author: JUSTICE HARRISON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. EDGAR REYNOLDS, a/k/a Edward Reynolds, Defendant and Appellant.
    No. 89-334.
    Submitted on Briefs April 26, 1990.
    Decided June 7, 1990.
    792 P.2d 1111.

      Michael Donahoe, Helena, for defendant and appellant.
    Marc Racicot, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, Gerry M. Higgins, Special Deputy County Atty., Golden Valley County, Ryegate, for plaintiff and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Defendant Edgar Reynolds appeals a Golden Valley County jury verdict finding him guilty of sexual intercourse without consent. We affirm.

Defendant presents three issues for review:

1. Was defendant denied the right to a speedy trial by a delay of 243 days from arrest to trial?

2. Did the trial court’s refusal to order the release and disclosure of “Janey Doe’s” medical and psychiatric records deny defendant the right to confront witnesses against him or the right to due process?

3. Was it plain error to permit the use of expert testimony to identify “Janey Doe” as the victim of sexual abuse?

An information filed March 15, 1988 charged defendant Edgar Reynolds with sexual intercourse without consent in violation of sec. 45-5-503, MCA, or in the alternative, sexual assault in violation of sec. 45-5-502, MCA. The alleged victim was defendant’s sixteen-year-old adopted daughter, “Janey Doe.”

Acting on information that Janey Doe may have been sexually abused, Rochelle Beley, a social worker for the Montana Department of Family Services assigned to Golden Valley County, interviewed Janey in January, 1988. Ms. Beley noticed Janey had numerous cuts on her left arm. Fearing that the girl might be suicidal, Ms. Beley arranged for Janey Doe to meet with Sandi Burns, a Billings psychotherapist and expert on child sexual abuse. Ms. Beley also reported the suspected sexual abuse to the county attorney.

In March of 1988, Janey Doe entered the 2-North Psychiatric Unit of Billings Deaconess Hospital for crisis intervention. After her release she returned to her home but was soon placed in a foster home in Ryegate. In June, 1988, Ms. Beley, after receiving a phone call from Janey, went to her foster home and found the girl sitting on the edge of the bathtub covered with blood. Janey Doe had used a razor to cut herself down her entire left arm, both legs and across her stomach. Janey was then admitted to Rivendell, a Billings treatment center for emotionally disturbed children. Following a two-month stay at Rivendell, Janey was placed in a Park City foster home.

After a change venue and three continuances the trial was held in Roundup on November 28-30, 1988. Janey Doe testified at trial that she had started cutting on herself in seventh or eighth grade because she could not deal with the defendant’s sexual abuse. Defendant’s abuse of Janey started before she was in the fourth grade and continued beyond November, 1985, when an earlier referral had been investigated. Typically, defendant would ask Janey to come into his bedroom and “scratch his back.” Defendant would then have her masturbate him. Sometimes defendant would insert his fingers or a vibrator into Janey’s vagina, show her pornography or perform other sexual acts on Janey Doe.

Defendant also testified at trial, denying having performed such acts against his adopted daughter. The jury returned a verdict of guilty of sexual intercourse without consent. At sentencing, defendant admitted sexually abusing Janey Doe and accepted responsibility for his actions.

Additional facts will be discussed as necessary.

Issue 1: Was defendant denied the right to a speedy trial by a delay-of 243 days from arrest to trial?

From the time the defendant was arrested on March 21, 1988, the trial was delayed by motion four times. During this time, however, defendant was free on bond.

Originally set for May 25, the trial was first reset for August 8 at the omnibus hearing following defendant’s indication that he intended to file a change of venue. On July 27, Janey Doe’s guardian ad litem filed a motion to continue the trial, citing as reasons the fact that Janey was under the care of attending physicians and mental health professionals and requiring Janey to participate as a witness at the time scheduled for trial would likely cause her to experience additional psychological trauma and emotional harm and would not be in her best interests. Defendant did not dispute the basis for the motion, but did object to the continuance as impeding his right to a speedy trial. Neither party requested a hearing on the motion. The motion was granted and trial reset for September 13.

Citing the same reasons as in the first motion to continue, Janey’s guardian ad litem filed a second motion for continuance on August 30, 1988. Again defendant did not dispute the basis for the motion but did oppose the continuance as a denial of his right to a speedy trial. Following a hearing on the matter, the second motion for continuance was granted and trial set for November 14. At this point the District Court required the guardian ad litem to report the victim’s condition to the court and counsel every two weeks.

Defendant’s counsel requested the final motion for continuance, in order to accommodate a planned hunting trip and to allow more time for witness interviews. The court granted the motion and trial was reset for November 28. Defendant accepts responsibility for the final two-week delay.

On the first day of the trial defendant filed a motion to dismiss for lack of a speedy trial. Following argument on the motion, the District Court denied the defendant’s motion to dismiss.

The Sixth Amendment to the United States Constitution and Article II, Section 24 of the Montana Constitution guarantee the defendant’s right to a speedy trial. The United States Supreme Court adopted a four-factor balancing test where the conduct of both the prosecution and the defendant are weighed to determine whether defendant’s right to a speedy trial has been denied. Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. The four factors to be balanced are: (1) length of delay; (2) reasons for the delay; (3) defendant’s assertion of the right; and (4) prejudice to the defendant. State v. Tilly (1987), 227 Mont. 138, 140, 737 P.2d 484, 486 (citing Barker, at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 117).

Considering the length of and reasons for the delay factors, we note 257 days passed from the time the information was filed on March 15, 1988 to the time trial commenced on November 28, 1988. A 257 day delay triggers a speedy trial inquiry. Tilly, at 140, 737 P.2d at 486; State v. Palmer (1986), 223 Mont. 25, 27, 723 P.2d 956, 958; State v. Chavez (1984), 213 Mont. 434, 441, 691 P.2d 1365, 1370. Such a delay gives rise to a presumption that the defendant has been deprived of a speedy trial and shifts the burden to the State to either offer a reasonable excuse for the delay or demonstrate that the defendant was not prejudiced by the delay. Tilly, at 141, 737 P.2d at 486. Should both excuse and prejudice exist, these factors must be balanced. Id.

The 243-day delay was primarily the result of the two continuances requested by Janey’s guardian ad litem and granted by the District Court. In moving for the continuances, the guardian stated that deep psychological harm to Janey would likely result from her testifying at that time. Janey Doe, a material witness for the State, was temporarily unavailable to testify because of her emotional instability. The State provides a reasonable excuse for delay when a material witness is unavailable to testify due to illness largely caused by the defendant. Tilly at 141, 737 P.2d at 486 (quoting Barker, at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117).

Of the 257 days, the defendant accepts responsibility for fourteen days caused by the defense attorney’s request for the last continuance which delayed the trial an additional two weeks, leaving 243 days to account for. The State contends that the defendant’s motion for a change of venue occasioned a 74-day delay chargeable to the defendant. We disagree. It is clear from the court’s order granting the change of venue that no delay in the trial was anticipated by the District Court:

“IT IS ORDERED that the Defendant’s Motion for Change of Venue is Granted in that the place of jury trial in this matter shall be moved from Ryegate, in Golden Valley County, to Roundup, in Musselshell County. Jury trial herein, estimated to take-three days, remains set for 9:00 a.m. on August 8, 1988. Golden Valley County will assume the costs of said trial.” (Emphasis in original.)

As the language of the order makes clear, the trial remained set for August 8, 1988. We decline to attribute any delay to the defendant for exercising his option to request a change of venue.

Turning to the third factor, there is no doubt that defendant asserted his right to a speedy trial. Both times the guardian ad litem filed for continuances, defendant objected to such motions, citing his right to a speedy trial. Additionally, at the outset of the trial, defendant filed a motion to dismiss for lack of a speedy trial. Such assertions of the right to a speedy trial are timely. State v. Steward (1975), 168 Mont. 385, 390-91, 543 P.2d 178, 182.

As to the fourth factor, prejudice to the defendant, the Barker case identified three interests of a defendant which a delay of trial may prejudice: (1) prevention of oppressive pretrial incarceration; (2) minimizing anxiety to accused; and (3) limiting the possibility the defense will be impaired. Tilly at 143, 737 p.2d at 487 (citing Barker at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118). Considering these interests as applied to the facts in the case at bar, we find no prejudice to the defendant. Defendant had been free on bond since four days after his arrest, and was free to continue working as a long-haul trucker. The record does not show nor does the defendant allege that he was unduly anxious or concerned. “One may expect a certain amount of anxiety and concern when accused of a crime.” Tilly at 143, 737 P.2d at 488 (citing Chavez, supra). Nor can we find evidence in the record that defendant’s defense was possibly impaired. Although defendant contends that a Dr. Alpacka who had treated Janey Doe had left the state and could not be located, we do not find this prejudicial because neither the State nor the defendant knew what Dr. Alpacka’s testimony would have been, Dr. Alpacka was not listed as a witness by either party, and the record does not disclose the extent of his involvement with Janey’s treatment. We find the defendant was not prejudiced by the delay.

Accordingly, we hold the defendant was not denied his right to a speedy trial.

Issue II: Did the trial court’s refusal to order the release and disclosure of Janey Doe’s medical and psychiatric records deny defendant the right to confront witnesses against him or the right to due process?

On the first day of trial defendant filed a motion to obtain Janey Doe’s medical and psychiatric records, arguing defendant was entitled to copies of medical reports, psychological evaluations or interviews of any of the counselors or psychiatrists that treated Janey, including Rochelle Beley, Sandi Burns, Dr. Michael Sievert and Dr. Harry Newman. Defendant reasoned that because the State intended to call as expert witnesses psychotherapist Sandi Burns, psychiatrist Dr. Michael Sievert, Ms. Burns and Dr. Sievert would base their opinion testimony on conversations had with Janey Doe and other notes and reports on which the experts relied. Defendant claimed that in order to effectively cross-examine these witnesses and not be denied due process, defendant needed to examine Ms. Burns’ and Dr. Sievert’s notes on Janey. Defendant further argued that the State had access to information contained in social worker Rochelle Beley’s investigative file on Janey Doe, that such information may have been exculpatory, and the State was, therefore, obligated to disclose the file to defendant. Defendant also moved to prohibit the testimony of Burns, Sievert and Beley on the basis that the State failed to disclose the information contained in their investigative and psychological files.

The matter was heard on November 28. The discussion between the District Court and counsel indicates that the defense had received all medical and psychiatric reports that were in the possession of the prosecutors. Discussion also showed defense counsel had interviewed Ms. Beley and Ms. Burns before trial and that the prosecutors and guardian ad litem themselves had not examined the case files of the mental health professionals who had treated Janey Doe.

The files of Rochelle Beley, including any reports therein from Rivendell and Billings Deaconess Hospital’s 2-North Psychiatric Unit, were subjected to an in camera inspection by defense counsel. The prosecutor also agreed to ask psychotherapist Sandi Bums to bring her records for a similar in camera inspection, but defense counsel made no further request for inspection.

While allowing an inspection of Rochelle Beley’s file, the District Court denied motions as to all other records. Dr. Sievert did not testify at trial, nor did defendant subpoena him. Both Ms. Burns and Ms. Beley testified at trial and defense counsel cross-examined them without restriction.

We find that defendant was not denied either his right to confront witnesses or his due process rights because of the District Court’s refusal to grant defendant’s motion to obtain all Janey Doe’s medical and psychiatric records. We adopt the reasoning of our sister court in Colorado which held:

[T]he right of a defendant to confront his accusers is not equivalent to a constitutionally compelled rule of pretrial discovery. Rather, the right of confrontation is a trial right, guaranteeing an opportunity for effective cross-examination. See Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987).” (Emphasis in the original.)

People v. Exline (Colo. App. 1988), 775 P.2d 48, 49. Additionally, the United States Supreme Court has held that:

“The ability to question adverse witnesses, however, does not include the power to require the pretrial disclosure of any and all information that might be usefiil in contradicting unfavorable testimony.”

Pennsylvania v. Ritchie (1987), 480 U.S. 39, 53, 107 S.Ct. 989, 999, 94 L.Ed.2d 40, 54. (Footnote omitted.)

As we noted in a recent case, because defendant was afforded the opportunity to cross-examine all witnesses against him, the court’s ruling denying defendant access to the victim’s child abuse files of certain state agencies does not violate defendant’s right to confront his accusers. State v. Thiel (Mont. 1989), [236 Mont. 36], 768 P.2d 343, 345, 46 St.Rep. 182, 185.

We further hold that the medical records pertaining to the victim’s psychotherapeutic treatment are protected from disclosure by various recognized testimonial privileges which outweigh the defendant’s purported need for or limited right to such information in the hands of a non-adversary third party. Section 26-1-807, MCA, provides an unqualified privilege for confidential communications between a psychologist and client. The District Court acted properly in denying defendant’s motion to obtain access to Dr. Sievert’s, Sandi Burns’ and Dr. Newman’s records pertaining to Janey Doe.

Issue III: Was it plain error to permit the use of expert testimony to identify Janey Doe as the victim of sexual abuse?

Defendant argues that even though no objection was made at trial, the admission of testimony by Rochelle Beley and Sandi Burns indicating Janey Doe had been sexually abused was improper because it was not scientifically reliable. Defendant claims the issue is reviewable, however, under Rule 103(d), M.R.Evid., and our previous decision in State v. Wilkins (1987), 229 Mont. 78, 746 P.2d 588, as “plain error.”

The “plain error” rule is subject, in criminal proceedings, to subsection (2) of sec. 46-20-701, MCA, which reads:

“(2) Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded. No claim alleging an error affecting jurisdictional or constitutional rights may be noticed on appeal, if the alleged error was not objected to as provided in 46-20-104, unless the defendant establishes that the error was prejudicial as to his guilt or punishment and that:
“(a) the right asserted in the claim did not exist at the time of the trial and has been determined to be retroactive in its application;
“(b) the prosecutor, the judge, or a law enforcement agency suppressed evidence from the defendant or his attorney that prevented the claim from being raised and disposed of; or
“(c) material and controlling facts upon which the claim is predicated were not known to the defendant or his attorney and could not have been ascertained by the exercise of reasonable diligence.”

Defendant presents no evidence that establishes the alleged error was prejudicial as to his guilt or punishment and that meets any of the three criteria listed in sec. 46-20-701(2), MCA.

We have stated before that when expert testimony in child sexual abuse cases has not been objected to at trial as improper, this Court will not entertain the issue on appeal. State v. Eiler (1988), 234 Mont. 38, 52, 762 P.2d 210, 219.

We affirm the decision of the District Court.

CHIEF JUSTICE TURNAGE and JUSTICES HUNT, BARZ and McDonough concur.


source: Caselaw Access Project

license: Public Domain

text:
    In re the MARRIAGE OF CAROL ARBUCKLE, Petitioner and Respondent, and MERRILL ARBUCKLE, Respondent and Appellant.
    No. 89-411.
    Submitted on Briefs May 3, 1990.
    Decided June 7, 1990.
    792 P.2d 1123.
    Linda McNiel, Bozeman, for respondent and appellant.

      Edmund P. Sedivy, Jr., Morrow, Sedivy & Bennett, Bozeman, for petitioner and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This case presents the father’s appeal from a decision of the Eighteenth Judicial District, Gallatin County, Montana, on the father’s motions for Modification of Child Support, Child Visitation and Child Custody for the parties’ two minor daughters. We affirm.

Appellant raises the following issues for review:

I. Did the District Court exercise proper discretion by awarding custody of the minor child, Judi, to the mother?

II. Should the court consider the wishes of the children regarding custody?

III. If the District Court elects to interview the minor children involved in a custody dispute, must the court release the transcript of the interview and make findings as to the wishes of the children?

IV. Did the District Court properly award attorney’s fees to the mother?

V. Did the District Court order the proper amount of child support?

Prior to this decision, the parties had been before the District Court frequently for over two years on various issues arising out of the parties’ marriage dissolution. We will set forth only those motions which directly affect this appeal.

On July 30, 1987, the District Court granted sole custody of the parties’ three minor children, Terri, 17, Heidi, 12, and Judi, 8, to the mother. The District Court also ordered the father to pay child support at $250/month per child while there were three minor children and set support at $300/month per child when there were two minor children. Pursuant to the father’s motion, the District Court amended its decision and granted the parties joint custody of the minor children giving the mother primary physical custody.

In early 1988, the father remarried. When Terri turned 18 she moved in with her father and step-mother. In May of 1988, the father filed a motion for Modification of Child Support, Child Visitation and Child Custody to give him sole custody of Judi. He amended that motion in June of 1988 to seek joint custody of Judi, then age 9, and Heidi, then age 14, but granting primary physical custody to him. The bases for the modification were that Judi expressed a preference to live with him and that Heidi had moved into his home and refused to return to her mother’s home.

Prior to the December 1, 1988 hearing on the father’s motion, Dr. John Platt, by agreement of the parties, conducted a psychological investigation of the family and submitted a report to the District Court. The District Court interviewed the two minor children in chambers. At the hearing the District Court heard testimony from Dr. Platt, both parties, the father’s wife, a teacher at Judi’s school in Bozeman and three people who had known the parties for many years.

Between the time Dr. Platt conducted his investigation and the hearing, the mother had moved with Judi from the family home several miles outside of Three Forks, Montana, into Bozeman.

On May 23, 1989, the District Court entered its Findings of Fact and Conclusions of Law. The District Court continued joint legal custody of the two minor daughters, but gave the father primary physical custody of Heidi and the mother primary physical custody of Judi. The father was also ordered to pay $300/month child support for Judi for ten and one-half months of the year. For the one and one-half months in summer when both daughters would be with their mother, the court ordered the father to pay $400/month for the full month and $350/month for the divided month. Further, the District Court ordered the father to pay $1,000 of the mother’s attorney’s fees. This appeal followed.

I.

Did the District Court exercise proper discretion by awarding custody of the minor child, Judi, to the mother?

In pertinent part, sec. 40-4-219, MCA, provides:

(1) The court may in its discretion modify a prior custody decree if it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of entry of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child and if it further finds that:

“(a) the custodian agrees to the modification;
“(b) the child has been integrated into the family of the petitioner with consent of the custodian;
“(c) the child’s present environment endangers seriously his physical, mental, moral, or emotional health and the harm likely to be caused by a change of environment is outweighed by its advantages to him;
“(d) the child is 14 years of age or older and desires the modification;

The District Court found that the father had not met the above statutory requirements in Judi’s case. When reviewing a district court’s findings, this Court “[w]ill not reverse a District Court’s findings unless they are clearly erroneous. ” In re Marriage of Johnson (Mont. 1989), [238 Mont. 153,] 777 P.2d 305, 307, 46 St.Rep. 1164, 1167.

Appellant’s main grounds for contesting the District Court’s findings come from Dr. Platt’s testimony that both Judi and Heidi should live with their father and that living with her mother would seriously endanger Judi. However, the District Court was not required to adopt Dr. Platt’s opinion. Upon review of the hearing transcript, we note that the District Judge and counsel questioned Dr. Platt extensively about how he had arrived at his opinion. The record also discloses that at the time of the hearing Dr. Platt had no current knowledge of how Judi was adjusting to the move to Bozeman. However, the mother presented credible evidence that Judi was well adjusted, was participating in activities outside of school and was doing well academically. Further, evidence was presented that the mother had always been a loving and caring parent.

At most Dr. Platt’s testimony creates conflicting evidence. When the record contains conflicting evidence, “[i]t is the function of the District Court to resolve such conflicts. (Citation omitted.)” In re Marriage of Penning (Mont. 1989), [238 Mont. 75,] 776 P.2d 1214, 1216, 46 St.Rep. 1103, 1105. Based on substantial credible evidence, the District Court resolved the conflict in the mother’s favor. We hold that the District Court’s Findings that the father had not met the modification of custody criteria set forth in sec. 40-4-219, MCA, concerning the custody of Judi are not clearly erroneous.

n.

Should the court consider the wishes of the children regarding custody?

This issue has no merit. The District Court’s Memorandum that accompanies its Findings of Facts and Conclusions of Law clearly demonstrates that it had considered both Heidi’s and Judi’s wishes. Regarding Judi, the District Court stated that it felt she had been unduly influenced to express a preference to live with her father. We note that Dr. Platt’s report also stated that he felt that Judi’s sisters, Heidi and Teri, had been influencing her to want to live with her father. We reject appellant’s contention.

III.

If the District Court elects to interview the minor children involved in a custody dispute, must the court release the transcript of the interview and make findings as to the wishes of the children?

Appellant argues that the District Court abused its discretion by not releasing the transcript of its interview with Judi and Heidi and by not making specific findings concerning the children’s wishes. Section 40-4-214, MCA, provides:

“Interviews. (1) the court may interview the child in chambers to ascertain the child’s wishes as to his custodian and as to visitation ... The court shall cause a record of the interview to be made and to be part of the record of the case ...” (Emphasis added.)

We have discussed the purpose of sec. 40-4-214, MCA, as follows:

“[o]nce such discretion is exercised the statute ‘mandates that a record of the interview be made and that such record be part of the case record. ’ ... Further, we have held that a District Court must make a specific finding stating the wishes of the children as to their custodian ... Without the record of the interview and without specific findings as to the wishes of the children, counsel and this Court do not know with any degree of certainty the basis for the District Court’s conclusions on custody matters.” (Emphasis added; citations omitted.)

In re Marriage of Brown (1978), 179 Mont. 417, 425-26, 587 P.2d 361, 366, quoting Schiele v. Sager (1977), 174 Mont. 533, 538, 571 P.2d 1142, 1145. In this case, our holding on Issue II renders this issue moot. The record indicates that Heidi and Judi’s wishes were known to all parties prior to the hearing. Further, the District Court clearly set forth its reasons for awarding physical custody of Heidi to the father and leaving physical custody of Judi with the mother.

IV.

Did the District Court properly award attorney’s fees to the mother?

Appellant argues that the District Court erred in ordering the father to pay $1,000 of the mother’s attorney’s fees. Section 40 4-219(4), MCA, provides:

“(4) Attorney fees and costs shall be assessed against a party seeking modification if the court finds that the modification action is vexatious and constitutes harassment.”

This action was for a modification of custody, therefore, according to appellant, no attorney’s fees should have been assessed.

The record does not support appellant’s contention that the District Court awarded the attorney’s fees pursuant to the modification action. As mentioned, prior to the December 1, 1988 hearing, both parties had been before the District Court several times on various issues. On September 19, 1988, the District Court heard testimony on the mother’s request for attorney’s fees that were necessitated by the father’s actions. The District Court also received an affidavit from the mother’s attorney showing fees in excess of $1,800. The record discloses that the attorney’s fees issue had yet to be decided and was still before the District Court at the time of the December 1, 1988 hearing. The record also discloses that other issues besides modification of custody were heard during the December hearing but were not decided by the District Court because the parties settled prior to the District Court’s decision.

Findings Nos. 12 and 13 from the court’s May 23, 1989 Findings of Fact, Conclusions of Law and Memorandum state:

“12. That in the past, this Court has found that the ... [father] continually brought these actions before the Court, found the ... [father] to be in contempt, and contemplated assessing attorney’s fees against the ... [father].
“13. That the ... [mother] has put into evidence attorney’s fees in excess of ONE THOUSAND SEVEN HUNDRED DOLLARS ($1,700.00) and the Court hereby apportions ONE THOUSAND DOLLARS ($1,000.00) of that to be attributable to the actions of the ... [father] and finds h[e] is liable for ONE THOUSAND DOLLAR[S] ($1,000.00) attorney’s fees on behalf of ... [mother’s] attorney.”

Clearly, the District Court awarded attorney’s fees because of past actions, and not because of the modification action. Section 40-4-110, MCA, grants the District Court the authority to award attorney’s fees. We hold that the District Court did not abuse its discretion in awarding attorney’s fees to the mother.

V.

Did the District Court order the proper amount of child support? Essentially, appellant argues that the District Court abused its discretion in ordering him to pay $300/month child support for Judi and in not requiring the mother to pay child support for Heidi. We disagree.

The District Court’s Findings of Fact specifically discuss the parties’ abilities to pay and Judi’s needs. In the context of this case, we find that the District Court satisfied the requirements of sec. 40-4-204, MCA, which details what a court must consider in setting child support and we find that the Findings are not clearly erroneous. We hold that the District Court did not abuse its discretion by ordering the father to pay $300/month child support for Judi.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES SHEEHY, McDONOUGH and HUNT concur.


author: JUSTICE WEBER

text:
    In the Matter of the ESTATE OF ALISON KIRK STENSON, a/k/a Al Stenson, Deceased.
    No. 89-546.
    Submitted on Briefs April 12, 1990.
    Decided June 7, 1990.
    792 P.2d 1119.
    Gregory G. Murphy, Moulton, Bellingham, Longo & Mather, Billings, for appellant.
    W. William Leaphart, Leaphart Law Firm, Helena, for respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from an order by the District Court, First Judicial District, Lewis and Clark County, Montana, which ordered the personal representative of an estate to pay certain attorney fees. The personal representative appeals. We affirm.

The sole issue presented for our review is whether the District Court erred in awarding attorney fees pursuant to sec. 72-3-632, MCA.

Alison Stenson died as a result of an accident at a mine owned by the Pegasus Gold Corporation (Pegasus). On the morning of November 11, 1986, Alison Stenson was working near the bucket end of a Caterpillar front end loader. A co-worker informed Alison Stenson he was going to move the bucket and proceeded to do so. The co-worker then found that Alison Stenson was caught between the bucket and the differential. The co-worker released the bucket and ran for help. Pegasus had an ambulance at the site but it was not operational. An ambulance was called from Boulder, Montana, but did not arrive for over an hour after the accident. Alison Stenson died while being transported by ambulance to the hospital. Physicians reported that his death was caused by blood loss, and that if Alison Stenson had received transfusions earlier, his chances of survival would have been good.

Alison Stenson was thirty years old at the time of the accident, and unmarried. His father, Roger Stenson, talked to attorney Robert Woodahl, and the law firm of Luxan and Murfitt, and on November 19, 1986, signed a contingency fee agreement with Mr. Woodahl and Luxan and Murfitt providing for an attorneys’ fee of one third of any settlement received from a wrongful death action. Roger Stenson was appointed personal representative of his son’s estate in December of 1986. The retained lawyers investigated, interviewed witnesses, and after research developed a theory of third party liability. In May 1987, Luxan and Murfitt presented a settlement brochure to Pegasus’ insurance company on the wrongful death claim.

In July 1987, Roger Stenson received a questionnaire from the Social Security Administration concerning a claim that had been made for benefits. This claim was made by Rebecca Rebel Autumn Countryman, who claimed to be the minor daughter of the deceased, Alison Stenson. Mr. and Mrs. Roger Stenson informed the Social Security Administration and their attorneys that to their knowledge their son had no children, and that they did not know Rebecca Countryman.

Although Luxan and Murfitt had presented the settlement brochure to the insurance company, they suspended further negotiations because of the issue as to the proper heirs to the estate. They then initiated an heirship or paternity proceeding. In September 1987, Luxan and Murfitt advised Roger Stenson by letter that they would be charging $85 per hour, plus costs, for their work in regard to the heirship matter. They advised that the contingency arrangement in regard to the wrongful death action would remain unchanged.

By the spring of 1988, after an exhaustive investigation on the part of Luxan and Murfitt, and after a hearing on the matter, it became clear that Rebecca Countryman was in fact the daughter of Alison Stenson, and the court entered an order to that effect. On May 19, 1988, Luxan and Murfitt moved to withdraw as counsel for Roger Stenson, and on May 24, 1988, that order was granted by the court. Likewise, on June 1, 1988, Roger Stenson moved to withdraw as personal representative. That motion was also granted.

On June 24, 1988, Mr. Craig Buehler, an attorney, was appointed successor personal representative for the estate. Mr. Buehler proceeded to settle the wrongful death survivorship claim for a structured settlement of the present value of approximately $300,000. Mr. Buehler initially received fees of $50,000, $300 per month until Rebecca becomes twenty-two, with another $50,000 to be paid when she becomes twenty-two.

Luxan and Murfitt filed a creditor’s claim and an attorney fee lien against the estate for the work they performed on behalf of the estate. At District Court, Luxan and Murfitt acknowledged that the contingency arrangement was terminated prior to settlement. The fees submitted, in the total amount of $36,048, were based upon an hourly rate and actual costs. Mr. Robert Woodahl submitted a statement of fees in the amount of $10,763, which represented 116.5 hours at $85 per hour, plus approximately $855 in actual costs. The firm of Luxan and Murfitt submitted a statement of fees in the amount of $25,284, which represented attorney fees billed at an average hourly rate of $75 per hour. The statement also included approximately $340 of itemized costs.

As personal representative, Mr. Buehler moved to dissolve the lien and deny the creditor’s claim. Both parties filed cross motions for summary judgment with supporting memorandum. The District Court granted summary judgment in favor of Luxan and Murfitt and Mr. Woodahl on the issue of entitlement. The court concluded there were no genuine issues of material fact as to whether the attorneys were entitled to some fees; however, the court reserved judgment on whether an award of fees should be based on a portion of statutorily allowable fees. The court also reserved judgment on the value of the services. The court further ordered that $50,000, which was set aside from the estate for attorney fees, be held in trust pending the outcome of the dispute.

On June 15, 1989, the court held a hearing on the remaining attorney fee issues. At that hearing testimony was taken from Mr. Woodahl and two attorneys from the Luxan and Murfitt firm. Two other local attorneys testified in regard to billing practices of law firms in the area. Additionally, Ms. Countryman, the mother of Rebecca Countryman, testified.

Following the hearing and further briefing, the court issued its order awarding Mr. Woodahl and Luxan and Murfitt their total requested fees and costs in the amount of $36,048. The District Court concluded that the work by the attorneys was performed on behalf of Roger Stenson, in his capacity as personal representative of the estate. The District Court based its order on a finding that Mr. Stenson had pursued the heirship matter “in good faith” as required by sec. 72-3-632, MCA, and that both the wrongful death survivorship action and the heirship proceeding benefited the estate. The court concluded that the attorney fees were recoverable on a quantum meruit basis, and that attorney fees were also recoverable pursuant to sec. 72-3-632, MCA. The court found the fees to be reasonable. In its order the court also took note of the fact that the award does not affect the beneficiary of the estate; rather the dispute is between attorneys in regard to who should receive the compensation; that Mr. Buehler has been handsomely rewarded for his efforts in that he has already received $50,000 and will receive $300 per month; and that the award will leave Mr. Buehler with another large fee even after paying the other attorneys.

On appeal Mr. Buehler contends that under the statutes, the attorneys are limited to attorney fees one and one half times the compensation allowable to the personal representative; that there can be no quantum meruit because there was a contingency fee agreement; and that the contingency fee agreement cannot control because the settlement was not completed. We agree with the conclusion of the District Court that the award of attorney fees pursuant to sec. 72-3-632, MCA, was proper. Section 72-3-632, MCA, states:

“Expenses of personal representative in estate litigation. If any personal representative or person nominated as personal representative defends or prosecutes any proceeding in good faith, whether successful or not, he is entitled to receive from the estate his necessary expenses and disbursements, including reasonable attorneys’ fees incurred.”

Our standard of review on the issue of fees is stated in Matter of Estate of Stone (Mont. 1989), [236 Mont. 1,] 768 P.2d 334, 336, 46 St.Rep. 134, 136:

“The review of fees paid or taken by a personal representative is left to the sound discretion of the District Court. We will not overturn that decision absent a showing of abuse of discretion, and the court’s findings of fact will be upheld unless clearly erroneous.” (Citations omitted.)

In Matter of Estate of Stone, the Court stated that sec. 72-3-632, MCA, deals explicitly with litigation expenses incurred by the personal representative on behalf of the estate and allows for a reasonable attorney fee for actions maintained in good faith. The District Court determined that the actions had been prosecuted in good faith and that the fees were reasonable. After a review of the record, we conclude that substantial credible evidence supports those findings.

Mr. Buehler in substance agrees that the legal services on the wrongful death claim were in good faith. He does contend that Mr. Stenson did not investigate the heirship issue in good faith, contending that Mr. Stenson knew that Rebecca Countryman was the daughter of Alison Stenson and therefore the sole heir of the estate. While there is a contradiction in the record, there clearly is substantial evidence from which the court could conclude that Mr. and Mrs. Stenson had no knowledge that Rebecca Countryman was their son’s daughter. The fact that Mr. Stenson and Luxan and Murfitt discontinued settlement negotiations on the wrongful death action in order to investigate the paternity issue is an indication of good faith. Luxan and Murfitt also filed a claim with Workers’ Compensation on behalf of Rebecca Countryman to prevent her claim from being time barred. We conclude there is substantial credible evidence supporting the findings of the District Court that the proceedings were brought in good faith.

On the issue of the reasonableness of the fee, this Court has previously stated that “[w]ith regard to legal services, a reasonable fee should be ascertained by considering the time spent, the nature of the service, and the skill and experience required.” Matter of Estate of Stone, 768 P.2d at 336; see also Matter of Estate of Painter (1977), 39 Colo.App. 506, 567 P.2d 820, on remand, 671 P.2d 1331 (1983). Additionally, to be reasonable the fees must be related to services rendered to benefit the estate, rather than to benefit the personal interest of an administrator or estate counsel. Matter of Estate of Painter, 671 P.2d at 1334.

At the hearing Patrick Hooks, an attorney in the Helena area, testified that he had reviewed the files and time sheets of Luxan and Murfitt and considered their fees to be reasonable and in accord with fees charged in the same geographical area. He testified that the wrongful death survivorship action had been developed upon an “ingenious” theory of third party liability which had proved very successful. He testified that the heirship proceeding was complicated since the putative father was deceased, preventing proof of paternity by the usual blood tests. Mr. Hooks testified that the work done by the attorneys demonstrated a high level of experience and skill. We conclude that substantial credible evidence, including detailed records of the work which was done, supports the reasonableness of the fees.

The District Court also found that the work of Mr. Woodahl and Luxan and Murfitt benefited the estate and its rightful heir. Had the wrongful death survivorship action not been successfully pursued, it appears that the estate of Alison Stenson would have consisted of a car and a motorcycle, for a total value of approximately $3400. The attorneys here formulated a theory whereby the estate was not limited to workers’ compensation benefits as the exclusive remedy, but was able to realize a structured settlement of the present value of $300,000. Additionally, the heirship proceeding, for which the Luxan and Murfitt firm did extensive investigation, resulted in the determination of the rightful heir. We conclude that the services of Mr. Woodahl and the Luxan and Murfitt firm were a substantial benefit to the estate.

We conclude that the District Court did not err in awarding attorney fees pursuant to sec. 72-3-632, MCA. We affirm the award of attorney fees by the District Court.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, HUNT, McDONOUGH and BARZ concur.

JUSTICE SHEEHY did not participate.


author: JUSTICE BARZ

text:
    CITIZENS STATE BANK, a Montana banking corporation, Plaintiff and Respondent, v. JOHN R. RYAN and Roberta C. Ryan, husband and wife, Defendants and Appellants, and Butler R. Eitel, American Land and Title Company, Montana Board of Housing, Donald F. Tunnell and Evelyn I. Tunnell, Farmers State Bank and Larry Perrson, trustee, Defendants and Respondents.
    No. 89-629.
    Submitted on Briefs April 19, 1990.
    Decided June 7, 1990.
    792 P.2d 1116.
    Terry A. Wallace, Missoula, for defendants and appellants.
    George H. Corn, Bell, Corn & Bell, Hamilton, for defendant and respondent Farmers State Bank.
   JUSTICE BARZ

delivered the Opinion of the Court.

Defendants John R. and Roberta C. Ryan appeal from the decision of the District Court of the Fourth Judicial District, Ravalli County, granting Farmers State Bank’s motion for possession of the real property in question pursuant to sec. 27-1-431, MCA. We affirm.

In March, 1981, Farmers State Bank loaned John R. and Roberta C. Ryan fifty-three thousand dollars ($53,000) for the real property located on the West 210 feet of Lot four, Black Lane Estates, Ravalli County, Montana, also known as 167 Black Lane, Corvallis, Montana. This loan was secured by a trust indenture dated March 26, 1981 and was duly recorded in Book 113, page 210 at the Clerk and Recorder Office in Ravalli County. This trust indenture and the underlying promissory note was then purchased by and assigned to the Montana Board of Housing. On September 28, 1988, the successor trustee, John H. Grant, was appointed.

In December, 1982, Citizens State Bank loaned the Ryans twenty thousand dollars ($20,000). The promissory note was secured by a trust indenture executed on December 1, 1982 between the Ryans and Citizens State Bank for the real property described as Lot four, Black Lane Estates, Ravalli County, Montana. This trust indenture was also duly recorded at the Clerk and Recorder Office in Ravalli County in Book 115, page 612.

The Ryans subsequently defaulted on both of the trust indentures held by the Montana Board of Housing and by the Citizens State Bank. On August 27, 1987, Citizens State Bank filed a complaint in the District Court of the Fourth Judicial District, Ravalli County, seeking to recover on the promissory notes and to foreclose the trust indenture and mortgage on Lot four, Black Lane Estates, Ravalli County. Citizens State Bank also sought to assert the superiority of its claim as to the other defendants, including Farmers State Bank.

On September 23, 1987, Citizens State Bank stipulated that the interests of the successor of Farmers State Bank as beneficiary and the American Land Title Company (a/k/a First American Title Company of Montana) as trustee was prior in interest to the interest of Citizens State Bank as it applied to the West 210 feet of Lot four, Black Lane Estates, Ravalli County. Citizens State Bank therefore stipulated that any foreclosure decree entered in regards to the real property in question should reflect that the sale is subject to the interest of the American Land Title Company as trustee and the successor of Farmers State Bank as beneficiary. In light of the Farmers State Bank assigning its interest in the trust indenture to the Montana Board of Housing, Citizens State Bank further stipulated on March 8, 1988 that any foreclosure decree in the real property in question should reflect that the sale is subject to the successor of the Montana Board of Housing as beneficiary.

The Ryans filed an answer on April 8, 1988, claiming that Roberta Ryan had no interest in the property involved in the suit. On September 29, 1988, the Montana Board of Housing executed a notice of trustee sale of the Ryan’s real property located on the West 210 feet of Lot four, Black Lane Estates, Ravalli County, Montana. The notice stated that the default for which the foreclosure was made was for the nonpayment of the amounts due pursuant to the trust indenture dated March 26, 1981. John H. Grant, the successor trustee, filed affidavits of mailing, posting, and publication as required by sec. 71-1-315, MCA. The real property was offered for sale on February 21, 1989 at 10:00 a.m. inside the front door of the Ravalli County Courthouse, Hamilton, Montana. The Montana Board of Housing was the highest and best bidder and became the purchaser of the said property at the sale. A trustee’s deed conveying the real property to the Montana Board of Housing was executed on March 3, 1989 and filed with the Clerk and Recorder Office, Ravalli County on March 8, 1989. On May 12, 1989, the Montana Board of Housing conveyed to Farmers State Bank the real properly located at the West 210 feet of Lot four, Black Lane Estates, Ravalli County.

In the spring of 1989, the District Court set a pretrial conference for the case. On June 6, 1989, Farmers State Bank filed a notice and motion for judgment for possession for the real property located at the West 210 feet of Lot four, Black Lane Estates, Ravalli County. Farmers State Bank also filed a supporting brief. The matter was set for hearing on June 14, 1989. The Ryans were personally served the notice, motion and brief on June 8, 1989. On June 9, 1989, the Ryans personally filed a motion to dismiss the complaint and an answer to Farmers State Bank’s motion for judgment for possession of real property. The Ryans also argued that Farmers State Bank failed to give them proper notice of their motion for judgment for possession of real property. At the close of the June 14, 1989 hearing, the court set a briefing schedule and both the Ryans and Farmers State Bank filed briefs and responses.

On August 16, 1989, the court issued its Opinion, Order and Judgment stating that pursuant to sec. 27-1-431, MCA, and the statutes regarding Small Tract Financing, secs. 71-1-301 through -321, MCA, that the Ryans were in wrongful possession of the West 210 feet of Lot four, Black Lane Estates, Ravalli County and therefore granted Farmers State Bank’s motion for judgment for possession of real property.

The sole issue raised on appeal is whether the District Court erred in granting Farmers State Bank’s motion for possession of real property pursuant to sec. 27-1-431, MCA.

In 1963, the Montana legislature enacted the Small Tract Financing Act of Montana. The law in effect at the time the Ryans and Farmers State Bank executed the March 26, 1981 trust indenture stated that “[transfers in trust of any interest in real property of an area not exceeding 15 acres may be made to secure the performance of an obligation of a grantor ... to a beneficiary ...” Section 71-1-304(1), MCA (1979). The Act also provided that after a grantor breaches his obligation that a power of sale is then conferred upon the trustee. Section 71-1-304(2), MCA (1979).

As the District Court duly noted, John R. Ryan and Roberta C. Ryan granted a trust indenture to Farmers State Bank as beneficiary and American Land Title Company as trustee. This trust indenture was then properly recorded in the Clerk and Recorder Office, Ravalli County, on March 27, 1981. Farmers State Bank then transferred its interest to the Montana Board of Housing as successor beneficiary and John H. Grant became successor trustee. After the Ryans breached their obligation to pay monies due as evidenced by the underlying promissory note, John H. Grant sold the real property as allowed under secs. 71-1-304(3) and 71-1-313, MCA. Grant properly followed the procedures as set out in sec. 71-1-315, MCA, regarding notice, posting and publication.

The Ryans had a right to pay the successor beneficiary the sums then due under the trust indenture, together with other statutorily required payments in order to cure the existing default. Section 71-1-312, MCA. The Ryans, however, did not make the required payments and were therefore required to surrender possession to the purchaser on the tenth day following the sale, and without right of redemption after the sale. Section 71-1-319, MCA; First State Bank of Forsyth v. Chunkapura (1987), 226 Mont. 54, 734 P.2d 1203.

The District Court granted Farmers State Bank’s motion for possession of real property pursuant to sec. 27-1-431, MCA. Section 27-1-431, MCA, states that,

“A person entitled to specific real property, by reason either of a perfected title or of a claim to title which ought to be perfected, may recover the same in the manner prescribed by this code, either by a judgment for its possession to be executed by the sheriff or by a judgment requiring the other party to perfect the title and to deliver possession of the property.”

In light of the above, the District Court properly granted Farmers State Bank’s motion.

The Ryans’ arguments on appeal are without merit. The Ryans first argue that Farmers State Bank did not have a claim against them and therefore that there was no judgment for either the plaintiff or the defendant in this case. Quite contrary to what the Ryans argue, the District Court’s August 16,1989 judgment clearly stated that Farmers State Bank was entitled to possession of the West 210 feet of Lot four, Black Lane Estates, Ravalli County and that the Ryans were in wrongful possession of that property. Also, contrary to what the Ryans argue, Farmers State Bank was not required to make a claim against the Ryans via a complaint, counterclaim, third-party complaint or cross-claim. Under the present set of facts, Farmers State Bank’s motion for judgment for possession of the real property in question was properly presented and the District Court properly issued its judgment.

The Ryans also argue that they did not have proper notice of the June 14, 1989 hearing. The record demonstrates that the Ryans were served with notice of hearing on June 8, 1989, and filed documents with the court demonstrating the same on June 9, 1989. The court then allowed briefing of the matter before it issued its August 16, 1989 judgment. The Ryans’ argument that they did not have proper notice of the June 14, 1989 hearing is without merit.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, SHEEHY and McDONOUGH concur.


author: JUSTICE SHEEHY

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. GERALD ROY THOMPSON, Defendant and Respondent.
    No. 89-533.
    Submitted on Briefs Feb. 22, 1990.
    Decided May 24, 1990.
    792 P.2d 1103.
    Mark Murphy, Patti Powell, Asst. Attys. Gen., Helena, Sarah Arnott, Judith Basin County Atty., Stanford, for plaintiff and appellant.
    Torger Oaas, Lewistown, for defendant and respondent.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

On May 25, 1989, the defendant Gerald Roy Thompson was charged with two counts of sexual intercourse without consent and one count of sexual assault. Subsequently, Thompson moved to dismiss Counts I and II of the information, those counts charging defendant with sexual intercourse without consent. Thompson moved to dismiss Counts I and II of the information on the specific ground that the probable cause affidavit was insufficient. On September 1, 1989, the District Court, Tenth Judicial District, Judith Basin County, granted Thompson’s motion and dismissed Counts I and II of the information for lack of probable cause in the supporting affidavit. The State now appeals the District Court. We affirm.

The State raised the following issue on appeal: Did the District Court err when it granted defendant’s motion to dismiss Counts I and H of the information charging defendant with sexual intercourse without consent for failure to state offenses?

The defendant, Gerald Roy Thompson, the principal and boys basketball coach at Hobson High School, was accused of two counts of sexual intercourse without consent, and one count of sexual assault. This appeal only concerns the two counts of sexual intercourse without consent. The information, filed with the District Court, alleged the defendant committed the crime of sexual intercourse without consent, and stated the following:

Count I

On or between September, 1986 and January, 1987 in Judith Basin County, Montana the defendant knowingly had sexual intercourse without consent with a person of the opposite sex; namely Jane Doe, by threatening Jane Doe that she would not graduate from high school and forced Jane Doe to engage in an act of oral sexual intercourse.

Count II

On or between February, 1987 and June, 1987 in Judith Basin County, Montana the defendant knowingly had sexual intercourse without consent with a person of the opposite sex; namely Jane Doe, by threatening Jane Doe that she would not graduate from high school and forced Jane Doe to engage in act of oral sexual intercourse.”

The affidavits filed in support of this information contained facts and allegations supporting the two counts of sexual intercourse without consent. In essence, they alleged that the threats “caused Jane Doe great psychological pain and fear.”

The State contended that fear of the power of Thompson and his authority to keep her from graduating forced Jane Doe into silence until after she graduated from high school in June of 1987. On November 25, 1988, Jane Doe filed a letter with the Hobson School Board describing the activities against her by Thompson. After investigations by both the school board and the Judith Basin County prosecutor’s office, the prosecutor filed an information on May 25, 1989. The information charged Thompson with two counts of sexual intercourse without consent, both felonies in violation of sec. 45 5-503, MCA, and with one count of attempted sexual assault, a felony.

Defendant filed a number of motions, requesting, among other things, a motion to dismiss Counts I and II of the information for lack of probable cause in the supporting affidavit. The District Court granted Thompson’s motion, due to the fact the State failed to meet the element of “without consent” under sec. 45-5-501, MCA.

Did the District Court err when it granted defendant’s motion to dismiss Counts I and II of the information charging defendant with sexual intercourse without consent for failure to state offenses?

We agree with the District Court that the facts in the information, in regards to Counts I and II, fail to state offenses. The code of criminal procedures requires that an affidavit be filed for application for leave to file an information. State v. Renz (Mont. 1981), [_Mont._,] 628 P.2d 644, 645. The affidavit must include sufficient facts to convince a judge that there is probable cause to believe the named defendant may have committed the crime described in the information. Section 46-11-201, MCA. If there is no probable cause, the District Court lacks jurisdiction to try the offense. State v. Davis (1984), 210 Mont. 28, 30, 681 P.2d 42, 43. This Court has held that a showing of mere probability that defendant committed the crime charged is sufficient for establishing probable cause to file a criminal charge. Judges, when receiving probable cause affidavits, should use their common sense in determining whether probable cause exists. Renz, 628 P.2d at 645; State v. Hamilton (1980), 185 Mont. 522, 532, 605 P.2d 1121, 1127, cert. denied 447 U.S. 924 (1980); 100 S.Ct. 3017, 65 L.Ed.2d 1117 (1980); State v. Miner (1976), 169 Mont. 260, 264, 546 P.2d 252, 255.

The allegations in the affidavit, however, do not indicate a probability that Thompson committed the crime of sexual intercourse without consent.

Thompson was charged with two counts of alleged sexual intercourse without consent under sec. 45-5-503, MCA. Section 45-5 503, MCA, states the following:

“A person who knowingly has sexual intercourse without consent with a person of the opposite sex commits the offense of sexual intercourse without consent ...”

The phrase “without consent” the key element of the crime has a very specific definition in Montana’s criminal code. This phrase is defined in sec. 45-5-501, MCA, which states in pertinent part:

“As used in 45-5-503 and 45-5-505, the term ‘without consent’ means:
“(i) the victim is compelled to submit by force or by threat of imminent death, bodily injury, or kidnapping to be inflicted on anyone; ...”

Section 45-5-501, MCA, makes it clear that the element of “without consent’ ’ is satisfied if submission of the victim is obtained either by force or by threat of imminent death, bodily injury, or kidnapping. No other circumstances relating to force or threat eliminate consent under the statute.

Thompson challenged the probable cause affidavit in the District Court, contending it failed to state any fact or circumstance showing that Jane Doe’s submission to an alleged act of sexual intercourse was obtained by force or by any of the threats listed in sec. 45-5-501, MCA. In contrast, the State argues that Thompson’s actions constitute sexual intercourse through force or threats. The District Court, in its opinion and order, agreed with Thompson’s contentions, and found that the facts in the affidavit supporting the information failed to show the element of “without consent.” In reaching this conclusion, the District Court first considered whether or not there were facts or circumstances in the probable cause affidavit to indicate that submission to the alleged act of sexual intercourse without consent was obtained ‘ ‘by force. ’ ’ In order to determine whether Thompson forced Jane Doe to submit to the sexual act, the District Court had to define the phrase “by force” since there is no definition contained in the Montana Criminal Code.

The District Court in its order defined force as follows: “The word ‘force’ is used in its ordinary and normal connotation: physical compulsion, the use or immediate threat of bodily harm, injury.”

Next, the District Court examined the information and probable cause affidavit to determine if there were any facts or circumstances constituting force. The District Court found that “force was not alleged in the information nor in the affidavit in support of it.”

In contrast, the State argues the District Court’s definition of force is too limited. The State, relying on Raines v. State (1989), 191 Ga.App. 743, 382 S.E.2d 738, 739, argues that intimidation and fear may constitute force. The State also contends that Thompson, in his position of authority as the principal, intimidated Jane Doe into the alleged acts. Furthermore, the State argues the fear and apprehension of Jane Doe show Thompson used force against her. We agree with the State that Thompson intimidated Jane Doe; however, we cannot stretch the definition of force to include intimidation, fear, or apprehension. Rather, we adopt the District Court’s definition of force.

Other jurisdictions, such as California, have expanded the definition of force, beyond its physical connotation. People v. Cicero (1984), 157 Cal.App.3d 465, 204 Cal.Rptr. 582. The California Supreme Court adopted the following reasoning to expand the word force:

“... the fundamental wrong at which the law of rape is aimed is not the application of physical force that causes physical harm. Rather, the law of rape primarily guards the integrity of a woman’s will and the privacy of her sexuality from an act of intercourse undertaken without her consent. Because the fundamental wrong is the violation of a woman’s will and sexuality, the law of rape does not require that ‘force’ cause physical harm. Rather, in this scenario, ‘force’ plays merely a supporting evidentiary role, as necessary only to ensure an act of intercourse has been undertaken against a victim’s will.”

Cicero, 204 Cal.Rptr. at 590.

The California Supreme Court’s definition of the word force is too broad under Montana’s definition of the crime. Until the legislature adopts a definition for the word “force”, we must adopt the ordinary and normal definition of the word “force” as set forth by the District Court.

The State in its information and accompanying affidavit complain that Thompson deprived Jane Doe of consent to the sexual act by threatening that he would prevent her from graduating from high school. The threat required in sec. 45-5-501, MCA, is a “threat of imminent death, bodily injury, or kidnapping to be inflicted on anyone ...” The District Court found that something more than a threat is necessary to satisfy the statutory requirement. A threat one will not graduate from high school is not one of the threats listed under sec. 45-5-501, MCA. The State argues that the definition “threat of bodily injury” includes psychological impairment. Unfortunately, the statute sets forth bodily injury, not psychological impairment. A threat that eventually leads to psychological impairment is not sufficient under the statute. The statute only addresses the results of three specific kinds of threats, and psychological impairment is not one of them.

The State urges this Court to adopt the definitions of threat set forth in sec. 45-2-101(68), MCA. Section 45-2-101(68), MCA, has no application in regard to the crime of sexual intercourse without consent. Section 45-5-501, MCA, plainly and succinctly lays out the types of threats necessary to make the victim act “without consent.”

Under sec. 45-5-501, MCA, the threat also must be of ‘ ‘imminent death, bodily injury, or kidnapping.” Thompson’s threats cannot be considered imminent. The alleged sexual act and threat occurred in December of 1986. Jane Doe graduated from Hobson High School in June of 1987. Clearly, Thompson’s alleged threats were not imminent.

Peppered throughout the State’s brief is the contention that “under Montana law the issue of consent is a fact question, and therefore a question for the jury to decide. ’ ’ The State is correct, the jury is the proper trier of facts in regard to issues such as consent. However, in this case, the State’s information and probable cause affidavit have failed to set forth any facts or circumstances to show that the alleged act of sexual intercourse were within the statute defining the elements of the crime. So, the issue in this case is not whether the jury was denied its role as trier of the facts, but whether the State sufficiently set forth facts or circumstances to show the element of “without consent.” The court properly granted defendant’s motion to dismiss for lack of probable cause.

This case is one of considerable difficulty for us, as indeed it must have been for the District Court judge. The alleged facts, if true, show disgusting acts of taking advantage of a young person by an adult who occupied a position of authority over the young person. If we could rewrite the statutes to define the alleged acts here as sexual intercourse without consent, we would willingly do so. The business of courts, however, is to interpret statutes, not to rewrite them, nor to insert words not put there by the legislature. With a good deal of reluctance, and with strong condemnation of the alleged acts, we affirm the District Court.

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


text:
    CHARLOTTE MAY PATZER, n/k/a Charlotte Skinner, Plaintiff and Appellant, v. JAMES HOWARD PATZER, United States of America, Commander of Air Force Accounting and Finance Center, and DOES I Through III, Defendants and Respondents.
    No. 89-568.
    Submitted on Briefs April 19, 1990.
    Decided May 24, 1990.
    792 P.2d 1101.

      Linda L. Harris, Harris & Ventrell, Billings, for plaintiff and appellant.
    E. Lee LeVeque, Conklin, Nybo & LeVeque, Great Falls, for defendants and respondents.
   JUSTICE WEBER

delivered the Opinion of the Court.

Plaintiff, Charlotte May Patzer (Mrs. Patzer) filed a complaint for partition of personal property; namely defendant’s (Mr. Patzer) military pension. The District Court of the Eighth Judicial District, Cascade County, granted defendant’s motion to dismiss pursuant to Rule 12, M.R.Civ.P. Plaintiff appeals. We affirm.

The sole issue for our consideration is whether the District Court erred in granting defendant’s motion to dismiss.

Mr. and Mrs. Patzer were married in 1966 and divorced in 1979. The parties entered into a separation agreement (Agreement). After specifically finding that the Agreement was not unconscionable, the District Court incorporated the Agreement into the Decree of Dissolution. The Agreement provided in pertinent part:

“THIS AGREEMENT made this 16th day of January, 1979, between CHARLOTTE MAY PATZER, hereinafter referred to as Wife, and JAMES HOWARD PATZER, hereinafter referred to as Husband; ...
“WHEREAS, it is the desire of the parties to finally and for all time settle and determine the property rights, rights to the custody of the support payments for the minor child of the parties, and all other rights existing between the parties and growing out of the marital relationship;
* * *
“7. PERSONAL PROPERTY: That prior hereto, the parties have divided their household furniture and personal effects in a mutually satisfactory and equitable manner. That the Wife has the use, title and possession of a 1972 Buick Riviera automobile and the Husband has a 1973 GMC pickup. The Husband shall assume all underlying liens, debts and encumbrances on the aforementioned vehicles at the Malstrom Federal Credit Union. That the Husband has received all right, title and interest to his tools, guns, two (2) motor cycles and motor cycle trailer, pool table, console television, console stereo and family room furniture. The Wife has all right, title and use to the remaining household items, furniture and effects as well as Wife’s personal effects.
“14. COVENANT OF FULL DISCLOSURE: Each party covenants that he or she has made a full disclosure to the other of all property owned by him or her or by the parties together, and of all income derived from such property, or income derived from other sources by either of the parties; and it is agreed that this instrument shall constitute a full and final settlement between the parties based upon such disclosure by each of the parties to the other, and to the extent that such full disclosure may be discovered in the future to have been incomplete, this agreement shall not be final as to such undisclosed property or income.”

On February 3, 1988, nearly 10 years after the entry of the Decree of Dissolution, Mrs. Patzer filed a complaint alleging that the Decree of Dissolution did not “specifically or otherwise provide” for the distribution of Mr. Patzer’s military pension. She farther alleged that she was a co-owner or tenant in common in the pension fund by virtue of the past marriage of the parties, and requested that the pension be partitioned between the parties.

Mr. Patzer filed a Rule 12, M.R.Civ.P., Motion to Dismiss on the grounds that it failed to state a claim upon which relief can be granted; lacked jurisdiction of subject matter; was not timely; was barred by res judicata; and was barred by laches.

The District Court treated the complaint as a pleading pursuant to Rules 59 and 60, M.R.Civ.P. or a motion under sec. 40-4-208, MCA. It concluded that the complaint was not timely; res judicata barred the complaint; laches barred the complaint; and no conditions existed which would justify the reopening of the judgment. From that decision, Mrs. Patzer appeals.

Mrs. Patzer brought this action for partition of personal property under sec. 70-2-211, MCA (1987), rather than seeking a modification of the decree under sec. 40-4-208(3), MCA. She contends that until partitioned and distributed by the Court, the parties to this action hold the military pension in dispute as tenants in common and the lapse of time between the dissolution and this action is therefore irrelevant. She maintains that the military pension was not considered by the District Court because it was not specifically mentioned.

Mr. Patzer urges that sec. 70-2-211, MCA, does not control this action. He contends it would be ludicrous to set forth each specific item of personal property in a decree of dissolution. Lastly, he maintains that pensions are marital assets. We agree.

Although Mrs. Patzer brought this action as a partition of personal property, we conclude that sec. 70-2-211, MCA, is not controlling here. Rather, sec. 40-4-208(3), MCA, controls, which states:

“The provisions as to property disposition may not be revoked or modified by a court, except:
“(a) upon written consent of the parties; or
“(b) if the court finds the existence of conditions that justify the reopening of a judgment under the laws of this state.”

Military pensions are marital assets subject to equitable distribution. In re Marriage of Miller (1980), 187 Mont. 286, 609 P.2d 1185. Mrs. Patzer relies on the California case of Casas v. Thompson (1986), 42 Cal.3d 131, 228 Cal.Rptr. 33, 720 P.2d 921, for the proposition that the military pension is community property and thus allows the ex-wife to assert her interest for partition of the pension because the asset was not before the court at the time of the dissolution. Casas interpreted the Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. sec. 1408 (“USFSPA”). We have also addressed USFSPA in Montana in In re Marriage of Waters (1986), 223 Mont. 183, 724 P.2d 726. In Waters the issue was whether USFSPA should be applied retroactively to final decrees of dissolution which were entered subsequent to the United States Supreme Court decision in McCarty v. McCarty but prior to USFSPA. McCarty v. McCarty (1981), 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589, held that federal law precluded state courts from dividing military retirement pay pursuant to state community property or equitable distribution laws. In Waters the final decree of dissolution had not been entered when McCarty was decided. Hence, even though Montana had treated military pensions as a marital asset, McCarty affected the final decree and Mr. Waters pension was held not to be a marital asset. This Court stated:

“The law in Montana prior to McCarty was such that military pensions were treated like any other asset of the marriage and were subject to equitable distribution. After the USFSPA was passed, this Court ... reaffirmed that military retirement pay constituted a marital asset. Thus, those spouses of members of the armed forces who obtained dissolutions prior to McCarty were entitled to share in their spouses’ military pension... .
“The legislative history of the USFSPA indicates that the Act was meant to apply to those spouses who were divorced during the period between McCarty and the Act.”

Waters, 724 P.2d at 729, 730. McCarty was decided in 1981. The Patzers’ marriage was dissolved in 1979, prior to both McCarty and the USFSPA. Therefore Mr. Patzer’s military pension is clearly a marital asset and Title 40 controls.

The parties agreed that the Separation Agreement was a “full and final settlement”. A separation agreement does not have to mention every single item of property the parties hold at the time of their dissolution. Furthermore, since Mrs. Patzer specifically states she does not claim that the Agreement was unconscionable, there is no basis to reopen the judgment under sec. 40-4-208, MCA. We hold that the District Court was correct in granting Mr. Patzer’s Motion to Dismiss. We conclude it is unnecessary to address the issues of laches, res judicata and lack of jurisdiction.

Affirmed.

JUSTICES HARRISON, BARZ, HUNT and SHEEHY concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JAMES AMSK, Defendant and Appellant.
    No. 89-461.
    Submitted on Briefs May 10, 1990.
    Decided May 25, 1990.
    Rehearing Denied June 26, 1990.
    792 P.2d 1109.
    Larry Jent, Bozeman, for defendant and appellant.
    Marc Racicot, Atty. Gen., Helena, Patti Powell, James Yellowtail, Asst. Attys. Gen., Helena, William Neis Swandal, Park County Atty., Livingston, for plaintiff and respondent.
   JUSTICE BARZ

delivered the Opinion of the Court.

James Amsk appeals from a jury verdict entered in the District Court of the Sixth Judicial District, Park County, convicting him of three counts of felony criminal sale of dangerous drugs in violation of sec. 45-9-101, MCA. Defendant was sentenced to seven years with five suspended on each count with the sentences to be served concurrently. The District Court fined defendant $3,000 and designated him a non-dangerous offender. We affirm.

Defendant was charged by information with sales of marijuana to a police informant on November 11,12 and 14, 1988. Defendant did not testify at trial. Defendant’s sole citation of error concerns the following instruction given by the District Court:

‘ ‘The law does not compel a defendant in a criminal case to take the witness stand to testify, and no presumption of guilt may be raised, and no inference of any kind may be found, from the failure of a defendant to testify.
“The law never imposes upon a defendant in a criminal case the burden or duty of calling any witness or producing any evidence.
“A defendant who wishes to testify, however, is a competent witness; and the defendant’s testimony is to be judged in the same way as that of any other witness.”

The State offered this instruction. The record reflects no objection by counsel for the defense nor did the defense offer an alternative instruction. Defendant argues that this instruction improperly focused the attention of the jury on his failure to testify in violation of his federal and state constitutional rights. He further asserts that giving such an instruction in the particular circumstances of this case was plain error.

Section 46-20-104(2), MCA, provides:

“Upon appeal from a judgment, the court may review the verdict or decision and any alleged error objected to which involves the merits or necessarily affects the judgment. Failure to make a timely objection during trial constitutes a waiver of the objection except as provided in 46-20-701(2).”

That section reads as follows:

“No claim alleging an error affecting jurisdictional or constitutional rights may be noticed on appeal, if the alleged error was not objected to as provided in 46-20-104, unless the defendant establishes that the error was prejudicial as to his guilt or punishment and that:
“(a) the right asserted in the claim did not exist at the time of the trial and has been determined to be retroactive in its application;
“(b) the prosecutor, the judge, or a law enforcement agency suppressed evidence from the defendant or his attorney that prevented the claim from being raised and disposed of; or
“(c) material and controlling facts upon which the claim is predicated were not known to the defendant or his attorney and could not have been ascertained by the exercise of reasonable diligence.”

Section 46-20-701(2), MCA. Defendant’s allegation of error clearly does not fall within any of the three exceptions of sec. 46-20-701(2), MCA. The only facts pertinent to his contention of error are his decision not to testify and the giving of the instruction by the District Court. Both facts were known to defendant and could not have been concealed from him by the State, the court or law enforcement officials.

Notwithstanding the above provisions, we have previously acknowledged that our obligation to preserve the substantial rights of criminal defendants may permit us to overlook the lack of a timely objection. State v. Wilkins (1987), 229 Mont. 78, 80-81, 746 P.2d 588, 589. We invoke our power of discretionary review sparingly and only in the presence of plain error. Wilkins, 746 p.2d at 589. The court orally assured Wilkins of his right to testify at trial and asked him several times if he waived such right. Wilkins, 746 P.2d at 589. In that case, this Court found the District Court’s repeated questioning of the defendant constituted plain error requiring reversal of the conviction. Wilkins, 746 P.2d at 590. Although the District Court did not intend to comment on defendant’s failure to testify, the effect of the exchange between the court and the defendant was to focus the attention of the jury on the lack of defendant’s testimony. Wilkins, 746 P.2d at 590.

In the instant case, the court advised the jury in the first two paragraphs of its instruction that the defendant had a right not to testify and that his failure to testify could not be held against him in any way. This instruction would not have been prejudicial if requested by the defendant and was not rendered prejudicial merely because the State requested it. We find no error in the giving of such an instruction. The third paragraph of the instruction set forth the standard to be used by a jury in evaluating the credibility of a testifying defendant. This part of the instruction should not be given when the defendant declines to testify. However, in the case at hand such error was harmless.

Affirmed.

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