text:
    FRANK BRISENDINE, L.D., d/b/a ROCKY MOUNTAIN DENTURE CLINIC, Plaintiff and Appellant, v. THE STATE OF MONTANA, DEPARTMENT OF COMMERCE, BOARD OF DENTISTRY, Defendant and Respondent.
    No. 91-218.
    Submitted on briefs Nov. 14, 1992.
    Decided May 21, 1991.
    49 St.Rep. 444.
    253 Mont. 361.
    833 P.2d 1019.

      For Appellant: James C. Bartlett, Hash, O’Brien & Bartlett, Kalispell.
    For Respondent: Robert P. Verdón, Dept, of Commerce, Helena.
   JUSTICE HUNT

delivered the opinion of the Court.

Appellant Frank Brisendine, a licensed denturist, appeals from an order of the First Judicial District Court, Lewis and Clark County, dismissing appellant’s complaint for declaratory and injunctive relief. We affirm.

We rephrase the issues before the Court as follows:

1. Whether the District Court erred in dismissing appellant’s complaint for declaratory judgment for lack of a justiciable controversy.

2. Whether the District Court erred in dismissing appellant’s complaint for declaratory judgment because he failed to exhaust his administrative remedies.

Brisendine is a duly licensed denturist who practices in East Helena. Respondent Board of Dentistry of the Department of Commerce (hereinafter known as “Board”) is responsible for regulating and licensing both the practice of dentistry and denturitry.

On September 14, 1990, appellant presented to the Board a proposal regarding his intent to enter into a business association with a dentist regarding fees and compensation. On September 20, 1990, the Board issued a letter stating that § 37-4-103, MCA, allows only a licensed dentist to operate and manage a dental office, and that if appellant went ahead with his proposal he would be illegally practicing dentistry in violation of § 37-4-103, MCA. The Board apprised appellant that it was still considering his proposal and would let him know of its intended action in about two weeks. The Board warned appellant not to engage in his proposed business association prior to its decision. If appellant failed to heed its warning, the Board threatened to revoke or suspend his denturist license for practicing dentistry without a license in violation of § 37-4-103, MCA. The record does not contain any final decision from the Board.

On October 30,1990, appellant filed a complaint in District Court seeking a declaratory judgment and injunctive relief. Specifically, appellant requested the court to decide whether he could enter into a business association with a dentist as allowed under § 37-29-103, MCA.

On December 6, 1990, the Board filed a Rule 12(b)(6) motion to dismiss for failure to state a claim for which relief can be granted. On February 25, 1991, the District Court granted the motion. The court held that at common law it was not in the interest of the public welfare for a denturist to own and operate a dental clinic. State v. Boren (Wash. 1950), 219 P.2d 566, Worlton v. Davis (Idaho 1952), 249 P.2d 810.

Appellant timely filed a motion to amend the District Court’s order and findings. Appellant alleged that the complaint only stated that he had made known to the Board his intention to enter into a lawful agreement with a dentist pursuant to § 37-29-103, MCA, and not whether he intended to own, operate, and manage a dental clinic. On April 17,1991, the District Court amended its original order and held that the complaint did not present a justiciable controversy. The record does not reflect if the original order was withdrawn. Appellant appealed the decision to this Court.

I

The first issue we consider is whether the District Court erred in dismissing appellant’s complaint for declaratory judgment for lack of a justiciable controversy.

The purpose of the Montana Declaratory Judgment Act is remedial and is meant “to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations; and it is to be liberally construed and administered.” Section 27-8-102, MCA. Section 27-8-202, MCA, states in pertinent part:

Any person ... whose rights, status, or other legal relations are affected by a statute ... may have determined any question of construction or validity arising under the ... statute ... and obtain a declaration of rights, status, or other legal relations thereunder.

There are two principles this Court has adopted regarding declaratory judgments. First, even though all of the necessary elements of jurisdiction exist, the district court is not required to exercise that jurisdiction. Empire Fire & Marine Insurance Co. v. Goodman (1966), 147 Mont. 396, 401, 412 P.2d 569, 571. Secondly, a motion to dismiss a declaratory judgment rests with the sound discretion of the district court. Empire Fire, 412 P.2d at 571. We will not disturb a district court’s decision that a declaratory judgment is not proper absent an abuse of discretion. Empire Fire, 412 P.2d at 571.

The Board contends that two arguments should bar appellant from declaratory relief. Because appellant has not suffered from any actual harm to his license, no justiciable controversy exists. In addition, appellant has not exhausted all of his administrative remedies.

Previously, we have held that a justiciable controversy contains three elements:

“First, a justiciable controversy requires that parties have existing and genuine, as distinguished from theoretical, rights or interest. Second, the controversy must be one upon which the judgment of the court may effectively operate, as distinguished from a debate or argument invoking a purely political, administrative, philosophical or academic conclusion. Third, [it] must be a controversy the judicial determination of which will have the effect of a final judgment in law or decree in equity upon the rights, status or legal relationships of one or more of the real parties in interest, or lacking these qualities be of such overriding public moment as to constitute the legal equivalent of all of them.”

Lee v. State (1981), 195 Mont. 1, 6, 635 P.2d 1282, 1284-85 (quoting Matter of Secret Grand Jury Inquiry (1976), 170 Mont. 354, 357, 553 P.2d 987, 990).

On September 14, appellant appeared before the Board in what apparently was an informal proceeding and presented his proposal. Nothing in the record reflects what appellant proposed to the Board. The Board seemed to believe that there were problems with the proposal and sent the letter of September 20, 1990, while it considered the proposal. Essentially, the letter was advisory in nature and was not intended to be construed as a final opinion from which an appeal to the District Court could be initiated.

We agree with the District Court that the complaint fails to describe what type of business association appellant intends to enter into with a dentist. All that the complaint mentions is that appellant intends to enter into a business association with a dentist and asks the District Court to determine whether or not that is allowed.

Appellant contends that if the District Court’s decision is upheld, he must first violate the law, then face an administrative revocation hearing whereby his license could be suspended or revoked. Appellant overlooks the fact that he has another administrative remedy available. He could ask the Board for a declaratory judgment pursuant to § 2-4-501, MCA. If the decision is adverse, he could then appeal it to the District Court pursuant to § 2-4-506(4), MCA. By using this approach, appellant would not subject his license to revocation or suspension.

By using the Declaratory Judgment Act in District Court at this stage of the proceeding, appellant is attempting to seek an advisory opinion from the court regarding his rights under §§ 37-4-103 and 37-29-103, MCA. This would constitute an unwarranted intrusion into the Board’s regulatory authority granted under Title 37, Chapter 4, and Title 37, Chapter 29. As we have stated in an earlier case:

“The courts have no jurisdiction to determine matters purely speculative, enter anticipatory judgments, declare social status, deal with theoretical problems, give advisory opinions, answer moot questions, adjudicate academic matters, provide for contingencies which may hereafter arise, or give abstract opinions. (Citing cases.) “The Uniform Declaratory Judgment Act does not license litigants to fish injudicial ponds for legal advice.”

Montana Dept. of Natural Resources & Conservation v. Intake Water Co. (1976) 171 Mont. 416, 440, 558 P.2d 1110, 1123 (quoting Little v. Wachovia Bank & Trust Co., 252 N.C. 229, 113 S.E.2d 689). As we have stated previously, no final decision has been issued from the Board. Appellant’s legal rights and status have not been adversely affected. We hold that the District Court is correct that no justiciable controversy exists at this time in the proceedings.

II

The second issue presented to this Court is whether the District Court erred in dismissing appellant’s complaint for declaratory judgment because he failed to exhaust his administrative remedies.

We have held that “it is not the true purpose of the declaratory judgment to provide a substitute for other regular actions.” In the Matter of Dewar (1976), 169 Mont. 437, 444, 548 P.2d 149, 154. Generally, we have held that before a party can seek declaratory relief, he must exhaust all administrative remedies. Mitchell v. Town of West Yellowstone (1988), 235 Mont. 104, 108, 765 P.2d 745, 747-48. However, the exhaustive doctrine does not apply when constitutional issues are raised. Mitchell, 765 P.2d at 748. Thus, when a party raises a bona fide constitutional claim, he has a right to resort to declaratory judgment, rather than submitting himself to an ordinance or rule he deems unconstitutional. Mitchell, 765 P.2d at 748. Our reasoning is based upon the lack of authority in administrative agencies to determine constitutional issues. Mitchell, 765 P.2d at 748. Such decisions rest within the exclusive jurisdiction of the courts. Mitchell, 765 P.2d at 748.

Appellant has not properly raised a constitutional issue in this matter. As we have stated above, the Board’s letter does not constitute a final opinion and appellant can still seek a declaratory judgment from the Board without subjecting his license to suspension or revocation. We hold that appellant has not exhausted his administrative remedies and that the District Court did not abuse its discretion in dismissing appellant’s complaint for declaratory judgment.

We affirm.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY and WEBER concur. JUSTICE TRIEWEILER dissenting.

I dissent from the opinion of the majority.

The majority undermines the purpose of the Uniform Declaratory Judgments Act which is to eliminate uncertainty from the law in an expeditious and inexpensive fashion. As a result of the majority’s decision, the uncertainty regarding Frank Brisendine’s rights will be prolonged and he will be forced to incur unnecessary expense and delayby seeking a meaningless declaratory judgment from the Board of Dentistry which has already indicated its intention to deny him the opportunity to associate in a business relationship with a dentist.

Section 27-8-102, MCA, provides that the purpose of declaratory judgments is “to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations; and it is to be liberally construed and administered.” Declaratory judgments were intended to eliminate the exact type of uncertainty that exists in this case. In this case, the plaintiffs legal relations are uncertain because of two statutes which are apparently in conflict regarding his right to form a business relationship with a dentist.

Section 37-4-101(2)(b), MCA, provides that a person is “practicing dentistr/’ if he “is a manager, proprietor, operator, or conductor of a place where dental operations, oral surgery, or dental services are performed ....” However, § 37-4-103(4), MCA, provides in relevant part that “[n]one of the regulations contained in this chapter apply to a person engaged in the lawful practice of denturitry.”

Title 37, Chapter 29, contains the statutes which specifically regulate the field of denturitry. Section 37-29-103, MCA, further confuses plaintiff’s rights by allowing denturists to form business associations with dentists. It states that “[a] licensed denturist may enter into any lawful agreement with a dentist regarding fees, compensation, and business association.”

In this case, plaintiff proposed to the Board of Dentistry that he be allowed to enter into a business association with a dentist as authorized under the statute pertaining to denturitry, but was told that his activity would be prohibited under the statute which pertained to the practice of dentistry.

Brisendine has an apparent statutory right to enter into a business association with a dentist. However, he cannot exercise that right because of disciplinary action threatened by the Board for the unlicensed practice of dentistry. That disciplinary action could result in the revocation of Brisendine’s license and subject him to criminal prosecution for practicing dentistry without a license under § 37-4-327, MCA (1989). The purpose of declaratory judgments is to avoid such undesirable consequences.

The majority concludes that Brisendine should have requested a declaratory judgment from the board and then appealed that decision if it was unfavorable. However, Rule 57, M.R.Civ.R, provides that “[t]he existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate.” It is true that § 2-4-506(1) and (3), MCA, grants authority to the Board of Dentistry to issue declaratory judgments. However, subsection (4) of the same statute appears to authorize filing of the petition for declaratory judgment directly in the district court.

In this case, the Board issued a letter stating that appellant was prohibited from entering into his proposed business association with a dentist, and threatened to revoke or suspend his license if he entered into such a relationship. The Board stated that a final decision would come in two weeks. However, no decision was forthcoming. Brisendine’s legal rights and interests remain uncertain. Requiring him to seek a declaratory judgment from the Board, which apparently through its letter had already made a final decision, does not serve the efficient, orderly, or inexpensive administration of justice which should be this Court’s primary concern.

Section 1-2-102, MCA, provides that “[w]hen a general and particular provision are inconsistent, the latter is paramount to the former, so a particular intent will control a general one that is inconsistent with it.” For that reason, it is clear to me that Brisendine’s rights are established by the statute found in the chapter regulating the profession of denturitry, and not in the chapter regulating the profession of dentistry. I would reverse this case and remand it to the District Court with instructions to determine whether the Board of Dentistry’s action violated § 37-29-103, MCA, which authorizes Brisendine to associate with a dentist for the pin-pose of fees, compensation, or other business association.


source: Caselaw Access Project

author: JUSTICE McDONOUGH JUSTICE TRIEWEILER

license: Public Domain

text:
    JAMES LEWIS and THERESA SATHER, Relators, Petitioners and Appellants v. CATHOLIC SOCIAL SERVICES FOR MONTANA, Respondents and Respondents.
    No. 91-476 and No. 91-508.
    Submitted on briefs Dec. 19, 1991.
    Decided May 21, 1992.
    49 St.Rep. 448.
    253 Mont. 369.
    833 P.2d 1023.
    For Relators/Appellants: Linda J. Garofola and David K.W. Wilson, Jr., Reynolds, Motl, Sherwood & Wright, Helena.
    For Respondents: William P. Driscoll and Michael S. Lattier, Gough, Shanahan, Johnson & Waterman, Helena.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from an order of the First Judicial District, Lewis and Clark County, denying petitioners’ request for a preliminary injunction. Inasmuch as the issues are the same in relators’ petition for supervisory control, the petition for supervisory control is hereby dismissed.

We frame the issue as follows: Whether the District Court erred in determining § 40-8-108, MCA (1991), barred the foster parents from contesting the placement for adoption decision of the agency having custody and barred the foster parents’ petition for adoption.

On March 29, 1989, the custody of Baby Girl W. was granted to Catholic Social Services for Montana (CSS) for placement and ultimate adoption. The birth mother had informed CSS that she wished to keep the child away from the birth father out of fear for herself and the child. She related that in the past the birth father had been abusive to her and an older child. The birth mother did not want the father to know the whereabouts of the child. CSS assured the birth mother the child would be placed in a safe home where the father would not find her. On March 30,1989, CSS placed Baby Girl W. with the relators, James Lewis and Theresa Sather, as foster parents. This was the first foster child for the Lewises. The Lewises signed an agreement stating they would not attempt to adopt the child placed in their care. The Lewises were also told of the assurances given to the birth mother that the child would be placed out of state away from the father. This was reiterated to the Lewises from time to time.

Initially, CSS told the Lewises that Baby Girl W. would be in their care only a short while. Having previously obtained a consent for termination of parental rights from the birth mother, the District Court in a lengthy contested action by the birth father, terminated the parental rights of the birth mother and the birth father, granted legal custody to CSS and granted it the right to consent to Baby Girl W.’s adoption. The birth father appealed this decision to this Court. We affirmed the District Court’s decision on July 2, 1991. In the Matter of the Parental Rights of Baby Girl W. (1991), 249 Mont. 206, 814 P.2d 976. Because of the delay in making a final termination of parental rights, Baby Girl W. remained with the Lewises for 27 months. During this time the Lewises began to regard Baby Girl W. as their own and vocalized their wish to adopt the child.

CSS’s plan had always been to place Baby Girl W. for adoption with a family other than the foster family. CSS did not in any way raise the expectations of the Lewises that they would be able to adopt the child. Subsequent to this Court’s decision on July 15,1991, a meeting occurred between Marilyn McKibben, director of CSS, and the Lewises to discuss Baby Girl W.’s future. Although the Lewises requested CSS’s attorney to set up a meeting to discuss their adoption of Baby Girl W., Marilyn McKibben indicated she was not interested in meeting with the attorneys.

At the July 15,1991 meeting, CSS indicated they would be removing Baby Girl W. from the Lewises’ home in the next day or so. The Lewises cooperated with CSS in order not to hurt their chances of adopting Baby Girl W. and immediately took steps to retain legal counsel for that end. On July 17, 1991, Baby Girl W. was removed from the Lewises’home. On August 2,1991, CSS placed Baby Girl W. out of state with a potential adoptive family.

There is no dispute that the Lewises provided a safe, stable and nurturing home for Baby Girl W. and that, under normal circumstances, they would be eligible adoptive parents. This is an emotionally difficult case for all involved. The District Court in its ruling found that under § 40-8-108, MCA, only the parties designated could place the child for adoption. The court reasoned that since CSS did not consent to the Lewises’ request for adoption, and had not placed the child for adoption in Montana, the Lewises could not adopt Baby Girl W.

The District Court found that there was evidence in the record that the father was a danger to the birth mother and the child, and that such evidence would be of reasonable concern on the part of CSS. The District Court further found that CSS is an experienced adoption agency and the court gave deference as to its view of the seriousness of any threat that might be posed by the birth father. Based on the above, the court further found that it would then be unable to say that the actions of CSS in placing the child out of state were unreasonable or that refusal by CSS to give consent to the petitioners was unreasonable.

The District Court was also of the view that granting relief to the petitioners could have a broader policy impact on the entire adoption process in Montana. Adoption agencies would be fearful of placing children in foster homes if they were not reasonably certain that they could place a child with the family of their choice. Primarily the court, as stated above, based its decision on the wording of § 40-8-108, MCA, and denied the preliminary injunction, dismissed the case and entered judgment accordingly.

The District Court found that § 40-8-108, MCA, was a bar to the Lewises’ petition for adoption of Baby Girl W. The statute provides:

A child may be placed for adoption only by: (1) the department; (2) a licensed child placing agency; or (3) the child’s parents.

Placement is defined in § 40-8-103 (11), MCA(1991) as: “...the transfer of physical custody of a child with respect to whom all parental rights have been terminated and who is otherwise legally free for adoption to a person who intends to adopt the child.” There is no case law interpreting these sections of our statute. We agree with the District Court that in the instant case procedurally, under § 40-8-108, MCA, only CSS may place Baby Girl W. for adoption.

Section 40-8-108, MCA restricts who may place a child for adoption and does not include courts in its list of who may place a child for adoption. Therefore it is clear that the courts could not place Baby Girl W. with the Lewises. No dispute exists that CSS has placed Baby Girl W. for adoption.

The wording of the Montana act itself and the public policy of discouraging black market adoptions and private adoptions argue against judicial review of placement decisions. Montana, along with five other states, adopted the Uniform Adoption Act (UAA). According to Adoption Law and Practice, Joan H. Hollinger, the act attempts to discourage black market adoptions and private adoptions. See, pp. 4A-3 (1989). Neither §§ 40-8-103 (11) nor 40-8-108, MCA, are part of the UAA. However, legislative minutes to the 1981 revision of Montana’s adoption law indicate that § 40-8-108, MCA, was enacted out of concern for the black market problem. Additionally, legislative minutes to the 1989 amendment of § 40-8-121, MCA, which designates the steps in filing a petition for adoption, suggest the amendment was enacted due to perceived problems with private placement. An example of Montana’s concern with private placements would be the elaborate framework set forth in § 40-8-109, MCA(1991), regulating private placements. Under the statute parents who wish to have their child adopted by non-relatives must give notice to the authorities of their intent and must follow the numerous requirements of the statute prior to private placement.

Cases exist from other jurisdictions which address an agency’s refusal to consent to adoption of a child that has already been placed in a prospective adoptive home; the usual standard of review in such cases is arbitrary and capricious. That is not the exact question here. Homer H. Clark, Jr., in his treatise, The Law of Domestic Relations in the United States, 2nd ed. vol. 2, 615, 651, (1988), suggests that theoretically, an agency’s refusal to place a child with prospective adoptive parents may be reviewable under the same standard as the denial of a consent to an adoption. Even if we considered whether or not the placement by CSS was subject to review because of arbitrariness or capriciousness under the facts of this case, it would not change the result. The District Court in its findings, after viewing all the evidence, did not find the actions of CSS in placing the child out of state as unreasonable or refusal by CSS to give consent to the petitioners as unreasonable.

In view of the District Court’s findings and conclusions that based on the evidence and record, it was unable to say that the actions of CSS in placing the child out of state was unreasonable or that CSS’s refusal to give consent to adoption by the Lewises was unreasonable, the District Court could not in any case determine the actions of CSS to be arbitrary and capricious. We cannot say the court was erroneous or abused its discretion in making such findings, conclusions, and final decision. We therefore affirm the District Court.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON and GRAY concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from the opinion of the majority. The issue in this case is not who may place Baby Girl W for adoption. Catholic Social Services for Montana (hereinafter CSSM) clearly has that authority and intends to exercise it. The issue is whether, in the exercise of its placement authority, CSSM can arbitrarily refuse to consider the foster parents, even if to do so would be contrary to Baby Girl W’s best interests. I believe this situation is analogous to statutes which require agency consent to adoption. There is considerable authority that such consent cannot be arbitrarily withheld.

In In re McKenzie (Minn. 1936), 266 N.W. 746, a juvenile located in Minnesota had been placed by court order under the care of the Minnesota Board of Control. That board placed the same child with foster parents where the child remained for over three years. After the child was removed from the foster parents’home to an orphanage, they petitioned for adoption. The board refused based on a religious difference between the child and the proposed adoptive parents.

Minnesota had a statute which prohibited adoption without the consent of the parents, the guardian, or the State Board of Control. The Minnesota Supreme Court was called upon to decide whether consent could be unreasonably withheld when an adoption appeared to be in the child’s best interests. It concluded that it could not. In discussing the board’s rule on religious compatibility, the Minnesota Supreme Court stated:

In so far as the operation of the rule is not inimical to the best interests of the child, the board may be justified in not consenting to the placing of the children with adoptive parents of a different faith, but to blindly follow such a rule after placing the child for support with a well-qualified family for a period so protracted that a strong affection for the child is permitted to develop is, in our view, unreasonable. The affection of foster or adoptive parents is the child’s greatest asset in life. It usually means a good education and a start in life. Where, as here found by the trial court, it is accompanied by character building surroundings and complete religious tolerance, and the chances of matching the surroundings and affection elsewhere are slight, the board’s action becomes so unreasonable as to fall within the definition of caprice.

McKenzie, 266 N.W. at 748.

In the case of In re Adoption of Daughtridge (N.C. 1975), 212 S.E.2d 519, the Court of Appeals of North Carolina was called upon to decide whether a county department of social services could withhold consent to adoption under similar circumstances. That court held:

We agree with the Minnesota court that that consent may not be unreasonably and unjustly withheld. If the court shall find that a failure to grant the petition for adoption would be inimical to the best interests and welfare of the child, it may proceed as if the consent which it finds ought to have been given has been given.

Daughtridge, 212 S.E.2d at 524.

Other courts have arrived at similar conclusions. See State ex rel. Dept. of Institutions Social and Rehabilitative Services v. Griffis (Okla. 1975), 545 P.2d 763; Oxendine v. Catawba County Department of Social Services (N.C. 1981), 281 S.E.2d 370.

This Court has previously indicated that it is in accord with those decisions. Frederick v. District Court (1946), 119 Mont. 143, 173 P.2d 626.

The effect of § 40-8-108, MCA, which limits who may place a child for adoption, is no different than the effect of the statutes referred to in these cases which limit who could consent to the adoption of a child. By deciding in these cases that consent could not be arbitrarily and unreasonably withheld, these courts did not substitute themselves for the consenting agency anymore than this Court would by concluding that placement for adoption could not be arbitrarily or unreasonably denied. Therefore, based on precedent and logic, the majority opinion makes no sense to me when it concludes that:

Section 40-8-108, MCA restricts who may place a child for adoption and does not include courts in its list of who may place a child for adoption. Therefore it is clear that the courts could not place Baby Girl W. with the Lewises. No dispute exists that CSS has placed Baby Girl W. for adoption.

The majority concedes that an agency’s refusal to place a child with prospective adoptive parents may be reviewable to determine if that refusal was arbitrary and capricious. However, the majority then goes on to conclude that even if that standard is adopted, the District Court must be affirmed because it found that CSSM’s refusal was not unreasonable. The problem with the majority’s reasoning and the District Court’s decision is that a finding of reasonableness cannot be made without a determination of Baby Girl W’s best interests, and no such determination was made in this case because of the District Court’s erroneous conclusion that § 40-8-108, MCA, prevented it from granting the relators’ petition.

The petitioners in this case received custody of the child (hereinafter referred to as Natasha) from CSSM on March 30, 1989. They signed the written contract referred to in the majority opinion based upon CSSM’s representation that Natasha would remain with the parties for three months. However, by the time she was removed from their home, she had lived with them for 27 months; she had become, for all practical purposes, a member of their family; and she had developed a close personal bond and relationship with all members of the family.

According to the District Court’s findings:

There is no dispute that Petitioners are very attached to Natasha, and that she has become attached to Petitioners and their three children. Further, it is absolutely clear to this Court that Petitioners provided a safe and nurturing home for Natasha. It is clear that Petitioners would be excellent adoptive parents.

The only qualified psychologist to testify on behalf of either party in the District Court was Dr. Mark Mozer, a clinical psychologist from Helena. His testimony was summarized by the District Court as follows:

Dr. Mozer indicated that Petitioners are wonderful parents and were closely bonded with Natasha. He testified that, in his view, the risk of harming Natasha by moving her to California at this stage of the proceedings is great. He feels that the bond between Petitioners and Natasha is great and that moving her to California can cause that bond to be broken and cause severe problems with her in the future.

Section 40-8-114, MCA, sets forth the paramount public policy consideration of the Uniform Adoption Act. It provides in relevant part that:

(1) It is the policy of the state of Montana to ensure that the best interests of the child are met by adoption proceedings.
(2) The primary purpose of adoption is to help a child become a permanent member of a nurturing family that can give him the care, protection, and opportunities essential for his healthy personal growth and development.
(3) The well-being of the adopted child is the main objective in the placement of children for adoption. The needs of the child must be the primary focus of adoption proceedings, with full recognition of the interdependent needs and interests of birth parents and adoptive parents.

It is clear that the District Court did not get to the point of making the necessary findings in this case because it misapplied § 40-8-108, MCA. The District Court concluded:

In the first place, Section 40-8-108, MCA, provides as follows: “A child may be placed for adoption only by: the department; a licensed child placing agency; or the child’s parents.” This provision is unique to Montana law. This Comb has not found any cases interpreting this section but it seems to say that an adoption proceeding cannot begin until one of the parties designated in Section 40-8-108 (here CSSM) places the child for adoption. Since CSSM has not placed Natasha for adoption in Montana, it appears that Petitioners’ argument must fail.
Primarily, however, this Court relies on Section 40-8-108, MCA. This section provides that a child can only be placed for adoption by an agency. Thus, since Natasha has not been placed for adoption in the State of Montana by CSSM, Petitioners must fail.

Why it made any difference to the District Court where Natasha was placed for adoption by CSSM is not clear. However, it is clear that she has been placed for adoption. It is equally clear that the provision relied on by the District Court was, as pointed out by the majority, merely for the purpose of limiting black market placement of children for adoption and does not divest this Court of authority to review placement decisions to assure that they are made in the child’s best interest.

Without deciding what was in Natasha’s best interest, the District Court could not decide whether the adoption agency’s consent was withheld arbitrarily and capriciously. I would conclude that any actions taken by CSSM which were for its own benefit or based on a contract with the foster parents which was entered into under these circumstances, rather than solely for the best interests of Natasha, was unreasonable, arbitrary, and capricious.

I would reverse the District Court and remand this case for further findings regarding the child’s best interests and placement for adoption that will serve those interests.


author: JUSTICE HUNT

text:
    IN RE THE MARRIAGE OF DENNIS KEITH SACRY, Petitioner and Appellant, and SANDRA LOIS SACRY, Respondent and Respondent.
    No. 91-420.
    Submitted on briefs Feb. 27, 1992.
    Decided May 22, 1992.
    49 St.Rep. 452.
    253 Mont. 378.
    833 P.2d 1035.

      For Appellant: Mark P. Yeshe, Helena.
    For Respondent: Ann L. Smoyer, Helena.
   JUSTICE HUNT

delivered the opinion of the Court.

Appellant Dennis Keith Sacry appeals from a decree of

dissolution from the First Judicial District Court, Lewis and Clark County.

We affirm.

Appellant raises four issues for our consideration.

1. Did the District Court err in awarding maintenance to respondent?

2. Did the District Court err in computing child support?

3. Did the District Court err in not apportioning child support?

4. Did the District Court err in the distribution of the marital estate?

Appellant and respondent, Sandra Lois Sacry, were married on August 16, 1969. Three children were born during the marriage. At the time of trial, the oldest was 20 years old and did not live at home. The other two children, one 17 years old, and one 13 years old, lived primarily with the respondent.

Prior to the marriage, appellant received his undergraduate degree from Carroll College while respondent achieved her three year nursing certificate. Appellant began his career in dentistry upon graduation from dental school in 1974. Both parties contributed financially to appellant’s successful completion of dental school." Appellant was able to obtain loans and grants to pay for his education, while respondent worked as a registered nurse to pay for living expenses. After appellant graduated from dental school, the couple moved to Whitehall. The citizens of Whitehall had built a medical/dental building for appellant and his uncle, who was a physician. Respondent worked as a nurse for appellant’s uncle until the youngest child was born in 1978. In 1979, respondent returned to work for appellant as an office manager and dental assistant.

Since the opening of appellant’s practice, the business has thrived. In 1985, appellant expanded his practice to include Butte. In 1989, he purchased a dental practice in Harlowton. In addition, appellant rented an office in Scobey to perform orthodontic work. Appellant also purchased an airplane in order to maintain his diverse geographical practice.

The couple separated in 1988, prior to the acquisition of the Harlowton and Scobey practices. Respondent stopped working for appellant and obtained a nursing position at a psychiatric hospital in Butte. At the time of trial, respondent was still working at the hospital and attending college at Bozeman.

Over the years, the couple accumulated a considerable amount of marital assets. The marital estate consisted of investment funds, gold and silver, IRAs, retirement moneys, several vehicles, and various bank accounts. The parties maintained a family home in Cardwell and they owned other real property in Whitehall and Harlowton. The parties also had a partnership interest in what was called the Sacry ranch.

At trial, the parties stipulated to most of the valuations of property. The parties disputed the value of the dental practice and its assets. Each side presented their own expert witness regarding the value of the dental practice.

On March 22,1991, the District Court issued it findings of fact and conclusions of law and decree of dissolution. The court found that the value of the marital estate totaled $586,675, with debts of $247,160. The net value of the martial estate distributed to appellant was $191,090 while the net value of the estate awarded to respondent was $128,425. The court ordered appellant to pay respondent $31,333 to equalize the distribution of the estate. The court also awarded respondent maintenance of $300 a month for 18 months.

The parties were awarded joint custody of the two minor children who primarily reside with respondent. The court ordered appellant to pay child support in the amount of $1763 a month. Appellant appeals the District Court’s findings set out in the decree of dissolution.

On May 16,1991, appellant filed a motion requesting the court to amend its findings and order, or to alter its judgment. On June 27, 1991, the court denied appellant’s motion. On July 19,1991, appellant filed his notice of appeal.

I.

Did the District Court err in awarding maintenance to respondent?

In reviewing an award of maintenance, this Court’s role is limited to a determination of whether the District Court’s findings are clearly erroneous. In Re Marriage of Eschenbacher (Mont. 1992), [253 Mont. 139,] 831 P.2d 578, 49 St.Rep. 392, 394. The court may award maintenance if it finds that the spouse seeking maintenance:

(a) lacks sufficient property to provide for his reasonable needs; and
(b) is unable to support himself through appropriate employment ..

Section 40-4-203(1), MCA.

To determine whether a spouse has “sufficient property,” the court should consider whether the property is income-consuming or income-producing. In Re Marriage of Cole (1988), 234 Mont. 352, 356, 763 P.2d 39, 42. The court must also consider factors set out under § 40-4-203(2), MCA, when deciding the amount and duration of maintenance.

Respondent earns approximately $29,000 a year working as a registered nurse and receives a $1,000 yearly allotment as an enrolled member of the Confederated Salish and Kootenai Tribes. Appellant, on the other hand, earns approximately $100,000 ayear. The properly that respondent received in the dissolution decree is mainly income-consuming property. Her nursing certificate is insufficient for her to advance in her career. Her income would not allow her to maintain her standard of living, nor would it enable her to complete her college courses necessary for a BA. The District Court determined that for respondent to further advance in her career as a nurse she would need to obtain her BA. degree. We hold that the award of maintenance by the District Court was not clearly erroneous.

II.

Did the District Court err in computing child support?

In reviewing child support, this Court has stated that a presumption exists in favor of the district court’s determination, and this Court will reverse the district court only if it has abused its discretion. In Re Marriage of Graveley (1990), 244 Mont. 137, 139, 796 P.2d 585, 586-87.

The Department of Social and Rehabilitative Services adopted child support guidelines pursuant to § 40-5-209(5), MCA, which became effective on July 13, 1990. The underlying principle behind the adoption of the guidelines is that a child’s standard of living should not, to the degree possible, be adversely affected because his or her parents are not living in the same household. 46.30.1501, A.R.M. The child support guidelines are used in conjunction with the factors set out in § 40-4-204, MCA, to determine the proper amount of child support awarded. The use of the guidelines creates a rebut-table presumption of the adequacy and reasonableness of child support awards. 46.30.1507, A.R.M.

In calculating child support, the court found that respondent had an annualized income of $28,143, a net value of assets of $160,590, and taxes of $7,140. The court found that appellant had an annualized income of $100,500, a net value of assets of an annualized income of $100,500, a net value of assets of $198,800, and taxes of $34,000. The District Court used the 26.1 percentage of parental income, as stated in the guideline tables, to arrive at the child support amount. The court ordered appellant to pay $1,763 a month in child support, and allowed him to claim the minor children as dependents for income tax purposes.

Appellant contends that the District Court did not list which “income attributable to assets” were included or excluded. However, appellant did not provide the court with any documentation relating to his disposable income, nor did he provide the court with any computation regarding how much he should pay in child support. Respondent provided the court with her support calculation which was prepared by her accountant. The amount the court awarded closely approximated the testimony of the accountant and the amount appellant was paying prior to the decree of dissolution.

Appellant also contends that the 26.1 percentage should be reduced because it is not applicable to incomes greater than $39,500. While it is true that the guideline tables do not apply to incomes greater than $39,500, exclusions from the guidelines are set out in 46.30.1543, A.R.M.

When incomes exceed this amount the first $39,500.00 should first be applied in the appropriate column and line which shows the number and age of the child to arrive at a minimum support amount. The minimum support amount should be supplemented out of the remaining parental income. The amount of the supplement must be determined on a case-by-case basis.

46.30.1543(2), A.R.M. Thus, the court is given broad discretion in determining the appropriate amount of child support. The District Court properly considered the financial situation of the parties, the needs of the children, and used 26.1 percent to calculate child support. We hold that the District Court did not abuse its discretion in the calculation of child support.

III.

Did the District Court err in not apportioning child support?

Appellant argues that because one of the minor children turned 18 on December 28,1991, the District Court should have provided for future adjustment for lower child support payments after the child turned 18. Specifically, he contends the court should have apportioned the support between the two minor children and allowed appellant to terminate support without having to go through the expense of a motion. Appellant fails to cite any authority for this proposition.

Procedure for modification of child support payments is governed by § 40-4-208, MCA. Upon motion of a party, the district court may modify child support payments. Section 40-4-208(1), MCA. Section 40-4-208(5), MCA, provides in pertinent part:

Provisions for the support of a child are terminated by emancipation of the child or the child’s graduation from high school if the child is enrolled in high school, whichever occurs later, but in no event later than the child’s 19th birthday, unless the termination date is extended or knowingly waived by written agreement or by an express provision of the decree.

No provision in the decree states when child support should be terminated. When the second child reaches age 18, or graduates from high school, whichever occurs later, appellant may then petition the court for modification of child support. We hold the District Court did not abuse its discretion in not apportioning child support payments.

IV.

Did the District Court err in the distribution of the marital estate?

Appellant’s main contention is that the District Court should not have included the Scobey and Harlowton practices in the division of the marital estate, and that the court’s valuation of appellant’s dental practice was too high.

Our standard of review in the division of marital property is whether the district court’s division of the marital estate is clearly erroneous. Interstate Production Credit Assn. v. DeSaye (Mont. 1991), [250 Mont. 320,] 820 P.2d 1285, 1287, 48 St.Rep. 986, 987.

Appellant argues that the Scobey and Harlowton practices should not have been included in the marital estate because they were acquired after the parties had separated. The general rule for the court to value the marital estate is at or near the time of dissolution, unless unique circumstances of the marital relationship exist. In Re Marriage of Swanson (1986), 220 Mont. 490, 495, 716 P.2d 219, 222.

Respondent had worked for appellant as an office manager and dental hygienist for several years. Her assistance allowed him to develop, maintain, and expand a successful dental practice. Appellant has failed to offer evidence of any unique circumstances which would lead the District Court to value the dental practice at the time of separation. We hold that the District Court’s inclusion of the Harlowton and Scobey practices in the marital estate was not clearly erroneous.

With regard to the valuation of the dental practice, at trial each side presented an expert to testify about the value of appellant’s dental practice. Appellant’s expert, Mr. Fladmo, a CPA, testified that the value of the dental practice was $65,000. Respondent’s expert, Mr. Danzer, also a CPA, testified that the practice was worth $200,000. The District Court believed that the first valuation was too low because the expert failed to give sufficient consideration to the lack of competition of dental practices in rural areas and appellant’s increased income over the past two years. The court reasons that the second valuation was too high because the expert based his calculations from a study which used cities that are large by Montana’s standard and that the practice was unique because it was located in four separate areas. The court averaged the two valuations to arrive at $133,000. The averaging of values given by experts to arrive at an equitable distribution is within the discretion of the district court. In Re Marriage of Goodmundson (1982), 201 Mont. 535, 539, 655 P.2d 509, 511. We hold the District Court did not abuse its discretion in averaging the values given by the experts.

With regard to the various other valuations and distribution of assets that appellant asserts are incorrect, we need only stat that there is substantial credible evidence to support the District Court’s valuations of the marital estate’s assets. We hold that the District Court did not err in distributing the marital estate.

We affirm.

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


author: JUSTICE HARRISON JUSTICE GRAY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. CHARLES LEE REYNOLDS, JR., Defendant and Appellant.
    No. 91-533.
    Submitted on briefs May 7, 1992.
    Decided May 28, 1992.
    49 St.Rep. 463.
    253 Mont. 386.
    833 P.2d 153.
    For Appellant: James G. Hunt, Dix & Hunt Law Firm, Helena.
    For Respondent: Marc Racicot, Attorney General; John Paul-son, Assistant Attorney General; Mike McGrath, Lewis & Clark County Attorney, Helena.
    JUSTICE GRAY concurred in part, dissented in part and filed an opinion.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the District Corut of the First Judicial District, Lewis and Clark County, concerning the withdrawal of a guilty plea. We affirm.

The sole issue presented for review is whether the District Court erred by denying appellant’s motion to withdraw his guilty plea.

The appellant, Charles Lee Reynolds, Jr. (Reynolds), was charged by complaint in the Justice Court of Lewis and Clark County, on January 4, 1990, with the offense of issuing a bad check (common scheme), a felony. On January 25,1990, a second complaint was filed against Reynolds in Justice Court, charging him with the offense of criminal trespass, a misdemeanor; intimidation, a felony; and forgery, a misdemeanor. At that time an arrest warrant was issued and Reynolds was arrested on that date. Reynolds posted bond in the amount of $2,500.

On March 22,1990, Reynolds waived a preliminary hearing on the charges in Justice Court and was bound over to District Court. The Lewis and Clark County Attorney filed an information on April 23, 1990, charging Reynolds with the offenses of issuing a bad check, a felony; and forgery, a misdemeanor. Although the record is unclear, it appears that the Lewis and Clark County Attorney dropped the criminal trespass and intimidation charges in the transmission from Justice to District Court.

Four separate short transcripts of the court proceedings are filed in this matter: (1) The May 3, 1990, transcript of Reynolds’ initial appearance, arraignment and sentencing in District Court; (2) the April 5, 1991, transcript of the County Attorney’s petition to revoke Reynolds’ suspended sentence; (3) the July 11, 1991, transcript entitled “Review Hearing;” and (4) the July 25, 1991, transcript of Reynolds’ motion to withdraw his guilty plea.

The various transcripts reveal that in early 1990, while Reynolds was under arrest and being held in the county jail, he initiated contact with Sgt. Les Hathcock of the Helena Police Department about becoming a drug informant. After Sgt. Hathcock discussed this matter with the Lewis and Clark County Attorney, they agreed to use Reynolds as an informant. Reynolds acted as an informant for the county between the end of January, 1990 until April, 1990. During that time, he became well acquainted with the police officers and the prosecution staff of Lewis and Clark County. The record indicates that while working as an informant Reynolds testified at several trials which resulted in over twenty drug convictions.

On May 3, 1990, Reynolds appeared before the District Court, without counsel, for his arraignment. At that time the court advised him that by appearing without counsel he was waiving a right to which he was entitled, and the court asked whether he was ready to proceed. Reynolds stated that he did not wish to be represented by counsel. On appeal, Reynolds indicated that one of the reasons he felt he did not need an attorney when he entered his guilty plea was that he had considerable faith in the Lewis and Clark County Attorney.

Before the court accepted Reynolds’ guilty plea, Reynolds explained to the court that he and his wife broke up, and as a result of the break up, he was doing considerable drinking and gambling. He further testified that before the charges were brought against him, he issued a number of bad checks to various Helena area merchants knowing his deposits were insufficient to cover the amount of checks he wrote. As to the second charge of forgery, Reynolds testified that he sold a clock for $60 but altered the check by inserting a one before the six thereby making the amount payable appear to be $160. He cashed the check for $160.

After reading the charges in the information to Reynolds, the court said to him:

THE COURT: ... And at the time, you knew that [the $60 check] was made or altered in such a manner that it purported to have been made by Fae Tickler. Do you generally understand what’s charged in each count?
CHARLES LEE REYNOLDS: Yes, sir.

Thereafter, the court set forth the maximum possible punishment for each offense, and after explaining the same the District Court Judge asked Reynolds, “Do you understand what the maximum possible punishment is?” To which Reynolds replied ‘Yes, sir.”

Then, the court asked Reynolds:
THE COURT: Now, ... You are also entitled to be represented by an attorney. You appear here without an attorney and do you wish to be represented by an attorney?
CHARLES LEE REYNOLDS: No, I don’t believe so.
THE COURT: You feel that under the circumstances you will represent yourself; is that correct?
CHARLES LEE REYNOLDS: Yes.

All of this information was available to the trial judge when he sentenced Reynolds, and the May 3, 1990, transcript reveals considerable discussion between the court and Reynolds prior to his entering a plea.

During the May 3, 1990, proceeding, Reynolds entered his guilty plea and the court proceeded directly to sentencing Reynolds. Accepting the County Attorney’s recommendation, Judge Honzel sentenced Reynolds to three years in the state prison and suspended all but time served on the conditions the County Attorney recommended. Judge Honzel stated:

THE COURT: ... First of all, you make restitution, and it will probably be in the neighborhood of $3,800, and the restitution officer will get a final amount. We won’t leave that hanging forever. And, then, we’ll have a final amount probably in thirty days and we’ll set that as the time. So, whatever [the restitution officer] comes up with in thirty days, that’s what you’ll be responsible for. If, for some reason, you think [the restitution officer is] way out of line, you’re entitled to a hearing on that, and, then, I’ll determine what the exact amount is. Otherwise, we’ll go with the figure [the restitution officer] comes up with. And you’ll be a law-abiding citizen.
In addition, you’ll be given credit for the time that you’ve already served. I guess the way to do that is, we’ll suspend all of it but eight days and you’ll be given credit for the time that you served. I guess that’s the easiest way to handle that.
As far as the reasons, it does comply with the plea agreement and you have previously had a deferred sentence and you’re not entitled to another one and this is the type of an offense which requires restitution. From your standpoint, the one thing that you need to understand is that if you goof up and you don’t make restitution or you get into further trouble with the law, the county attorney can ask that your suspended sentence be revoked and that you begin to serve that sentence.

Approximately one year later, on March 18, 1991, the Lewis and Clark County Attorney petitioned the court to revoke Reynolds’ suspended sentence for his failure to make a good faith effort to pay the restitution as required by the judgment of the court. The court held a hearing on that motion on April 5, 1991, wherein the County Attorney elicited testimony that Reynolds made little or no effort to comply with the conditions of his suspended sentence; that he did not make himself available to the restitution officers of Lewis and Clark County; and, as noted by the restitution officer, Reynolds’ cooperation with the restitution program was not very positive.

The transcript reveals that the year after Reynolds pled guilty, he had earned income of approximately $16,000, gross, and during December of 1990, and January, February and half of March, 1991, he had drawn unemployment. Out of those funds, a large percentage was taken to pay child support and other expenses, however, Reynolds paid nothing toward fulfilling his restitution obligation.

After that hearing, Reynolds filed a motion to withdraw his guilty plea on June 7,1991. The court set July 25, 1991, for hearing on that motion.

The record reveals that following Reynolds’ guilty plea and sentencing in 1990, he was charged in United States District Court, State of Montana, with a violation of 18 U.S.C. § 922(a)(6), making a false statement on Alcohol, Tobacco and Firearms Form 4473; and violation of 18 U.S.C. § 922(g)(1), being a felon in possession of a firearm for allegedly purchasing a firearm on June 14, 1990. Apparently, Reynolds’ motion to withdraw his guilty plea a year later was somewhat influenced by the charges in United States District Court.

The standard of review in cases involving a district court’s refusal to allow a defendant to withdraw a guilty plea is whether the district court abused its discretion. State v. Cameron (Mont. 1992), [253 Mont. 95,] 830 P.2d 1284, 49 St.Rep. 150, 152. Absent an abuse of discretion, we will not disturb the district court’s decision. Cameron, 830 P.2d at_.

Section 46-16-105(2), MCA, allows the court to permit the withdrawal of a guilty plea and substitute in its place a plea of not guilty upon a showing of good cause. This Court considers the following three factors when determining whether a district court erred in refusing to allow a defendant to withdraw his guilty plea:

(1) the adequacy of the District Court’s interrogation at the time the plea was entered as to the defendant’s understanding of the consequences of his plea; (2) the promptness with which the defendant attempts to withdraw the prior plea; and (3) the fact that the defendant’s plea was the result of a plea bargain.

State v. Walker (1986), 220 Mont. 70, 72, 712 P.2d 1348,1350 (citation omitted). Here, we carefully considered the above factors in determining whether the District Court abused its discretion in denying Reynolds’ motion to withdraw his guilty plea.

In reviewing the first factor, the District Court noted that this Court has held that the procedure it followed is adequate when a district court:

[E]xamines the defendant, finds him to be competent, and determines from him that his plea of guilty is voluntary, he understands the charge and his possible punishment, he is not acting under the influence of drugs or alcohol, he admits his counsel is competent and he has been well advised, and he declares in open court the facts upon which his guilt is based ....

State v. Lewis (1978), 177 Mont. 474, 485, 582 P.2d 346, 352.

Reynolds argues that the District Court’s interrogation was inadequate. Reynolds contends that his motion to withdraw his guilty plea should have been granted because he did not have counsel at the time he entered his guilty plea. He further claims that the factual basis for one of his guilty pleas was not sufficiently established in the record; that the court failed to properly inform him of a possible defense or a possible lesser-included offense; and that the court failed to advise him of consequences of pleading guilty.

The District Court noted that in this case Reynolds was not represented by counsel, but he knowingly waived his right to counsel. Further, Reynolds himself initiated discussions about the possibility of being used as an informant in exchange for favorable treatment. In the course of that role as an informant he built a relationship with the Lewis and Clark County law enforcement officers and he came to rely on that affiliation.

In reviewing the second factor, Reynolds argues that he timely made his motion to withdraw his guilty plea. Reynolds did not move to withdraw his guilty plea until some thirteen months after he entered it. In general, filing the motion to withdraw a guilty plea over a year after entry of the guilty plea is untimely. State v. LaTray (1986), 220 Mont. 358, 715 P.2d 52.

Reynolds makes considerable argument concerning his federal court firearm charge, and argues that the State’s position that he did not timely move to withdraw his plea, having waited thirteen months after sentencing, is unsubstantiated. We note that due to the federal firearm charge, Reynolds did not, nor could not, have acted much faster because he was not aware of or at least was not arrested for being a felon in possession of a firearm until March 5,1991, at which time counsel had been appointed for him. However, we do not find that this was the controlling factor in the trial court’s decision to deny Reynolds’ motion to withdraw his guilty plea.

In reviewing the third factor, Reynolds argues that although his guilty plea resulted from a favorable plea bargain agreement, he was unaware that the plea subjected him to another felony, the possession of a firearm. However, Reynolds received exactly what he bargained for when the District Court sentenced him according to the County Attorney’s sentencing recommendations.

Reynolds argues that he was not advised that he could not possess a firearm as a consequence of his guilty plea and that he did not become aware of that regulation until after he had purchased the firearm. To this argument the District Court noted that, as a part of sentencing procedure, it was not aware of any requirement, nor are we, that defendants should be informed that it is illegal for a convicted felon to possess a firearm. Here, as in most proceedings on suspended sentences, Reynolds was informed that he must be a law abiding citizen. If not, the suspended portion of his sentence could be revoked.

Reynolds was sentenced May 3,1990. Subsequently, he attempted to purchase the firearm on or about June 14, 1990. To obtain the firearm, Reynolds represented on ATF Form 4473 that he had not been convicted of a felony punishable by imprisonment for a term exceeding a year. This was clearly an error. Although Reynolds may not have known at the time of pleading guilty that possessing a firearm was illegal, he certainly became aware of it shortly thereafter when he had to make a false statement to the seller to obtain the firearm. It is impossible for a district court to inform a defendant of every illegal action that could affect the defendant upon entering a guilty plea. The District Court properly considered this factor when denying Reynolds’ request to withdraw his guilty plea.

Here, the District Court carefully considered the factors in refusing to permit Reynolds’ withdrawal of his guilty plea. Additionally, the court considered that the County Attorney did not include in its information in District Court two of the charges filed in Justice Court; and that the County Attorney recommended a short suspended sentence with unsupervised probation and payment of restitution. When accepting Reynolds’ guilty plea and the County Attorney’s sentencing recommendations, the court considered and made a concession in view of the fact that Reynolds had a prior felony conviction.

This Court has often held that it will not lend its assistance to an accused criminal in escaping his or her obligations of a plea bargain after accepting its benefits. State v. Radi (Mont. 1991), [250 Mont. 155,] 818 P.2d 1203, 48 St.Rep. 903; State v. Koepplin (1984), 213 Mont. 55, 689 P.2d 921. Considering and balancing all of the factors, we find the District Court was well within its discretion in denying Reynolds’ motion to withdraw his guilty plea.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES WEBER and McDonough concur.

JUSTICE GRAY

concurring in part and dissenting in part.

I concur in the majority opinion insofar as it analyzes the withdrawal of appellant’s plea of guilty to the forgery charge. I respectfully dissent from that opinion, however, on the issue of withdrawal of appellant’s guilty plea to the charge of issuing a bad check.

The majority notes Reynolds’ argument that the District Court’s interrogation at the time of entry of the plea was inadequate; it also notes his claim that “the factual basis for one of his guilty pleas [to the charge of issuing a bad check] was not sufficiently established in the record.” Having so noted, the majority never addresses this contention. It is my view that Reynolds is correct and that no factual basis for the intent element of the offense of issuing a bad check was established at the time the District Court accepted the plea to that charge.

The record contains the following exchange between the court and Reynolds with regard to the factual basis for the intent element:

THE COURT: And I take it that during that period of time, last June till this January, you were writing a lot of checks?
CHARLES LEE REYNOLDS: Yes, sir.
THE COURT: And the bank didn’t cover a number of those checks; is that right?
CHARLES LEE REYNOLDS: Yes, sir.
THE COURT: And you knew at the time that you were short of funds in the account?
CHARLES LEE REYNOLDS: Well, I was making deposits, yeah — it wasn’t clear at the time. I was confused and mixed up and emotionally hurt and I was drinking a lot and gambling a lot to try to pass time.
THE COURT: Whatever deposits you were making, they weren’t enough to —
CHARLES LEE REYNOLDS: No, sir.
THE COURT: — to cover these checks. Where were you making them to, mostly in the bars and casinos?
CHARLES LEE REYNOLDS: Yes.

It is clear that the District Court attempted to establish that Reynolds knew at the time he wrote the checks that his deposits were insufficient to cover those checks. It is my view, however, that Reynolds’ testimony was that he was confused, upset and often under the influence of alcohol during the time period at issue. He responded that, as a matter of fact, the deposits he made were not enough to cover the checks. This is not a statement that he knew or intended at the time that the checks would not be covered. Indeed, the record contains no clear statement that Reynolds knew at the time he was writing the checks that there were not sufficient funds in his account to cover the checks. For that reason, I conclude that sufficient factual basis for the intent element of the offense of issuing a bad check is not contained in the record. Therefore, I would hold that the District Court abused its discretion in denying Reynolds’ motion to withdraw his guilty plea to that charge.


author: JUSTICE GRAY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. EDWARD F. MILLER, Defendant and Appellant.
    No. 91-547.
    Submitted on briefs Apr. 23, 1992.
    Decided June 2, 1992.
    49 St.Rep. 481.
    253 Mont. 395.
    833 P.2d 1040.
    For Appellant: Arthur J. Thompson, Thompson & Sessions, Billings.
    For Respondent: Marc Racicot, Attorney General, Paul D. Johnson, Assistant Attorney General, Helena; AW. “Tony” Kendall, Carbon County Attorney, Red Lodge.
   JUSTICE GRAY

delivered the Opinion of the Court.

Defendant Edward F. Miller appeals the order of the District Court for the Thirteenth Judicial District, Carbon County, denying his Motion to Withdraw Guilty Pleas. Miller’s motion was based on the recanting of testimony on which he based his Alford plea to the charges against him. We affirm.

The sole issue on appeal is whether the District Court abused its discretion in denying the motion to withdraw pleas.

D. and D., Miller’s stepsons, ran away from home in June of 1989. The boys walked and hitchhiked to Denver, Colorado to stay with an aunt. The aunt notified authorities in Denver that the boys were runaways. Subsequently, D. and D. told Denver police that they had experienced abuse from Miller and that they feared both Miller and their mother. The boys accused Miller of beating them with his fists, a two-by-four board, and a jack handle in addition to instances of sexual abuse.

Denver police reported the boys’ story to Denver Social Services. Social Services ultimately decided that the boys should be returned to the Carbon County, Montana, Department of Family Services and made arrangements for Ed Lambrecht, a Carbon County social worker, to meet the boys at the airport in Montana. Upon D. and D.’s return to Montana, Lambrecht placed the boys in various foster homes, but they ran away each time.

On April 18, 1990, Miller was charged by amended information with one count of felony assault and two counts of felony sexual assault involving his three minor stepchildren. In addition to the assault and sexual assault allegations against Miller by the boys, Miller’s stepdaughter alleged sexual assaults by Miller. This physical and sexual abuse was alleged to have occurred with increasing frequency between January and June of 1989. Written statements and video-taped interviews of the children, detailing the children’s allegations, were relied on in filing the charges.

On April 23, 1990, Miller entered into a plea bargain agreement with the prosecutor in Carbon County; Miller agreed to plead guilty in exchange for the county attorney’s recommendation of deferred sentences. Maintaining his innocence but agreeing that sufficient evidence was available to convict him, Miller entered an “Alford plea.” See North Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162.

On June 18,1990, Miller filed a motion to withdraw his guilty pleas on the basis that he was unaware of certain consequences when he entered the pleas. The District Court denied the motion. Prior to Miller’s sentencing, the three children sent handwritten letters to the District Court again detailing their abusive home environment. The court considered these letters and, in October 1990, sentenced Miller to three consecutive terms of three years in the Montana State Prison with eight of the nine years suspended. On appeal, we affirmed the District Court’s denial of the motion to withdraw. State v. Miller (1991), 248 Mont. 194, 810 P.2d 308.

Sometime after June 1,1991, and before July 8,1991, and against Lambrecht’s advice, D. and D. went to live with their mother, S.M. The boys wrote letters to the court at this time, recanting portions of their previous statements, letters, and interviews describing the abuse. D. and D. stated that they amplified and exaggerated the original charges against Miller at the urging of Ed Lambrecht. They asserted that Lambrecht threatened to have them placed in Pine Hills School for Boys unless they exaggerated the alleged abusive incidents.

Miller based his second motion to withdraw pleas, made July 8, 1991, on these recantations. After holding a hearing on the motion, receiving testimony and considering the entirety of the record before it, the District Court denied Miller’s motion on the basis that neither minor boy was recanting truthfully.

Absent an abuse of discretion, a trial judge’s decision not to allow the withdrawal of a guilty plea will be affirmed by this Court. State v. Long (1987), 227 Mont. 199, 738 P.2d 487. Miller argues that he should be permitted to withdraw his plea because two of the three victims have recanted their testimony. He contends that the court abused its discretion by refusing to allow him to withdraw the pleas on the basis of undisputed new evidence that D. and D. exaggerated the charges.

The State contends that our review of this case is similar to our review of a motion for new trial based on recanting testimony. It argues that recanting testimony should be viewed with extreme suspicion by the courts. United States v. Adi (5th Cir. 1985), 759 F.2d 404. In addition, the State argues that the district court has the discretion to evaluate the recanting testimony for veracity. State v. Perry (1988), 232 Mont. 455, 758 P.2d 268.

In Perry, we adopted the prevailing judicial attitude that recanting testimony is to be viewed with great suspicion. Perry, 232 Mont. at 466, 758 P.2d at 275. While Perry dealt with a motion for a new trial based on the recanting of trial testimony, the rationale for viewing recanting testimony with suspicion is equally applicable here.

On its face, a recantation reveals a witness to be unreliable; it also raises other questions, such as whether the motive for recanting is fear. Perry, 232 Mont. at 466, 758 P.2d at 275. We stated in Perry that the weight to be given recanting testimony is for the district court to determine and that a new trial is required only when the court is satisfied that the recantation is true. Perry, 232 Mont. at 466, 758 P.2d at 275.

Here, the recanting witnesses testified at a hearing on Miller’s motion. The court observed the demeanor and heard the testimony of both the recanting victims and Lambrecht. In its Findings of Fact and Conclusions of Law, the District Court specifically concluded that the minor boys’ recantation was false. The court relied on numerous factors in making that determination. First, the recantations came soon after the boys moved back into their mother’s home. In addition, and of particular significance, the boys’ original statements to Denver authorities preceded any contact with Lambrecht relating to their initial allegations. The court also noted the children’s interest in the defendant’s ultimate sentence throughout the earlier proceedings. Finally, the stepdaughter victim did not recant.

The District Court held a hearing on Miller’s motion to withdraw his pleas. It heard and evaluated testimony, considered all the evidence, concluded that the recantations were not true, and denied the motion. We hold that the court did not abuse its discretion.

Affirmed.

JUSTICES HARRISON, HUNT, McDONOUGH and WEBER concur.


author: JUSTICE HARRISON

text:
    RAVALLI COUNTY BANK, a Montana Banking Corporation, Plaintiff and Respondent, v. JAY M. GASVODA, a/k/a JAY M. GASVODA CONSTRUCTION, d/b/a GASVODA CONSTRUCTION, SALLY A. GASVODA, and ROLAND L. SAUTER, d/b/a BILLINGS TRUCK SALVAGE, Defendants and Appellants.
    No. 91-582.
    Submitted on briefs Mar. 26, 1992.
    Decided June 4, 1992.
    49 St.Rep. 488.
    253 Mont. 399.
    833 P.2d 1042.

      For Appellants: Lewis E. Brueggemann, Brueggemann Law Office, Billings.
    For Respondent: Thomas P. Koch, Koch, McKenna, Goheen & Weber, Hamilton.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from an order of the Fourth Judicial District Court, Missoula County, Montana, which granted respondent, Ravalli County Bank (the Bank), summary judgment against the counterclaim of appellant, Roland L. Sauter (Sauter). We reverse and remand.

The case at bar stems in part from two previous cases. In those cases Sauter filed suit in Justice Court against Jay M. Gasvoda (Gasvoda), d/b/a J.M.C. Ranch, for Gasvoda’s non-payment of repairs Sauter made to Gasvoda’s truck. Sauter prevailed in both suits and obtained two judgments on May 16, 1985, totaling nearly $4,300. Subsequently, Sauter filed abstracts of judgments with the Ravalli County Clerk of Court against Gasvoda’s real property.

On April 17, 1985, approximately one month prior to Sauter’s judgments against Gasvoda, the Bank, which previously made numerous loans to Gasvoda, obtained and recorded an additional mortgage on Gasvoda’s real property in the amount of $14,872.31.

Over five years later, in a letter dated April 20,1990, Mr. L. Neeley (Neeley), the Vice-President of the Bank, refused to restructure Gasvoda’s mortgage due to existing exceptions, liens, and judgments on the property. The letter informed Gasvoda that foreclosure proceedings would commence on June 1,1990, unless the exceptions were satisfied. In May of 1990, Sauter’s counsel received a letter from Gasvoda asking that Sauter’s judgments be settled for $2,000 to avoid foreclosure on June 1, 1990.

On April 17, 1991, the Bank initiated foreclosure proceedings on Gasvoda’s April 17, 1985 mortgage. Sauter was also named as a defendant because of the judgment hens he held against Gasvoda. The complaint indicated that under the mortgage, Sauter’s judgment liens were subordinate and inferior to the rights of the Bank.

Sauter filed his answer and counterclaim on May 31, 1991, based on alternative theories of fraud. Sauter alleged that either the Bank conspired to aid and assist Gasvoda in the mortgage of his real property to the fraudulent detriment of Sauter, and\or the Bank was grossly negligent in not discovering Sauter’s pending litigation against Gasvoda when it took an additional mortgage against Gasvoda’s property on April 17, 1985.

After Sauter responded to the Bank’s request for admissions, all of which he denied, the Bank moved for summary judgment on Sauter’s counterclaim. The motion for summary judgment was based on Sauter’s denials to the request for admissions, an affidavit of Neeley, and supporting memoranda. After a hearing on the summary judgment motion on October 16, 1991, the District Court found no genuine issues of material fact and granted the Bank’s motion for summary judgment. Sauter now appeals the order of the District Court.

The issue on appeal is whether the District Court erred in granting summary judgment against Sauter’s counterclaim for fraud when it failed to specify grounds on which to base such a conclusion.

Summary judgment is proper only 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.R; also see Cereck v. Albertson’s Inc. (1981), 195 Mont. 409, 411, 637 P.2d 509, 510. The party moving for summary judgment has the initial burden of proof to show that no genuine issues of material fact exist. Westmont Tractor Co. v. Continental I, Inc. (1986), 224 Mont. 516, 521, 731 P.2d 327, 330. Once the moving party meets the burden, the non-moving party must establish that genuine issues of material fact exist. Simmons v. Jenkins (1988), 230 Mont. 429, 432, 750 P.2d 1067, 1069.

When granting summary judgment the trial court “shall specify the grounds therefor with sufficient particularity as to apprise the parties and the appellate court of the rationale underlying the ruling and this may be done in the body of the order or in an attached opinion.” Rule 52(a), M.R.Civ.R

In Johnston v. American Reliable Ins. Co. (1991), 248 Mont. 227, 810 P.2d 1189, we encountered a situation similar to the case at bar with regard to the district court granting summary judgment. In Johnston, we remanded with instructions and stated:

The District Court did not specify the grounds for either of the summary judgment rulings with sufficient particularity to apprise the parties and the appellate court of the rationale underlying the rulings. We therefore remand this cause to the District Court with instructions to specify the grounds for the rulings with sufficient particularity so as to apprise the parties and this Court of the rationale underlying its rulings.

Johnston, 248 Mont. at 229-230, 810 P.2d at 1191.

In the case at bar we arrive at the same conclusion. The District Court did not adhere to Rule 52(a), M.R.Civ.P., when it failed to specify the grounds for the summary judgment ruling with sufficient particularity. Therefore, we remand this case to the District Court with instructions to proceed in accordance with this opinion. Reversed and remanded.

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


author: JUSTICE McDONOUGH

text:
    CITY OF BILLINGS, Plaintiff and Respondent, v. BRIEN PANASUK, Defendant and Appellant.
    No. 91-378.
    Submitted on briefs Apr. 15, 1992.
    Decided June 9, 1992.
    49 St.Rep. 499.
    253 Mont. 403.
    833 P.2d 1050.

      For Appellant: Robert L. Stephens, Jr., R.L. Stephens, P.C., Billings.
    For Respondent: Mary Jane McCalla, City Attorney’s Office, Billings.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from an order of the Thirteenth Judicial District, Yellowstone County. Appellant and Defendant, Brien Panasuk (Panasuk) challenges the jurisdiction of the City Court of Billings to hear and determine criminal public nuisance charges brought under §§ 45-8-lll(l)(a) and (b), MCA. The District Court held that the City Court did have jurisdiction. We affirm.

The sole issue for our review is whether or not the City Court has jurisdiction to hear and determine criminal public nuisance charges for violation of §§ 45-8-lll(l)(a) and (b), MCA.

The City of Billings filed, in City Court, four complaints; one alleging that Panasuk violated § 45-8-lll(l)(a), MCA, and three alleging violation of § 45-8-lll(l)(b), MCA. Panasuk operates an after hours club that caters to under age patrons. The charges allege Panasuk knowingly maintained an area, the parking lot adjacent to his club, where persons gathered for the purpose of engaging in unlawful conduct. Unlawful conduct cited in the complaints include: shootings, a stabbing, disturbances, curfew violations, criminal mischief, criminal misdemeanors, numerous open container violations and misdemeanor possession of liquor.

The City Court concluded that it had jurisdiction and subsequently imposed fines on each of the complaints. In addition, the City Court sentenced Panasuk to six months in the county jail which was suspended on conditions. Panasuk appealed to the District Court challenging the City Court’s jurisdiction over the matter. The District Court upheld the City Court’s jurisdiction, relying on § 3-11-102, MCA, which grants the City Court jurisdiction over misdemeanors.

Section 45-8-111, MCA, the section under which Panasuk was charged, provides in relevant part:

45-8-111. Public nuisance. (1) “Public nuisance” means:

(a) a condition which endangers safety or health, is offensive to the senses, or obstructs the free use of property so as to interfere with the comfortable enjoyment of life or property by an entire community or neighborhood or by any considerable number of persons;
(b) any premises where persons gather for the purpose of engaging in unlawful conduct; or
(6) A person convicted of maintaining a public nuisance shall be fined not to exceed $500 or imprisoned in the county jail for a term not to exceed 6 months, or both. Each day of such conduct constitutes a separate offense.

The penalty imposed in sub-section 6 makes violation of § 45-8-111, MCA, a misdemeanor. See § 45-2-101(36), MCA.

Section 46-2-203, MCA, provides the City Court criminal jurisdiction as authorized by § 3-11-102, MCA. Section 3-11-102(1), MCA, provides:

3-11-102. Concurrent jurisdiction. (1) The city court has concurrent jurisdiction with the justice’s court of all misdemeanors and proceedings mentioned and provided for under chapter 10, part 3, of this title.

Chapter 10, part 3, of this title, as referenced above, includes:

3-10-303. Criminal jurisdiction. ...
(1) jurisdiction of all misdemeanors punishable by a fine not exceeding $500 or imprisonment not exceeding 6 months or both such fine and imprisonment: ...

Following these statutes, it is clear that City Court has jurisdiction over criminal misdemeanor charges. Furthermore, it is clear that violation of § 45-8-111, MCA, the section under which Panasuk was charged, is a misdemeanor.

Panasuk contends that § 3-10-301(l)(b), MCA, precludes a city court from hearing actions involving the title to, or possession of real property. Panasuk cites several statutory provisions as demonstrating the legislative policy that matters involving title to or possession of real property are beyond the jurisdiction of non-record courts. § 25-31-102, MCA, § 3-10-301, MCA, Rule 4(B)(1)(c), M.R.Civ.P. Furthermore, Panasuk argues that under § 45-8-112, MCA, any action to abate a nuisance must be brought in the name of the state and because abatement is a form of injunctive relief, the district court has exclusive jurisdiction. Citing § 3-10-301(l)(h), MCA. Finally, Panasuk argues that the exclusive remedies for public nuisance, both civil and criminal, are found in § 27-30-202, MCA, which provides:

27-30-202. Remedies for public nuisances. (1) The remedies against a public nuisance are:
(a) indictment or information;
(b) a civil action; or
(c) abatement.
(2) The remedy by indictment or information is regulated by Titles 45 and 46.

Panasuk contends that under the guidelines of the foregoing statute, a criminal prosecution for public nuisance cannot be commenced by a complaint, but only by indictment or information. The instant prosecution was commenced by a complaint filed in the City Court.

Panasuk’s arguments fail for several reasons. First, the argument that the City Court is precluded from hearing cases involving title to or possession of real property is premised on an action to abate the nuisance. The charges levied in the instant case were filed under § 45-8-111(1), MCA, and were criminal charges where the judgment was a fine and a suspended jail term. We do not have a case that involves title to or possession of real property. Furthermore, the sections cited by Panasuk all regard the civil jurisdiction of the City Court. The instant case involves the question of the City Court’s jurisdiction over a criminal matter.

Panasuk’s second argument is premised on belief that § 27-30-202, MCA, provides the “exclusive” remedies for public nuisance. Because the statute provides that an action against public nuisance may be commenced by information or indictment, Panasuk argues that an action for public nuisance may not be filed by complaint and must be filed in District Court.

In construing individual sections of the Code, the Code should be considered in its entirety to determine the effect of any one section. State v. Bush (1974), 164 Mont. 81, 518 P.2d 1406. We note that § 27-30-202, MCA, was enacted and has remained unchanged since 1895. In subsequent years the legislature enacted the above cited statutes regarding a city court’s jurisdiction over misdemeanors as well as § 45-8-111, MCA, the criminal public nuisance statute. Furthermore, in 1967, the legislature enacted a statute that requires all prosecutions brought in City Court be commenced by a sworn complaint. § 46-17-101, MCA.

In the construction of a statute, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted. Where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.

§ 1-2-101, MCA. Panasuk’s interpretation of § 27-30-202, MCA, is problematic. Section 27-30-202, MCA, provides for “the remedies against public nuisance”. It does not explicitly provide that the listed remedies are exclusive. Panasuk’s interpretation requires that we insert the word “exclusive” into the statute despite its absence.

Panasuk’s interpretation also results in creating a direct contradiction between § 27-30-202, MCA, and statutes subsequently enacted. Sections 3-11-102 and 3-10-303, MCA, provide the City Court jurisdiction over the instant case while Panasuk’s interpretation of § 27-30-202, MCA, would preclude such jurisdiction. Therefore, we decline to adopt Panasuk’s argument that § 27-30-202, MCA, provides the exclusive remedies for public nuisance and that the City was required to file its action by information or indictment in District Court.

We conclude the City Court has jurisdiction to hear and determine charges for violation of § 45-8-111, MCA. The District Court is affirmed.

JUSTICES HARRISON, HUNT, TRIEWEILER and WEBER concur.


author: CHIEF JUSTICE TURNAGE

text:
    IN RE THE MARRIAGE OF KENNETH JONES, Petitioner, and RITA ANN “GOBERT” JONES, Respondent, v. STEVEN G. POINDEXTER and INSURED TITLES, INC., a Montana corporation, Appellants.
    No. 91-394.
    Submitted Apr. 21, 1992.
    Decided June 9, 1992.
    49 St.Rep. 501.
    253 Mont. 408.
    833 P.2d 1044.

      For Appellant: John K. Tabaracci, Sullivan and Tabaracci, Missoula.
    For Respondent: Paul Neal Cooley, Skelton and Cooley, Missoula; Kenneth Jones, Pro Se, Kamiah, Idaho.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Steven Poindexter and Insured Titles, Inc., appeal an order of the District Court for the Fourth Judicial District, Missoula County, allowing Rita Ann “Gobert” Jones to execute judgment liens on certain real property in Florence, Montana. The property was sold to Poindexter by Kenneth Jones, Rita’s former husband, and his second wife and their daughters. We reverse.

We restate the issue as whether the order entered by the District Court relates to property sold to Poindexter by Ken Jones and is based on judgment liens existing when Poindexter purchased the property.

Since the marriage of Rita and Ken Jones was dissolved in January 1985, Ken has been held in contempt of court several times for refusing to pay maintenance and child support. He unsuccessfully challenged the original property settlement. In re Marriage of Jones (1987), 229 Mont. 128, 745 P.2d 350.

Ken purchased real property located in Florence, Montana, in 1986. In May 1987, he executed a declaration of homestead on the property pursuant to § 70-32-105, MCA. In July 1987, he conveyed the property by quitclaim deed to himself (V2), his second wife (V6), and their two daughters (1/6 each), as tenants in common. His second wife filed a declaration of homestead in January 1988.

Also in 1988, Ken filed for bankruptcy. As a result of that filing, in July 1988 a dissolution decree property settlement provision that he pay certain sums to Rita was redesignated as a maintenance obligation. Ken unsuccessfully appealed a subsequent order that he pay Rita maintenance and back child support. In re Marriage of Jones (1990), 242 Mont. 119, 788 P.2d 1351. While that appeal was pending, on January 5, 1990, Ken and his second wife (acting for herself and as guardian for their daughters) conveyed their Florence, Montana property to Poindexter. Insured Titles acted as the title company.

Rita states that she did not know of the sale of the Florence, Montana property until after it occurred. She was able to execute upon $15,735.53, or half, of the proceeds of the sale, which Insured Titles withheld from Ken for the purpose of paying Rita’s past-due maintenance and child support. Execution on those proceeds is not a subject of this appeal. This left $2,113.53 due on the underlying judgment.

On July 11,1990, Rita moved for an order of sale of the Florence, Montana property so that she could recover the maintenance remaining due her on the judgments upon which the earlier execution was had and attorney fees she was awarded under a January 24, 1989 order. The District Court ordered Poindexter and Insured Titles to show cause why Rita should not be allowed to execute upon the property.

After a hearing, the court determined that Ken’s homestead exemption was abandoned when he sold his interest in the property to Poindexter. It reasoned that because Rita’s judgment liens had never been removed or extinguished, those liens attached and encumbered the property at the time the homestead exemption was abandoned and thus the property was conveyed to Poindexter subject to the liens and to the court’s execution order. In June 1991, the court ordered that Rita may execute on the property in the amount of $8,749.02 plus interest. This included $2,113.53 remaining due from the earlier execution, plus interest on that amount; maintenance from May to September 1990 plus interest (those past-due payments having been reduced to a judgment in October 1990); and past-due maintenance from October 1990 to May 1991. The court stated that the attorney fees awarded under the January 24, 1989 order had not attached to the property.

Rita has already executed on Ken’s half of the proceeds of the sale of the Florence property. Prior to the entry of any of the judgments upon which execution is sought, Ken conveyed a total of half of his interest in that property to his second wife and two daughters. As indicated in the order from which appeal is taken, Poindexter purchased the property from the four tenants in common. Absent a setting aside of the conveyances from Ken to his second wife and daughters, we conclude that judgment liens against Ken’s property would not support an execution against the interests of the second wife and daughters and therefore do not support execution against the interest Poindexter purchased from the second wife and daughters.

There is another problem with allowing sale of the property for execution on the District Court judgments for maintenance due from May to September 1990 and from October 1990 to May 1991. Those maintenance payments became due and judgments were entered after Ken sold the real property in Florence to Poindexter. Under § 70-21-306, MCA, a purchaser takes property subject to prior judgments filed and recorded as provided in § 7-4-2613, MCA. However, no authority has been cited that a purchaser takes property subject to subsequent judgments against the seller. We conclude that execution may not be had upon the Florence property for judgments entered against Ken after Poindexter purchased the property.

Because of our resolution of this restated issue, we do not reach the other issues raised.

Reversed.

JUSTICES HARRISON, GRAY, TRIEWEILER, HUNT, McDONOUGH and WEBER concur.