text:
    IN RE THE MARRIAGE OF DANIEL G. BRADSHAW, Petitioner and Respondent, -v-MICHELLE NORICK BRADSHAW, Respondent and Appellant.
    No. 94-289.
    Submitted on Briefs December 8, 1994.
    Decided March 9, 1995.
    52 St.Rep. 154.
    270 Mont. 222.
    891 P.2d 506.

      For Appellant: Laurence J. Ginnings, Missoula.
    For Respondent: John C. Schulte, Missoula.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal and a cross-appeal from the Findings of Fact, Conclusions of Law and Final Decree of Dissolution of the Fourth Judicial District Court, Missoula County. We affirm in part and reverse and remand in part.

The following are issues on appeal and cross-appeal:

APPEAL ISSUES

I. Did the District Court err in awarding the wife $6,000 equity in the house?

II. Did the District Court err in ordering the husband to pay for the wife’s future dental expenses associated with tooth repair?

III. Did the District Court err in ordering the husband to undergo and pay for counseling as a condition of exercising unsupervised visitation?

IV. Did the District Court err when it refused to award the husband a variance from child support for the court-ordered counseling?

CROSS-APPEAL ISSUES

I. Did the District Court err in granting grandparent visitation when there was no petition by the grandparents for such visitation?

II. Did the District Court err when it did not order that the beneficiary of the husband’s annuity be the child?

III. Did the District Court err in not awarding the wife maintenance?

IV. Did the District Court err in not awarding the wife a higher share of the equity in the house?

V. Did the District Court err in not awarding the wife attorney’s fees?

FACTUAL AND PROCEDURAL BACKGROUND

Daniel G. Bradshaw (Daniel) and Michelle Norick Bradshaw (Michelle) were married in Missoula, Montana on September 2,1992, and they were separated in early February, 1993. Daniel and Michelle have one child, Daniel Richard Bradshaw, (Danny), who was born on June 17, 1992.

Daniel’s petition for dissolution came on for hearing on August 27, 1993, and September 1, 1993, before Susan P. Leaphart, a Special Master. The Special Master filed her Recommended Findings of Fact, Conclusions of Law and Opinion on September 17,1993. The District Court adopted the Special Master’s recommendations with a few minor changes on January 13,1994, with an Order regarding Objections to the Special Master’s Findings of Fact and Conclusions of Law and Final Decree of Dissolution. The following factual information comes from the Special Master’s Findings:

Daniel suffers from serious physical impairments sustained in a head injury when he was 15 years old. He also has a learning disability which causes problems in processing information and communicating orally and in writing. Michelle is able-bodied and in good health.

Daniel’s physical and mental impairments impede his ability to obtain employment and his options seem to be manual labor positions such as dishwashing and custodial work, positions which he has held in the past. At the time of the dissolution he was unemployed and receiving unemployment benefits of $ 103 which were about to expire.

Also about the time of the dissolution, Michelle, who had been unemployed, was hired by a health care facility for $5.10 per hour with an increase to $5.60 per hour when she receives her Nurse’s Aide certification. Immediately prior to her hiring at the health care facility, she was receiving $310 per month in general assistance and $161 per month in food stamps.

Daniel received a structured settlement due to his head injury and receives a monthly annuity of $1,200.00, which increases by four percent annually, and a lump sum of $2,500.00 in July of each year which increases by three percent annually.

Daniel’s major asset is the home at 2300 Woodcock in Missoula, which he purchased on December 7,1989, for $48,000, paying $16,000 as a down payment. He purchased the home with funds from his personal injury settlement. Daniel has paid all mortgage payments, taxes and insurance payments associated with the home. Michelle has not contributed in any meaningful way, either economically or non-economically, to the value of the home. The increase in value of the house is due entirely to the inflation of home values in the Missoula area. An expert valued the home at $64,000 at the time of the dissolution.

Michelle has been Danny’s primary caregiver and Daniel has cared for Danny for only a few brief time periods. Although Daniel and Danny have an affectionate relationship, Daniel’s disabilities prevent him from adequately parenting Danny on a full-time basis. The social worker who performed the custody assessment recommended that Daniel be granted reasonable supervised visitation while Michelle should be designated as the primary custodial parent.

The social worker recommended supervised visitation until such time as Daniel completes a Child Abuse Potential Inventory, an Adult Parent Inventory, and counseling which offers training and education in child development and parenting skills. Moreover, the social worker recommended that Daniel receive counseling with a therapist trained in working with head injury victims. Periods of depression and violent outbursts concerned the social worker as they may affect Daniel’s parenting of his son. Unsupervised visitation may be appropriate upon completion of the above mentioned programs and a recommendation by Daniel’s primary treating therapist.

The social worker also recommended that Michelle continue in counseling with her therapist and that she attend educational counseling with Daniel’s therapist regarding head injuries. The social worker also suggested that the entire family be monitored by a case manager for 12 months.

The social worker also testified that it would be in Danny’s best interests if Daniel’s parents, who live in Libby, could exercise visitation. This practice would be contingent upon Daniel’s parents signing an agreement that Danny would never be left alone with Daniel on any of the visits. Daniel’s mother has stated that she would be agreeable to such an agreement and that the paternal grandparents would provide Danny’s transportation on such visits.

Daniel had the following expenses at the time of the dissolution:

1. Rent - $100.00 per month.
2. Purchase or mortgage payments and taxes - $360.27 per month
3. Utilities - $50.00 per month
4. Food - $175 per month
5. Transportation - $150 per month
6. Insurance - $275 every 3 months
7. Recreation - $25.00 per month
8. Other regular or extraordinary expense - $225.00 per month
9. Water - $20.00 per month
10. Montana Power Company - $75.00 per month
11. Telephone - $100.00 per month
12. Chapter 13 payments - $200.00 per month
13. Repair to truck - $2400.00
TOTAL - $1347.27 PER MONTH
Michelle had the following expenses at the time of the dissolution:
1. Doctor bills - $25.00 per month (until $130 balance is paid)
2. Telephone - $16.00 to 19.00 per month
3. Garbage - $11.00 per month ($40.00 owing)
4. Gas - $100.00 per month
5. Clothing for Danny - $200.00 per month
6. Personal bills - minimum of $50.00 per month
7. Repair to tooth - total approximately $3000.00
TOTAL - $405.00 PER MONTH

The monthly totals do not include the costs of repairing Michelle’s tooth or Daniel’s truck. The parties filed bankruptcy and Daniel has been making Chapter 13 payments of $200.00 per month to retire this debt. These payments are to continue for three years.

The following conclusions of law from the Special Master’s opinion, adopted by the District Court, are pertinent to the issues on appeal:

1. The home at 2300 Woodcock was awarded to Daniel.
2. Michelle was awarded $6,000, a portion of the equity in the home.
3. Michelle will not be awarded maintenance because she is able to support herself through employment commensurate with her education and skills.
4. Michelle is designated as the primary custodial parent with Daniel granted supervised visitation.
5. Daniel shall be evaluated for parenting skills and, if appropriate, receive counseling and education to develop necessary parenting skills.
6. Daniel shall receive counseling with a primary therapist who is knowledgeable about head injuries.
7. Daniel may exercise supervised visitation with Danny twice a week and supervision shall be arranged through Extended Family Services in Missoula.
8. Danny’s paternal grandparents shall have visitation with Danny once a month, providing for Danny’s transportation, if they will sign a stipulation stating that they will not leave Danny alone with Daniel.
9. Daniel shall pay child support in the amount of $539.00.
10. Daniel shall pay for the repair of Michelle’s tooth.
11. Each party will be responsible for his/her attorney fees.

From the order of the District Court, adopting the Special Master’s Findings of Fact and Conclusions of Law, with some modifications, both parties appeal.

STANDARD OF REVIEW

The standard of review for findings of fact of a district court is whether the court’s findings are clearly erroneous and whether its conclusions of law are correct. In re Marriage of Rada (1994), 263 Mont. 402, 405, 869 P.2d 254, 255. This Court is not bound by a lower court’s conclusions of law; this Court remains free to reach its own conclusions. In re Marriage of Danelson (1992), 253 Mont. 310, 317, 833 P.2d 215, 219.

ISSUE I — $6,000 EQUITY IN THE HOUSE FOR MICHELLE

The Special Master found that Daniel had purchased the home prior to the marriage, making a downpayment of $16,000 from his settlement monies and that he had paid all mortgage payments, taxes and insurance payments associated with the house from his settlement and annuity. Moreover, Michelle “ha[d] not contributed substantially to the value of the house either monetarily or as a homemaker.”

The distribution of property is governed by § 40-4-202, MCA, which provides in pertinent part:

(1) ... In dividing property acquired prior to the marriage; ... the increased value of property acquired prior to marriage;... the court shall consider those contributions of the other spouse 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.

This Court has held that the “source of the property was a major factor to be considered by the District Court dividing property under Section 40-4-202, MCA.” In re Marriage of Summerfelt (1984), 212 Mont. 332, 337, 688 P.2d 8, 11. Moreover, if the increase in value of the property is not a product of contribution from a marital effort, the court may find that the non-acquiring spouse has no interest in the property at issue. In re Marriage of Stewart (1988), 232 Mont. 40, 44, 757 P.2d 765, 768. Although Stewart concerned inherited property, the proposition is applicable here.

In the instant case, the court specifically found that Daniel purchased the home with his own funds before the couple married and he paid for all mortgage and insurance payments as well as taxes associated with the home. Michelle did not make any substantial contributions to the home monetarily or as a homemaker. The court also found that the increase in the value of the house was entirely due to the general inflation of home values in the Missoula area. Under subsection (a) and (b) of § 40-4-202, MCA, Michelle would not be entitled to any portion of the equity in the house because she made no contributions to the maintenance and value of the property.

Moreover, although the court stated that the $6,000 in equity in the house awarded to Michelle was in lieu of maintenance, the court also stated elsewhere in the opinion that it was not appropriate for Michelle to be awarded maintenance. Therefore, under subsection (c) of § 40-4-202, MCA, Michelle would not be entitled to a portion of the equity in the house. We also note that the length of the marriage was brief — the couple lived together as husband and wife for only five months.

Considering § 40-4-202, MCA, and our case law interpreting that statute, we determine that the District Court should have properly concluded that Michelle was not entitled to any share of the equity in the house. We hold that the District Court erred in awarding a share of the equity in the house to Michelle and accordingly, we reverse on this issue.

ISSUE II — TOOTH REPAIR

Daniel argues that he should not be liable for Michelle’s dental expenses associated with her tooth injury because these damages were not plead and he had no notice and opportunity to present evidence on the disputed issue. Michelle asserts that Daniel should pay for the repair of the tooth because he admitted to causing the damage. Moreover, although Michelle states that she did not specifically ask for these damages in her prayer for relief, she did request “such other and further relief as the Court may deem just and proper.”

Finding of Fact no. 43 in the Special Master’s findings and conclusions states that “[d]uringthe marriage, Petitioner [Daniel] inflicted damage to Respondent’s tooth. Costs of the repair to that tooth should be borne by the Petitioner. The estimated cost of this repair is approximately Three Thousand Dollars ($3,000.00).” Conclusion of Law no. 23 states that “Petitioner shall pay for the repair of Respondent’s tooth in the amount not to exceed $3,000.00.”

We find two problems with awarding Michelle up to $3,000.00 for the repair of the tooth in the instant case. First, although Michelle contends that Daniel admitted during the hearing that he had damaged her tooth, we have no record which we can review to determine whether an admission was indeed made. Moreover, we cannot determine whether, as Daniel insists, Michelle sought to introduce an estimate prepared by Dr. Ming but the exhibit was not received into evidence. Therefore, this Court is hampered by an inability to review the record to determine what evidence was actually presented. We do, however, find support in the record for Daniel’s contention that he strenuously objected to the finding of fact and conclusion of law regarding the tooth damage and subsequent repair.

Second, and most problematic, is the fact that Daniel received no notice regarding this claim, essentially a personal injury claim, until the dissolution hearing. There is no indication in Michelle’s response to the petition for dissolution that the personal injury claim might be an issue during the proceedings. “The purpose of a pleading is to provide notice before trial to the opposing party of the specific relief being sought so that both parties have an opportunity to present evidence on the issues in dispute.” Matter of Custody of C.J.K. (1993), 258 Mont. 525, 527, 855 P.2d 90, 91. Here, it appears that no such notice was provided and no opportunity to present evidence on the issue was afforded Daniel. C.J.K. states that there are exceptions which provide the court with jurisdiction to grant relief outside of the issues presented in the pleadings; if the parties stipulate that other questions may be considered or if the pleadings are amended to conform to the proof, citing Old Fashion Baptist Church v. Department of Revenue (1983), 206 Mont. 451, 457, 671 P.2d 625, 628. Parties may “stipulate” either expressly or impliedly. C.J.K., 855 P.2d at 91. (Citation omitted.) There is no evidence here that an expressed stipulation to consider the issue of tooth repair occurred.

Moreover, “[c]oncerning the issue of implied consent, we have stated that ‘pleadings will not be deemed amended to conform to the evidence because of ‘implied consent’ where the circumstances were such that the other party was not put on notice that a new issue was being raised.’ ” C.J.K., 855 P.2d at 91. There is no evidence that Daniel received notice before trial that the tooth repair was an issue and therefore, he could not have consented to consider the issue. Further, he objected to the consideration of this issue because he was not provided proper notice, he does not admit to injuring the tooth and the issue of tooth repair is a personal injury issue, not a dissolution issue. Such objection cannot be interpreted to provide implied consent to consider the issue. C.J.K., 855 P.2d at 91. Therefore, there was neither a stipulation nor an amendment of the pleadings to conform to the proof and no exception applies here.

Lack of notice may have prejudiced Daniel and prevented him from having adequate opportunity to prepare evidence and testimony regarding the issue. C.J.K., 855 P.2d at 91. We therefore hold that the determination of the issue of the tooth repair was not properly before the District Court and we reverse the District Court’s conclusion on this issue.

ISSUE III — PAYMENT OF COUNSELING

Daniel argues that there was no substantial credible evidence that he should have only supervised visitation until he received appropriate counseling and an assessment of his parenting skills. According to Daniel, the cotut did not consider the costs associated with counseling and supervised visitation. Section 40-4-212, MCA, states that “[t]he court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors, including... the mental and physical health of all individuals involved [and] physical abuse or threat of physical abuse. ...” The Special Master made the following findings regarding Daniel’s physical and mental health as well as his issues of physical abuse:

First, Daniel was involved in a wrestling accident when he was 15 years old. The accident resulted in brain trauma, leaving his left arm permanently paralyzed and his left side impaired. His physical condition is expected to deteriorate as he gets older. Second, he also has a learning disability which causes problems in processing and communicating orally and in writing. Third, Daniel has cared for Danny without assistance for only a few brief time periods. Fourth, Karen Emerson, the social worker who conducted the custody assessment, concluded that Daniel should be granted reasonable supervised visitation. Fifth, Emerson recommended that visitation be supervised until he completed a Child Abuse Potential Inventory, an Adult Parent Inventory, counseling, education and training in child development and parenting skills, and counseling with a primary therapist trained in treating clients with head injuries. Emerson was particularly concerned with Daniel’s violent outbursts and periods of depression. These findings are supported by the Special Master Report which Karen Emerson provided to the Special Master. When Daniel was interviewed during the custody assessment process, he stated that he had hit Michelle and destroyed property in anger on several occasions. He also reported that law enforcement authorities had been called to the home at least six times due to his violent behavior, and he admitted he has problems managing his anger. He also spoke about being hospitalized two times for suicidal ideation.

Given that § 40-4-212, MCA, requires consideration of the mental and physical health of the individuals involved, and because of the reported incidents of abuse and possibility of future physical abuse here, the District Court appropriately granted supervised visitation. Daniel admitted to having problems with anger and aggression, including incidents of hitting Michelle and destroying property. There were also reports of six incidents where the police were called to the home because of violent behavior on Daniel’s part. Clearly, there is cause for concern for Danny’s safety. Moreover, although this Court may be sympathetic to Daniel’s concern regarding the cost of the counseling, under § 40-4-212, MCA, the best interest of the child is the paramount consideration in granting visitation.

This case can be distinguished from In re Marriage of Gebhardt (1989), 240 Mont. 165, 783 P.2d 400, cited by Daniel. In Gebhardt, the wife reported eight instances of abuse by the husband/father. However, there was conflicting testimony as to who instigated some of those confrontations between the husband and the wife and between the husband and one of the children. Both parents agreed that corporal punishment was appropriate for children. The Court also found that the wife’s affidavit regarding visitation was self-serving and contained no evidence to reflect “a potential for serious endangerment.” Gebhardt, 783 P.2d at 405.

In the instant case, there was evidence presented by both parties to the effect that Daniel has had problems with anger and physical aggression including several incidents where the police were called. These problems, where they are found to exist, must properly be considered by the court in its assessment of custody and visitation under § 40-4-212, MCA.

Daniel also argued that Emerson lacked the expertise to make recommendations concerning Daniel’s medical condition. However, dining the custody evaluation, the social worker interviewed Daniel, Michelle, references, therapists, police reports, an employment counselor as well as interviewing a rehabilitation social worker, trained to work with individuals with head injuries to facilitate her report to the Special Master. She also reviewed appropriate literature to help her understand head-injured persons and their problems and concerns. Emerson has a master’s degree in social work, and she located additional resources to ensure a valid and comprehensive custody evaluation, taking into consideration the special concerns and problems of head-injured persons. This argument is accordingly, without merit.

In the instant case, Daniel has been given the opportunity for unsupervised visitation upon the approval of his therapist and upon proper training and education in child development and parenting skills. Albeit a financial strain, with Daniel’s history and background, this is an appropriate visitation plan. Substantial evidence supports the District Court’s conclusion on this issue. We hold that the District Court properly determined and correctly concluded that Daniel should undergo counseling as a condition of exercising visitation.

ISSUE IV — VARIANCE IN CHILD SUPPORT

Daniel’s final argument concerns whether the District Court should have awarded him a variance in child support for his expenses associated with the joint bankruptcy obligation and the court-ordered counseling. Daniel contends that he should receive a variance of $100.00 per month for the joint bankruptcy payments and a further variance for the cost of the counseling. Daniel argues that the District Court determined that his expenses were $1,347.27 per month, which costs did not include any child support payments or the cost of repairing his vehicle which was not in operating condition. Daniel’s unemployment benefits were about to expire, and he was still unemployed at the time of dissolution. His monthly annuity is $1,200.00, and even with his unemployment benefits, he was finding it hard to meet his monthly expenses. Daniel contends that the result of the court order to pay child support of $539.00 per month is that he has to pay almost half of his annuity income to child support. Moreover, he still cannot afford to pay for the counseling and supervised visitation and is, in effect, prevented from seeing his child in a meaningful way.

Rule 46.30.1543(h), ARM, permits a variance in child support payments based upon the overall financial condition of a parent. In the instant case, Daniel has expenses of $1,347.27.00 per month, which does not include the cost of repair to his truck, child support payments or the cost of counseling and supervised visitation. It does include a $200.00 monthly payment for the joint bankruptcy obligation. Daniel receives a $1,200.00 per month annuity and was receiving $103.00 per month in unemployment compensation. However, the unemployment payments were about to expire at the time of the dissolution.

Clearly, Daniel has a difficult time meeting his expenses without even considering child support and counseling payments. It is unrealistic to expect him to meet his own expenses, make payments on the joint bankruptcy obligation and make child support payments of $539.00 and pay for counseling in order to exercise his visitation. Considering subsection (h), of Rule 46.30.1543, ARM, a variance in child support payments is in order. At the time of the dissolution, Daniel’s overall financial condition was poor. This situation needs to be carefully considered in determining an appropriate child support payment amount for Daniel. We reverse the monthly child support payments set at $539.00 and remand for a recalculation considering a variance from the child support obligation previously calculated.

CROSS APPEAL ISSUE I — GRANDPARENT VISITATION

Michelle’s first issue on cross-appeal is whether it was error for the court to allow grandparent visitation when there was no petition from the grandparents before the court. Darnel argues that the grandparents were actually granted visitation in order to facilitate his exercise of parental visitation and therefore, the granting of grandparent visitation was appropriate.

There appears to be no disagreement that a petition for visitation by Danny’s paternal grandparents was never filed. Section 40-4-217(2), MCA, permits the grant of visitation to grandparents upon the petition of a grandparent if the court finds, after a hearing, that visitation would be in the best interest of the child. Even though there was some discussion about grandparent visitation in the Special Master’s Report, the Special Master’s Recommended Findings and Conclusions and the District Court’s Order regarding Objections to the Special Master’s Recommended Findings, Conclusions and Final Decree of Dissolution, there is no mention of a petition for grandparent visitation nor is there evidence that a hearing was held to determine whether such visitation was in Danny’s best interests. Therefore, this issue was not properly before the court and we hold that the District Court erred in granting visitation to the paternal grandparents and accordingly, reverse on this issue.

CROSS-APPEAL ISSUE II — ANNUITY BENEFICIARY

Michelle argues that Danny should be the surviving beneficiary of Daniel’s annuity, and that the trial court should have ordered that designation to avoid potential future litigation because Daniel’s mother, the named surviving beneficiary, and Michelle do not “get along.” Therefore, according to Michelle, Danny may not receive the money to which he is entitled. Daniel contends that he is entitled to designate a personal representative of his choice to administer his annuity, and that, since there is no actual controversy here, Michelle cannot request relief for a future harm which “possibly may occur.” We agree with Daniel.

The dispensation of Daniel’s estate and the payment of child support from his estate are not issues before this Court because Daniel is still alive. No actual case or controversy is presented. “Therefore we do not have a justiciable controversy over which the judicial power to determine real controversies may be exercised.” Hardy v. Krutzfeldt (1983), 206 Mont. 521, 525, 672 P.2d 274, 276. Absent a real controversy, this Court does not have the power to address the issue presented. Hardy, 672 P.2d at 276. Nor was this issue properly before the District Court. Accordingly, it will not be considered further.

CROSS APPEAL ISSUE III — MAINTENANCE

Michelle argues that she should have been awarded maintenance because her property is insufficient to provide for her reasonable needs. She asserts that her need for retraining and the needs of her child justify an award of maintenance. Daniel counters her argument by stating that she is in good health, is able-bodied and “is able to support herself through employment commensurate with her education and skills [and that] she does not meet the statutory requirements for an award of maintenance.” Daniel further states that Michelle is more employable than he is, and “both parties have had inadequate financial resources to meet their monthly obligations.” We agree with Daniel.

The Special Master made the following findings of fact about Michelle, adopted by the District Court. She is able-bodied and in good health and although she had been unemployed, she was hired during the course of the hearing to be trained as a certified nurse’s aide at $5.10 per hour plus benefits with a $.50 raise once certified. The court found that she had demonstrated that she was able to locate work appropriate to her level of training and education. The court found that her job would help her to achieve her goal of becoming an LPN or an RN. The court also determined that the marriage had lasted only five months. The corut concluded that she did “not meet the statutory requirements for an award of maintenance and, therefore maintenance [was] not appropriate in this case.”

The court found that Daniel suffered serious physical impairments when he received a head injury when he was 15 years old. His left arm is permanently paralyzed and the left side of his body is impaired. His physical condition is expected to deteriorate as he gets older. Moreover, he has a learning disability which affects his processing of oral and written communication and impedes his ability to communicate effectively. He was unemployed at the time of the dissolution and was not expected to work at any jobs other than manual labor jobs such as dishwasher and custodial work. His physical and mental impairments were found to restrict his ability to obtain employment.

Clearly, Michelle’s educational and economic prospects are brighter than Daniel’s prospects. Daniel can barely provide for his own needs, much less provide maintenance for Michelle. She has proven that she is able to “support herself through employment commensurate with her education and skills.” She has already sought and obtained a position through which she can continue to receive an education and improve her skills and employability. She does not meet the requirement for maintenance set forth in § 40-4-203(l)(b), MCA, because she is able to support herself through appropriate employment, and she is not the custodian of a child whose condition makes it inappropriate to seek employment outside of the home. Moreover, considering the factors set forth in § 40-4-203(2), MCA, an award of maintenance is inappropriate. The marriage was of short duration, Michelle is young, able-bodied and in good health. Daniel is barely able to meet his own needs and does not have the ability to work in positions other than manual labor such as dishwashing or custodial work. We therefore hold that the District Court correctly concluded that this is not a situation in which an award of maintenance would be appropriate.

CROSS APPEAL ISSUE IV — CALCULATION OF EQUITY

Michelle’s next argument is that the District Court’s calculation of the amount of equity in the house to which she was entitled was miscalculated. This issue was dispensed with in Appeal Issue I wherein we held that Michelle was not entitled to any equity in the house. Therefore, this issue need not be further addressed.

CROSS APPEAL ISSUE V — ATTORNEYS FEES

Michelle’s final argument is that she should have been awarded attorney’s fees. Section 40-4-110, MCA, governs awards of attorneys fees and provides:

The court from time to time, after considering the financial resources of both parties, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under chapters 1 and 4 of this title and for attorneys fees. ...

The District Court may award attorneys fees after considering the financial resources of both parties and such an award is ‘largely discretionary with the District Court. ...” In re Marriage of Roullier (1987), 229 Mont. 348, 360, 746 P.2d 1081, 1088. This is not a case such as Roullier where one party is clearly in a better financial position and can properly be ordered to pay attorney’s fees. In the instant case, in view of both parties’ well-documented negligible financial resources and Daniel’s overall health and employability problems, neither party is in a position to pay the other party’s attorneys fees and the District Court properly considered this issue. We hold that the District Court did not err in ordering each party to pay their own attorney’s fees.

AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

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


source: Caselaw Access Project

author: JUSTICE LEAPHART JUSTICE GRAY,

license: Public Domain

text:
    STEPHEN P. WEBER, Petitioner and Respondent, -vs-PUBLIC EMPLOYEES’ RETIREMENT BOARD, Respondent and Appellant.
    No. 94-296.
    Submitted on Briefs January 12, 1995.
    Decided March 9, 1995.
    52 St.Rep. 162.
    270 Mont. 239.
    890 P.2d 1296.

      For Appellant: Kelly A. Jenkins, Special Assistant Attorney General, Helena.

      For Respondent: Eric B. Thueson, John A. Kutzman, Attorneys at Law, Helena.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

The Board of Administration of the Public Employees Retirement Division (PERB) appeals from the decision of the District Court of the First Judicial District, Lewis and Clark County, which reversed the decision of PERB denying Stephen Weber (Weber) disability retirement benefits under Title 19, Chapter 3, Part 10, MCA.

Issues

1. Did the District Court improperly assume jurisdiction over Weber’s petition for judicial review which was filed more than thirty days after Weber was personally notified of the Administrative decision but within thirty days of the written memorandum of decision?

2. Did the District Court commit reversible error in concluding that PERB misapprehended the effect of the medical deposition testimony of Dr. Etter?

Background

From 1981 through September 9 of 1988 when he resigned his position, Weber was the assistant administrator of the Tort Claims Division (now known as the Insurance and Legal Division) for the Montana Department of Administration. Weber suffers from Multiple Sclerosis (MS), a disorder which affects the brain and nervous system and is characterized by the appearance of “plaques” (scar tissue) on the nerves which can disrupt the transmission of nerve impulses. The symptomology of the disease includes numbness; lost or reduced mobility; loss of strength and coordination; deterioration of vision; and deterioration of speech. Another aspect of this disease is that it is often characterized by alternating periods of increased and decreased symptoms (“exacerbations” and “remission”), such that an MS victim may appear normal during a period of remission, which may last for days, weeks, or even months. Additionally, MS is known to be aggravated by physical and emotional stress.

Weber has had MS at least since the early 1970s. Although he was tentatively diagnosed with MS in 1976, he was not conclusively diagnosed until June of 1991, when he underwent an MRI (Magnetic Resonance Image) of his head. He had experienced symptoms consistent with MS over the twenty-year period beginning around 1970, but given the non-debilitating nature of his symptoms for most of that time, along with the invasive nature of past techniques for confirming MS (spinal tap), his physicians had elected not to aggressively pursue a diagnosis. Consequently, Weber did not know he had MS when he left his job with the State in September of 1988, at which time he was suffering from what are now known to have been stress related complications of the disease, including double vision, loss of concentration and energy, ringing in his ears, and slurred speech. At the time of leaving his job in 1988, Weber attributed those symptoms to work-related stress.

In August of 1988, Weber learned that his position was being reclassified from pay grade level 16 to level 14. He believed that this pay reduction, as well as other problems he was having with his superiors at the time, was in retaliation for his refusal to authorize payment of what he felt was an inflated claim submitted to his department by another State agency, an opinion with which the Montana State Auditor concurred.

In August of 1989, Weber sued the State of Montana, alleging that his superiors’ treatment of him prior to his resignation created an intolerable work environment and amounted to a constructive discharge. On September 27, 1990, a jury agreed and awarded Weber more than $30,000 in damages. This verdict was upheld by the Montana Supreme Court on May 5,1992, in Weber v. State of Montana (1992), 253 Mont. 148, 831 P.2d 1359.

After learning that the physical problems he was experiencing at the time he left his job were in fact stress induced exacerbations of MS, Weber filed for disability retirement benefits from the Public Employees’ Retirement System (PERS) on August 6, 1991. In order to qualify for PERS disability benefits, the claimant must prove that he has become unable to perform the duties of his job by reason of physical or mental incapacity while in active service. Section 19-3-1002, MCA. Furthermore, the disability must be permanent, or of extended or uncertain duration as determined by PERB on the basis of competent medical opinion. Section 19-2-303(15), MCA.

In his application for disability benefits, Weber alleged that he became unable to effectively perform his job at the Tort Claims Division by August of 1988. At the hearing, Weber and his wife testified regarding his physical condition in 1988. Weber also presented the deposition testimony of his physician, Helena internist Dr. Harry Etter, who testified that in his opinion, and to a reasonable degree of medical certainty, Weber was disabled from performing his job by the time he resigned his position in 1988.

On December 19, 1991, PERB denied Weber’s application for benefits. Weber requested administrative review of this denial pursuant to the Montana Administrative Procedure Act, §§ 2-4-101 through 2-4-711, MCA. A contested case hearing was held on August 28, 1992, and on February 4, 1993, the hearing examiner recommended that Weber’s application for benefits be denied. On April 29, 1993, the parties presented oral argument to PERB concerning their objections to the hearing examiner’s proposed findings and conclusions. On May 17,1993, PERB adopted all of the hearing examiner’s proposed findings of fact, all but one of the conclusions of law, and adopted the examiner’s recommendation that Weber’s application for benefits be denied.

In support of its denial of benefits, PERB relied on previous statements made by Weber which tended to show that he resigned his position with the State in order to preserve the higher pay-out of his unused benefits, and not because he believed himself to be disabled; that he believed himself capable of continuing in his job; that he offered to remain in his job if his pay would not be cut; that he failed to seek medical attention for what he claimed was a particularly difficult exacerbation; and that in the course of his wrongful discharge trial, he characterized his health subsequent to his military service as excellent.

Although PERB did not employ a medical expert, it nonetheless concluded that Weber was not disabled at the time of his resignation. PERB relied on Dr. Etter’s response to a hypothetical question posed by PERB’s counsel on cross-examination to support its denial of Weber’s application for disability benefits.

Issue 1

Did the District Court improperly assume jurisdiction over Weber’s petition for judicial review which was filed more than thirty days after Weber was personally notified of the Administrative decision but within thirty days of the written memorandum of decision?

PERB contends that its final decision was stated in the record at the April 29, 1993 hearing, at which time Weber and his attorneys were present and were personally notified of its decision. On May 5, Weber requested a written memorandum of decision, as allowed by § 2-4-623(5), MCA. Accordingly, on May 17, 1993, a written memorandum of decision was mailed to Weber and his attorneys. Weber’s petition for judicial review was filed June 8, 1993. PERB contends that the thirty-day period for filing a notice of appeal began to ran from April 29, 1993, the date PERB orally announced its decision as opposed the May 17,1993, the date it forwarded a written memorandum of decision to Weber. The minutes of the April 29,1993, hearing indicate that the PERB attorney, “explained that the next step, after the Board reaches its final determination, when it rules on the exceptions before it and renders a final decision in writing, is that under the law either party has a right to petition [the] District Court for judicial review.”

Under the Montana Administrative Procedure Act, a party seeking judicial review of an agency decision must petition for such review “within 30 days after service of the final decision of the agency ...” Section 2-4-702(2)(a), MCA. We find, in the case at hand, the decision of the agency did not become “final” and was not served until May 17, 1993, when PERB issued a written document entitled “Findings of Fact, Conclusions of Law and Final Decision.” Weber’s petition for judicial review was filed within thirty days of May 17, 1993 and therefore was timely.

Issue 2

Did the District Court commit reversible error in concluding that PERB misapprehended the effect of the medical deposition testimony of Dr. Etter?

In its written memorandum, the District Court acknowledged that, normally, its review of an administrative decision is restricted to a determination as to whether or not the administrative findings of fact are clearly erroneous, and whether the agency’s interpretation of the law is correct. Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603. The District Court then relied on this Court’s decision in Shupert v. Anaconda Aluminum Co. (1985), 215 Mont. 182, 187-88, 696 P.2d 436, 439, for the proposition that the reviewing court is in as good a position as the lower tribunal to evaluate deposition testimony. Roadarmel v. Acme Concrete Co. (1989), 237 Mont. 163, 168, 772 P.2d 1259, 1262.

In Shupert, this Court reviewed a decision by the Workers’ Compensation Court and stated as follows:

Ordinarily, this Court will not substitute its judgment for that of the Workers’ Compensation Court in determining the weight and credibility to be given testimony. The reason for this is that this Court defers to the lower court’s assessment of the demeanor and credibility of witnesses. Rule 52(a), M.R.Civ.P. However, when the critical evidence, particularly medical evidence, is entered by deposition, we have held that “this Court, although sitting in review, is in as good a position as the Workers’ Compensation Court to judge the weight to be given such record testimony, as distinguished from oral testimony, where the trial court actually observed the character and demeanor of the witness on the stand. Hert v. J.J. Newberry Co. (1978), 178 Mont. 355, 359-60, 584 P.2d 656, 659.

Shupert, 696 P.2d at 439.

The District Court was correct in concluding that there is no operative distinction between our reasoning in Shupert and the facts in the present case where the testimony of Dr. Etter was by way of deposition. That being the case, the District Court was in as good a position as the hearing examiner to judge the weight of Dr. Etter’s deposition medical testimony.

In applying the Shupert rationale that a reviewing court is in as good a position as the trier of fact to review deposition testimony, it must be noted that the standard of review on the overall case remains the same. In McIntyre v. Glen Lake Irrigation District (1991), 249 Mont. 63, 813 P.2d 451, we reviewed a decision of the Workers’ Compensation Court which was based upon deposition medical testimony as well as live testimony from the claimant and his spouse. In McIntyre we held that, although we could make an independent review of the deposition testimony, in the final analysis, we were still restricted to determining whether there was substantial credible evidence to support the decision of the Workers’ Compensation Court. McIntyre, 813 P.2d at 454.

The present case differs procedurally from McIntyre where the Workers’ Compensation Court had heard live testimony from the claimant and had reviewed deposition medical testimony. Here, the District Court did not hear any live testimony. Rather, it was reviewing the proceedings of PERB which adopted a proposed decision from a hearing examiner who heard testimony and reviewed both medical and non-medical depositions. In other words, in the present case, the live testimony is two steps further removed from this Court than in McIntyre. Thus, unlike McIntyre, we are not reviewing the district court to determine whether there is substantial credible evidence to support its decision. Rather, we are reviewing the District Court to determine whether it, in turn, properly applied the correct standard of review to the administrative decision of PERB. That is, did the District Court determine whether the administrative findings of fact were clearly erroneous and whether the agency’s interpretation of the law was correct. We conclude that the District Court, although engaging in an independent review of the medical deposition, specifically applied the three-part clearly erroneous standard. State Comp. Mutual Insurance Fund v. Lee Rost Logging (1992), 252 Mont. 97, 102, 827 P.2d 85, 88. Further, we determine that the District Court correctly applied that standard.

In support of Weber’s claim for disability benefits, Dr. Etter testified (by way of deposition) that Weber had been suffering from MS for at least the last twenty years, but that the disease had not become disabling until 1988 when Weber underwent a period of job stress. He indicated that the MS symptoms had been progressively worsening since the stressful work events in 1988. Accordingly, Dr. Etter concluded that, since 1988, the MS had continuously disabled Weber from the kinds of accounting and administrative functions he performed for the State.

Weber, however, did not realize that he was suffering from MS until he was definitively diagnosed with MS in 1991 when he underwent an MRI. It was then that he realized that MS, coupled with the stress of his job with the State, caused the deterioration of his job performance in 1988. He therefore filed for PERS disability retirement benefits on August 6,1991.

PERB did not present any medical testimony of its own. PERB does not deny that Weber has MS now or that he has had the disease for a number of years including the time period surrounding the stressful events in the late summer and early fall of 1988. Further, the agency does not dispute that MS is a progressive and debilitating disease with symptoms that come and go. The agency agrees that Weber is presently disabled from the last job he held with the State of Montana.

Since PERB did not present any medical testimony of its own, Dr. Etter’s testimony and medical conclusions were uncontradicted. The medical opinions of a claimant’s treating physician are entitled to special weight and should not be disregarded absent specific legitimate reasons for doing so. Embrey v. Bowen (9th Cir. 1988), 849 F.2d 418, 421.

In contending that Weber was not disabled at the time of his resignation, PERB relied on previous statements made by Weber in 1988 at which time Weber indicated that he was resigning his position in order to preserve the higher pay-out of his unused benefits — not because he believed himself to be disabled. As the District Court acknowledged, these statements, made by Weber in 1988, do nothing more than show that Weber did not believe himself to be disabled at that point in time. The statements do not conclusively prove that he was not, in fact, disabled at that time.

PERB places considerable weight on Dr. Etter’s response to a hypothetical question posed by PERB’s counsel. Counsel for PERB asked Dr. Etter to assume the following: that he had been shown statements by Weber indicating that Weber felt he was capable of performing the job functions that he had at the State; that Weber felt so at the time he terminated his employment at the State; that he felt so for some extended period of time after that; and that in fact Weber anticipated that he could do that job and do the job of a CPAin private practice. Counsel for PERB then posed the following question, “on the basis of that information, would you believe that he was completely disabled from performing his job functions with the State?” Dr. Etter responded, “if he told me that, then I would not think he was disabled, no, for performing those tasks.”

The question posed by counsel for PERB did not acknowledge that multiple sclerosis is an incurable, progressive disease subject to periods of remission and exacerbation. Furthermore, the hypothetical question did not consider the possibility that the statements attributed to Weber in 1988 might have been made during a period of remission and thus Weber may have believed himself to be in perfectly good health when, in fact, he was not. See Estes v. Railroad Retirement Board (9th Cir. 1985), 776 F.2d 1436, 1438, in which the Court noted that “multiple sclerosis can be disabling notwithstanding normal activity in periods of remission.”

PERB also claims that Weber was ineligible to claim disability benefits because he was not continuously disabled from the time he left his job in 1988 until the time he applied for benefits in 1991. In concluding that Weber was not eligible for benefits, PERB chose to treat the testimony of Weber and his wife as insufficient. In its Finding of Fact No. 17, PERB stated:

Despite an exhaustive search of the record for corroborating evidence, except for Stephen Weber’s and Beverly Weber’s testimony at hearing, no evidence was submitted that Mr. Weber’s MS symptoms did not completely abate following the August 1988 attack. [Emphasis added.]

In its Finding of Fact No. 20, PERB stated:

Mr. Weber contends that the August 1988 “attack” was the beginning of a change in character of the effect of MS on his life and his abilities in that for the first time not all of the symptoms of MS completely abated after this attack. The particular symptom alleged not to resolve was double vision. This contention is rejected as not supported by a preponderance of credible evidence. The only evidence to support this contention is the hearing testimony of Stephen and Beverly Weber [emphasis added].

Although choosing to discount the testimony of the Webers, PERB did not attempt to refute the testimony of Stephen and Beverly Weber by offering medical testimony of its own to show that from 1988 to 1991 Weber was capable of performing the duties of his executive position with the State even though he was relatively symptom free during that period. All that PERB offered in support of these findings were statements made by Weber in 1988 before he knew his problems were related to MS. It should be noted that PERB concedes that by May of 1991 Weber was disabled and, had he still been working for the State at that time, it is quite probable that disability benefits would have been appropriate. We hold that the District Court did not err when it ruled that PERB’s findings were clearly erroneous in that PERB misapprehended the effect of Dr. Etter’s testimony. Further, the District Court did not err in its definite and firm conviction that PERB, in denying Weber disability benefits, committed a mistake. Lee Rost Logging, 827 P.2d at 88. We affirm the District Court’s conclusion that, based on the available medical evidence, Weber has been continuously disabled from performing the duties of the Assistant Administrator of the Tort Claims Division since his departure from that position on September 9, 1988.

By way of clarification, it should be noted that the present case differs from Moran v. Shotgun Willies, Inc. (1995), [270 Mont. 47], 889 P.2d 1185, another administrative appeal decision handed down earlier this month. In Moran, we affirmed the district court determination that there was competent substantial evidence to support the hearing officer’s findings and conclusions and therefore the agency (Human Rights Commission) abused its discretion and exceeded its authority under § 2-4-621(3), MCA, when it rejected the hearing officer’s findings. Moran, 889 P.2d at 1188. Unlike the Human Rights Commission in Moran, PERB, in the present case, did not disagree with its own hearing officer. Rather, PERB adopted the hearing officer’s findings of fact so the competent substantial evidence test of § 2-4-621(3), MCA, was not an issue. Also, Weber raised, and the District Court applied, the “clearly erroneous” standard rather than the “abuse of discretion” standard utilized in Moran — both of which are permissible standards under § 2-4-704(2)(a), MCA. In applying the three pronged “clearly erroneous” standard, Lee Rost Logging, 827 P.2d at 88, the District Court did not find that there was a lack of substantial credible evidence to support PERB’s decision. Rather it relied upon the second and third prongs of the test and found that PERB misapprehended the effect of the testimony and, further, that it had a firm conviction that PERB had committed a mistake.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON and WEBER concur.

JUSTICE GRAY,

concurring in part and dissenting in part.

I concur in the Court’s opinion on issue 1 and, with great reluctance, respectfully dissent from that opinion on issue 2. My reluctance is personal, based on my own familiarity with MS and the heartbreak of watching a close relative progress through the early stages of that incurable and progressive disease to a state of total physical incapacitation. My dissent, however, is based on my perception that the Court’s legal analysis of issue 2 is erroneous.

It is important to keep in mind at the outset that the burden of establishing entitlement to disability benefits is on the claimant. Under § 19-3-1002, MCA (1991), an employee who has become disabled while in active service is eligible for disability retirement benefits. “Disabled” means “unable to perform his duties by reason of physical or mental incapacity.” Section 19-3-1001, MCA (1991).

I raise the matter of who carries the burden because the Court suggests, at least by implication, that the PERB itself had some affirmative burden to meet. The Court does so by making the following statements:

1. “Although PERB did not employ a medical expert....”
2. “PERB did not present any medical testimony of its own.”
3. “Since PERB did not present any medical testimony of its own....”
4. “PERB did not attempt to refute the testimony of Stephen and Beverly Weber by offering medical testimony of its own ....”

These repeated statements suggest that the PERB had a burden to come forward with evidence, rather than merely to determine whether Mr. Weber had carried his burden of proving by a preponderance of the evidence that he was disabled — that is, unable to perform the duties of his position — by MS in September 1988 when he resigned. The Court’s apparent shifting of the burden is erroneous; it also reflects a lack of focus and clarity in other areas of the Court’s opinion on this issue.

In fact, the record in this case clearly supports the PERB’s finding that Mr. Weber did not meet his burden of proving that he was disabled by MS from performing his job at the time of his resignation in September 1988. Indeed, the only unequivocal testimony supporting Mr. Weber’s claim came from Mr. Weber and his spouse; the PERB did not find Mr. Weber or his spouse credible based on Mr. Weber’s statements at the time of his resignation, during his wrongful discharge suit and to a variety of health care providers between 1986 and 1991 that evidenced no serious MS-type symptoms. This is the province of the trier of fact, not the District Court or this Court. I cannot agree to the reviewing courts substituting their judgment for that of the factfinder.

Nor do I agree with the Court that the PERB misapprehended the effect of Dr. Etter’s deposition testimony. It is critical to note that Dr. Etter provided the only medical opinions in this case and he offered two such opinions. His first opinion, supporting Mr. Weber’s claimed disability as of August 1988, was based entirely on Mr. Weber’s statements to him at a significantly later date; it was not based on any medical testing done in 1988 or, indeed, on any medical records for the period from August 1988 through August 1991.

Dr. Etter’s second medical opinion did not support Mr. Weber’s claim of disability in August 1988. That opinion was based on statements which had been made by Mr. Weber to others at various pertinent times, specifically regarding his health and the reasons he left his position with the State; those statements were inconsistent with Mr. Weber’s statements to Dr. Etter.

In short, faced with statements made to others by Mr. Weber which were inconsistent with those made to Dr. Etter, the doctor changed his medical opinion to one which did not support Mr. Weber’s claim. How the Court can conclude that the PERB misapprehended the effect of Dr. Etter’s testimony in this regard is inexplicable to me under these circumstances. Equally inexplicable is the Court’s use of such a technique to reject the entirety of the PERB’s decision.

Indeed, the weight of the medical evidence in this case supports the PERB’s determination. During more than thirty visits to the VA Medical Center at Fort Harrison from October 1988 to May 1991, not a single complaint was recorded from Mr. Weber of an MS-related symptom. In fact, doctors who saw Mr. Weber from August 1988 through May 1991 recorded a lapse of double vision complaints during that time. Importantly, Dr. Etter — relied on by the District Court and this Court as Mr. Weber’s treating physician — saw Mr. Weber once in August 1988 and did not mention any complaints of MS or stress-related symptoms made by Mr. Weber at that time. He did not see Mr. Weber again until October 1991. As discussed above, his medical opinion that Mr. Weber was disabled in August 1988 was not based on medical testing or medical records for the period August 1988 through August 1991; rather, it was based entirely on Mr. Weber’s statements to him regarding his condition at that time.

In further regard to Dr. Etter’s testimony, the Court states that the medical opinions of a claimant’s treating physician are entitled to special weight and should not be disregarded absent specific legitimate reasons for doing so. While I agree with these general principles, it is my view that there are at least two specific legitimate reasons for not giving Dr. Etter’s medical opinion supporting Mr. Weber’s claim special weight in this case. First, Dr. Etter was not Mr. Weber’s only treating physician during the period at issue; indeed, Dr. Etter did not even see Mr. Weber between the time of the resignation and 1991. Second, Dr. Etter’s medical opinion was based entirely on the “history” Mr. Weber provided him, and that opinion changed dramatically when presented with other statements made by Mr. Weber which were inconsistent with those Mr. Weber made to Dr. Etter.

Finally, I note in this regard that giving special weight to a treating physician does not compel a factfinder to determine that a claimant is credible; nor does it require giving such special weight to only one portion of that physician’s testimony that all other evidence of record — including a contrary opinion from that physician — is counterbalanced. Yet that is the effect of the Court’s determination that the PERB “misapprehended the effect” of Dr. Etter’s deposition testimony.

The Court also suggests that Mr. Weber’s earlier statements about his health show only that he did not believe himself disabled at the time of his resignation in September 1988.1 could not disagree more. On the record before us, Mr. Weber is the only person in a position to state directly the extent to which he was actually disabled — that is, totally unable to perform his job — in September 1988. His various statements regarding his health during that time, made in part in the context of a lawsuit in which he successfully established that he was wrongfully discharged, are evidence of the state of his health at that time and of his ability to perform his job at that time.

In this regard, the Court also makes an anomalous comment on Mr. Weber’s inconsistent health-related statements which relates back to my earlier-expressed concern regarding burden shifting. The Court states that Mr. Weber’s inconsistent statements “do not conclusively prove that he was not, in fact, disabled at that time.” While the Court’s statement is correct, it is also irrelevant. Mr. Weber carried the burden of establishing his eligibility for disability benefits; the PERB had no burden to establish his ineligibility.

Finally, the Court attempts to undercut the hypothetical question posed to Dr. Etter, and Dr. Etter’s response, by stating that the question did not acknowledge that MS is an incurable, progressive disease subject to periods of remission and exacerbation. Here, the Court is apparently trying to rescue a bad situation by suggesting that it has more specialized knowledge of the disease and its ramifications than does Dr. Etter, the supposed expert in this case. Moreover, the Court’s undoubtedly true statement about the nature of MS has no relevance to whether Mr. Weber was, in fact, disabled by that progressive disease at the time he resigned from his job in September 1988. That is the issue before us.

I conclude that substantial credible evidence supports the PERB’s numerous and detailed findings. I conclude also that the PERB did not misapprehend the effect of Dr. Etter’s testimony or, indeed, any other testimony; nor am I left with any conviction that a mistake was made by the PERB. I would reverse the District Court and reinstate the PERB’s decision.


author: JUSTICE GRAY JUSTICE NELSON

text:
    MARY K. BEAN, Petitioner and Appellant, -vsSTATE OF MONTANA BOARD OF LABOR APPEALS; MONTANA DEPARTMENT OF LABOR AND INDUSTRY; and COMMUNITY NURSING, INC., d/b/a VILLAGE HEALTH CARE CENTER, Respondents and Respondents.
    No. 94-278.
    Submitted November 29, 1994.
    Decided March 15, 1995.
    52 St.Rep. 169.
    270 Mont. 253.
    891 P.2d 516.

      For Appellant: Donald V. Snavely (argued); Snavely Law Offices Missoula.
    For Respondents: Maureen H. Lennon (argued) and Candace C. Fetscher; Garlington, Lohn & Robinson, Missoula; Melanie Symons (argued), Department of Labor and Industry, Helena.
    For Amicus: Cary B. Lund, Special Ass’t Attorney General, Department of Social & Rehabilitation Services, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

Mary Bean (Bean) appeals from an opinion and order of the Fourth Judicial District Court, Missoula County, denying her petition for judicial review of a decision of the Board of Labor Appeals (BOLA) finding that her employer discharged her for misconduct and that she was not entitled to unemployment benefits. We reverse and remand.

We restate the issues presented on appeal as follows:

1. Did the Department of Labor and Industry’s telephonic hearings procedure deprive Bean of her constitutional right to due process of law by denying her the ability to confront and cross-examine witnesses?

2. Did the appeals referee improperly exclude evidence offered by Bean to controvert her employer’s allegations of misconduct?

3. Is the BOLA’s decision that Bean engaged in misconduct supported by substantial evidence?

4. Did the BOLA violate applicable procedural requirements in making its findings and decision?

Because our resolution of issue four requires a remand to the BOLA for redetermination, we do not address the other issues presented.

Bean’s employment as a licensed practical nurse with Community Nursing, Inc., doing business as Village Health Care Center (Village Health), ended with her discharge on March 22, 1993, allegedly for failure to improve her conduct and inappropriate criticism of Village Health’s operation. After her discharge, Bean filed for unemployment insurance benefits with the Montana Department of Labor and Industry (Department). A Department deputy twice denied Bean’s claim on the basis that she was discharged for misconduct and, as a result, was ineligible to receive benefits. Bean appealed the decision to an appeals referee (referee).

A telephonic hearing was held on June 29, 1993; the parties were at separate locations in Missoula and the referee was in Helena. The referee subsequently issued written findings of fact and a decision concluding that Bean was discharged for misconduct and, thus, ineligible for unemployment benefits. Bean appealed to the BOLA. The BOLA, following a fifteen minute telephonic argument presented by Bean’s counsel, issued a one-paragraph decision adopting the referee’s findings of fact and decision.

Bean petitioned the District Court for judicial review of the BOLA’s decision. The District Court denied her petition and affirmed the BOLA’s decision denying unemployment benefits. Bean appeals.

Did the BOLA violate applicable procedural requirements in making its findings and decision?

A person dissatisfied with a referee’s decision may appeal to the BOLA, which makes determinations related to unemployment insurance benefits claims pursuant to the procedures contained in Title 39, chapter 51, MCA. See § 39-51-2404, MCA; City of Billings v. State Bd. of Labor App. (1983), 204 Mont. 38, 43, 663 P.2d 1167, 1171. Duly adopted administrative rules govern the BOLA’s determinations in such cases. See §§ 24.7.301 through 24.7.315, ARM. On appeal to this Court, Bean contends that the District Court erred in determining that the BOLA did not violate applicable procedural rules.

A. Did the BOLA err in not conducting a de novo hearing on Bean’s appeal?

Bean argues first that the BOLA is required to conduct a de novo evidentiary hearing on an appeal from a referee. Neither the applicable administrative rale nor this Court’s decisional law supports her position.

Pursuantto § 24.7.314(2), ARM, the BOLAis authorized to “affirm, modify, or set aside any decision of an appeal tribunal on the basis of the evidence previously submitted in such case ....” The rule clarifies that the BOLA’s decision ordinarily will be based on the evidence presented to the referee. Moreover, while we stated in City of Billings, 663 P.2d at 1171, that the BOLA “may consider not only the record made before the appeals referee, but new evidence produced at the board hearing,” that statement does not require the BOLA to allow the presentation of new evidence, much less require it to conduct a de novo evidentiary hearing. We conclude that the BOLA did not err in not conducting a de novo hearing on Bean’s appeal from the referee’s decision.

B. Did the BOLA violate § 24.7.306(1), ARM, by not considering a transcript or recording of the proceedings before the referee?

Bean’s second assertion of error regarding the BOLA’s procedures is that § 24.7.306(1), ARM, requires the BOLA to consider a transcript or recording of the hearing before the referee in making its decision on her unemployment insurance benefits appeal. On this basis, she contends that the District Court erred in concluding that the BOLA was not required to review the evidence before the referee.

Section 24.7.306(1), ARM, requires that the BOLA “shall include in the record and consider as evidence all records of the department that are material to the issues.” We generally apply the same principles in construing administrative rules as are applicable in interpreting statutes. Matter of Peila (1991), 249 Mont. 272, 278, 815 P.2d 139, 143. It is axiomatic that the proper interpretation of statutes is first to be determined according to the language therein. Norfolk Holdings v. Mont. Dep’t of Revenue (1991), 249 Mont. 40, 43, 813 P.2d 460, 461. Thus, we look first to the plain language of § 24.7.306(1), ARM, in resolving this issue.

Section 24.7.306(1), ARM, begins by using the word “shall,” which is understood to be compelling or mandatory in nature. See Gaustad v. City of Columbus (1994), 265 Mont. 379, 381-82, 877 P.2d 470, 471. Therefore, in considering an appeal from a referee’s decision, the BOLA must consider all Department records which are material to the issues before it.

Moreover, it cannot be seriously disputed that a transcript or recording of Bean’s hearing before the referee is a record of the Department. Section 39-51-2408, MCA, requires the Department to maintain a “full and complete record ... of all proceedings in a contested case[;]” included in that mandate is a requirement that “[a]ll testimony at any hearing upon a disputed claim shall be recorded ....” Given these statutory requirements, a transcript or recording of the hearing before the referee is a Department record which, pursuant to the administrative rule, the BOLA must consider if “material” to the issues before it.

“Material” records — whether from a common sense or legal perspective — are those records which are relevant to, and necessary for, the determination of issues presented to the BOLA. The issues Bean presented to the BOLA related to her general assertion that the BOLA should reject the referee’s findings as erroneous. She argued that the referee incorrectly interpreted the evidence of record, inappropriately considered hearsay evidence, and rejected relevant evidence she sought to introduce regarding Village Health’s alleged retaliatory discharge. It is clear that proper resolution of each of these issues required the BOLA to review the evidence previously submitted. Therefore, a recording or transcript of the testimony introduced before the referee was material.

As a quasi-judicial board, the BOLA is directed to evaluate and pass on facts. Section 2-15-102(9), MCA. In this case, the referee relied on the testimony of Village Health’s witnesses for its findings regarding the reason for Bean’s termination; some of this testimony was the very evidence Bean argued was inadmissible hearsay. The referee did not specifically mention the evidence it excluded as irrelevant and which Bean argued was erroneously excluded by the referee. The BOLA could not properly determine these issues without a review of the entire record, including a transcript or recording of the hearing.

The BOLA argues that, as an administrative board vested with quasi-judicial powers for purposes of § 24.7.306(1), ARM, it is entitled to determine what is “material.” Relying on this Court’s statement in City of Billings that the BOLA “/nay consider not only the record made before the appeals referee, but new evidence produced at the board hearing,” 663 P.2d at 1171, the BOLA suggests that a review of the record is within its discretion. This argument is not persuasive.

Insofar as is relevant here, City of Billings addressed whether the Montana Administrative Procedure Act applied to the BOLA and limited its power in reviewing unemployment insurance cases appealed from a referee. We rejected those limitations, noting that the BOLA is a quasi-judicial board performing an adjudicatory function “involving the exercise of judgment and discretion in making determinations in controversies.” City of Billings, 663 P.2d at 1171. In that regard, we stated that the BOLA was authorized to consider new evidence presented to it, in addition to the evidence presented to the referee. Our use of the word “may” in addressing the BOLA’s authority did not relate to any discretion involving whether to consider the evidence from the referee’s hearing; it related only to the BOLA’s authority to consider new evidence. See City of Billings, 663 P.2d at 1171.

We conclude that a recording or transcript of the hearing before the referee was a Department record material to issues raised by Bean under § 24.7.306(1), ARM. Accordingly, the BOLA was required to consider that material record.

Here, it is clear that the BOLA did not consider or review the material record. While the BOLA decision recites that it “reviewed the entire record,” the BOLA’s counsel controverted that recitation in the District Court: “If there’s a question about the facts, [the BOLA members] are certainly free to ask for a transcript or to listen to the tapes, and the Board does that on occasion. They did not do that in this case.” On the basis of this record, we conclude that the BOLA violated § 24.7.306(1), ARM, by failing to review a transcript or recording of the proceedings before the referee in making its decision in Bean’s case. As a result, we hold that the District Court erred as a matter of law in concluding that the BOLA was not required to review the evidence before the referee.

C. Did the BOLA violate § 24.7.306(1), ARM, by adopting the referee’s findings of fact without considering the transcript or recording of the hearing before the referee?

Bean’s final argument is that the BOLA violated § 24.7.306(1), ARM, by adopting the referee’s findings rather than making independent findings of fact and stating reasons for its decision. The third sentence of § 24.7.306(1), ARM, provides that “[a]s soon as possible after the hearing, the board shall render a written decision which shall state the findings of facts and the reasons for the decisions.” Here, the BOLA issued a one paragraph decision stating that, after reviewing the record and hearing the argument presented by Bean’s counsel, it failed to find any evidence to warrant modification of the referee’s decision; the BOLA then adopted the referee’s findings of fact and decision as its own.

As was the case in our discussion of whether the BOLA was required to review a transcript or recording of the hearing before the referee, use of the word “shall” with regard to the BOLA’s duty to state findings of fact renders that duty mandatory. See Gaustad, 877 P.2d at 471. The BOLA’s adoption of the referee’s findings as its own apparently is a routine practice. See, e.g., Ward v. Johnson (1990), 242 Mont. 225, 227, 790 P.2d 483, 484.

By its terms, § 24.7.306(1), ARM, neither authorizes nor precludes such wholesale adoption of a referee’s findings. While the duty to state findings is clear, the manner in which the findings are to be stated is not specified. Given our policy of interpreting administrative rules using the same principles under which we construe statutes (see Matter of Peila, 815 P.2d at 143), we will not insert into § 24.7.306(1), ARM, either a requirement or a prohibition not contained therein with regard to the maimer in which the BOLA must state its findings of fact. See § 1-2-101, MCA.

At the same time, however, the BOLA’s role in the determination of disputed unemployment insurance benefits claims is that of a quasi-judicial board directed to exercise its judgment in evaluating and passing on facts. Section 2-15-102(9), MCA. The BOLA’s — not the referee’s — factual determinations are those which are conclusive on reviewing courts if supported by evidence and in the absence of fraud. Section 39-51-2410(5), MCA; Connolly v. Mont. Bd. of Lab. Appeals (1987), 226 Mont. 201, 205, 734 P.2d 1211, 1214.

Here, as stated above, much of the controversy centered around whether the BOLA should accept the referee’s findings based on the evidence of record. Given the BOLA’s failure to consider the entirety of the record before it, we cannot conclude that its wholesale adoption of the referee’s findings and decision reflected the exercise of its independent judgment in determining the facts. We conclude, therefore, that the BOLA’s adoption of the referee’s findings and decision in this case violated § 24.7.306(1), ARM.

Reversed and remanded to the District Court for entry of an order remanding the case to the BOLA for reconsideration and redetermination of Bean’s appeal. Any subsequent petition for judicial review and, as appropriate or necessary, appeal to this Court shall proceed under applicable statutes and rules.

CHIEF JUSTICE TURNAGE, JUSTICES WEBER and SHERLOCK District Court Judge, sitting for Justice John C. Harrison concur.

JUSTICE NELSON

dissents as follows:

I respectfully dissent. Remanding this case to the BOLA for review of a recording or transcript of a hearing that was deficient in the first instance and for reconsideration of the appeal referee’s findings in light of such a record will not, in my view, solve the problem.

All of the evidence in this case was introduced at a hearing conducted via a telephone conference call with the appeals referee situated in Helena, with Bean and her witnesses situated in her counsel’s office in Missoula and with the Employer and its witnesses situated in its business premises in Missoula. Moreover, the entirety of the critical evidence against Bean on the issue of her “willful misconduct” consisted of hearsay reports from persons who were not present at the hearing and who were not, therefore, subject to confrontation and cross-examination. Under such circumstances, any decision of the appeal referee and any decision of the BOLA based on that record and the referee’s findings, was, is and will be inherently flawed from the outset.

From statements made during the oral argument of this case, it appears that the Department of Labor is unique among State agencies in routinely holding contested hearings via telephone. Moreover, it also appears that requesting an in-person hearing will not, necessarily, guarantee that result nor will it guarantee that the employer and its witnesses will be at the hearing, even if one is allowed. In Niles v. Carl Weissman & Sons, Inc. (1990) 241 Mont. 230, 786 P.2d 662, without deciding the issue, we expressed concern that Department of Labor telephonic hearings may not afford the claimant the full right of cross-examination and may not comply with judicial standards of substantive and procedural due process. Niles, 786 P.2d at 666-67.

More recently, in Bonamarte v. Bonamarte (1994), 263 Mont. 170, 866 P.2d 1132, we reversed the district court in a marital dissolution case because one party was allowed to testify by telephone over the objection of the other party. Bonamarte, 866 P.2d at 1137. While that case did not involve an administrative proceeding, nevertheless, we stated that,

[requiring a witness to testify personally at trial serves a number of important policies and purposes. Awitness’personal appearance in court:
1. assists the trier of fact in evaluating the witness’ credibility by allowing his or her demeanor to be observed firsthand;
2. helps establish the identity of the witness;
3. impresses upon the witness, the seriousness of the occasion;
4. assures that the witness is not being coached or influenced during testimony;
5. assures that the witness is not referring to documents improperly; and
6. in cases where required, provides for the right of confrontation of witnesses.

Bonamarte, 866 P.2d at 1134.

I conclude that those reasons are no less valid, important and necessary to assure the integrity and fairness of contested proceedings before an administrative agency where, as here, the litigant’s entitlement to state benefits hangs in the balance as a direct consequence of the hearings process.

Moreover, and to make matters worse, here, the crucial evidence against Bean on the issue of willful misconduct was in the form of hearsay reports and testimony that would not have been admissible under the Rules of Evidence nor should even have been admissible under a fair reading of the Department’s own administrative rule, which allows consideration of evidence upon “which responsible persons are accustomed to rely in the conduct of serious affairs.” Rule 24.7.312(1), ARM. Since this Court does not reach this issue, little will be gained here in detailing the offending “evidence” or by engaging in an extended discussion of the law regarding the use of hearsay in administrative proceedings. Presumably that issue remains open for future resolution. Suffice it to say that the record here does not contain sufficient admissible, non-hearsay evidence upon which the appeal referee could base a finding of willful misconduct.

That a claimant of unemployment compensation benefits is entitled to substantive and procedural due process is not, in my view, open to dispute. See, Goldberg v. Kelly (1970), 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287; and California Department of Human Resources Development v. Java (1971), 402 U.S. 121, 91 S.Ct. 1347, 28 L.Ed.2d 666.1 am at a loss to understand how a claimant has been afforded even minimal due process where she has been denied her right of confrontation and cross-examination by being required to litigate her case over a telephone, without crucial adverse witnesses being required to testify and where the factfinder’s ultimate decision is based on rank, inadmissible hearsay.

If you put a teaspoon of sludge in a barrel of wine, you get sludge. If you put a teaspoon of wine in a barrel of sludge, you get sludge. Putting this case back in the barrel will not change, much less improve, the contents. I dissent.

JUSTICES TRIEWEILER and HUNT join in the foregoing dissent.


author: JUSTICE NELSON

text:
    IN RE THE MARRIAGE OF JENNIFER M. SMITH, Petitioner and Respondent, and RICHARD A. SMITH, Respondent and Appellant.
    No. 94-237.
    Submitted on Briefs December 22, 1994.
    Decided March 16, 1995.
    52 St.Rep. 174.
    270 Mont. 263.
    891 P.2d 522.

      For Appellant: Marcelle C. Quist, Carolyn S. Parker, Quist Law Firm, Bozeman.
    For Respondent: Kent M. Kasting, Kommers, Kasting & Roth, Bozeman.
   JUSTICE NELSON

delivered the Opinion of the Court.

Richard Smith (Richard), appeals from the Findings of Fact and Conclusions of Law entered on December 20,1993, by the Eighteenth Judicial District Court, Gallatin County, apportioning the marital estate. We affirm.

Richard raises ten issues on appeal, however we have consolidated them into four issues and restate them as follows:

1. Was the District Court’s distribution of the marital property in this case clearly erroneous?
2. Whether the District Court’s failure to award maintenance was clearly erroneous?
3. Whether the District Court failed to apply the law in a gender neutral fashion?
4. Whether the District Court abused its discretion in failing to grant Richard additional time for discovery?

Richard and Jennifer Miller Smith (Jennifer), were married in 1984. Prior to the marriage, Jennifer was the beneficiary of two trusts, the Alma Decker Irrevocable Trust (Alma Decker Trust) and the Jennifer Miller Smith Revocable Trust (Jennifer Smith Trust). The Alma Decker Trust is a trust established by Jennifer’s grandmother in the early 1960’s. Jennifer is a discretionary beneficiary under the Alma Decker Trust, and since the trust’s inception, the trustee has always been an independent, corporate trustee. The trustee has the exclusive power and duty to invest and manage the trust assets, and exclusive discretion to distribute income and corpus under the trust to the trust’s beneficiaries. The trustee is paid a fee for its services. Richard was never a beneficiary under this trust, did not contribute any monies to this trust, nor were any marital monies ever contributed to this trust.

The J ennifer Smith Trust was created when Jennifer was eighteen, to receive the income from the Alma Decker Trust that was distributed to Jennifer. Like the Alma Decker Trust, it was managed by an independent corporate trustee, which managed the trust assets, and was paid a fee for its services. Jennifer is the trustor and beneficiary of this trust. Richard has never been a beneficiary of this trust and did not make any monetary contributions to the trust.

The value of the Alma Decker Trust on September 30, 1993, (approximately one month before trial), was approximately $1,800,000. The value of the Jennifer Miller Trust on this same date was approximately $282,500. While the value of the trusts increased over the course of the eight year marriage, Richard did not demonstrate that his actions in any way maintained or increased the value of the trusts.

Shortly after the parties married, they opened the High County Anglers, a retail fly fishing and guide services business. Jennifer contributed the initial capitalization for the business with money from the Jennifer Smith Trust. The business never generated a profit, and never paid either party a salary, but did pay for the parties’health insurance premiums and Richard’s truck payments. The store closed in October 1987, but the corporate account stayed open and the parties deposited their fly fishing guide earnings into the account. In 1992, the funds of the account were distributed equally between the parties. J ennifer has never been reimbursed the capitalization money she contributed to the business.

During the course of the marriage Richard earned $26,227, and Jennifer earned $1,632, from third-party employers. Jennifer contributed over $550,000 to the parties’ living expenses with monies from the Jennifer Smith Trust. The parties had three bank accounts: a household account, to pay for daily living expenses; a large expenditure account, for payment of expenses such as taxes, furniture, home improvements, and other larger one time expenses; and the High Country Anglers’ account. With the exception of $2,382.68, which Richard deposited into the household account, all sums deposited into the household account and the large expenditure account came from distributions from the Jennifer Smith Trust.

The parties purchased a residence in Bozeman in November 1986. The purchase price was $99,900, and Jennifer contributed $50,000 in cash from her revocable trust. The balance was paid with a $50,000 loan from the Alma Decker Trust. The monthly loan payments were to be paid equally by Richard and Jennifer. Based upon the original contributions and the parties’ agreement, Jennifer received 75% ownership interest, and Richard received 25% ownership interest. Richard never paid his one half of the monthly loan payment. Beginning December 1986, the loan payment has been made by the Jennifer Smith Trust. In addition, Jennifer expended over $65,000 on home improvements, maintenance, and taxes on the home from her revocable trust.

Jennifer filed a petition for dissolution on June 4, 1992, and the parties separated in September 1992. The parties resolved the issues of custody and visitation concerning the child born of the marriage, and an order governing these issues was entered June 2, 1993. This order is not disputed on appeal. The parties disagreed however, over the distribution of the marital estate, and went to trial on this issue on November 18-19, 1993. The District Court issued its Findings of Fact and Conclusions of Law on December 20, 1993, and concluded that Richard was not entitled to any interest in any of Jennifer’s pre-marital gifted and inherited property because he failed to demonstrate that he enhanced or increased the value of the property during the marriage. The court awarded each party their own vehicle, their own household furnishings, and personal effects. The court awarded Richard the stock of High County Anglers, and a drift boat and trailer. The court awarded Jennifer the marital residence, and ordered her to pay Richard $10,055 for his 25% equity interest in the home. Richard appeals from this judgment. Additional facts will be added as is necessary for the discussion of the issues.

DISTRIBUTION OF THE MARITAL ESTATE

The distribution of marital property in a dissolution action is governed by § 40-4-202, MCA. Under this statute, the district court is vested with broad discretion to distribute the marital estate in a manner which is equitable to each party according to the circumstances of the case. In re Marriage of Maedje (1994), 263 Mont. 262, 265, 868 P.2d 580, 582. This Court’s standard of review in marital property distribution cases is whether the district court’s findings of fact are clearly erroneous. If substantial credible evidence supports the court’s findings and judgment, we will not change the trial court’s decision unless the court abused its discretion. Maedje, 868 P.2d at 583.

Richard presents several arguments which all essentially contend that the trial court’s distribution of the marital estate was clearly erroneous because the court failed to award him any portion of Jennifer’s gifted or inherited property, and failed to award him maintenance. However, after considering the record, we do not find that the court abused its discretion.

Section 40-4-202, MCA, provides that in dividing marital property a court may equitably apportion the parties’ property and assets “belonging to either or both, however and whenever acquired.” In distributing pre-marital property or its increased value, property acquired by gift, or inheritance, the court must consider the contributions of the non-acquiring spouse. The court must consider:

(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.

Section 40-4-202, MCA.

Because the District Court concluded that Richard was not ■entitled to any of Jennifer’s pre-marital property, it had to find that he “made no contribution” to justify the court’s distribution as equitable. Marriage of Turner (1983), 206 Mont. 292, 295, 670 P.2d 568, 570. In regards the two trusts, the court found that Richard had failed to demonstrate that his actions in any way maintained or increased the value of the corpus of the trusts. The court also found that Richard never had any contact with the corporate trustees, regarding any aspect of the trusts, did not contribute anything to the trusts, and no marital monies were ever contributed to the trusts. We conclude that these findings demonstrate that Richard made no contribution to the trusts.

Richard argues that he is entitled to a portion of Jennifer’s pre-marital estate as a result of his nonmonetary contributions of emotional support, child care, and homemaking skills. The statute recognizes that the work of a homemaker can be an important contribution because the marital estate may be substantially depleted if those necessary services had to be purchased. However, the homemaking efforts must substantially aid in the accumulation and/or maintenance of the marital estate. Turner, 670 P.2d at 570.

In this case, the record demonstrates that during the marriage, the parties hired child care help, housecleaning help, and lawn maintenance help. While Richard may have provided emotional support to Jennifer, and provided some child care to his son, he failed to demonstrate that these efforts substantially aided in the accumulation or maintenance of Jennifer’s pre-marital assets. Upon review of the record, we conclude that substantial credible evidence supports the District Court’s findings and accordingly, we hold that the District Court did not abuse its discretion by not awarding Richard any of Jennifer’s pre-marital assets.

MAINTENANCE

We held in In re Marriage of D.F.D. (1993), 261 Mont. 186, 201, 862 P.2d 368, 377, that the standard of review for maintenance awards is whether the district court’s findings are clearly erroneous. Citing, In re Marriage of Eschenbacher (1992), 253 Mont. 139, 142, 831 P.2d 1353, 1355.

Richard argues that even though he did not request maintenance, the court is required to consider an award of maintenance pursuant to § 40-4-202(l)(c), MCA. We will not reach the merits of this argument, because the facts of this case demonstrate that Richard is able to support himself through appropriate employment, and is therefore not entitled to an award of maintenance. Section 40-4-203(l)(b), MCA.

According to § 40-4-203(1), MCA, the court may award maintenance if a spouse:

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

The trial court found that Richard was 43 years old, in good health, has two college degrees, both obtained before the marriage, had been self-supporting before the marriage, had worked as Regional Vice President for Dan Bailey’s, Inc. from 1989-1990, is talented and well respected in the fly fishing industry, and is presently employed as a clerk at Master’s Anglers in Livingston earning approximately $18,000 a year. After a review of these findings, we conclude that Richard failed to meet the requirements of the statute because they indicate he is able to support himself through appropriate employment. Accordingly, we conclude that the District Court’s findings were not clearly erroneous, and affirm the court’s ruling concerning maintenance.

GENDER BIAS

Richard argues that the court treated Richard differently “by virtue of his gender.” He contends that because he was a male engaged in the non-traditional role of homemaker and caretaker, the court failed to give credit to his nonmonetary contributions. We find these allegations insupportable. The record is simply devoid of any evidence that the court treated Richard differently according to his gender.

As stated above, § 40-4-202, MCA, requires the district court to equitably distribute the marital property, and in distributing premarital property, inherited property, or property acquired by gift, the court must consider the non-acquiring spouse’s nonmonetary contributions. Here, the majority of the assets consisted of Jennifer’s trusts, or property acquired with money from the trusts, and there is no evidence that Richard’s nonmonetary contributions substantially enhanced or helped to maintain Jennifer’s pre-marital assets. Therefore, the court was correct in awarding that property to Jennifer. The court made its property distribution award based upon the mandates of § 40-4-202, MCA, and not upon gender stereotyping as Richard contends. Had gender been reversed in this case, the result would have been the same. Accordingly, we conclude that this argument is without merit.

DISCOVERY

Jennifer filed the Petition for Dissolution on June 4, 1992. On August 20,1992, the District Court issued a discovery order, directing the parties to complete all discovery by December 19, 1992, and set a pretrial conference for January 25, 1993. On January 25, 1993, Richard requested that, the pretrial conference be continued. In the order extending the date of the pretrial conference, the court noted that “the motion is silent on whether discovery is complete ... or whether this request also includes a request to reopen discovery ...” The court directed counsel to advise the court concerning the status of discovery, however, neither party so advised the court, or filed a formal motion to reopen discovery. In May 1993, Richard sent general discovery requests to J ennifer without seeking the court’s permission. Jennifer objected to the requests and the District Court scheduled a hearing on the matter. After considering the parties’ arguments, the court ordered that discovery was closed, thereby sustaining Jennifer’s objection. Richard claims the court erred in failing to grant him additional discovery time.

We review District Court rulings concerning granting or denying discovery for abuse of discretion. In re Marriage of Caras (1994), 263 Mont. 377, 384, 868 P.2d 615, 619. “Control over pretrial discovery is best exercised by the District Court which is in a better position than this Court to supervise the day to day operations of pretrial discovery.” State ex rel. Guar. Ins. v. District Court (1981), 194 Mont. 64, 68, 634 P.2d 648, 650.

Rule 16, M.R.Civ.R, governs court established scheduling orders. According to Ride 16(b), M.R.Civ.P., “[a] schedule shall not be modified except by leave of the judge upon a showing of good cause.” Here, the trial court allowed the parties approximately six months to complete discovery. During this time, Richard never moved to extend the discovery deadline date. After the discovery deadline date had passed, Richard failed to formally advise the court of the status of discovery, or move to reopen discovery. Accordingly, we conclude, that Richard failed to demonstrate he had good cause to modify the discovery order, and hold that the District Court did not abuse its discretion in adhering to its discovery order.

AFFIRMED.

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