text:
    NORTHWEST TRUCK & TRAILER SALES, INC., a Montana corporation, Plaintiff and Respondent, v. ROGER W. DVORAK and PATRICIA J. DVORAK, Defendants and Appellants.
    No. 94-093.
    Submitted on Briefs November 23, 1994.
    Decided December 29, 1994.
    51 St.Rep. 1530.
    269 Mont. 150.
    887 P.2d 260.

      For Appellants: Jack E. Sands, Billings.
    For Respondent: James P. Murphy and Stewart R. Kirkpatrick, Murphy & Kirkpatrick, Billings.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

In this action, Northwest Truck & Trailer Sales, Inc. (Northwest), sought repossession of and the balance owing on a truck it sold to Roger W. and Patricia J. Dvorak. The Dvoraks counterclaimed, alleging fraud and breach of contract. The District Court for the Thirteenth Judicial District, Yellowstone County, entered summary judgment for Northwest on the Dvoraks’ counterclaim of fraud. At trial on Northwest’s claims and the remaining counterclaims, a jury found that Northwest did not breach its contract with the Dvoraks. The court directed a verdict awarding Northwest a deficiency judgment of $30,211.47, plus costs. The Dvoraks appeal. We affirm.

The issues are:

1. Did the District Court err in granting Northwest’s motion for summary judgment on the counterclaim of fraud?

2. Did the court err in refusing to allow the Dvoraks’ proposed evidence that the truck was not a new truck?

3. Did the court err in directing a verdict against the Dvoraks for $30,211.47?

4. Did the court err in refusing the Dvoraks’ proposed jury instructions?

5. Do the jury’s answers on the special verdict form require a reversal of their verdict because they are internally inconsistent?

In Jrme 1987, the Dvoraks bought a 1987 Peterbilt tractor truck from Northwest to use in their two-person trucking business. The $85,600 sale price of the truck was financed over a sixty-month term. In January 1990, Northwest filed a complaint in the District Court alleging that the Dvoraks had failed to make the required monthly payments on the truck. It asked to be restored to immediate possession of the vehicle and for damages, costs, and attorney fees.

The Dvoraks counterclaimed, alleging that Northwest falsely represented to them that the truck was new when they bought it. They provided affidavits in which their son-in-law and four other persons stated they had examined the truck and found signs that it was not in its original condition. The Dvoraks asserted that Northwest’s misrepresentation constituted fraud and breach of contract. They asked for compensatory and punitive damages and for their attorney fees and costs.

In May 1990, following a hearing, the District Court ordered that the truck be delivered to Northwest. Roger Dvorak admitted to being at least eight payments in arrears at that time. Northwest resold the truck in September of 1990 for $58,000. The truck’s odometer showed some 326,000 miles at that time.

In May 1991, the District Court granted partial summary judgment for Northwest on the Dvoraks’ counterclaim alleging fraud and requesting punitive damages. The court ruled that the Dvoraks had failed to establish material issues of fact concerning necessary elements of their fraud claim.

The case proceeded to trial on Northwest’s claim for a deficiency judgment and on the Dvoraks’ counterclaims that Northwest breached the implied covenant of good faith and fair dealing and otherwise breached the contract. In a special verdict, the jury found that the written contract between the parties had been altered by an oral agreement, but that Northwest had not breached the modified contract or breached the implied covenant of good faith and fair dealing therein. The jury further found that Northwest had breached the implied covenant in the original written contract, but that there were no damages from that breach. The court directed a verdict against the Dvoraks for the $30,211.47 deficiency proved by Northwest between the amount owing on the contract and the resale price of the truck. The Dvoraks appeal.

This Court has previously ruled that the Dvoraks’notice of appeal in this matter was timely filed. See Northwest Truck & Trailer Sales, Inc. v. Dvorak (1994), 265 Mont. 327, 877 P.2d 31.

Issue 1

Did the District Court err in granting Northwest’s motion for summary judgment on the counterclaim of fraud?

A motion for summary judgment is properly granted if the record demonstrates no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. Aparty opposing a motion for summary judgment may not rest upon the mere allegations or denials of the pleadings, but must set forth specific facts showing there is a genuine issue for trial. Rule 56(e), M.R.Civ.P. This Court reviews a ruling on a motion for summary judgment under the same standard as that used by the district court in its ruling on the motion. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214.

The nine elements of fraud are:

1. A representation;
2. Falsity of the representation;
3. Materiality of the representation;
4. The speaker’s knowledge of the falsity of the representation or ignorance of its truth;
5. The speaker’s intent that the representation shall be relied upon;
6. The hearer’s ignorance of the falsity of the representation;
7. The hearer’s reliance on the representation;
8. The hearer’s right to rely upon the representation;
9. Consequent and proximate injury caused by the reliance on the representation.

Wiberg v. 17 Bar, Inc. (1990), 241 Mont. 490, 496, 788 P.2d 292, 295. The District Court ruled that the Dvoraks failed to establish elements 2, 5, 6, and 9.

The Dvoraks claim that contrary to the District Court’s ruling, they produced evidence creating genuine issues of material fact concerning whether the truck was used and rebuilt before they bought it. They claimed damages because a rebuilt truck is worth less than a new one.

Attached to the Dvoraks’ brief in opposition to Northwest’s motion for claim and delivery were affidavits signed by the Dvoraks’ son-in-law and four other individuals. The affidavits were identical and were all dated April 20, 1990. Attached to each affidavit was a list of thirty-two observed defects in the Dvoraks’ truck. Each affidavit stated:

From my personal observations noted on Exhibit 1, it is my opinion that the truck either is not a factory-built new truck, or has had major components replaced and had repainting done to conceal the work done on the truck.

The affidavits were dated almost three years after the Dvoraks purchased the truck. At that time, the Dvoraks had driven the truck over 300,000 miles. The affidavits do not state when the observations about the truck were made. They state no opinion as to who created the alleged defects in the truck or when they were created. Moreover, the affidavits do not demonstrate that Northwest knew or should have known of the claimed defects in the truck.

The Dvoraks essentially argue that “because we did not tamper with the truck, Northwest must have.” However, this general assertion does not satisfy the Dvoraks’ obligation to prove their claim of fraud with particularity. See Rule 9(b), M.R.Civ.R We conclude that the District Court did not err in ruling that the Dvoraks failed to establish element 2 of their claim of fraud.

The District Court observed as to the sixth element of the fraud claim that, within a few days after he bought the truck, Roger Dvorak had it inspected by a qualified person engaged in the truck repair business. That person stated by deposition that he did not note the defects listed in the above-mentioned affidavits.

As to the ninth element of fraud, damages, Northwest cited Roger Dvorak’s deposition testimony that the truck ran okay and he had been satisfied with its condition. The Dvoraks, in rebuttal, maintained “it is common knowledge that trucks which, have been wrecked and rebuilt are worth far less than those which have not.” However, they offered no specific proof of their damages to support this allegation. An April 29,1991 affidavit of the Dvoraks’ son-in-law, to which they refer in their briefs on appeal, does not appear in the record nor is it listed on the court’s docket. We conclude that the court did not err in ruling that the Dvoraks failed to present a genuine issue of material fact as to the ninth element of their claim of fraud.

We hold that the District Court did not err in granting Northwest summary judgment on the counterclaim of fraud.

Issue 2

Did the court err in refusing to allow the Dvoraks’ proposed evidence that the truck was not a new truck?

In its memorandum accompanying the order granting partial summary judgment for Northwest, the District Court stated:

In addition, there being no substantial evidence to establish that the plaintiff did not sell the defendants a new truck, no evidence on this issue of the alleged breach of the contract by the plaintiff will be permitted at the trial.

The Dvoraks argue that this was error because it precluded a contract claim for the difference between the contract price and the value of a used/wrecked truck. The Dvoraks maintain that the ruling “had; additional far-reaching consequences for the remaining portion of the Dvoraks’ counterclaims which eventually went to the jury — i.e., breach of contract, breach of the covenant of good faith and fair dealing, and odometer tampering.”

Under any counterclaim based on the alleged used condition of the truck, the Dvoraks would be obliged to prove damages therefrom. As discussed above in regard to the motion for summary judgment, they failed to provide evidence of any damages resulting from their claim that the truck was not new when they bought it. Moreover, Northwest produced evidence at trial that the resale price of the truck was above the average price for a truck with that many miles on it.

The Dvoraks were allowed to try to the jury their counterclaims concerning warranties, modification to and breach of contract, and odometer tampering. We hold that the District Court did not err in refusing to allow evidence at trial that the truck was not new when the Dvoraks bought it.

Issue 3

Did the court err in directing a verdict against the Dvoraks for $30,211.47?

The Dvoraks contend no deficiency judgment should have been granted because the sale was not done in a commercially reasonable manner for the followingreasons: (1) the repossession affidavit signed by the bank officer was false; and (2) Northwest improperly refused to credit the Dvoraks with credit life and credit disability insurance refunds which Northwest got back when it foreclosed and cancelled the Dvoraks’ insurance. The Dvoraks maintain that commercial reasonableness is a question of fact for the jury.

The Dvoraks have not demonstrated any way in which the bank’s affidavit changed the amount of money received from the sale or credited to the Dvoraks. Also, the evidence showed that the Dvoraks’ maintenance account on the truck was credited with the insurance refund.

During the presentation of Northwest’s deficiency case at trial, the Dvoraks stipulated that they received notice of the sale and that Northwest obtained a commercially reasonable price for its resale of the truck. The Dvoraks did not raise an issue at trial as to the time, place, or advertising of the sale of their truck. This Court generally will not review issues raised for the first time on appeal. Weinberg v. Farmers State Bank of Worden (1988), 231 Mont. 10, 19, 752 P.2d 719, 724. We therefore affirm the District Court’s directed verdict against the Dvoraks for $30,211.47.

Issue 4

Did the court err in refusing the Dvoraks’ proposed jury instructions?

The standard of review for a trial court’s refusal to give jury instructions is whether the trial court abused its discretion. Hislop v. Cady (1993), 261 Mont. 243, 247, 862 P.2d 388, 390. A court may refuse instructions when the facts proven at trial do not show a basis for the instructions requested. Bushnell v. Cook (1986), 221 Mont. 296, 300, 718 P.2d 665, 668.

Two sets of proposed instructions are at issue. One set would have instructed the jury on the Uniform Commercial Code (UCC) measure of damages. The other set would have instructed on the Dvoraks’ claims that Northwest had improperly sold insurance in violation of Montana’s laws.

The rights of and remedies for a buyer claiming breach in a sale of goods under the UCC are listed at §§ 30-2-601 and -711, MCA. In this case, the evidence showed that the Dvoraks did not reject the truck upon delivery, as described under § 30-2-602, MCA. Absent rejection of nonconforming goods, the UCC requires notice to the seller within a reasonable time. See § 30-2-607, MCA. The evidence also showed that the Dvoraks failed to notify Northwest of the alleged nonconformity of the truck until after Northwest filed suit to recover the truck, when they filed their counterclaims. It does not appear therefore that the Dvoraks were entitled to any damages under the UCC.

The second set of offered instructions concerned the unlawful sale of insurance by Northwest. This related to a policy of insurance on Roger Dvorak’s life which the Dvoraks purchased when they entered the financing agreement. The Dvoraks failed to introduce any evidence at trial to show who sold the insurance or who received the commissions, or that Northwest received any commission.

Because the facts proven at trial did not show a basis for the above jury instructions offered by the Dvoraks, we hold that the District Court did not abuse its discretion in refusing them.

Issue 5

Do the jury’s answers on the special verdict form require a reversal of their verdict because they are internally inconsistent?

The jury answered “no” to question no. 2 on the special verdict form, whether Northwest breached the modified contract or breached the covenant of good faith and fair dealing implied by law in the modified contract. In question no. 4, the jury answered “yes” to the question of whether Northwest breached the implied covenant of good faith and fair dealing in the written contract between Northwest and the Dvoraks. The Dvoraks maintain that this is inconsistent.

At trial, the Dvoraks introduced evidence that the written financing agreement was altered to allow them to make late payment. The jury accepted this argument, because it found in question no. 1 that the contract was modified. In answer to question no. 2, however, the jury found that the modified contract was not breached.

The Dvoraks also introduced evidence at trial that Northwest breached, in other ways, the covenant of good faith and fair dealing implied in the written contract. The jury found that this covenant was breached, but found no damages from this breach.

The Dvoraks’ counterclaims included several separate theories. We hold that the Dvoraks have shown no inconsistency in the jury’s verdict which warrants reversal.

We affirm the judgment of the District Court.

JUSTICES HARRISON, GRAY, NELSON and WEBER concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority’s conclusion that the District Court correctly dismissed the Dvoraks’ counterclaim for punitive damages based on fraud.

Pursuant to Rule 56, M.R.Civ.P., summary judgment is only appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. In deciding whether there is an issue of fact, the party opposed to summary judgment is entitled to all reasonable inferences which may be drawn from the offered proof. Brown v. Merrill Lynch (1982), 197 Mont. 1, 9, 640 P.2d 453, 457; Reaves v. Reinbold (1980), 189 Mont. 284, 287, 615 P.2d 896, 898. Any doubt is to be resolved in favor of the party opposing summary judgment. Reagan v. Union Oil Co. (1984), 208 Mont. 1, 7, 675 P.2d 953, 956.

I conclude that the affidavits attached to the Dvoraks’ memorandum in opposition to Northwest’s motion for summary judgment were sufficient to raise factual issues regarding the Dvoraks’ claim that they were induced to purchase a truck from Northwest by fraudulent representations.

For example, Robert G. Wittman operates a service shop where trucks are rebuilt and serviced, and where body work is performed. He inspected the truck purchased by the Dvoraks and swore in his affidavit that the truck had, at some time, sustained damage to its body, the engine had been in another truck, and numerous parts were not installed at the factory. The affiant also stated that the truck had been painted somewhere other than at the factory and that the new paint did not match the factory paint. In fact, there was evidence that the entire cab had been removed and substantial work done on the truck.

The Dvoraks testified that none of the work described in Wittman’s affidavit was done while they owned and operated the truck, and that no one else had possession of the truck for a sufficient period of time within which to perform such extensive work after its purchase.

Northwest represented to Dvoraks that the truck it sold them was new. The affidavits offered evidence that it was not new. Obviously, the dealer’s representation was material to the Dvoraks’ decision to purchase the truck.

Knowledge of the speaker’s falsity can never be proven directly unless the speaker admits that he lied. Therefore, to prove fraud, knowledge must normally be inferred based on all of the circumstances. In this case, the truck in question was delivered to Northwest in December 1986 and was in its possession until sold to Dvoraks on June 1, 1987. The truck was presumably inspected by Northwest after delivery from the factory and prior to resale. If the conditions which were noted by those persons who filed affidavits in support of Dvoraks’ claim were present prior to sale, it can be inferred that they were equally apparent to the qualified service people working for Northwest.

Likewise, it can be inferred that when a purchaser comes into a new car or truck dealership, the dealer intends that person to rely on his or her representations that the vehicle being sold is new, as opposed to used. Finally, it can be inferred that when a purchaser pays the price appropriate for a new vehicle, as opposed to a discounted price for a used or damaged vehicle, that purchaser relied on representations by the dealer that the vehicle was new.

It was not necessary in order for the Dvoraks to prevail on their claim for fraud that they prove appreciable out-of-pocket loss. Section 27-1-204, MCA, provides that “[w]hen breach of duty has caused no appreciable detriment to the party affected, he may yet recover nominal damages.” Furthermore, § 27-1-221, MCA, provides that “reasonable punitive damages may be awarded when the defendant has been found guilty of actual fraud ....”

In Lauman v. Lee (1981), 192 Mont. 84, 89, 626 P.2d 830, 833, we held that nominal damage may serve as the basis for a punitive damage award, even where the amount of actual damage is elusive. Certainly, in this case, if the Dvoraks purchased a used and repaired truck for the price of a new truck, they received less than they bargained for at the time of sale, even though over the long term, their use of the truck was not adversely affected. As pointed out in Lauman, where some actual damage can be presumed, based on the breach of a legal duty, punitive damages may be awarded even where the finder of fact assigns no value to the actual damages sustained.

For these reasons, I would reverse the District Court’s dismissal of the Dvoraks’ claim based on fraud, and remand this case to the District Court for retrial of all issues, including the claims of fraud and breach of contract. Based on this conclusion, I would not address the remaining issues discussed in the majority opinion.

JUSTICE HUNT joins in the foregoing dissenting opinion.


source: Caselaw Access Project

author: JUSTICE HARRISON JUSTICE NELSON

license: Public Domain

text:
    IN RE THE MARRIAGE OF DIANE STROOP GINGERICH, Petitioner and Respondent, and HUGH D. STROOP, Respondent and Appellant.
    No. 93-647.
    Submitted on Briefs December 1, 1994.
    Decided December 20, 1994.
    51 St.Rep. 1417.
    269 Mont. 161.
    887 P.2d 714.

      For Appellant: Tonja D. Schaff; Richard Dzivi, P.C., Great Falls.
    For Respondent: Daniel L. Falcon; Matteucci, Falcon, Squires & Lester, Great Falls.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Hugh D. Stroop (Husband) appeals the September 24, 1993 order of the District Court of the Eighth Judicial District, Cascade County, modifying his and Diane Stroop Gingerich’s (Wife) 1982 decree of dissolution. We affirm in part, reverse in part, and remand for further consideration consistent with this opinion.

Six issues are presented:

Did the District Court err in modifying the 1982 Decree of Dissolution based on its conclusion that there were changes in circumstance so substantial and continuing as to render the Decree unconscionable?

Did the District Court err in adopting verbatim Wife’s findings of fact, conclusions of law, and order modifying decree?

Did the District Court err in increasing the length of time Husband must pay child support?

Did the District Court err in computing the proper child support that Husband is required to pay?

Did the District Court err in awarding interest on back due child support?

6. Did the District Court err in awarding Wife attorney's fees?

A decree dissolving the marriage of Husband and Wife was entered on May 20,1982 with issues pertaining to custody, property, and child support to be decided and entered later. The parties entered into a custody, support and property settlement agreement (Agreement) dated November 4,1982, which provided that child support payments were to be made the first of each month to the Clerk of the District Court. The Agreement was approved of and incorporated by reference in a decree of dissolution (1982 Decree) entered on November 29,1982.

The 1982 Decree provided Husband and Wife with joint legal custody, with Wife to have physical custody of the couple’s three children. Husband was given visitation rights, and was ordered to pay $133.33 per child per month in child support (totaling $400 per month) until each child reached majority or was earlier emancipated.

Since Husband’s employment as a heavy equipment operator was seasonal in nature, he agreed to set aside funds when he was working to enable him to continue to meet his child support obligation when he was not working. By the end of 1989, however, Husband owed over $6,000 in past-due child support payments. Husband alleges he did not dispute or attempt to avoid his child support payment obligation, but claims he was not able to pay because of his lack of employment. Husband has since met all his delinquent child support obligations.

Dawn Cherie graduated from high school in May 1990, and immediately moved away from Wife’s home, resulting in her emancipation. Stacia Noel reached majority on January 3,1993, approximately five months before she graduated from high school. Husband stopped paying child support for her in January 1993. Jamie Katherine reached majority on November 1,1994, approximately seven months before she graduates from high school.

Wife brought an action against Husband seeking to modify the 1982 Decree. She sought to increase the length of time and amount of child support payments, payment of and interest on past-due payments, and for attorney’s fees. After two hearings on the matter, the District Court adopted verbatim Wife’s findings of fact and conclusions of law. Husband moved the District Court to alter or amend the adopted findings on the grounds that the findings were clearly erroneous. The District Court did not act on Husband’s motion and Husband, concluding that the motion was denied pursuant to Rule 59(g), M.R.Civ.R, appeals to this Court.

I

Did the District Court err in modifying the 1982 Decree of Dissolution based on its conclusion that there were changes in circumstances so substantial and continuing as to render the Decree unconscionable?

In Gall v. Gall (1980), 187 Mont. 17, 20, 608 P.2d 496, 498, this Court concluded that the essential requirement for modifying child support is that it would be unconscionable to continue the current child support payments. Wife claims that the record shows a change of circumstances so substantial and continuing as to render the 1982 Decree unconscionable. We disagree.

In support of the District Court’s order, Wife cites In re Marriage of Johnson (1983), 205 Mont. 259, 667 P.2d 438, for the contention that this Court will reverse the district court only if that court’s findings are clearly erroneous in light of the evidence in the record. In Marriage of Johnson, the wife, who sought child support modification, testified about her changed income and that inflation had increased the cost of living, compared her monthly expenses to her monthly income, and testified that expenses for raising their son had increased. Marriage of Johnson, 667 P.2d at 439. Additionally, the husband had received annual cost of living increases in his employment. Marriage of Johnson, 667 P.2d at 439. The husband testified about his changing income and compared his income to his expenses. That District Court “relied upon the increased age and needs of the parties’ son and the effect that inflation had upon [the] wife’s ability to buy food, clothing, and other items necessary for raising the child.” Marriage of Johnson, 667 P.2d at 440. We concluded that those factors had properly been relied on to uphold an increase in child support. Furthermore, the District Court considered that the wife’s expenses exceeded her income. Marriage of Johnson, 667 P.2d at 440.

Marriage of Johnson is distinguishable from the instant case because, here, Wife did not present specific evidence about changed economic circumstances or her actual increased need. Wife testified that the cost of raising the three children had increased but she presented no substantive evidence to prove this point or demonstrate the degree of increase. Wife presented only general testimony regarding her increased cost claims. To demonstrate that she adduced sufficient evidence at trial to support the District Court’s findings, Wife relies on the District Court’s order modifying the decree. We fail to find adequate support in the record for the District Court’s findings for this issue. Wife did not present sufficient evidence of a change in circumstances. Wife testified that there was a change but did not demonstrate the nature or extent of that change. Unlike the court in Marriage of Johnson, the record does not “demonstrate that the changed circumstances of the parties are so substantial and continuing as to make the terms of the original decree unconscionable.” Marriage of Johnson, 667 P.2d at 440.

Wife’s counsel further elicited at the hearing that Wife’s proposed child support modifications, which the District Court adopted verbatim, were based on the parties’ incomes. These calculations therefore gave no indication of the increase in their cost of living. The record does not contain sufficient substantive evidence of an increase or even a degree of increase of cost of living. Wife therefore failed to establish an evidentiary basis demonstrating that it would be unconscionable to continue the child support payments established by the 1982 Decree. The change in the parties’ incomes in this case is not a sufficient basis to warrant modification of the Decree.

We conclude that Wife did not meet her burden of proof that rising costs or other factors were a sufficient change of circumstances to justify modification of child support under § 40-4-208, MCA. Wife’s evidence is not sufficient to support a conclusion that there was a change in circumstances so substantial as to render the 1982 Decree unconscionable. Wife heavily relies on the standard of review we apply to decree modification cases, citing In re Marriage of Barnard (1994), 264 Mont. 103, 870 P.2d 91. In Marriage of Barnard, we confirmed the importance of district court discretion and that we would not overturn a district court absent an abuse of discretion. Marriage of Barnard, 870 P.2d at 93. In this case the record clearly demonstrates that the District Court abused its discretion by concluding that evidence presented supported the unconscionability of the 1982 Decree. The record does not support the District Court’s conclusion.

Our holding for this issue makes it unnecessary to address issue two.

Ill

Did the District Court err in increasing the length of time Husband must pay child support?

It is well established that “unless the parties agree in writing or the dissolution decree expressly provides for termination of child support at a specified age or time, a parent is not obligated to support an 18 year old or otherwise emancipated child.” Torma v. Torma (1982), 198 Mont. 161, 164, 645 P.2d 395, 397; citing Chrestenson v. Chrestenson (1979), 180 Mont. 96, 99, 589 P.2d 148, 149-50. The 1991 Legislature modified § 40-4-208(5), MCA, but did not alter the substantive provision that parties may establish a specific termination date. The statute provides that a termination date may be “extended or knowingly waived by written agreement or by an express provision of the decree.” Section 40-4-208(5), MCA. In the instant case, the 1982 Decree provided that child support payments would continue for the child until said child attained the age of eighteen years or was earlier emancipated. The District Court modified the 1982 Decree extending Husband’s child support payments during the period Jamie is not emancipated, is enrolled in high school, and is not yet 19 years old. The District Court also extended child support payments for Stacia to include the months between her attaining majority and graduating from high school.

Section 40-4-208(5), MCA, case law, and the parties’ express agreement all support the conclusion that Husband must pay child support only until said child reaches age eighteen or is earlier emancipated. The District Court abused its discretion by modifying the 1982 Decree. There may be situations where the time for child support payments should be extended, however the facts of this case do not sustain that conclusion. Because of our holding in this issue, we need not consider issue four.

V

Did the District Court err in awarding interest on back due child support?

Husband was delinquent in his child support payments between 1986 and 1993; at one point he was over $6,000 in arrears. The District Court ordered that Husband pay interest on past due child support, based on Wife’s calculations. Husband argues that he was unable to earn sufficient income to pay his full child support, that he did not attempt to reduce the amount of his child support payments, that Wife knew his work was seasonal, and that he made a good faith effort to pay the arrearage before court intervention. Husband concludes that it would be inequitable to award interest to Wife. We disagree.

We have consistently held that, absent contrary provisions in a dissolution decree, interest on child support arrearage is automatically collectable by judgment creditor spouse. In re Marriage of Callahan (1988), 233 Mont. 465, 471-72, 762 P.2d 205, 209; In re Marriage of Gibson (1983), 206 Mont. 460, 466, 671 P.2d 629, 632; Torma, 645 P.2d at 398; Fitzgerald v. Fitzgerald (1980), 190 Mont. 66, 71, 618 P.2d 867, 870.

Here, both the Agreement and 1982 Decree were silent on the issue of interest owing. Applying established law to the instant case, we hold that Husband owes interest to Wife for late child support payments. The amount of interest due is, however, not clear from the record. Wife’s proposed calculations appear to be in error because they were based on the date the Clerk of Court mailed payment to Wife rather than the date Husband made payment to the Clerk of Court. Furthermore, additional calculations were addressed at the hearings by both parties but were not entered into evidence. Our award of interest payments is for late payments based on the Agreement and 1982 Decree only and not for any modified payments, the award of which we rejected above. Therefore, consistent with this opinion, the District Court is instructed to recalculate the interest payments.

This holding does not mean that interest payments are available in every situation where child support payments are late. While interest payments are automatically collectable, the district court must have some latitude to calculate and award payments. While we intend that child support payments should be timely, and interest charged when payments become late, we do not intend that this should be an avenue for frivolous or vindictive claims.

VI

Did the District Court err in awarding attorney’s fees?

Section 40-4-110, MCA, provides that after considering the financial resources of both parties the district court may order a party to pay reasonable attorney’s fees for maintaining and defending specified dissolution, custody, and child support proceedings. The standard of review of an order granting or denying attorney’s fees is whether the district court abused its discretion. Marriage of Barnard, 870 P.2d at 95. We will not disturb a district court’s findings if there is substantial evidence supporting those'findings. Marriage of Barnard, 870 P.2d at 95. We have held that such an award “must be based on necessity, must be reasonable, and must be based on competent evidence.” In re Marriage of Zander (1993), 262 Mont. 215, 227, 864 P.2d 1225, 1233; citing Marriage of Barnard, 870 P.2d at 95. The party requesting attorney's fees has the burden of demonstrating the necessity of the award. In re Marriage of Durbin (1992), 251 Mont. 51, 62, 823 P.2d 243, 250.

Wife failed to show that attorney’s fees are necessary or that the proposed fees are reasonable. Both parties expounded on the burden created by the other party’s litigation but neither suggested the necessity or reasonableness of awarding fees. The record does not contain substantial evidence to support the District Court’s findings. The record from this case does not support an award of attorney’s fees. Thus, the District Court abused its discretion by awarding attorney’s fees.

The judgment of the District Court is affirmed in part, reversed in part, and remanded in accordance with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT, WEBER and TRIEWEILER concur.

JUSTICE NELSON

dissenting.

I respectfully dissent from our decision on Issue III.

As to the court’s extending the Husband’s child support obligation, § 40-4-208(5), MCA (1981), the code in effect when the parties executed their November 4,1982 Custody, Support and Property Settlement Agreement and when the court entered its November 29,1982 Decree of Dissolution, provided for the automatic termination of child support at emancipation. That same section of the code in effect when the Wife filed her petition for modification, provides for child support during the time that an 18 year old child remains in high school. Section 40-4-208(5), MCA (1991). In my view, reconciling our decisions in In re Marriage of McFate (1989), 239 Mont. 492, 781 P.2d 759; and In re Marriage of Bowman (1987), 226 Mont. 99, 734 P.2d 197, with the current code leads to the conclusion that if, as here, the party seeking modification of child support files his/her motion before the support obligation is discharged by the child’s emancipation, reaching majority or the obligation under the decree and/or separation agreement being fulfilled — i.e., if the motion is filed while the court still has jurisdiction over support — then, and in that event, the court retains jurisdiction to modify support. See also § 40-4-201(6), MCA. Moreover, here, the court specifically retained jurisdiction to modify support in the 1982 Decree. Accordingly, I conclude that the court had the authority to and properly did extend the Husband’s support obligation during the times that Stacia and Jamie remained enrolled in high school and until their graduation, but in no event later than the child’s 19th birthday.

As our opinion readily acknowledges, “[t]here may be situations where the time for child support payments should be extended ...” If such a situation is not presented where the custodial parent has not had a child support increase in eleven years despite substantially increased costs of child rearing, where she has lost the benefit of her tax exemptions by reason of a change in the IRS code, where she is attempting to raise two teen age daughters still in high school, and where the non-custodial parent’s support payments do not comply with the Child Support Guidelines, then one can only wonder what sort of situation this Court has in mind.

JUSTICE GRAY joins in the foregoing dissent.


author: JUSTICE WEBER JUSTICE GRAY,

text:
    IN THE MATTER OF J.S. and P.S. Youths in Need of Care.
    No. 94-128.
    Submitted on Briefs November 10, 1994.
    Decided December 20, 1994.
    51 St.Rep. 1428.
    269 Mont. 170.
    887 P.2d 719.
    For Appellant: Curtis L. Bevolden, Hardin.

      For Respondent: Hon. Joseph P. Mazurek, Attorney General, Pamela Collins, Assistant Attorney General, Helena; Dennis Paxinos, Yellowstone County Attorney, Denise Ackerman, Deputy County Attorney, Billings; Damon Gannett, Billings (Guardian Ad Litem).
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from the termination of parental rights by the Thirteenth Judicial District Court, Yellowstone County. We affirm.

The only issue on appeal is did the District Court abuse its discretion when it terminated the parental rights of the Father and Mother of J.S. and P.S. based upon the court’s conclusion that a continued relationship with J.S. and P.S. would result in continued abuse of the children?

The father and mother (Father and Mother) in this case were married and had two natural daughters, J.S. bom March 20, 1989, and P.S. bom January 28, 1992. Mother knew when she married Father that he had been convicted of incest with his six-year old stepdaughter to a prior marriage. The prior court had given Father a ten year suspended sentence for the 1988 incest and he was placed on the intensive supervision program: a condition of his suspended sentence was that he not have contact with any minor children.

The Department of Family Services became involved in this case in the early months of 1993 when a babysitter discovered that J.S. had a rash between her legs that was not diaper rash. J.S. told the babysitter and Mother that “Daddy touches me in my potty.” Mother took no action but the incident was reported to the Department of Family Services (DFS) and in March of 1993, DFS sought a petition for Temporary Investigation Authority. The District Court granted this request.

J.S. was taken to a doctor who established that J.S. had been sexually assaulted. J.S. and P.S. were taken from the home of Father and Mother and placed with the maternal grandparents. The next day the children were moved to a foster home when it was discovered that Mother had accused her own father of sexual assault when she was 17. Mother later confessed that this was a false accusation.

Mother was provided with a treatment plan on March 31, 1993, which she signed. She began counseling with Dr. Petrea Zimdar. However, this ended when Dr. Zimdar discovered that Mother had lied to her about living with Father. Mother continued to reside with Father until his incarceration later in May of 1993.

At the same time in March, 1993, Father was also provided with a treatment plan but never signed it nor complied with any of the elements of the plan. In April of 1993, Father was charged with sexually assaulting J.S. to which he admitted.

Mother continued her counseling with another counselor and on May 24, 1993, went to the Department’s offices for a visit with the children. Mother arrived early for this visitation and spoke with Social Worker Ms. Nita Weyler. Ms. Weyler informed Mother that her continued association with Father would jeopardize her chances of having the children returned to her care. Ms. Weyler told Mother that unless she could dissociate from Father the Department would likely seek permanent custody.

While Ms. Weyler went to answer a telephone call, the children were brought to see Mother. She took the children, returned to the family home and retrieved Father, and drove the entire family to Rapid City, South Dakota where the family was apprehended and subsequently returned to Montana.

Father was incarcerated on May 28,1993, and remains in jail. On September 2, 1993, he pled guilty to sexual assault with J.S. From the time of Father’s incarceration, Mother continued to see him frequently in jail. She visited him 16 to 18 times prior to the court’s September 24, 1993 hearing. To date, no divorce or separation proceedings have begun.

On October 17,1993, the District Court filed its Findings of Facts and Conclusions of Law stating that J.S. and P.S. were youths in need of care and that the treatment plans of the parents had not been successful and that the children were likely to suffer continued abuse if they were returned to the parents. The court determined that Mother showed no signs of being able to protect her children from Father’s abuse and that permanent custody was granted to DFS. Father had voluntarily relinquished his parental authority.

Mother appeals the District Court’s termination of her parental rights.

Standard of Review

We have recently clarified our standard of review in cases such as this where a district court has terminated the parental rights of a parent. In Matter of D.H. (1994), 264 Mont. 521, 872 P.2d 803, we stated that:

This Court will affirm the findings of a trial court sitting without a jury unless the findings are clearly erroneous. Rule 52(a), M.R.Civ.P.....
We adopt the following three-part test to determine if a finding is clearly erroneous. First, the Court will review the record to see if the findings are supported by substantial evidence. Second, if the findings are supported by substantial evidence we will determine if the trial court has misapprehended the effect of evidence. Third, if substantial evidence exists and the effect of the evidence has not been misapprehended the Court may still find that “[a] finding is ‘clearly erroneous’ when, although there is evidence to support it, a review of the record leaves the court with the definite and firm conviction that a mistake has been committed.... [W]e review conclusions of law to determine whether they are correct....
However, we find that the conclusion that a child is abused and neglected involves a decision that is neither purely factual nor purely legal, and is analogous to a district court’s determination of conscionability when reviewing marital and property settlement agreements.
When it determines the conscionability of a marital and property settlement agreement, a district court engages in discretionary action which cannot be accurately characterized as a finding of fact or a conclusion of law.

Matter of D.H., 264 Mont, at 524-25, 872 P.2d at 805, 806.

Did the District Court abuse its discretion when it terminated the parental rights of the Father and the Mother based upon the court’s conclusion that a continued relationship with J.S. and P.S. would result in continued abuse of the children?

Mother argues that she fully complied with the treatment plan and that substantial evidence supports her retention of parental rights. She contends that DFS did not prove its case against her and that her children should be returned to her.

DFS argues that Mother has continued contact with Father and was not successful with her treatment plan. DFS contends that should Mother be given further contact with her daughters, she would not be able to protect them from Father’s eventual abuse.

The District Court issued the following findings of fact:

2. The Yellowstone County DFS involvement in this case resulted after it was discovered that [J.S.] was raw between her legs and it did not appear to be diaper rash. J.S. disclosed that her father ... touched her “where she... goes potty.” J.S. disclosed to a DFS social worker, Abby Cassidy, that her daddy “takes down my pants and touches me”, pointing to her vagina. She indicated that it hurt when her daddy touched her and that he touched her with his hands.
3. Further investigation by the Department revealed that [Father] had plead guilty to incest charges in April of 1989. The victim in that case was a step-daughter. On September 19, 1989, [Father] was given a ten-year suspended sentence, and was placed on the intensive supervision program.
4. In conversations between social worker Abby Cassidy and [Mother], [Mother] denied that [Father] was living in the family home with her and the children. Her denial later proved to be false, [Father] was living with the family and in doing so, he violated conditions of his suspended sentence.
5. [Mother] and Mrs. Weyler testified that [Mother] had knowledge that [Father] pled guilty to the incest charges against his stepdaughter, but indicated that [Mother] believed that [Father] had been framed in the incest case. [Mother] allowed [Father] to have contact with her daughters despite her knowledge of his offending behavior.
7. Mrs. Weyler testified that [Mother] visited her daughters seven times since they were placed in foster care, but has not seen her daughters since May 28,1993, when visits with her children were restricted. The restriction resulted from a visit on May 24, 1993, when she appeared at the DFS, collected her children without the Department’s consent and left with them. She later rendezvoused with her husband and, with the children, they fled the state of Montana....
8. One treatment plan was developed by the Department for [Mother], which covered the dates March 29,1993 — May 29,1993. The treatment plan was discussed with [Mother] and was signed by her on March 29, 1993. It was approved by this Cotut on May 31, 1993. [Mother] attempted to comply with the treatment plan. A treatment plan was developed for [Father], covering the dates from March 29,1993 through May 29,1993. [Father] never signed the treatment plan, but it was Court approved on March 31,1993.
9.... Mrs. Weyler testified that [Father] failed to comply with any of the requested tasks in the treatment plan. [Father] testified that he never completed a sexual offender treatment program, despite being enrolled in one in the past for the 1988 incest conviction.
10. The treatment plan for [Mother] asked her to obtain a psychological evaluation and follow the recommendations of the counselor, maintain an adequate home, and attend counseling with the sessions to address the following areas: acceptance of responsibility for her part in the sexual abuse of her children without minimization or extemalization of blame; learn the dynamics of sexual abuse and the offender cycle; learn and utilize problem-solving skills; learn and understand appropriate sex roles and behavior; explore her self-image and self-concept in relation to the sexual abuse; understand family dynamics involved when sexual abuse occurs; learn the effects of sexual abuse on the victim and increase her victim empathy; and explore the patterns of victimization in her own life as well as in her extended family. She was also asked to maintain an income, visit her children regularly, and not allow [Father] to have access to his children until deemed appropriate by the Department.
11. Mrs. Weyler testified that [Father] failed to comply with any of the tasks requested in his treatment plan.
12. [Mother] and Mrs. Weyler testified that [Mother] completed some aspects of the treatment plan, i.e., she had a psychological evaluation and attended 10 counseling session with a counselor, Dr. Recor. Prior to that she saw another counselor, Petrea Zimdar for three of five scheduled visits, and when confronted by her counselor and social worker Nita Weyler about her lack of veracity, she quit going to Ms. Zimdar.
[Mother] testified that she currently lives with her parents, has held three jobs since late May of1993, and visited with her children regularly until she took the children in late May, 1993, and ran with them and her husband. She testified that she allowed [Father] access to her children. Both [Mother] and Mrs. Weyler testified that the majority of the treatment plan that was completed by [Mother] was completed by her after she, her husband and her children had been returned to Montana from South Dakota.
13. Mrs. Weyler testified that in her opinion the treatment plan was not a success in that [Mother] allowed her husband access to her children, and failed to protect them.
15. [Mother] testified that she continues to visit her husband in the county jail... Mrs. Dunbar [intake clerk at the Yellowstone County Detention Facility] also testified that [Mother] has also provided financial support for [Father] while he has been incarcerated.
16. [Mother] admitted that she has been dishonest through-out the pendency of the Department’s involvement in this case, including lying to her counselor and to the DFS social workers.

These facts are supported by substantial evidence in the record. Mother argues that despite these facts, she has learned to put her children first and that she will no longer allow her husband to have access to the children without the express consent of DFS. However, the facts that were presented at the hearing indicate that Mother has only very recently come to this conviction and given her past history of dishonesty, the court did not misapprehend the effect of the evidence with which it was confronted. Nor given the Whole of the record, are we of the firm conviction that the court, here, made a mistake. Therefore, these findings are not clearly erroneous.

The court entered the following conclusions of law:

3. The treatment plans for [Father] and [Mother] were appropriate for the needs of the family. They were not complied with and were not successful. Continuation of the parent-child relationships between [Father] and [Mother] and [J.S.] and [P.S]. will likely result in the continued abuse of these children. [Father’s] and [Mother’s] conduct and condition renders them unfit, unable or unwilling to provide [J.S.] and [P.S.] with adequate parental care. Their conduct and condition have not changed significantly over the past six (6) months that the Department has been involved, and is unlikely to change within a reasonable time.
The Court has considered all reasonable efforts to rehabilitate [Father] and [Mother] and to reunite them with [J.S], and [P.S.] This Court has given primary consideration to the physical, mental, and emotional needs of [J.S.] and [P.S.]
It is in [J.S.] and [P.S’s] best interests to terminate the parent-child legal relationships between [Father] and [Mother] and [J.S.] and [P.S.] and to award permanent custody of [J.S.] and [P.S.] to the Montana Department of Family Services with authority to assent to adoption.

The court correctly used § 41-3-609, MCA, in evaluating the evidence it had before it. The pertinent parts of that statute are as follows:

(1) The court may order a termination of the parent-child legal relationship upon a finding that any of the following circumstances exist:
(c) the child is an adjudicated youth in need of care and both of the following exist:
(1) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and
(ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time, ....
(2) In determining whether the conduct or condition of the parents is unlikely to change within a reasonable time, the court must enter a finding that continuation of the parent-child, legal relationship will likely result in continued abuse or neglect or that the conduct or the condition of the parents renders the parents unfit, unable, or unwilling to give the child adequate parental care. In making such determinations, the court shall consider but is not limited to the following:
(g) any reasonable efforts by protective service agencies that have been unable to rehabilitate the parent.
(3) In considering any of the factors in subsection (2) in terminating the parent-child relationship, the court shall give primary consideration to the physical, mental, and emotional conditions and needs of the child. The court shall review and, if necessary, order an evaluation of the child’s or the parent’s physical, mental, and emotional conditions. (Emphasis added.)

A close reading of the court’s order shows that the court applied the correct law and correctly evaluated the law.

Nothing in the record suggests that Mother has totally understood the destruction she and her husband have afforded these children. Nothing here indicates that she will be able to protect the children from Father’s abuse. Father could be released as soon as two years (his original sentence was 10 years) and despite Mother’s assertion that he will not be released for a long time, this is not at all certain. Father testified that he wanted to take advantage of the sexual offender program, but the facts show that he had done nothing prior to the hearing that would indicate his intention to follow through on this. The law requires that the court consider the welfare of the children first. Thus, the court was charged with the responsibility of weighing the safety of the children against the parents’proclamations of future care and concern.

The record indicates that the children are currently established in foster homes which are providing them the stability they need. J.S. has special needs because of the abuse and because of an attention deficit disorder as well as a lack of social and motor skills. The record indicates that she has improved her behavior since being placed in a foster home. Without any solid indication that the mother has the ability to protect her children or that she will stay away from the abuser, the court correctly determined that the parental rights should be terminated. To date, Mother has shown no concrete indication that she will divorce or separate from the abuser, nor has she stopped seeing him in prison. Father also testified that he had no plans to leave the marriage.

We conclude that the District Court did not abuse its discretion when it terminated the parental rights of the Father and the Mother based upon the court’s conclusion that a continued relationship with J.S. and P.S. would result in continued abuse of the children.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, HUNT and NELSON concur.

JUSTICE GRAY,

specially concurring.

I specially concur in the Court’s opinion, primarily because our standard of review is whether the District Court abused its discretion, but not in all that is said therein. I note that the only appellant in this case is the Mother; thus, the sole issue on appeal is whether the District Court erred in terminating her parental rights. While the Court makes a compelling case throughout its opinion for termination of the Father’s parental rights, an issue not before us, the case made with regard to the Mother is significantly less substantial, although sufficient to affirm the District Court’s exercise of its discretion.

There can be no question about the critical importance of protecting children from sexual abuse. However, there also can be no question that a parent’s right to parent her children is a basic and fundamental right which must be accorded due regard.

One of my concerns in this case continues a long-standing concern about some of the DFS’ approaches and procedures in cases of this type. A treatment plan is intended to be a good faith, joint effort by both the DFS and the parent to preserve the parent-child relationship and the family unit. I am troubled by the notion that a two-month treatment plan which involves counseling is an “appropriate” treatment plan under § 41-3-609, MCA. Preparing such an abbreviated plan involving counseling strikes me as trapping the parent into an inability to successfully complete the program within the time allotted. Successful results from counseling will not be immediate, and such short-term counseling mandates should not be utilized in treatment plans merely to provide an easy and expeditious opportunity for the government to establish that the parent has not been successful in completing the treatment plan. That is especially true where, as here, the parent actually stayed with the counseling and completed the majority of the treatment plan.

Nor am I convinced that the Mother’s continued visits with the Father after his incarceration provide an appropriate basis for so quickly terminating her parental rights. While the Father remained in prison, he could not adversely impact on the children; it is my view that it would have been preferable to provide the Mother with a more realistic chance to reach the necessary and firm realization that her children’s best interests had to come before her feelings for the children’s father. As reflected by the record before us, the Mother made significant progress in this regard after the ill-fated South Dakota trip.

Notwithstanding my concerns, I cannot conclude that legal requirements were not met here or that the District Court abused its discretion. As a result, I concur in the result reach by the Court, but not in everything that is said in the Court’s opinion.

JUSTICE TRIEWEILER joins in the foregoing special concurrence of JUSTICE GRAY.


author: JUSTICE GRAY

text:
    LEMONT LAND CORPORATION, a Montana corporation, Plaintiff and Respondent, v. DAVID “BUZZ” ROGERS, Defendant and Appellant.
    No. 94-263.
    Submitted on Briefs October 13, 1994.
    Decided December 20, 1994.
    51 St.Rep. 1459.
    269 Mont. 180.
    887 P.2d 724.

      For Appellant: Kent R. Douglass; Swandal, Douglass, Frazier & Cole, Livingston.
    For Respondent: Karl Knuchel, Attorney at Law, Livingston.
   JUSTICE GRAY

delivered the Opinion of the Corut.

David “Buzz” Rogers (Rogers) appeals from a judgment entered by the Sixth Judicial District Court, Park County, quieting title to certain property in Lemont Land Corporation (Lemont), and from the court’s underlying order granting Lemont’s, and denying his, motion for summary judgment. We conclude that no genuine issues of material fact exist and that Rogers is entitled to judgment as a matter of law on his claim to a prescriptive easement across Lemont’s property. Therefore, we reverse and remand for entry of summary judgment in Rogers’ favor.

Lemont brought this action to quiet title to property across which Rogers claims a prescriptive easement. The facts relating to the property involved and the parties’ ownership of that property are not in dispute.

Lemont and Rogers own adjoining properties bordering Mill Creek in Park County. Rogers first took possession of his thirty-eight acres of land in 1967 as a lessee, obtaining the deed thereto in 1972. Lemont obtained its property from the Blackacre Land Company (Blackacre) in 1991. Blackacre had purchased the land from Sharon and Phillip Malcolm (Malcolms) in 1990. The Malcolms purchased the land in 1975 from Mile High Ranch, Incorporated, a corporation owned by Phillip Malcolm and his father, mother, and brother. Phillip Malcolm lived on the property from 1938 through 1990.

Both Rogers’ and Lemont’s parcels lie immediately east of Mill Creek; the creek forms the western border of each parcel. Lemont’s property fronts Rogers’ on the north, east and south sides. To the west of each parcel across Mill Creek is a county road which runs generally north and south.

Prior to the mid-1970s, primary access to Rogers’ property was via a deeded easement from the county road heading due east, across a bridge over Mill Creek, and onto the northwest comer of his parcel. We refer to this access as access #1. Access to Lemont’s property is via an easement from the county road heading east, across a bridge over Mill Creek, and entering the southwest portion of Lemont’s parcel. We refer to this access as access #2. Access #2 passes the residence and livestock area on Lemont’s parcel, then heads north onto Rogers’ property where it links up with access #1.

In the mid-1970s, the bridge over which access #1 passed washed out and has never been replaced. From that point forward, Rogers used access #2 exclusively.

At some point, a gate was placed across access #2 to control livestock. During the Malcolms’ ownership and occupation of the property now owned by Lemont, this gate was closed — but not locked or chained — when the Malcolms would bring their livestock down to the calving area. During such periods, Rogers would open and shut the gate as he drove through to his property.

Since the mid-1970s, access #2 has been used by Rogers and his invitees on a daily basis as the sole means of ingress to, and egress from, his property. Rogers has never sought permission to use the road. Rogers and Phillip Malcolm — predecessor in interest to both Rogers and Lemont — agree that Rogers’ use of the road was never discussed during the many years they were neighbors. Rogers made no effort to hide his use of the access, treating the road as if it were his own. During Rogers’ occupation of his land, the only objection or comment regarding his use was made by the present owner, Lemont. Access #2 provides access only to Lemont’s and Rogers’ properties. Rogers and Lemont, together with their invitees, are the only frequent users of the road.

After Lemont obtained the property in 1991, it attempted to limit Rogers’ use of access #2 by locking a gate between the parcels, thereby denying Rogers access to his land. Rogers cut the lock, precipitating Lemont’s quiet title action.

Both parties moved for summary judgment. Rogers asserted entitlement to judgment on the basis that a prescriptive easement had been created as a matter of law, while Lemont contended that it was entitled to have title quieted to its property with no easement in Rogers’ favor. The District Court granted Lemont’s motion, denied Rogers’ motion and entered judgment quieting title to Lemont’s property. Rogers appeals.

Did the District Court err in granting Lemont’s motion for summary judgment and denying Rogers’ motion for summary judgment on the basis that Rogers had not established a prescriptive easement across Lemont’s land?

Summary judgment is proper when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. We review an order granting summary judgment by applying the same criteria as the district court. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214.

To establish an easement by prescription, the party claiming the easement must show open, notorious, exclusive, adverse, continuous and uninterrupted use of the claimed easement for the full statutory period of five years. Public Lands v. Boone and Crockett (1993), 259 Mont. 279, 283, 856 P.2d 525, 527 (citation omitted). The consecutive five-year period may have occurred at any time; prescriptive title, once established, is not divested by the subsequent transfer of the servient estate. O’Connor v. Brodie (1969), 153 Mont. 129, 139, 454 P.2d 920, 926. Thus, our inquiry into whether Rogers’ use of access #2 matured into a prescriptive right focuses on the record before us regarding his use of access #2 between the mid-1970s, when the access #1 bridge washed out, and 1990, when the Malcolms sold the property reached by access #2 to Blackacre.

The first requirement in establishing a prescriptive right is that the use be open and notorious. We have defined “open and notorious” as a distinct and positive assertion of a right hostile to the rights of the owner and brought to the attention of the owner. Downing v. Grover (1989), 237 Mont. 172, 176, 772 P.2d 850, 852 (citations omitted).

No genuine issue of material fact exists with regard to the open and notorious nature of Rogers’ use of access #2. Rogers and his invitees did not attempt to conceal their use of the road, traveling over it on a daily basis and at their own discretion. In addition, access #2 passes just 100 feet from the Malcolms’ full-time residence during the years in question, close enough for the traffic, dust and noise to constitute a noticed use that was hostile to the Malcolms’ ownership. We conclude that Rogers’ use of access #2 was open and notorious as a matter of law.

The second requirement for establishing a prescriptive right is that the use be exclusive. In the case of a claimed prescriptive easement for a right of way, exclusive use means no more than that the right of the claimant must rest upon its own foundations and not depend upon a like right in any other person. Scott v. Weinheimer (1962), 140 Mont. 554, 561-562, 374 P.2d 91, 95, overruled in part on other grounds, Warnack v. Coneen Family Trust (1994), [266 Mont. 203], 879 P.2d 715. It is not necessary that the person asserting a right by prescription be the only one who used the roadway, so long as the right was exercised under a claim of right independently of others. See Scott, 374 P.2d at 95-96.

No genuine issue of material fact exists with regard to whether Rogers’ use of the road was dependent upon another’s claim or right. Rogers and the Malcolms, together with their invitees, appear to have been the only regular users of access #2. Indeed, as noted above, access #2 provides access to no other property. We conclude that Rogers’ use of the road was exclusive as a matter of law.

The third requirement for a prescriptive easement is that the use be continuous and uninterrupted. We have defined “uninterrupted use” as a “use not interrupted by the act of the owner of the land or by voluntary abandonment by the party claiming the right.” Downing, 772 P.2d at 852 (citations omitted). “Continuous” use is that which is made often enough to constitute notice of the claim to the potential servient owner. Downing, 772 P.2d at 852 (citations omitted).

No genuine issue of material fact exists with regard to the continuous and uninterrupted nature of Rogers’ use of access #2. It is undisputed that Rogers and his invitees used the road on a daily basis after the access #1 bridge washed out in the mid-1970s. From that time until the Malcolms sold the property in 1990, Rogers’ use of the roadway was not interrupted by the Malcolms or abandoned by Rogers. The only variation in Rogers’ unbroken use of the road during that time was Rogers’ and the Malcolms’ use of an unlocked gate to keep the Malcolms’ livestock from wandering off their land; the gate was neither intended nor used to deny, limit or control Rogers’ access to the road. The only actual interruption in Rogers’ use of access #2 came in 1991 or 1992, when Lemont locked a gate along access #2. On the basis of this evidence, we conclude that Rogers’ use of access #2 from the mid-1970s until the Malcolms sold the property in 1990 was continuous and uninterrupted as a matter of law. It necessarily follows, of course, that the use was for the full five-year statutory period.

The final requirement in establishing a prescriptive easement is that the use be “adverse.” To be adverse, the use must be exercised under a claim of right and not as a mere privilege or license revocable at the pleasure of the owner of the land; such claim must be known to, and acquiesced in by, the owners of the land. Warnack v. Coneen Family Trust (1994), [266 Mont. 203], 879 P.2d 715, 719 (citations omitted). Given that definition, it follows that in most instances adverse use will be proven from the same evidence by which the easement claimant establishes open, notorious, continuous and uninterrupted use for the statutory period. Warnack, 879 P.2d at 724.

After the claimant has established the preliminary requirements for a prescriptive right, a presumption of adverse use arises; the burden then shifts to the owner of the land on which the prescriptive easement is claimed to establish permissive use or license. Warnack, 879 P.2d at 723-724. If an owner establishes that the use is permissive, no easement can be acquired. See Warnack, 879 P.2d at 719 (citation omitted).

Here, as discussed above, no genuine issue of material fact exists with regard to Rogers’ open, notorious, continuous, uninterrupted and exclusive use of access #2 for the statutory period. Thus, Rogers is entitled to the presumption of adverse use. Lemont could overcome the presumption by bringing forth sufficient evidence to raise a genuine issue of material fact regarding whether the use was permissive.

As discussed above, the evidence is clear and undisputed that Rogers’ use of access #2 was not dependent upon permission or license. After the access #1 bridge washed out in the mid-1970s, Rogers began using access #2 on a daily basis. This use continued unchecked and uninterrupted from the mid-1970s through at least 1990. Phillip Malcolm admits that, during his ownership of the property over which access #2 passes, Rogers was not required to seek permission to use the road; nor was there an objection to, or attempt to control, Rogers’ use. Moreover, contrary to Lemont’s argument, Rogers was not required to notify the Malcolms that his use of access #2 was adverse. Rogers’ acts alone, which were inconsistent with the Malcolms’ title, were sufficient to constitute notice. Groshean et al. v. Dillmont Realty Co. (1932), 92 Mont. 227, 241, 12 P.2d 273, 276.

The only impediment to Rogers’ totally unfettered use of access #2 was the gate used by the Malcolms to control their livestock. We previously have stated that the presence of gates may be strong evidence of a mere license. Parker v. Elder (1988), 233 Mont. 75, 79-80, 758 P.2d 292, 294 (citations omitted). Here, however, as was the case in Parker, the gate was used to control livestock, not travel; thus, the evidence regarding the gate is insufficient to overcome the presumption of adverse use. See Parker, 758 P.2d at 294.

Lemont also could overcome the presumption of adverse use if it could demonstrate that Rogers’ use constituted an ongoing act of “neighborly accommodation.” We have determined that:

use of a neighbor’s land based upon mere neighborly accommodation or courtesy is not adverse and cannot ripen into a prescriptive easement. Thus where the use of a way was by express or implied permission of the owner, it was held that the continuous use of the way by the neighbor was not adverse and did not ripen into a prescriptive right.

Boone and Crockett, 856 P.2d at 528; citing Rathbun v. Robson (1983), 203 Mont. 319, 323, 661 P.2d 850, 852. Neighborly accommodation is a form of permissive use which, by custom, does not require permission at every passing. See Boone and Crockett, 856 P.2d at 528.

In Boone and Crockett, the plaintiffs did not establish the preliminary requirements for a prescriptive easement; as a result, they were not entitled to the presumption of adverse use and the burden did not shift to Boone and Crockett to demonstrate that the use was merely permissive. Boone and Crockett, 856 P.2d at 528-529. Even if the plaintiffs had been entitled to the presumption, however, it would have been rebutted by the evidence of record, which indicated that both the present landowners and their predecessors in interest had exercised control over access to the property, including requiring express permission from some users. Those crossings which were not barred outright, controlled, or allowed by permission could be explained as mere neighborly accommodation. Boone and Crockett, 856 P.2d at 528-529. As one local resident stated, the whole remote area was “open” and crossings between parcels were allowed as part of neighborly accommodation and local custom since the homesteading years. Boone and Crockett, 856 P.2d at 528.

The record in this case is very different. Here, unlike Boone and Crockett, there is no affirmative evidence that local custom authorized Rogers’ passage over the Malcolms’ property other than Phillip Malcolm’s subjective and limited assertion that “in a sense” he was being “neighborly” by allowing Rogers to use the road. Affidavits from long-time residents of the area indicate that access #2 was considered the legal access to Rogers’ parcel and was used extensively by business and social invitees without comment or objection by the Malcolms.

A second distinction between this case and Boone and Crockett lies in Rogers’ use of the easement. We have already determined that his use was open, notorious, exclusive, continuous and uninterrupted as a matter of law. In this case Rogers treated access #2 as if it were his own, using the road in an obvious and hostile manner. Such a pervasive use contrasts sharply with the sporadic and unobtrusive passings authorized by the custom of neighborly accommodation in Boone and Crockett.

We conclude that no genuine issue of material fact exists with regard to whether Rogers’use was adverse as a matter of law. Having already determined that the preliminary requirements of a prescriptive right have been met, Rogers is entitled to summary judgment as a matter of law. We hold, therefore, that the District Court erred in granting Lemonfs, and denying Rogers’, motion for summary judgment.

Reversed and remanded with instructions to enter summary judgment in Rogers’ favor.

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


author: JUSTICE GRAY JUSTICE HUNT

text:
    LINDA JOANN HATCH, Individually and as Conservator of the Estates of Wade Russell Hatch, J. Adam Hatch, Carson Miles Hatch and Crystal Marie Hatch, Minors, and CARRIE HATCH, Plaintiffs and Appellants, v. STATE OF MONTANA DEPARTMENT OF HIGHWAYS, Defendant and Respondent. LINDA JOANN HATCH, Personal Representative of the Estate of J. Calvin Hatch, deceased, Plaintiff and Appellant, v. STATE OF MONTANA DEPARTMENT OF HIGHWAYS, Defendant and Respondent. BRENDA I. DEMERS, a single person and SANDRA MARIE HOLLISTER, a single person, Plaintiffs and Appellants, v. STATE OF MONTANA DEPARTMENT OF HIGHWAYS, Defendant and Respondent.
    No. 94-024.
    Submitted on Briefs September 15, 1994.
    Decided December 23, 1994.
    51 St.Rep. 1512.
    269 Mont. 188.
    887 P.2d 729.

      For Appellant: Frank B. Morrison, Jr.; Morrison Law offices, Whitefish; Jay DeMers, Attorney at Law, Seattle, Washington; Benjamin W. Hilley; Hilley & Loring, Bigfork.
    For Respondent: Sherman Lohn and Steve Carey; Garlington, Lohn & Robinson, Missoula.
   JUSTICE GRAY

delivered the Opinion of the Court.

Linda Joann Hatch (Hatch) and Brenda DeMers (DeMers) appeal from an opinion and order of the Fourth Judicial District Court, Missoula County, granting partial summary judgment in favor of the State of Montana Department of Highways. We affirm.

We restate the issues on appeal as follows:

1. Did the District Court err in granting summary judgment on the State’s liability for Beatty’s pulling the snowplow onto the highway in front of the Hatch vehicle?

2. Did the District Court err in granting summary judgment on the State’s liability for using a snowplow to remove hardpack snow and ice from Highway 83?

This lawsuit arose out of an automobile accident occurring on December 20, 1990. On that date, the Hatch family was traveling north on Highway 83 in a station wagon driven by Calvin Hatch. The weather was overcast and cold, and the highway was covered with a hardpack of snow and ice.

While the Hatch family was traveling north on Highway 83, Lee Beatty (Beatty), an employee of the Montana Department of Highways (State), began plowing the highway southbound from the Rainy Lakes Shop. A piece of heavy equipment called a “motor patrol” usually is utilized to remove the hardpack snow and ice; motor patrols travel very slowly and literally cut the snow and ice off the road. Unlike plows, they discharge excess snow and ice slowly off to the side; thus, the snow plumes — clouds of snow and ice — created by snowplows do not occur.

On the date of the accident at issue here, however, the Rainy Lakes motor patrol was inoperable and, therefore, Beatty’s supervisor directed him to remove the hardpack with a regular snowplow. After plowing south for a few miles, Beatty turned the plow around and began heading north, directly in front of the Hatch vehicle. Joann Hatch, who had been sleeping, remembers her husband Calvin commenting on the fact that a snowplow was pulling out in front of them. Calvin slowed the car from a speed of 45 to 50 miles per hour to 30 to 35 miles per hour to follow the plow. The accident occurred between 45 seconds and one minute after the plow pulled onto the highway. Wade Hatch, age fourteen at the time, recalls that once the plow pulled in front of them it was “icy” and hard to see.

The accident occurred on an “S” curve on Highway 83, approximately 170 feet north of mile marker 23. Beatty testified that when he entered the curve, he had to move the plow a couple of feet to the right in order to remain in his own lane and avoid a southbound pickup truck driven by DeMers. When Beatty took this corrective action, the plow bit into the snow berm on the right side of the road and created a larger snow plume. The Hatch and DeMers vehicles collided a few moments later. Calvin Hatch died as a result of the collision, and all other occupants of the Hatch and DeMers vehicles were injured.

Hatch and DeMers sued the State for negligence, asserting a number of negligent acts. They claimed that the snow plume blinded Calvin Hatch, resulting in the collision, and that the State’s negligent acts caused the accident.

The State moved for, and was granted, summary judgment on its liability relating to: (1) Beatty’s pulling the plow onto the highway in front of the Hatch vehicle; and (2) delayed maintenance of the motor patrol, and the resulting decision to use the snowplow to remove the hardpack of snow and ice. As to these issues, the District Court determined that no genuine issue of material fact existed regarding the requisite proximate cause element, and concluded that the State was entitled to summary judgment as a matter of law on these portions of the negligence claim against it. Beatty’s alleged negligence in operating the snowplow after entering the highway, including speed and overall control of the plow, remained for trial.

The case was tried to a jury and resulted in a verdict for the State. Hatch and DeMers appeal from the District Court’s grant of summary judgment to the State on those portions of their negligence claim related to Beattys pulling the plow onto the highway in front of the Hatch vehicle and the decision to use the snowplow to remove the hardpack.

Regarding Beatty’s entry onto the highway in front of the Hatch vehicle, appellants assert that the plow “trapped” the Hatch vehicle in the snow plume, and that the reduced visibility from the plume caused the collision. Regarding the use of the snowplow on the hardpack, appellants contend that the selection of a plow was negligent because a plow is difficult to control when used to remove hardpack snow and ice. They argue that Beattys difficulty in controlling the plow while removing the hardpack caused him to have to change course to avoid DeMers, thereby hitting the snow berm on the right side of the highway and creating a larger plume of snow. In essence, appellants argue that these issues were so intertwined with the remainder of their negligence action that the District Court’s grant of partial summary judgment effectively prejudiced their ability to try the case.

Summary judgment is proper when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P We review an order granting summary judgment by applying the same criteria as the district court. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214.

In a negligence action, a plaintiff must prove four elements: (1) duty; (2) breach of duty; (3) causation; and (4) damages. U.S.F. & G. v. Camp (1992), 253 Mont. 64, 68, 831 P.2d 586, 589. Ordinarily, issues of negligence are questions of fact not susceptible to summary adjudication. Dillard v. Doe (1991), 251 Mont. 379, 382, 824 P.2d 1016, 1018 (citations omitted). However, if the defendant establishes the absence of a genuine issue of material fact as to any one of the elements constituting the cause of action, and the plaintiff fails to come forward with proof establishing the existence of a genuine issue as to that element, summary judgment in the defendant’s favor is proper. See White v. Murdock (1994), 265 Mont 386, 877 P.2d 474, 476. Any inferences to be drawn from the factual record must be resolved in favor of the party opposing summary judgment. Boylan v. Van Dyke (1991), 247 Mont. 259, 266, 806 P.2d 1024, 1028.

1. Did the District Court err in granting summary judgment on the State’s liability for Beatty’s pulling the plow onto the highway in front of the Hatch vehicle?

For the purpose of analyzing this issue, we need not address either the duty or breach of duty elements of appellants’ claim that Beatty pulled onto Highway 83 in front of the Hatch vehicle in an unsafe manner which constituted a hazard. We focus directly on the causation element because, even if Beatty breached a duty — which we do not decide here — the appellants did not establish a genuine issue of material fact regarding whether such a breach was the proximate cause of the accident.

The causation element of a negligence claim includes two components: (1) that the defendant’s act is the cause-in-fact of the injury; and (2) that the injury is the direct or indirect result, proximately caused by the negligent act. U.S.F.& G., 831 P.2d at 589; Kiger v. State of Montana (1990), 245 Mont. 457, 459, 802 P.2d 1248, 1250. Stated differently, proximate cause is an act or omission which, “in a natural and continuous sequence, unbroken by any new, independent cause, produces injury, and without which the injury would not have occurred.” Bickler v. Racquet Club Heights Assoc. (1993), 258 Mont. 19, 23, 850 P.2d 967, 970; quoting Young v. Flathead County (1988), 232 Mont. 274, 282, 757 P.2d 772, 777. We review the record on summary judgment resolving any inferences in favor of appellants, as the parties opposing the State’s motion. See Boylan, 806 P.2d at 1028.

The following facts relating to causation are not in dispute. Joanne Hatch admits that in response to the snowplow pulling out in front of their vehicle, Calvin Hatch was able to keep the car under control, had no trouble slowing down despite the icy conditions, and had no trouble keeping the vehicle in his own lane while following the plow. These facts are confirmed by Wade and Adam Hatch, ages fourteen and twelve at the time of the accident. Wade Hatch testified that, when the plow entered Highway 83, his father slowed down to match the speed of the plow by “applying the brakes a little bit.” More importantly, each alert Hatch passenger admitted that 45 seconds to one minute elapsed between the plow pulling out in front of the car and the accident.

Appellants argue that, despite the deposition testimony establishing that no hazard was created by the manner in which Beatty entered the highway, they raised a genuine issue of material fact regarding causation in that “the snowplow was pulled abruptly in front of the Hatch vehicle and [Calvin Hatch] had to brake in order to keep from hitting the snowplow” and, as a result, that the Hatch vehicle was “trapped” behind the plow. In essence, appellants rely on the mere fact that Calvin Hatch braked a little to slow down behind the plow as raising a genuine issue of material fact with regard to whether Beatty’s entry onto the highway caused the accident. We disagree.

Stretched to its outer limit, the summary judgment record before us might be susceptible to a determination that the mere entry of the snowplow onto the highway — without regard to the manner of that entry — was, in and of itself, a cause-in-fact of the accident. That is, absent the plow being on the highway at all, the accident would not have occurred; to some, this might be sufficient to meet the traditional “but for” test incorporated in the Bickler definition of proximate cause via the language “and without which the injury would not have occurred.” See Bickler, 850 P2d at 970. Of course, such an interpretation would not relate in any way to appellants’ contention here that it was the abrupt manner in which Beatty entered the highway that caused the accident.

The record is clear, however, that Beatty’s entry onto the highway, in whatever manner, was not a proximate cause of the accident. The relevant deposition testimony is undisputed that from 45 seconds to one minute elapsed between the plow’s entry onto the highway and the accident, and that Calvin Hatch kept his vehicle under complete control during that time. Appellants presented no evidence that he had insufficient time to adjust to the presence of the snowplow on the highway.

Under such circumstances, we conclude that no genuine issue of material fact exists regarding whether the accident was the direct or indirect result of Beatty’s entry onto the highway. See U.S.F.& G., 831 P.2d at 589. Nor does a genuine issue of material fact exist regarding whether that entry onto the highway produced injury in a natural and continuous sequence. See Bickler, 850 P.2d at 970. Absent a genuine issue of material fact on the proximate cause element, therefore, summary judgment in the defendant’s favor is proper. See White, 877 P.2d at 476.

Appellants attempt to interweave this issue with the factual issues relating to Beatty’s alleged negligence in operating the snowplow. They assert that their inability to present evidence to the jury regarding the manner of entry onto the highway “gutted” their case. Nothing could be further from the truth.

It is clear that, whatever the cause of this accident may have been, the accident was not proximately caused by the manner in which Beatty entered the highway. Beatty’s actual operation of the plow while on the highway followed the plow’s entry thereon. Beatty’s allegedly negligent operation of the plow — including the speed at which he operated it and his failure to properly control it — was fully tried to, and rejected by, the jury.

We hold that the District Court did not err in granting summary judgment on the State’s liability for Beatty’s pulling the plow onto the highway in front of the Hatch vehicle.

2. Did the District Court err in granting summary judgment on the State’s liability for using a snowplow to remove hardpack snow and ice from Highway 83?

Appellants contend that the State’s selection of a snowplow, which their expert testified via deposition has a tendency to pull to the left when being used to remove hardpack, was negligent because it caused Beatty difficulty in controlling the plow. Because of the difficulty, appellants claim Beatty had to overcorrect to avoid DeMers and, in doing so, created an even larger plume of snow. They contend that the District Court erred in granting summary judgment on this claim and, as a result, in refusing to let the jury hear related evidence.

The existence of a duty is the first element of a negligence claim; absent the existence of a duty, no negligence claim can be maintained. See White, 877 P.2d at 476; Geiger v. Montana Dept. of Revenue (1993), 260 Mont. 294, 297, 858 P.2d 1250, 1252. The existence of a duty is a question of law. Geiger, 858 P.2d at 1252.

The State has a duty to exercise ordinary and reasonable care in maintaining Montana’s highways. See Townsend v. State (1987), 227 Mont. 206, 209, 738 P.2d 1274, 1276. For the purpose of this opinion, we will presume that this duty extends to using the same degree of care in removing snow from Highway 83. Appellants cite no legal authority, however, for the existence of a separate duty by the State to use a particular piece of equipment in meeting its duty of care regarding highway maintenance. We cannot conclude that appellants established a duty requiring the State to select a particular piece of equipment for snow and hardpack removal.

Absent a duty, no breach of duty can be established and no negligence action can be maintained. Geiger, 858 P.2d at 1252. Thus, the expert deposition testimony presented to the District Court during the summary judgment proceedings — to the effect that the plow, when used for the purpose Beatty was operating it, would tend to be difficult to control — had no bearing on summary judgment because of appellants’ failure to establish the existence of a duty to support this claim.

Similarly, the causation element of a negligence action does not come into play unless and until a duty and breach have been established. Even if a duty existed and was breached here, appellants’ effort to establish the necessary causal connection between the duty to select another piece of equipment to plow the road and the accident at issue would face the same barriers addressed in issue number one.

The fact is that, given controlling precedent and the jury’s verdict for the State regarding Beatty’s negligence in operating the snowplow, appellants ultimately could not have prevailed on their negligence action against the State regarding selection and use of the plow. The mere creation of a plume by a snowplow, standing alone, is not sufficient to establish negligence. Wilson v. Doe (1987), 228 Mont. 42, 740 P.2d 687. Allegations of negligent operation of the plow, separate and apart from the creation of the plume, must be alleged and proved. See Wilson, 740 P.2d at 689.

Here, unlike in Wilson, appellants did allege negligence by Beatty in operating the snowplow. Those alleged negligent acts related to the speed at which Beatty operated, and his overall control of, the plow. Appellants came forward with evidence regarding these acts during the summary judgment proceedings and, as a result, established genuine issues of material fact as to Beatty’s negligence in operating the plow. For that reason and relying on Wilson, the District Court properly declined to enter full summary judgment for the State. Appellants then presented their evidence regarding Beatty’s alleged negligent operation of the plow to the jury, and the jury returned a verdict for the State.

We conclude that the District Court did not err in granting summary judgment to the State on the issue of its use of a snowplow to remove the hardpack from Highway 83. Even if error had been established in that regard, however, the error would be harmless given the jury’s ultimate verdict in the State’s favor regarding the manner in which Beatty operated the snowplow.

Affirmed.

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

JUSTICE HUNT

dissenting.

I disagree with the majority’s conclusion that appellants did not establish a genuine issue of material fact as to whether Beatty’s entry into the highway was the proximate cause of the accident.

Linda Hatch testified that she was startled out of a sleep by the slowing of their car, and her husband’s comment that the snowplow was going to pull out right in front of their car. The record shows that the snowplow did pull out in front of the Hatchs’ car causing them to slow and trapping them until the accident occurred. The fact that Calvin Hatch was able to keep the car under control despite the icy conditions in no way mitigates the potential negligence of Beatty’s entry into the Hatchs’ pathway. The record shows that within 45 seconds to one minute, the accident occurred after the Hatch’s car was blanketed by a snow plume caused by Beatty’s attempt to abruptly withdraw from the wrong lane back into the correct lane. It is at least a question of material fact as to whether by pulling in front of and trapping the Hatchs, the accident which occurred 45 seconds later happened in a natural and continuous sequence, unbroken by any new, independent cause.

There is nothing in the record or the majority’s opinion to show that respondents met their burden of providing the court with evidence which excludes any real doubt as to the existence of a genuine issue of material fact regarding proximate cause. The record supports a conclusion that as to the issue of proximate cause there exists a genuine issue of material fact that should have been presented to the jury.

I would reverse the District Court’s granting of respondent’s motion for summary judgment.

JUSTICE TRIEWEILER joins in the foregoing dissenting opinion.


author: CHIEF JUSTICE TURNAGE

text:
    IN RE THE MARRIAGE OF ROGER LOWELL BLADES, Petitioner and Appellant, and BETTY LOUISE BLADES, Respondent and Respondent.
    No. 94-288.
    Submitted on Briefs November 18, 1994.
    Decided December 29, 1994.
    51 St.Rep. 1538.
    269 Mont. 198.
    887 P.2d 735.

      For Appellant: Chris Christensen, Keil & Christensen, P.C., Conrad.
    For Respondent: George Best, Kalispell.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Roger Lowell Blades appeals from the property distribution made by the Eleventh Judicial District Court, Flathead County, in this dissolution of marriage. We reverse and remand.

The dispositive issue is whether the District Court erred in distributing to Roger as part of the marital estate two pension plans in which his interest was not vested.

The parties were married for thirty-five years before they separated in 1992. All three of their children are now adults. At the date of trial, Roger was fifty-eight years old, receiving a pension, and seeking additional employment. Betty was fifty-six and working on a part-time, seasonal basis.

In its property distribution, the District Court awarded Betty the family residence, which it valued at $89,000. It awarded her personal property valued at a total of $31,075. It also awarded her 55 percent of Roger’s pension, which it valued at $245,698.

The court awarded Roger personal property valued at a total of $29,500. It awarded him 45 percent of his pension, which it valued at $201,037. It also awarded him his interest in two “optional” pensions, which it valued at $43,362 and $53,527 respectively. In order to be eligible for the first “optional” pension, Roger would be required to obtain one additional hour of work with the International Union of Operating Engineers. To be eligible for the second “optional” pension, he would have to obtain work for three years for the International Union of Operating Engineers and repay about $3,000 he and Betty withdrew from the pension in 1973, plus interest.

Did the District Court err in distributing to Roger as part of the marital estate the two pension plans in which his interest was not vested?

In apportioning a marital estate, a district court must

finally 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.

Section 40-4-202(1), MCA. This Court reviews findings of fact which divide marital property under a clearly erroneous standard. In Re Marriage of Barker (1994), 264 Mont. 110, 113, 870 P.2d 86, 88.

The right to receive a pension may be included in and distributed as part of a marital estate. Kis v. Kis (1982), 196 Mont. 296, 639 P.2d 1151. The value of a pension is its present value. Kis, 639 P.2d at 1153.

Betty cites this Court’s opinion in In Re Marriage of Laster (1982), 197 Mont. 470, 643 P.2d 597, as authority that an unvested pension plan may be included in a marital estate. However, in Raster, the husband was employed and contributing to the unvested plan at the time the marriage was dissolved. Here, Roger had not been employed for over two years before the dissolution. He plainly was not contributing to the unvested plans at the time of the dissolution.

Where there are substantial future risks involved in the calculation of the value of a pension, both parties should share those risks. In Re Marriage of Keedy (1991), 249 Mont. 47, 53, 813 P.2d 442, 445. In the present case, Roger was not at the time of trial eligible for benefits under either of the two pensions which the District Court termed “optional.” The steps which Roger must take to become eligible for either plan involve obtaining reemployment. Clearly, significant risks must be considered in calculating the value, if any, of these pensions. In distributing the “optional” pensions to Roger, the District Court assigned all of those risks to Roger and none to Betty.

Additionally, Betty did not submit evidence during trial of the value of either of the two pensions. Her only evidence of those values was submitted in an attachment to a post-trial brief filed with the District Court. Roger took the position at trial that the two pensions had no value. Therefore, the “estimates” of value which the District Court assigned to the pensions have no support in the trial record.

We hold that the court erred in its assignment of these pensions to Roger as part of his share of the marital estate.

The other issues raised on appeal were whether the court erred in its valuation of the parties’ residence, whether it erred in dividing the household goods and personal property, and whether it erred in requiring Roger to retain Betty as the irrevocable recipient of the life insurance policy proceeds. Although none of these issues appear at first blush to involve clear error, our above holding as to the “optional” pensions will require recalculation of the marital estate and the equitable distribution thereof. We therefore conclude that we need not now address the remaining issues raised on appeal.

Reversed and remanded for further proceedings consistent with this opinion.

JUSTICES GRAY, TRIEWEILER, NELSON and WEBER concur.