author: MR. JUSTICE McDONOUGH

text:
    KIMBLE PROPERTIES, INC., a Montana corp., and Lloyd L. Kimble, Plaintiffs and Appellants, v. STATE OF MONTANA, DEPARTMENT OF STATE LANDS and City of Billings, Defendants and Respondents.
    No. 87-306.
    Submitted on Briefs Dec. 17, 1987.
    Decided March 8, 1988.
    750 P.2d 1095.

      Moulton, Bellingham, Longo & Mather, Ward Swanser, Billings, for plaintiffs and appellants.
    Lyle Manley, Dept, of State Lands, Helena, James L. Tillotson, City Atty., Billings, for defendants and respondents.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

Appellants appeal the motion for summary judgment granted by the District Court of the Thirteenth Judicial District of the State of Montana, Yellowstone County. Appellants initiated this action by petitioning the District Court for a Writ of Prohibition to prohibit the respondents, City of Billings (City) and the Department of State Lands (DSL) from taking any action to approve the final plat of the Continental Divide Subdivision. The respondents filed a motion to quash, strike and dismiss or in the alternative for summary judgment. The District Court treated the motion as a motion for summary judgment and granted it holding that the record did not show that DSL or the City performed acts outside their authority. We affirm. The issues presented for appeal are:

1. Was a writ of prohibition the proper remedy?

2. Are there genuine issues of fact concerning whether or not

a) the State obligated itself to unauthorized debt?

b) the City of Billings approved the preliminary plat without guarantee that the improvements required for compliance with the master plan will be funded?

c) the City of Billings gave preferential treatment to the State in the approval of the preliminary plat?

The State of Montana owns the NVfe of Section 20, Township 1 North, Range 26 East, Yellowstone County. The State decided to subdivide a portion of this tract which is held in trust for schools, in order to increase the revenue derived from the property. The DSL filed a preliminary plat of the proposed subdivision for the Billings City Council’s consideration. Certain improvements on the land were required and the State paid its share from the resource development fund. The City Council approved the preliminary plat and master plan on September 23, 1985.

ISSUE I

Appellants contend that the DSL did not have the authority to obligate itself to expenditures for improvements that had not been authorized by the legislature and the City lacked authority to treat the DSL preferentially over private developers or to approve a plat based upon a plan that lacked financial backing. Thus a writ of prohibition was the proper remedy.

The District Court held that a writ of prohibition was not the proper remedy in this casa Before a writ of prohibition may be granted the parties seeking the writ must demonstrate that the acts by public officials are clearly unlawful. Section 27-27-101, MCA provides:

“The writ of prohibition is the counterpart of the writ of mandate. It arrests the proceedings of any tribunal, corporation, board, or person exercising judicial functions when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person.”

The writ is only appropriate when no other remedy is available. Section 27-27-102, MCA, State ex rel Morse v. Justice Court of Deer Lodge County (Mont. 1981), [_ Mont. _,] 626 P.2d 836, 38 St.Rep. 542.

This Court has expressed its strong disinclination to grant writs of prohibition. “The writ of prohibition is not favored by the courts. Necessity alone justifies it.” Malta Irrigation District v. Montana Board of Health and Environmental Sciences (Mont. 1986), [224 Mont. 376,] 729 P.2d 1323, 1326, 43 St.Rep. 2264, 2267 quoting Morse, 626 P.2d at 837. In this case, the District Court held that both the DSL and the City were acting within their authority. The landboard and the DSL have clear authority to subdivide and sell state lands. Sections 77-1-204, 77-2-301, MCA. The City also has control over subdivisions. Title 76, Chapter 3, Part 1, MCA, Montana Wilderness Association v. Board of Health and Environmental Science (1976), 171 Mont. 477, 559 P.2d 1156. The District Court found that the DSL had not obligated itself to unconstitutional indebtedness and the City’s alleged preferential treatment of the DSL in approving the preliminary plat was within its discretion. The record supports the District Court’s findings. No public officials acted in excess of their authority, therefore the District Court was correct when it refused to issue a writ of prohibition. Affirmed.

ISSUE II

Issue II concerns the propriety of granting the defendant’s motion for summary judgment. Appellants contend that genuine issues of material fact exist and that summary judgment was improper.

The standard for reviewing a grant or denial of summary judgment is “the same as that utilized by the trial court initially under Rule 56, M.R.Civ.P. — a summary judgment is proper when it appears ‘that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” Reagan v. Union Oil Co. of California (Mont. 1984), [208 Mont. 1,] 675 P.2d 953, 956, 41 St.Rep. 131, 134.

Appellants allege that three genuine issues of material fact exist. They contend issues exist concerning whether or not: a) the State obligated itself to unauthorized debt; b) the City approved the preliminary plat without guarantee that the improvements required for compliance with the master plan will be funded; and c) the City gave preferential treatment to the State in the approval of the preliminary plat.

The respondents presented evidence in the form of the affidavit of Kelly Blake that no factual issues exist. The affidavit states that the improvements the State was obligated to pay for were paid for with funds from the resource development account authorized by Section 77-1-604, MCA. The affidavit also states that the State did not obligate itself to any debt. As a result there were no further obligations and no preferential treatment. “Once the movant has established that no material issues of fact exist, the burden shifts to the opposing party to raise an issue of fact.” Krone v. McCann (1982), 196 Mont. 260, 264, 638 P.2d 397, 399. Appellants allege that genuine issues of material fact exist, but do not substantiate their allegations with evidence. Mere implications based on appellant’s allegations are not enough to prevent a motion for summary judgment from being granted. Cheyenne Western Bank v. Young (1978), 179 Mont. 492, 587 P.2d 401. Affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE SHEEHY

license: Public Domain

text:
    ELLEN CORNWALL, Herbert Jones, and Donn Pennell, et al., Plaintiffs and Respondents, v. THE STATE OF MONTANA, acting By and Through the DEPARTMENT OF JUSTICE, the Law Enforcement Academy Bureau, et al., Defendants and Appellants.
    No. 87-380.
    Submitted Dec, 3, 1988.
    Decided March 8, 1988.
    752 P.2d 135.

      Mike Greely, Atty. Gen., Clay Smith argued, Asst. Atty. Gen., Helena, for defendants and appellants.
    Thomas P. Meissner argued, Lewistown, for plaintiffs and respondents.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

The Lewistown Montana Law Enforcement Academy Committee, chiefly Ellen Cornwall, Herbert Jones and Donn Pennell, brought an action for declaratory judgment in the District Court, Tenth Judicial District, County of Fergus, against officials and employees of the State of Montana, chiefly Mike Greely, as Attorney General and the head of the Department of Justice. The Committee applied for and obtained from the District Court a preliminary injunction pendente lite enjoining and restraining the defendants in legal effect from taking any step for the purchase or lease of modular buildings or facilities currently being used by the Montana Law Enforcement Academy in Gallatin County, Montana.

For ease of reference, we will denote the plaintiffs collectively as the Committee and the defendants collectively as the Attorney General.

The Attorney General appeals the issuance of the preliminary injunction pendente lite to this court. On consideration and examination of the law and applicable statutes, we order that the preliminary injunction be dissolved.

This case involves the interrelation of statutes which provide for the procurement of real and personal property for the operation of state government; it also involves the jumble of conflict which arose when the legislature provided separately for the procurement of property for the Montana Law Enforcement Academy. It is in threading through the jumble that we determine that the preliminary injunction must be dissolved.

Statutory authority for the establishment of the Montana Law Enforcement Academy was enacted in 1959 (Ch. 7, Laws of Montana (1959)). In general, the Academy was to be governed by the Department of Justice (Section 44-10-201, MCA) and with respect to the location of the Academy, two provisions of the original enactment are important:

“44-10-202. Powers and duties of department. The Department of Justice shall have the power and it shall be its duty to:
“(1) Choose a site for the Montana Law Enforcement Academy at the unit of the university system of Montana which in the determination of the department is best suited for the needs of the academy.
“(10) Do all other things necessary and desirable for the establishment and operation of the academy not inconsistent with this chapter or the constitution and statutes of the State of Montana; . . .”

The original location chosen for the Academy was on the campus of the Montana State University at Bozeman. In 1977, the Montana Board of Regents stated that the Academy must be relocated due to the need for space on the campus occasioned by a substantial increase in the student population. In July, 1978, the Attorney General, on behalf of the State, entered into two agreements which in effect continued the location of the academy in Bozeman.

On July 27, 1978, Donald Cape and Jo Ann Cape entered into an option agreement with the Attorney General, granting to the Attorney General, on or before September 1, 1988, the right to purchase certain listed personal property for the purchase price of $442,500.00. Upon the exercise of the option by the Attorney General, the option price would be reduced by the amount of principal and interest payments made by the Capes on the indebtedness incurred by them to acquire and fund the personal property subject to the option. The resulting figure would be the purchase figure for the exercise of the option. The personal property consisted essentially of the modular buildings and facilities and equipment utilized for the operation of the Academy.

A day later, on July 28, 1978, Donald Cape and Jo Ann Cape entered into a lease agreement with the Attorney General whereby the Capes leased to the state for a term of 10 years ending on September 31, 1988, the same modular buildings and equipment as the personal property listed in the option. The lease provided for an annual rent of $107,000.00, payable quarter-annually, escalated by certain factors, including inflation, as contained in the lease. The lease provides that the state occupancy is for the purpose of the Law Enforcement Academy.

Under the option agreement, the Attorney General exercised the option to purchase the personal property on June 30, 1987, when the Attorney General notified the Capes in writing to that effect. Disagreement as to the exact option price exists. As of July 1, 1987, the Attorney General determined the option purchase price to be $80,745.62, while the Capes determined the purchase price to be $295,032.63. No money as yet has been transferred to complete the option.

Long Range Building Program

Through all of the foregoing history of the dealings by the Attorney General with Don and Jo Ann Cape, there have been in effect statutes pertaining to the long range building program of the state. Section 17-7-201, et seq., MCA. Generally those provisions require each state agency and institution to submit to the Department of Administration its proposed long range building projects with enough information on which the legislature can act and set a budget. Further, the governor, in submitting his budget to the legislature, must report the requests of the state agencies for long range proposed building programs together with his recommendations for the construction of buildings during the forthcoming biennium. Section 17-7-203, MCA. Since 1975, the governor must recommend to the legislature priorities for proposed buildings. Section 17-7-204, MCA.

There is, however, no provision in the chapter regarding long range building programs making the process therein exclusive as to the acquisition of property for the operation of state government. In the case of the Academy, each year since 1978, the legislature has appropriated, and the legislative auditor has consented to, the monies necessary to keep the state current on its personal property lease with the Capes. In the light of statutory construction, we find no conflict therefore between the long range building program and the lease-option arrangement for the acquisition of personal property from the Capes since the long range building statutes are not exclusive.

Duties of the Department of Administration

In this state, we have a Department of Administration, whose department head is appointed by the governor (Section 2-15-1001, MCA). The head is also ex officio the state treasurer (Section 2-15-1002, MCA). Among the duties assigned to the Department of Administration is the management of real property and buildings used by state agencies. Except for the university system, “no state agency shall lease, rent or purchase property for quarters without prior approval of the Department” [of Administration]. Section 2-17-101(1), MCA.

The Department of Administration is further given the authority, as part of the long range building program, to enter into rental contracts which provide an option to purchase the leased building used by the state or any department of state government. Section 18-3-101, MCA. There are certain limitations to such lease-option agreements. They must first be authorized by a vote of two-thirds of the members of each house of the legislature; the plans and specifications are to be drawn by an architect appointed by the Department of Administration; there is a required bidding procedure for the awarding of the contract (Section 18-3-103, MCA), the contracts cannot exceed 20 years and the option to purchase cannot exceed $50,000.00. Location of the building is determined by the call for bids. Section 18-3-105, MCA.

In this case, the Committee contends that the lease and separate option agreement entered into by the Attorney General with the Capes should have been governed by the provisions of Section 18-3-101, et seq., pertaining to lease-option agreements. The Attorney General contends on the other hand that since the instruments are separate, the provisions for lease-option in those statutes do not apply.

We see no merit in the Attorney General’s contention that this is not a lease-option agreement simply because the instruments are separate. Undoubtedly, the lease payments made by the State under the lease agreement in this case were utilized by the Capes to make the underlying funding payments required when the Capes borrowed to furnish the property subject to the option. What is always important in this case, however, is that the provisions of Section 44-10-202, MCA, in effect at the time of the dealings with the Capes, specifically gave the Attorney General the power to choose the site for the Academy at a unit of the University System of Montana, and in addition, to do all of the things necessary and desirable for the establishment and operation of the Academy not inconsistent with state statutes. Under widely accepted rules of statutory construction that specific provisions control the general provisions, the specific authority given to the Attorney General in Section 44-10-202, MCA, overrides the limitations placed upon lease-option contracts contained in Section 18-3-101, et seq., MCA.

Amendment of Section 44-10-202, MCA

The complicating factor in this case is that in 1985, the legislature amended Section 44-10-202 in Ch. 431, Laws of Montana (1985). The title of the act states that it is “removing the requirement that the Montana Law Enforcement Academy be located at one of the units in the Montana University System.” Whatever its purpose, the amendment not only took away the requirement for the location of the Academy at a university unit, but it also stripped the Department of Justice of the power to choose the site for the Montana Law Enforcement Academy. This provision was eliminated from Section 44-10-202, in its entirety:

“(1) Choose the site for the Montana Law Enforcement Academy at the unit of the university system of Montana, which in the determination of the department is best suited for the needs of the Academy.”

The amendment, however, left in effect the provisions of subparagraph (10) of the section which empowered the Department of Justice to “do all other things necessary and desirable for the establishment and operation of the Academy” not inconsistent with other statutory provisions.

For the purposes of this case, the net effect of the 1985 amendment of Section 44-10-202, MCA, is to require that the Attorney General [Department of Justice] must now have the approval of the Department of Administration before he can lease, rent or purchase property for quarters under Section 2-17-101(1), MCA.

1987 Budget Amendment

A final complicating factor in this case is the budgetary direction of the 1987 legislature. In the 1987 General Appropriations Act, the legislature directed:

“The Department [of Justice] shall purchase the modular facilities in Bozeman that currently house the Montana Law Enforcement Academy. For the purpose of purchasing such facilities, the Department is authorized to expend funds appropriated in item 10(a).” Item 10(a) provides a total of $622,291.00.

The 1987 budgetary direction is, of course, in conflict with the provisions of Section 2-17-101, MCA, which require the approval of the Department of Administration, and with Section 17-7-201, MCA, et seq. pertaining to the long-range building program. Nevertheless, the 1987 budgetary direction is on equal footing with the other statutes, and is a recognition by the legislature of the terms of the lease and option agreements entered into by the state with the Capes. Again, the statutory construction rule that the specific controls the general applies.

The Preliminary Injunction

The District Court, in issuing the preliminary injunction, made findings of fact pertaining to the cause. It noted the execution of the option agreement and the subsequent lease agreement with the Capes; it noted that more than 20 proposals for the location of the Academy have been submitted by various communities in Montana, including one submitted by the residents of Fergus County, of which group the plaintiffs were members; it noted the 1987 budgetary direction to purchase the modular facilities; and then it made certain conclusions of law.

In its conclusions, the District Court determined that the committee had met the threshold standard of Section 27-19-201, MCA, in that it had made a prima facie case of irreparable injury; it determined that the attempted exercise of the option to purchase the personal property from the Capes was void under Section 2-17-101, MCA, without the approval of the Department of Administration; it determined that the option agreement and the lease agreement were in effect a single document and subject to the lease-option statutes in Sections 18-3-101, MCA, et seq. It held the lease agreement and the option agreement with the Capes to be null and void because the provisions of Section 18-3-101, MCA, et seq. were not complied with; and it found the budgetary direction on the 1987 General Appropriations Act violated the provisions of Article V, Section 11(4) of the state constitution as an act of special or local legislation.

Thereafter, in a separate instrument, the court issued its preliminary injunction on July 17, 1987, restraining the defendants from entering into any discussions, consultations or negotiations for the purchase or release of modular buildings or facilities; from executing, signing or entering into any oral or written agreement for the purchase or release of those modular buildings or facilities; from exercising any option to purchase the personal property described in the option agreement or from seeking to accomplish payment of any sum for the purchase of those facilities; and from exercising any option to renew or extend the lease of personal property from the Capes. No bond is required of the plaintiffs.

On appeal, the Attorney General contends that the issuance of the preliminary injunction was improper, that the injunction was over-broad, and that the District Court erred by not requiring a written undertaking pursuant to Section 27-19-306(1), MCA.

Although there are conflicts in the statutes pertaining to the Academy, the rules of statutory construction lead us to conclude that insofar as the statutes are concerned, the Attorney General had the authority in 1978 to select the site for the Academy and to enter into the lease and option. By statute, we are required in the construction of statutes, to pursue the intention of the legislature where possible, and we are commanded that when general and particular statutory provisions are inconsistent, the particular provisions are paramount, so that a particular intent governs a general one that is inconsistent with it. Section 1-2-102, MCA. The cases are legion upholding this statutory requirement. The lapse of 9 years time under the lease, during which time the legislature appropriated monies for the continuation of the lease, and the 1987 budgetary direction to purchase the modular facilities are all solid evidence of the intention of the legislature in the matter. Section 1-2-102, MCA. Executive constructions of a law, acquiesced in by the legislature are not binding on the court, but are persuasive and will be upheld if not erroneous. State ex rel. Ebel v. Schye (1957), 130 Mont. 537, 541, 305 P.2d 350, 353; McBride v. Reardon (1937), 105 Mont. 96, 103, 69 P.2d 975, 979; Miller Insurance Agency v. Porter (1933), 93 Mont. 567, 575, 20 P.2d 643, 646.

The 1987 budgetary direction to the Department of Justice to purchase the modular facilities is on the same footing as other statutes of the state and is further indication of the intent of the legislature.

The case for the respondents must ride or fall on whether the provisions of Article V, Section 11(4), render the 1987 budgetary direction unconstitutional. The pertinent provisions of the state constitution are found in Article V, as these:

“Section 11 ... (4) A general appropriation bill shall contain only appropriations for the ordinary expenses of the legislative, executive and judicial branches, for interest on the public debt, and for public schools. Every other appropriation shall be made by a separate bill, containing but one subject.
“Section 12. Local and special legislation. The legislature shall not pass a special or local act when a general act is, or can be made, applicable.”

The District Court determined that each of the foregoing constitutional provisions were offended in this cause (1) because the 1987 budgetary provision was not for an “ordinary expense” and (2) because the budgetary direction is a special or local act. The Committee contends that Miller Insurance Agency v. Porter, supra, applies here, in determining whether the purchase of the modular facilities is an “ordinary expense.” In Miller, we defined such expenses as:

“Any expense which recurs from time to time and is to be reasonably anticipated as likely to occur in order for the proper operation and maintenance of the departments of the state government is an ordinary expense.”

93 Mont. at 571, 20 P.2d at 645. We find the citation inapplicable here, however, because under the terms of the lease, the expense of purchase is certain to occur during the biennium and none can doubt the power of the legislature to make provision for biennial expenses through appropriations, whether those expenses are incurred through purchase or by lease.

We also determine that the budgetary direction of 1987 does not offend Article V, Section 12, of the Montana Constitution. As a part of the General Appropriation Act pertaining to the operation of state governments, the direction to purchase was regarded by the legislature as an expense to be incurred in the coming biennium. The legislature could have set out the budgetary direction in a separate statute or law instead of including it in the general law, but that problem is “broadly speaking for the legislative assembly alone.” Arps v. State Highway Commission (1931), 90 Mont. 152, 165, 300 P. 549, 554; and State ex rel. Fisher v. School District No. 1 (1934), 97 Mont. 358, 367, 34 P.2d 522, 526 “if the applicability of a general law depends upon extrinsic facts and circumstances, the question of applicability is referable to the legislature and with its determination the courts will not interfere.”

We determine, therefore that the 1987 budgetary direction does not offend the state constitution as either a special or local act or as an appropriation beyond an ordinary expense.

We therefore determine that the Committee has failed to meet the standards required for the issuance of a preliminary injunction under Section 27-19-201, MCA. Accordingly, we reverse the District Court in the issuance of a preliminary injunction, and order that the said preliminary injunction be and the same is hereby dissolved. Remittitur in this cause shall issue forthwith. The Clerk of this Court is instructed to notify counsel of record forthwith by telephonic notice and to serve copies on said counsel by ordinary mail in due course of this opinion, which shall have the force and effect, without further order, of the office of such an order dissolving the preliminary injunction. The cause is remanded to the District Court with instructions to dismiss the same.

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


author: MR. CHIEF JUSTICE TURNAGE

text:
    In re the MARRIAGE OF J.A.M., Petitioner and Appellant, and D.A.M., Respondent and Respondent.
    No. 87-406.
    Submitted on Briefs Jan. 28, 1988.
    Decided March 8, 1988.
    750 P.2d 1097.
    Tipp, Skjelset, Frizzell & Buley, Thomas W. Frizzell, Missoula, for petitioner and appellant.
    Thomas W. Trigg, Missoula, for respondent and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Petitioner, J.A.M., appeals an order of the Fourth Judicial District, Missoula County, awarding respondent the right of reasonable visitation.

We affirm.

J.A.M. and D.A.M. were married on December 15, 1980. A daughter, was born of the marriage. In 1983 the parties separated. On August 22, 1984, J.A.M. filed a petition for dissolution. Trial was held on January 19, 29 and 30, 1987, and on April 28, 1987. In its June 4, 1987, decree of dissolution, the District Court divided the marital property, awarded custody of the daughter to J.A.M. and ordered D.A.M. to pay $50 per month in child support. The court also awarded D.A.M. reasonable visitation rights pursuant to a court-ordered visitation schedule.

J.A.M. presents one issue for our review:

Did the District Court abuse its discretion when it granted respondent D.A.M. the right of reasonable visitation?

At trial J.A.M. alleged the following: (1) A.I.M. has had no contact with her father for nearly three years; (2) A.I.M. is at risk of contracting genital herpes from her father; and (3) A.I.M. is in danger of being sexually abused by her father. The District Court found that J.A.M.’s allegations were unsupported by substantial credible evidence and ordered a structured visitation schedule. On appeal, J.A.M. restates the above-mentioned allegations and contends the District Court abused its discretion when it awarded reasonable visitation to D.A.M.

The standard by which we review this issue is found in Section 40-4-217(1), MCA, which provides that the noncustodial parent is entitled to reasonable visitation unless the visitation would endanger the child’s physical, mental, and moral or emotional health. In Re Marriage of Jacobson (Mont. 1987), [228 Mont. 458,] 743 P.2d 1025, 1028, 44 St.Rep. 1678, 1681. We will not disturb an award of visitation when the District Court’s findings are supported by substantial credible evidence. In Re the Support of Rockman (Mont. 1985), [217 Mont. 498,] 705 P.2d 590, 593, 42 St.Rep. 1323, 1325; In Re the Marriage of Concepcion (Mont. 1984), [212 Mont. 191,] 687 P.2d 718, 720, 41 St.Rep. 1675, 1677.

J.A.M.’s first allegation, that A.I.M. has had no contact with D.A.M. in nearly three years, is not supported by substantial credible evidence. In October 1984, J.A.M. and A.I.M., without D.A.M.’s knowledge, moved from Missoula to Pueblo, Colorado. Upon arrival, J.A.M. contacted D.A.M. by telephone but refused to reveal her address. Additionally, J.A.M. refused to allow A.I.M. to speak with D.A.M. On March 11, 1985, the District Court ordered “that [D.A.M.] shall have contact with [A.I.M.] by telephone at reasonable times and shall exercise that contact in a reasonable manner.” Subsequent to the above-mentioned District Court order, D.A.M. contacted A.I.M. by telephone on a weekly basis. D.A.M. also visited A.I.M. on two occasions when A.I.M. was in Missoula. A review of the record supports the District Court’s finding that, despite J.A.M.’s efforts to the contrary, D.A.M. was in contact with his daughter during the past three years.

J.A.M.’s second allegation, that A.I.M. is in danger of contracting genital herpes, is also not supported by substantial credible evidence. D.A.M. testified that prior to his marriage to J.A.M., he contracted Herpes Simplex II. D.A.M. testified that he has not infected anyone, including J.A.M., with the contagious disease. He also testified that his outbreaks are foreseeable, occurring every seven months and lasting approximately nine days. D.A.M. stated that the herpes lesions are small, approximately one and one-half inches in diameter, and that he protects others from infection by applying an ointment, cyclovir, and covering the lesions with bandages. J.A.M. did not rebut D.A.M.’s testimony. Clearly, the District Court did not abuse its discretion when it found that J.A.M.’s allegation was not supported by substantial credible evidence.

J.A.M. next contends that D.A.M. molested A.I.M. and that A.I.M. is in danger of continued molestation. In April 1984, approximately one month prior to separation, J.A.M. allegedly smelled semen on A.I.M.’s underwear which were soaking in the bathroom sink. J.A.M. immediately accused D.A.M. of molesting A.I.M. D.A.M. vehemently denied J.A.M.’s claim. J.A.M. did not report the incident to her friends, family, doctor or to the appropriate authorities. J.A.M. and A.I.M. continued to live with D.A.M. for approximately thirty days following the incident. In May 1984, J.A.M. and A.I.M. moved to another residence in Missoula. J.A.M. continued her employment as a registered nurse at St. Patrick’s Hospital. Following their separation, D.A.M. continued, with J.A.M.’s consent, to provide A.I.M. with twenty-four hour care for three days weekly.

J.A.M. contends that in July 1984 she found herpes lesions on A.I.M.’s back. J.A.M. did not report this incident to anyone. J.A.M., a registered nurse, did not take A.I.M. to see a doctor. A.I.M. has never been diagnosed as having herpes.

In August 1984, A.I.M. was interviewed by a clinical psychologist, Dr. Joan Hess-Homeier, for an evaluation of the child abuse allegations. Following her initial interview, Dr. Hess-Homeier filed a child sexual abuse report with law enforcement authorities. Mr. HessHomeier later obtained payment for her services under the Crime Victim’s Compensation Act. No charges in the above-mentioned matter were ever brought against D.A.M.

Dr. Hess-Homeier conducted twelve additional interviews with A.I.M. Two of Dr. Hess-Homeier’s interviews with A.I.M. were videotaped. At trial, Dr. Hess-Homeier testified that she felt A.I.M. had been molested. Additionally, Dr. Hess-Homeier’s videotaped interviews were introduced into evidence. After reviewing the videotapes, the District Court concluded: (1) Dr. Hess-Homeier defined and explained important sexual terms for A.I.M.; (2) Dr. Hess-Homeier used anatomically correct dolls to demonstrate sexual acts to A.I.M.; and (3) Dr. Hess-Homeier, on material matters, asked A.I.M. leading questions and “cross-examined” her. The District Court noted further that Dr. Hess-Homeier repeatedly referred to handwritten notes, some dated as recent as 1986, purporting to record the substance of her 1984 evaluation of A.I.M.

At trial D.A.M. repeatedly denied that he had molested A.I.M. The District Court found that D.A.M. was a credible witness. The District Court also found that D.A.M. attended to AJ.M.’s physical needs, provided her with part-time day care, and appropriate education and social opportunities. The record supports the District Court’s finding that D.A.M. is “an excellent parent to A.I.M.”

Previously, we held that in nonjury trials, the credibility of witnesses and the weight accorded their testimony is a matter properly left to the discretion of the District Court. Estate of Murnion (Mont. 1984), [212 Mont. 107,] 686 P.2d 893, 896, 41 St. Rep. 1627, 1630. On appeal we review the evidence in the light most favorable to the prevailing party. Wallace v. Wallace (1983), 203 Mont. 255, 661 P.2d 455, 457.

Substantial credible evidence supports the District Court’s decree awarding respondent the right of reasonable visitation. Accordingly, we hold there was no abuse of discretion.

Affirmed.

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


author: MR. JUSTICE HUNT

text:
    In re the MARRIAGE OF NORDIS J. POWELL, Petitioner and Respondent, and ARLO W. POWELL, Respondent and Appellant.
    No. 87-404.
    Submitted on Briefs Feb. 4, 1988.
    Decided March 8, 1988.
    750 P.2d 1099.

      George B. Best, Kalispell, for respondent and appellant.
    M. Dean Jellison, Kalispell, for petitioner and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Arlo Powell appeals the property settlement ordered by the District Court of the Eleventh Judicial District, Flathead County.

We affirm.

The issues raised on appeal are as follows:

1. Did the District Court err in admitting into evidence petitioner’s Exhibits A, B and C and further compound the error by denying the admittance of respondent’s deposition?

2. Did the District Court abuse its discretion by failing to base the finding of value of marital property and the respondent’s individual net worth on credible evidence?

3. Did the District Court abuse its discretion by failing to properly consider the elements of Section 40-4-202, MCA?

Petitioner, Nordis Powell (wife) and respondent, Arlo Powell (husband) were married on February 2, 1975 in Chico, California. At that time, wife was 62 years old and husband was 55 years old. Wife is a retired civil servant. During théir marriage husband worked for a few years as a telephone industry consultant in private practice but has since retired. Both parties held substantial assets at the time of their marriage. Wife had approximately $80,000, mostly in certificates of deposit, stocks and bonds. Husband had a net worth of approximately $144,000. During the course of their marriage, the parties kept their accounts and assets totally separate. Each paid for specific things with each providing exclusively for their own personal needs and expenses.

The parties were married for approximately eight years. They separated in March, 1983. The decree of dissolution was entered on March 26, 1985, reserving the property settlement until a later date.

At a hearing at which only the wife, her attorney and husband’s attorney appeared, the court found that, at the time of their separation, the parties’ marital estate was worth approximately $862,000. As of May 31, 1984, wife’s assets were found to have increased from $80,000 to approximately $137,000. The court found that on April 10, 1983, husband’s assets had increased from $144,000 to approximately $725,000. The court found no formal antenuptial agreement was drafted by the parties, yet it was clear from the parties conduct throughout their marriage that they intended to keep their assets separate, retaining them for eventual distribution to their children from prior marriages.

Husband’s first alleged error concerns the admission of certain evidence by wife and the exclusion of husband’s deposition as evidence.

Wife petitioned the court for dissolution on July 24, 1983. In spite of wife’s attempts to conduct discovery relating to husband’s assets, husband refused to candidly answer interrogatories or cooperate with the discovery process. Husband was held in contempt of court for transferring property held in his name to his son despite a restraining order prohibiting the transfer or sale of any assets pending the final property distribution. After numerous delays, a hearing date was set to resolve the property distribution. Husband requested a further continuance, which was denied by the court. Husband failed to show up for the hearing, but gave no excuse or reason for his absence other than his attorney having difficulty in locating him to give him notice of the hearing.

Wife appeared with her attorney at the hearing and gave testimony concerning the parties’ assets. Wife introduced Exhibit A, which was a document prepared by husband, in husband’s handwriting, dated January 10, 1974. The document was an inventory of husband’s assets and liabilities at the time of his previous wife’s death, for estate purposes. Wife found the original document among her husband’s papers and copied it, presenting the copy to the court as evidence of husband’s net worth near the date of their marriage.

Wife’s Exhibit B was also a document prepared by husband in his handwriting. It is an inventory of his assets and liabilities as of April 10, 1983. Wife obtained this document in the same manner as she obtained the document in Exhibit A. The court accepted both of these as relevant evidence accurately depicting husband’s assets and liabilities on January 10, 1974 and April 10, 1983. Wife’s Exhibit C was prepared by her attorney for illustrative purposes. Exhibit C copied all of the information contained in Exhibits A and B so that they were more easily read and compared. Exhibit C also contained wife’s assets and liabilities on the date of the parties’ marriage and on May 31,1984, just following their separation. At the hearing, wife verified the amounts as accurate. The court admitted Exhibit C for illustrative purposes.

We hold that Exhibits A, B, and C were properly admitted. Under Rule 801(d)(2), M.R.Evid., Exhibits A and B were properly admitted. An admission by a party-opponent is not hearsay ahd is admissible if the statement is offered against a party and is his own statement. The copies of the original documents were admissible under Rule 1004(3), M.R.Evid. Exhibit C was properly admitted for illustrative purposes. Rule 1006j M.R.Evid.

Since husband did not appear at the hearing, his attorney offered his deposition and several affidavits as evidence of his testimony. Rule 32(a), M.R.Civ.P. outlines the uses of depositions in court proceedings. Husband argues that his deposition should have been admitted pursuant to Rule 32(a)(3) which allows the use of a party’s deposition if that person is at a distance greater than 100 miles from the place of the hearing.

No proof was offered at the hearing that husband was unable to attend because of too great a distance to travel. The record did indicate, however, that husband was uncooperative with the court and the opposing party throughout the proceedings and decided not to attend the hearing for personal reasons. The decision not to attend was husband’s prerogative, but he cannot later introduce testimony which cannot be verified or cross-examined. We hold that the court properly refused to admit husband’s deposition as evidence at the hearing.

Husband’s next contention is that the District Court erred by failing to base the values placed on the marital estate at the time of separation and his individual net worth at the time of marriage on credible evidence. All the court had to base its calculations on were the exhibits and testimony introduced by wife. No evidence was presented to refute, either the value which she placed on the net worth of her assets at the time of marriage, nor the net worth of her assets at the time the parties separated. The evidence presented to the court evidencing husband’s assets at the time of marriage and date of separation were documents prepared by husband himself near the dates in question. These figures are reasonably reliable.

“The trial judge is free to select and reject appraisal values as he wishes, so long as there is substantial credible evidence in support of the values he selects.” In re Marriage of Williams (Mont. 1986), [220 Mont. 232,] 714 P.2d 548, 554, 43 St.Rep. 319, 326. (Quoting In re Marriage of Glass (Mont. 1985), [215 Mont. 248,] 697 P.2d 96, 100-01, 42 St.Rep. 328, 332 (Citations omitted).) In order to prevail on appeal, husband must show an abuse of discretion by the District Court and overcome the presumption that the judgment of the District Court is correct. In re Marriage of Blades (Mont. 1984), [212 Mont. 379,] 692 P.2d 1215, 1217, 41 St.Rep. 1806, 1809. We find no evidence that the District Court abused its discretion in relying on the evidence presented.

Husband’s last contention is that the District Court did not properly consider the elements of Section 40-4-202, MCA, in dividing the marital estate. In this case, both parties entered a marriage with considerable personal assets. Although no formal antenuptial agreement existed, the conduct of the parties during their marriage reflected their intent to keep separate those assets which they brought into the marriage. Premarital property is a factor which the court shall and, in this case, did consider, but the court is not bound to restore the parties to their premarital status. In re the Marriage of Tonne (Mont. 1987), [226 Mont. 1,] 733 P.2d 1280, 1283, 44 St.Rep. 411, 414; In re the Marriage of Keepers (Mont. 1984), [213 Mont. 350,] 691 P.2d 810, 812, 41 St.Rep. 2163, 2165-66.

In its findings of fact, the District Court considered the duration of the parties’ marriage, their respective ages and health, their retired status and apparent needs and wife’s contributions as a homemaker during their marriage. From the findings, the District Court concluded that each party should be awarded the value of the property he or she originally contributed to the marital estate. This amount was $80,000 for the wife and $144,000 for the husband.

The court found that the value of the marital estate on the date of the parties’ separation was $862,000. Although wife requested half of the increase ($638,000 2 = $319,000), the court awarded her only the corresponding percentage of the appreciated estate she had contributed when married. This amounted to $170,714 with 10 percent interest from the date of separation.

The District Court has far-reaching discretion in the division of marital property. In re Marriage of Perry (Mont. 1985), [217 Mont. 162,] 704 P.2d 41, 43, 42 St.Rep. 1101, 1104. We find no error nor abuse of discretion by the court in this case.

Affirmed.

MR. JUSTICES McDONOUGH, WEBER, SHEEHY and GULBRANDSON concur.


author: MR. JUSTICE WEBER

text:
    In re the SUPPORT OF CAROLYN ELLEN KRUG and Cristina Estee Krug, Minor Children.
    No. 87-460.
    Submitted on Briefs Jan. 28, 1988.
    Decided March 8, 1988.
    751 P.2d 171.

      Kevin T. Sweeney, Sweeney & Healow, Billings, for appellants/ respondents.
    Fred E. Work, Jr., Work Law Firm, Billings, for respondent/ appellant.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

The District Court for the Thirteenth Judicial District, Yellowstone County, ordered the father to pay prospective child support, finding unconscionable a stipulation by which the father and mother had agreed the father would not be responsible for any child support. The father appeals and the children cross appeal. We affirm.

We restate the issues raised by the father as:

1. Do the doctrines of collateral estoppel and equitable estoppel bar the relief sought by the minor children?

2. Does Section 40-4-208(2) (b)(ii), MCA, bar the children’s petition?

3. Does Section 40-6-211, MCA, preclude relief in this case?

4. Should the children’s petition have been brought under the action dissolving the parents’ marriage?

The children raise the issues of whether it was error to fail to award past support and support during the pendency of this action.

The parents’ marriage was dissolved in 1978. Custody of the two minor children was awarded to the mother. The father was ordered to pay $200 per month in child support, plus certain medical costs. In 1980, the parents entered a stipulation wherein they agreed that 1) the father would be relieved of any future duty to support the children, 2) the mother would give the father upon his request a satisfaction of judgment for child support, 3) the father would forego his right to visitation with the children, 4) the father would permit future adoption of the children by anyone the mother would select, and 5) the father would not contest the guardian appointed in the mother’s will. The District Court ordered that the dissolution decree be amended by the stipulation.

In March 1987, the children petitioned the court to set reasonable child support and to require the father to pay past, present, and future child support to the mother, along with medical, dental, and health insurance coverage. The absence of a guardian ad litem is not an issue in this case. See Rule 9(a), M.R.Civ.P. Both parents filed affidavits setting forth their assets and liabilities, income and expenses. The mother’s affidavit shows that she is a court secretary and holds a second job. Her monthly income available for child support purposes is $1,083. The father’s affidavit states that he is employed at the Cenex Refinery in Laurel, Montana. His monthly income available for child support purposes is $1,838.48. Both parents’ employment is relatively secure. The mother lists $1,667 in monthly expenses for herself and the children.

The matter was submitted to the court on the parties’ briefs, the affidavits, and an agreed statement of facts. The court denied the request for past child support on equitable grounds. However, as to future child support, the court refused to honor the parents’ stipulation. It ordered the father to pay the mother $285 per month per child beginning the next month. It also ordered the father to provide health insurance for the children through his employment and to contribute 63% of their uninsured health care costs.

I

Do the doctrines of collateral estoppel and equitable estoppel bar the relief sought by the minor children?

Collateral estoppel bars the same parties from relitigating issues on which a final judgment has been entered in a different cause of action. Matter of Unfair Labor Practice No. 38-80 (Mont. 1986), [222 Mont. 172,] 720 P.2d 1181, 1182, 43 St.Rep. 1148, 1150. Under Section 40-4-208, MCA, future support installments may be modified. Thus, they are not final judgments for purposes of collateral estoppel. We hold that collateral estoppel does not bar modification of the father’s future child support obligation.

The father cites three opinions of this Court in support of his argument that equitable estoppel bars the relief sought by the minor children. In the first, State [of Washington] ex rel. Blakeslee v. Horton (Mont. 1986), [222 Mont. 351,] 722 P.2d 1148, 43 St.Rep. 1321, we affirmed the district court’s order denying the mother’s claim for child support following a 14-year agreement whereby the father paid no support and had no contact with the child. We cited the lower court’s statement that there was no proof of a present actual need for the support requested. In the second case cited, the mother had been awarded custody of the children. However, the parents had made an express agreement under which the father had assumed custody of the children. The lower court concluded that the mother was estopped from enforcing the support provisions of the dissolution decree. We affirmed. In re Marriage of Cook (Mont. 1986), [223 Mont. 293,] 725 P.2d 562, 43 St.Rep. 1732. In the third case cited, the parties had entered an oral agreement reducing the amount of child support the father would pay during periods when he was laid off work. This Court held that the relative financial abilities of the parties made the terms of the previous support order, which the mother sought to enforce, unconscionable. In re Marriage of Jensen (Mont. 1986), [223 Mont. 434,] 727 P.2d 512, 43 St.Rep. 189.

The equitable considerations in this case contrast with those in Blakeslee, Cook, and Jensen. Here, it is the children, and not the mother, who petition for support. The children were not parties to the stipulation between the mother and the father, and the children, not the parents, are the beneficiaries of child support. More importantly, in the present case it is not disputed that the support requested is necessary and that the father has the ability to contribute what the mother cannot. The lower court granted the petition for future support. We hold that under the circumstances presented here, equitable estoppel does not bar the petition.

II

Does Section 40-4-208(2) (b) (ii), MCA, bar the children’s petition?

The father argues that the stipulation between the parents is valid under Section 40-4-208(2) (b) (ii), MCA, and that no basis has been shown for modifying the stipulation. Section 40-4-208(2) (b), MCA, provides:

“(b) Whenever the decree proposed for modification contains pro-. visions relating to maintenance or support, modification under subsection (1) may only be made:
“(i) upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable; or
“(ii) upon written consent of the parties.”

The lower court stated that “[a]n agreement which attempts to abrogate child support forever is unconscionable in all but the most strained circumstances” and that the stipulation for no support in this case was “unconscionable ab initio.” An unconscionable stipulation does not attain validity by virtue of being signed by the parties. However, because the stipulation was incorporated into the dissolution decree, it is, in effect, a support decree proposed for modification. While the lower court did not make a specific finding of unconscionability under Section 40-4-208(2) (b)(i), MCA, we again point out that a need for future support has been established and is not contested. We hold that the petition was not barred by this statute.

III

Does Section 40-6-211, MCA, preclude relief in this case?

Section 40-6-211, MCA, provides:

“Obligations of parents for the support and education of their children. The parent or parents entitled to the custody of a child must give him support and education suitable to his circumstances.”

The father argues that this statute precludes relief unless there is a showing that the mother, as the custodial parent, can no longer provide the minor children with support and education suitable to their circumstances.

This statute was enacted as part of the Civil Code of 1895. It is not a part of the major revision of Montana’s termination of marriage, child custody, and support statutes adopted in 1975. We hold that this statute does not relieve a noncustodial parent of obligations of support under Montana’s other child support laws.

IV

Should the children’s petition have been brought under the action dissolving the parents’ marriage?

This argument is raised for the first time on appeal. While it may have some technical merit, we note that the parents’ dissolution was also a Yellowstone County action. We hold that this issue, raised for the first time on appeal, does not present grounds for reversal.

V

Did the court err by not ordering past child support? The children cite this Court’s opinion in Marriage of Neiss (Mont. 1987), [228 Mont. 479,] 743 P.2d 1022, 44 St.Rep. 1695. In that case, after a decree had been entered ordering the father to pay the mother monthly child support, the parents had agreed that the father would pay the mother several quarterly installment payments, and that the mother would then release him from further obligations for child support and maintenance. This Court quoted the best interest of the child test as the standard, then held the parents’ agreement void as against public policy. “Equitable estoppel must be found by the trial court upon clear and compelling evidence to override the provisions of Section 40-4-208, MCA.” Neiss, 743 P.2d at 1024 (citing Cook).

Here, in addition to an absence of support for some seven years, there was also a complete absence of contact between the father and the children for that period. As the district court stated, “while this court could restore the monetary child support which should have been paid by respondent it cannot restore the missed visitation to respondent.” Additionally, there was no evidence that the children now require that the past child support be paid. We hold that clear and compelling evidence supports the court’s refusal to award past child support.

VI

Did the court err by failing to award support during the pendency of this action?

Section 40-4-208, MCA, provides that “a decree may be modified by a court as to maintenance or support only as to installments accruing subsequent to actual notice to the parties of the motion for modification.” The children point out that their father received actual notice of the motion for modification when they filed their petition. They say the court erred by failing to award support from that time forward.

The statute leaves discretion in the trial court as to when modification takes effect. In re Support of Rockman (Mont. 1985), [217 Mont. 498,] 705 P.2d 590, 592, 42 St.Rep. 1323, 1326. In light of all circumstances, we do not hold the lower court in error in exercising its discretion as it did.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, HUNT, GULBRANDSON, SHEEHY and McDONOUGH concur.


author: MR. JUSTICE SHEEHY MR. JUSTICE GULBRANDSON,

text:
    DWIGHT DOUGLAS SMITH, Plaintiff and Appellant, v. MARLENE RORVIK, Defendant and Respondent.
    No. 87-202.
    Submitted on Briefs Nov. 24, 1987.
    Decided March 9, 1988.
    751 P.2d 1053.

      . Channing J. Hartelius, Hartelius, Ferguson & Baker, Great Falls, for plaintiff and appellant.
    Robert Terrazas, Worden, Thane & Haines, Missoula, for defendant and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Dwight Douglas Smith appeals from a verdict and judgment in favor of defendant Marlene Rorvik in the District Court, Twentieth Judicial District, Lake County, arising out of a car-pedestrian collision which occurred on Airport Road, near St. Ignatius on June 13, 1984.

On consideration, we reverse and remand for a new trial.

We examine the following issues on appeal:

1. The propriety of the opinion evidence of the highway patrol officer.

2. Proper jury instructions on the statutory duty of a driver relating to pedestrians.

3. Proper instructions respecting warning devices for disabled vehicles.

4. Whether counsel may argue to the jury on the legal effect of the application of the comparative negligence statute.

On June 13, 1984, plaintiff Smith was operating a front end loader on a public highway. Because the engine of the loader overheated, he parked the vehicle on the right side of the east bound lane of the roadway so that he could obtain water from a nearby irrigation ditch. As parked, his loader occupied 7 feet 6 inches of the 22 foot total paved width of the roadway.

Randy Monroe was following Smith in a truck. He pulled his truck off to the right side of the roadway and came to a stop behind the loader. Monroe activated his emergency flashers and then attempted to assist Smith. Neither Smith nor Monroe placed any emergency warning devices on the roadway. Smith climbed up on the loader’s tire in order to pour two pop bottles of water into the radiator of the vehicle. He was injured shortly thereafter.

Marlene Rorvik was driving an automobile east on the same roadway. She testified that she saw the loader and the truck parked on the right side of the roadway. She did not see any flashing lights but she did see a man on the loader. As she was passing, her vehicle struck Smith, who was then on the pavement.

Rorvik testified that Smith jumped from the loader tire onto the roadway. Smith contended that he was struck as he walked from behind the loader. Under either version, Smith was on the roadway when struck.

A Montana highway patrol officer investigated the accident, arriving at the accident scene approximately 20 minutes after the occurrence. Smith had already been transported to the hospital in an ambulance, and Monroe had moved the truck, located behind the loader. No citations for criminal traffic violations were issued by the highway patrolman to either party.

Smith filed an action against the defendant driver in the Lake County District Court, seeking damages for the personal injuries he sustained as a result of a pedestrian-car collision.

THE TESTIMONY OF THE HIGHWAY PATROLMAN

Far in advance of the trial, the highway patrolman was interviewed and deposed by counsel for Smith. The patrolman was also interviewed by defendant’s counsel and the patrolman accompanied counsel for the defendant to the scene of the occurrence prior to the trial. The patrolman was named as a witness by both parties but he was not named as an expert witness by Rorvik’s counsel in response to Smith’s interrogatories. Smith contends it was reversible error for the trial court to permit the patrolman to testify as an expert in that situation.

The patrolman testified that he was notified of the accident at 7:00 p.m. on that date and reached the scene about 20 minutes later. As he came to the accident scene, he passed an ambulance which was already transporting Smith to the hospital in St. Ignatius. He observed the loader in the eastbound half of the highway with all four wheels on the pavement. He measured the loader and determined the distance that it projected into the roadway.

The patrolman interviewed Marlene Rorvik at the scene. She told him she had begun to proceed around the loader on the road when a person jumped from the loader and was struck by her car. The patrolman talked to other witnesses at the scene. Randy Monroe said he had not seen the accident since he had his back turned. Monroe was in a field looking for a container for water. The patrolman also talked to Lynn Birthmark and Steve Weingart, the driver and passenger in a vehicle following Marlene Rorvik, who told him that they had been traveling at approximately 35 miles per hour. They did not tell him anything about her speed, the point of impact, or the point of the highway where Smith landed after the collision. The patrolman noted on his investigation report that the speed limit at the time of the accident would have been 55 miles per hour. (The actual speed limit is disputed; it was probably 35 miles per hour, though no witness, including the highway patrolman, saw any signs respecting that speed limit. A county road supervisor testified that to his knowledge such 35 miles per hour signs were posted on the date of the accident.)

In direct examination, the patrolman stated that he had been a highway patrolman for 16 years and that he investigated approximately 1600 accidents in that time. He had attended approximately 80 hours of classroom training on accident investigation. He had testified as an opinion witness about the cause of accidents in other cases.

The patrolman testified that on arriving at the accident scene, he observed the position of the loader parked on the highway, measured its bucket which extended 7 feet 6 inches into the highway surface, measured the total width of the highway, and talked to Marlene Rorvik and witnesses Lynn Birthmark and Steve Weingart as well as Randy Monroe. He did not ever talk to the plaintiff Dwight Smith. He determined that there were no flares or other warning devices set out behind or in front of the Smith vehicle. He determined what Smith had done prior to the impact by the statements he received from Marlene Rorvik. Before the patrolman arrived, Randy Monroe had moved the truck from its position behind the loader. The patrolman did not learn of the presence of the truck behind the loader until days later.

On cross-examination, the patrolman admitted that he assumed the speed limit was 55 miles per hour because no speed limit sign was posted; it was his opinion that Smith did not properly display flags and flares at the scene, and that he had failed to yield the right of way to a vehicle as a pedestrian; and he did not know when he formed his opinion that a truck had been parked behind the front end loader so that Rorvik had to pass the truck before she could pass the loader. It also developed on cross-examination that the patrolman had thought, from the position of the shovel on the loader, that it was going in the other direction and was parked on the wrong side of the road. There were no skidmarks and the patrolman did not determine the stopping distance of the Rorvik vehicle from the point of impact with the pedestrian to the place where the vehicle had stopped; he did not determine nor measure the distance that Smith had been thrown by the impact from the vehicle from the point of impact to the place where he came to rest; his discussions with Randy Monroe and Lynn Birthmark were brief, and he stated that they did not volunteer any information to him. He testified that the damage to the Rorvik vehicle was as portrayed in Exhibit C, a photograph which shows scuff marks of some sort on the bumper below and to the right of the left headlight and some scuff marks on the front part of the bonnet or hood of the Rorvik vehicle.

In his direct examination, the patrolman testified as follows:

“Q. Now, Officer, based upon your investigation of the accident, why didn’t you cite Ms. Rorvik for speeding? A. I had no evidence to support the fact that she was speeding.
“Q. Why didn’t you cite her for careless driving? A. I had no evidence to prove she was driving carelessly.
“Q. Why didn’t you cite her for driving in an unsafe and imprudent manner? A. I felt she was driving safe at the time.
“Q. Why didn’t you cite her for failure to reduce her speed in the face of a potentially hazardous situation? A. I feel she did.
“Q. Why didn’t you cite her for failing to pass safely? A. I feel she was passing safely.
“Q. Why didn’t you cite her for failing to exercise due care to avoid colliding with a pedestrian? A. I feel that she did.
“Q. Why didn’t you cite her for being negligent or for violation of a basic rule? A. She was not negligent and she violated no basic rule.
“MR. RYAN: Your Honor, excuse me, I’m going to move to strike the witness’ answer — the witness’ answer he volunteered about negligence — on the grounds it’s a legal conclusion, speculative and should not have been given that way.
“THE COURT: Overruled, the answer will stand.”

Those questions and the answers given constitute prejudicial error against the plaintiff Smith. The trial court should have sustained the objection to the reference about negligence. The questions were objectionable, even though the patrolman was testifying as an expert. The questions were objectionable at least on the following grounds: 1) they were irrelevant; 2) they were argumentative in form; 3) they described as crimes things which are not crimes; 4) they called not for objective evidence but for the mental conclusions of the witness; and, 5) they were hearsay.

Though of first impression in this state (but see O’Brien, infra), it is clear in the law that admitting testimony of an officer that he made no arrest following a collision is error. Danner v. Walters (1951), 154 Neb. 506, 48 N.W.2d 635. Admitting such testimony is prejudicial error. Allen v. Ellis (1963), 191 Kan. 311, 380 P.2d 408. In Ferreira v. General Motors Corporation (1983), 4 Hawaii App. 12, 657 P.2d 1066, 1069, it is stated: “If evidence of an acquittal is inadmissible, a fortiori, evidence of the issuance or nonissuance of a traffic citation is likewise inadmissible.” In Underwood v. Butler (1983), 166 Ga.App. 527, 304 S.E.2d 729, 166 Ga. App. 527, Judge Birdsong noted:

“. . . That the officer did not issue appellant a criminal citation is no more relevant and admissible in a civil trial than it would be if the citation had been issued and the appellant found not guilty. The elements of proof in civil and criminal trials are decidedly different. (Citing a case.) Evidence that the officer did not issue a criminal citation to the appellant is generally irrelevant to the question of negligence in a civil trial. This rule is not changed by the fact that the officer had earlier, without objection by the appellant, been permitted to express his opinion as to her negligence.”

304 S.E.2d at 731.

In this case, the plaintiff had moved in limine for an order preventing the patrolman from testifying as an expert since he was not listed by the defendant as an expert in pretrial discovery. The District Court denied this motion. The motion, however, was not denied until the afternoon of the first day of trial after the jury had been selected on March 30, 1987. Smith’s counsel had taken the deposition of the patrolman on November 8, 1985. At that time, the patrolman testified that he did not consider himself an accident reconstruction expert, and that the opinions he was rendering in the deposition were from a criminal standpoint and not from a civil standpoint. Upon proper requests by Smith through interrogatories that Rorvik identify any expert witnesses, it became the duty of Rorvik to identify those witnesses, including the highway patrolman before trial. Sanders v. Mt. Haggin Livestock Company (1972), 160 Mont. 73, 500 P.2d 397; Smith v. Babcock (1971), 157 Mont. 81, 482 P.2d 1014. (A proper disclosure by Rorvik of the intention to call the patrolman as an expert on civil liability would have warned Smith and led to probable further motions to the court respecting the foundation for the patrolman’s testimony as an expert.) In this case, the patrolman had spoken only to Rorvik, and at trial announced that he had based his opinion on what Rorvik had told him, plus what he had learned from other witnesses at the time of his investigation. However, no other eye witness at the scene could identify how the collision occurred. The only two witnesses to the actual circumstances of the collision were Rorvik on the one hand and Smith on the other. If the information obtained by the patrolman through his investigation were insufficient for him to form an opinion as an expert, the lack of foundation to qualify him for his opinion would be an issue for determination. See Tacke v. Vermeer Mfg. (Mont. 1986), [220 Mont. 1,] 713 P.2d 527, 43 St.Rep. 123. We have held that where the patrolman had inadequate information to form an opinion as to speed, that he should not be asked to testify thereon, O’Brien v. Great Northern Railway (1965), 145 Mont. 13, 400 P.2d 634:

“On direct and cross-examination the witness admitted that he was not an eye witness to the accident, having arrived some five minutes thereafter; that due to the impact, there was no way to determine the speed of the vehicle from the skidmarks on the highway; and, that he was not familiar with stopping distances in terms of speed. Shortly thereafter, in response to a question of whether there was any evidence of violation of the speed limit by the decedent, he replied, over appellant’s objection, “I don’t know whether I could judge and give a conclusive answer to that or not. In my own mind, I don’t think the man was exceeding the speed limit.” We think that the witness’ answer was predicated on pure speculation and conjecture; the appellant’s objection that the question was without proper foundation and called for a conclusion was valid and should have been sustained. In view of the fact that the witness was a highway patrolman testifying as an expert witness, the testimony given by him might have been accorded considerable weight by the jury, and, inasmuch as it tended to establish the freedom of the decedent from contributory negligence, it was unduly prejudicial to the appellant’s case and therefore reversible error to admit it.”

145 Mont. at 19-20, 400 P.2d at 638.

INSTRUCTIONS RELATING TO VEHICLE-PEDESTRIAN COLLISION

On the subject of the relative duties between a pedestrian on a highway and a driver approaching such a pedestrian, the District Court gave the following instructions:

“INSTRUCTION NO. 18
“A Montana statute provides a person operating or driving a vehicle of any character on a public highway of this state shall drive it in a careful and prudent manner, and at a rate of speed no greater than is reasonable and proper under the conditions existing at the point of operation, taking into account the amount and character of traffic, weight of vehicle, grade and width of highway, condition of surface, and freedom of obstruction to view ahead, and he shall drive it so as not to unduly or unreasonable [sic] endanger the life, limb, property, or other rights of a person entitled to the use of the street or highway.
“INSTRUCTION NO. 19
“A Montana statute provides that a person operating or driving a vehicle of any character on a public highway of this state shall drive it in a careful and prudent manner so as not to unduly or unreasonably endanger the life, limb, property, or other rights of a person entitled to the use of the street or highway.
“INSTRUCTION NO. 20
“A Montana statute provides that every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.
“Notwithstanding the foregoing provision, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary.
“INSTRUCTION NO. 22
“It is the duty of every person using a public street or highway, whether as a pedestrian or as a driver of a vehicle, to exercise ordinary care at all times to avoid placing himself or others in danger and to use like care to avoid an accident from which an injury might result.”

In addition, Smith’s counsel requested the District Court to give the following instruction:

“A Montana statute provides that a driver of a vehicle shall drive at an appropriate reduced speed when a special hazard exists with respect to pedestrians.”

The proposed instruction is based upon Section 61-8-303(5), MCA.

The District Court denied the proposed instruction on two grounds: (1) that the statute does not apply to pedestrians not in a crosswalk; and, (2) under the evidence of the case, the driver, prior to the accident, did not perceive any special hazard with respect to a pedestrian. However, the statute applies to all pedestrians, whether or not in a crosswalk, and the second reason given by the district judge was an issue for determination by the jury.

Although the other instructions given by the District Court relate to the several duties between a driver and a pedestrian on a public highway, none of those instructions told the jury that when a special hazard exists with respect to a pedestrian, the driver must reduce his speed. This was an important part of the theory of the plaintiff in this case. It is reversible error to refuse to instruct on an important part of a party’s theory of a case. Northwestern Union Trust Company v. Worm (Mont. 1983), 204 Mont. 184, 663 P.2d 325, 327, 40 St.Rep. 758, 761.

INSTRUCTIONS RELATING TO THE DUTY OF PLACING FLARES OR OTHER WARNINGS BY DISABLED VEHICLES

The District Court instructed the jury that Smith had a duty in this case to display two red flags upon the roadway in the lane of traffic occupied by his disabled vehicle, one at a distance of approximately 100 feet in advance of the vehicle; and one at approximately a distance of 100 feet to the rear of the vehicle. Section 61-9-412(4), MCA. Smith objects to the giving of this instruction upon the ground that since the truck behind the disabled vehicle was exhibiting its flashing emergency lights, there was no need for the flags to be placed behind the disabled vehicle. With this, we cannot agree. There is a statutory duty regarding warning flags placed upon drivers of disabled vehicles left upon the traveled portion of the highway, and defendant had the same right for instructions on her theory of the case as did the plaintiff, discussed foregoing.

ARGUMENT OF THE EFFECT OF COMPARATIVE NEGLIGENCE

Smith on appeal argues that the District Court erred in refusing to permit arguments by counsel to the jury as to the legal effect of comparative negligence, when the negligence of the plaintiff exceeds that of the defendant. Section 27-1-702, MCA.

The District Court did rule and admonish counsel that the court did not want any argument to the jury relating to the effect of varying percentages of fault that the jury may find as between the plaintiff and the defendant. Defendant did object to this ruling, but the objection was more pro forma than substantive.

No instructions on comparative negligence in this case were offered by the plaintiff or the defendant, or given by the court. Whether we accept Rorvik’s version — that Smith jumped into her path, or Smith’s version — that he was struck as he came from behind the loader into the highway area — it is obvious that comparative negligence was an issue, and that on remand, instructions on comparative negligence should be given to the jury.

Although no instructions were given to the jury on comparative negligence in this case, special verdict forms were submitted which indicated, by the composition of the questions, that if the jury found negligence on the part of Rorvik which contributed to plaintiff’s injuries, it must thereafter determine whether Smith was contributorily negligent, and then make a comparison of their negligence. However, the jury in this case determined that although Rorvik was negligent, her negligence was not a proximate cause of the injuries sustained by Smith. It is difficult to understand under the instructions given by the court how Rorvik could have been negligent and yet that negligence should not be a proximate cause of the injuries sustained by Smith. It is quite evident that the jury was confused by the concept of proximate cause because it sent four questions on that subject out to the District Court during the time the jury was deliberating on the case.

On retrial, the District Court should instruct the jury on comparative negligence in order that the jury may understand the effect of the related questions in the special verdict, if the jury should come to that. The District Court may not restrict argument of counsel as to the effect of findings under comparative negligence. Under Section 25-7-301(6), MCA, counsel in arguing the case to the jury, may argue and comment upon the law of the case as given in the instructions of the court, as well as the evidence of the case.

The judgment is reversed and the cause remanded for new trial.

MR. JUSTICES WEBER and McDONOUGH concur.

MR. JUSTICE GULBRANDSON,

specially concurring:

I concur with the result expressed in the majority opinion but I do not concur with all that is stated therein. I specifically do not concur with the comments that the verbatim questions to the investigating patrolman, and his answers thereto, constitute prejudicial error against the plaintiff. Although the questions may have been objectionable, no objection was made by plaintiff’s counsel to any of the questions. I would not treat the motion to strike the witness’s answer as an objection to the question asked.

MR. CHIEF JUSTICE TURNAGE joins in the foregoing concurrence of MR. JUSTICE GULBRANDSON.