text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JERRY L. HEFFERNAN, Defendant and Appellant.
    No. 90-460.
    Submitted on briefs Feb. 28, 1991.
    Decided Apr. 4, 1991.
    248 Mont. 67.
    809 P.2d 566.

      C.F. Mackay, Public Defender Project Office, Anaconda, for defendant and appellant.
    Marc Racicot, Atty. Gen., James Yellowtail, Asst. Atty. Gen., Helena, Christopher Miller, County Atty., Deer Lodge, for plaintiff and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

The District Court of Powell County found the defendant guilty of the crime of escape, a felony, in violation § 45-7-306, MCA. Defendant filed a motion to dismiss for lack of a speedy trial. The court denied the motion and this appeal followed. We affirm.

The sole issue for review is whether defendant was deprived of the right to a speedy trial.

On August 10, 1989, following an August 5 departure from the Montana State Prison, Heffeman was charged by Information with the offense of escape, in violation of § 45-7-306, MCA. Heffeman was arraigned on August 17, 1989, and pled not guilty. Thereafter, on October 16,1989, the State filed a motion to set a trial date and trial was scheduled for November 30,1989. The bench trial was continued until April 19, 1990, due to various delays which we discuss below. The bench trial was held on a set of stipulated facts which simply stated that Jerry Heffeman, defendant, escaped from the Montana State Prison on August 5,1989 and turned himself in, on the following day, to the Gallatin County Sheriff. Additional facts pertinent to the speedy trial issue before us are discussed below.

Following the bench trial, the court convicted Heffeman of escape and sentenced him to three years in prison, with one year suspended, and ordered the sentence to run consecutively with the term of the sentence Heffeman served at the time of his escape.

The sole issue before this Court is whether Heffeman was deprived of the right to a speedy trial.

As an introduction, any person accused of a crime is guaranteed the fundamental right to a speedy trial by the Sixth Amendment to the United States Constitution, which is made applicable to the States by the Fourteenth Amendment. State v. Chavez (1984), 213 Mont. 434, 691 P.2d 1365. Both parties recognize that the primary authority in any speedy trial analysis issue is Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. We have set out, in detail, the parameters of a proper speedy trial analysis under the Sixth Amendment, and the theoretical foundations of the four factor balancing approach of Barker, in State v. Curtis (1990), 241 Mont. 288, 299, 787 P.2d 306, 313 and State v. Hall (Mont. 1990), [244 Mont. 161,] 797 P.2d 183, 185-86, 47 St.Rep. 1501, 1504. In Montana, the four Barker factors which we must evaluate and balance, with consideration given to the conduct of the prosecution and the accused, respectively, when analyzing speedy trial issues, are:

1) length of delay;
2) reason for delay;
3) assertion of the right by the defendant; and
4) prejudice to the defendant.

Hall, 797 P.2d at 185-86. We shall now proceed directly to the outcome arrived at by simply applying, within defined parameters, the factors of the analytical framework set forth in Barker.

I

LENGTH OF DELAY

The first element, the length of the delay, is of primary importance. Our analysis comes to an abrupt halt if the length of the delay is not sufficiently long to trigger a presumption of prejudice. State v. Wiman (1989), 236 Mont. 180, 182, 769 P.2d 1200, 1201. On the other hand, if the length of the delay is presumptively prejudicial, then further inquiry is warranted. What length will be considered presumptively prejudicial depends on the facts of each individual case. The length of a delay which we will consider in any given case is directly proportional to the complexities of the case. State v. Harvey (1979), 184 Mont. 423, 434, 603 P.2d 661, 667. Barker, 407 U.S. at 530-31, 92 S.Ct. at 2192, 33 L.Ed.2d at 117. Proper calculation of the length of the delay, for purposes of determining whether the delay has created a presumption of prejudice, requires us to consider the total pretrial delay without separately considering the delay attributable to either party. Curtis, 241 Mont. at 299, 787 P.2d at 313.

Here, defendant was arrested and charged with the crime of escape. This was not a complex case. Defendant’s trial on his escape charge was delayed for a total of256 days from the date of his arrest on August 6, 1989, to the trial date on April 19, 1990. We find, and the parties agree, that this total delay of256 days between arrest and trial triggers a rebuttable presumption of prejudice. See State v. Palmer (1986), 223 Mont. 25, 27-8, 723 P.2d 956, 958 (256 days held sufficient to require further inquiry), and Hall, 797 P.2d at 187 (207 days held sufficient), and State v. Bartnes (1988), 234 Mont. 522, 528, 764 P.2d 1271, 1275 (175 days held sufficient); compare State v. Wiman (1989), 236 Mont. 180, 184, 769 P.2d 1200, 1203 (119 days of allocated delay held insufficient). Therefore, further inquiry into the remaining Barker factors is required. Furthermore, the State has the burden of rebutting the presumption by providing a reasonable explanation for the delay and showing that the defendant was not prejudiced.

II

REASONS FOR THE DELAY

Different weights must be assigned to different reasons for the delay. Barker, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117; Curtis, 241 Mont. at 302, 787 P.2d at 315. In considering the reasons for the 256-day delay, we shall allocate the delay by incorporating into this element arguments of how much delay is separately attributable to each party. Naturally, although it is not the case here, if the delay was entirely the cause of the defendant, then defendant’s speedy trial argument is without merit. State v. Wirtala (1988), 231 Mont. 264, 268, 752 P.2d 177, 180. The State contends that Heffernan is directly responsible for 140 days of the 256-day delay and asserts that it is only responsible for the remaining 116 days. Heffernan denies this and contends that the State must bear complete responsibility for the total delay. The State argues that 140 days of the delay for the time period from November 30, 1989, the initial trial date, until April 19,1990, the actual trial date, is attributable to Heffernan because he actively avoided trial during this period, citing Curtis, 241 Mont. at 301, 787 P.2d at 314.

The record indicates that Heffernan was arrested on August 6, 1989. The Powell County Attorney, Mr. Christopher G. Miller, filed an information on August 10, 1989, charging Heffernan with the crime of escape. On October 16, 1989, Mr. Miller moved the District Court to set the trial date. Heffeman’s case was initially set for trial on November 30, 1989. A November 30, 1989 entry in the District Court Journal, on page #180, states as follows:

“STATE OF MONTANA, Plaintiff -vs- GUS GARDNER, Defendant
“STATE OF MONTANA, Plaintiff -vs- JERRY L. HEFFERNAN, Defendant
“Public Defender Conde F. Mackay appears on the two above entitled companion cases and advises that defendant just yesterday rejected the plea bargaining in each case. In fact it is still not decided for certain if this case will go to trial as set for today. Court wonders if these cases could be tried together. Mr. Mackay will check on this. County Attorney Christopher G. Miller who is present representing the State moves to consolidate.”

The record shows that Heffernan rejected a prior negotiated plea agreement the day before trial. This tactic left the State with insufficient time to marshal its evidence for trial. Due to Heffeman’s actions in waiting the day before trial to reject the plea, which had already been negotiated and agreed upon, the State was forced to request a continuance. The trial was continued until March 26,1990. We shall call this 117-day delay, from November 30,1989 until March 26, 1990, “delay #1.” On March 26, 1990, due to a backlog of cases pending in the District Court, this case was continued until April 5, 1990. This 9-day institutional delay, from March 26, 1990 until April 5, 1990, shall be referred to as “delay #2.” The record reflects that, on the day before the April 5 trial, Heffernan filed a motion to dismiss for lack of a speedy trial, along with a motion for appointment of new counsel and a motion to sever his case from a companion case. On April 5, 1990, the District Court heard arguments pertaining to Heffernan’s motions and thereafter denied them on April 17, 1990. On April 19,1990, a bench trial was held on stipulated facts and the District Court found Heffernan guilty as charged. We shall call this final 14-day delay, from April 5 until April 19, “delay #3.”

We find that Heffernan is responsible only for delay #1, or 117 days of the 256 day delay, and the State is charged with the remaining 139 days Heffernan is responsible for delay #1 because he caused it by rejecting the prior negotiated plea agreement. This rejection forced a continuance of the trial. The record shows that, but for Heffernan’s rejection, the trial would have proceeded, as scheduled, on November 30,1989. Instead, the trial was continued until March 26,1990. Although the State requested the continuance, it was caused solely by Heffernan’s own actions and so the delay is chargeable to Heffernan, not the State. Conversely, delays #2 and #3 are chargeable to the State. These delays were institutional in nature, caused by circumstances over which Heffernan had no control, including trial preparation and a backlog of pending cases. “Delay inherent in the system is chargeable to the State” because the State bears the burden of bringing a defendant to trial. Harvey, 184 Mont. at 34, 603 P.2d at 667. For this reason, these delays, totaling 139 days, are chargeable to the State. The State asserts that delay #3 was caused by the motions which Heffernan made prior to the April 5, hearing and, thus, this delay should be charged against Heffernan. We disagree.

Considering that portion of the pretrial delay which is chargeable to the State, we note that the speedy trial is primarily designed to protect the accused from oppressive tactics of the prosecution. Barker, 407 U.S. at 529, 92 S.Ct. at 2191, 33 L.Ed.2d at 116. The question is whether the “prosecution was pursued with reasonable diligence” during that time of delay for which the State was charged. State v. Grant (1987), 227 Mont. 181, 185, 738 P.2d 106, 109. “The essential ingredient is orderly expedition and not mere speed.” United States v. Marion (1991), 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468, 474 (citing Smith v. United States (1959), 360 U.S. 1, 79 S.Ct. 991, 3 L.Ed.2d 1041). Vacation of the District Court’s order would be required if it were shown that, “the pre-indictment delay in this case caused substantial prejudice to appellant’s] rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused.” Marion, 404 U.S. at 324,92 S.Ct. at 465, 30 L.Ed.2d at 481. The 139-day delay attributable to the State was not caused by oppressive tactics by the State. There is no showing by Heffernan that the State intentionally delayed to gain some tactical advantage over Heffernan or to harass him. We find that the reason for the State’s 139-day delay was that such delays are inherent in the system and, thus, institutional in nature. We point out that institutional delays, such as these, weigh less heavily against the State in the Barker balancing process than intentional delays resulting from oppressive tactics. State v. Palmer (1986), 223 Mont. 25, 28, 723 P.2d 956, 959. With this in mind, our next task is to balance the other Barker factors against the harm caused by the inherent and institutional nature of the 139-day delay.

Ill

ASSERTION OF THE RIGHT

We find, and the State concedes, that Heffernan satisfied the third element by moving to dismiss on speedy trial grounds on April 4, 1990, before this case was brought to trial.

IV

PREJUDICE TO DEFENDANT

The primary interests which lie at the heart of this factor are set forth in Barker:

“A fourth factor is prejudice to the defendant. Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.”

Barker, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 101 and Hall, 797 P.2d at 187. Applying these interests to the facts of this case, we hold that Heffernan was not prejudiced by the State’s delay in bringing his case to trial.

We find no evidence of oppressive pretrial incarceration since Heffernan was an inmate in the Montana State Prison during the entire subject pretrial period due to an unrelated conviction. He therefore did not suffer any prejudice from pretrial incarceration.

Regarding the second interest we must consider, Heffernan alleges that he has suffered anxiety and concern as a result of the pretrial delay. We have recognized that “[t]he existence of anxiety or emotional distress is notoriously difficult to prove.” Curtis, 241 Mont. at 303, 787 P.2d at 316. Here, the record contains no facts or proof conclusively showing that anxiety and concern have been caused to Heffernan. However, various statements in Heffernan’s brief support the conclusion that Heffernan has likely been subject to at least some anxiety and concern because of the pretrial delay. In his brief, Heffernan alleges that he has been held in closer custody, denied parole, and denied the opportunity to dispose of a Wyoming detainer by virtue of the delay. We find, under these circumstances, that at least some prejudice in the nature of anxiety and concern can be presumed to have occurred.

As for the third and most important of the interests outlined above, we find that the delay did not hamper, impair or otherwise prejudice the defense. This was not a complex case involving a complicated fact pattern. The bench trial for the escape crime proceeded on a very brief and concise paragraph of stipulated facts. Furthermore, Heffernan did not allege that his defense was prejudiced nor were there facts or circumstances in the record to support such a finding. Lastly, and most importantly, Heffernan did not even present any defense to his escape charge and subsequent conviction. Under these circumstances, we must find that Heffernan was not prejudiced in this manner. “The crucial factor in a prejudice determination is whether the defense has been impaired.” State v. Waters (1987), 228 Mont. 490, 494, 743 P.2d 1617, 620. Considering the above interests, in light of the facts presented, we conclude that Heffernan was not prejudiced by the delay in bringing his cause to trial.

In summary, the State is charged with a 139-day delay. This delay was not intentional, but was rather inherent and institutional in nature. Lastly, except for some anxiety which we have presumed, Heffernan was not prejudiced by the pretrial delay. Based on our analysis, we hold that under the four factor balance test of Barker, Heffernan was not denied his right to a speedy trial and the District Court did not err in denying Heffernan’s motion to dismiss.

The District Court is hereby affirmed.

JUSTICES TRIEWEILER, HUNT, McDONOUGH and WEBER concur.

       This is not to suggest that all delays not charged to defendant are automatically charged to the State — because this is simply not the case. See State v. Carden (1977), 173 Mont. 77, 87, 566 P.2d 780, 785.


source: Caselaw Access Project

author: JUSTICE HUNT

license: Public Domain

text:
    ALEX WEINGART, JR., Individually and as Personal Representative for RITA WEINGART, deceased, and NORMA J. WEINGART, Plaintiffs and Appellants, v. C & W TAYLOR PARTNERSHIP, CHARLES R. TAYLOR, WYMAN D. TAYLOR, J. ANTHONY DEDE, M.D., ROBERT McCROSKEY, M.D. and JENNIE OSTLER, Defendants and Respondents.
    No. 87-437.
    Submitted on briefs Dec. 13, 1990.
    Decided Apr. 11, 1991.
    248 Mont. 76.
    809 P.2d 576.

      Robert L. Johnson, Lewistown, for plaintiff and appellants.
    Keith A Maristuen, Bosch , Kuhr, Dugdale, Warner, Martin & Kaze, Havre, for defendant and respondent McCroskey.
    J. Michael Young, Great Falls, for defendants and respondent W.D. Taylor, C & W. Partnership and C.R. Taylor.
    Carl A. Hatch, Helena, for defendant and respondent Ostler.
   JUSTICE HUNT

delivered the Opinion of the Court.

Alex Weingart, Jr., individually and as personal representative for Rita Weingart, deceased, and Norma J. Weingart appeal from a decision of the District Court of the Tenth Judicial District, Fergus County, Montana, granting summary judgment to respondents, J. Anthony Dede, M. D., Robert McCroskey, M.D., and Jennie Ostler on the ground that they were not personally liable to the Weingarts on a contract for deed. We affirm.

The sole issue is whether the District Court erred in granting summary judgment to respondents for breach of the contract between appellants as sellers and Charles R. Taylor and Wyman D. Taylor as buyers, to purchase appellants’ ranch. Appellants argued that respondents, J. Anthony Dede, M.D., Robert McCroskey, M.D., and Jennie Ostler, were personally hable to appellants on one or more of three theories: first, a general partnership; second, a joint venture; and third, an agency.

Brothers Charles W. Taylor and Wyman D. Taylor formed the C & W Taylor partnership to purchase the Weingart ranch. Respondents, J. Anthony Dede, M.D., Robert McCroskey, M.D., and Jennie Ostler, contributed $55,000 each “to enable Charles R. Taylor and Wyman D. Taylor to purchase the ranch lands” on or before December 18, 1981, and signed the “Agreement To Share General Partner Interest.”

This agreement was created in advance of formation of a limited partnership to make the purchase of the Weingart ranch possible. The agreement provided that Charles Taylor and Wyman Taylor would buy the ranch “with the intent to transfer said land to a limited partnership to be known as C & W Limited partnership, whereunder they (Charles Taylor and Wyman Taylor) would become the general partners and managing partners.” The agreement noted that the “limited partnership agreement has not been effectuated.”

The limited partnership was not formed before the next installment on the ranch became due May 20, 1982. C & W Taylor could not raise the additional capital to make the payment, and the Weingarts served notice of default upon C & W Taylor on June 21, 1982. The Weingarts closed the escrow and removed the documents from the escrow file. C & W Taylor strongly argued that it had 120 days, as provided in the contract, to cure default by making payment.

When the second installment due under the land sale contract was not made, Charles Taylor contacted the Weingarts and negotiated what C & W Taylor believed was a termination of the land sale contract on September 20, 1982. The terms of the agreement were alleged to be (1) forfeit of the $210,000 initial payment to the Weingarts; and (2) reinvestment of title and interest in the ranch to the Weingarts by executing and delivering a quit claim deed and bill of sale and reassigning all BLM leases to the Weingarts.

The Weingarts brought this action for specific performance or damages against C & W Taylor as the buyer designated in the contract for deed, and respondents J. Anthony Dede, M.D., Robert McCroskey, M.D., and Jennie Ostler, alleged to be vicariously liable.

The action was delayed by bankruptcy proceedings involving Mc-Croskey and by resolution of another suit related to this transaction. See Taylor v. Weingart (1984), 214 Mont. 282, 693 P.2d 1231. All parties moved for summary judgment. On September 10, 1987, the District Court granted summary judgment in favor of respondents. The District court denied partial summary judgment to the Weingarts and denied summary judgment to C & W Taylor on the ground that genuine issues of material fact existed between them. From the grant of summary judgment to respondents, the Weingarts appeal.

The Weingarts maintain that the District Court erred in granting summary judgment to respondents because respondents, as either undisclosed partners, undisclosed joint venturers, or undisclosed principals, were personally liable on the contract of sale between the Weingarts and C & W Taylor.

Respondents contend that as investors, rather than partners, joint venturers, or principals, they were not liable on the contract of sale.

Summary judgment is proper where no genuine issue of any material fact exists and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P; First Security Bank of Bozeman v. Jones (1990), 243 Mont. 301, 303, 794 P.2d 679, 681. Since the facts are undisputed, the issues are matters of law and summary judgment is appropriate.

Partnership

A partnership is defined as “an association of two or more persons to carry on as co-owners a business for profit.” Section 35-10-201, MCA. To determine existence of a partnership four requirements must be met: (1) the parties must clearly manifest their intent to associate themselves in a partnership relationship; (2) each party must contribute something that promotes the enterprise; (3) each party must have a right of mutual control over the subject matter of the enterprise; and (4) the parties must agree to share profits. Montana Bank of Red Lodge, N.A. v. Lightfield (1989), 237 Mont. 41, 45, 771 P.2d 571, 574; Bender v. Bender (1965), 144 Mont. 470, 480, 397 P.2d 957, 962.

The Agreement to Share General Partner Interest states the clear intent by respondents to eventually become limited partners and nowhere shows they had any right of mutual control over the Weingart ranch, either in management of the ranch itself or in control of the ranch as an investment. Without a showing of that control, the third requirement to establish a partnership was not fulfilled. Therefore, respondents were not general partners of C & W Taylor and could not be liable on the contract for deed. The District Court did not err in concluding that respondents were not general partners.

Joint Venturers

To qualify as joint venturers four elements must be met: (1) an express or implied agreement or contract creating the joint venture; (2) a common purpose among the parties; (3) community of interest; and (4) an equal right of control of the venture. Papp v. Rocky Mountain Oil & Minerals (1989), 236 Mont. 330, 342; 769 P.2d 1249, 1257. Although management may be delegated to one joint venturer while the others retain the right of control, Murphy v. Redland (1978), 178 Mont. 296, 583 P.2d 1049, it must be an equal right of control. Here the respondents did not have an equal right of control of the venture. Therefore, the court did not err in concluding that respondents were not joint venturers with Charles and Wyman Taylor.

Principal / Agent

The appellants next contend that the Agreement to Share General Partnership Interest created an agency relationship to allow the Taylors to acquire the Weingart ranch for the mutual benefit of the five investors and that respondents were undisclosed principals.

An agent is “one who represents another, called the principal, in dealings with third persons.” Section 28-10-101, MCA. “ ‘Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control.’”Koch v. Yellowstone County (1990), 243 Mont. 447, 453, 795 P.2d 454, 458 (quoting Restatement (Second) of Agency § 1 (1957)); Wolfe v. Schulz Refrigeration (1979), 188 Mont. 511, 517, 614 P.2d 1015, 1018. An agency relationship did not exist between the Taylors and respondents because the Taylors were not subject to respondents’ control. Although respondents supplied capital, the Taylors did not represent respondents in dealing with the Weingarts. As we determined above, respondents were not general partners of C & W Taylor. The Land Sale contract is between the Weingarts and “Charles R. Taylor and Wyman Taylor, co-partners, doing business as C & W Taylor Partnership.” The court did not err in concluding that respondents were not joint venturers with Charles and Wyman Taylor.

The judgment of the District Court is affirmed.

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

JUSTICE SHEEHY did not participate in this decision.


author: CHIEF JUSTICE TURNAGE JUSTICE HUNT,

text:
    DARYLE R. MURPHY, as Guardian Ad Litem for L.C., Plaintiff and Appellant, v. STATE OF MONTANA, and THE DEPARTMENT OF INSTITUTIONS FOR THE STATE OF MONTANA, Defendants and Respondents.
    No. 90-271.
    Submitted on briefs Mar. 7, 1991.
    Decided Apr. 11, 1991.
    248 Mont. 82.
    809 P.2d 16.

      Donald W. Molloy, Gary E. Wilcox, and Terry L. Seiffert, Billings, for plaintiff and appellant.
    Mark D. Parker, Billings, Kimberly A. Kradolfer, Asst. Atty. Gen., Helena, for defendants and respondents.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The plaintiff, L.C., brought this action in the District Court of the First Judicial District, Lewis and Clark County, to recover damages from the State of Montana as a consequence of her confinement and treatment in the Montana State Hospital at Warm Springs. Here, she appeals an order granting partial summary judgment to the State for all acts or omissions before July 1, 1973. We affirm.

The issues are:

1. Did the District Court err in ruling that the State’s purchase of insurance for a later time period did not waive sovereign immunity for torts occurring prior to 1973?
2. Did the court err in ruling that the statutory bond requirements for state employees do not waive sovereign immunity?
3. Did the court err in holding that the daily operation of Montana State Hospital at Warm Springs was not a proprietary function which would preempt the defense of sovereign immunity?

The State moves to strike references in L.C.’s recitation of the facts to a deposition of Dr. Harr. That deposition is not in the record on appeal. This Court frowns upon references in briefs to matters not in the record. Such matters will not be considered by the Court. Garza v. Peppard (1986), 222 Mont. 244, 248, 722 P.2d 610, 612-13. The statements attributed to Dr. Harr have not been considered in reaching this Opinion.

L.C. was placed in the state mental institution, Montana State Hospital at Warm Springs, in 1963 at the age of thirteen. Except for brief periods, she remained there until 1975. In 1986, through her guardian ad litem, she filed this suit, alleging that she became seriously mentally ill as a result of being confined in the Montana State Hospital. Her complaint includes claims of false imprisonment; cruel and inhumane punishment; denial of freedom, due process, education and equal protection; outrageous conduct; negligence; and negligent supervision.

In March 1987, the District Court granted the State’s motion to dismiss this action, ruling that the statute of limitations had run before the complaint was filed. Concluding that L.C.’s double disability of minority and mental illness had tolled the statute of limitations, this Court reversed the lower court’s ruling and remanded the case for further proceedings. Murphy for L.C. v. State (1987), 229 Mont. 342, 748 P.2d 907.

On remand, the State moved for partial summary judgment that sovereign immunity bars recovery for any of its acts before July 1, 1973. After briefing and oral argument, the court entered an order granting that motion. L.C. obtained certification of the order under Rule 54(b), M.R.Civ.P, and appeals.

I

Did the District Court err in ruling that the State’s purchase of insurance for a later time period did not waive sovereign immunity for torts occurring prior to 1973?

L.C. argues that an insurance policy purchased to cover the State for personal injury and other claims for the period from July 1,1973, through July 1,1976, relates back to her claims because some of her damages were manifested during that period. The District Court noted that under § 1-2-109, MCA, no law is retroactive unless expressly so declared and that prior to July 1, 1973, the State could not be sued for injury caused by its actions or those of its officers. Under the 1889 Montana Constitution, the State had sovereign immunity. The court found no indication in legislative history of an attempt to extend a waiver of sovereign immunity to pre-1973 torts committed by the State. Further, it reviewed federal case law and concluded that because L.C.’s injury manifested itself prior to the insurance policy period, the insurance policy does not cover the injury.

After the District Court made its ruling, this Court issued its opinion in Crowell v. School Dist. No. 7 (Mont. 1991), [247 Mont. 38,] 805 P.2d 522, 48 St.Rep. 81, [10 Ed Law 8]. In Crowell, the Court held that the purchase of insurance may waive sovereign immunity to the extent of the insurance coverage. Therefore, we must examine the terms of the insurance policy.

L.C. maintains that her claims fall under coverage “E,” personal injury Lability, of the State’s insurance policy. She argues that the policy contains no time limitation on when an injury under coverage “E” occurred.

Coverage “E” applies to damages for false arrest, detention, imprisonment, malicious prosecution, libel or slander, publication or utterance in violation of an individual’s right of privacy, and wrongful entry or eviction or other invasion of the right of private occupancy. It provides that “damages” means “only those damages which are payable because of personal injury arising out of an offense to which this insurance applies.” The insurance policy provides at endorsement #1 that

“(b)... the total liability of the company for all damages because of all... personal injury and other damages to which this policy applies which occur during each annual period while this policy is in force commencing from its effective date shall not exceed the limit of liability stated in the Schedule of this endorsement ...” [Emphasis supplied.]
Endorsement #1 clearly encompasses personal injury under coverage “E” and limits damages to those which occur “during each annual period while this policy is in force commencing from its effective date.”

L.C. also argues that, under the insurance policy’s definition of “occurrence,” her claim constitutes one “occurrence” lasting from her initial hospitalization in 1963 to her eventual release in 1975. The policy language upon which she relies appears in endorsement #1:

“(c) For the purpose of determining the limit of the company’s liability, all... personal injury, and other damages to which this policy applies arising out of continuous or repeated exposure to substantially the same general conditions shall be considered as arising out of one occurrence.”

The policy defines “occurrence” as:

“an event, or a continuous or repeated exposure to conditions, which results in bodily injury or property damage during the policy period that is neither knowingly nor intentionally caused by or at the direction of the insured.”

L.C. argues that all of her damages arise from one “occurrence” which is covered under the policy.

In interpreting the term “occurrence” in insurance policies, courts have developed several theories of exception to the basic principle that an insurance policy provides coverage only for incidents occurring during the policy period. These theories were developed in cases involving delayed manifestation of injury, as in exposure to asbestos. Coverage has been allowed if the act causing the injury occurred during the policy period or if the injury initially manifested itself during the policy period. See Hancock Laboratories, Inc. v. Admiral Ins. (9th Cir. 1985), 777 F.2d 520.

In this case, neither the State’s acts or omissions prior to July 1, 1973, nor the initial manifestation of the injury occurred during the policy period. Because L.C. alleges that she became seriously mentally ill by February of 1964, she admits that her injury manifested itself prior to the policy period.

L.C. cites Truck Ins. Exchange v. Woldstad (1984), 212 Mont. 418, 687 P.2d 1022, as authority that damages need not occur while the insurance policy is in force. In that case, Woldstad died from injuries received after the expiration of the insurance policy provided by Truck Insurance Exchange. This Court held that, nevertheless, there was coverage under the policy. But that insurance policy contained language not found in the State’s policy here. Specifically, coverage was provided for “bodily injury, sickness or disease, including death at anytime resulting therefrom, sustained by any person.” Woldstad, 687 P.2d at 1024.

We conclude that claims arising from pre-1973 acts or omissions by the State are not covered under the terms of this insurance policy. We hold that the District Court was correct in ruling that the State did not waive sovereign immunity for the period prior to 1973 by its purchase of the insurance policy for the period from July 1, 1973, through July 1, 1976.

II

Did the court err in ruling that the statutory bond requirements for state employees do not waive sovereign immunity?

Sections 6-101 to 6-104, R.C.M. (1947), repealed in 1965 and replaced by §§ 6-105 to 6-108, R.C.M. (1947), mandated that surety bonds be purchased for state officers and employees. L.C. argues that under Longpre v. Joint School District No. 2 (1968), 151 Mont. 345, 443 P.2d 1, these mandatory bonding requirements waive the defense of sovereign immunity.

In Longpre, this Court held that a statute requiring school districts operating their own buses to carry automobile bodily injury and liability insurance constituted a waiver of the school districts’ immunity from suit, to the extent of the insurance coverage. In this case, the District Court concluded that application of the rule set forth in Longpre would only protect from the mishandling of state funds and does not constitute a complete waiver of sovereign immunity. The court stated that there is nothing in the bonding statutes which implies a legislative intent to waive immunity for torts committed by a bonded state officer or employee. We agree. The statutes are aimed at protection from mishandling of state funds. “The amount for which a state officer or employee shall be bonded shall be based on the amount of money or property handled and the opportunity for defalcation.” Section 6-106, R.C.M. (1947).

L.C. also argues that the State’s immunity was waived under the Civil Rights Act of 1964, codified at 42 U.S.C. §§ 2000d to 2000d-4. The terms of the Act became applicable to the Montana State Hospital at Warm Springs in 1965 when the hospital became part of the Division of Mental Hygiene of the Department of Institutions. Although L.C. raised this argument before the District Court, that court did not address the argument.

The federal courts have recognized that remedies available under the Act do not include monetary damages. Drayden v. Needville Independent School Dist. (5th Cir. 1981), 642 F.2d 129, 133; but see Rhodes v. Charter Hosp. (S.D. Miss. 1989), 730 F.Supp. 1383, as to recovery of back pay. Moreover, the Act is addressed to discrimination on grounds of race, color, or national origin, none of which have been claimed here. We conclude that this argument has no merit.

Because the bond purchased by the State is not included in the record, the issue of whether the terms of that bond waived immunity in this instance is not before us. We hold that the District Court did not err in concluding that the bonding statutes do not waive immunity for the tort and constitutional claims raised here.

Ill

Did the court err in holding that the daily operation of Montana State Hospital at Warm Springs was not a proprietary function which would preempt the defense of sovereign immunity?

L.C. asserts that the daily operation of a state mental hospital is a proprietary function -under which the defense of sovereign immunity is not allowed. She cites Jacoby v. Chouteau County (1941), 112 Mont. 70, 112 P.2d 1068.

Jacoby involved an accident on a county-operated ferry which crossed the Missouri River. The case stands for the general proposition that governmental units are liable for negligence in the exercise of proprietary functions. Here, the District Court concluded that because the establishment of the state institution for the insane was constitutionally mandated in Article X, Section 1 of the 1889 Montana Constitution, and was not discretionary, its operation was a governmental and not a proprietary function.

That operation of a hospital by a unit of government is required and not merely permitted indicates that the activity is a governmental rather than a proprietary function. See, Annotation, “Immunity from liability for damages in tort of state or governmental unit or agency in operating hospital,” 25 ALR 2d 203, 223 (1952). Another consideration is whether the hospital is operated for profit, an indication of a proprietary function, or as a charity, an indication of a governmental function. Annotation, 25 ALR 2d at 219. The Montana State Hospital at Warm Springs is not run as a profit-making venture.

We hold that the District Court did not err in ruling that the constitutionally mandated state mental hospital was a governmental function under the shield of sovereign immunity prior to 1973.

Affirmed.

JUSTICES HARRISON, GRAY, McDONOUGH and WEBER concur.

JUSTICE HUNT,

dissenting:

I dissent. The facts alleged by plaintiff, if true, paint an ugly and disturbing picture of events that occurred at the Montana State Hospital at Warm Springs. At the age of 13, L.C. was diagnosed as having “behavior problems” and was confined by the State to the hospital. While in the “care” of the hospital she was denied the opportunity to associate with children of her own age and instead lived with adults suffering from severe mental illnesses. She was prohibited from obtaining an education and was compelled to work at the hospital to earn spending money. She received numerous electric shock treatments as punishment for her behavior. She was raped by male employees. When she protested the assaults, the hospital ignored her complaints. She was forced to engage in “cock fights” with other patients while staff members observed and wagered on the results.

Despite this outrageous treatment, the majority allows the State to hide behind the shield of sovereign immunity by adhering to the troubling and somewhat strained distinctions between governmental and proprietary functions. Even allowing that the regular day-to-day operation of the hospital is a governmental function, the activities alleged in this case are so horrifying that one cannot seriously believe that they flowed from the pursuit of governmental objectives. Surely, no government that I wish to be a part of would engage in such appalling conduct.

Although the State may be immune from suit for torts arising from the discharge of governmental functions, there are times when the misdeeds alleged by the plaintiff exceed the bounds of governmental purposes. “[T]he intentional use or misuse of a badge of governmental authority for a purpose unauthorized by law is not the exercise of a governmental function.” Smith v. Department of Public Health, 428 Mich. 540, 410 N.W.2d 749, 780 (1987). Here, we have a case where the hospital at Warm Springs, under the guise of governmental authority, engaged in illegal acts for the purpose of punishing and warehousing L. C., not for treating and caring for her. The hospital refused to give L. C. educational opportunities granted by the Montana Constitution. It forced her to work for wages in contravention of Montana law. It stood by silently while she was raped by employees. It condoned her degradation for the financial gratification of staff members. Certainly, none of these activities were authorized by law. Certainly, the hospital should not be allowed to engage in such cruel and inhumane conduct without fear of reprisal.

The judiciary is the sanctuary of the dispossessed, of those who have a voice in no other quarter. It should not tolerate the State’s exploitation of the individual by hiding behind slight legal niceties such as the ones used here. If the plaintiff’s allegations are true, the shield of sovereign immunity has become the sword of institutional brutality.

If the plaintiff’s allegations are not true, the shield of sovereign immunity has denied our public servants the opportunity to repudiate the accusations.

I would reverse the District Court.

JUSTICE TRIEWEILER concurs in the dissent of Justice Hunt.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RAYMOND “BUTCH” MORENO, Defendant and Appellant.
    No. 90-434.
    Submitted on briefs Jan. 24, 1991.
    Decided Apr. 11, 1991.
    248 Mont. 91.
    809 P.2d 574.

      Ralph T. Randono, Great Falls, for defendant and appellant.
    Marc Racicot, Atty. Gen., Elizabeth L. Griffing, Asst. Atty. Gen., Helena, Robert McCarthy, County Atty., Brad Newman, Deputy County Atty., Butte, for plaintiff and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

On May 9,1990, Raymond “Butch” Moreno was convicted by a jury of criminal sale of dangerous drugs, a felony, in the Second Judicial District, Silver Bow County. He appeals from that conviction.

We affirm.

The issues raised on appeal are:

1. Was the defendant prejudiced by the name change on the transcription of the audio tape?
2. Was the defendant prejudiced by permitting the jury to hear discussion on admissibility of the transcript and defendant’s motion to dismiss?
3. Was the defendant prejudiced by allowing the tape recorder to be taken into the jury room?

On January 31,1990, an undercover operative for the Butte police department made a drug purchase while fitted with a body wire. The informant testified that he went to the defendant’s house, where the defendant and another man were working, and purchased a gram of methamphetamine from the defendant. The defendant was subsequently arrested and charged with criminal sale of dangerous drugs.

At trial, the audio tape of the transaction was admitted into evidence. However, when the State attempted to admit a written transcript of the tape, the defendant objected on the grounds that the original transcript provided in discovery had different names ascribed to the parties than the transcript being offered into evidence. A police officer then testified that when he had been going over the tape that morning before trial, he had noticed that “the secretary had used the wrong name as being the person speaking.” Consequently, a revised transcript was provided to the defense the morning of the trial. The court did not permit either transcript to be admitted into evidence.

While the jury was deliberating, it asked for a tape recorder to listen to the tape. The court provided one “for fifteen minutes.” The jury then returned a verdict of guilty of criminal sale of dangerous drugs.

Was the defendant prejudiced by the name change on the transcription of the audio tape?

The defendant argues that in changing the names on the transcription of the audio tape and not disclosing it until the day of the trial, the State did not comply with discovery rules, and thereby prejudiced the defendant. He relies primarily on § 46-15-327, MCA, which states:

“If at any time after a disclosure has been made any party discovers additional information or material that would be subject to disclosure had it been known at the time of disclosure, such party shall promptly notify all other parties of the existence of the additional information or material and make an appropriate disclosure.”

The defendant maintains that because the first transcript identifies the third party at the house as the seller of the drugs, and the second one implicates the defendant, the last minute change was prejudicial. He asserts that disclosure was not properly made according to § 46-15-327, MCA, because the revised transcript was only provided the day of the trial.

Two facts are problematic for the defendant. The first one is that neither of the transcripts at issue were admitted into evidence. The court noted that the best evidence was the recording itself and that the jury could make its own determination on the basis of it. We fail to see how the name change could constitute “additional information” when the transcripts were not even admitted.

The second problem is that even if the defendant had prepared for trial as if exculpatory evidence were going to be introduced by the State, he still had the benefit of the “best evidence” of the tape itself. Access to the best evidence rules out the possibility that the defendant’s trial preparation was substantially impaired by the State’s action.

Was the defendant prejudiced by permitting the jury to hear discussion on the admissibility of the transcript and the motion to dismiss?

Section 46-20-701, MCA, provides in part that:

“(1)... No cause shall be reversed by reason of any error committed by the trial court against the appellant unless the record shows that the error was prejudicial.”

The defendant contends that arguing the admissibility of the transcripts in front of the jury was “highly prejudicial.” His only proof of prejudice appears to be that no jury instruction was given about the tape/transcript problem.

Here, the jury never even saw the transcripts. An instruction could only have told them to disregard what it had not seen. It is true that the jury heard about a material change in the transcripts. However, the court did state during the trial that the tape was the best evidence, and having reviewed the instructions as a whole, we find no reason to believe that the jury would understand that it could consider material not in evidence. Merely witnessing the exchange regarding conflicting transcripts is not proof of prejudice.

Further, it was defense counsel who solicited information about the tapes in open court. He did not request an in camera voir dire of the detective or an in camera motion to dismiss. Because he failed to make these requests, we defer to the discretion of the trial court in the conduct of its proceedings and do not find prejudicial error.

Was the defendant prejudiced by allowing the tape recorder to be taken into the jury room?

After the case was submitted to the jury, the jury requested a tape recorder to play the recording of the drug transaction. Defense counsel consulted his client, who said he had no objection. The recorder was given to the jury without objection.

Section 46-20-104, MCA, governs the scope of appeal by the defendant:

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

The defendant’s failure to object at the time of trial waived his right to appeal the action.

Affirmed.

JUSTICES HARRISON, TRIEWEILER, McDONOUGH and WEBER concur.


author: JUSTICE TRIEWEILER

text:
    IN RE THE MARRIAGE OF KEVIN THOMAS DUNN, Petitioner and Appellant, and DEBORA MARIE DUNN, Respondent and Respondent
    No. 90-490.
    Submitted on briefs Feb. 21, 1991.
    Decided Apr. 11, 1991.
    248 Mont. 95.
    809 P.2d 571.
    Daniel Donovan, Great Falls, for petitioner and appellant.
    Don A. LaBar, Church, Harris, Johnson & Williams, Great Falls, for respondent and respondent.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

Kevin Thomas Dunn appeals from a decree of dissolution of his marriage to Debora Marie Dunn, entered in the Eighth Judicial District Court, Cascade County, which awarded Debora $500 per month for maintenance for six years.

On appeal, Kevin contends that the District Court did not consider the statutory requirements for an award of maintenance to Debora, and that the amount and term of the maintenance award was excessive. After consideration of these issues, we affirm.

Debora and Kevin were married on July 23, 1983. They have one child, Corey, who was three years old at the time of the dissolution. At the time of the hearing, Kevin was 29 years old and Debora was 32 years old.

For the first three years of their marriage, the couple lived in Billings, Montana. Kevin graduated from Eastern Montana College in 1984, with a bachelor’s degree in bank operations management. Shortly afterward, Deluxe Check Printers hired Kevin as a salesman. Deluxe transferred Kevin to Great Falls, Montana in 1986. Since then, he has continued to work for the company as a salesman.

Debora has worked throughout the marriage. In Billings, she worked as an office manager for a real estate agency. After moving to Great Falls, she found work as an office manager for Pierce Flooring. She left briefly to work for a Great Falls insurance agency, and then was hired back again by Pierce.

At the time of trial, Kevin’s gross income was approximately $37,000 per year, while Debora’s gross income was approximately $14,000 per year. The record reveals that both Kevin’s and Debora’s expenses exceeded their net incomes. In addition to Kevin’s $37,000 salary, he received a company car, a 1990 Ford Taurus 4-door sedan at a monthly charge of $25.00; comprehensive health insurance, including dental and optical coverage; an expense account for meals and lodging for his sales trips; and a $5,000 per year contribution to his retirement plan. The only fringe benefit Debora had was a minimal health care plan.

The couple also owned a 1988 Honda Prelude valued at $9,000. However, the couple owed the bank $9,728.58 to pay for the Honda. The District Court awarded the car to Debora.

The District Court made the following distribution of the marital estate:

In addition, the District Court ordered Kevin to pay Debora’s attorney fees amounting to $2,112.50.

The couple agreed that they should have joint legal custody of Corey. The District Court, however, granted physical custody to Debora, and ordered Kevin to pay $277.23 per month in chil d support. Furthermore, the District Court found that “child care costs should be divided in accordance with the parties’ gross incomes: 28% to Respondent Wife; 72% to Petitioner Husband.”

In addition to the child support, the District Court awarded Debora $500 per month for maintenance for a period of six years. In awarding maintenance to Debora, the District Court found that:

“The Respondent-Wife is 32 years old. She is employed as office manager by Pierce Flooring in Great Falls, Montana. Respondent-Wife requests that she be awarded spousal maintenance in an amount and for such period of time as the Court deems equitable. From the evidence introduced, it is clear the Respondent-Wife lacks sufficient property to provide for her reasonable needs and is unable to support herself through appropriate employment. Respondent-Wife gave up a better job in Billings to move to Great Falls with her husband in early 1986; she still is earning less now than when she left Billings. Considering the need of Respondent-Wife to find appropriate employment or to acquire sufficient additional education or training for better employment, the standard of hving established diming the marriage, the duration of the marriage, the age and emotional condition of Respondent-Wife, and the ability of the Petitioner-Husband to meet his needs while assisting his spouse with maintenance, for a reasonable period of time, spousal maintenance is appropriate in this case for a period of six years at the rate of $500 per month commencing June 1, 1990.”

Kevin moved to alter or amend the District Court’s decree. In his motion, Kevin argued, among other things, that the District Court erred in awarding maintenance to Debora. The District Corut denied this motion. Kevin appeals the District Court’s maintenance award.

MAINTENANCE

The appropriate standard of review for an award of maintenance is established by § 40-4-203, MCA. In Re the Marriage of Sullivan (1990), 243 Mont. 292, 298, 794 P.2d 687, 690. As we stated in Sullivan, 794 P.2d at 690:

“An award of maintenance is premised upon a finding by the court that the individual seeking maintenance ‘lacks sufficient property to provide for his reasonable needs; and is unable to support himself through appropriate employment.’ Section 40-4-203(l)(a)(b), MCA.” In this case, Kevin maintains that Debora’s share of the marital property and her current employment are more than sufficient to provide for her reasonable needs. The District Court record and the District Court’s findings tell a different story. The record reveals that Debora’s $940 in monthly income falls far short of her monthly expenses. The District Court’s findings show that Debora’s monthly budget ran a deficit of $1,033.77. Kevin argues that Debora could erase her monthly deficit with property acquired from the marital estate. In determining whether a spouse has sufficient marital property to support herself, this Court will consider whether the spouse seeking maintenance has received income producing or income consuming assets. In Re the Marriage of Cole (1988), 234 Mont. 352, 356, 763 P.2d 39,42; In Re the Marriage of Goodman (1986), 222 Mont. 446, 451, 723 P.2d 219, 222. A review of the marital property distribution reveals that the District Court awarded Debora the Honda Prelude ($9,000) and furniture ($2,445). Neither is income producing property. See Cole, 763 P.2d at 42. Subtracting these two above items from Debora’s share of the marital assets will leave Debora with $18,536.83 in marital assets or “income producing assets.” After paying the $12,509.78 of debts assigned to Debora, she will have $6,027.05 of assets remaining. This amount of income producing property would be insufficient to fulfill her reasonable economic needs.

Next, the District Court must consider all the relevant facts in determining an appropriate maintenance award. Section 40-4-203(2), MCA. That section is as follows:

“(a) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
“(b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
“(c) the standard of living established during the marriage;
“(d) the duration of the marriage;
“(e) the age and the physical and emotional condition of the spouse seeking maintenance; and
“(f) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.” Section 40-4-203(2)(a)-(f), MCA.

As we stated in Sullivan, “(a) specific finding by the District Court as to each of these relevant facts is not required as long as the court considered proper information in addressing these facts and based its decision upon substantial credible evidence.” Sullivan, 794 P.2d at 691; Cole, 763 P.2d at 43. Furthermore, “these relevant facts are to be considered by the court as a whole in the determination of the final maintenance award.” Sullivan, 794 P.2d at 691. There is substantial credible evidence to support the District Court’s monthly maintenance award of $500 to Debora. The record reveals, and the District Court found, that Debora has insufficient financial resources to provide for her reasonable needs. The maintenance payment also allows Debora the opportunity to return to school to improve her employment prospects. Her current job is insufficient to meet her monthly expenses. The record reveals that Kevin is capable of making the maintenance payments.

The District Court, in awarding maintenance to Debora, clearly reviewed the couple’s work history, skills, standards of living, and the parties’ present employment. Based on these facts, the District Court’s award of maintenance to Debora is supported by substantial credible evidence.

Accordingly, we affirm the District Court’s maintenance award.

JUSTICES HARRISON, WEBER, HUNT and McDONOUGH concur.


text:
    IN RE THE MARRIAGE OF RICHARD F. GALLAGHER, Petitioner and Respondent, and LOREE H. GALLAGHER, Respondent and Appellant.
    No. 90-336.
    Submitted on briefs Dec. 20, 1990.
    Decided April 15, 1991.
    Rehearing Denied May 9, 1991.
    248 Mont. 100.
    809 P.2d 579.

      Randy Winner, Flaherty & Winner, Great Falls, for respondent and appellant.
    Warren C. Wenz, Marra, Wenz, Johnson & Hopkins, Great Falls, for petitioner and respondent.
   JUSTICE HUNT

delivered the opinion of the Court.

The wife, Loree H. Gallagher, appeals from the findings of fact, conclusions of law and decree of dissolution entered in the Eighth Judicial District Court, Cascade County. We affirm.

We will discuss the following issues on appeal:

1. Did the District Court err in finding that the husband’s partnership interest in his law practice was not a part of the marital estate?
2. Did the District Court err in refusing to deduct the husband’s support, maintenance and education obligations to his first wife and children from the husband’s net worth at the time of the parties’ marriage?
3. Did the District Court err in refusing to order the husband to pay the wife’s attorney fees?

Richard and Loree Gallagher were married in 1980. At the time of the marriage, Richard was 40 years old and Loree was 22. Richard had two children from a prior marriage. He owed substantial maintenance, child support and education obligations to his first wife and children. No children were born during his eight years with Loree.

At the inception of the parties’ marriage, Richard had been an attorney for 14 years, 13 as a member of the law firm of Church, Harris, Johnson & Williams and eight as a partner in that firm. During the marriage, his income fluctuated but, on the whole, increased a great deal. Also during the marriage, the terms of the Church, Harris partnership agreement were modified to provide that any partner who voluntarily withdrew from the firm would receive the fixed sum of $6,250.

At the time of the marriage, Loree possessed an associate’s degree in business from Concordia College in Portland. She had been employed as a legal secretary with Church, Harris, but was asked to leave that position when she married Richard. She then worked as a secretary at Norwest Bank. In 1985, she became self-employed as a bookkeeper. Although her salary decreased in this endeavor, she rejected several offers of other employment, electing instead to retain the flexibility allowed by being her own boss.

Excluding the value of the law partnership, Richard brought into the marriage assets with a net worth of $34,240. Loree brought no assets to the marriage aside from her personal effects. During the marriage, the couple’s net worth, excluding the value of the law practice, increased to $54,061, a gain of $19,821. A substantial portion of the growth was attributable to increases in value of Richard’s prior-acquired property.

The District Court awarded assets with a net value of $18,989 to Loree and the remaining marital assets — net value $35,072 — to Richard. It valued Richard’s partnership interest at $6,250, ruling that the value of the interest was controlled by the law firm’s partnership agreement. It then refused to include that interest in the marital estate, finding that Loree had not facilitated the maintenance of the law practice. The court did, however, award Loree maintenance of $500 per month for 30 months.

Loree appeals, arguing first that the District Court erred in ruling that the $6,250 figure assigned in the Church, Harris partnership agreement as the amount each partner would receive if he or she left the firm established the value of Richard’s interest in the law firm. She further argues that the District Court erred in refusing to allow her to conduct discovery delving behind the partnership agreement in order to determine whether the $6,250 sum reflected the actual value of Richard’s interest. We need not reach these issues, however, because the District Court also found that Richard’s interest in the partnership was not a part of the marital estate. If this finding is not clearly erroneous, the value of the asset is irrelevant.

Richard acquired his interest in the law firm prior to his marriage to Loree. When dividing property acquired by one spouse prior to the marriage, § 40-4-202(1), MCA, directs the District Court to consider the other spouse’s contributions to the marriage, including:

“(a) the nonmonetary contribution of a homemaker;
“(b) the extent to which such contributions have facilitated the maintenance of this property; and
“(c) whether or not the property division serves as an alternative to maintenance arrangements.”

If the contributions of the non-owning spouse have not facilitated the maintenance of property brought into the marriage by the other spouse, the district court may exclude that property from the marital estate. In re the Marriage of Snyder, 220 Mont. 262, 265, 714 P.2d 556, 557-58 (1986); In re the Marriage of Jorgensen, 180 Mont. 294, 299, 590 P.2d 606, 609-10 (1979).

In this case, the District Court specifically considered Loree’s nonmonetary contributions to the marriage, including her contribution as a homemaker, and found that she did not facilitate the maintenance of the partnership asset. This finding is not clearly erroneous. Richard had been a partner in the firm for eight years prior to the marriage and had thus successfully established himself in the legal profession before marrying Loree. The marriage of eight years was of relatively short duration and no children were bom of the marriage. Furthermore, the property division did not serve as an alternative to maintenance — the court awarded Loree maintenance of $500 per month for 30 months.

The District Court did not err in finding that the partnership interest was Richard’s sole property. The court properly excluded the asset from the marital estate.

Loree next contends that the District Court erred in refusing to deduct from Richard’s net worth at the time of their marriage his support, maintenance and education obligations to his wife and children of his first marriage. Loree argues that if the District Court had deducted Richard’s obligations to his former family, his net worth at the time of the marriage would have been in the negative and the increase in the parties’ net worth during the marriage would have been substantially greater than the increase found by the District Court.

Under the facts of this case, Richard’s maintenance, education and child support obligations do not implicate property rights. Therefore, the District Court did not abuse its discretion in refusing to deduct the obligations from Richard’s statement of net worth.

Loree’s final argument is that the District Court erred in failing to order Richard to pay her attorney fees.

The district court in a dissolution action may order one spouse to pay the other spouse’s attorney fees. Section 40-4-110, MCA. We will not overturn the court’s failure to award attorney fees absent a showing of an abuse of discretion. In re the Marriage of Anderson, 230 Mont. 89, 95, 748 P.2d 469, 472 (1988).

In this case, the District Court refused to award attorney fees to Loree because she had failed to cooperate with Richard’s attempts to informally provide information; she sought numerous continuances and extensions; and she was unwilling to accept the rulings of the court. Under the circumstances, the District Court did not abuse its discretion in refusing to award attorney fees.

Affirmed.

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


author: CHIEF JUSTICE TURNAGE

text:
    IN RE THE MARRIAGE OF NANCY J. MITCHELL (GRAVELY), Joint Petitioner and Appellant, and WILLIAM S. GRAVELY, Joint Petitioner and Respondent.
    No. 90-541.
    Submitted on briefs Mar. 22, 1991.
    Decided Apr. 16, 1991.
    248 Mont. 105.
    809 P.2d 582.

      Michael S. Smartt, Great Falls, for joint petitioner and appellant.
    Elizabeth A. Best, Great Falls, for joint petitioner and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Nancy J. Mitchell appeals from an order modifying child custody in this dissolution of marriage. The case was tried in the District Court of the Eighth Judicial District, in and for the County of Cascade. We affirm.

The issues are:

1. Did the District Court abuse its discretion or otherwise commit reversible error in modifying the primary physical custody of the minor child K.L.G.?
2. Did the District Court abuse its discretion or otherwise commit reversible error in modifying the primary physical custody of the minor child J.P.E.M.?
3. Did the District Court err in awarding costs and attorney fees to Gravely?

The marriage of Nancy J. Mitchell and William S. Gravely was dissolved in September of 1989. The decree of dissolution established joint custody of the minor children of the parties, KL.G. and J.RE.M., with primary physical custody in Mitchell. A February 1990 order based upon a stipulation of the parties clarified Gravely’s visitation rights with the children.

In June 1990, a hearing was held on Gravely’s motion that he be granted primary physical custody of the children. Gravely testified that Mitchell refused to allow him visitation with the children, that she had been “pretty drunk” a number of times when he had spoken with her on the phone, and that he had heard Mitchell repeatedly use profane language toward K.L.G. He testified that K.L.G., then age four, told him she had seen Mitchell and her fiance “on the couch [without clothes] making some weird movement.” He testified that one evening Mitchell had asked him to come to her home and that when he arrived she was passed out on the living room floor. He also presented testimony by a Department of Family Services social worker who had received abuse and neglect referrals regarding Mitchell’s care of the children from J.RE.M.’s doctor, from the WIC federal nutrition program, and from JR.E.M.’s daycare provider.

Mitchell and her fiance testified in her behalf. Mitchell made a number of allegations against Gravely. She also testified that there is a “98 percent” likelihood that J.RE.M., who was bom in December 1989, is the son of her fiance.

Based on the evidence at the hearing, the court ordered that Gravely immediately be given primary custody of K.L.G.; that the Department of Family Services immediately initiate home studies of both Gravely’s and Mitchell’s homes; that Gravely’s child support obligation for K.L.G. immediately cease; and that Mitchell’s fiance and Gravely participate in blood testing to determine the paternity of J.P.E.M.

In July 1990, the court entered findings and conclusions based on the June hearing. The court found that Mitchell had willfully and consistently attempted to frustrate or deny Gravely’s exercise of visitation rights. Further, it found that Mitchell had engaged in inappropriate behavior with her fiance in front of the minor children, that she repeatedly and consistently had used abusive language with the children, that she had made repeated telephone calls to Gravely at which time she was clearly heavily intoxicated, and that she had been found lying on the living room floor unconscious at a time during which she was in full custody of the children. The court ordered that if it is established that J.P.E.M. is not Gravely’s natural child, Gravely’s child support obligation shall immediately cease, but that if it is established that J.P.E.M. is the natural child of Gravely, custody of J.P.E.M. shall immediately be placed in Gravely, with visitation rights to Mitchell. It ordered Mitchell to pay Gravely’s reasonable attorney fees and costs.

On August 24,1990, a second hearing was held. The report on the home studies had been filed with the court, but the blood test results had not yet been filed. The court entered an order amending its July findings and conclusions by adding findings that Mitchell had made numerous unsubstantiated complaints of abuse and neglect of K.L.G. by Gravely. It ordered Mitchell to cease and desist from making such unsubstantiated claims.

I.

Did the District Court abuse its discretion or otherwise commit reversible error in modifying the primary physical custody of the minor child K.L.G.?

Mitchell argues that the evidence in support of Gravely’s allegations and the District Court’s findings was neither substantial nor credible. She also asserts that the court failed to consider or otherwise adhere to statutory and regulatory requirements before changing the custody of K.L.G.

There is no question that there was substantial conflict in the testimony presented in this case, on almost every point. Clearly, the court believed the testimony presented by Gravely over that of Mitchell and her fiance. Resolution of conflicts in testimony is the function of a trier of fact. In re Marriage of Penning (1989), 238 Mont. 75, 78, 776 P.2d 1214, 1216. This applies to the testimony about Mitchell’s use of profane or abusive language, her drinking, her actions with her fiance in the presence of the children, and all of her allegations against Gravely.

Modification of physical custody within a joint custody situation is proper when the change is in the best interest of the child under § 40-4-224(2), MCA. Marriage of Keil (Mont. 1990), [246 Mont. 344,] 805 P.2d 1334, 1336, 47 St.Rep. 2142, 2143. In matters of child custody, this Court will not substitute its judgment for that of the district court unless there has been an abuse of discretion by the district judge and there is a clear preponderance of evidence against the findings. Bier v. Sherrard (1981), 191 Mont. 215, 216-18, 623 P.2d 550, 551, 38 St.Rep. 158, 159. A district court need not make specific findings on each factor listed under the definition of “best interest” in § 40-4-212, MCA, but must express the “essential and determining” facts upon which its conclusions rest. Cameron v. Cameron (1982), 197 Mont. 226, 230-31, 641 P.2d 1057, 1060.

As Gravely points out, evidence as to each factor listed in § 40-4-212, MCA, was presented to the District Court. The court’s findings relate primarily to subsections (c) and (g) of § 40-4-212, MCA, concerning the interaction of Mitchell with the children and Mitchell’s chemical abuse.

Mitchell objects to admission of the social worker’s testimony about the contents of tape-recorded phone conversations between Gravely and Mitchell. The tape recordings were given to the social worker by Gravely. The social worker testified that, based on listening to those tapes, it was her opinion that Mitchell had verbally abused K.L.G. An expert witness is entitled to testify about the basis for her opinions. Rule 703, M.R.Evid. In addition to testifying about the tape recordings, the social worker testified that Mitchell was uncooperative in arranging a home study and that she had received referrals for investigation of child abuse or neglect by Mitchell from three sources.

Mitchell also objects to the District Court’s refusal to admit evidence about a videotape she claims Gravely took of her during their marriage. Mitchell argues that the tape showed deviate sexual conduct not known to the court at the time of dissolution of the marriage, and is therefore relevant here. The court heard Mitchell’s offer of proof but rejected the testimony.

Mitchell did not offer the videotape as evidence. She did not report it at the time the parties’ marriage was dissolved. She stated that Gravely had possession of the tape. He denied that such a tape existed. We conclude that the court’s refusal to consider Mitchell’s testimony about the tape was justified on grounds that it was irrelevant, speculative, and remote.

We hold that the District Court did not abuse its discretion or otherwise commit reversible error in modifying the physical custody ofKL.G.

II.

Did the District Court abuse its discretion or otherwise commit reversible error in modifying the primary physical custody of the minor child J.P.E.M.?

Mitchell argues that there is an absence of evidence and of findings on the issue of the custody of J.P.E.M. But as Gravely points out, most of the court’s findings relate to J.P.E.M. as well as to K.L.G. These findings include that Mitchell engaged in inappropriate behavior in front of the children, that she has repeatedly and consistently used abusive language with the minor children, that she has been clearly heavily intoxicated during repeated telephone calls to Gravely, and that she was found lying on the living room floor unconscious and incapable of being awakened during a time when she was in full custody of the children. All of these findings relate to behavior which would affect J.P.E.M. as much as K.L.G.

We conclude that there is sufficient evidence to support the modification of primary physical custody of J.P.E.M., should the blood tests indicate that he is Gravely’s son.

III.

Did the District Court err in awarding costs and attorney fees to Gravely?

Mitchell argues that Gravely’s motion for an award of costs and attorney fees should have been denied because the court failed to consider the parties’ financial resources, pursuant to § 40-4-110, MCA. The court heard evidence on both Mitchell’s and Gravely’s employment and living arrangements at the June hearing. The court indicated that it would hold a separate later hearing on the amount of attorney fees. We hold that there was no error in the award of costs and attorney fees.

Affirmed.

JUSTICES HARRISON, GRAY, HUNT and WEBER concur.


text:
    JERRY R. BECHHOLD, Petitioner and Appellant, v. MARCI ANN CHACON, Respondent and Respondent.
    No. 90-376.
    Submitted on briefs Apr. 4, 1991.
    Decided Apr. 18, 1991.
    248 Mont. 111.
    809 P.2d 586.

      Jerry R. Bechhold, pro se.
    John M. Hesse, Livingston, for respondent and respondent.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Jerry R. Bechhold appeals from an order and judgment entered in the District Court, Eighteenth Judicial District, Gallatin County, dissolving the parties’ marriage and granting Marci Chacon Bechhold custody of the minor child. We reverse the District Court.

The issue presented for review is whether the District Court properly set aside its earlier order dismissing the marital dissolution proceeding before entering the dissolution decree.

Appellant Jerry Bechhold initiated dissolution of marriage proceedings on June 15, 1988. He obtained temporary custody of the parties’ minor child at that time. A hearing in the dissolution matter was held on January 29,1990. Temporary custody of the minor child was transferred to the respondent, Marci Chacon, and all other matters pertaining to the dissolution were taken under advisement. At the time of the hearing, all parties had resided in California in excess of six months.

On January 31, 1990, Bechhold filed a motion to dismiss the dissolution proceeding in Montana. In his supporting brief, he stated that California was the proper forum under the Uniform Child Custody Act, since the child had resided in California for more than six months. Bechhold then attempted to initiate the dissolution proceedings in California. His initial attempt was unsuccessful. On February 23, 1990, the California court declined to exercise jurisdiction while an action was still pending in Montana.

A brief in opposition to the motion to dismiss was filed by Chacon on February 12, 1990. Chacon argued that Bechhold had chosen the Montana forum, and only now wished to change it after receiving an adverse ruling in the custody matter. On March 6,1990, the District Court ordered the case dismissed with prejudice.

Chacon filed a motion to set aside the order to dismiss on March 12, 1990. Meanwhile, Bechhold informed the California court on March 14,1990, that the action had been dismissed in Montana. Both parties attended the hearing in the California court on April 20,1990. Chacon appeared with her California counsel. At that hearing, the court determined that the parties should share the custody of the child. All other dissolution matters were continued until June 11, 1990.

Chacon’s Montana counsel served notice on April 14,1990, that the hearing on the motion to set aside the order dismissing with prejudice would take place on May 4, 1990. Bechhold did not respond, and the telephone conference hearing was rescheduled for May 7. Again, Bechhold did not respond, despite numerous attempts to contact him by telephone and mail. On May 25,1990, the District Court granted Chacon’s motion to set aside the order of March 6, 1990, dismissing the dissolution proceedings. The court then entered Findings of Fact, Conclusions of Law, Dissolution Decree and Judgment. The Judgment awarded sole custody of the child to Chacon. This appeal resulted.

Bechhold maintains that the District Court was without jurisdiction to enter its Order and subsequent Findings of Fact, Conclusions of Law and Judgment. He states that because the court did not act on the March 12,1990 motion to set aside the order of dismissal for 74 days following its filing, it effectively denied the motion, pursuant to Rule 60(c), M.R.Civ.R Appellant argues that the Order of dismissal with prejudice thereby remained in full effect and that jurisdiction was irrevocably lost once the California court assumed jurisdiction.

The basis on which the District Court set aside the March 6,1990 Order is Rule 60, M.R.Civ.P, which allows for relief from an order. Rule 60(b) states in pertinent part:

“On motion or on such terms as are just, the court may reheve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
“(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;... or (6) any other reason justifying relief from the operation of the judgment.” Chacon’s motion was timely. However, Rule 60(c) states:
‘Motions provided by subdivision (b) of this rule shall be determined within the times provided by Rule 59 in the case of motions for new trials and amendment of judgment and if the court shall fail to rule on the motion within the 45 day period, the motion shall be deemed denied.”

The maximum amount of time the court is allowed to rule on such a motion is 45 days from when it is filed. This Court has determined that to be a mandatory time limit. Lerum v. Logue, 198 Mont. 194, 645 P.2d 418 (1981).

In State Department of Revenue v. Frank, 226 Mont. 283, 735 P.2d 290 (1987), this Court held that a district court had jurisdiction after 48 days had elapsed between the motion for relief from judgment and the hearing on the motion. In that case, the Court stated:

“It is, however, provided in Rule 60(b) that the rule
“ ‘... does not limit the power of a corut to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as may be required by law...’
“The time limitation in Rule 60(c) must be read in light of the principle set out in Rule 60(b), which provides for such an independent action. The residual power of the District Court therein preserved is a complete reservation of the District Court’s independent power. Its purpose is to protect equity by ‘not enforcing a judgment obtained against the public conscience.’ (Cites omitted). The residual power portion of Rule 60(b) was enacted particularly to prevent an injustice. For that reason, we hold that Kenneth’s motion to set aside enforcement of an unserved warrant of distraint was an independent action, and thus is not subject to the 45 day time limitation of Rule 60(c), M.R.Civ.P.”

This case is factually different from Frank. That case dealt with a situation where the party was not given notice by being personally served. In this case, Chacon asserts she was not served with the motion to dismiss. However, Chacon’s counsel responded to Bechhold’s motion by filing a brief in opposition and did not complain that proper service had not been made. The District Court made its decision after both parties had briefed the matter. Clearly there was notice. The exception in Frank would not, therefore, apply in this case. The time limit set out in Rule 60(c) would apply. The motion to set aside the earlier order was entered on March 12,1990. However, the Court failed to rule on the motion for 73 days following its filing. This Court has stated that upon the completion of the 45 day time limit, the motion is considered denied and jurisdiction is lost over that issue. In re Marriage of Miller, 238 Mont. 108, 776 P.2d 1218 (1989). In this case, the court lost jurisdiction by April 26, 1990, well before the time for the first hearing on the motion to set aside.

We find that the District Court was without jurisdiction to set aside the Order of dismissal dated March 6, 1990, and therefore was without jurisdiction to enter the Dissolution, Findings of Fact and Conclusions of Law of May 25, 1990. For these reasons we reverse the judgment entered for Chacon on May 25, 1990, and vacate the Findings, Conclusions and Judgment of that date, and reinstate the order of dismissal dated March 6, 1990.

JUSTICES HARRISON, HUNT, McDONOUGH and WEBER concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. TIMOTHY W. MOONEY, Defendant and Appellant.
    No. 90-504.
    Submitted on briefs Feb. 28, 1991.
    Decided Apr. 22, 1991.
    248 Mont. 115.
    809 P.2d 591.

      C. F. Mackay, Anaconda, for defendant and appellant.
    Marc Racicot, Atty. Gen., Paul D. Johnson, Asst. Atty. Gen., Helena, Christopher G. Miller, Deer Lodge, for plaintiff and respondent.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Appellant, Timothy W. Mooney, was convicted, following a jury trial in the District Court for the Third Judicial District, Powell county, of felony assault in violation of § 45-5-202(2)(c), MCA. From that conviction he appeals. We affirm.

The only issue raised on appeal is:

Did the District Court err in refusing defendant’s motion to dismiss for lack of a speedy trial?

SUMMARY OF FACTS

On June 15, 1989, the District Court issued its Order granting leave to file an information charging the defendant with felony assault. Leave had been sought based upon the State’s allegation that on May 23, 1989, while an inmate at the Montana State Prison, Mooney had knowingly and purposefully caused bodily injury to a correctional officer whose name was Tallón Miller. The information was filed on that same date.

On June 22, 1989, defense counsel appeared in court on behalf of the defendant. At that time the defendant requested a psychiatric examination and asked that his arraignment be continued until receipt of the psychiatrist’s report. That order was granted.

The psychiatric report was submitted on October 10, 1989. This case was then set for trial on November 30, 1989.

The clerk of court’s notes dated November 30, reflect that the defendant had not been able to decide until the previous Tuesday whether to plead guilty or go to trial. On that basis, his attorney represented to the court that he was unprepared to go to trial, and the trial date was vacated. The clerk’s notes also reflect that at that time defendant’s attorney represented to the court that there would not be a “speedy trial” problem.

This case was next scheduled for trial and was actually tried on March 26,1990. On March 21, four days before trial, defendant moved to dismiss the complaint against him for the reason that he had been denied his constitutional right to a speedy trial. That motion was denied.

On March 26,1990, the State called four witnesses and concluded its case by noon. Defendant’s case was concluded by 2:25 p.m., and the jury returned a verdict of guilty by 5:00 p.m. that same day.

There is no indication in the record that the State in any way contributed to the delay that occurred from November 30,1989, until March 26, 1990, when this case actually went to trial. It appears to have been a purely institutional delay as a result of the normal occurrence of the criminal trial calendar in Powell county.

The record also reflects that at the time of the acts which form the basis of the complaint against the defendant he was an inmate at the Montana State Prison housed in maximum security; he was not eligible to be considered for parole until June 1990; and the soonest he could have been released from his original imprisonment was August 26, 1990.

SPEEDY TRIAL ANALYSIS

The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution, which is made applicable to the states by the Fourteenth Amendment. Klopfer v. North Carolina (1967), 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1. The right to a speedy trial is also guaranteed by Article II, Section 24, of the 1972 Montana Constitution.

To determine whether a defendant’s right to a speedy trial has been violated, the United States Supreme Court has set forth several factors which should be considered. Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101.

These factors have been applied by this Court on numerous occasions. State v. Steward (1975), 168 Mont. 385, 543 P.2d 178; State v. Keller (1976), 170 Mont. 372, 553 P.2d 1013; State ex rel. Briceno v. District Court (1977), 173 Mont. 516, 568 P.2d 162. The four factors that are to be considered and balanced are:

1. length of delay;
2. reason for delay;
3. assertion of the right by defendant; and
4. prejudice to the defendant.

However, none of the four factors are either necessary or sufficient conditions in the determination of whether there has been a deprivation of the right to a speedy trial. Barker, 407 U.S. at 533, 92 S.Ct. at 2193.

This Court has stated:

“... that the first of the Barker factors, the length of delay, is the trigger to a speedy trial inquiry. There is no need to examine the latter three factors unless some delay deemed presumptively prejudicial has occurred.”

State v. Palmer (1986), 223 Mont. 25, 27, 723 P.2d 956, 958.

The appellant contends that the delay dates from his arrest on May 23, 1989, and continues to the date of trial on March 26, 1990, for a total of 307 days. The State contends that when an accused is already in prison for a prior offense, the speedy trial clock does not begin to run until formal charges are filed. From that starting point, the State suggests that the total delay that occurred in this case is 284 days. It is not necessary to decide in this case whether the total delay is calculated from the date of Mooney’s arrest or the date on which he was formally charged. By either calculation the total delay was sufficient to trigger a speedy trial inquiry. See, Palmer, 723 P.2d at 958.

Having triggered the “speedy trial” inquiry based upon the unusual length of delay in this case, the State must either provide a reasonable excuse for the delay or show that the defendant was not prejudiced thereby. State v. Ackley (1982), 201 Mont. 252, 653 P.2d 1. In considering those factors, we will proceed with the remainder of the Barker test.

The second Barker factor is the reason for delay. The period of delay attributable to the defendant’s actions should be deducted from the total delay in determining whether it was an unreasonable period.

In Palmer we found that the length of delay caused by a defense request for a mental evaluation was attributable to the defendant. Palmer, 723 P.2d at 958. In this case, a mental evaluation was requested by the defendant on June 22,1989, and the evaluation was provided to the court on October 10,1989. The evaluation resulted in a delay of 110 days.

In State v. Dess (1979), 184 Mont. 116, 124, 602 P.2d 142, 146, we held that delay which resulted from the defendant’s motion to continue the trial date was also attributable to the defendant. In this case, trial was originally set for November 30, 1989, and was continued at the request of the defendant. It was next scheduled for March 26, 1990. There is no evidence that the length of the continuance was caused by any conduct on the part of the State. The length of that delay was 116 days. Therefore, if we accept the length of delay as 307 days, as suggested by the defendant, 226 of those days were necessitated by the defendant’s exercise of his procedural rights. Eighty-one days are attributable to the State. Of those 81 days, there is no evidence to suggest, nor does the defendant contend, that they were caused by bad faith or oppressive tactics by the State.

No one would suggest that defendant should waive his procedural rights for a speedy trial or that institutional delays are acceptable if they result in prejudice to the defendant. However, institutional delays, and delays which are attributable to the defendant, weigh less heavily against the State in the balancing process to which we initially referred.

The third factor under Barker is “assertion of the right by the defendant.” In this case, even though defendant at one time suggested that he would not raise a “speedy trial” issue, and even though it was not raised until four days prior to trial, the State concedes that the defendant made a timely assertion of his right to a speedy trial. Based upon previous decisions of this Court, it appears that defendant’s assertion of his right was timely. See, Steward, 543 P.2d at 182. However, future litigants are reminded that in the past failure to object to lack of a speedy trial until the eve of trial shows a lack of actual interest which should be considered in balancing the Barker factors. State v. Carden (1977), 173 Mont. 77, 566 P.2d 780; 626 F.2d 82, (9th Cir. 1980), cert. denied, 449 U.S. 1014, 101 S.Ct 573, 66 L.Ed.2d 473.

The final Barker factor is “prejudice to the defendant.” In Barker, the United States Supreme Court identified three interests of a defendant which may be prejudiced by a delay in coming to trial. The interests are: (1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will be impaired. Barker, 407 U.S. at 532, 92 S.Ct. at 2193.

Applying those factors to this case we find that, regardless of how the various periods of delay are attributed, the total length of delay did not prejudice the defendant.

First of all, there was no pretrial incarceration attributable to these charges. Mooney was already in prison on an unrelated conviction and would have remained in prison on that conviction beyond the date on which this case was tried. It is true that where the circumstances of imprisonment change for the worse because of subsequent charges pretrial incarceration can be a factor causing prejudice to the defendant, even though he would have remained in prison under other circumstances during that same period of time. Smith v. Hooey (1969), 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607. However, the evidence in this case is that defendant had been housed in maximum security at the time of the offense with which he was charged and that he remained in maximum security. There is no evidence in the record regarding any rights, privileges, or benefits that were lost by the defendant as a result of the charges which were pending against him.

Second, there is nothing in the record to indicate that the time involved in coming to trial caused any additional or unusual anxiety and concern to the defendant. It is presumed that in every case, a person who has felony charges pending against him will experience anxiety and concern because of those charges. However, there is no evidence that in this case those feelings were aggravated or made worse by conduct on the part of the State or because of the length of time that occurred from the time of defendant’s arrest until his trial.

The final and most important consideration in deciding whether there was prejudice to the defendant is the consideration of whether his defense was impaired by the delay. We conclude that it was not.

The State called three correctional officers and the prison nurse as witnesses at the time of trial. In essence, they testified that on May 23, 1989, the defendant was released from his cell in the maximum security section of the prison so that he could go to the shower room for a shower. Tallón Miller, who was a correctional officer, was present in the shower room. The defendant grabbed him by the collar and punched him in the head. As a result of the blow, Miller developed a painful bump on his head.

The defendant did not deny that he assaulted Miller. Instead, he called three other inmates as witnesses. All of them were housed in the same maximum security cell block in which defendant was housed at the time of his alleged offense. They described an incident that occurred several days prior to May 23 when Miller was bringing food to the defendant. They testified that Miller appeared to spit into the food before passing the tray to the defendant; that defendant rejected the tray; and that Miller called the defendant a “punk.” They testified that the term “punk” is an extremely derogatory term in prison vernacular, and that if Mooney had failed to respond, his failure would have exposed him to ridicule and potential abuse from other inmates. In spite of this evidence, the jury found that Mooney’s conduct was unjustified.

There is no evidence that Mooney would have called witnesses who were unavailable due to the passage of time or that he had any evidence to offer other than that which was offered. For these reasons we conclude that his defense was in no way impaired by the passage of time.

We hold that under the four-factor balancing test of Barker, Mooney was not denied his right to a speedy trial, and the District Court did not err in denying the defendant’s motion to dismiss.

We affirm the defendant’s conviction in the District Comb.

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