant on the charge of mitigated deliberate homicide, if his use of force was justified. Although the instructions are not ideal, we find that the jury was properly instructed and that it was not reversible error to fail to specifically instruct the jury to acquit the appellant upon a finding of justifiable use of force.

Appellant relies on United States ex rel. Collins v. Blodgett, supra, in arguing that the instructions on self-defense are insufficient. Defendant Collins appealed to the federal court after this Court, in State v. Collins (1978), 178 Mont. 36, 582 P.2d 1179, upheld his conviction and affirmed the instructions given in his case. In United States Ex Rel. Collins v. Blodgett, supra, the federal court overruled this Court and granted Collins a new trial, ruling that the instructions on self-defense were insufficient. The instructions given in Collins are similar to those given in the instant case in that: (1) they stated that a person was justified in the use of force under certain circumstances, (2) they stated that the jury must acquit defendant of deliberate homicide if his use of force was justified, (3) the instructions did not specifically state that the jury must acquit defendant of mitigated deliberate homicide if his use of force was justified. However, the instructions given in this case are much more complete than, and are therefore distinguishable from, the Collins instructions. Here, the instructions went on to say that if defendant’s use of force was justified he could “act with safety” and he would “not be held accountable.” The federal Collins case is, therefore, not controlling here.

The second issue is whether the District Court unconstitutionally subjected appellant to double jeopardy by designating him a dangerous offender after the court had already sentenced him in a previous proceeding to eighty years in prison with thirty suspended. As stated above, the District Court sentenced appellant for mitigated deliberate homicide, committing the offense with a weapon, and as a persistent felony offender. The court then remanded the appellant to the custody of the sheriff but, later that same day, caused appellant to return to court. In this later proceeding, the court designated appellant a dangerous offender. No judgment was filed until after the second sentencing hearing and that judgment states that appellant is designated a dangerous offender because appellant has a record of violence, demonstrated by his conviction in 1980 for a felony involving violence, and because this crime shows extreme violence.

The Fifth Amendment of the United States Constitution and Art. II, Sec. 25 of the Montana Constitution protect criminal defendants against double jeopardy; i.e., being twice put in “jeopardy” for the same offense. Appellant asserts his rights were violated by the second sentencing proceeding. We disagree.

The first sentence pronounced by the court, which omitted the dangerous offender designation, was not reduced to writing, signed by the judge, or filed with the court. Thus, that sentence was not a final judgment. “It is well established that an oral ruling by the trial court is not a final judgment, and that the trial court can change such ruling at any time before the entry of written judgment.” State v. Diaz (1983), 100 N.M. 524, 673 P.2d 501, 502. This Court has never explicitly adopted the Diaz rule but we implicitly stated the same rule in Wilkinson v. State (Mont. 1983), [205 Mont. 237,] 667 P.2d 413, 40 St.Rep. 1239. In Wilkinson we stated:

“[o]nce a valid sentence is imposed, the court lacks jurisdiction to vacate or modify it unless specifically authorized by statute.” (Citations omitted.)

“. . . there is no way for the judge to change his decision, after the filing of the judgment.” (Emphasis added.)

667 P.2d at 414. The oral sentence first pronounced by the lower court was not a final, valid judgment. Thus, that sentence did not subject appellant to a first “jeopardy.” There was no “former” jeopardy under the first oral sentence because it was not final. Therefore, there can be no double jeopardy. Petition of Williams (1965), 145 Mont. 45, 399 P.2d 732.

The practice in the federal courts seems to support our decision. See, United States v. DiFrancesco (1980), 449 U.S. 117, 134, 101 S.Ct. 426, 436, 66 L.Ed.2d 328, 344, where the Court cited:

“. . . the established practice in the federal courts that the sentencing judge may recall the defendant and increase his sentence, at least (and we venture no comment as to this limitation) so long as he has not yet begun to serve that sentence.” (Emphasis added.) (Citations omitted.)

We hold the District Court did not err in designating appellant a dangerous offender. Affirmed.

MR. CHIEF JUSTICE HASWELL, sitting for MR. CHIEF JUSTICE TURNAGE, and MR. JUSTICES SHEEHY, WEBER, HARRISON, MORRISON and HUNT concur.


author: MR. JUSTICE HARRISON MR. JUSTICE GULBRANDSON,

text:
    In re the MARRIAGE OF JEANNIE F. GOODMAN, Petitioner/Appellant and WILLIAM WOLF GOODMAN, JR., Respondent/Respondent.
    No. 85-626.
    Submitted on Briefs June 6, 1986.
    Decided Aug. 7, 1986.
    723 P.2d 219.

      Keller and German, Robert S. Keller, Kalispell, for petitioner/ appellant.
    Hash, Jellison, O’Brien and Bartlett, M. Dean Jellison, Kalispell, for respondent/respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from an amended judgment of the Eleventh Judicial District in and for Flathead County, Montana, which divided the marital estate, provided for child support, and denied maintenance. We affirm in part and reverse and remand in part.

Jeannie F. Goodman and William Wolf Goodman, Jr., were married in September 1969. The marriage was dissolved in August 1985. Four children were born to the Goodmans, ages thirteen, eleven, seven and five at the time of this appeal. Both Jeannie and William are healthy people in their late-thirties. Jeannie has not had outside employment during the marriage, and other than doing some weaving which she sells from time to time, has earned no income. She has three and one-half years of college credit toward a degree in English.

William earns $400 a month as a part-time teacher in the Kalispell Montessori School, with the expectation of becoming a full-time teacher earning about $1,000 a month. At the time of the marriage, however, he had inherited assets, including a trust account, valued at just over $700,000.

The couple bought Salmon Prairie Ranch in the Swan Valley shortly after the marriage and lived there until 1979. William engaged in ranching and had a log home construction enterprise. In 1979 the couple bought a home in Kalispell in order that the children could attend better schools. Expensive remodeling of this home was subsequently undertaken. William occupies this home and Jeannie lives in another home which William paid for and which payment is to be considered part of the property settlement.

At trial William projected his earnings at $30,000 a year. The court found Jeannie presently could earn $6,000 a year without further education. Jeannie testified it was her intention to pursue further education to become a speech pathologist which would produce an income of $12,000 to $16,000 a year rather than moving to a city where a degree in English could be marketed.

The total marital estate was determined to have a net worth of $1,057,640. The court allowed William to retain the value of his at-marriage net worth of $712,128 with an equal division of the remaining $343,862 with Jeannie. Jeannie would receive her share, $171,931, in a combination of property and cash. No maintenance was awarded.

The court found that an alternating, joint custody arrangement is in the best interests of the children. The children are to reside with William during the school year 1985-1986, with Jeannie during the summer months of 1986, with the residency alternating each succeeding year. Applying the Carlson formula, In re the Marriage of Carlson (Mont. 1984) 693 P.2d 496, 499-500, 41 St.Rep. 2419, 2423, the court ordered that William pay child support of $250 per month per child when the children reside with Jeannie and that Jeannie pay child support of $50 per month per child when the children reside with William.

Jeannie appeals, arguing the court erred in its distribution of the marital estate; in its determination she is capable of earning an annual income of $6,000 without further education, and is not in need of maintenance; and that application of the Carlson formula is error because she has insufficient income to meet her minimal needs.

We will reverse the District Court only if its findings are clearly erroneous, resulting in an abuse of discretion. Rule 52(a), M.R.Civ.P. The test of abuse of discretion is whether the trial court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice, [citing cases.] In Re the Marriage of Perry (Mont. 1985), [217 Mont. 162,] 704 P.2d 41, 43, 42 St.Rep. 1101, 1104.

In apportioning the marital estate, the District Court must follow the requirements of Sec. 40-4-202(1), MCA, and case law. Smith v. Smith (Mont. 1981), 622 P.2d 1022, 1024, 38 St.Rep. 146, 148; Tefft v. Tefft (Mont. 1981), 628 P.2d 1094, 1099, 38 St.Rep. 837, 844; Peterson v. Peterson (1981), 195 Mont. 157, 163, 636 P.2d 821, 824. Section 40-4-202 says in pertinent part:

“(1) In a proceeding for the dissolution of a marriage, . . . the court, . . . shall, . . .equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether the title thereto is in the name of the husband or wife or both. In making the apportionment the court shall consider the duration of the marriage the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties; custodial provisions; whether the apportionment is in lieu of or in addition to maintenance; and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution or dissipation of value of the respective estates and the contribution of a spouse as a homemaker or to the family unit. In dividing property acquired prior to the marriage; . . . the court shall consider those contributions of the other spouse to the marriage, including: (a) the nonmonetary contribution of a homemaker (b) the extent to which such contributions have facilitated the maintenance of this property; and (c) whether or not the property division serves as an alternative to maintenance arrangements.

It is agreed William brought more than $700,000 into the marriage. There is substantial credible evidence on the record which reflects Jeannie’s nonmonetary contribution to the marriage. Jeannie testified she milked cows, raised and canned vegetables, ground her own flour to make bread, and sewed many of the clothes the family wore. The marital estate was worth $1,057,640 at the time of the dissolution. We have held if the assets have not appreciated during the marriage, their value at its dissolution cannot be a product of contribution from the marital effort. In Re the Marriage of Balsam (1979), 180 Mont. 129, 134, 589 P.2d 652, 654; In Re the Marriage of Herron (1980), 186 Mont. 396, 403, 608 P.2d 97, 101. William’s assets have appreciated, indicating contribution.

At trial, it was agreed the assets owned by William at the start of the marriage totaled $712,128. They consisted of the following:

Memphis Residence $17,000

Furniture 4,500

Art 14,000

Stereo 3,000

Trust Funds (stocks) 648,899

Trust Funds (bonds) 9,500

Personally Held Securities 6,229

Cash 10,000

TOTAL $712,128

“In order to have a proper distribution of the marital property, we have stated the trial court must first determine the net worth of the parties at the time of the divorce [citing cases].” In Re the Marriage of Brown (1978), 179 Mont. 417, 423, 587 P.2d 361, 365.

The District Court determined the net estate at the time of the dissolution included the following:

Salmon Prairie Ranch $458,000.00

House at 738 Second Ave. E. 215,000.00

Home Furniture (two houses) 14,500.00

D.A. Davidson account 178,691.00

Four cars 16,400.00

Stereo 2,500.00

Art work 20,000.00

Two small land tracts 37,000.00

Accounts receivable 11,000.00

Log homes (Salmon Prairie) 16,000.00

Husband’s IRA 2,225.00

Wife’s jewelry 1,000.00

Wife’s loom 400.00

Wife’s guitar 800.00

Wife’s sofa 1,000.00

Wife’s knitting machine 100.00

Sailboat 3,000.00

House at 835 First Avenue E.

(equity) 30,000.00

Lake cabin (equity) 50,000.00

TOTAL $1,057,641.00

The District Court found the following constituted an equitable division of the assets of the net estate to arrive at the marital estate:

VALUE WIFE HUSBAND

Salmon Prairie Ranch $ 458,000 458,000

House-738 2nd Ave. E. 215,000 215,000

House furnit. (2 houses) 14,500 7,250 7,250

D.A. Davidson Account 178,690 178,690

Four cars 16,400 2,200 14,200

Stereo 2.500 2,500

Art Work 20,000 20,000

2 small land tracts 37.000 37,000

Accounts receivable 11.000 11,000

Log homes (Salmon Prairie) 16,000 16,000

Husband’s IRA 2.500 2,500

Wife’s jewelry 1,000 1,000

Wife’s loom 400 400

Wife’s guitar 800 800

Wife’s sofa 1,000 1,000

Wife’s knitting machine 100 100

Sailboat 3,000 3,000

House-835 1 Ave.E (equity) 30.000 30,000

Lake cabin (equity) 50.000 50,000

SUBTOTALS $ 1,057,640 $ 45,750 $ 1,011,890

Less Husband’s Separate Property (712,128) (712,128)

Less Wife’s Separate Property (1,650) (1,650)

TOTALS $ 343,862 $ 44,100 $ 299,762

TO EQUALIZE 171,931 171,981 299,762

(44,100) (171,931)

$127,831 $ 127,831

The property and assets of the parties are extensive and complex. We will not attempt to review every element of a complex property distribution . . . Our function is to examine whether there is substantial evidence to support the property distribution. In Re the Marriage of Williams (Mont. 1986), [220 Mont. 232,] 714 P.2d 548, 554, 43 St.Rep. 319, 327. We find there is substantial credible evidence to support the property division.

We conclude, however, there is not substantial credible evidence to support the lack of a maintenance award, or use of the Carlson formula to determine each party’s share of child support. The only evidence on the record Jeannie is capable of earning $6,000 per year is testimony by William to that fact. There is no evidence Jeannie has marketable skills to acquire appropriate employment. We have held that “appropriate employment” as used in Section 40-4-203 (l)(b), MCA, must be determined with relation to the standard of living achieved by the parties during the marriage. In Re the Marriage of Madson (1978), 180 Mont. 220, 590 P.2d 110. There are no findings the court considered appropriate employment possibilities or the standard of living achieved by the parties during the marriage.

Maintenance can be awarded only to parties lacking sufficient property to provide for their needs and are unable to provide for themselves through appropriate employment. Section 40-4-203(1), MCA. In Re the Marriage of Laster (1982), 197 Mont. 470, 477, 643 P.2d 597, 601; see also Herron, supra and In Re the Marriage of Bowman (Mont. 1981), 633 P.2d 1198, 38 St.Rep. 1515. We have determined that the term “sufficient property” as used in Section 40-4-203(l)(a), MCA, means income producing property, not income consuming property. Herron, supra, and Bowman, supra. Much of the property awarded to Jeannie is income consuming, and that which is not is insufficient to meet her needs.

District Court erred in applying the algebraic formula set out in Carlson, supra, to determine the respective contributions of each party to child support, because there is no evidence of Jeannie’s actual earning capability. Carlson says the “earning capacity of the parents must realistically reflect what the parents are capable of earning, using their actual earnings as a guideline.” 693 P.2d at 500, 41 St.Rep. 2423. Absent evidence of actual earning, the capability formula cannot be applied. This is not to suggest that either party is excused from providing child support consistent with the means to do so.

“Use of the [Carlson] formula rejects romantic notions of women being supported by their ex-husbands, or fathers refusing employment they don’t like. Married parents have no such luxury, and it should not be a luxury afforded divorced parents. 693 P.2d at 500, 41 St.Rep. at 2423.”

In this case the award of child support payments from William to Jeannie will continue as ordered by the District Court, but payments from Jeannie to William when the children are living with him will commence when she has found employment, at an amount to be determined by the District Court.

We remand this case to the District Court to determine the amount and duration of a maintenance award in accordance with the factors set forth in Section 40-4-203, MCA, and an appropriate level of child support to be paid to William by Jeannie when the children are living with him after she has obtained employment. On remand, the District Court, consistent with this opinion, should consider the sufficiency of the property award, the standard of living achieved during the marriage, and Jeannie’s appropriate employment possibilities with relation to that standard of living.

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

MR. JUSTICE GULBRANDSON,

concurring in part and dissenting in part:

I concur with that portion of the majority opinion affirming the property division, but I respectfully dissent to the remand for determination of a maintenance award in accordance with Sec 40-4-203, MCA, and to that portion of the opinion which modifies the ordered child support payment. I believe that the District Judge has complied with the provisions of Section 40-4-203, MCA, and prior decisions of this Court.

The majority opinion contains the statement that there is no evidence of wife’s actual earning capability and that, absent such evidence, the Carlson formula should not be applied.

In my view, the statements of the majority ignore the testimony of the wife that she had three and one-half years of college, six months of Montesorri training at London, England, and that she has sold her weavings in the past, and the testimony of the husband that wife is capable of earning at least a minimal wage in the amount of $300 per month. The wife made no effort to refute the testimony of husband that she could earn a minimal wage but testified that she would like to attend the University of Montana for three and one-half additional years before obtaining employment. The majority opinion quote from Carlson regarding “fathers refusing employment they don’t like,” should perhaps apply equally to mothers.

The District Court’s Findings of Fact contain the following:

“12. The wife testified that she needs maintenance in the amount of $535.00 per month in addition to child support. The Court determines that the wife is not in need of maintenance in addition to the property division hereinafter provided and, further, that the husband is not capable of paying any maintenance after he meets his own needs and the child support obligation. The wife is a healthy, employable woman in her mid-thirties. The house where she resides has been set aside to her in the division of the marital assets and the parties have represented to the Court that the mortgage due on the home has now been paid. The wife has received sufficient marital assets to assist in her readjustment following this dissolution and through prudent investment a portion of these assets will be income producing.

“13. The wife is able to provide for her own needs and will receive an adequate amount from the husband to meet the needs of the children when they reside primarily with her. Three of the four children are school age. The child support the wife receives is adequate to provide day care, babysitting or pre-school, among other things. The wife is capable of working outside the home.”

The District Court’s Conclusions of Law contain the following:

“5. No separate maintenance should be awarded to the wife.

“7. That the property division hereinbefore set forth in the Findings of Fact should be made in lieu of maintenance for the wife.” The majority opinion is silent regarding the District Court’s specific finding that “the husband is not capable of paying any maintenance after he meets his own needs and the child support obligation.” Husband’s testimony that, after paying $1000 per month child support and paying for his own needs, he will be unable to make any maintenance payments without drawing against his capital assets clearly supports the Court’s finding.

I cannot concur in this Court’s remand for a maintenance award which obviously will have the effect of redetermining the property division which has now been approved by the majority and which was clearly awarded in lieu of maintenance.

I would affirm.