author: MR. JUSTICE HARRISON MR. JUSTICE HUNT,

text:
    The STATE OF MONTANA, Plaintiff and Respondent, v. KATHERINE MICHELLE BROWN, Defendant and Appellant.
    No. 87-381.
    Submitted March 1, 1988.
    Decided May 4, 1988.
    755 P.2d 1364.

      McKinley T. Anderson, Bozeman, for defendant and appellant.
    Mike Greely, Atty. Gen., Helena, Betsy Brandborg, Asst. Atty. Gen., Mike Salvagni, Co. Atty., Bozeman, Marty Lambert, Deputy Co. Atty., for plaintiff and respondent.
    Robert M. McCarthy, Butte, County Attys. Assn., for amicus curiae.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Following a bench trial on May 18 and 19, 1987, before the Honorable Thomas A. Olson, in the 18th Judicial District, the defendant, Katherine Michelle Brown (hereinafter Brown) was found guilty of the criminal sale of dangerous drugs, a felony, in violation of Section 45-9-101(1), MCA. Defendant appeals and we affirm.

On November 14, 1986, Officer Dave Petersen of the Bozeman Police Department was contacted by one Curt Hawley. Hawley informed Petersen that an individual named Ernest Elliot was attempting to organize the sale of a large amount of marijuana. Hawley agreed to re-contact Elliot and begin negotiations for the sale. A subsequent undercover investigation generated Brown’s arrest and conviction.

Hawley and Elliot engaged in three phone conversations on November 15, 1986. Petersen monitored and recorded the conversations with Hawley’s consent, but no search warrant was obtained. Elliot indicated his cousin would transport significant amounts of marijuana to the Bozeman area for sale, and Hawley indicated he had contact with a potential purchaser. Elliot explained that Hawley would need to deal with Elliot’s girlfriend, defendant Brown, to complete the transaction. Brown’s involvement was necessary because Elliot was scheduled to begin serving a sentence in the county jail due to a prior conviction. This arrangement was confirmed November 16,1986, when Hawley met and spoke with both Brown and Elliot in a grocery store parking lot.

After Elliot reported to the county jail, Hawley phoned Brown on November 17, and 20, 1986 to discuss further arrangements. Both calls were monitored and recorded with Hawley’s consent and no warrant was obtained. A meeting was arranged between Brown, Hawley, and the potential purchaser. The “purchaser” was Officer Evanson of the Bozeman Police Department.

The three met on November 20, 1986, and the conversation was monitored and recorded without a warrant by using a body wire transmitting device which was attached to Evanson. Brown and Evanson discussed the purchase while in a vehicle parked in a bar parking lot. Evanson showed Brown a large amount of cash to demonstrate he was a serious buyer and agreed to purchase a large amount of marijuana when it arrived in the Bozeman area.

On November 21, 1986, Evanson checked into a local motel and phoned Brown. Brown indicated the marijuana arrived by stating a friend with a baby had come to town, and Evanson asked Brown to come to his motel room. The telephone conversation was monitored and recorded without a warrant.

Brown arrived at Evanson’s room with Don Elliot, Ernest Elliot’s cousin from Missouri. The ensuing conversations were again monitored and recorded without a warrant by using a body wire attached to Evanson. After a brief conversation, the three proceeded to a different local motel and the money and marijuana were exchanged. Brown was arrested shortly thereafter, along with Don Elliot and his companion, Randy Fowler.

On January 14, 1987, defendant filed a motion to dismiss her charge alleging the information was not supported by probable cause. Defendant alleged, among other things, that Hawley “illegally taped or recorded telephone conversations with the Defendant without her knowledge ...” A District Court hearing was held February 10, 1987 and defendant’s motion was denied February 26, 1987. Defendant was subsequently convicted of the criminal sale of dangerous drugs.

Defendant raises four issues for our consideration on appeal:

1. Was there sufficient evidence to convict defendant of the sale of dangerous drugs?

2. Did defendant receive an excessive sentence?

3. When police record telephone conversations without a warrant and with the knowledge of one but not all the participants in the conversation, are the recordings admissible in a subsequent criminal trial?

4. When police use a body wire transmitting device to record a face-to-face conversation without a warrant and with the knowledge of one but not all the participants of the conversation, are the recordings admissible in a subsequent criminal trial?

1. Was there sufficient evidence to convict defendant of the sale of dangerous drugs?

Defendant contends that Section 45-9-101(1), MCA, requires that she actually sell or transfer a dangerous drug before she can be convicted of the crime for which she was charged. Defendant states the evidence fails to demonstrate she actually sold the marijuana. Further, she alleges she never took actual possession of the marijuana and concludes that the correct charge should have been conspiracy to sell drugs and not the actual sale of drugs.

We agree that the applicable language of Section 45-9-101(1), MCA, requires that defendant sell, barter, exchange, give away, or offer to sell, barter, exchange or give away a dangerous drug. We addressed a remarkably similar issue in State v. Martinez (Mont. 1985), [216 Mont. 270,] 700 P.2d 991, 42 St.Rep. 798. In holding there was substantial evidence to support defendant’s conviction for the criminal sale of dangerous drugs we stated:

“To sell [drugs] means to knowingly and intentionally transfer possession or ownership of the [drugs] to another for money or other valuable consideration. For a person to make such a sale it is not necessary that he personally handle all of the details of the transaction. It is sufficient if the transaction is arranged by him and handled by persons under his direction and is sufficient to constitute a sale if the person charged with sale is involved in the transaction by accepting, handling, or counting the money and directing the delivery of the [drugs]. In other words, the person charged with the sale does not have to personally conduct all of the various elements of delivery of the [drugs] and the transfer of the money. It is sufficient if he participates therein to such an extent that it is obvious that he is a part of the making of the sale.”

Martinez, 700 P.2d at 992, 42 St.Rep. at 800 (citing, State v. Davis (Mont. 1980), [190 Mont. 285,] 620 P.2d 1209, 1214-15, 37 St.Rep. 1958, 1964). After reviewing the record, we conclude that there is substantial credible evidence demonstrating defendant assisted in organizing and coordinating the sale and was therefore an active participant in the sale. The evidence is sufficient to support the conviction and we affirm the District Court.

2. Did defendant receive an excessive sentence?

Defendant states her sentence is excessive because the statute outlawing the sale of dangerous drugs is in fact an absolute liability offense. Section 45-9-101(1), MCA, states in part:

“A person commits the offense of criminal sale of dangerous drugs if he sells, barters, exchanges, gives away, or offers to sell, barter, exchange, or give away . . . any dangerous drug ...”

Since the statute requires no mental state, defendant argues it is an absolute liability offense and that pursuant to Sections 45-2-103 and -104, MCA, the maximum penalty for such an offense is a $500 .fine.

Section 45-2-104, MCA, does provide that a person may be guilty of an absolute liability offense “only if the offense is punishable by a fine not exceeding $500 or the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described.” However, Section 45-9-101(1), MCA, is not an absolute liability offense, because the State must prove that the defendant purposely or knowingly committed the offense. Section 45-2-103(1), MCA states:

“Except for deliberate homicide as defined in 45-5-102(l)(b) or an offense which involves absolute liability, a person is not guilty of an offense unless, with respect to each element described by the statute defining the offense, he acts while having one of the mental states described in Subsections (33), (37), and (58) of 45-2-101.”

The section provides that all elements of an offense must be performed with one of the three mental states provided for in the Montana Criminal Code. Section 45-2-101(33), MCA, defines the mental state of “knowingly” and Section 45-2-101(58), MCA, defines the mental state of “purposely.” The definition of “negligently” is addressed in Section 45-2-101(37), MCA, and has no application to the offense of selling dangerous drugs. State v. Starr (1983), 204 Mont. 210, 218, 664 P.2d 893, 897.

In Starr, the defendant asserted that Section 45-9-101, MCA, was unconstitutionally vague. This Court noted that this statute has “no internal requirement of mental state as an element of the crime.” Starr, 204 Mont. at 218, 664 P.2d at 897. Therefore, we concluded that the statute was subject to Section 45-2-103, MCA, providing generally for all three mental states. Despite the fact that there is no internal mental state requirement in Section 45-9-101(1), MCA, the offense of criminal sale of dangerous drugs is subject to the requirements of Section 45-2-103(1), MCA, and the State is thus required to prove the offense was committed either purposely or knowingly.

The evidence clearly demonstrates that defendant Brown’s intention was to purposely or knowingly organize and coordinate the sale. Brown was not convicted pursuant to an absolute liability offense and the sentence of the District Court is affirmed.

3. When the police record telephone conversations without a warrant and with the permission of one but not all participants in the conversation, are the recordings admissible in a subsequent criminal trial?

Defendant contends that all of the recordings of telephone conversations took place with the knowledge and permission of only one of the participants in the conversation. Defendant states that these telephone recordings violate the privacy section of the Montana Constitution and should not be admissible in a later criminal trial. Defendant cites Section 45-8-213(1) (c), MCA, and points out that it is a criminal offense to record conversations without the knowledge of all parties to the conversation. That subsection makes an exception for public employees performing an official duty, but defendant contends this exception is overly broad and therefore unconstitutional.

We hold that if one party to a telephone conversation freely consents, the conversation can be electronically monitored and recorded without a warrant, and the evidence obtained is admissible in a subsequent criminal trial. This rule remains true even if the consenting party is an informant or a police officer. State v. Canon (Mont. 1984), [212 Mont. 157,] 687 P.2d 705, 707-08, 41 St.Rep. 1659, 1661-62; State v. Coleman (1980), 189 Mont. 492, 502-03, 616 P.21 1090, 1095-96; and State v. Hanley (1980), 186 Mont. 410, 608 P.2d 104. We refuse to reverse this well established rule.

Further, defendant’s reliance on Section 45-8-213 is misplaced. That statute defines when one violates privacy in communications and prohibits one from recording conversations without the knowledge of all participants. As noted by defendant, the statute clearly excepts “duly elected or appointed public officials or employees when the transcription or recording is done in the performance of official duty . . .” The exception applies to law enforcement officers while performing their duty. We fail to see how this exception can be declared unconstitutional because it is “overly broad.” There is certainly no absolute requirement that the statute exist at all should the legislature decide to abolish it. The legislature has simply determined that such recordings should be prohibited under certain circumstances and provided for an exception which applies in this case.

4. If police use a body wire transmitting device to record a face-to-face conversation without a warrant and with the knowledge of one but not all the participants of the conversation, are the recordings admissible in a subsequent criminal trial?

Defendant argues that the right to privacy section of the Montana Constitution prohibits the use of body wire recordings as evidence under the facts of this case. As support, defendant cites State v. Brackman (1978), 178 Mont. 105, 582 P.2d 1216. In Brackman, police placed an electronic monitoring device on an individual which was used to record his conversation with the defendant. No warrant was obtained and the defendant had no knowledge that his conversation was recorded. The District Court suppressed the recordings and transcriptions and this Court affirmed. The majority held there was no violation of defendant’s right to be free of unreasonable searches and seizures, but that the use of the recording as evidence would violate the right to privacy granted by the Montana Constitution.

We now hold that warrantless consensual electronic monitoring of face-to-face conversations by the use of a body wire transmitting device, performed by law enforcement officers while pursuing their official duties, does not violate the right to be free of unreasonable searches and seizures nor the privacy section of the Montana Constitution. The consent must be clearly obtained from at least one party to the conversation and must be freely made and without compulsion. Evidence obtained by such monitoring is admissible in a subsequent criminal trial. As in the case of telephone recordings, the consenting party may be an informant or a police officer. To this extent, the Brackman case is specifically overruled.

In the past, the rules regarding electronic monitoring in Montana have not been entirely clear. Partially, the confusion is present because there is no firm agreement as to whether electronic eavesdropping should be analyzed under Montana’s constitutional right to privacy, search and seizure law, or some combination of the two. Additionally, there is virtually no Montana statutory authority directing the procedures followed by law enforcement personnel.

In the Brackman case we analyzed and considered whether participant electronic monitoring violates the Fourth Amendment to the United States Constitution. After an analysis of the United States Supreme Court decisions regarding this topic, we concluded that when at least one party to the monitored conversation freely consented to the monitor, there was no impermissible search or seizure under the Fourth Amendment. Brackman 178 Mont. at 112, 582 P.2d at 1220.

Currently, there is no need to alter this portion of the Brackman case, and there are stróng indications that this conclusion is more certain today. In determining that there was no Fourth Amendment violation, this Court relied on U.S. v. White (1971), 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453. The White case addressed the issue of whether the Fourth Amendment barred from evidence the testimony of governmental agents who related certain conversations which occurred between the defendant and a government informant and which the agents overheard by monitoring a radio transmitter carried by the informant. In a plurality opinion, Justice White stated the monitoring did not violate the defendant’s right to be free of unreasonable searches and seizures. The precedential value of White is often attacked because it was a plurality opinion. However, despite the passage of seventeen years, White has not been reversed. Since that time, the United States Supreme Court has stated:

“[N] either the Constitution nor any act of Congress requires that official approval be secured before conversations are overheard or recorded by Government agents with the consent of one of the conversants.”

U.S. v. Caceres (1979), 440 U.S. 741, 744, 99 S.Ct. 1465, 1467, 59 L.Ed.2d 733, 738 (addressing the admissibility of consensual recordings made by an Internal Revenue Service agent that failed to observe and comply with Internal Revenue Service regulations). Additionally, “all eleven Circuit Courts of Appeals have accepted White as constitutional authority for the principle that search warrants are not required to authorize consensual interceptions . . C. Fishman, Wiretapping and Eavesdropping, Section 9, at 17 (1978). Warrant-less consensual electronic monitoring of face-to-face conversations does not violate the Fourth Amendment to the United States Constitution.

The Montana Constitution also provides that the people shall be free from unreasonable searches and seizures. Mont. Const. Article II, Section 11. Although the language of this provision is nearly identical to that contained in the Fourth Amendment to the United States Constitution, we recognize that such a provision in the Montana Constitution may be interpreted so as to provide a greater amount of rights than that contained in the Federal Constitution. See, State v. Johnson (Mont. 1986), [221 Mont. 503,] 719 P.2d 1248, 1254-55, 43 St.Rep. 1010, 1016-17; and Butte Community Union v. Lewis (Mont. 1986), [219 Mont. 426,] 712 P.2d 1309, 1313, 43 St.Rep. 65, 70. Additionally, the Montana Constitution provides that the right of individual privacy shall not be infringed without the showing of a compelling state interest. Mont. Const. Article II, Section 10. There is no similar textual language in the United States Constitution and we have therefore recognized that this section grants rights beyond that inferred from the United States Constitution. See generally, Montana Human Rights Division v. City of Billings (1982), 199 Mont. 434, 649 P.2d 1283. Because Montana’s Constitutional protections have an existence which is separate from the Federal Constitutional protections it is necessary to offer an independent analysis of the privacy and search and seizure provisions of the Montana Constitution.

“Where no reasonable expectation of privacy exists, there is neither a ‘search’ nor a ‘seizure’ within the contemplation of . . . Article II, Section 11 of the Montana Constitution.” State v. Bennett (1983), 205 Mont. 117, 121, 666 P.2d 747, 749. There must be some violation of a reasonable expectation of privacy before the provision applies. In the case at hand, the defendant Brown claimed an actual or subjective expectation of privacy, because she personally expected her conversations with the undercover officer to be private. However, it must also be determined whether her expectation was reasonably justifiable. We conclude that a defendant has no reasonably justifiable expectation that statements made to another will be kept private by that person. Therefore, the facts of this case present no unreasonable search or seizure within the contemplation of the Montana Constitution.

The analysis however must go further because the framers of the Montana Constitution specifically provided an additional protection with the right to privacy provision. Due to the sensitive nature of this issue, we must consider more than just the defendant’s reasonable expectation of privacy because such a test offers no more than that provided by Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. Katz specifically notes that the “general” right to privacy is left largely to the law of the individual states. 389 U.S. at 350-51, 80 S.Ct. at 510, 511.

Commentators have suggested that this Court consider “whether the area to be searched or the object to be seized is owned or possessed” by the defendant. Elison and NettikSimmons, Right of Privacy, 48 Mont.L.Rev. 1, 26 (1987). The “object” to be seized in this case is the conversation between the defendant and the undercover officer. It is logically difficult to strictly characterize the defendant’s possessory interest in her conversation with the officer. We conclude that both participants had an equal interest in the conversation and that either could consent to the monitoring. Additionally, despite the fact that we have already determined the defendant had no reasonably justifiable expectation of privacy, we must also consider whether the government activity in this case is excessively intrusive. This additional consideration is needed because a defendant may have his reasonable expectation of privacy distorted by excessive intrusive government activity. In other words, the very fact that the government is acting in an overly intrusive manner may distort or obliterate any reasonable expectation of privacy. See, e.g., Smith v. Maryland (1979), 442 U.S. 735, 740-41, n. 5, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220, 227. However, the warrantless consensual electronic monitoring in this case was not excessive. The unsolicited incriminating statements by Brown were freely spoken to the undercover officer as she attempted to coordinate the sale. Defendant Brown simply mistakenly placed her trust in the officer and we refuse to conclude that the recording of her words was excessively intrusive.

There is no question that the undercover officer could testify as to the oral incriminating statements made to him by Brown. Logically, the recording of these statements by the officer and the introduction of the recording in evidence, with proper foundation at the trial, is equally admissible as the officer’s testimony of what oral statements had been made by Brown. The recorded statements would be more reliable than the recall of the witness as to what had been said to him.

To summarize, we hold there is no violation of Montana’s right to privacy, or the prohibition against unreasonable searches and seizures, when law enforcement officers pursing their official duties perform warrantless consensual electronic monitoring of face-to-face conversations. It is important to stress that this holding does not open the floodgates to create an Orwellian society and that the individual is not left without protections against inappropriate electronic eavesdropping. Section 45-8-213, MCA, still makes it a criminal offense to record a conversation without the permission of all participants unless an exception provided within the statute applies. Additionally, warrantless monitoring of any conversation without the permission and consent of one participant is strictly prohibited by both the United States and Montana constitutions.

For the foregoing reasons, the judgment of the District Court is affirmed in all respects.

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

MR. JUSTICE HUNT,

dissenting:

I dissent with the majority regarding issues 3 and 4. Current federal law on the subject of telephone recordation and wiretapping apparently mandates the result of the majority but this trend of blatant disregard for the right of privacy that has developed in recent years gives me pause. In this decision, the majority overrules State v. Brackman (1978), 178 Mont. 105, 582 P.2d 1216, in which this Court held that a warrantless recording of a conversation consented to by one party but not the defendant was inadmissible as evidence because it violated the right to privacy guaranteed by the Montana Constitution.

As a rationale for this about-face, the majority explains that the defendant had no reasonably justifiable expectation of privacy in her conversations with the undercover officer. Additionally, holds the majority, since the defendant’s “interest” in keeping the conversation private is equal to the officer’s interest in revealing the conversation, the officer’s consent was enough to satisfy the protections of the right of privacy provision in our state constitution. I disagree with both these contentions.

First, by finding that a defendant “has no reasonably justifiable expectation that statements made to another will be kept private by that person” the majority ostensibly abolishes the requirement of a search warrant to record any and all conversations between any persons if one party is a government agent and consents. I believe if the average citizen was asked whether the Montana Constitution gave him the right to expect his conversations with other people to be kept private, the answer would be a resounding “yes!”. A recent case decided by the Superior Court of Pennsylvania makes a convincing argument that the consent of a government participant in a conversation to the recordation or electronic monitoring of that conversation should not be the guidepost by which we measure the constitutionality of admitting that recording into evidence.

“In the Commonwealth of Pennsylvania, no citizen should have to expect that the government may immediately and irrevocably seize his private thoughts every time he voices them to another person. Moreover, whatever the distinction between electronic eavesdropping done without consent and electronic eavesdropping done with the consent of a government informant, it does not support a rational conclusion that the first practice is a government “search and seizure” into the speaker’s protected zone of privacy while the second practice is not.”

Commonwealth v. Schaeffer (1987), 370 Pa.Super. 179, 536 A.2d 354, 360.

Second, the majority attempts to characterize the defendant’s conversation as an “object” in which she has some kind of possessory interest. I agree with the majority’s statement that it is logically difficult to characterize a conversation as something in which the defendant has a possessory interest. However, I disagree with the majority’s assertion that the officer and the defendant had “equal” interests in the conversation. The officer’s interest in the conversation is to obtain enough incriminating evidence to give him probable cause to arrest the defendant for a crime. At his disposal in this endeavor is the whole arsenal of the government’s law enforcement weaponry. The provisions of the state constitution were designed to protect citizens from abuse and misuse of this arsenal. To state that the defendant has an equal interest is to state that she has no interest and consequently no protection from governmental intrusion.

Although the majority seems to have harmonized Montana law in this area with the federal trend it does a disservice to the citizens of this state by ignoring the greater right of the individual to exclude unreasonable impositions by the government recognized by Article II, Section 10, of our state constitution. The majority found that the defendant had no reasonably justifiable expectation of privacy in this situation. After this conclusion, how could it find any protection under the state constitution’s right to privacy provisions? The answer is it couldn’t.

The majority feels constrained by the decisions of the United States Supreme Court. But this state, through the adoption of the right to privacy provision of our state constitution, has elected to give Montana citizens even greater guarantees of privacy than the federal constitution gives. Why the majority chooses to ignore this explicit guarantee puzzles me. The decision is particularly puzzling in light of the fact that this is not a case in which there was no time to obtain a warrant. Even if getting a warrant in these types of cases becomes a perfunctory exercise, it should be done so as to at least acknowledge the rights of the individual in such a situation. Requiring a warrant may also insure the documentation and availability of a recording which actually exculpates a defendant.

The language of the opinion is broad enough to allow conversations between a defendant and his attorney or other privileged conversations to be recorded without the consent of the defendant and to be allowed into evidence. It can be assumed that the májority does not really intend to abrogate the rule concerning privileged communications. But it is expansive language such as this that provides the hammer and chisel for the chipping away of rights guaranteed by the Montana Constitution.

The decision made today is indeed a sad one for the citizens of the state of Montana. The majority may have unwittingly opened the doors for the erosion of any protection the privacy clause gives individuals of this state. The result may be required by the current posture of federal law but it certainly was not intended by the framers of our state constitution.


source: Caselaw Access Project

author: MR. JUSTICE McDONOUGH

license: Public Domain

text:
    WILLIAM and KAREN SEMENZA, Plaintiffs and Appellants, v. EARL LEITZKE, d/b/a Leitzke Mobile Home Transport and Service.
    No. 87-374.
    Submitted on Briefs March 3, 1988.
    Decided May 5, 1988.
    754 P.2d 509.

      Edmund F. Sheehy, Jr., Cannon and Sheehy, Helena, for plaintiffs and appellants.
    C.J. Seifert, Holly J. Franz, Gough, Shanahan, Johnson and Waterman, Helena, for respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

The plaintiffs, William and Karen Semenza, appeal the judgment of the District Court of the First Judicial District, Lewis and Clark County, entered in favor of the defendant. We affirm in part and reverse in part.

On March 17, 1984, the Semenzas and Earl Leitzke entered into an oral contract in which Leitzke agreed to move and block a mobile home for the Semenzas for $200; $100 to move the home and $100 to block it. Leitzke completed the blocking and leveling procedure. He testified that he informed the Semenzas that the ground was soft and unstable and could lead to problems. The Semenzas deny that Leitzke said anything about the quality of their homesite.

In early May the Semenzas’ began having trouble with their trailer that indicated it was not level. The Semenzas’ contacted Leitzke who came out and rejacked and releveled the trailer.

During the summer Mr. Semenza built a skirting frame around the base of the trailer. Once again in November the Semenzas began having problems that demonstrated that the tráiler was not level. In December they contacted Leitzke who performed no more work but informed the Semenzas that their problems were a result of frost heaving the skirting frame against the bottom of the trailer. This was Leitzke’s last visit to the Semenzas’ trailer.

In January the Semenzas’ hired another mobile home service, Algra’s, to work on the trailer and in February of 1985 they hired Four Seasons Mobile Home Service to do further work. The issues presented for review are:

1. Whether the District Court erred in answering a jury question submitted to the court after the jury had begun their deliberations?

2. Whether the District Court erred in preventing the jury from considering the Semenzas’ claim for breach of the covenant of good faith and fair dealing and negligent infliction of emotional distress?

3. Whether the District Court erred in allowing deposition costs to the prevailing party, Earl Leitzke?

ISSUE I

After the jury began deliberating, they presented a question to the District Court: “Does the law state how long a contract (oral) is legal and binding?” Counsel for both parties participated in determining the proper answer. The jury was presented with this answer: “There is no statute that defines how long an oral contract is binding. It depends on the provisions of the contract itself, or, in the absence of such provisions, it depends on the intent of the parties.”

The plaintiffs contend that they suffered substantial injustice because the answer was given after the jury began deliberating and the Semenzas’ were denied the opportunity to argue the issue before the jury. They contend that there was no evidence to support the answer given to the jury and that the court should have answered the jury’s question with a simple “no”. The Semenzas’ rely upon Simonson v. White (Mont. 1986), [220 Mont. 14,] 713 P.2d 983, 43 St.Rep. 133, as authority for their position. In Simonson the jury posed a question of the court after they had begun deliberating. The court responded by instructing the jury on an issue that was not presented at trial. This Court reversed stating “. . . since White was denied the opportunity to argue that his conduct was not willful or wanton, it was error for the trial judge to later amend the pleadings and the special verdict forms to allow the jury to consider that issue.” Simonson, 713 P.2d at 987.

The present situation differs from the situation in Simonson. Section 25-7-405, MCA, provides the proper procedure to be followed when a jury submits a question to the court after it has begun deliberating:

“After the jury has retired for deliberations, if there be a disagreement among the jurors as to any part of the testimony or if they desire to be informed of any point of law arising in the cause, they may require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of or after notice to the parties or counsel. Such information must be given in writing or taken down by the stenographer.” The District Court properly followed these procedures. Unlike the case in Simonson, the District Court’s answer did not insert a new theory or defense into the case. The issue of whether Leitzke performed or breached the oral contract by making no further repairs in December was already before the court. The Semenzas suffered no substantial injustice. Affirmed.

ISSUE II

At the end of the Semenzas’ case in chief, Leitzke moved for a directed verdict on the implied covenant of good faith and fair dealing claim and the claim for damages for emotional distress. The District Court directed the verdict for both causes of action.

The standard for reviewing a directed verdict was articulated in Cremer v. Cremer Rodeo Land & Livestock Co., (1979), 181 Mont. 87, 592 P.2d 485, “ ‘the test commonly employed to determine if the evidence is legally sufficient to withdraw cases and issues from the jury is whether reasonable men could draw different conclusions from the evidence. (Citations omitted.) If only one conclusion is reasonably proper, then the directed verdict is proper.’ ” Cremer 592 P.2d at 488, (quoting Sant v. Varil (1977), 173 Mont. 14, 566 P.2d 48).

In Parini v. Lanch (1966), 148 Mont. 188, 191, 418 P.2d 861, 863, this Court held “[a] directed verdict may be granted when the evidence is so insufficient in fact as to be insufficient in law.” In granting the directed verdict the District Court held that there was no evidence to support a claim for breach of the implied covenant of good faith and fair dealing. We agree with the District Court.

The Semenzas’ also argue that the District Court erred by not instructing the jury on their claim for emotional distress damages. Johnson v. Supersave Markets (Mont. 1984), [211 Mont. 465,] 686 P.2d 209, 41 St.Rep. 1495, articulated the requirements for recovery for negligent infliction of emotional distress. “In determining whether the distress is compensable absent a showing of physical or mental injury, we will look to whether tortious conduct results in a substantial invasion of a legally protected interest and causes a significant impact upon the person of plaintiff.” Johnson, 686 P.2d at 213 (emphasis in original). Here the Semenzas’ failed to establish a legally protected interest. They rely upon French v. Ralph E. Moore, Inc. (1983), 203 Mont. 327, 661 P.2d 844, to attempt to establish a legally protected interest in “a safe and comfortable home.” However, the wrong done in French was not merely negligence but trespass to property. Affirmed.

ISSUE III

The District Court entered a $950.35 judgment on behalf of Earl Leitzke, including $911.35 in deposition costs. The Semenzas’ claim that Leitzke is not entitled to the $911.35 for deposition costs. The Semenzas’ argue that the depositions were taken simply for the purpose of discovery and were not used in lieu of witness testimony or for impeachment, thus their cost is not recoverable.

Deposition costs may be recovered by the prevailing party when the deposition is used at trial. Section 25-10-102, 201(2), MCA, Cash v. Otis Elevator Co. (Mont. 1984), [210 Mont. 319,] 684 P.2d 1041, 41 St.Rep. 1077. Use at trial encompasses use for impeachment or as evidence. Gee v. Egbert (Mont. 1984), [209 Mont. 1,] 679 P.2d 1194, 41 St.Rep. 515. However, deposition costs may not be recovered if a deposition is taken solely for the party’s own convenience. Morrison-Maierle, Inc. v. Selsco (1980), 186 Mont. 180, 606 P.2d 1085. “Our examination of record indicates that the depositions taken in this cause were in all cases for the purpose and convenience of the deposing party in marshaling their respective cases. Therefore the costs for such depositions must be borne by the deposing party (citation omitted). Costs may be allowed against the losing party by the District Court only for such depositions as were used as evidence at the trial, or for purposes of impeachment during the trial.” Gee, 679 P.2d at 1204.

An examination of the record in this case reveals that only the depositions of Gregary Thackery, Robert McKenna, and William Semenza were used for impeachment, thus costs may be recovered for only those depositions. Clearly the deposition used to refresh Leitzke’s memory by his own attorney was not used or introduced as evidence at trial; nor was it used for purposes of impeachment. We affirm Issues I and II and reverse and remand Issue III for proceedings in accordance with this opinion.

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

MR. JUSTICE SHEEHY, deeming himself disqualified, did not participate.


author: MR. JUSTICE SHEEHY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. WILLIAM PETROFF, Defendant and Appellant.
    No. 87-154.
    Submitted on Briefs March 31, 1988.
    Decided May 6, 1988.
    757 P.2d 759.

      Carol Mitchell, Missoula, for defendant and appellant.
    Mike Greely, Atty. Gen., Helena, Barbara Claassen, Asst. Atty. Gen., Robert L. Deschamps, III, Co. Atty., Missoula, Edward McClain, Deputy Co. Atty., for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Defendant (Petroff) appeals from the sentence imposed by the District Court of the Fourth Judicial District, Missoula County. We affirm.

The issues before the Court are:

1. Did the District Court properly delineate its reasons for imposing sentence?

2. Did the District Court improperly rely on erroneous information in sentencing Petroff?

On October 14, 1983, an information was filed charging Petroff with two counts of felony bad check- writing. The first count charged the issuance of a $700 bad check; the second count charged the issuance of a $200 bad check as part of a common scheme. The record indicates that Petroff had written several other checks without sufficient funds to cover the drafts.

Following the District Court’s rejection of the initial plea bargain, Petroff plead guilty on Count II of the information. Count I was dismissed on the request of the State.

The matter of sentencing came before the court on October 15, 1984. At that time, the District Court deferred imposition of sentence for a period of three years, provided that Petroff abide by certain conditions. The conditions imposed required, inter alia, that Petroff pay restitution in the amount of $2,561.35; that he abstain from maintaining a checking account; that he maintain contact with his Probation officer; that he receive permission before changing his place of residence; and that he seek and maintain employment.

A petition requesting revocation of probation and imposition of sentence was filed on October 15, 1985. The petition alleged Petroff had failed to make restitution payments since May, 1985. The petition was subsequently dismissed upon payment of the arrearage.

A second petition requesting revocation of probation and imposition of sentence was filed on May 22,1986. The petition alleged, and Petroff subsequently admitted, that he had failed to pay restitution; that he had failed to maintain contact with his Probation Officer; that he had moved without permission; and that he failed to maintain employment.

Following extradition from Georgia and admission of the probation violations, the District Court sentenced Petroff to ten years in prison, with three years suspended. Although the District Court did not state reasons for the sentence at that time, its judgment filed March 11, 1987, states the following:

“The reasons for the judgment are as follows:
“1. The recommendations of the Pre-Sentence Investigation;
“2. The Defendant’s prior criminal record.”

Petroff moved for reconsideration of sentence based on alleged inaccuracies in the pre-sentence investigation. The motion for reconsideration was heard by the District Court on March 19, 1987. At that time, the following exchange occurred:

“THE COURT: Well, this case has a fairly extensive history. It goes back to a plea bargain in 1984 and a Judgment from that date. Thereafter, a probation violation, one dated October 10, 1985, one dated October — or May 9, 1986. He’s been given two chances before this.
“What is going to change things at this time, Mr. Mansch?
“THE COURT: Well, you have been given two opportunities in the past. I gave you two breaks before, and this time you had to be brought back from the state of Georgia.
“I think my judgment is very fair . . . and the judgment will stand.”

The first specification of error concerns the District Court’s alleged failure to state the reasons for the sentence imposed. Petroff argues, in effect, that the statement contained within the judgment, standing alone, is insufficient. We disagree.

Generally, the manner and extent of punishment is vested in the sound discretion of the trial court. However, in State v. Stumpf (1980), 187 Mont. 225, 609 P.2d 298, we recognized that the requirements of basic fairness mandate the acknowledgment of a criminal defendant’s right to be informed of the reasons underlying his or her punishment. We also noted the adverse effect the failure to state such reasons had on the ability of an appellate court, and the Sentence Review Board, to conduct an informed evaluation of a case. 187 Mont. at 227, 609 P.2d at 299. The Stumpf rationale does not impose a duty upon the District Court to set forth its reasoning orally in open court and in writing, however.

From the record, it is clear that the judgment clearly informed Petroff of the reasons underlying his sentence. No more is required. See, State v. Johnson (Mont. 1986), [221 Mont. 503,] 719 P.2d 1248, 43 St.Rep. 1010.

Petroff also contends that the District Court relied upon incorrect information in sentencing him. Specifically, that the court wrongly assumed that Petroff had two previous probation violations. We find PetrofFs argument strained at best.

Although this Court has held that a criminal defendant has a right to a sentence based upon substantially correct information, State v. Herrera (1982), 197 Mont. 462, 643 P.2d 588, we will not strain at worst-case assumptions in order to find a mistake. Rather, the District Court is presumed to be correct. State v. Lane (1977), 175 Mont. 225, 573 P.2d 198; Petition of Meidinger (1975), 168 Mont. 7, 539 P.2d 1185.

The statements of the District Court, reproduced infra, do not indicate that the court felt Petroff had two chances to correct probation violations and failed to do so. Rather, the District Court correctly recognized that Petroff had two prior chances to avoid a more severe penalty, namely, the deferred imposition of sentence and forgiving the allegations contained within the first petition to revoke.

The judgment of the District Court is affirmed.

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


text:
    ALBERT H. NEUMANN, Plaintiff and Appellant, v. SALLY MARLINE ROGSTAD, Personal Representative of the Estate of Isabel Neumann, Deceased, Defendant and Respondent.
    No. 87-529.
    Submitted on Briefs March 24, 1988.
    Decided May 6, 1988.
    757 P.2d 761.

      Randy Winner, Flaherty and Winner, P.C., Great Falls, for plaintiff and appellant.
    Joseph Marra, Marra, Wenz, Johnson and Hopkins, Great Falls, for defendant and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Plaintiff appeals the order of the District Court of the Eighth Judicial District, Cascade County, granting summary judgment in favor of defendant. We affirm.

The issues before the Court are:

1. Did the District Court correctly determine that the plaintiff failed to properly file a claim against decedent’s estate?

2. Did the District Court correctly determine that summary judgment was proper?

3. Did the District Court err when it failed to grant costs and attorney fees pursuant to Section 72-12-206, MCA?

Albert Neumann (Albert) and Isabel Neumann (Isabel) were married in 1932. During the early 1940’s, Albert and Isabel began purchasing unimproved lots in and around the Great Falls area. As the couple prospered, they also engaged in numerous other business ventures. The titles to these business enterprises were held both jointly and separately.

Albert and Isabel’s manner of holding property changed drastically in the mid-1960’s, however. At that time, Albert was involved in a bar brawl in which his opponent suffered a broken arm. In an attempt to insulate himself from a pending civil suit, Albert transferred all of his property to Isabel. The property was not transferred back to Albert following settlement of the case.

Although Albert and Isabel enjoyed a measure of business success throughout their years together, the couple’s attempt at marriage was less successful. After numerous separations and several aborted divorce proceedings, their marriage was finally dissolved in 1973. As a result of Albert’s failure to appear at the proceeding, Isabel received the majority of the couple’s property. Isabel also excluded Albert from her will shortly thereafter.

Unlike most couples, the divorce did not adversely affect Isabel and Albert’s relationship. If anything, the divorce strengthened the relationship. Isabel and Albert continued to spend a great deal of time together and engaged in several joint business ventures. In addition, if rental properties owned by Isabel needed maintenance, Albert provided or arranged for it, usually at little or no charge for his labor.

Prior to her death in 1986, Isabel’s illness severely limited the extent of her activities. During this period, Albert provided Isabel with transportation, companionship, household services and business assistance. As a consequence, Isabel is alleged to have promised Albert that she would grant him a one-half interest in the property the couple had previously held jointly. Isabel failed to transfer the property or alter her will, however.

Albert filed a creditor’s claim against Isabel’s estate on December 19, 1986. Following denial of his claim, Albert filed suit alleging common law marriage, a claim for services rendered in the amount of $35,200.00, constructive trust, and an oral contract theory. Albert subsequently dropped the common law marriage claim and instead alleged that the 1973 divorce decree was inadequate.

This appeal followed the District Court’s order granting summary judgment in favor of the defendant. Although the District Court’s order extinguished all four counts of Albert’s complaint, the argument presented by counsel only addresses the propriety of the dismissal of the claim for services rendered. We therefore limit our discussion accordingly.

The policy underlying Montana’s Uniform Probate Code (UPC) is the fast and efficient settlement of estates. Section 72-1-102(2)(c), MCA. Consistent with this goal, Section 72-3-803, MCA, provides that all claims against an estate must be made within four months after the date of the first publication of notice to creditors. The failure to make a claim within the brief statutory period thereafter bars the action.

The UPC is also designed to simplify the probate process. See Section 72-l-102(2)(a), MCA. Section 72-3-804, MCA, is a reflection of this legislative design. It provides, in pertinent part:

“Claims against a decedent’s estate may be presented as follows:
“(1) The claimant shall mail to the personal representative return receipt requested a written statement of the claim indicating its basis, the name and address of the claimant, and the amount claimed or may file a written statement of the claim, in the form prescribed by rule, with the clerk of the court . . . (Emphasis added.)

In an attempt to satisfy Section 72-3-804, MCA, Albert submitted a document entitled “Claim Against Estate,” wherein he listed his name, his attorney’s address, and an allegation that the estate was indebted to him in the amount of $35,200.00 for services performed as set out in schedule “A,” reproduced below.

“The services provided for Isabel Neumann by Albert H. Neumann, include such things as:

“Washing windows; mowing lawns; planting flowers; house cleaning; clothes washing; bathing Isabel Neumann; buying groceries; filling Isabel’s portable oxygen bottle; providing a vehicle and driving Isabel to the doctor, the bank, the accountant, and wherever she wanted to go; buying prescription drugs; doing her Christmas shopping; taking her out to dinner and bringing meals to her at home; balancing her checking account for her; working with her on joint investments; caring for her parents’ graves; advising her on personal problems; repairing and maintaining real property for her; constructing the buildings at 108 20th Street South, the building in which the Nugget Bar is located, and the metal quonset building behind the Nugget Bar; and managing and maintaining the rental properties for Isabel.”

The defendant argued, and the District Court apparently agreed, that Albert’s claim for services failed to meet the statutory requirements of Section 72-3-804, MCA, because the claim failed to sufficiently describe what services he allegedly rendered and when he allegedly rendered them. We disagree.

It is not the function of this Court to insert that which has been omitted. Section 1-2-101, MCA. By its terms, Section 72-3-804, MCA, does not require that a claimant specify the exact date a debt was incurred nor does the statute require the claim be set forth in minute detail. Rather, a claimant need only set forth the basis of a claim, the amount claimed, and his or her name and address. While Albert’s claim might have been more specific, it still satisfied the statutory requirements. The duty to attempt to conduct further inquiry, within reasonable parameters, then passed to the personal representative.

“The purpose to be accomplished by our statutory provisions relating to presentment of claims against estates is to bring all claims to the knowledge of the executor or administrator so that proper inquiry and investigation may be made regarding their validity, with the view of enabling the executor or administrator to pass intelligently upon them.” Wunderlich v. Holt (1929), 86 Mont. 260, 269, 283 P. 423, 425. Generally, the form of a claim is not determinative. All that is required is that the estate receive reasonable notice of the claim by the required time so that the personal representative can determine the validity of a claim. Peterson v. Marston (Minn. 1985), 362 N.W.2d 309, (construing identical statutory language); Strong Bros. Enterprises v. Estate of Strong (Colo.App. 1983), 666 P.2d 1109 (construing identical statutory language); Notar v. State Farm Mutual Auto Insurance Co. (Fla.App. 1983), 438 So.2d 531. We find Albert’s claim was sufficient to provide notice of the alleged debt.

However, the District Court also determined that Albert failed to provide sufficient proof in support of his claim to raise a genuine issue of material fact. We agree.

Throughout Albert’s deposition, he contended that although legally divorced, he and Isabel were in actuality husband and wife; that he failed to initiate legal proceedings for property allegedly his due to his affection for Isabel; and that “they could have taken my life and it still would have been hers.” In addition, the record is silent as to whether he ever entered an agreement with Isabel to provide services; the date, value or hourly rate for such services; and whether he ever billed Isabel for such services. Albert’s belated determination that he “believes” he would charge for getting groceries and running errands is not sufficient to raise a genuine issue of material fact.

The courts have long struggled with belated claims by family members and others against a person whose “mouth is stopt with dust.” See Wunderlich, 86 Mont. at 271, 283 P. at 425. Generally, the law presumes that services are given and rendered with the expectation of being paid. San Antonio v. Spencer (1928), 82 Mont. 9, 13, 264 P. 944, 945. However, services provided by family members or through some other significant relationship give rise to an entirely different presumption.

“ ‘It is certainly true that where services are rendered by one person for another, which are knowingly and voluntarily accepted, without more, the law presumes that such services were given and rendered in the expectation of being paid for and will imply a promise to pay what they are reasonably worth.’ [Citation omitted.] To this rule there is a generally acknowledged exception . . .:’ In the case of near relatives or members of the same family, living together as one household, the law regards personal services rendered, and board or lodging or other necessaries and comforts furnished, as gratuitous, and in the absence of an express agreement to pay for the same or facts and circumstances from which such an agreement can be inferred, there can be no recovery therefor San Antonio, 82 Mont. at 13, 264 P. at 945.

A similar rule has been applied in a situation in which kindness and affection motivated the rendering of services.

“[P]laintiffs indicated that they performed the services out of kindness for an elderly neighbor. However laudable plaintiffs’ action on behalf of decedent may have been, there was no implied contract of payment since there was no understanding between plaintiffs and decedent that plaintiffs would receive payment as consideration for the services they performed. In denying a plaintiff’s contract claim against an estate for services rendered to a decedent, the California Court of Appeals stated:

“ ‘. . . If at the time the services were originally rendered they were intended to be gratuitous or as an accommodation, motivated by friendship, kindness, or some other significant relationship existing between the parties, and were tendered without any expectation of remuneration, they cannot afterwards be converted into an obligation to pay their reasonable value under the theory of an implied contract . . .’”

Ziegler v. Kramer (1977), 175 Mont. 236, 239, 573 P.2d 644, 645.

Application of the Ziegler and San Antonio rationales clearly demonstrates the inadequacy of Albert’s proof. Although not legally married to Isabel, Albert testified that the couple were in fact acting as husband and wife. He also testified repeatedly that his love and affection for Isabel had precluded an action for large sums of money rightly his. Under such circumstances, the failure to allege an express contract or to present a written copy of the same is fatal to his claim. Albert’s uncertain, belated and unilateral determination that he should be compensated for services rendered to a person unable to answer is not sufficient to raise a genuine issue of material fact.

Finally, it is alleged that the District Court erred when it failed to grant the defendant costs and attorney fees pursuant to Section 72-12-206, MCA. We find the issue is not properly before us.

We note that Albert did not raise the issue of attorney fees. In order to preserve an issue not raised by an appellant, it is necessary for the personal representative as respondent to file a notice of cross-appeal. Rule 5(a), M.R.App.P., provides in pertinent part:

“(3) If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within fourteen days after the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this Rule 5(a), whichever period last expires.” The respondent’s failure to so file is thus fatal to his claim.

Respondent’s claim is not saved by Rule 14, M.R.App.P. Rule 14 merely provides the opportunity for a respondent to raise an issue on appeal. It does not eliminate the procedural prerequisites necessary to perfect an appeal. In a similar situation, we have stated:

“Finally, wife contends that the District Court erred in refusing to grant attorney fees and costs. We cannot review this issue, however, because wife failed to file a cross-appeal.
“ ‘Although Rule 14 (M.R.App.Civ.P.) provides for review of matters by cross-assignment of error, this does not eliminate the necessity for cross-appeal by a respondent who seeks review of rulings on matters separate and distinct from those sought to be reviewed by the appellant.’ Johnson v. Tindall (1981), 195 Mont. 165, 169, 635 P.2d 266, 268.”

Marriage of Johnson (1983), 205 Mont. 259, 263, 667 P.2d 438, 440.

The judgment of the District Court is affirmed.

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


author: MR. JUSTICE WEBER

text:
    In re the ADOPTION OF S.E., A Minor Child.
    No. 87-504.
    Submitted on Briefs March 31, 1988.
    Decided May 9, 1988.
    Rehearing Denied June 2, 1988.
    755 P.2d 27.

      Michael Sol, Sol & Wolfe, Missoula, for appellant.
    Bruce Barrett, Missoula, for respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

The natural father’s parental rights were terminated by the District Court for the Fourth Judicial District, Missoula County. He appeals. We affirm.

We restate the issues as:

1. Did the District Court have jurisdiction over this proceeding?

2. Were the correct standards used in terminating the natural father’s parental rights?

3. Did the District Court improperly deny the natural father’s post-hearing motions?

4. Did the District Court err in refusing to grant a new trial based on surprise testimony?

5. Was the mother estopped from claiming that the natural father had failed to contribute to S.E.’s support for one year?

The marriage of S.E.’s natural parents was dissolved in December 1985, when S.E. was 16 months old. The dissolution order provided that the parents would share joint custody of S.E., with the mother as primary physical custodian. The natural father was granted visitation rights and was ordered to pay $200 per month in child support.

In April 1987, the mother’s new husband filed a petition to adopt S.E. with the mother’s consent. The petition asked that the natural father’s parental rights be terminated because he had failed to support S.E. for a period of one year. This petition was filed in the same judicial district as the dissolution but as a separate cause of action. Shortly thereafter, the natural father filed a motion in the dissolution cause to hold the mother in contempt of court for terminating his visitation rights. The dissolution court entered a stipulated visitation order pending resolution of the adoption proceedings.

At the hearing on the petition for adoption, evidence was presented that the natural father had paid a total of $250 toward S.E.’s support during the 17 months since the dissolution of marriage. The court found that the natural father had been unemployed or employed less than full time in the year preceding the filing of the petition, but that he was not physically or mentally disabled and had not sought employment in all fields in which he was qualified. It further found that he had received, or was entitled to receive, income from sale of several pieces of marital property, yet none of this income was paid toward the support of S.E.

The court concluded that the natural father’s consent to the adoption was not required under Section 40-8-111, MCA, which provides:

“(1) An adoption of a child may be decreed when there have been filed written consents to adoption executed by :
“(a) both parents, if living, or the surviving parent of a child, provided that consent is not required from a father or mother:
“(v) if it is proven to the satisfaction of the court that the father or mother, if able, has not contributed to the support of the child during a period of 1 year before the filing of a petition for adoption;

A final decree of adoption will be granted if the court finds that the adoption is in the “best interests of the child” under Section 40-8-123(1) or Section 40-8-124(6), MCA. The petition to terminate parental rights and for adoption of S.E. was granted, and the natural father appeals.

I

Did the District Court have jurisdiction over this proceeding?

While the petition for adoption was filed in the same judicial district as the parents’ dissolution of marriage, it did not come before the same judge. The natural father argues that only the court having jurisdiction over the dissolution proceedings should be able to consider the petition to terminate his parental rights.

No such jurisdictional requirement appears in or is implied by the statutes. The statutes only provide that venue for a proceeding for adoption lies in the district court of the county where the petitioner resides. Section 40-8-107, MCA. We will not impose the requirement suggested by the natural father where it has not been imposed by the legislature.

II

Were the correct standards used in terminating the natural father’s parental rights?

The natural father raises several arguments that the standard used to terminate parental rights under Section 40-8-111, MCA, is not strict enough. He first asserts that a compelling state interest is required to terminate the fundamental right of parenthood. He argues that the “best interest of the child” test should not be used to choose between the natural parent and a prospective adoptive parent. He maintains that the question of whether parental rights should be terminated should not be left to the discretion of district court judges, but should be subject to a higher standard such as clear and convincing evidence or proof beyond a reasonable doubt. Finally, he argues that parental rights in a joint custody cannot be terminated in an adoption proceeding.

The natural father erroneously characterizes the determination of whether his parental rights should be terminated as a “best interest” question. That is not the case. The “best interest” test is applied under Section 40-8-123 or 124, MCA, after the parental rights have been terminated, in determining whether the adoption should be allowed.

The District Court concluded that the natural father’s consent to the adoption was not necessary under Section 40-8-111 (l)(a) (v), MCA, because the natural father had not contributed to S.E.’s support during a period of one year prior to the filing of the petition for adoption. We have held that the standard of proof under this section is clear and convincing evidence. Matter of Adoption of E.S.R. (Mont. 1985), [218 Mont. 118,] 706 P.2d 132, 133, 42 St.Rep. 1448, 1450. The undisputed testimony was that the natural father was unemployed or self-employed cutting firewood at $60 a week for much of the time since the dissolution of marriage. He did not seek assistance from any employment agency in finding work and did not apply for jobs in the janitorial or sales field, in both of which he had worked previously. He did not contribute his income from sale of marital assets to S.E.’s support. The ledger kept by the clerk of court shows child support payments of $100 in December 1986, and three $50 payments, one each in January, February, and April of 1987. Section 40-8-111, MCA, requires a parent to remain current within one year on support payments. Matter of Adoption of R.A.S. (Mont. 1984), [208 Mont. 438,] 679 P.2d 220, 223, 41 St.Rep. 451, 454-55. After reviewing the evidence, we conclude that clear and convincing evidence supports the finding that the natural father was able to contribute to S.E.’s support but did not do so for over a year.

The court then separately concluded that “[a]doption of the minor child by Petitioner and termination of the natural father’s parental rights is in the best interests of the minor child.” That conclusion is not technically correct. After the determination is made under Section 40-8-lll(l)(a)(v), MCA, that the natural parent’s consent to the adoption is not necessary, the remaining issue is whether the adoption by the petitioner is in the best interests of the child. We order stricken that portion of the lower court’s conclusion stating that “and termination of the natural father’s parental rights” is in the best interest of the minor child. With that modification, we conclude that the District Court used the proper standards under our statutes.

The natural father argues that the standard for termination of parental rights under Section 40-8-lll(l)(a)(v), MCA, is less than the standard of proof to terminate joint custody, and that joint custody cannot be terminated under this statute. (The standard for termination of joint custody is found at Section 40-4-219, MCA.) That argument is refuted by the above discussion of the clear and convincing evidence standard under this statute. Additionally, the language of Section 40-8-lll(l)(a)(v), MCA, is not limited to parents of any particular type of custodial status. Any parent who is able to support his child but does not do so for a period of one year forfeits the right to withhold consent to the adoption of his child.

The argument that parental rights are fundamental and that Section 40-8-111, MCA, unconstitutionally allows them to be abridged without proof of a compelling state interest was not noticed for certification to the Montana attorney general as required by Rule 38, M.R.App.P. For that reason, and because the issue was not squarely presented in the briefs before this Court or before the court below, we decline to consider this argument.

Ill

Did the District Court improperly deny the natural father’s post-hearing motions?

The natural father made post-hearing motions to alter or amend the court’s judgment, for a new trial, and to stay execution of judgment until resolution of the appeal. No responsive briefs were filed within the time allowed, although the attorney for the mother and her new husband filed a brief on the day of the hearing on the motions. The natural father argues that his motions should have been granted under Rule 2, Montana Uniform District Court Rules. That rule provides:

“(a) Upon filing a motion or within five days thereafter, the moving party shall file a Brief. The Brief may be accompanied by appropriate supporting documents. Within ten days thereafter the adverse party shall file an Answer Brief which also may be accompanied by appropriate supporting documents. Within ten days thereafter movant may file a Reply Brief or other appropriate responsive documents.
“(b) Failure to File Briefs. Failure to file Briefs may subject the motion to summary ruling. Failure to file a Brief within five days by the moving party shall be deemed an admission that the motion is without merit. Failure to file an Answer Brief by the adverse party within ten days shall be deemed an admission that the motion is well taken. Reply Briefs by movant are optional and failure to file will not subject a motion to summary ruling.
“(c) Oral Argument. The Court may order oral argument sua sponte or upon application of a party.
“(d) When Motion Deemed Submitted. Unless oral argument is ordered, or unless the time is enlarged by the Court, the motion is deemed submitted at the expiration of any of the applicable time limits set forth above without supporting Briefs having been filed.
“If oral argument is ordered the motion will be deemed submitted at the close of argument unless the Court orders additional Briefs in which case the motion will be deemed submitted as of the date designated as the time for filing the final Brief.
“(e) In the event of conflict, the Montana Rules of Civil Procedure shall control. Time computation shall be governed by Rule 6(a), M.R.Civ.P.”

The court granted the stay of execution because no responsive brief was timely filed under Rule 2. However, it refused to grant the other motions, stating that they related to its determination of the facts and the absence of a responsive brief did not change its determination of the facts. We agree with the District Court. The motion to alter or amend the judgment challenged the court’s findings and conclusions. The motion for a new trial was based on alleged surprise testimony which, as discussed below, was not of enough importance to be included in the court’s findings and conclusions. We hold that in this situation, the absence of answer briefs did not compel the court to grant the post-trial motions.

IV

Did the District Court err in refusing to grant a new trial based on surprise testimony?

The “surprise testimony” was the mother’s statement that S.E. was suffering from nightmares which appeared to be triggered by her natural father’s visitation. The natural father argues that a psychological evaluation is necessary to prove or refute this testimony.

The factors required for a new trial based on surprise are: 1) actual surprise, 2) the facts had a material bearing on the case, 3) the court’s decision mainly rested on these facts, 4) the surprise did not result from the moving party’s inattentiveness or negligence, 5) the motion for new trial was promptly filed, 6) the moving party acted reasonably at the time of the surprise, and 7) the result of a new trial would probably be different. Ewing v. Esterholt (Mont. 1984), [210 Mont. 367,] 684 P.2d 1053, 1057, 41 St.Rep. 1095, 1098. After reviewing the transcript, we conclude that the testimony about the nightmares was not a pivotal factor in this case. This testimony was not even mentioned in the lower court’s findings. We conclude that the natural father has failed to meet the seventh element necessary for a new trial on the basis of surprise. We hold that the lower court did not err in refusing to grant a new trial based on surprise testimony.

V

Was the mother estopped from claiming that the natural father had failed to contribute to S.E.’s support for one year?

The natural father stated this issue as whether the mother was es-topped from consenting to the termination of his parental rights. Section 40-8-111, MCA, requires the mother’s consent to the adoption of S.E. by her new husband, not to the termination of the natural father’s parental rights. Therefore, we have restated the issue.

The natural father testified at trial that he had not made child support payments for some of the period since the dissolution because the mother had told him she wanted to “make it” on her own and that she was not worried about payments while he was unemployed. He testified that at one point he offered her $1,200 from the sale of some property, but she refused the money. He argues that, for this reason, she is estopped from consenting to termination of his parental rights for nonsupport.

The mother’s testimony was that she told the natural father he must make support payments through the clerk of court, not directly to her. She also testified that she may have told him that she didn’t expect child support while he wasn’t working, but that she did expect to receive it when he was working.

In an area of conflicting testimony such as this, the trier of fact is entitled to determine which testimony to believe. It was entirely within the court’s purview to rely on the mother’s testimony on this issue. We conclude that equitable estoppel did not bar the claim that the natural father had failed to pay support, although able, for a period of one year.

Affirmed.

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


author: MR. CHIEF JUSTICE TURNAGE

text:
    In re the MARRIAGE OF FARRELL C. STEWART, Petitioner, Appellant, and Cross/Respondent, and ROBERT B. STEWART, Respondent, Respondent, and Cross/Appellant.
    No. 87-519.
    Submitted on Briefs March 31, 1988.
    Decided May 9, 1988.
    757 P.2d 765.

      Virginia A. Bryan, Bryan Law Firm, Billings, for petitioner, appellant, and cross-respondent.
    Frances M. Calton and Calvin A. Calton, Calton, Hamman, Calton and Wolff, Billings, for respondent, respondent, and cross/appellant.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Petitioner Farrell Stewart appeals the September 25, 1987, decree of the Thirteenth Judicial District, Yellowstone County, dividing the marital estate. We affirm.

Farrell Stewart raises two issues for our review:

1. Did the District Court abuse its discretion in ordering that Farrell Stewart participate in $32,823 of marital debts?

2. Did the District Court abuse its discretion in awarding a $32,000 promissory note to Robert Stewart?

Respondent Robert Stewart cross-appeals and raises two additional issues:

3. Did the District Court abuse its discretion in determining the net worth of the marital estate?

4. Did the District Court abuse its discretion in distributing Farrell Stewart’s inheritance to her?

Farrell Stewart and Robert Stewart were married in Minneapolis, Minnesota, in 1958. Farrell was twenty-two and Robert was twenty-six. Four children were born of the Stewart marriage, all of whom have reached the age of majority. Farrell filed for dissolution in June of 1986.

Both Farrell and Robert have college degrees. Farrell has worked as a part-time journalist at Eastern Montana College since 1971. In 1986 she earned approximately $10,000 from her job and received approximately $7,500 in investment income.

Robert has worked as a stockbroker during most of the marriage. His income has fluctuated. In 1981 and 1982 he earned approximately $50,000 per year, but after 1983 his income dropped sharply. Robert’s net income in 1986 was approximately $2,500.

Issue 1. $32,823 debt.

In the final two years of the marriage, Robert received $32,823 in loans from various sources. The District Court concluded that the loans were marital debts:

“[T]here was no evidence to suggest that the Respondent spent the money, represented by the various notes, upon anything but living and business expenses. It was clear from the testimony that much of the parties’ difficulties centered around the way they handled their finances throughout their married life and it was clear that the Respondent had, in the three or four years preceding the parties’ dissolution, sustained a substantial decrease in earnings. He borrowed the money to try to keep his business afloat and to pay household expenses. In the Court’s view, it was therefore equitable for the Petitioner to participate in those debts.”

Section 40-4-202(1), MCA, states: “The court shall also consider the contribution or dissipation of value of the respective estates . . .” Farrell contends that Robert dissipated the money through “reckless borrowing and spending habits.” Farrell asserts that she knew nothing about the loans. Farrell concludes that the District Court erred by failing to find dissipation.

A District Court has far-reaching discretion in dividing the marital property. Our standard of review is that the District Courts judgment, when based upon substantial credible evidence, will not be altered unless a clear abuse of discretion is shown. Marriage of Watson (Mont. 1987), [227 Mont. 383,] 739 P.2d 951, 954, 44 St.Rep. 1167, 1170.

In prior marital cases, this Court has stated that the standard of review was whether the District Court, in the exercise of its discretion, acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason. For the guidance of the bench and bar, we specifically reject his phraseology for our standard of review in marital cases and adopt the standard of review set forth in Watson, supra. In re Marriage of Hall (Mont. 1987), [228 Mont. 36,] 740 P.2d 684, 686-687, 44 St.Rep. 1321, 1324.

In this case, Robert borrowed the money in small increments to pay household bills and meet costs of running his office. Farrell freely accepted the benefits of these loans while the parties were still living together. Farrell’s unsupported allegations do not create a presumption that Robert dissipated the marital estate. Any finding of dissipation must be supported by substantial evidence. In Re the Marriage of Merry (Mont. 1984), [213 Mont. 141,] 689 P.2d 1250, 1256, 41 St.Rep. 2009, 2017. Farrell supplied no such evidence and failed to meet her burden of proof.

The District Court specifically looked at the nature and purpose of the loans and found no dissipation. The court had ample opportunity to review the evidence and observe the testimony of the parties. We hold that the District Court properly considered the loans under the guidelines of Watson and equitably distributed the $32,823 of marital debts.

Issue 2. $32,000 promissory note.

In 1984, Robert withdrew approximately $83,000 from his retirement plan. As a result of the early withdrawal, the Stewarts’ join tax liability exceeded $32,000. In September 1985, Farrell loaned Robert $32,000 to pay the Internal Revenue Service. Farrell insisted that Robert sign a promissory note for the amount.

The District Court found that the $83,000 was used for the parties’ living expenses and Robert’s business expenses. The District Court specifically noted the criteria of Section 40-4-202, MCA, regarding the parties’ occupations, sources and amounts of income, and earning capacity. The Court then stated that “the setting over of the note to the Respondent was an equitable distribution.” Farrell contends that the District Court improperly absolved Robert of his legal obligation to repay the $32,000 to her.

In analyzing this issue, we note that a husband and wife may legally contract with each other. Section 40-2-301, MCA. Furthermore, “contracts between married parties, if fair and equitable, are enforceable contracts if they do not conflict with the laws and public policy of this State.” (Emphasis added.) In Re the Marriage of Feisthamel (Mont. 1987), [227 Mont. 321,] 739 P.2d 474, 477, 44 St.Rep. 1117, 1120.

In the instant case, however, the enforceability of the $32,000 contract is subject to equitable distribution of the marital estate. Farrell received the benefits of the $83,000 while the marriage was in force and while living with Robert. The $32,000 loan helped relieve Farrell of the joint tax liability she incurred as an income-earning spouse.

In a proceeding for dissolution, property belonging to either of the parties may be apportioned between them equitably. Section 40-4-202(1), MCA. The District Court removed the inequitable burden of repayment from Robert. “The court is not required to distribute equally but rather to consider the criteria set forth in Section 40-4-202, MCA, to make an equitable distribution.” In Re the Marriage of Edwards (Mont. 1985), [215 Mont. 512,] 699 P.2d 67, 70, 42 St.Rep. 593, 596. We hold that the District Court duly considered the purpose of the note and properly awarded the note to Robert.

Issue 3. Net worth.

Robert contends that the trial court distributed the marital estate without making a specific finding of net worth and therefore abused its discretion.

We disagree. As we stated in In Re the Marriage of Metcalf (1979), 183 Mont. 266, 271, 598 P.2d 1140, 1142, a trial court must consider the parties’ assets and liabilities before making a distribution. Our review of the record reveals that the District Court listed the Stewarts’ assets and liabilities and arrived at the net worth figure of $154,358.78 in Finding of Fact V. We hold that the court properly determined the net worth of the marital estate.

Issue 4. Farrell’s inheritance.

In 1985, Farrell received an inheritance of approximately $110,000. She did not disclose the amount of the inheritance to Robert. Farrell invested the inheritance separately and maintained sole control over the funds.

The District Court found that Robert “has not made any contribution to the maintenance of the said inheritance.” The court concluded that the assets directly traceable to the wife’s inheritance should be set over to Farrell. Robert contends that the court should have divided the inheritance equally.

We review this issue under the guidelines of Section 40-4-202(1), MCA, which states that the court may “equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired . . .” (Emphasis added.) Section 40-4-202, MCA, is a flexible statute which vests wide discretion in the District Court. “There is no specific rule concerning how an inherited asset is to be treated when marital property is divided.” In Re the Marriage of Martin (Mont. 1985), [218 Mont. 36,] 705 P.2d 1114, 1116, 42 St.Rep. 1376, 1379.

In the instant case, Farrell’s inheritance arrived on the eve of dissolution. The inheritance was not commingled into the marital estate. Robert did not contribute to the investment or maintenance of the inherited assets. “If none of the value of the property is a product of contribution from the marital effort, the District Court can justifiably find that the non-acquiring spouse has no interest in the property.” In Re the Marriage of Herron (1980), 186 Mont. 396, 404, 608 P.2d 97, 101.

The District Court assessed the inheritance within the context of assets acquired during the marriage. We hold that the District Court properly distributed the inheritance to Farrell.

Affirmed.

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


author: MR. JUSTICE HARRISON

text:
    In re the MATTER OF J.W. and J.C., Youths in Need of Care.
    No. 88-052.
    Submitted on Briefs April 21, 1988.
    Decided May 9, 1988.
    757 P.2d 769.
    Edmund F. Sheehy, Jr., Cannon and Sheehy, Helena, for appellant.
    Mike Greely, Atty. Gen., Paul D. Johnson, Asst. Atty. Gen., Nicholas Jacques, Mike McGrath, Co. Atty., Helena, Carolyn Clemens, Deputy Co. Atty., for respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the First Judicial District, Lewis and Clark County, State of Montana, the Honorable Henry Loble presiding. The appeal is from an action which arose when the Lewis and Clark County Office of Human Services (Office of Human Services) received referrals in December 1984 and February 1985 concerning J.C. and J.W., the natural children of B.W. (hereinafter referred to as mother). After mother was hospitalized for psychiatric care in May of 1985, a petition was filed on behalf of the Office of Human Services requesting temporary investigative authority and protective services for the children. That petition was granted on May 10, 1985. After receiving further referrals in the fall of 1985, the Office of Human Services petitioned for further temporary investigative authority and the right to place the children in foster care. That petition was granted on June 20, 1986, the District Court thereafter entered an order declaring J.C. and J.W. to be youths in need of care.

Following a dispositional hearing the District Court issued its order granting the continued temporary care of the children with the Department of Social and Rehabilitation Services (SRS) and in particular recommending that J.C. remain with his natural father in Arizona and J.W. remain in foster care. In the disposition order the court endorsed the treatment plan submitted by the Office of Human Services. On August 26, 1986, the mother appealed, challenging the District Court’s order adjudicating J.C. and J.W. to be youths in need of care. This Court affirmed the District Court in May, 1987, see In the Matter of J.W. & J.C. (Mont. 1987), [226 Mont. 491,] 736 P.2d 960, 44 St.Rep. 843.

In January 1987 the mother was involuntarily committed to Warm Springs State Hospital after attempting to commit suicide by shooting herself in the chest. During that commitment period her third child, R.W., was born. On May 27, 1987 R.W. was placed with the same foster family that is caring for J.W., her half-brother. A petition for temporary custody and temporary investigative authority regarding R.W. was filed on May 28, 1987. That petition is not a subject of this appeal. On June 18, 1987, the State filed a petition to terminate the mother’s parental rights with respect to J.W. and J.C. The mother was released from Warm Springs State Hospital in early July 1987. On July 23, 1987, the District Court heard the petition for termination of the mother’s parental rights and on October 13, 1987 terminated her rights with respect to J.W. That order awarded permanent custody of J.C. to his natural father. The mother now appeals. We affirm.

The issues before the Court are:

1. Did the District Court err when it concluded that the mother’s condition rendered her unfit and was unlikely to change within a reasonable time?

2. Did the District Court err when it granted custody, care and control of J.C. to his natural father pursuant to the February 11, 1987, custody order issued by an Arizona Superior Court?

After the mother’s release from Warm Springs State Hospital, various mental health authorities testified that her mental condition required termination of her parental rights with J.C. and J.W. Dr. Virginia Hill, a psychiatrist at Warm Springs State Hospital, said the mother suffers from chronic undifferentiated schizophrenia, an illness in which the subject does not realize how ill she is. Because the patients do not appreciate the extent of their illness they tend not to comply with treatment plans. Staff at Warm Springs State Hospital were not able to administer medication to mother until after R.W. was born, Dr. Hill said, but once medication began the mother began to improve immediately. Dr. Hill testified that unless the mother abides by terms of the psychiatric plan prescribed for her, she would not be a proper parent.

When the mother was released from Warm Springs State Hospital, her psychiatric plan included her return to Helena under the guidance of the Offices of Human Services. This plan also would have allowed her weekly supervised visits with J.W. The mother has not adhered to this treatment plan; instead she went to Butte. She has filed for welfare and has been unable to make most of her visits with J.W. because she lacked transportation. On the occasions that the mother appeared for the visit, J.W. displayed no interest in the mother.

J.W. has been placed in a foster home now for about two years. This family considers him a part of the family and would adopt him if allowed to. Margaret Stuart, director of the Social Work Program at Carroll College, testified at the termination hearing that primary considerations include the child’s age, his development level, and his home environment. She said that changing the home environment of a pre-school child such as J.W. is particularly touchy since this is a crucial stage of the child’s development. The longer such a child is in one setting, the more traumatic it is to remove him from it. If the child is moved often enough he loses the ability to bond with parent figures and Ms. Stuart said a third placement is a “watershed” mark; any placement after that increases markedly the risk that the child will not be able to bond with parent figures. J.W. is currently in his third placement.

J.C., the older boy, has lived continuously with his father since November 1985, even though custody of J.C. was granted to the mother when the parents divorced in 1978. The father testified at the termination hearing that he has accepted the custody of J.C. on several occasions when the mother was disabled by her mental condition. J.C.’s father has remarried, and has purchased a home and the father and his new wife have space in their home for J.C. and have integrated him into their home. J.C. does well in school and participates in extra-curricular activities. He wrote a letter to the District Court in which he expressed a desire to remain with his father and stepmother.

On February 11, 1987, the father obtained an order from an Arizona Superior Court modifying the decree of dissolution so as to place permanent custody of J.C. with the father, subject to any order arising from the Montana proceedings. The mother did not appear for the Arizona proceedings and did not object to awarding custody of J.C. to the father since the father had assured her that she would always be able to see J.C. and enjoy visitation privileges.

Mother contends that the District Court abused its discretion when it terminated her parental rights since the court’s findings do not comply with Sections 41-3-607 and 41-3-609, MCA. Under Section 41-3-609, MCA, which establishes the criteria for terminating parental rights, mother says only one criterion applies. That is subsection (l)(c), which allows the court to terminate parental rights if the child has been adjudicated a youth in need of care and the parent has disregarded an appropriate treatment plan or such plan has failed, and the parent’s condition rendering her unfit is unlikely to change in a reasonable amount of time. She then cites findings by the court that her schizophrenic condition “will likely endure throughout [her] life, but can be controlled by the use of medication” and that “without such medication she will be incapable of parenting her children.” The court ultimately concluded:

“[The mother’s] mental illness is a chronic condition and because of her inability to follow through, the conduct that renders her unfit as a mother is not likely to change within a reasonable amount of time.”

On review of a District Court’s decision terminating a person’s parental rights, the District Court is presumed to be correct. In Re the Matter of M.L.H. (Mont. 1986), [220 Mont. 288,] 715 P.2d 32, 35, 43 St.Rep. 375, 379; In the Matter of J.L.F. (Mont. 1981), [_ Mont. _,] 626 P.2d 253, 255, 38 St.Rep. 533, 535. The findings of the District Court are not to be overturned “unless there is a mistake of law or a finding of fact not supported by credible evidence that would amount to a clear abuse of discretion.” In Re the Matter of C.A.R. (Mont. 1984), [214 Mont. 174,] 693 P.2d 1214, 1218, 41 St.Rep. 2395, 2399, citing In Re Gore (1977), 174 Mont. 321, 570 P.2d 1110. Because a termination of parental rights case is a non-jury matter, the District Court is held responsible for determining the credibility of witnesses and weighing the witnesses’ testimony. In Re the Matter of R.M.B. (Mont. 1984), [213 Mont. 29,] 689 P.2d 281, 284, 41 St.Rep. 1925, 1928.

The findings quoted from above plus the conclusion quoted above represent substantial credible evidence supporting the District Court. We find there is ample evidence in the record to support the court’s findings and its conclusion. The mother argues that the conclusion of the District Court is inconsistent with the court’s findings since the prospect of further treatment should entitle her to an opportunity to regain custody of J.W. She notes previous cases where this Court has stated that “family unity should be preserved whenever possible.” See, Matter of C.A.R, [213 Mont. 29,] 693 P.2d 1214, 1221, In Re the Matter of M.R.L. (1980), 186 Mont. 468, 472, 608 P.2d 134, 137. This Court, though, has never placed family unity over the welfare of an abused or neglected child:

“[W]hen the rights of the youth to an adequate physical and emotional environment encounter demonstrated acts of commission or omission by the parents which deprive the youth of this environment, the best interest of the youth is paramount and takes precedence over parental rights or familiar bonds.”

Matter of C.A.R., 693 P.2d at 1219. See also In the Matter of M.N. (1982), 199 Mont. 407, 410, 649 P.2d 749, 751. The viability of the “best interest” rule is underscored by Section 41-3-609(3), MCA, which orders the District Court to give “primary consideration” to the needs of the child in determining whether the conduct or condition of the parents is unlikely to change within a reasonable time.

This Court has repeatedly directed District Courts to consider the “totality of the circumstances” when assessing the best interests of a child. In re Gore, 570 P.2d at 1114. After reviewing the facts of this case, it is readily apparent that the District Court order terminating the mother’s parental rights to J.W. is in the infant’s best interests.

We have difficulty following the mother’s arguments that the District Court erred by terminating her parental rights to J.C. since the Arizona court already had amended its original divorce decree so as to give custody to the father. Neither did the District Court terminate all parental rights, holding merely that custody of J.C. “is placed with his natural father . . . subject to visitation as agreed to by [the father].” The wording of these two orders, one by the Montana District Court and the other by the Arizona court, both made allowance for the decision of the other. They represent a delicate balancing of all the factors relevant to child custody proceedings. We will not disturb this balance.

The findings, conclusions, and judgment of the District Court are affirmed.

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