text:
    In Re the Marriage of, CATHERINE ANN HUNT, Petitioner and Respondent, and DELBERT ORTON HUNT, Respondent and Appellant.
    No. 93-379.
    Submitted on Briefs December 16, 1993.
    Decided March 17, 1994.
    51 St.Rep. 209.
    264 Mont. 159.
    870 P.2d 720.

      For Respondent and Appellant: V. Joe Leckie, Billings.
    For Petitioner and Respondent: Kevin T. Sweeney, Sweeney & Healow, Billings.
   JUSTICE WEBER

delivered the Opinion of the Court.

Delbert Orton Hunt appeals the decision of the District Court of the Thirteenth Judicial District, Yellowstone County, in a proceeding initiated by him to reduce child support. Mr. Hunt also appeals the court’s decision in petitioner Catherine Ann Hunt’s cross-motion which placed conditions on his visitation privileges. We affirm in part, reverse in part and remand to the District Court for a redetermination of child support.

Mr. Hunt presents the following issues on appeal:

I. Can the joint custodial rights of one parent be made inferior to children’s outside activities when the commitment to such activities was the sole decision of the other joint custodian?

II. Did the District Court abuse its discretion in unilaterally placing conditions upon one joint custodian without imposing those conditions upon both joint custodians?

III. Did the District Court err in computing the proper child support amount of the appellant?

IV. Did the District Court abuse its discretion in ordering the appellant to sign a wage assignment in the amount of $500.00 per month over and above all amounts collected by the Child Support Enforcement Division for unpaid back child support and current child support?

This case is a particularly disturbing example of the husband’s efforts to evade his duties and responsibilities as a parent concerning the support of his children subsequent to a dissolution of marriage. The marriage of Catherine Ann Hunt and Delbert Orton Hunt was dissolved on April 26,1991, in Yellowstone County, Montana. At the time of the dissolution, the District Court ordered Mr. Hunt to pay $800 per month for the support of the parties’ two minor children. Mrs. Hunt testified that after the dissolution, Mr. Hunt told her she would never see a penny of child support from him.

Indeed, since that time, Mr. Hunt has seemed to go out of his way to avoid paying any child support to Mrs. Hunt voluntarily. The only child support Mrs. Hunt has received has been seized involuntarily from Mr. Hunt. Mr. Hunt has not cooperated in the least in this respect and has been held in contempt of court for failing to pay child support. The District Court stated in its findings and conclusions as follows:

8. It is unarguably clear to the Court that Delbert Hunt refuses to pay child support and will go to some effort to evade his support obligation. Delbert Hunt is in contempt of court. His employer may be assisting him in support avoidance. Delbert Hunt comes to the Court arguing that this child support should be reduced, but since the time of termination of garnishment of support with the end of his summer job, he has paid no sums whatsoever to his former wife for the care of his children. Delbert Hunt has the ability to pay child support but simply refuses to pay.

Mrs. Hunt received $4,427.48 for child support then owing when Mr. Hunt sold real property in Billings in July of 1991. Through seizure of 1992 wages, Mrs. Hunt received $3,641.40. With the additional amount of Mr. Hunt’s share of unpaid medical expenses for the children of $469.55, Mr. Hunt owed a total of $10,014.15 to Mrs. Hunt as of December 23, 1992, the time of trial on his petition for modification of child support.

A witness from the Child Support Enforcement Division of the Montana Department of Social & Rehabilitation Services testified that it was reported to that agency that Delbert Hunt was going by or using the pseudonym of “Delmar Hunt” in Oregon and bragging about not having to pay child support. That agency has had a difficult time in its collection efforts in attempting to extract support money from Mr. Hunt.

In his petition for modification of child support, Mr. Hunt requested that his support payments be reduced to $396 — $198 per child per month. After recalculating the amount of support according to the child support guidelines, the District Court reduced the monthly obligation from $800 to $741 — $370.50 per child. In making this calculation, the court imputed income to Mr. Hunt of $5,000, concluding that Mr. Hunt was voluntarily unemployed during seven months of the year when he was not working as an aerial fire fighter pilot in Oregon from May to October. The court also considered per diem payments of $6,120 annually which Mr. Hunt was paid and which defrayed his costs of self support.

Mr. Hunt also receives a bonus at the end of the fire fighting season from his employer. This bonus has not been available for garnishment as his employer has financed a pickup truck for him and takes an annual payment out of the end-of-season bonus.

Mr. Hunt’s winter unemployment has been a factor since the parties’ dissolution of marriage; prior to that time Mr. Hunt worked during the winter months as a pilot and his annual income was considerably higher than it has been since the time of the dissolution. While Mr. Hunt has contended that there is no employment for him in his field during the winter, the court was not convinced that he could not earn income during that period.

In addition to modifying the amount of support, the District Court ordered that Mr. Hunt sign a wage assignment in the amount of $500 per month over and above all amounts collected by the Child Support Enforcement Division for unpaid back child support.

In response to Mr. Hunt’s petition for modification of child support, Mrs. Hunt filed a cross-motion to clarify the parties’joint custody plan and “re-tool” it due to Mr. Hunt’s refusal to communicate with her, particularly when he is exercising his weekend visitation privileges. Mr. Hunt had refused to let her know where he would take the children during those weekends and has insisted that all communications regarding the children be conducted through third persons — specifically, his mother or his attorney.

The District Court ordered that Mr. Hunt give Mrs. Hunt 48 hours advance notice for each visitation period; that he provide her with his home address and telephone number; that he provide her with an itinerary of each visitation, including the address and telephone number of the place where each visit is to occur; and that he provide Mrs. Hunt with a time for commencement and conclusion of each visit. The court also ordered that priority be given in scheduling visits to the children’s outside activities.

Also in response to Mrs. Hunt’s cross-motion, the court awarded the 1992 tax exemption for both children to Mrs. Hunt. The court further ordered that Mr. Hunt is not entitled to the exemption for the parties’ son as provided by the decree of dissolution unless he is current in paying his child support.

Issues I & II: Modifications to Visitation

Appellant’s first two issues both deal with limitations placed on Mr. Hunt’s exercise of his visitation privileges; Issue I involves the court’s prioritizing the children’s prescheduled activities during the visitation periods. Specifically as to this issue, the District Court addressed whether the husband could unilaterally change the son’s plans for weekends when the son was scheduled to participate in organized team sports.

Issue II involves the court’s ordering Mr. Hunt to inform Mrs. Hunt of his itinerary and whereabouts during the time he exercises visitation with the children. As both Issues I and II relate to the ability of the District Court to place restrictions and conditions on visitation, we consider them together. The question common to them both is whether the limitations were justified here.

Visitation is an inherent part of child custody, in which the district courts have broad powers to determine all problems concerning custody and visitation. Kanvick v. Reilly (1988), 233 Mont. 324, 329, 760 P.2d 743, 747. The standard of review for custody and visitation is whether substantial credible evidence supports the district court’s judgment. In re the Marriage of Nash (1992), 254 Mont. 231, 234, 836 P.2d 598, 600. We will overturn a court’s custody or visitation decision only when the court’s findings and conclusions clearly demonstrate an abuse of discretion. In re the Marriage of Anderson (1993), 260 Mont. 246, 252, 859 P.2d 451, 454. Thus, the issue before us in this case is whether the court abused its discretion by placing limitations and conditions on the exercise of Mr. Hunt’s visitation. See In re the Marriage of Wackler (1993), 258 Mont. 12, 16, 850 P.2d 963, 966.

The circumstances behind these two issues are as follows: The parties share joint custody of their two children. Mrs. Hunt has primary physical custody of the children and Mr. Hunt enjoys liberal visitation. Mr. Hunt has insisted upon keeping the details of his place of residence, telephone number, and other pertinent information a secret from Mrs. Hunt. He has not allowed Mrs. Hunt to contact him directly regarding visitation or other matters involving the children and has forced her to contact third parties whenever she has a need to communicate with him for any reason. During the times Mr. Hunt exercises visitation, he has refused to permit Mrs. Hunt to know the whereabouts of the children.

During the approximate five-month period from June through October when he is employed, Mr. Hunt does not exercise visitation frequently because of the nature of his job as a pilot; however, during the remaining months of the year, he generally has the children with him on alternating weekends. This has caused problems for Mrs. Hunt because Mr. Hunt will not inform her where he will be during these times and often takes the children out of Billings where they reside with Mrs. Hunt. The record further reveals a litany of communication problems relating to visitation, the activities of the children and the transferring of the children to and from Mr. Hunt for weekend visitation.

Mr. Hunt objects to the court’s prioritizing of team athletic activities which the parties’ 11-year-old son is involved in. Particularly, Mr. Hunt had protested his son’s involvement in an organized hockey program in Billings which Mrs. Hunt had arranged and which sometimes required the son to be present for Saturday hockey games. Mr. Hunt also protested the son’s attendance at Friday afternoon baseball practices.

Mr. Hunt particularly objected to Mrs. Hunt’s ability to structure these activities unilaterally, knowing that the commitments to these team sports could interfere with his visitation periods. He argues that the time he spends with his children should “take on the nature of ‘sacred’ time” and that he should not have to abrogate his custodial rights to fulfill commitments made by Mrs. Hunt. He contends that he cannot be forced to take on a role as the children’s baby-sitter and chauffeur for commitments Mrs. Hunt has made for the children.

He asks this Court to “enforce his right to be involved in the children’s outside activities” especially during his time of visitation, which he refers to as his “custodial time.” He claims this is “the only way in which he is able to protect his ability to have frequent and continuing contact with his children and share in the rights and responsibilities of child raising.”

Mr. Hunt’s second issue relates to the District Court imposing conditions upon him without imposing the same conditions upon Mrs. Hunt. We note that there is no evidence in the record that this has been a problem for Mr. Hunt. To the contrary, Mr. Hunt knows where Mrs. Hunt resides with the children, he knows the telephone number there and, in fact, often speaks with the children over the telephone. There is additional evidence in the record that Mrs. Hunt has advised Mr. Hunt in the past through third parties when she has taken the children away from Billings.

Mr. Hunt contends that the above-described restrictions imposed on him by the District Court concerning his exercise of visitation constitute a modification of custody and, thus, the District Court abused its discretion by modifying custody without making specific findings of fact that such modification was in the best interests of the children. We disagree.

The District Court here was faced with a visitation problem compounded by the parties’ inability or refusal to communicate with each other about their children and what is best for them. Mrs. Hunt asked the court to specify visitation conditions; she did not ask for a change in visitation. The District Court has the power to clarify visitation rights and to specify times for a parent’s exercise of visitation and the mode of arranging for visitation. Section 40-4-217(3), MCA, allows the District Court to modify an order granting or denying visitation “whenever modification would serve the best interest of the child ...” See, e.g., Baker v. Baker (1982), 198 Mont. 371, 646 P.2d 522.

More recently, in In re the Marriage of Kovash (1993), 260 Mont. 44, 52, 858 P.2d 351, 356, we affirmed a district court’s decision which conditioned future visitation upon the father’s behavior toward his children in the exercise of his visitation. In Wackler, 850 P.2d at 966, the district court modified the visitation schedule, stating that:

Section 40-4-217(3), MCA, grants the district court authority to modify an order granting or denying visitation “whenever modification would serve the best interest of the child....” In this instance, Rebecca was not prejudiced by the lack of notice because the District Court only clarified visitation rights as a result of some apparent confusion relating to the previous visitation schedule. Rebecca’s counsel was able to discuss these matters and properly raise Rebecca’s concerns as to Thomas’ request to extend visitation rights, which was denied. We hold that the District Court did not err in its clarification of Thomas’ visitation rights.

The present case is directly comparable to Wackier. There is ample evidence in the record to support the court’s findings that the best interests of the children are served by communication between the mother and father regarding the father’s itinerary for his weekend visitation, advance notice of 48 hours prior to scheduling visitation and giving priority in scheduling visits to the children’s outside activities.

During the hearing on the parties’ motions for modification of the original decree, the court stated as follows:

[THE COURT] Now visitation. I am not exactly sure what has been requested there. The way you all are going about it is all wrong. I know it takes two to communicate but I know also that one person can sabotage the whole thing. I had only heard the two of you testify here today, but judging from that, Mr. Hunt, I would have to say that you are probably more at fault there for the lack of communication than Mrs. Hunt...
If I were going to give you some suggestions, I would say you got to learn how to communicate. You got to get that chip off your shoulder, you got to get over being mad. Quit spending money on an attorney, good as he may be in these kinds of proceedings, what you need is someone to give you some counseling in how to be able to communicate with an ex-spouse.
The simple matter of it is, is that you either learn that or you rim a real big risk of messing up these two kids. The rate you are going, these kids will be lucky if they come out of this without some serious emotional scars. ... If you don’t do it, the kids are the ones that suffer.
... I do know if they are involved in your fighting that that’s not good for them.
You cannot put these kids in the middle. They will tell each of you separately what they think you want to hear.... It’s not fair of you guys to make him choose, that’s absurd. He is too little to have that kind of burden, he is just a kid, you guys are the adults.
What you have to do, is you have to realize team sports have a different obligation than individual sports. Team sports you have got an obligation to the team as well as to yourself, so if you are involved in a team sport, if you are going to get involved in a team sport in the first place, which is something the parents ought to discuss especially in this situation like this where if you think forward down the road, you realize it’s going to have some effects on visitation. But if he is going to be there, then you got to expect that it’s going to effect your visitation some because he is going to need to go to those team sports whether it’s baseball or hockey or whatever.
Now if you don’t want that to be the situation, the two of you need to discuss that... you can’t leave it up to him, and you can’t make him choose at the last minute, it’s not fair.
So again, that gets back to the beginning point involving the child, that is you have to learn how to discuss these things and if you can’t, the child is going to suffer. If you have to work through intermediaries ... it’s not going to likely be a situation that will work. You can’t, there is not enough discussion of details in a short enough time to be able to reach decisions, and what will happen is what happened in this case, mom will make the decision because dad is not involved, you have got to get involved.

Although the court stated its belief that the parties would benefit from counseling in order to learn how to communicate with one another for the benefit of the children, it did not order such counseling and further did not order that the parties communicate with one another other than to order Mr. Hunt to provide Mrs. Hunt with the above-described information concerning the children’s whereabouts when they spend time with their father.

In addition to other support from the record, including the comments of the District Court, Mr. Hunt testified during the hearing as follows:

Q. (by Mr. Sweeney): All your former wife is asking for, Mr. Hunt, is for you to give advance notice of when you’re coming to Billings to see the children, that you let her know your itinerary, and the address and telephone number where the children and you can be reached if necessary, and that you take into account in making your plans for the visits the activities of your children.
A. [Mr. Hunt] I don’t have any problems with that, Mr. Sweeney.

Subsequently, when examined by his own counsel, Mr. Hunt further testified:

Q. [by Mr. Leckie] You’re not telling the Court that you have any objection to maintaining the kids and their interests or activities are you?
A. No I’m not.

Mr. Hunt’s testimony before the District Court does not indicate that he would have difficulty with the subsequent decision of the court to prioritize the children’s activities, nor does it indicate that he would have difficulty with providing Mrs. Hunt certain information concerning his exercise of visitation. The record indicates further that the District Court considered the effect that the current situation could have on the children and considered their best interests in its ruling clarifying visitation.

The record further provides that although Mr. Hunt has expressed a desire to share in decision-making regarding the children’s activities, he has refused to communicate with Mrs. Hunt except through third-party intermediaries. The District Court determined that this was not a satisfactory method of communication for such matters. We conclude that the conditions placed on visitation, -under the circumstances presented in this case, were ordered with the best interests of the children as the primary consideration.

We hold the District Court did not abuse its discretion by requiring Mr. Hunt to provide information to Mrs. Hunt concerning his visitation with his children. We further hold that the court did not abuse its discretion by ordering that priority be given to the children’s scheduled activities.

Issue III.

Did the District Court err in computing the proper child support amount of the appellant?

Mr. Hunt asserts numerous errors in the computation of his child support obligation under the Child Support Guidelines: (1) the court erred by imputing income of $5,000; (2) the court erred in attributing $6,100 in per diem pay to him; (3) the court inappropriately determined day-care costs at $300 per month; (4) the court erred by including $1,000 as value of his camper which it included in net assets; and (5) the court erred in allowing a reduction of $1,800 for Mrs. Hunt’s retirement contribution.

Whenever a district court modifies a child support order, it is required to determine the child support obligation by using the factors set forth in §§ 40-4-204(1) and (2), MCA, and the Uniform Child Support Guidelines adopted by the Department of Social and Rehabilitation Services. Section 40-4-204(3), MCA, further provides:

(а)... The amount determined under the guidelines is presumed to be an adequate and reasonable support award, unless the court finds by clear and convincing evidence that the application of the standards and guidelines is unjust to the child or to any of the parties or is inappropriate in that particular case.

When this Court reviews child support awards, a presumption exists in favor of the district court’s determination, and we will reverse the district court only if it has abused its discretion. In re the Marriage of Sacry (1992), 253 Mont. 378, 382, 833 P.2d 1035, 1038. We will address each of Mr. Hunt’s claims of error briefly with this standard and presumption in mind:

(1) Imputed income: The District Court specifically found that Mr. Hunt chooses to be unemployed for approximately seven months of the year. The record supports this finding, particularly where Mr. Hunt’s income in the two years prior to the dissolution was substantially higher when he worked year-round. The court found that Mr. Hunt was capable of earning income during his months of voluntary unemployment.

In In re the Marriage of Olsen (1993), 257 Mont. 208, 215, 848 P.2d 1026, 1030, we stated that where a parent is voluntarily unemployed or underemployed, the court may impute income based upon the parent’s capacity or ability to earn income. We have also favored imputing income in other recent cases. See, e.g., In re the Marriage of Chiovaro (1990), 247 Mont. 185, 805 P.2d 575 (we affirmed the district court’s discretionary imputation of income for track coaching fees which were available to a father had he not voluntarily chosen to refrain from coaching); In re the Marriage of Weed (1992), 254 Mont. 162, 836 Mont. 591 (we reversed a decision not imputing a yearly minimum wage for the purpose of calculating child support); and in Mooney v. Brennan (1993), 257 Mont. 197, 848 P.2d 1020 (we affirmed imputing income to an incarcerated prisoner, even though the prisoner has no assets and earns no income while incarcerated.)

In In re the Marriage of Mitchell (1987), 229 Mont. 242, 248, 746 P.2d 598, 602, we said that the court’s findings must “realistically reflect what the parents are capable of earning using their actual earnings as a guideline.” In this case, the trial court imputed earnings of $5,000 for approximately seven to seven and one-half months. In the two years prior to the dissolution when Mr. Hunt chose to work during the winter months, his income was substantially higher than $5,000 for that period. This amount approximates a minimum wage for similar periods. We conclude that this is supported by Mr. Hunt’s testimony that he was physically capable of working although he found it difficult to earn income as a pilot during his period of voluntary unemployment.

(2) Per diem: Mr. Hunt also contends that the District Court erred in attributing $6,100 in per diem pay to him. The Child Support Guidelines specifically provide that per diem is an item of income. Section 46.30.1508(b), ARM. Mr. Hunt testified that he is paid per diem at $66 per day when he is away from Wenatchee, Washington during his months of employment and that in 1992 that amount was $792. However, he also testified that he received other compensation from his employer for his expenses when he was not away from Wenatchee, Washington, and that amount was total reimbursement for receipts turned in for food, lodging, utilities and gasoline. He testified that he did not include these expenses of up to $40 per day as reimbursement on his Rule 28 affidavit as a source of income. Mr. Hunt testified that he would either receive the $66 per day per diem or up to $40 per day reimbursement which can also be classed as per diem. He did not present any testimony as to the actual amount he received as reimbursement, he testified that he considered that they were Butler Aviation’s expenses and that he did not include them as a source of income in his Rule 28 statements. These reimbursements were not included in Mr. Hunt’s gross income.

The record demonstrates that in 1992 Mr. Hunt received $792 in per diem at $66 per day for time that he was away from his home base of employment in Wenatchee, Washington. It further demonstrates that he receives up to $40 per diem for each day’s expenses when he is not away from the home base during the months of his employment. Mr. Hunt testified about his reimbursement for living expenses from Butler Aviation as follows:

Q. [BY MR. SWEENEY] When you’re not away from Wenatchee, Washington do you receive any per diem?
A. No per diem.
Q. Do you receive any other sort of compensation to ....
A. Butler pays my expenses if that’s what you’re asking.
Q. Yes, and what do they pay you as far as your expenses, when you’re not receiving the $66 per day.
A. I don’t know what it is, Mr. Sweeney, I turn in my receipts.
Q. Okay, so you turn in whatever receipts you have for food?
A. That’s correct.
Q. Lodging?
A. That’s correct.
Q. Utilities or gasoline?
A. That’s correct.
Q. And Butler reimburses you for that in toto, is that right?
A. That’s correct.
Q. Okay, have you disclosed in the Rule 28 statement or included in the Rule 28 statement any of these reimbursed expenses?
A. They’re Butler’s expenses.
Q. Have you included them in your Rule 28 statement as a source of income to you?
A. No.
Q. Do you know approximately how much you received from Butler. Would you have received, how much do you receive per day or allowed per day in expenses?
A. I think it’s up to $40 a day.
Q. So if you turn in $40 a day of expenses when you’re not receiving the $66, Butler will reimburse the $40?
A. I think you could say that.

Mr. Hunt further testified his length of employment for 1992" the first year of a three-year cycle, ran from June 10 through October 23. That period of time equates to 146 days. Subtracting the twelve days for per diem at $66 per day (12 times $66 equals $792), that leaves 134 days at $40 per day. At $40 per day for 134 days, Mr. Hunt would receive $5,360 reimbursement. Added to the actual $792 in per diem he testified that he received, the total amount demonstrated by the record for per diem and reimbursement is $6,152.

Mr. Hunt did not provide the court with specific information regarding the amount of his reimbursement for living expenses and appeared reluctant to divulge that information. We conclude that the court did not err in attributing $6,120 in per diem to Mr. Hunt to be included in his gross income for purposes of child support computation.

(3) Day-care costs: Mr. Hunt also contends that the court inappropriately determined day-care costs at $300 per month. Mrs. Hunt testified that she had had to make arrangements with friends to care for her children, that she occasionally had to forego working extra hours in her work as a surgical nurse because she had no sitter and that she could arrange for more satisfactory child care arrangements if she did not have to rely on friends and relatives for these services.

The amount allocated by the court is not excessive under the circumstances even though Mrs. Hunt testified that she currently spends much less than $330 per month for child care. At the time of trial, the children were ages eleven and five. The record provides sufficient information to support the court’s determination of monthly day-care costs.

Mrs. Hunt is a registered nurse and works as a surgical nurse at Deaconess Medical Center in Billings. She testified that she currently worked ten-hour shifts three days a week, was generally on call one day each week and also was on a scheduled call basis every fourth weekend. When she is on call, she can be called in to assist with emergency cases that arise and she must be able to go to work immediately.

Her scheduled day shifts run from 7:00 a.m. to 5:30 p.m. Her on call time one day per week runs from 5:30 p.m. until 7:00 the next morning. On weekends, she is on call for 48 hours, from 7:00 Saturday morning until 7:00 Monday morning.

When Mrs. Hunt receives a call to work during an “on call” period, she has no time to arrange for a sitter so that must be prearranged for the entire time. She testified that this was generally not a problem during the week as her regular child care provider kept the children overnight. However, the weekends posed a problem. She either has to hire a sitter for the entire weekend or she must give up her weekend of on call work and thus forego income.

Mrs. Hunt further testified that the child care expense could be as little as $200 per month but if she includes activities which the children prefer after school, such as the YMCA’s after school programs, the charges would be higher. She testified further that she did not spend that much per month now because she did not receive child support and could not afford the expense. She specifically testified that if she had regular child support coming in so she would not have to rely on neighbors and friends for free child care, the day-care costs to provide for both children would be approximately $330. Other testimony established that this expense would result in an income tax credit of $30 for Mrs. Hunt and that the net expense would be $300.

When questioned about the low amount Mrs. Hunt expended in day-care costs, she testified as follows:

A. [BY MRS. HUNT] My day care figures for this year is [sic] just about the same because I’ve had a lot of friends helping me, neighbors helping me and it’s right around $1200 for this year. But if I had the money and if I was getting the child support and getting the child care money I wouldn’t have to be taking advantage of all the rest of this, which I do.
Q. [BY MR. LECKIE] You do have money in the bank though, if you had to pay for day care you could use the money in the bank couldn’t you?
A. I suppose if I got desperate, I don’t look at that money [savings] as my operating costs. I am a saver and I have to have some savings.
Q. Well, you only spent $1200.
A. Nor do I think that I need to pull on my savings to cover for his deficit of not paying child support.
Q. You’re only asking that he pay his guideline share of child support though, aren’t you?
A. His share of the $330?
Q. No, what you actually spend, aren’t you? Are you asking the Court to make him pay a share of $330 a month when in fact you don’t have a history of ever spending that amount?
A. I think that’s a pretty reasonable amount. I think that even at that we’re getting off pretty cheap. I don’t think that I should have to compensate him because I have to take advantage of friends and
Q.....you spend a $100 a month now but yet you say you could spend $230 a month more?
A. There’s another hundred alone just in weekend call that I haven’t had to spend so far because I’ve been able to get it covered other ways and when I give up my call I’m also giving up some income.

The Child Support Guidelines allow the court to use an amount which is a reasonable day care cost. Section 46.30.1525, ARM. We conclude the court did not err in attributing $300 per month for child care despite the fact that Mrs. Hunt had been spending less than that amount.

(4) The camper: Next, Mr. Hunt contends that the court erred by including $1,000 as value of his camper which it included in net assets. This too is a discretionary act under the Child Support Guidelines and supported by the record. Section 46.30.1514, ARM. Under that section, income should be attributed to the net market value of non-performing assets because the parent would earn income from them if they were sold and invested. Examples of such assets are vacation homes, idle land and recreational vehicles. Section 46.30.1514, ARM.

Mr. Hunt contends that this asset is essential to his employment because he lives in it for five months out of the year when he is working. Mr. Hunt is paid per diem for his expenses while he is fighting fires. We conclude that the camper, although it may cut down on those expenses, is not an essential item of personal property and is not income-producing. An example of an income-producing item of personal property would be an airplane owned by Mr. Hunt which he used for his job. To allow Mr. Hunt to exclude this asset would be to give him a double deduction in terms of calculating child support as he is also allowed the self support reserve amount under § 46.30.1521, ARM, which allows a minimum amount of income which a parent must retain to meet the minimum subsistence needs of his or her household for certain needs — including shelter. Thus, the court did not err in including the camper as a non-performing asset under the guidelines.

(5) Mrs. Hunt’s retirement contribution'. Finally, Mr. Hunt contends that the court erred in allowing a reduction of $1,800 for Mrs. Hunt’s retirement contribution. We agree.

Contributions toward Internal Revenue Service approved retirement plans, whether voluntary or mandatory, are deductible from gross income up to the actual amount contributed or 6.5% of gross income, whichever is less. Section 46.30.1516(1), ARM. The record does not support Mrs. Hunt’s inclusion of this amount as a retirement contribution. There was no testimony that the money is being placed in an Internal Revenue Service approved retirement plan. The District Court improperly deducted $1,800 from Mrs. Hunt’s gross income as a retirement contribution without any evidence that the money was invested in an approved retirement plan.

In summation, we conclude that the District Court abused its discretion by improperly deducting $1,800 from Mrs. Hunt’s gross income. We further conclude, however, that the record supports the court’s calculation of a reasonable amount for day-care costs, properly included amounts for per diem and imputed income and properly included Mr. Hunt’s camper as a nonperforming asset.

We hold the District Court erred in calculating Mr. Hunt’s child support obligation.

Issue IV.

Did the District Court abuse its discretion in ordering the appellant to sign a wage assignment in the amount of $500.00 per month over and above all amounts collected by the Child Support Enforcement Division for unpaid back child support and current child support?

Mr. Hunt’s final argument is that the Child Support Enforcement Division is the sole party allowed to enforce the court’s decree and, therefore, the court abused its discretion in ordering him to assign wages in the amount of $500 per month over and above all amounts collected by the Child Support Enforcement Division. This argument is without merit. According to § 40-4-209, MCA, the District Comb had authority to execute a security or other guarantee for the payment of child support delinquencies which are in amounts equal to the total of six months support payments.

We hold the District Court did not abuse its discretion in ordering the assignment of Mr. Hunt’s wages.

Affirmed in part, reversed in part and remanded for recalculation of child support without the $1,800 retirement contribution exclusion from Mrs. Hunt’s income.

JUSTICES HARRISON, TRIEWEILER, HUNT and NELSON concur.


source: Caselaw Access Project

author: JUSTICE GRAY JUSTICE WEBER

license: Public Domain

text:
    VICKI GABRIEL, for herself and as personal representative of the Estate of RICHARD J. SASSE, and for STACY SASSE, a minor, Plaintiffs and Appellants, v. SCHOOL DISTRICT NUMBER 4, LIBBY, MONTANA, Defendant and Respondent.
    No. 93-524.
    Submitted on Briefs January 27, 1994.
    Decided March 17, 1994.
    51 St.Rep. 217.
    264 Mont. 177.
    870 P.2d 1351.

      For Appellants: John M. Morrison, Morrison Law Office, Helena.
    For Respondent: Todd A. Hammer, Warden, Christiansen, Johnson & Berg, Kalispell.
   JUSTICE GRAY

delivered the Opinion of the Court.

We conclude in this case that the District Court erred in granting School District Number 4’s motion for change of venue pursuant to § 25-2-126(3), MCA. Accordingly, we reverse and remand for further proceedings.

Richard J. Sasse (Sasse) fell from a school roof in Libby, Montana, while working on a construction project for School District Number 4 (School District). Sasse survived the fall and was taken to Kalispell Regional Hospital in Flathead County, where he subsequently died.

Vicki Gabriel (Gabriel), for herself and as personal representative of Sasse’s estate, and for Stacy Sasse, a minor, filed a complaint against the School District in the Eleventh Judicial District Court, Flathead County. The complaint states separate survivorship and wrongful death claims based on alleged wrongful conduct by the School District in Lincoln County.

The School District filed a motion to change venue from Flathead County to Lincoln County. The District Court granted the motion. It determined that all events associated with Gabriel’s causes of action occurred in Lincoln County, and that Lincoln County is where the claims arose and where the School District, a political subdivision, is located. Therefore, the court concluded, Lincoln County is the proper place of trial under § 25-2-126(3), MCA. Gabriel appeals.

This appeal involves a determination of whether the court’s legal conclusion was correct. We review such legal conclusions de novo. Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

At the outset, we conclude that the District Court correctly determined that § 25-2-126(3), MCA, is the applicable venue statute in this case. Section 25-2-126(3), MCA, provides that the “proper place of trial for an action against a political subdivision is in the county in which the claim arose or in any county where the political subdivision is located.” The parties do not dispute the School District’s status as a “political subdivision” pursuant to § 2-9-101(5), MCA.

The School District contends, in this regard, that no Montana statute specifically provides venue for the separate, but dependent and combined, tort claims of survivorship and wrongful death. While the contention is correct, it is not relevant here. The legislature specifically has provided for venue in actions against political subdivisions such as the School District. Thus, § 25-2-126(3), MCA, is applicable here.

The more difficult issue remains, however: is Flathead County a proper venue for Gabriel’s wrongful death claim under § 25-2-126, MCA? If so, the District Court erred. It is well-established that if a plaintiff files in one county where venue is proper, no motion for change of venue can be granted. Section 25-2-114, MCA; Petersen v. Tucker (1987), 228 Mont. 393, 396, 742 P.2d 483, 484-85; Spencer v. Flathead County (1984), 212 Mont. 399, 401, 687 P.2d 1390, 1392.

Gabriel recognizes that Lincoln County is the county where the School District is “located” and where her survivorship claim arose. As a result, she concedes that Lincoln County is a proper place for trial of her claims. However, she asserts that the wrongful death claim arose in Flathead County where Sasse’s death occurred and that, as a result, Flathead County also is a proper place for trial under § 25-2-126, MCA. We agree.

We recently addressed a related issue concerning wrongful death actions in Carroll v. W.R. Grace & Co. (1992), 252 Mont. 485, 830 P.2d 1253. We concluded in Carroll that death is a necessary element in a wrongful death action under Montana law; on that basis, we held that a wrongful death action accrued at the time of the death, rather than on the date of the injury, for purposes of the statute of limitations. 830 P.2d at 1254, 1255. While the issue presently before us relates to venue rather than the statute of limitations, we are persuaded that the Carroll approach to Montana wrongful death claims is applicable here.

Carroll stands for the proposition that death is a critical, and the final, element in the accrual of a wrongful death action. If the claim does not accrue until the death occurs, it cannot “arise” under § 25-2-126, MCA, until the death occurs. Simply put, no wrongful death claim exists until the death occurs; therefore, the claim cannot “arise” for venue purposes until that time. As a logical corollary to Carroll, we conclude that a wrongful death claim arises under § 25-2-126, MCA, where the death occurs. Thus, because the critical and defining element of Gabriel’s wrongful death claim occurred in Flathead County, we hold that the District Court erred in concluding that all events associated with Gabriel’s claims occurred in Lincoln County and that her wrongful death claim arose there.

The School District relies on Gaboury v. Flagler Hospital, Inc. (Fla. App. 1975), 316 So.2d 642 and Dzur v. Gaertner (Mo. App. 1983), 657 S.W.2d 35, for the proposition that the proper venue for wrongful death actions is in the place where the underlying wrongful acts occurred. While the Florida court reached a result different from that we reach here, based, in part, on dissimilar statutes, we agree with its statement that a cause of action arises “at the place where the act creating the right to bring an action occurred....” Gaboury, 316 So.2d at 644. Indeed, we took this approach to the issue of where a cause of action arises under the predecessor to § 25-2-126, MCA, in Spencer. We stated that the action arises “where the act or breach occurs which creates the necessity for bringing the suit.” Spencer, 687 P.2d at 1392. Here, under Carroll and Spencer, the act creating the right to bring a wrongful death claim is Sasse’s death — in Flathead County.

The Missouri court in Dzur concluded that, -under Missouri statutes, a wrongful death claim “accrues” when death occurs for statute of limitations purposes but at the place where the underlying wrongful act occurred for venue purposes. 657 S.W.2d at 36. While recognizing the existence of this alternative rationale and result, we are not persuaded that it produces the appropriate result for Montana, given Carroll and § 25-2-126(3), MCA.

Nor is the School District’s reliance on Howard v. Dooner Laboratories, Inc. (1984), 211 Mont. 312, 688 P.2d 279, well placed. Howard involved application of the general tort statute providing for venue in the county where the tort “was committed” to a situation involving medical malpractice. Addressing the word “committed,” we determined that the tort occurred where the medical negligence took place. Howard, 688 P.2d at 282. Howard did not address either a post-Carroll wrongful death claim or the specific language contained in § 25-2-126, MCA.

The School District is correct in pointing out that survivorship and wrongful death claims must be brought in one action in Montana, pursuant to § 27-1-501(2), MCA. In this regard, we note only that nothing in § 27-1-501, MCA, relates to the question of venue for a wrongful death action. Nor does the School District’s argument that venue for the survivorship claim is in Lincoln County — where the alleged tortious conduct was committed and the claim arose — advance its cause. It is well-established that venue may be appropriate in more than one place and that, in such an event, filing in a proper venue precludes a successful change of venue motion. Petersen, 742 P.2d at 484.

We conclude that a wrongful death claim arises, under § 25-2-126, MCA, where the death occurs. Because Gabriel’s wrongful death claim arose in Flathead County, we further conclude that Flathead County is a proper venue for trial of this action pursuant to § 25-2-126(3), MCA. Thus, we hold that the District Court erred in concluding that Lincoln County was the only proper venue, and remand to the District Court for further proceedings.

Reversed and remanded.

JUSTICES HARRISON, HUNT, TRIEWEILER and NELSON concur.

JUSTICE WEBER

dissents as follows:

The complaint filed by the plaintiffs sought in its first cause of action the recovery by the estate of the damages for conscious pain and suffering of Mr. Sasse during the time he lived following his fall, his estate incurred medical expenses and funeral expenses, and the loss by his estate as a result of the permanent loss of earning capacity of Mr. Sasse. As a second cause of action, the plaintiffs sought recovery for wrongful death setting forth claims for loss of financial support, loss of society and companionship, sorrow and grief, and loss of services.

When considering the first cause of action, the proper place of trial for the tort action is fixed by § 25-2-122, MCA, winch provides in pertinent part:

25-2-122. Torts. The proper place of trial for a tort action is:

(1) the county in which the defendants ... reside at the commencement of the action; or
(2) the county where the tort was committed.

In addition, § 25-2-126, MCA, provides in pertinent part:

25-2-126. Against state, county, and political subdivisions.
(3)The proper place of trial for an action against a political subdivision is in the county in which the claim arose or in any county where the political subdivision is located.

Applying the foregoing statutes to the first cause of action results in a determination that the proper venue of that cause of action would be only in Lincoln County because the tort was committed in that county and that county also was the location of the defendant political subdivision.

In considering the venue of the second cause of action, that being the wrongful death action, several statutes need to be considered. Section 27-1-501, MCA, provides in pertinent part:

27-1-501. Survival of cause of action or defense — death or disability or transfer of interest. (1) An action, cause of action, or defense does not abate because of the death or disability of a party ... but whenever the cause of action or defense arose in favor of such party prior to his death or disability... it survives and may be maintained by his representatives or successors in interest.
(2) Actions brought under this section and 27-1-513 must be combined in one legal action ....

Section 27-1-513, MCA, provides in pertinent part:

27-1-513. Action for wrongful death. When injuries to and the death of one person are caused by the wrongful act or neglect of another, the personal representative of the decedent’s estate may maintain an action for damages against the person causing the death....

In its analysis of the venue of the wrongful death claim, the majority follows the Carroll case and concludes that the venue of the wrongful death claim is Flathead County. The majority correctly points out that under § 27-1-501, MCA, both the first and second causes of action of this complaint must be combined in one legal action.

The majority opinion concludes that if a plaintiff files in one county where venue is proper, no motion for change of venue can be granted. That appears to be the primary rationale for the decision. The majority opinion does not address the contradiction above-described when the venue statutes are analyzed with regard to the two different causes of action. The venue for the survival action, the first cause of action, is limited to Lincoln County. The venue of the second cause of action, the action for wrongful death, is either in Flathead County or Lincoln County. Under these circumstances I suggest it is appropriate to balance the facts as was done by the District Court. As pointed out by the District Court, all events associated with the plaintiffs’ two causes of action occurred in Lincoln County with the single exception of the death, which occurred in Flathead County.

I therefore conclude that because the proper venue for the first cause of action is limited to Lincoln County by statute, and a proper venue for the second cause of action also is in Lincoln County, that it is appropriate to conclude that the proper venue for both causes of action should be limited to Lincoln County. I would therefore affirm the District Court.

CHIEF JUSTICE TURNAGE concurs in the dissenting opinion of JUSTICE WEBER.


author: JUSTICE TRIEWEILER

text:
    DANIEL RAY SCHULKE, Plaintiff and Respondent, v. DENNIS GEMAR, Defendant and Respondent, and GERALD E. GONSER a/k/a JERRY GONSER, Defendant and Appellant.
    No. 93-171.
    Submitted on Briefs March 3, 1994.
    Decided March 22, 1994.
    51 St.Rep. 220.
    264 Mont. 184.
    870 P.2d 1378.

      For Defendant and Appellant: Patrick F. Flaherty, Great Falls.
    For Plaintiff, Defendant and Respondents: Art Tadewaldt, Great Falls (for Schulke), Allin H. Cheetham, Fort Benton, Montana (for Gemar).
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Plaintiff Daniel Ray Schulke commenced this action in the District Court for the Eighth Judicial District in Cascade County to obtain legal title to a boat purchased from defendant Dennis Gemar. Gemar acquired possession of the boat as collateral for a loan to the other defendant, Gerald Gonser. The District Court awarded title to Schulke and attorney fees to Gemar. Gonser appeals.

We affirm in part and reverse in part.

The following issues are raised on appeal:

1. Did the District Court err when it rejected Gonser’s proposed jury instructions pertaining to the legal requirements for the sale of boats and the tort of conversion?

2. Did the District Court err when it denied Gonser’s motion for judgment notwithstanding the verdict?

3. Did the District Court err when it ordered Gonser to pay Ge-mar’s attorney fees pursuant to § 30-9-511, MCA?

This litigation arises out of a $300 loan between friends. In January 1989, Gonser borrowed $300 from Gemar. As security for the loan, Gonser delivered possession of his jet boat to Gemar. No promissory notes were signed, and no title to the boat was transferred.

When the loan was not repaid after Gemar made several verbal demands to Gonser, he sold the boat to Schulke in March 1990 for $1400 at a private sale without public notice. Gonser alleged that he had no warning of Gemar’s intent to sell the boat and that the boat was worth in excess of $4600 at the time it was sold.

Because Gemar could not transfer title of the boat to Schulke at the time of the sale, Schulke filed an action on July 31,1990, in which Gemar and Gonser were named as defendants and in which he asked the court to order that he be issued a certificate of ownership. Gonser subsequently filed a counterclaim and cross-claim against Schulke and Gemar in which he sought return of the boat and damages for the alleged unlawful conversion of the boat.

A jury trial was held on June 1-2,1992. The jury determined that Gemar had given Gonser notice of default and his intent to sell the collateral if the loan was not repaid. The jury further determined that the sale of the boat to Schulke for $1400 was done in a commercially reasonable manner. Therefore, the jury awarded possession of the boat to Schulke, $300 of the sale proceeds to Gemar, and the remaining sale proceeds in the amount of $1100 to Gonser.

The District Court entered judgment consistent with the jury verdict. However, the court also awarded Gemar $3693.75 as attorney fees pursuant to § 30-9-511, MCA. Gonser’s motion for judgment notwithstanding the verdict was denied. From this judgment, Gonser appeals.

ISSUE 1

Did the District Court err when it rejected Gonser’s proposed jury instructions pertaining to the legal requirements for the sale of boats and the tort of conversion?

Gonser offered proposed instructions numbered 13, 14, 15, and 21 which described the legal requirements for transferring an interest in a boat. Because these instructions were not given, Gonser contends that he was denied the opportunity to present an important part of his theory of the case to the jury, and was not able to show all the reasons why the sale of the boat was commercially unreasonable. Gonser further contends that Gemar’s sale of the boat without his knowledge or permission was a clear case of conversion, and that the court committed reversible error when it refused his proposed instructions numbered 10 and 11 which would have presented this claim to the jury.

When we review a district court’s refusal to give an offered jury instruction, the following rules apply:

It is not reversible error for a trial court to refuse an offered instruction unless such refusal affects the substantial rights of the party proposing the instruction, thereby prejudicing him.
Aparty is not prejudiced by a refusal of his proposed instructions where the subject matter of the instruction is not applicable to the pleadings and facts, or not supported by the evidence introduced at trial, or the subject matter is adequately covered by other instructions submitted to the jury. [Citations omitted.]

Cottrell v. Burlington Northern (Mont. 1993), 863 P.2d 381, 387, 50 St. Rep. 1323, 1327.

In this case, the substance of Gonser’s proposed instructions pertaining to the sale of boats were covered in other instructions given by the District Court. The jury was advised of the pertinent statutes in a four-page instruction.

Furthermore, with respect to the proposed instructions on the tort of conversion, it was undisputed that Gonser had delivered the collateral to Gemar as security for repayment of a loan, and therefore, Gemar was in lawful possession of the collateral. At the time the boat was sold, Gonser did not have a right of possession which, according to his own proposed instruction, is an essential element to prove the tort of conversion. Therefore, we conclude that a claim of unlawful conversion was not supported by the evidence presented at trial.

We hold that Gonser’s substantial rights were not affected by the District Court’s refusal to give his proposed jury instructions.

ISSUE 2

Did the District Court err when it denied Gonser’s motion for judgment notwithstanding the verdict?

Gonser claims that Gemar’s notice of resale, given informally in a bar when Gonser was drinking, was not sufficient -under the Uniform Commercial Code, and that the subsequent sale was commercially unreasonable as a matter of law. Therefore, he contends judgment should have been entered in his favor and it was error for the court to deny his motion for judgment notwithstanding the verdict.

We disagree with the contention that the verbal notice of the sale given to Gonser was insufficient as a matter of law. In Fairchild v. Williams Feed, Inc. (1976), 169 Mont. 18, 23, 544 P.2d 1216, 1219, we held that “oral notice [of an intent to sell collateral] is sufficient to meet the requirements of Uniform Commercial Code, § 9-504(3).” In Fairchild, 544 P.2d at 1218, we reasoned that notice is sufficient if the recipient is allowed adequate time to take steps to protect his interest in the collateral. This question, as well as the commercial reasonableness of a sale, are questions of fact properly determined by a jury.

In this instance, the jury heard conflicting evidence regarding the demands Gemar allegedly made for repayment of the loan, and whether Gemar reasonably warned Gonser that he intended to sell the collateral to satisfy the debt. The jury concluded that Gemar had given Gonser adequate notice of default and his intent to sell the collateral if the loan was not repaid. The jury also concluded that the sale of the boat to Schulke for $1400 was done in a commercially reasonable manner.

It is not the function of this Court to agree or disagree with a jury’s verdict. Arnold v. Boise Cascade Corporation (1993), 259 Mont. 259, 856 P.2d 217. This Court’s role is to determine whether there was substantial evidence to support the verdict. Arnold, 856 P.2d at 220. If conflicting evidence exists, we do not retry a case because the jury chose to believe one party over another. Simchuk v. Angel Island Community Association (1992), 253 Mont. 221, 833 P.2d 158.

Here, the jury resolved the conflicting evidence in favor of Gemar. Because the record contains adequate evidence to support this determination, we will not disturb this verdict. We conclude that the court did not err when it denied Gonser’s motion for judgment notwithstanding the verdict.

ISSUE 3

Did the District Court err when it ordered Gonser to pay Gemar’s attorney fees pursuant to § 30-9-511, MCA?

Gonser correctly points out that attorney fees were awarded pursuant to § 30-9-511, MCA, which allows recovery of reasonable attorney fees in an action to foreclose a security interest in personal property. The record supports Gonser’s contention that this was not such an action. There were no claims raised regarding foreclosure of a security interest, and in fact, Gemar had already foreclosed on his interest by selling the boat in satisfaction of Gonser’s obligation.

We conclude that attorney fees were improperly awarded pursuant to § 30-9-511, MCA.

The judgment of the District Court with respect to the award of attorney fees to Gemar is reversed and vacated. In all other respects, we affirm the judgment of the District Court.

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


author: JUSTICE WEBER

text:
    HALL & HALL, INC., a Montana Corporation, Plaintiff and Appellant, v. HENRY B. HYDE and FRANCIS B. BESSENYEY, as co-executors of the Estate of Margit S. Bessenyey and the ESTATE OF MARGIT S. BESSENYEY, Defendants and Respondents.
    No. 93-457.
    Submitted on Briefs January 7, 1994.
    Decided March 22, 1994.
    51 St.Rep. 257.
    264 Mont. 190.
    870 P.2d 1362.
    For Appellant: Rodney T. Hartman, Herndon, Hartman, Sweeney & Halverson, Billings.

      For Respondents: Patrick G. Frank and W. Carl Mendenhall, Worden, Thane & Haines, Missoula.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal by Hall & Hall, Inc. (Hall & Hall) from an order of the District Court of the Twenty-First Judicial District, Ravalli County, which granted summary judgment to defendants. We affirm.

The issue presented for our review is whether the District Court properly granted defendants’ motion for summary judgment.

The facts underlying this action are as follows: Margit S. Bessenyey died in 1984, leaving a considerable estate, part of which included property in Ravalli County, Montana. The Ravalli County property included one piece of property known as the “Bitter Root Stock Farm” (Stock Farm) constituting approximately 19,097 acres and another piece of property known as the “Brick Barn,” a smaller parcel. This action concerns the real estate commission paid to Hall & Hall following the sale of the Stock Farm to Harold Mildenberger and his son Bradley Mildenberger.

Francis B. Bessenyey (Bessenyey) was Margit S. Bessenyey’s stepson and is co-executor of her estate along with Henry B. Hyde, a New York attorney. Bessenyey was also a neighbor and long-time friend of Harold Mildenberger. Harold Mildenberger stated in his affidavit that in late 1984, after the death of Margit Bessenyey, he discussed purchasing some or all of her estate’s property in Ravalli County. He again approached Bessenyey in early 1985 and yet another time in August of 1986 about purchasing property of the Margit S. Bessenyey estate (the Estate). Each time, Bessenyey responded that the Estate was not in a position to consider a sale at that time.

The affidavits of Francis Bessenyey and Harold Mildenberger state that they were friends and neighbors for many years. Harold Mildenberger purchased the land his home is built on from Margit S. Bessenyey in 1979. Roy Rose, the manager of the Stock Farm, also testified by deposition that he was aware of an approximate thirty-year friendship between Francis Bessenyey and Harold Mildenberger. Throughout the years, these two friends and other members of their families were involved in various real estate transactions and discussions over other possible sales of real property.

Clearly, the sale of the Stock Farm — the subject of this action — did not occur in isolation and must be viewed in light of this longstanding relationship between the Mildenbergers and the Bessenyeys. As an example, in June and July of 1989, the Estate and the Mildenberger family were involved in a series of transactions whereby the Estate conveyed forty acres in Ravalli County to Mrs. Harold Mildenberger in exchange for an easement granted by Harold Mildenberger to the Estate to run pipe over the Mildenbergers’ property to irrigate Estate property.

Bessenyey stated in his affidavit that it became apparent in late 1989 that the Estate would have to sell some or all of its Ravalli Comity real estate holdings to settle the estate’s tax liabilities and to provide for specific bequests to legatees. Both Harold Mildenberger and Bessenyey stated that they also discussed a possible sale of an 80-acre parcel but that they did not reach an agreement in regard to that property.

In early March of 1990, Bessenyey met with Harold Mildenberger and advised him of the intended sale of the Stock Farm. Although Mildenberger remained interested in purchasing the property, he indicated that he was not financially able to do so at that time as his money was tied up with a deal he was working on in Russia. Both Bessenyey and Harold Mildenberger stated in their affidavits that they agreed to and in fact did stay in touch with one another concerning the sale of the Stock Farm, which was ultimately sold to Harold and Bradley Mildenberger in 1992.

In April of 1990, after Harold Mildenberger indicated he would not then be able to obtain financing to purchase the property, Hyde and Bessenyey, as co-executors of the estate, entered into an agreement appointing Hall & Hall as the Estate’s “exclusive agent” for selling the Stock Farm and the Brick Barn properties. The agreement provided for a four percent commission for a sale to a purchaser procured “by or through” Hall & Hall. However, the listing agreement also provided the following reservation:

7. Owner reserves the right to sell to any purchaser not produced by or through [Hall & Hall], it’s (sic) agents sub or co-brokers, without being liable for the payment of a commission or fee to [Hall & Hall] except as set forth in this paragraph 7.
(a) If Owner sells the Property to any of the individuals / entities set forth in Exhibit H annexed hereto, pursuant to a contract entered into within six (6) months of the date [Hall & Hall] delivers fifteen brochures to Owner pursuant to paragraph 3, Owner shall pay to ¡Hall & Hall] a fee equal to one half of one percent (.5%) of the sales price.
(b) If Owner sells the Property to a purchaser (other than one set forth in Schedule H pursuant to a contract entered into within the time limit set forth in paragraph 7(a)) not produced by or through [Hall & Hall], Owner shall pay to [Hall & Hall] a fee equal to one and one half percent (1.5%) of the sales price less the amount expended by Owner for advertising and brochures pursuant to Paragraph 3.
(c) The parties acknowledge the possibility of a dispute as to whether or not a purchaser was produced by Owner or by or through [Hall & Hall]. Therefore, the parties will endeavor to keep each other informed as to any communications or negotiations concerning the Property.... Further, Owner agrees to keep [Hall & Hall] advised as to any independent (i.e. non-broker) inquiries concerning the property.
(d) Except for those prospective purchasers set forth in Schedule H, Owner agrees not to actively solicit offers for the Property.
(e) Owner shall consult with [Hall & Hall] on a regular basis with regard to any negotiations for a sale of the Property to any of those persons set forth in Schedule H or to any purchaser not produced by or through [Hall & Hall],
(f) It shall be a rebuttable presumption that any prospective purchaser who in the contract of sale, warrants and represents that such purchaser (i) did not contact any broker in connection with the sale of the Property, and (ii) did not learn about the availability of the Property through any promotional efforts of [Hall & Hall] and who indemnifies Owner with respect to any breach of such a representation, is not a purchaser produced by or through [Hall & Hall] and the provisions of this paragraph 7 shall apply with respect to the commission to be paid to [Hall & Hall], ... It is understood and agreed that in connection with any sale to the individuals/entities set forth in Exhibit H, such a purchaser will be deemed to be produced by Owner .... (Emphasis supplied.)

On October 1, 1992, the date of closing the sale to Harold and Bradley Mildenberger, the Estate paid Hall & Hall $83,705.35. This amount represented one and one half percent of the sales price less $23,544.65 in advertising expenses previously paid to Hall & Hall by the Estate. The Estate paid the one and one half percent commission to Hall & Hall based on its position that the buyers were not “produced by or through” Hall & Hall as required by the contract which would allow them a higher commission.

The Estate contends that the Mildenbergers were neither found by nor introduced to the estate by Hall & Hall and, therefore, Hall & Hall was not the “procuring cause” of the sale. Harold Mildenberger’s affidavit states that Francis Bessenyey’s original offers to sell estate property came at a time when he was financially unable to purchase the property and that his subsequent purchase of the property came at a time when his financial position had changed. The affidavits of both Mildenbergers state that they are willing to sign a document to comply with Paragraph 7(f) stating they did not learn about the property through any promotional effort of Hall & Hall, did not contact any broker in connection with the sale and that they are willing to indemnify the Estate in the context of that paragraph.

In contrast, Hall & Hall claims to have been the “procuring cause” of the sale and, therefore, that the four percent commission should have been paid to them —a difference of $178,750. According to Hall & Hall, since the affidavits of the parties directly contradict each other, a jury should determine which version of the facts is more credible. Hall & Hall argues that it transformed Harold Mildenberger from a mere friend of Francis Bessenyey into a serious player who eventually bought the property. It further argues that the District Court improperly chose between competing versions of fact.

Under Rule 56(c), M.R.Civ.P., the issues before a district court on a summary judgment motion are (1) whether there is any genuine issue of material fact in the case, and (2) if not, whether the moving party is entitled to judgment as a matter of law. See Cereck v. Albertson’s, Inc. (1981), 195 Mont. 409, 411, 637 P.2d 509, 510. The District Court concluded that there were no material factual issues and granted summary judgment to defendants on the basis that Hall & Hall was not the “procuring cause” of the sale.

This Corut’s standard of review of a summary judgment ruling is the same as that of a district corut. We determine whether the record discloses genuine issues of material fact, and, if not, whether the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.; Knight v. City of Missoula (1992), 252 Mont. 232, 243, 827 P.2d 1270, 1276-77. Further, a party opposing summary judgment is to be indulged to the extent of all inferences which may reasonably be drawn from the record. Jenkins v. Hillard (1982), 199 Mont. 1, 5, 647 P.2d 354, 356.

Thus, our review must initially determine whether there are any genuine issues of material fact here. Hall & Hall contend that the record, in the form of Roy Rose’s deposition testimony, establishes that there was a team effort being exerted by Hall & Hall, the Estate, and Roy Rose to bring about a sale to the Mildenbergers. Hall & Hall further contends that the absence of Mildenberger’s name on Exhibit “H” is further proof that Hall & Hall was the “procuring cause” of the sale.

There is no conflict in the record that Roy Rose, as manager of the Stock Farm and himself a real estate agent, worked together with Hall & Hall and the co-executors in an effort to effect a sale to the Mildenbergers. However, the uncontradicted evidence in the affidavits of Harold Mildenberger and Francis Bessenyey indicates that the two long-time friends had discussed a sale of the property years before the Estate entered into the agreement between Hall & Hall. Mildenberger stated that he initially approached Bessenyey as early as 1984 about buying the property from the Estate, but that the Estate was not in a position at that time to sell. Later, when the Estate was in a position to sell the property, Francis Bessenyey first contacted his long-time friend Harold Mildenberger, but Mildenberger could not come up with the necessary financing at that time.

It was only after Bessenyey determined that his friend Harold Mildenberger could not then purchase the property that the Estate decided to list the property with a real estate agent. Exhibit “H,” appended to the agreement between the Estate and Hall & Hall, is a short list of potential buyers identified by the Estate. Under the terms of the agreement, if the Estate sold to one of those buyers within six months of the date Hall & Hall delivered a copy of the brochure to the Estate, Hall & Hall would receive only a commission of one half percent. If such a buyer later was procured by the estate, the commission paid to Hall & Hall would still be substantial at one and one half percent. The most likely inference to be made from the failure to list Mildenberger on Exhibit “H” is that the Estate did not believe Mildenberger could come up with the necessary financing within six months. Clearly, Hall & Hall did not bring the parties together, when the historical backdrop of this case is reviewed.

Francis Bessenyey and Harold Mildenberger subsequently negotiated the terms of the sale directly between themselves over a number of weeks in 1992 and Mildenberger sent an offer directly to Bessenyey. These facts are not disputed by Hall & Hall and Hall & Hall has not identified any other material facts which are in dispute. We conclude that Hall & Hall has failed to come forward with any genuine issues of material fact which would preclude summary judgment.

The question then becomes whether Hall & Hall was the “procuring cause” of the sale under Montana law. In its order granting summary judgment to defendants, the District Court stated:

Both Harold and Bradley Mildenberger have stated in their affidavits that their knowledge of the availability of the Stock Farm for sale did not in any way come from Hall & Hall, any advertising due for the estate by Hall & Hall, any promotional efforts of Hall & Hall, nor from any brochure prepared by Hall & Hall. ...

In Lane v. Smith (1992), 255 Mont. 218, 841 P.2d 1143, we discussed the “procuring cause” doctrine in the context of an exclusive listing agreement. We pointed out that the doctrine is not confined to non-exclusive listing agreements, but applies in all situations unless the parties agree otherwise in the listing contract. Lane, 841 P.2d at 1147. We stated:

The procuring cause doctrine permits a broker to show that his or her part of the contract was performed and that the principal reaped a benefit from the efforts. D. Burke, Jr., The Law of Real Estate Brokers, § 3.4 (1992).

Lane, 841 P.2d at 1146-47. The listing contract here does not contain an agreement to preclude application of the doctrine; thus, we must ascertain whether the District Court correctly determined whether Hall & Hall was not a “procuring cause” of the sale of the Stock Farm. Further, as also noted by the District Court, the agreement here was an exclusive agency agreement, not an exclusive right to sell agreement. The Estate reserved certain rights in the agreement as provided in detail above.

One of these rights expressly reserved by the Estate was the right to sell the property directly to a buyer who was “not produced by or through Hall & Hall.” In such a case, Hall & Hall would still receive a commission, but the percentage would be one and one half percent of the selling price rather that the four percent of the selling price provided for if Hall & Hall procured the purchaser. The District Court concluded that this language was essentially the same as the procuring cause doctrine, and that under previous Montana cases, Hall & Hall had to establish that it found and introduced the Mildenbergers to the Estate, that the parties were brought together by Hall & Hall and that the sale resulted. See, e.g., Barrett v. Ballard (1980), 191 Mont. 39, 47, 622 P.2d 180, 185; Flinders v. Gilbert (1963), 141 Mont. 442, 448, 378 P.2d 385, 388; and Shober v. Blackford (1912), 46 Mont. 194, 208-09, 127 P. 329, 332.

The District Court then concluded that the undisputed facts showed that Hall & Hall was not responsible for finding, introducing or bringing the parties together, and further, that the undisputed facts showed that Hall & Hall’s actions were not even a cause of the sale, let alone the procuring cause.

The record supports these conclusions made by the District Court. Harold Mildenberger already knew of the availability of the Stock Farm before Hall & Hall signed the agreement with the Estate. His knowledge arose from his longstanding relationship with Francis Bessenyey and his conversations with him. In order for Hall & Hall to recover the full four percent commission under the procuring cause doctrine, Hall & Hall must have been, at a minimum, responsible for bringing the buyer and seller together. Barrett, 622 P.2d at 186. There is nothing in the record to support even an inkling that the Mildenbergers were produced by or through Hall & Hall.

Nonetheless, Hall & Hall claims to have worked together with Roy Rose in keeping Harold Mildenberger informed of all activity and interest which occurred or was generated during the time the property was listed with it up until the sale. As part of its agreement with the Estate, Hall & Hall was active in advertising and attempting to procure a buyer for the property. Its efforts in keeping Harold Mildenberger’s interest peaked in the property do not indicate that it considered itself the procuring cause. Hall & Hall wanted to effect a sale. For a property advertised at over $10 million which eventually sold for $7,150,000, even a sale to Mildenberger generated a considerable commission for the broker here at the one and one half percent rate. As noted by the District Court, “it seems clear that this transaction would have taken place without any of the efforts attributable to Hall & Hall.”

Roy Rose had a contract with the Estate to manage the Stock Farm and also initially had a 90-day exclusive listing contract should the Estate wish to sell the property. From his testimony in his deposition, this listing contract could have “muddied the waters” as far as a future sale was concerned. Therefore, as part of the deal arranged with Hall & Hall, Rose negotiated an agreement with Hall & Hall for ten percent of Hall & Hall’s commission in exchange for giving up his 90-day listing. The Estate also paid Rose a considerable amount ($500,000) to relinquish Rose’s 90-day exclusive listing so that it could enter into the agreement with Hall & Hall.

Rose testified that he was in fact aware of the longstanding relationship between Francis Bessenyey and Harold Mildenberger. Although Roy Rose had numerous contacts with the Mildenbergers while he was the property manager of the Stock Farm, Harold Mildenberger’s name was omitted from Exhibit “H” and Hall & Hall occasionally listed Mildenberger on their reports to the Estate, we conclude that these facts are not sufficient to demonstrate that Hall & Hall was the procuring cause of the sale to the Mildenbergers.

In addition to these facts, we note also that there were other interactions which transpired between the Estate and the Mildenbergers during the duration of Hall & Hall’s agency agreement. Some of these resulted in real property transactions.

Hall & Hall agents attended an annual party given by Bessenyey in Hamilton for social and business acquaintances shortly after the beginning of their agreement with the Estate. Harold Mildenberger was present at this social gathering. Douglas Hart of Hall & Hall stated in his affidavit that he identified Mildenberger as a potential buyer at that time and that Hall & Hall mailed a copy of their brochure to Mildenberger. This mailing of a copy of the brochure, however, was in connection with a possible listing of Mildenberger’s property in eastern Montana. In addition to this contact, another representative of Hall & Hall spoke once with Mildenberger over the telephone; at that time Mildenberger advised him that he was not in a position to purchase the property, just as he had done when first approached by Bessenyey when the Estate decided to sell the property in 1990. We conclude that the direct contacts between Hall & Hall and Harold Mildenberger are inconsequential and irrelevant in this case. We further conclude that Hall & Hall was not the procuring cause of the sale of the Stock Farm to the Mildenbergers.

We hold the District Court properly granted summary judgment to the defendants.

Affirmed.

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