text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MICHAEL HOWELL, Defendant and Appellant. In the MATTER OF MICHAEL HOWELL, Petitioner, v. HENRY RISLEY, Warden, Montana State Prison, Respondent.
    Nos. 85-293, 85-399.
    Submitted on Briefs April 4, 1986.
    Decided June 19, 1986.
    720 P.2d 1174.

      Thomas Alan Kragh, Poison, for defendant and appellant.
    Mike Greely, Atty. Gen., Joe R. Roberts, Asst. Atty. Gen., Helena, Claude Burlingame, Co. Atty., Thompson Falls, for plaintiff and respondent.
   OPINION AND ORDER

MR. JUSTICE SHEEHY

Delivered the Opinion of the Court.

Michael Howell petitioned this Court for a writ of habeas corpus in Cause No. 85-399. Howell claims his imprisonment is unlawful because he was not provided a preliminary on-site hearing as required by Section 46-23-1101, MCA, and the due process clauses of the federal and state constitutions.

We remanded to the District Court of the Twentieth Judicial District, Sanders County, for an evidentiary hearing. We also stayed petitioner’s related appeal in Cause No. 85-293 until final judgment is entered on the writ of habeas corpus. The evidentiary hearing was held before the Hon. C. B. McNeil, who filed findings of fact and conclusions of law with this Court.

Michael Howell was convicted of four counts of aggravated assault in Sanders County District Court on January 19, 1984. He was given a 20 year suspended sentence, and placed on probation in Montana. In April, 1984, his probation was transferred to Sandpoint, Idaho, pursuant to the Uniform Act for Out-of-State Parolee Supervision in Section 46-23-1101, MCA, et seq.

On September 19, 1984, Howell assaulted his wife. Howell was arrested by the Sandpoint Police Department pursuant to an agent’s warrant issued by his Idaho probation officer charging him with violation of his probation. On September 21, 1984, Howell’s Idaho probation officer sent a Special Report to Montana which recommended Montana take immediate action to revoke probation and sentence Howell.

On September 25, the agent’s warrant was lifted and the Idaho deputy prosecuting attorney filed a charge against Howell for aggravated battery. On September 26, he was arraigned in Idaho for aggravated battery. Meanwhile, on October 1, 1984, Montana authorities filed a petition to revoke probation. On October 1, Howell was transported to the state line by Idaho authorities and retaken by Montana authorities. Upon his arrival in Montana, Howell’s Montana probation officer authorized a probation violation hold on Howell. The next day District Judge Wheelis issued a bench warrant for Howell’s arrest for probation violations. On October 23, he was arraigned for the probation violations. A hearing on the petition was held on January 22. It was adjourned until February 5 to secure the attendance of witnesses. On February 11, District Judge McNeil entered his findings of fact and conclusions of law. On March 12, Howell’s probation was revoked and he was sentenced to serve 20 years. After his probation was revoked in Montana, Idaho dropped the aggravated battery charges against Howell.

Petitioner contends he was denied due process because he was not given a preliminary hearing in Idaho before he was returned to Montana as required by Morrissey v. Brewer (1972), 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 and Gagnon v. Scarpelli (1973), 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656. He argues Section 46-23-1103, MCA, requires a probationer be given an on-site hearing before he is returned to the sending state, and that the failure to do so means he should be reinstated on parole. The State distinguishes Morrissey and argues that Howell was accorded fundamental fairness.

When Howell filed his petition for habeas corpus with this Court, we remanded the same to the District Court, Twentieth Judicial District, Sanders County, for hearing on the fact issues raised by the petitioner in his petition for habeas corpus relief. We requested the District Court to prepare and file its written findings of fact and recommendation for disposition of the petition. At the same time we denied petitioner’s motion for reasonable bail and stayed his appeal in Cause No. 85-293 until the further order of this Court.

The District Court held a hearing, and prepared findings of fact and a recommendation which it did return to us. It found facts substantially as we have reported in the foregoing recitation.

The District Court recommended that we deny the petition for habeas corpus. It based its recommendation principally upon the provision of Section 46-23-1102(3), MCA, which in effect provides that if Montana sends a person on probation or parole into another state and decides to retake that person to Montana the decision to retake is conclusive upon and not reviewable within the receiving state, in this case the State of Idaho.

Section 46-23-1102, MCA, is a part of the Uniform Act for Out-of-State Parolee Supervision contained in Sections 46-23-1101, -1106, inclusive MCA. That Act was adopted in this state in 1937. Since that time there have been at least three decisions in the United States Supreme Court which have an effect on the provision of Section 46-23-1102(3), MCA.

In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, the United States Supreme Court held that a parolee’s liberty involves significant values within the protection of the due process clause of the Fourteenth Amendment of the United States Constitution, and that termination of that liberty requires an informal hearing to give assurance that the finding of a parole violation is based on verified facts to support the revocation. In Morrissey, the Court decided that due process required a reasonably prompt and informal inquiry conducted by an impartial hearing officer near the place of the alleged parole violation or arrest to determine if there is reasonable ground to believe the arrested parolee had violated a parole condition. The Supreme Court said in Morrissey that minimum due process required a full hearing before a neutral and detached hearing body for which the parolee had been given written notice of the claim of violations of parole, disclosure of the evidence against him, an opportunity to be heard in person and to present witnesses and to confront and cross-examine adverse witnesses.

Following Morrissey, in Gagnon v. Scarpelli (1973), 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656, the Supreme Court repeated that due process mandates preliminary final revocation hearings in the case of a probationer on the same conditions as specified in Morrissey.

In Moody v. Daggett (1976), 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236, however, the Supreme Court decided that a parolee was not entitled to hearing on revocation when the parole violator warrant had not been executed but rather was issued at large and sent to the institution of his confinement as a “detainer.”

This Court held in Owens v. Risley (Mont. 1985), [217 Mont. 35,] 702 P.2d 1, 42 St.Rep. 1000, that Owens was not entitled to an on-site hearing in another state because one of the provisions of his parole was that he not leave Montana. Since Owens had left the State of Montana without permission, he had violated his parole by that fact, and was not entitled to any further hearing.

It is not necessary in this case to determine whether there is an irreconcilable conflict between United States Supreme Court decisions in Morrissey and Gagnon and the interstate compact provisions to which we have referred above. In any event, the purpose of the on-site preliminary hearing and the eventual full-blown hearing on revocation is to provide due process to the parolee, and to protect his liberty interest at the time. In this case, Howell did not have a liberty interest at the time of the proceedings against him for the revocation of his parole. He was at the time under arrest in Idaho by reason of a charge against him for assault. His transfer by the Idaho authorities to the Montana authorities while he was still under arrest did not deprive him of any liberty interest since his detention by the Idaho authorities was at all times lawful. The United States Court of Appeals for the Ninth Circuit has explained the meaning of Morrissey in Pierre v. Washington State Board of Prison Terms and Paroles (9th 1983), 699 F.2d 471. In that case, the Court of Appeals said:

“In Morrissey, the Supreme Court did not intend to lay down a rigid set of procedures to be followed ritualistically in every situation. Rather, it prescribed a general framework to guide future parole revocation proceedings in order to guarantee that parolees are not deprived of procedural due process. The themes of flexibility and informality run throughout Morrissey: ‘No interest would be served by formalism in this process; informality will not lessen the utility of this inquiry in reducing the risk of error.’ Id. [408 U.S.] at 487, 92 S.Ct. at 2603. ‘We have no thought to create an inflexible structure for parole revocation procedures.’ Id. at 490, 92 S.Ct. at 2604. ‘We cannot write a code of procedure .... Our task is limited to deciding the minimum requirements of due process.’ Id. at 488-489, 92 S.Ct. at 2603-2604. No formalistic set of procedures need be followed as long as the minimum due process requirements enunciated in Morrissey are met. Under the facts of Morrissey, the two-hearing requirement was just one way to satisfy minimum due process; it is not the only way in every case.”

699 F.2d at 473.

We hold therefore that Howell was not deprived of a liberty interest by the failure of the authorities to provide for him a preliminary or on-site hearing. We find in fact he was given a full hearing on the revocation of his parole, with the opportunity to meet the charges against him which constituted the reasons for the revocation of his parole, to cross-examine adverse witnesses, and to produce witnesses of his own. He has not been deprived of due process.

ACCORDINGLY, IT IS ORDERED:

That the petition of Michael Howell for habeas corpus relief in this cause is hereby denied; and the order of this Court on September 24, 1985, staying the appeal of Howell in Cause No. 85-293 is hereby vacated.

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


source: Caselaw Access Project

author: MR. JUSTICE GULBRANDSON MR. JUSTICES MORRISON, SHEEHY, and HUNT,

license: Public Domain

text:
    PAM DUNN, Claimant and Respondent, v. CHAMPION INTERNATIONAL CORP., a self-insured employer under Plan I, Employer/Defendant and Appellant.
    No. 85-354.
    Submitted Feb. 13, 1986.
    Decided June 19, 1986.
    720 P.2d 1186.

      Garlington, Lohn & Robinson, Bradley J. Luck argued, Missoula, for employer/defendant and appellant.
    Thomas C. Bulman argued, Missoula, for claimant and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Champion International (Champion), the self-insured employer, appeals a Workers’ Compensation Court order which awards to respondent Pam Dunn 200 weeks of permanent partial disability benefits at $99 a week. The determinative issue on appeal is whether there is substantial, credible evidence to support the lower court’s findings on respondent’s lost earnings capacity. We hold that there is no such evidence and, therefore, we reverse the lower court.

Since 1974 respondent has worked for Champion at its Bonner, Montana, plant. Respondent injured her right knee at work in May 1980 and Champion, admitting liability for her resulting condition, paid her temporary total disability benefits. Dr. Westbrook performed knee surgery on respondent in July 1980. Respondent returned to work in September 1980. She was found to have a 15% impairment rating of her right leg and Champion offered her 45 weeks of permanent partial disability benefits. Champion paid two weeks of these benefits to respondent at the maximum statutory rate of $99 per week.

In June 1981 respondent injured her left knee while working for Champion. Champion now accepts liability for the left knee injury. Dr. Wooley performed surgery on the left knee in October 1983. Respondent returned to work at Champion after healing from this operation. In August 1984 respondent filed a petition for a hearing before the Workers’ Compensation Court and a trial was held in November 1984. Respondent elected to seek disability benefits under 39-71-703, MCA, for her actual loss of earning capacity resulting from her injuries.

The Five Valley Panel, a group of four doctors, extensively examined respondent in October 1983 and issued a report on her condition. The Panel found that respondent suffered a 15% permanent partial impairment of her right leg (6% impairment of the whole woman) and no permanent partial impairment of the left knee. The Panel’s October 1984 report states that her “condition is expected to stabilize and not progress . . . Patient may continue to work as she is doing.” The report indicates the possibility of further deterioration of respondent’s knees.

Dr. Jacobson, a member of the Five Valley Panel, testified by deposition and agreed with the Panel’s evaluation of respondent’s knees. He stated that the Panel’s findings were unanimous; that no one could accurately forecast respondent’s future problems or condition with her knees; that there was no reason for respondent to modify her present employment if she could physically handle it; that twisting and carrying heavy objects probably could aggravate respondent’s knees but that simply standing probably would not affect them too much; that compared to the average person with normal knees, respondent stands a greater chance of future knee problems; and that he did not see any reason why respondent should not try to continue her present employment indefinitely if she could physically handle it and if she stayed away from bending and twisting.

Dr. Wooley also treated respondent for the injuries to her knees and he testified by deposition. Wooley agreed that the Five Valley Panel’s report was a “reasonably fair assessment” of respondent’s condition. He stated that respondent, due to her injuries and surgery, was now predisposed to arthritis of the knee; that “you would expect [her knees] to develop pain, spurring, joint narrowing . . .;” that she would be prone to developing more symptoms with degenerative change; and that her right knee will likely be a problem in the future. He examined respondent in August 1984 and, as of that time, he said she did reasonably well at work and was not having any significant problems, except with one job requiring a lot of twisting and pivoting on her knees. He stated that she was able to handle all of the other jobs at work and that he believed she could probably still serve a very useful purpose at Champion. Dr. Wooley agreed that no one could accurately forecast what, when or if specific problems will occur with respondent’s knees.

Shortly before trial, respondent advanced at the mill from a utility millworker to a panel patch operator. After her injuries, respondent earned more money at the mill than she had before the injury. As a utility millworker, respondent was trained for, and filled in at, several other mill job positions. She stated that her knees do not feel normal and that, depending on what she does at work, she suffers pain ranging from an ache to severe pain in her knees after work. Respondent stated that her new job causes pain ranging from an ache to severe pain from standing for eight hours. She stated that she was able, after her surgery, to handle her present position at the mill and also her prior position of utility millworker. As a result of on the job training while she was a utility millworker, respondent stated that after her injury she could handle other jobs at the mill; specifically, the dryer feeder, veneer plugger, individual defect router, off bearer and size line feeder. She stated that she can sometimes handle the edge scraper position. Respondent stated that, “I am versatile enough that if they are short of people . . . they will send me where they need me.” She was earning $10.51 an hour at the time of the hearing and had been earning $10.18 an hour in her previous position. She stated that “they seem satisfied with my work” and conceded that Dr. Westbrook gave her an unconditional work release in 1980 after the surgery on her right (worst) knee.

Norm Johnson, a Job Service counselor with 12 Vi years’ experience with the Job Service, also testified by deposition. He had interviewed respondent and he testified mainly to establish the actual loss of earning capacity which respondent had suffered. Johnson stated that employers tend to hire people without prior injuries to cut down absenteeism and to lower insurance costs. He felt that respondent’s injuries were going to cause her problems performing her millworker job; i.e., being fast enough to perform her job and doing her job in a satisfactory manner. Johnson stated that he would not consider respondent for a millworker position after 1977 because it would cause a steady deterioration in her knees. He conceded that he knew nothing of the physical requirements for some of the jobs at the mill. He stated that if respondent had been required after her injuries to seek employment in another vocational area, she could have worked as a clerk (sales, payroll, production, accountant clerk, receptionist), a salesperson, secretary and a typist. He stated that in 1977, after her injuries, respondent’s probable earnings would have been $2.50-$3.00 an hour (compared to her actual earnings of $6.31/ hr.); in 1980, $3.50-4.00/hr. (actual $8.38); in 1981, $3.75 -$4.25/hr. (actual $9.13); in 1982, $4.00-$4.50/hr. (actual $9.83); in 1983, $4.25-$4.75/hr. (actual $9.83). The lower court adopted these figures and found that, just after her injury, respondent could earn $3.75/hr. (although she has earned at least $8-9/hr. for the last four years since her injury).

On cross-examination Johnson conceded that his was not an exhaustive list of all the jobs respondent could handle during these periods. He conceded that there were other jobs requiring some, but not extensive, training which respondent could physically handle. He agreed that the pay differential he testified to might be different if these other jobs were included. Johnson admitted that he only considered the jobs respondent held pre-1974 (before she started work for Champion) and added one position, computer clerk, she had had vocational training for. He based his wage differentials on these jobs. Johnson stated that he did not include millworking positions in the list of possible jobs for respondent after her injuries because, “I believe that she may have been able to obtain these types of work, but I believe that she should not have considered those types of work.” Johnson agreed that there are a number of jobs at the Champion Bonner facility that respondent is presently qualified for and can handle physically on a full-time basis. He thought she might not be able to handle them in the future.

Paul Van Gordon, a labor relations manager for Champion, also testified by deposition. He established that he had extensive knowledge of the physical and other requirements of the job positions at the Bonner plant. He testified that respondent could fully perform her job position at the Bonner mill, that she was an excellent employee, that she had no attendance problem (four to five absences a year), and that she had very high seniority in her job. He stated that there were seven different job positions which respondent can adequately handle and that there were similar positions in other mills in the Missoula area. He stated that within a 50 mile radius of Missoula there were 1,500 to 2,000 similar mill positions which respondent could handle with her experience and physical condition. He deemed respondent very employable.

The Workers’ Compensation Court filed its decision in June 1985. The court found that “[i]f claimant should be required to seek work in another area secondary to a knee deterioration and subsequent disability,” she could work at the clerical, secretarial and typing positions enumerated by Norm Johnson of the Job Service. He found that if claimant had been forced to quit working at Champion in 1980 because of her knee disability, she could have earned $3.50-$4.00 an hour. The court stated that it relied upon Johnson who “was qualified to state what the claimant’s earning capacity would be should she become unable to continue in her present position secondary to a” knee deterioration. (Emphasis added.) The court found that respondent had a diminution in her hourly earning capacity of $4.63, based on her actual earnings of $8.38/hr. (in May 1980 at the time of her injury) minus $3.75/hr. (her wage capacity after the injury). After the injury, respondent went back to her old job at $8-$9 an hour. Based on the diminution computation, the Court awarded respondent 200 weeks of permanent partial disability benefits at the statutory maximum of $99 a week. Champion appeals.

The only issue is whether there is substantial, credible evidence to support the lower court’s findings on respondent’s lost earning capacity. This Court will not overturn a decision of the Workers’ Compensation Court where there is substantial evidence to support the findings of the lower court. Keene v. Anaconda Co. (1982), 201 Mont. 102, 652 P.2d 216; Shupert v. Anaconda Aluminum Co. (Mont. 1985), [215 Mont. 182,] 696 P.2d 436, 42 St.Rep. 277.

The only evidence which supports the disputed finding (that respondent suffered a severe loss of earning capacity) is the deposition testimony of Norm Johnson, the Job Service counselor. As a result, this Court’s function on review is somewhat different from that in most cases. We have repeatedly stated:

“Ordinarily, this Court will not substitute its judgment for that of the Workers’ Compensation Court in determining the weight and credibility to be given testimony. The reason for this is that this Court defers to the lower court’s assessment of the demeanor and credibility of witnesses. Rule 52(a), M.R.Civ.P. However, when the critical evidence, particularly medical evidence, is entered by deposition, we have held that ‘this Court, although sitting in review, is in as good a position as the Workers’ Compensation Court to judge the weight to be given to such record testimony, as distinguished from oral testimony, where the trial court actually observes the character and demeanor of the witness on the stand.’ ” (Citations omitted). Shupert, 696 P.2d at 439. This rule is applicable to Johnson’s testimony.

Montana law allows partially disabled workers to choose between two types of permanent partial disability benefits. Such a worker can elect benefits under Section 39-71-703, MCA, for actual loss of earning capacity or indemnity benefits under Section 39-71-705, - 708 for possible prospective loss in earning capacity. McDanold v. B.N. Transport, Inc. (Mont. 1984), [208 Mont. 470,] 679 P.2d 1188, 41 St.Rep. 472. In the case at bar, respondent elected to seek benefits based upon her actual loss of earning capacity. This test for loss of earning capacity

“is not whether there has been a loss of earnings or income caused by the injury, but rather has there been a loss of earning capacity — a loss of ability to earn in the open labor market.”

Fermo v. Superline Products (1978), 175 Mont. 345, 348, 574 P.2d 251, 253; Shaffer v. Midland Empire Packing Co. (1953), 127 Mont. 211, 213, 259 P.2d 340, 342.

As can be seen from the recent case of Hafer v. Anaconda Aluminum Co. (Mont. 1984), [211 Mont. 79,] 684 P.2d 1114, 41 St.Rep. 1403, it is possible under this test for a worker to earn more after his injury and still collect disability benefits for loss of earning capacity. In Hafer, the claimant earned more after his injury than before and yet we found that he had suffered a 40% loss of earning capacity.

In the instant case, the lower court found that respondent had suffered a substantial loss of earning capacity. The court found that respondent could earn only $3.50-$4.00 per hour in 1980 after her injury. This finding corresponds exactly to the wage testimony of Norm Johnson, the Job Service counselor. In fact, Johnson’s testimony is the only evidence which supports the court’s finding of lost earning capacity. Johnson stated that if respondent had been forced to seek employment after her injuries, she could only work in clerical, sales and secretarial positions. He later added that he considered a computer data entry position for respondent when calculating her lost earning capacity. Johnson refused to consider respondent for any post-injury millworking positions in calculating her lost earning capacity. He felt such positions might cause deterioration of her knees and that she should not consider those positions. Johnson’s testimony provides some evidence to support the court’s finding of lost earning capacity. The determinative question here is whether his testimony constitutes the substantial, credible evidence required to uphold the lower court’s finding of a drastic loss of earning capacity. We hold that it does not.

Initially, we note that respondent did testify that she had pain in her knees after working. This testimony may support a finding of some, slight loss of earning capacity. However, in our view her pain does not support the finding of a drastic loss of earning capacity, especially given her admissions that she could handle a number of millworking positions.

The court’s finding of lost earning capacity is based upon Johnson’s list (hereinafter “post-injury job list”) of jobs respondent could work at after her injury. However, Johnson admitted the list was not meant to be exhaustive. He further admitted that he only listed those jobs respondent worked at prior to working for Champion, plus one job (computer data entry) she had training for. The test for lost earning capacity, however, requires an analysis of earning ability in the open labor market. Johnson, by so limiting his post-injury job list, was not considering the open labor market. In this vein, Johnson conceded that he did not conduct any vocational testing of respondent.

Furthermore, Johnson’s testimony is not credible insofar as he excluded any millworking positions from the post-injury job list. He admitted that he did not know the specific physical requirements of many millworker positions which respondent herself stated she could physically handle. And yet Johnson refused to consider respondent for those positions after her injuries. Johnson agreed that respondent could physically handle many of the millworking positions. He also agreed that there were a number of mill positions requiring very little physical activity. He conceded that there were several other Montana plywood plants with similar positions requiring little physical activity. These facts support a conclusion that the post-injury job list should have included millworking positions.

Further, Johnson’s refusal to consider mill positions for the post-injury job list runs contra to all the other evidence admitted. The other witnesses, specifically respondent, Dr. Jacobson, Dr. Wooley and Paul Van Gordon, were eminently more qualified to testify on respondent’s ability to handle mill positions after her injury. Respondent stated that she could handle seven or eight different kinds of jobs at the Champion mill after her injury and up until the present time. In fact, she has been working at the mill since her injuries and earns more than before her accidents. Both doctors that testified agreed that respondent could continue working at Champion if she could handle the jobs. Dr. Wooley testified that she could handle many of the jobs at the mill. Lastly, the Five Valley Panel’s medical report stated that respondent could continue working.

Van Gordon’s testimony bears on respondent’s ability to earn in an open labor market. He indicated that there are many (1,500 - 2,000) mill jobs near Missoula which respondent, with her experience, could physically handle. Both he and respondent agreed that Champion is satisfied with her work. Since respondent’s first knee injury in 1980, she has continued to work at the Champion Bonner plant earning from over $8.00 an hour in 1980 to over $10.00 an hour in 1984.

Based on the foregoing testimony of respondent, Dr. Wooley, Dr. Jacobson, and Paul Van Gordon, we conclude that in a post-injury, open labor market respondent would not be limited to those low paying jobs detailed by Johnson. The lower court should have included millworking positions in those jobs used to compute respondent’s earning capacity after her injury.

Moreover, it appears that the lower court relied upon the wrong grounds in awarding benefits to respondent. Respondent elected to seek benefits for her actual loss of earning capacity (under Section 39-71-703, MCA). Nevertheless, the court’s language clearly indicates that it awarded benefits for possible, future loss earning capacity. The court enumerated possible jobs for respondent if she “should be required to seek work in another area secondary to a knee deterioration and subsequent disability . . .” (Emphasis added.) The court found respondent could have earned $3.50 - $4.00 an hour if she had been forced to quit working at Champion due to her injury. Finally, the court relied on Johnson’s estimate of respondent’s earning capacity should she become unable to work at Champion secondary to a knee deterioration. The court was clearly anticipating respondent’s possible, future, lost income despite her choice of benefits for actual lost earning capacity.

We hold that substantial, credible evidence does not support the findings on lost earning capacity. We reverse the award of benefits and remand this case for a hearing on respondent’s lost earning capacity and the entry of an appropriate order.

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

MR. JUSTICES MORRISON, SHEEHY, and HUNT,

dissenting:

The majority has substituted its judgment for that of the Workers’ Compensation Court on a question of fact. We feel that the judge who heard the testimony is in a far better position than this Court to determine the weight to be given evidence offered by the employment expert.


author: MR. JUSTICE HUNT

text:
    In re the MARRIAGE OF CHARLES M. CRUIKSHANK, III, Petitioner and Appellant, v. SARAH K. CRUIKSHANK, Respondent and Respondent.
    No. 85-409.
    Submitted on Briefs Jan. 23, 1986.
    Decided June 19, 1986.
    Rehearing Denied July 29, 1986.
    720 P.2d 1191.

      Baiz & Olson, Kenneth R. Olson, Great Falls, for petitioner and appellant.
    Leaphart Law Firm, C.W. Leaphart, Helena, for respondent and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Charles Cruikshank appeals the order of the District Court of the Eighth Judicial District granting his former wife legal custody of the parties’ children and distributing the assets of the marital estate. We affirm the order of the District Court.

The appellant raises two issues on appeal:

1. Whether the District Court erred in granting Sarah Cruikshank legal custody of the parties’ minor children?

2. Whether the District Court erred in distributing the parties’ assets?

Charles and Sarah Cruikshank married in 1967. Together they bought a home in New Orleans, Louisiana. The downpayment was made by Sarah’s family. Both parties were college educated and employed in sales. One child was born to the parties while they were in Louisiana. In 1972, they moved to Spokane, Washington, where Charles was employed by Sarah’s father and attended law school. Sarah stopped working outside the home. The proceeds of the sale of their New Orleans home were invested in a new home in Spokane. Another child was born in Spokane. Soon after Charles graduated from law school, Charles’ position with Sarah’s father was terminated. In 1976, the parties moved to Great Falls, Montana, where they bought another home and Charles began the practice of law. In 1976, Sarah’s father died leaving her property worth approximately $1 million. Charles, with other attorneys, represented his wife’s interest in defending her share of the distribution of her father’s estate against a challenge by another family member. The parties dissolved their marriage in May, 1984.

The first issue presented concerns the custody of the minor children. The only argument presented by Charles to support his request for joint custody is based in Montana’s policy favoring joint custody. Sarah responds that Montana policy favors, but does not mandate, joint custody. We find that the District Court carefully considered the best interests of the children and the recommendations of the children’s guardian ad litem before awarding sole custody to Sarah with reasonable visitation for Charles. Charles has attempted to supplement the record created at trial concerning custody, by filing an affidavit concerning the current residence of one of the children. We will not consider any material outside the record developed at trial. Sadler v. Hart (Mont. 1986), [220 Mont. 335,] 715 P.2d 50, 43 St.Rep. 434.

Secondly, Charles appeals the distribution of the marital assets made by the District Court. He complains that the District Court erred in not clearly identifying some of the property, in placing values on some of the assets and in not weighing more heavily his contribution to the creation and maintenance of the marital assets.

We recently explained:

“It is well established that the District Court has wide discretion in equitably dividing property and its judgment will not be altered on appeal unless a clear abuse of discretion is shown.”

In re Marriage of White (Mont. 1985), [218 Mont. 343,] 708 P.2d 267, 268, 42 St.Rep. 1634, 1635.

“This Court recognizes that the trial court must evidence the basis of its ultimate conclusion and findings of fact. However, the statutory guidelines promulgated in Section 40-4-202, MCA, were not designed as requisite criteria to be individually itemized in every property distribution decree.”

In re Marriage of Ziegler (Mont. 1985), [215 Mont. 208,] 696 P.2d 983, 987, 42 St.Rep. 298, 302.

The evidence in the record is sufficient to support the findings upon which the District Court based the division of property. Those findings also indicate the court considered the relevant statutory factors. The evidence clearly supports the finding that both parties contributed to the equity in their residence in Great Palls, but that the other real property in the marital estate was derived from Sarah’s devise under her father’s will. There is no evidence in the record mandating a finding by the court that Charles’ representation of his wife’s interest in the controversy over distribution of her father’s estate significantly increased her share. The District Court’s determination that Sarah’s devise should be considered a gift to Sarah is supported by sufficient credible evidence in the record. This property should remain in her hands. In re Marriage of Herron (1980), 186 Mont. 396, 608 P.2d 97.

Furthermore, the District Court determined from the evidence that Sarah had paid all the payments on real property owned by the parties; paid all the family’s expenses since 1976 except for some groceries paid for by Charles; and even loaned her husband the purchase price of the computer used in his law office. These findings adequately support the order of the District Court in awarding most of the real property and household contents to Sarah. Therefore, we believe the District Court adequately considered the contributions of both parties in acquiring and maintaining their properties.

Finally, the District Court heard evidence from three experts concerning the value of silver flatware and jewelry owned by the parties. From this evidence the District Court determined the reasonable value of those assets. Because most of the silver and jewelry was left to Sarah by her parents or bought with money from her devise, the District Court properly awarded most of these items to Sarah. Charles received those pieces of jewelry he had bought as gifts for Sarah.

Although under the District Court’s distribution of the marital estate, Sarah received a much greater proportion than Charles, the equity of this distribution is supported by the facts. Myers v. Myers (Mont. 1984), [210 Mont. 173,] 682 P.2d 718, 41 St.Rep. 990. The order of the District Court is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES MORRISON, WEBER and GULBRANDSON concur.


author: MR. CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, DEPARTMENT OF REVENUE, Plaintiff and Respondent, v. TONY NEAL HUBBARD, Defendant and Appellant.
    No. 85-526.
    Submitted on Briefs April 4, 1986.
    Decided June 19, 1986.
    720 P.2d 1177.

      Datsopoulos, MacDonald & Lind, David B. Cotner, Missoula, for defendant and appellant.
    John M. McRae, Dept, of Revenue-Child Support Div., Missoula, John C. Koch, Dept, of Revenue-Child Support, Great Falls, for plaintiff and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The Department of Revenue (Department) is seeking to recoup funds paid by the State to support appellant’s two children. The action was originally brought by the Department pursuant Sections 40-5-221 and 53-4-248, MCA, in the Fourth Judicial District, Missoula County. The case is before us on appeal from the District Court’s order granting the Department’s motion for summary judgment.

We affirm.

Appellant’s arguments raise the following issues:

1. Whether the prior dissolution and custody decrees relieved appellant of his child support obligation.

2. Whether the State is barred from recoupment by laches or waiver.

3. Whether the State is precluded from recoupment because it extended benefits without obtaining the ex-wife’s cooperation.

4. Whether the State is barred from seeking an ongoing child support order by the limitations period in Section 40-4-208(2)(a), MCA.

Appellant also raises an issue of collateral estoppel. Our holding on the first issues makes consideration of this issue unnecessary.

Appellant and his ex-wife were married and parented two children. Their marriage, however, was dissolved by the Missoula County District Court in April 1976. The dissolution decree contains the following reservation of issues:

“That the court shall decide the determination of permanent custody of the children, support and visitation of the minor children, support and maintenance of petitioner, equitable determination of property rights, and financing arrangements including attorney’s fees and costs, at a later date.”

The issue of custody was decided after hearing in an order issued in October 1977. A separate visitation order was issued in December 1977. None of the other issues reserved in the dissolution decree are referred to in the orders.

The ex-wife applied for and received AFDC assistance for the two children in 1975 and 1976 and 1980 through 1985. She received $1,628 in 1975 and 1976, $6,650 between August 1980 and June 1984, and $1,317 between July 1984 and April 1985. In the meantime appellant’s earnings as reported on his tax returns have been as follows: 1976 — $11,046; 1977 — $14,256; 1978 — $20,769; 1979 unknown; 1980 — $25,535; 1981 — $27,008; 1982 — $27,145; and 1983 — $30,604.

In July 1984, the Department brought this action pursuant to Sections 53-4-248 and 40-5-221, MCA, to recover the assistance paid since 1980. The Department did not seek repayment of the aid paid in 1975 and 1976 because that aid was prior to the dissolution decree. The Department also requested the District Court to determine and order an ongoing support obligation for appellant. Both parties moved for summary judgment. The important facts were stipulated to. The District Court granted the Department’s motion holding that appellant was obligated to reimburse the State and that ongoing support payments by appellant could now be ordered. The District Court granted the motion for summary judgment and entered judgment against appellant for the amount of $7,967. In its opinion, the District Court held that the Department could seek an ongoing support order but did not set the amount. This appeal ensued.

I

Appellant’s primary argument centers on the fact that the District Court’s prior dissolution and custody decree do not set support payments. He points to Sections 53-4-248 and 40-5-221, MCA, which limit the amount of assistance the State can recover to child support payments provided for in a prior court decree or order. He then argues that since the prior decrees did not set child support, his support obligation by the decrees was zero and the State cannot recover anything from him. We disagree.

The dissolution decree does not set specific support payments, but does refer to child support in a provision that reserves the issue for a later date. However, the subsequent orders make no mention of child support. Appellant argues that this absence of a child support provision means the court relieved him of his support obligation. We considered a similar argument in Murphy v. Murphy (1958), 134 Mont. 594, 335 P.2d 296. In Murphy, 335 P.2d at 297, we held that a custody decree that was silent on child support did not relieve a father of his legal and moral obligation to support his children. Appellant has attempted to distinguish Murphy from the instant case. The distinction is, appellant argues, that in Murphy evidence on the support issue was not presented to the court, whereas here the support issue was presented to the court. We have reviewed Murphy and cannot find this distinction. The opinion in Murphy shows that the support issue was brought to the court’s attention prior to its issuance of the disputed decree. Murphy, 335 P.2d at 297. As such, Murphy is directly applicable. We hold that the appellant’s legal and moral child support obligation was neither relieved nor determined by the prior dissolution and child custody decrees. Therefore, appellant is obligated under Sections 53-4-248 and 40-5-221, MCA, to repay the State for assistance it has paid in support of the children.

II

Appellant then argues that the State is precluded from the recoupment by the equitable doctrines of laches and waiver. These arguments also fail.

In Fitzgerald v. Fitzgerald (Mont. 1980), 618 P.2d 867, 869, 37 St.Rep. 1350, 1353, we held that a husband “is not relieved of his past child support obligation by the doctrine of laches ...” Appellant argues that Fitzgerald is not applicable because that case involved court ordered child support, whereas the case at bar involves an obligation that was not court ordered. The distinction is illusory.

Whether or not a child support obligation is court ordered is irrelevant to the existence of the obligation. Child support is a social and moral obligation imposed by law without court action. See State ex rel. Lay v. District Court (1948), 122 Mont. 61, 198 P.2d 761, 767, cited with approval in Woolverton v. Woolverton (1976), 169 Mont. 490, 549 P.2d 458; see also In Re the Marriage of Hickey (Mont. 1984), [213 Mont. 38,] 689 P.2d 1222, 41 St.Rep. 1931. Whether or not court ordered, appellant here has an obligation of child support. By the rule in Fitzgerald, that obligation has not been relieved by laches.

In addition to laches appellant makes the related argument of waiver. Waiver requires a showing of intent to relinquish a right. See Mundt v. Mallon (1937), 106 Mont. 242, 248, 76 P.2d 326, 328; see also Farmers Elevator Co. of Reserve v. Anderson (1976), 170 Mont. 175, 180, 552 P.2d 63, 65. Appellant argues that an intent to relinquish was exhibited by failure to pursue support from appellant after repeated requests from the county. We can see no intent to relinquish rights in this inaction. The Department filed the action within the applicable statute of limitations. See Section 27-2-211(4), MCA. We hold that the State has not waived its right to recoup assistance.

III

The next argument raised by appellant against the State recoupment concerns a statutory and regulatory requirement that an applicant for AFDC assistance cooperate with the State in obtaining child support. See Section 40-5-204, MCA, and ARM Section 46-10.314. Appellant claims that the State did not obtain the ex-wife’s cooperation and therefore is not entitled to recoupment. The argument is without merit. First of all, the record is clear that the ex-wife’s cooperation is irrelevant to appellant’s obligation to his children, which remains whether or not the ex-wife cooperates.

IV

The final issue we will discuss concerns the District Court’s conclusion that the provision in the dissolution decree that reserved the issue of child support is modifiable upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable. This conclusion is based on Section 40-4-208, MCA, which allows for modification of support provisions. Appellant claims the dissolution decree is no longer subject to modification because of the limitations period in Section 40-4-208(2) (a), MCA, which provides:

“(2) (a) Whenever the decree proposed for modification does not contain provisions relating to maintenance or support, modification under subsection (1) may only be made within 2 years of the date of the decree.”

The Department also challenges the District Court’s modification conclusion. The Department believes Section 40-4-208, MCA, is not applicable to this action because it is seeking to establish, rather than modify, an ongoing support order. We agree with the Department.

The child support issue cannot now be modified because it was never determined. Child support was, however, reserved. As such, the Department is only attempting to get the District Court to determine an issue reserved in the dissolution decree. Therefore, Section 40-4-208, MCA, including the limitations period in Section 40-4-208(2)(a), MCA, is not applicable. The error of the District Court in suggesting the application of the modification statute, however, is harmless because the opinion leaves the Department with the option of seeking the establishment of an ongoing child support order.

The distinction between modification and establishment is important because of the burden of proof the Department would have to bear if its action was to modify an order. Modifications of support orders require a showing of changed circumstances that render the original terms unconscionable. Section 40-4-208(2)(b)(i), MCA. to establish support, on the other hand, only requires a showing of the amount necessary to support the child. Section 40-4-204, MCA. Thus, the burden of proof for modification is more difficult than for establishment. Since the Department is seeking to establish rather than modify support, it need not show the unconscionability of the original terms.

The order of the District Court granting summary judgment in favor of the Department is affirmed. We direct that future action by the Department to obtain an ongoing support order be considered an action to establish rather than modify a support decree.

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


author: MR. JUSTICE MORRISON

text:
    THOMAS LYTHGOE, Chuck Notbohm, Gary Lythgoe and Jeannie Lythgoe, Plaintiffs and Appellants, v. FIRST SECURITY BANK OF HELENA, Defendant and Respondent.
    No. 85-602.
    Submitted on Briefs April 24, 1986.
    Decided June 19, 1986.
    720 P.2d 1184.

      Peterson, Schofield & Leckie, V. Joe Leckie, Billings, for plaintiffs and appellants.
    Donald A. Garrity, Helena, for defendant and respondent.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Plaintiffs appeal the October 30, 1985, order of the First Judicial District Court dismissing their complaint because it was not prosecuted by the real party in interest as required by Rule 17(a), M.R.Civ.P. We affirm.

In December of 1982, defendant bank loaned $47,000 to Patrick and Joan Flaherty for the purpose of purchasing a restaurant in Helena, Montana, from plaintiffs Chuck and Betty Notbohm. Flahertys agreed to pay Notbohms $28,000 and assume a Small Business Administration loan of $62,000. Shortly thereafter, Thomas Lythgoe borrowed $15,000 from Gary and Jeannie Lythgoe, and invested those funds in the Flaherty’s restaurant. Each of the Lythgoes are named plaintiffs in this action.

In August of 1983, defendant accelerated the note due from Flahertys. The restaurant closed in October 1983, and pursuant to terms of the note and the security agreement between defendant and Flahertys, defendant sold the assets of the restaurant. Following closure of the restaurant, Flahertys were without means to pay debts owed to Notbohms and Thomas Lythgoe.

Lythgoes and Notbohms filed suit against defendant alleging interference with the contracts between Flahertys and plaintiffs, breach of implied contract with plaintiffs, and breach of the duty of good faith and fair dealing. Flahertys were not named as plaintiffs in the action.

Defendant responded to the complaint with a motion to dismiss pursuant to Rule 17(a), M.R.Civ.P., which requires that every action shall be prosecuted in the name of the real party in interest. Defendants contended Flahertys were the only party to the contract with defendant, and without Flahertys named as plaintiffs no action could be commenced. The District Court agreed Lythgoes and Notbohms were not the real parties in interest and by order dated October 30, 1985, granted defendant’s motion to dismiss. Plaintiffs appeal and raise the following issue:

Does plaintiffs' complaint set forth a cause of action upon which relief may be granted?

First, we must determine whether Lythgoes and Notbohms can rely on the contractual relationship between Bank and Flahertys. To state a cause of action, plaintiffs must show they are the real party in interest. Lefebure et.al. v. Baker et.al (1923), 69 Mont. 193, 220 P. 1111. Rule 17(a), M.R.Civ.P. requires that “Every action shall be prosecuted in the name of the real party in interest.” We agree with the District Court that plaintiffs in this action are not the real party in interest in so far as the Flaherty contract is concerned.

Plaintiffs’ complaint alleges defendant breached an implied contract between defendant and plaintiffs. Plaintiffs cite a letter from a vice president of the defendant bank addressed to Thomas Lythgoe as evidence of an implied contract. The letter reads in part: “The collateral securing your loan has been sold leaving an unpaid balance of $24,399.38 plus interest. A definite arrangement must be made for the orderly settlement of this debt.”

An implied contract is defined in Section 28-2-103, MCA, as “one the existence and terms of which are manifested by conduct.” The above letter reflects an attempt by defendant to collect a loan from Thomas Lythgoe; it does not establish the terms nor the existence of an implied contract between defendant and Lythgoe. Plaintiffs offer no other evidence. We agree with the District Court that there is insufficient evidence to raise the issue of breach of implied contract.

The next issue is whether defendant interfered with plaintiffs’ contract rights. Defendant accelerated the note due from Flahertys. Flahertys defaulted on the note, and defendant sold the assets of the restaurant. Subsequently, Flahertys were unable to pay the debts owed to plaintiffs. Plaintiffs allege defendant wrongfully accelerated the note due from Flahertys.

An essential element of an action for interference with contract rights is the intentional doing of a wrongful act without justification or excuse. Taylor v. Anaconda Federal Credit Union (1976), 170 Mont. 51, 550 P.2d 151. Plaintiffs have not alleged any facts supporting their allegation that defendant wrongfully accelerated Flaherty’s note. A statement of legal conclusion without any supporting facts is insufficient as a claim for relief. Meinecke v. McFarland (1949), 122 Mont. 515, 206 P.2d 1012. We find plaintiffs’ claim of interference with contract rights to be a mere conclusion of law and shows no entitlement to relief.

Finally, we find plaintiffs’ claim of defendant’s breach of the duty of good faith and fair dealing to be entirely without merit. The complaint contains no facts establishing defendant owed such a duty to plaintiffs.

The District Court was correct in dismissing the case. Affirmed.

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


text:
    FRANCES H. STAMM, Plaintiff and Respondent, v. PATRICIA ANN KEARNS KEHRER, the Estate of Iva Lea Orr, a protected person; Evelyn Orr Doran, et al., Defendants and Appellants
    No. 85-628.
    Submitted on Briefs May 9, 1986.
    Decided June 19, 1986.
    720 P.2d 1194.

      Schulz, Davis and Warren, John Warren, Dillon, for defendants and appellants.
    Max A. Hansen, Dillon, for plaintiff and respondent.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Defendants appeal the judgment of the Fifth Judicial District Court, Beaverhead County, declaring plaintiff to be the owner of a prescriptive easement and granting injunctive relief. We affirm.

Plaintiff Frances Stamm and defendant Patricia Kehrer are neighbors in Dillon, Montana. Mrs. Stamm resides at 22 East Orr Street and Mrs. Kehrer resides at 44 East Orr Street. The two lots are separated by an alley which serves as a driveway for Mrs. Stamm and for tenants of a duplex located on the corner of Mrs. Kehrer’s property. In 1982, Mrs. Kehrer commenced erecting a picket fence around her entire lot with a gate where the alley entered onto Orr Street and a gate in front of Mrs. Stamm’s garage. Although the alley is on Mrs. Kehrer’s property and the fence is located on the boundary of her lot, Mrs. Stamm filed suit claiming a prescriptive easement and requesting the portion of the fence interfering with her use of the alley be removed as a nuisance.

Mrs. Stamm moved into her present residence in 1925 with her husband. In about 1929, Mr. Stamm had a garage built on the rear end of their lot, accessible by means of the alley. The adjacent lot was owned by the Orr family until 1981, when it was sold to Mrs. Kehrer. The Orrs and the Stamms were on friendly terms throughout the time they were neighbors.

The Stamms used the alley daily for access to their garage, and regularly drove from the alley onto their lawn to wash their car or unload groceries by the back door. The portion of Stamms’ lot behind the garage was used for parking when they had visitors. The alley was also frequently used by the public until the late 1950’s when a cottonwood tree fell and blocked the way.

The Stamms never asked permission of the Orrs to use the area in question. Although the property boundary was about 8 feet west of the alley on the Stamms’ side, the Stamms maintained the lawn and shrubbery on the subject parcel of land. Additionally, the Stamms filled in potholes, sprinkled during the summer to keep the dust down, and occasionally hauled in gravel for surface material.

In 1975, the Orrs commenced construction of a snow fence around the rear portion of the Orr property with the intention of permanently closing the south end of the alley. When the workmen attempted to string the fence along the property boundary between the alley and the rear portion of Stamms’ lot, Mrs. Stamm objected. (Mr. Stamm died in 1974.) After discussing the matter, the snowfence was halted 20 feet south of Mrs. Stamm’s garage so she would have continued access to the portion of her lot behind the garage. There was no snow fence erected north of her garage on the parcel of land between the alley and Mrs. Stamm’s property line.

In 1981, the Orrs sold their property to Mrs. Kehrer. In 1982, Mrs. Kehrer removed the snow fence and began construction of a 6 foot high picket fence around the entirety of her lot. Over Mrs. Stamm’s objection, the fence was built along the boundary of her property with a gate to allow access to her garage and a gate at the alley’s entrance onto Orr Street, the fence closed off Mrs. Stamm’s access to the portion of her lot behind the garage, and prevented her from driving across her lawn to unload groceries at her back door.

Mrs. Stamm filed suit alleging a prescriptive easement and requesting the fence be removed for obstructing the enjoyment and use of her property. A temporary restraining order was subsequently issued enjoining Mrs. Kehrer from continuing construction of the fence and requiring removal of the portions of the fence which obstructed Mrs. Stamm’s access to her lot.

A bench trial was held on April 26, 1985. The District Court found that Mrs. Stamm and her predecessors in interest have openly, notoriously, adversely, exclusively, and continuously used the alley for a period of 60 years; that Mrs. Kehrer failed to rebut the presumption of adverse use by any showing that the use was permissive; that Mrs. Stamm was the owner of a prescriptive easement for ingress and egress to her property and Mrs. Kehrer was barred from obstructing such use. Mrs. Kehrer appeals the judgment and raises the following issues:

1) Whether the District Court’s decision declaring Mrs. Stamm to be the owner of a prescriptively acquired easement is clearly erroneous?

2) Assuming but not conceding that Mrs. Stamm owns an easement by prescription, do a fence and gates unreasonably interfere with Mrs. Stamm’s access or constitute a nuisance?

To establish a prescriptive easement, the claimant must show “open, notorious, exclusive, adverse, continuous and or interrupted use of the easement claimed for the full statutory period.” Scott v. Weinheimer, 140 Mont. 554, 560, 374 P.2d 91. The statutory period in Montana is 5 years pursuant to Section 70-19-401. Once the claimant establishes these elements adverse use is presumed and the burden of proof shifts to the owner to show that the use was permissive. Rathbun v. Robson (Mont. 1983), [203 Mont. 319,] 661 P.2d 850, 40 St.Rep. 475.

In the present case, the District Court concluded that Mrs. Kehrer failed to rebut the presumption of adversity by any showing that Mrs. Stamm’s use of the alley was permissive. On appeal, Mrs. Kehrer contends there is substantial evidence showing permissive use, and the District Court finding of a prescriptive easement is clearly erroneous.

At trial, testimony revealed that Mr. Stamm made an offer in 1951 to buy from the Orrs the tract of land between the alley and the Stamms’ property boundary. In 1975, Iva Lea Orr’s attorney allegedly sent a letter to Mrs. Stamm assuring her continued use of the alley but stating that such use was permissive. Mrs. Stamm testified she never received the letter, and District Judge Davis, who was her attorney at the time, testified that Mrs. Stamm had likely not received the letter or she would have gone to his office to discuss it.

Under Rule 52(a), M.R.Civ.P. the trial court’s findings shall not be set aside unless clearly erroneous. While Mrs. Kehrer did produce some evidence showing permissive use, we cannot say as a matter of law that the District Court erred in finding Mrs. Kehrer failed to rebut the presumption of adverse use. There is substantial credible evidence supporting the finding of a prescriptive easement. Mrs. Stamm prevented the erection of a snow fence 10 years ago over the area now in dispute, she has taken care of the lawn on her side of the alley for 60 years, and she has maintained the alley for the same period.

The next issue we address is whether the fence constitutes a nuisance and interferes with Mrs. Stamm’s access to her property. We agree with the District Court that the fence interferes with access to Mrs. Stamm’s property and is a private nuisance. In the recent case of Flynn v. Siren (Mont. 1986), [219 Mont. 359,] 711 P.2d 1371, 43 St.Rep. 10, this Court held that easement interference had occurred where the placing of gates and locked chains across a right of way obstructed passage of farm machinery and turned away potential business clients. Although Flynn involved a reserved easement, the general rule for easement interference as set forth in Flynn is applicable to the case at bar.

“The owner of a reserved easement may use it to the full use of the right retained. The owner of the servient tenement may make use of the land in any lawful manner that he chooses, which use is not inconsistent with and does not interfere with the use and right reserved to the dominant tenement or estate.”

711 P.2d 1372, 43 St.Rep. 12.

Mrs. Kehrer contends no easement interference has occurred because the gates have never been locked and only on rare occasions have they been closed. We do not agree. Mrs. Stamm seeks to maintain access to her lawn, not just her garage, and the fence precludes such access. Further, Mrs. Stamm is an 84 year-old woman, and she testified that the gates were very difficult for her to maneuver.

Nuisance is defined in Section 27-30-101, MCA, in pertinent part as “Anything which is ... an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property . . .” The evidence in the record reveals Mrs. Stamm’s previous uses of her property would be restricted by the placement of a fence along the property boundary and the gates are an obstruction to her use of the alley.

The District Court is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, SHEEHY and GULBRANDSON concur.


author: MR. JUSTICE WEBER

text:
    In the Matter of UNFAIR LABOR PRACTICE NO. 38-80. JERRY T. KLUNDT, affiliated with Chauffeurs, Teamster, and Helpers Local Union #190, Petitioner and Appellant, v. STATE OF MONTANA, Board of Personnel Appeals, Montana State Department of Labor and Industry; City of Billings, Montana, Respondents and Respondents
    No. 86-02.
    Submitted on Briefs April 10, 1986.
    Decided June 19, 1986.
    720 P.2d 1181.

      Cate Law Firm, Brad L. Arndorfer, Billings, D. Patrick McKittrick, Great Falls, for petitioner and appellant.
    Daniel J. Stevenson, Dept, of Labor & Industry, Helena, K.D. Peterson, Peterson, Schofield & Leckie, Billings, for respondents and respondents.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

This appeal arises from Mr. Klundt’s charges of unfair labor practices. The administrative hearing officer’s recommendation that the charges be dismissed was adopted by the Board of Personnel Appeals (Board), and the Yellowstone County District Court affirmed the Board’s decision. We remand to District Court.

These issues are raised:

1. Were Mr. Klundt’s due process rights violated by the three year delay between the filing of his unfair labor practice charges and the administrative hearing on the charges; and did the District Court err in denying his application for leave to present additional evidence on this issue?

2. Is the Board’s decision denying Mr. Klundt’s claims supported by substantial credible evidence?

Mr. Klundt filed unfair labor practice (ULP) charges against his former employer, the City of Billings, in September 1980. In the charges, Mr. Klundt alleged that city officials took actions against him in March and April 1980 in retaliation for his union activity, that he was forced to quit his job in June 1980, and that the city would not rehire him in retaliation for filing the ULP charges. The City of Billings denied all charges.

In December 1983, a hearing officer for the Board held a hearing on Mr. Klundt’s ULP charges. The hearing officer issued a recommended order ruling against Mr. Klundt and dismissing his charges. Then, in November 1984, the full Board held an oral argument on Mr. Klundt’s challenge to the hearing examiner’s decision. The Board adopted the hearing examiner’s recommended order dismissing the complaint.

Mr. Klundt petitioned the Yellowstone County District Court for judicial review of the Board’s decision. He also applied to the District Court for leave to present additional evidence. The court denied that application, finding that he had ample opportunity to present the evidence he sought to present. In October 1985, the District Court affirmed the Board’s final order which denied Mr. Klundt’s claims. This appeal followed.

I

Were Mr. Klundt’s due process rights violated by the three year delay between the filing of his unfair labor practice charges and the administrative hearing on the charges; and did the District Court err in denying his application for leave to present additional evidence on this issue?

Mr. Klundt appeals the District Court’s determination that his right to due process was not violated by the delay between the time he filed his ULP charges and the time his hearing was held. In an earlier appeal by Mr. Klundt the Court considered this identical issue:

“Turning to appellant’s allegations against the Board, Klundt claims that from the time he filed his charges until a hearing was held, he made numerous written and oral demand to the Board for a hearing. The Board failed to set a hearing for 37 months. The Board repeatedly stated that Klundt’s charges had been put on hold at the request of the Union. Klundt alleges that this delay violated his due process rights under the state and federal constitutions.

“The District Court properly granted respondent Board’s motion for summary judgment. In Montana, the right to due process requires notice and an opportunity to be heard. (Citations omitted.) The requirements are the same whether dealing with an administrative agency or a court. Section 2-4-601, MCA, and section 2-4-612(1), MCA. In this case, the Board fulfilled the fundamental requirements of due process. Klundt received notice and was given an opportunity to be heard. The three-year delay is disturbing, but not fatal.” Klundt v. State, ex rel. Bd. of Person. App. (Mont. 1986), [219 Mont. 347,] 712 P.2d 776, 778-79, 43 St.Rep. 1, 3-4. Collateral estoppel bars the relitigation of an issue where the issue is identical to an issue previously decided, a final judgment as to the issue has been rendered, and the party against whom the claim is advanced remains the same or is a privy of the earlier party. Aetna Life and Cas. Ins. Co. v. Johnson (Mont. 1984), [207 Mont. 409,] 673 P.2d 1277, 1280-81, 41 St.Rep. 40, 43-44. We hold that Mr. Klundt is precluded from raising this issue.

Mr. Klundt also asked for leave to present additional evidence relating to his due process claim. The District Court denied that motion. Because the additional evidence was to relate to the due process claim, and because of our holding on that issue, we conclude that this question is moot.

II

Is the Board’s decision denying Mr. Klundt’s claims supported by substantial credible evidence?

Our standard of review is whether the factual findings are “clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.” Section 2-4-704(2)(e), MCA. This issue poses a real dilemma, because there is no transcript of the initial hearing where there was live testimony by actual witnesses. Mr. Klundt filed a motion to compel the transcript in District Court. The order which denied the transcript at the initial hearing stated:

“The Court recognizes that counsel for the Petitioner may not have been present at the initial hearings in this case. The Court notes, however, that the record that has been transmitted by the Board reveals that counsel for Petitioner was present at the appeal before the Board. Further, the brief that counsel filed in connection with that appeal demonstrates knowledge of the testimony presented to the hearing examiner. Counsel simply cannot now protest ignorance of the evidence presented at any stage of the proceedings below.

“Accordingly, the Petitioner’s Motion to Compel is GRANTED in part and DENIED in part: a certified copy of the transcript of the proceeding before the Board of Personnel Appeals, only, shall be ordered. The cost of this transcript shall be taxed to the Petitioner.” (Emphasis supplied)

By order, the District Court affirmed the Board. In its accompanying memorandum it stated the Court had carefully reviewed the entire case, including the complete administrative record of the Board. Apparently a tape of the hearing before the hearing examiner was available to the District Court.

However, on appeal, Mr. Klundt failed to designate the initial hearing as part of the record:

“The petitioner, JERRY T. KLUNDT, hereby designates the record on appeal as follows:

“1. The entire court file now held by the Clerk of Court of the above-entitled Court.

“The petitioner states that there was a court reporter at the hearing held in the above-entitled matter, but that such record contains only the arguments of counsel and is therefore unnecessary for the appeal before the Montana Supreme Court.”

Mr. Klundt asks this Court to review the evidence to determine if his union activities were the motivating factor in the reprisals against him, and also to determine if the reprisals would have taken place without his union activities. While Mr. Klundt did not specifically appeal from the order of the District Court refusing to order a transcript of the original hearing, the transcript is essential to any meaningful review of the evidence regarding his union activities and the purported reprisals. While all parties expend significant portions of their briefs arguing on the sufficiency of the evidence, we cannot consider any of these arguments in the absence of a transcript of the testimony at the original hearing.

As the record now exists before us, our only choice is to affirm the District Court. From the briefs of Mr. Klundt we are not able to determine if he desires the opportunity to purchase a transcript of the original proceeding and have that matter considered. We therefore conclude:

(1) This cause is remanded to the District Court. In the event that he desires to order and pay for a transcript of the hearing before the hearing examiner, Mr. Klundt shall appear before the District Court and make arrangements for the ordering and payment of the transcript. If he makes that election, the District Court shall examine the transcript when received and enter its further judgment on this issue.

(2) In the event that the attorney for Mr. Klundt shall fail to appear before the District Court and make the above described arrangements for the transcript of the hearing before the hearing examiner within 30 days from the date of this opinion, the judgment of the District Court is affirmed.

Remittitur shall now issue.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY and MORRISON concur.


author: MR. JUSTICE GULBRANDSON

text:
    MISSOULA RURAL FIRE DISTRICT, Missoula Rural Volunteer Firemen’s Association, and Van W. Tarr, Plaintiff and Appellants, v. MISSOULA COUNTY, Defendant and Respondent.
    No. 86-19.
    Submitted on Briefs March 6, 1986.
    Decided June 19, 1986.
    720 P.2d 1170.
    M. Richard Gebhardt, Ronan, for plaintiffs and appellants.
    Robert L. Deschamps, III, Co. Atty., Missoula, for defendant and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Plaintiffs, Van Tarr, the Missoula Rural Fire District, and the Missoula Rural Volunteer Fireman’s Association appeal a Missoula County District Court order granting summary judgment to respondent Missoula County. No facts are disputed and the sole issue on appeal is whether Section 7-33-2314, MCA, exempts volunteer firefighters from paying the general road tax authorized by Section 7-14-2501, MCA. We hold that there is no such exemption and, accordingly, we affirm.

Appellant Van Tarr is a volunteer firefighter for the Missoula Rural Fire District. He owns real property in Missoula Comity which is subject to ad valorem road taxes. In 1985 Tarr presented a claim to Missoula County requesting a refund of ad valorem road taxes paid by him since 1980. He based his claim on Section 7-33-2314, MCA, which provides:

“The officers and members of regularly organized unpaid fire companies and exempt firefighters are entitled to the following privileges and exemptions:

“(1) exemption from payment of poll tax, road tax, and head tax of every description;

“(2) exemption from military duty except in case of war, invasion, or insurrection.”

Tarr seeks an exemption from the Section 7-14-2501, MCA, tax. That statute, entitled General road tax authorized, allows each board of county commissioners to levy a general tax upon the taxable property in the county. All money collected under that section belongs to the county road fund.

Missoula County denied Tarr’s claim for a refund. In July 1985 Tarr, joined as a plaintiff by the Missoula Rural Fire District and the Missoula Rural Volunteer Firemen’s Association, filed a complaint in Missoula County District Court seeking a declaratory judgment exempting all qualified volunteer firefighters from road taxes in Missoula County. The complaint also sought a refund of the road taxes paid by those qualified volunteer firefighters.

The county filed an answer to the complaint alleging that the complaint failed to state a claim upon which relief could be granted. In October 1985 the county filed a motion for summary judgment. In December of that year the District Court issued its opinion and order granting the county’s motion for summary judgment. The District Court found the exemption statute, Section 7-33-2314, MCA, to be riddled with ambiguity. The court further found that the exemption statute referred to an archaic, fixed sum, per capita road tax previously codified at Section 2640, Political Code of 1895. The court denied that the exemption statute was intended to exempt firefighters from the ad valorem, property road tax now in existence. This appeal followed.

As stated the only issue is whether the District Court properly granted summary judgment in respondent's favor in ruling that certain firefighters have no exemption from the Section 7-14-2501, MCA, general road tax on property.

“The standard of review is clear. Summary judgment is only proper under Rule 56(c), M.R.Civ.P., where the record discloses that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.”

Mutual Service Cas. Ins. Co. v. McGehee (Mont. 1985), [219 Mont. 304,] 711 P.2d 826, 827, 42 St.Rep. 2038, 2039-40.

The statute at issue, Section 7-33-2314, MCA, provides certain volunteer firefighters with an “exemption from payment of poll tax, road tax, and head tax of every description . . .” This section was originally enacted in 1895. The road tax at that time was codified at Section 2640, Political Code of 1895, and provided:

“There must be levied and collected on all taxable property in the county not less than one mill nor more than two mills on the dollar for road purposes, also a special road tax of three dollars on each able-bodied man over the age of twenty-one years residing in each road district. Said special road tax shall be due and payable to the county assessor before July first, of each year, and the county assessor shall collect such special road tax on or before July first of each year in the manner provided by law for the collection of a poll tax. All special road taxes collected by him must be paid into the county treasury monthly, and placed to the credit of the road fund of the road district in which the same is collected.

“The county assessor shall, on or before the first day of July of each year, deliver or mail to each road supervisor a list of the names of all male persons in each supervisor’s road district who have failed to pay their special road tax for the year, and from whom, to the assessor's best knowledge and belief, said tax cannot be collected in cash.

“Any person whose special road tax is unpaid by July 1st of each year, and who has no property subject to seizure, or other means of paying cash, shall perform one day's labor of eight hours on the public highways or bridges at any reasonable time and place designated by the road supervisor.”

The poll tax was imposed by Section 3960, Political Code of 1895; “Every male inhabitant of this State over twenty-one and under sixty years of age, except paupers, insane persons, and Indians, not taxed, must annually pay a poll tax of two dollars.” This Court declared that poll tax unconstitutional in 1922 in State v. Gowdy (1922), 62 Mont. 119, 203 P. 1115.

The exemption statute also refers to a head tax, which at the time this statute was enacted was authorized by Section 4230, Political Code of 1895. That statute authorized counties to impose a $2 per capita tax to provide for the care and maintenance of the indigent, sick and poor. In 1967 the Montana Legislature amended that statute to eliminate the possibility of a per capita tax for the county poor fund.

In construing a statute, the intent of the legislature controls. Section 1-2-102, MCA; State v. Hubbard (Mont. 1982), [200 Mont. 106,] 649 P.2d 1331, 39 St.Rep. 1608.

“The intention of the legislature must first be determined from the plain meaning of the words used, and if interpretation of the statute can be so determined, the courts may not go further and apply any other means of interpretation. [Citations omitted.] Where . . . the language of the statute is plain, unambiguous, direct and certain, the statute speaks for itself and there is nothing left for the court to construe.” [Citation omitted.]

Hubbard, 649 P.2d at 1333.

The exemption statute at Section 7-33-2314, MCA, refers to two per capita taxes, Section 4230 and Section 3960 of the Political Code of 1895, which are no longer in existence. Consequently, we hold that the exemption statute is ambiguous, unclear and in need of statutory construction.

The 1889 Montana Constitution was in effect at the time that the exemption statute was passed. Article XII, Section 2 of the 1889 Constitution provided that:

“The property of the United States, the state, counties, cities, towns, school districts, municipal corporations and public libraries shall be exempt from taxation; and such other property as may be used exclusively for the agricultural and horticultural societies, for educational purposes, places for actual religious worship, hospitals and places of burial not used or held for private or corporate profit, institutions of purely public charity and evidences of debt secured by mortgages of record upon real or personal property in the state of Montana, may be exempt from taxation.”

In addressing this section of the Constitution, the Montana Supreme Court stated:

“While the language is permissive in form, it is prohibitory in effect. The Legislature may extend the exemption to the property enumerated, but it cannot go further or include any other. This is the construction uniformly placed upon such provisions, and is commanded by the rule of interpretation contained in the Constitution itself. Section 29, art. 3 ... All other property within the state is liable to taxation. Section 2498, Rev. Codes.

Cruse v. Fischl (1918), 55 Mont. 258, 263, 175 P. 878, 880. Furthermore, “[t]he section is to be strictly construed, and contains a description of all property which may be exempted from taxation.” Town of Cascade v. County of Cascade (1926), 75 Mont. 304, 308, 243 P. 806, 807.

The 1889 Constitution does not include firefighters’ property among those types of property which may be exempted from taxation. Thus, if the 1895 Legislature intended the exemption statute to exempt firefighters’ property from taxation, the statute would be unconstitutional under Cruse and Town of Cascade. We decline to conclude that the Legislature intended to pass an unconstitutional statute. “An interpretation that gives effect is always preferred over an interpretation that makes the statute void or treats the statute as mere surplusage.” American Linen Supply Co. v. Dept. of Revenue (Mont. 1980), 617 P.2d 131, 133, 37 St.Rep. 1707, 1709; citing Section 1-3-232, MCA.

The road tax in effect when the tax exemption statute was passed, Section 2640, Political Code of 1895, provided for a per capita road tax and a property (mill levy) road tax. We hold that the legislature intended the exemption statute to exempt firefighters from the per capita road tax and not from the property road tax. This interpretation gives effect to the statute and does not render it unconstitutional as would an interpretation exempting firefighters’ property.

Appellant contends that this Court should not consider respondent’s argument that the exemption statute could not apply to the per capita road tax because the exemption would violate the constitutional section quoted above. Appellant correctly states that respondent did not advance this argument at the District Court level. Although that may be true, this Court can properly consider the argument. “Where the conclusion of the District Court is correct, it is immaterial, for the purpose of affirmance on appeal, what reasons the District Court gives for its conclusion.” Norwest Bank Billings v. Murnion (Mont. 1984), [210 Mont. 417,] 684 P.2d 1067, 1071, 41 St.Rep. 1132, 1136; citing Bolz v. Myers (1982), 200 Mont. 286, 295-296, 651 P.2d 606, 611.

The rule in Montana is that “. . . every claim for exemption from taxation should be denied unless the exemption is granted so clearly as to leave no room for any fair doubt.” Buffalo Rapids Irr. Dist. v. Colleran (1929), 85 Mont. 466, 471, 279 P. 369, 370; quoting Cruse, 175 P. at 881. This rule supports our conclusion that appellant should be denied a tax exemption and that the exemption statute was meant to exempt firefighters from the 1895 per capita road tax and not the property road tax.

This conclusion is further supported by the fact that the other two taxes mentioned in the exemption statute, the poll tax and the head tax, are also per capita taxes. Thus, our holding conforms to the statutory scheme. For the above reasons, we affirm the District Court’s order granting summary judgment in respondent’s favor.

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


text:
    CINDY JO PLATT, by her guardians, CHARLES PLATT and Vivian Platt; Steven Platt and Corey Jo Platt, minors, by their guardians Charles Platt and Vivian Platt, Plaintiffs and Appellants, v. SEARS, ROEBUCK & CO., a New York corporation; The Muskin Corporation, a foreign corporation; Walter Fouty and Joan Fouty, Defendants and Respondents.
    No. 86-12.
    Submitted on Briefs March 28, 1986.
    Decided June 24, 1986.
    721 P.2d 336.

      P. Richard Meyer, Jackson, Wyo., Michael J. McKeon, Anaconda, French, Mercer, Grainey & Duckworth, Edward K. Duckworth, Ronan, for plaintiffs and appellants.
    Garlington, Lohn & Robinson, Wm. Evan Jones, Missoula, for Sears & Muskin.
    Worden, Thane & Haines, Jeremy G. Thane, Missoula, for Fouty.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Plaintiffs appeal from an order of the District Court of the Second Judicial District in and for Silver Bow County. The order granted defendants’ motion for a change of venue from Silver Bow County to Lake County pursuant to Section 25-2-201, MCA. We affirm.

The issue is whether venue was properly removed from Silver Bow County, where defendant Sears does business, to Lake County, where plaintiffs and defendants Fouty reside and where the accident occurred.

This action arose from injuries received by plaintiff Cindy Jo Platt when she dived into a swimming pool at the home of defendants Walter and Joan Fouty. The other two defendants, who allegedly designed, manufactured, marketed, and distributed the swimming pool, are foreign corporations. Plaintiffs filed suit in Silver Bow County. Defendants Walter and Joan Fouty and Sears moved for a change of venue to Lake County. After briefing and a hearing, defendants’ motions were granted. The court cited Section 25-2-201, MCA, which provides:

“When change of venue required. The court or judge must, on motion, change the place of trial in the following cases:

“(1) when the county designated in the complaint is not the proper county;

“(2) when there is reason to believe that an impartial trial cannot be had therein;

“(3) when the convenience of witnesses and the ends of justice would be promoted by the change.”

The court did not specify the subsection under which it ruled. At the hearing, arguments were presented under both subsections (1) and (3). In this appeal, the parties argue whether Silver Bow County is a proper county for venue.

“The most fundamental of all venue rules” is that venue is proper in the county in which the defendants reside. Section 25-2-118, MCA, annot., Evidence Commission Recommendations for Revisions. The Foutys are residents of Lake County. As foreign corporations, Sears and the Muskin Corporation have no Montana residence for purposes of venue. See Foley v. General Motors Corporation (1972), 159 Mont. 469, 472, 499 P.2d 774, 776.

This action sounds in contract and tort. The venue statutes for actions in contract and tort contain exceptions to the basic venue rule. Section 25-2-121, MCA, provides that an action upon a contract may properly be tried, as an alternative to the county of defendant’s residence, in the county where the contract was to be performed. A tort action is properly tried in the county of defendant’s residence or in the county where the tort was committed. Section 25-2-122, MCA. there have been no allegations here of any contract performance or tortious actions anywhere but in Lake County. Based on the above statutes the proper place of trial for this action remains in Lake County.

The plaintiffs base their position that Silver Bow County is a proper place of trial on Section 25-2-117, MCA:

“Multiple defendants. If there are two or more defendants in an action, a county that is a proper place of trial for any defendant is proper for all defendants, subject to the power of the court to order separate trials under Rule 42(b) of the Montana Rules of Civil Procedure. If an action with two or more defendants is brought in a county that is not a proper place of trial for any of the defendants, any defendant may make a motion for change of place of trial to any county which is a proper place of trial.”

In connection with that statute, plaintiffs cite the rule that a foreign corporation may be sued in any county. That rule is set out at Section 25-2-118(2), MCA:

“if none of the defendants reside in the state, the proper place of trial is any county the plaintiff designates in the complaint.”

As it clearly states, Section 25-2-118(2), MCA, only applies if none of the defendants reside in Montana. A long line of Montana cases has held that a foreign corporation may be sued in any county of the state. Foley, 499 P.2d at 776. Section 25-2-118 (2), MCA, does not change the rule. It limits the rule, however, to exclude cases in which Montana residents are also named as defendants. We conclude that when a foreign corporation is named as a defendant along with Montana residents, the rule that a foreign corporation may be sued in any county of the state does not apply, and venue is determined by using Montana’s other venue statutes. In this case, since the Fouty defendants are residents of Montana, venue is determined by the other venue statutes discussed above. The proper place of trial is Lake County.

Plaintiffs also raise an equal protection argument based on their contention that, under this Court’s decision in Bradley v. Valmont Industries, Inc. (Mont. 1985), [216 Mont. 505,] 701 P.2d 997, 42 St.Rep. 925, a Montana corporation resides in any county in which it does business. That is not the rule. A Montana corporation has only one residence, the county in which it has its principal place of business. Because the equal protection argument was based on the erroneous premise that a Montana corporation resides wherever it does business, we will not address it further.

Affirmed.

MR. JUSTICES HARRISON, MORRISON, SHEEHY and GULBRANDSON concur.

MR. CHIEF JUSTICE TURNAGE, deeming himself disqualified, did not participate in this decision.


text:
    In re the MARRIAGE OF EDWARD WILLIAM RYAN, Petitioner and Respondent, and T. JOANN RYAN, Respondent and Appellant.
    No. 86-29.
    Submitted on Briefs April 4, 1986.
    Decided June 20, 1986.
    720 P.2d 691.

      Parker, Sweeney & Healow, Kevin T. Sweeney, Billings, for respondent and appellant.
    Noel K. Larrivee, Missoula, for petitioner and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

The appellant Teresa “JoAnn” Ryan appeals the judgment of the Yellowstone County District Court awarding joint custody of the children born of her marriage to the respondent Edward William Ryan, and providing for the division of the marital property.

Affirmed.

Two issues are presented for our determination. These are:

1. Whether the District Court exceeded its jurisdiction and abused its discretion in granting joint custody of alternate weeks and providing that if either parent changed his or her residence from Billings the remaining parent would get sole custody during the school year while the departing parent would have custody reduced to the summer months when school was out; and

2. Whether the District Court abused its discretion by failing to immediately evaluate and divide the equity in the Billings home between the parties rather than waiting until the youngest child became eighteen or the mother moved from the house before the child’s eighteenth birthday.

The parties married in June, 1974. Two children were born, now aged three and five. Edward and JoAnn separated in July, 1983, and their marriage was dissolved by order of the District Court on June 4, 1985. In August, 1985, the parties litigated the remaining issues of child custody and the appropriate division of the equity in their Billings residence. The District Court awarded both parents joint legal custody, as well as joint physical custody of the minor children. The physical custody plan calls for the children to spend alternating weeks in each parent’s home. The plan, however, provides that should one parent leave Billings, the parent continuing to reside in the Billings area would gain physical custody of the children during the school year with the other parent having physical custody of the children during the summer months.

The court considered the stipulations between the parties including an agreement that both were fit parents, the recommendations of the Christian Conciliation Service of Montana, and recommendations of Dr. Ned N. Tranel about the appropriateness of joint physical custody. The court also considered JoAnn’s wishes to move from Billings to Anaconda, where she was raised, as well as the father's request to have the support payments reduced while the children were with him. The judge refused both requests saying that, “[u]nder the law, it is the best interest of the children which controls as to their custody, so that any maneuvering of parents to serve their own desires does not resolve the issue.”

Judicial determination of custody is based on the best interests of the children as expressed in Section 40-4-212, MCA. That section provides:

“The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including:

“(1) the wishes of the child’s parent or parents as to his custody;

“(2) the wishes of the child as to his custodian;

“(3) the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interest;

“(4) the child’s adjustment to his home, school, and community; and

“(5) the mental and physical health of all individuals involved.” Malcolm v. Malcolm (Mont. 1982), 196 Mont. 477, 640 P.2d 450, 451, 39 St.Rep. 262, 264.

The district judge considered custody proposals from each parent. The court took into account the provisions of the statute, the recommendations of the counseling services which the parties had consulted, and the testimony of Dr. Tranel of the Billings Child Study Center, all of whom recommended joint custody in some form. The court determined that the best interests of the children would be served by adopting the father’s proposal that he would have physical custody for one-half of each month, with the children living in his household every other week commencing on alternate Mondays and ending on the following Sunday. The mother would then have the children reside with her on the alternating weeks. If either parent leaves Billings, the remaining parent will have physical custody of the children.

The court said that the plan was structured to encourage the mother to remain in Billings in order for the children to have benefit of her participation in joint custody. The mother is to have the family home and the father is to pay $400 a month child support to assist the mother to make the house payments. The father proposed that the support payments be reduced while the children are in his household, but the court found from the evidence that the family home cannot be maintained and kept by the mother under reduced payments of child support. The court acknowledged that the proposal might not prove practical “but the best interest of the children require that the plan be given a try.” The District Court’s “decision will be presumed correct and will be upheld unless clear abuse of discretion is shown.” In re Marriage of Rolfe (Mont. 1985), [216 Mont. 39,] 699 P.2d 79, 82, 42 St.Rep. 623, 626. We can find no abuse of discretion in the court’s finding of what constituted the children’s best interests.

Secondly, JoAnn contends the District Court erred in failing to evaluate and divide the equity in the family home. The District Court found that because of the amount of child support contributions ordered to be made by the father, which allows the mother to keep and live in the home, he should share equally in the net proceeds of the sale of the home. The net proceeds are to be determined at the time of the sale rather than the date of dissolution of the marriage. The District Court has wide discretion in determining an equitable division of property pursuant to Section 40-4-202, MCA. The test is whether the court abused its discretion in making its order setting aside the family home for the mother. In re Marriage of Rolfe (Mont. 1985), [216 Mont. 39,] 699 P.2d 79, 42 St. Rep. 623. We hold that the court did not abuse its discretion.

The judgment of the District Court is affirmed.

MR. JUSTICES HARRISON, MORRISON, SHEEHY and WEBER concur.