author: MR. JUSTICE MORRISON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DONALD BOONE NICHOLS, Defendant and Appellant.
    No. 86-16.
    Submitted Jan. 13, 1987.
    Decided March 4, 1987.
    Rehearing Denied April 7, 1987.
    734 P.2d 170.

      Donald E. White, argued, Bozeman, for defendant and appellant.
    Mike Greely, Atty. Gen., Helena, Judy Browning argued, Asst. Atty. Gen., Marc Racicot, Asst. Atty. Gen., Sp. Deputy Co. Atty. for Madison County, Helena, John P. Connor, Jr., Co. Atty., Boulder, for plaintiff and respondent.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Defendant, Donald Boone Nichols was convicted of aggravated assault, kidnapping and deliberate homicide in the Fifth Judicial District Court of the State of Montana. He appeals the convictions. We affirm.

Appellant and his son, Dan Nichols, began residing permanently in the mountains of southwestern Montana in August of 1983. On July 15, 1984, the Nichols encountered Kari Swenson jogging on a trail near Big Sky, Montana. After a brief conversation, appellant grabbed Kari by her wrists and tied them with a rope. Kari was then bound by a chain to a tree. Numerous individuals searched for Kari. On the morning of July 16, 1984, Jim Schwalbe and Alan Goldstein located the Nichols’ camp. They entered the camp in an attempt to rescue Kari. Subsequent events culminated in the death of Alan Goldstein and the fleeing of the Nichols. Kari, who had been wounded, was abandoned by the Nichols and rescued later that day. The Nichols were not apprehended until December of 1984.

Numerous charges were filed against both Nichols. Appellant was charged with the kidnapping of Kari Swenson, the aggravated assault of Jim Schwalbe and the deliberate homicide of Alan Gold-stein. The jury was instructed as to the elements of each offense. Appellant’s testimony at trial establishes the occurrence of every element of each offense.

The offense of kidnapping is committed if a person “knowingly or purposely and without lawful authority restrains another person by either secreting or holding him in a place of isolation or by using or threatening to use physical force.” Section 45-5-302(1), MCA.

Appellant admitted to restraining Kari, keeping her in an isolated location, and using and threatening to use physical force to do so.

“Q. (By Mr. Racicot) Now, there’s no question, is there, that on July 15, 1984, that you restrained Kari Swenson?
“A. No.”

Tr. Vol. Ill, p. 116, In. 18-20.

“Q. (By Mr. Racicot) And there’s no question, is there, that you restrained her and held her or secreted her in a place of isolation by using physical force?
“A. Yes.
“Q. And there’s no question, is there in your mind, that you did those things knowingly?
“A. This physical force thing was more intimidation than anything else, but we did use some force, yes.”
Tr. Vol. Ill, p. 117, In. 22-25; p. 118, In. 1-5.
“Q. (By Mr. Racicot) At some point in time, did you tell Kari Swenson that she’d better not scream or you’d give her a couple black eyes and it didn’t make any difference to you whether or not she was a woman?
“A. No. The only — in my original — when I was talking to her, all these questions, I told her were important. I said that, “Try — we’ll all try to make everything smooth, and if you don’t cooperate, I’m going to give you two black eyes.”

Tr. Vol. Ill, p. 167, In. 16-25.

The relevant statute with respect to aggravated assault, Section 45-5-202(1)(c), MCA (1983), provides:

“Aggravated assault. (1) A person commits the offense of aggravated assault if he purposely or knowingly causes:
“(c) reasonable apprehension of serious bodily injury in another by use of a weapon.”

On direct examination, appellant admitted that when Jim Schwalbe came running toward him after the shooting of Alan Gold-stein, appellant placed another shell in the chamber of his rifle, causing Schwalbe to turn and run into the bushes. See Volume III of the transcript, pages 105 and 106. During cross-examination, appellant again recounted his actions.

“A. . . .
“I wasn’t threatened by the voice because I wasn’t worried about him until he started running toward me. But he just hollered real loud, ‘You’re surrounded by two hundred men. You can’t get away.’ And then he ran toward me real fast.
“Q. Then he ran back at you?
“A. Yes, as soon as he said that, he ran right toward me.
“Q. And you pumped one in the chamber, and he saw that?
“A. Yes.
“Q. You were ready to shoot him, too, weren’t you?
“A. I would have shot him, you [sic] damn right.”

Tr. Vol. Ill, p. 210, In. 13-24.

“A.... He swerved right at me. And there he saw me put the shell in and then he swerved, and then he went there as far — about as far as to the railing and stopped and looked at me a couple seconds.
“Q. No question in your mind that you’re convinced he saw you put that shell in the chamber?
“A. I don’t know why he would have swerved otherwise. I did it quick, and he was running right at me. He had to have seen me do it.”

Tr. Vol. Ill, p. 213, In. 20-25; p. 214, In. 1-4.

Jim Schwalbe had previously testified that appellant had trained his rifle on him and that he feared he would be shot. Tr. Vol. Ill, p. 166, In. 23-25; p. 167, In. 1-6. This undisputed testimony, together with the testimony of appellant, supports a conclusion that appellant created a reasonable apprehension of serious bodily injury in Schwalbe.

Finally, the statutes under which appellant was convicted of deliberate homicide, the felony-homicide statutes, state:

“45-5-101. Criminal homicide. (1) A person commits the offense of criminal homicide if he purposely, knowingly, or negligently causes the death of another human being.
“45-5-102. Deliberate homicide. (1) Except as provided in 45-5-103(1), criminal homicide constitutes deliberate homicide if:
“(b) it is committed while the offender is engaged in or is an accomplice in the commission of, an attempt to commit, or flight after committing or attempting to commit robbery, sexual intercourse without consent, arson, burglary, kidnapping, felonious escape, or any other felony which involves the use or threat of physical force or violence against any individual.”

There is no doubt from the preceding testimony that the offense of kidnapping and the offense of aggravated assault were committed. During the commission of those crimes, Alan Goldstein was shot and killed. Appellant testified that he shot Goldstein. Tr. Vol. Ill, p. 104, In. 7-9. He further admitted that although he was but one cause of Goldstein’s death, he was the illegal cause.

“Q. (By Mr. Racicot) Now, there’s no question in your mind, is there, that you caused the death of Alan Goldstein?
“A. There is a question, yes. That’s part of the equation. My part was the illegal part. It was the part of the equation. This world isn’t that simple.
“Q. It’s not apparently as simple as you’d like to make it.
“A. I no more caused his death than he caused it or the sun had risen that morning that caused it. It was just part of the equation, the illegal part, that I admit was illegal.
“Q. And you admitted that the gun that you shot killed Alan Goldstein?
“A. Yes, I did.
“Q. So in that sense you put it into place — or into play the events and the physical force that took his life?
“A. I put in the illegal part, yes.”

Tr. Vol. Ill, p. 120, In. 4-22.

Thus, even viewing the evidence in the light most favorable to appellant, as we are required to do, there is sufficient evidence on which to sustain the convictions. However, the issues raised on appeal do not concern the sufficiency of the evidence. They focus rather upon the pre-trial publicity, the conduction of voir dire and the constitutionality of Montana’s felony-homicide rule. Specifically, the following issues are raised:

1. Was appellant’s right to a fair trial by an impartial jury violated by undue pretrial publicity?

2. Was appellant’s constitutional right to a fair trial by an impartial jury violated by the court’s limitation of voir dire?

3. Did certain statements made by the prosecutor substantially affect appellant’s right to a fair trial?

4. Is Montana’s felony-homicide statute, Section 45-5-102(1)(b), MCA, unconstitutional?

5. Did the trial judge properly instruct the jury?

PRETRIAL PUBLICITY AND VOIR DIRE

The first two issues are intertwined. The amount and nature of pretrial publicity surrounding a case affect the defendant’s ability to obtain a fair trial by an impartial jury. Thus, freedom of the press rights guaranteed by the First Amendment to the United States Constitution and art. II, Section 7 of the 1972 Montana Constitution come face-to-face once again with a defendant’s right to a fair trial by an impartial jury, guaranteed by the Sixth Amendment to the United States Constitution and art. II, Section 24 of our Constitution.

Voir dire must be used to determine which potential jurors have been so affected by pretrial publicity, they would be unable to render a fair verdict. A trial judge must therefore consider the volume and nature of the pretrial publicity when determining how best to conduct voir dire.

It is undisputed that the media has focused considerable attention on this case. Without specifically detailing the stories told, we acknowledge that the case has been sensationalized and that not all the publicity has been neutral. A defendant’s right to a fair trial by an impartial jury is jeopardized when the publicity surrounding the case is inflammatory in nature. State v. Holmes (Mont. 1983), [207 Mont. 176,] 674 P.2d 1071, 1073, 40 St.Rep. 1973, 1976. Inflammatory publicity is characterized by

“editorializing on the part of the media or any calculated attempt to prejudice public opinion against [defendant] or to destroy the fairness of the pool from which [defendant’s] prospective jurors would be drawn.”

State v. Armstrong (1980), 189 Mont. 407, 423, 616 P.2d 341, 350.

Rather than being inflammatory, much of the publicity in this case was verified, if not generated, by defendant’s testimony before television cameras during his son’s trial. Defendant’s testimony at that trial mirrors his testimony at his own trial. Since much of the negative publicity was actually factual and originated from defendant himself, he cannot now successfully contend that the charges against him should be dropped because of the publicity surrounding his trial.

As mentioned earlier, publicity problems can sometimes be offset by proper voir dire. Defendant’s attorney requested that voir dire of the jury panel be closed. However, such a request is seldom granted. It must first be determined that the publicity is so great and so inflammatory that a presumption exists that the jury panel is prejudiced against defendant. United States ex rel. Doggett v. Yeager (3rd Cir. 1973), 472 F.2d 229, 234-235; Coleman v. Kemp (11th Cir. 1985), 778 F.2d 1487, 1541-1542. The Ninth Circuit has adopted the United States Supreme Court’s three-step test for making this determination:

1) that public proceedings would result in irreputable damage to defendant’s right to a fair trial;

2) that no alternative to closure would adequately protect this right; and

3) that closure would effectively protect it.

United States v. Brooklier (9th Cir.1982), 685 F.2d 1162, 1167, citing Gannett Co., Inc. v. DePasquale (1979), 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608. There is no proof that closure of voir dire would have protected defendant from the adverse publicity generated, at least somewhat, by his own actions.

Whether to close voir dire or not is a question left largely to the discretion of the trial judge. State v. Sunday (1980), 187 Mont. 292, 609 P.2d 1188; United States v. McDonald (9th Cir. 1978), 576 F.2d 1350, 1354-1355, cert. denied, 439 U.S. 830, 99 S.Ct. 105, 58 L.Ed.2d 124, and 439 U.S. 927, 99 S.Ct. 312, 58 L.Ed.2d 320. (1978). We cannot say the trial judge abused his discretion by refusing to close voir dire in this case. Closed voir dire has been found unnecessary where the publicity is factually accurate and contains the essential facts of the crimes which would ultimately be presented to the jury anyway. State v. Frederick (1978), 20 Wash.App. 175, 579 P.2d 390, 393, cert. denied, 440 U.S. 985, 99 S.Ct. 1799, 60 L.Ed.2d 247 (1979). The trial judge’s plan to question individual veniremen in chambers should the need arise would have been adequate had it been properly implemented. This is especially true since the veniremen were cautioned that if they had strong opinions about the case, they should notify the judge.

However, the manner in which voir dire was conducted was, to be generous, improper. The trial judge’s repeated admonitions to defense counsel that a jury would be selected that day and inferences that defense counsel was an obstacle to that end, are inexcusable. The voir dire process, especially in cases given a great amount of publicity, is essential to ensure that defendant is adjudged by fair and impartial jurors. It is this objective for which the court must strive, not expeditious selection of a jury.

Another major problem is defense counsel’s examination of the veniremen’s preconceived notions of defendant’s guilt, which was repeatedly met with sustained objections. Defense counsel was eventually denied permission to ask a juror if he were defendant, would he want someone with his frame of mind sitting on the jury. The state, citing Hill v. Turley (Mont. 1985), [218 Mont. 511,] 710 P.2d 50, 42 St.Rep. 1783, contends that questions posed by defense counsel regarding how a potential juror would vote at that moment were incorrect.

“It is improper to pose hypothetical questions which have the effect of requiring a pledge or commitment from the juror that he would decide a certain way upon particular instruction as that would have the effect of prejudging the case.”

710 P.2d at 56, 42 St.Rep. at 1790.

However, defense counsel was not eliciting a commitment. He was merely attempting to ascertain the intensity of the potential juror’s opinion. In fact, the state asked, without objection, a very similar question.

“Q. (By Mr. Racicot) Okay. If you — this is kind of an unfair question — if you were involved in a matter of very large degree and importance to you, would you be comfortable having a juror in your present state of mind?
“A. I suppose.
“Q. You’d just as soon not be involved at all, I know, but assume for a moment that you were. Do you feel that you’d be comfortable with a person of your state of mind that could render a fair and impartial choice and decision?
“A. Yes.”

Tr. Vol. I, p. 75, In. 25; p. 76, In. 1-11. Inquiries such as this are permissible methods of ascertaining the potential juror’s state of mind.

Defense counsel was repeatedly admonished to limit inquiries to whether the potential juror could set aside his impressions of the case and reach a verdict based solely on the evidence presented at trial. Such a question cannot be asked and answered in a vacuum. Defense counsel must be allowed to fully examine the extent of the veniremen’s pretrial convictions concerning defendant’s guilt. He must also be allowed to determine what would be required to eradicate those convictions. Otherwise, prejudiced jurors will more than likely be on the jury.

The following situation occurred in defendant’s trial, with the ultimate result being a juror who might have required defendant to prove his own innocence.

“A. (By future juror) I had an opinion about the kidnapping.
“Q. (By Mr. White) And based upon that opinion, do you believe that Mr. Nichols is guilty or not guilty of that charge — of just the kidnapping?
“A. I don’t know. I have an opinion about the kidnapping, but I don’t know if he’s guilty or not guilty.
“Q. What is your opinion about the kidnapping? Is it favorable or not favorable to Mr. Nichols’ side?
“A. It’s not favorable.
“Q. And is it — is it an opinion you’ve held for a very long period of time?
“A. Yes, when I first heard about it, from the time I first heard about it.
“Q. All the way back to — that would have been about a year ago actually? Has that opinion changed since you first heard about it?
“A. No.
“Q. Would it take some evidence by Mr. Nichols to remove that opinion at this time?
“A. Yes.
“Q. If you were sitting in Mr. Nichols’ place now and there was a juror sitting where you are with your opinion, would you want him to try your case with your opinion as it is now?
“A. Probably not.
“MR. WHITE: Your Honor, I would challenge [this juror] for cause.
“THE COURT: Do you resist this challenge?
“MR. RACICOT: We certainly do, Your Honor. We’d ask the Court to inquire.
“THE COURT: . . . you recall my exchange with you?
“A. Yes, I do.
“THE COURT: And you recall when I asked you if you could sit and listen to the evidence received only from this courtroom and render a fair and impartial judgment, and you know what your answer was?
“A. Yes.
“THE COURT: You bet. Now, is that still your answer?
“A. Yes, it is.
“THE COURT: All right. Your challenge for cause is denied.”

Tr. Vol. I, p. 228, In. 5-25; p. 229 and p. 230, In. 1-8.

Although voir dire was conducted in an improper manner, the error was harmless. Given the testimony of defendant at trial, recounted above, any juror would have had to convict defendant of the charges brought against him. Defendant’s testimony confirmed the existence of every element of each charge. Therefore the error was not prejudicial. We wish to emphasize, however, that we do not condone the trial court’s manner of conducting voir dire and we do not wish to see such procedures before us again.

PREJUDICIAL STATEMENTS BY THE PROSECUTOR

Appellant objects to comments during the prosecution’s opening statement and closing argument concerning the family of Alan Goldstein and Goldstein’s outstanding personal characteristics. The objections focus on the inappropriateness of the comments and the fact that no evidence was submitted in support. The comments were inappropriate. Again, however, it cannot be established from the record that those statements resulted in a denial of a substantial right. State v. Watkins (1971), 156 Mont. 456, 464, 481 P.2d 689, 693. A conviction necessarily followed from defendant’s evidence.

CONSTITUTIONALITY OF THE FELONY-HOMICIDE STATUTE

The following statutes are at issue:

“Section 45-5-101. Criminal homicide.
(1) A person commits the offense of criminal homicide if he purposely, knowingly, or negligently causes the death of another human being.
“Section 45-5-102. Deliberate homicide. (1) Except as provided in 45-5-103(1), criminal homicide constitutes deliberate homicide if:
“(b) it is committed while the offender is engaged in or is an accomplice in the commission of, attempting to commit, or flight after committing or attempting to commit robbery, sexual intercourse without consent, arson, burglary, kidnapping, felonious escape, or any other felony which involves the use or threat of physical force or violence against any individual.
“Section 45-2-103. General requirements of criminal act and mental state. (1) A person is not guilty of an offense, other than an offense which involves absolute liability, 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 [knowingly, negligently and purposely.]”

Appellant contends Section 45-5-102(l)(b), MCA, is unconstitutional on its face because it fails to require the state to prove a specific mental state, contrary to statutory mandates contained in Sections 45-5-101 and 45-2-103, MCA. Appellant argues that the statute incorrectly and unconstitutionally requires proof of the commission of or attempt to commit a felony in place of proof of a mental state of purposely or knowingly committing a homicide.

We have addressed this contention before. In State v. Sunday, supra, we discussed the intricacies of proving intent under the felony-homicide statute. We held that when a defendant commits a felony such as burglary, kidnapping or aggravated assault, he initiates conduct which creates a dangerous circumstance. Therefore, the intent to commit the felony supplies the intent for all the consequences, including homicide, arising therefrom. Sunday, 187 Mont, at 307-308, 609 P.2d at 1197, citing Bassiouni, Substantive Criminal Law (1978), at 250, 251.

We expounded on this conclusion in State v. Weinberger (Mont. 1983), [206 Mont. 110,] 671 P.2d 567, 569, 40 St.Rep. 1539, 1542.

“ ‘It is not the purpose of the felony-murder rule to foist authorship of a homicide upon a felon; the purpose is merely to clothe the felon’s act of killing with malice.’ 2 Wharton’s Criminal Law (14th ed.) 221, Section 149. Under Montana codes, we would substitute ‘knowledge or purpose’ for the word ‘malice.’ Section 45-2-103, MCA.”

Certain acts regarded as peculiarly dangerous create a reasonable risk of death. Therefore, the felon who initiates those acts is also responsible for a death arising from those acts.

Despite appellant’s allegations to the contrary, this application of the theory of supplied intent does not constitute a violation of defendant’s constitutional rights under Sandstrom v. State of Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39. In Sandstrom, the Supreme Court held that jury instructions which eliminate the state’s burden of proving an essential element of the crime, i.e. the requisite mental state, create an unconstitutional conclusive presumption against the defendant. Under the felony-homicide statute, the state has not been relieved of the burden of proving an element of a crime. Rather, the method of proving one of the elements has been changed. The state may substitute proof of the mental state necessary to commit a homicide with proof of the mental state required to commit the underlying felony.

The state retains the burden of proving all the elements of the crime. The statute is constitutional.

INSTRUCTIONS

Appellant objects to numerous instructions given to the jury:

1. Instruction 21, because it pertains to the felony-homicide rule, is unconstitutional;

2. Instructions 22, 23, 24, 25 and 26 are pre-emptory in nature because they instruct the jury as to what it “must” or “should” do;

3. Instruction 26 invades the province of the jury with the following statement:

“However, if you find beyond a reasonable doubt that the defendant committed the offense of Kidnapping and that during the commission of that offense the death of Alan Lee Goldstein was caused, you must find the defendant guilty of Deliberate Homicide as alleged in Count II. (Emphasis added.)”;

4. Instruction 39 is an improper statement of the law of self-defense. The jury should have been told of defendant’s right to self-defense under deliberate homicide — Count I (purposely or knowingly).

5. Instruction 42 is irrelevant. The record does not support any intent of a private citizen to make an arrest.

Appellant’s objections do not warrant a new trial.

We have already discussed the constitutionality of the felony-homicide rule. None of the complained of instructions are preemptory in nature. The words “must” and “should” are used with respect to instructions on the law. The mandatory words are not to direct particular findings of fact, which are the province of the jury. Instruction 23 is a good example:

“You are instructed that to sustain the charge of Deliberate Homicide alleged in Count I, against the defendant Donald Boone Nichols the State must prove that he purposely or knowingly caused the death of Alan Lee Goldstein.

“If you find from your consideration of all the evidence that this proposition has been proved beyond a reasonable doubt, then you should find the defendant, Donald Boone Nichols, guilty of Deliberate Homicide.
“If, on the other hand, you find from your consideration of all the evidence that this proposition has not been proved beyond a reasonable doubt, then you should find the defendant, Donald Boone Nichols, not guilty of Deliberate Homicide.” (Emphasis supplied.)

Instructions 25 and 26, when read together and with the other instructions on the felony-homicide rule, particularly Instruction 28, are correct statements of law.

Appellant agreed in the lower court that Instruction 39 was correct with respect to the felony-homicide rule. Since defendant was acquitted of deliberate homicide — Count I (purposely or knowingly), any error created by the failure to give a self-defense instruction with respect to that charge is harmless.

The instructions as a whole mirror the statutes from which they were derived. We find no error.

Affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE WEBER

license: Public Domain

text:
    IDA J. KAHLE, Plaintiff and Appellant, v. IDELLA SMITHERS, Treasurer of Flathead County; and Lee McDonald, Defendants and Respondents.
    No. 86-163.
    Submitted on Briefs Oct. 10, 1986.
    Decided March 4, 1987.
    Rehearing Denied March 31, 1987.
    733 P.2d 844.

      Oleson Law Firm, H. James Oleson, Kalispell, for plaintiff and appellant.
    Ted O. Lympus, Co. Atty., Kalispell, Jonathan B. Smith, Deputy Co. Atty., Kalispell, Hash, Jellison, O’Brien & Bartlett, James C. Bartlett, Kalispell, for defendants and respondents.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

The Treasurer of Flathead County issued a tax deed to Lee McDonald for land owned by Ida Kahle. Ida Kahle then brought an independent action seeking to void the tax deed. The District Court for the Eleventh Judicial District granted the summary judgment motion of Lee McDonald which in effect upheld the validity of the issued tax deed. We reverse.

The determinative issue is whether the District Court erred in granting the summary judgment motion of Lee McDonald.

Ida Kahle became the owner of the property in dispute in 1954. The Flathead County Treasurer (Treasurer) advertised the property for sale because of delinquent 1979 taxes. In 1980 the property was struck off to Flathead County for $190.46. In 1982 Lee McDonald paid a total of $1,123.71 covering delinquent taxes, penalties, costs, and interest through 1981 and obtained an Assignment of Tax Sale Certificate. He continued to pay taxes on the property. The property was not redeemed by Ida Kahle.

In 1983, Mr. McDonald brought an action to procure a tax deed in the District Court under Sections 15-18-301 to 309, MCA. Service was made by publication of summons. Ida Kahle did not appear in the action. On August 31, 1983, a default judgment was entered which resulted in the issuance of a tax deed by the county treasurer to Mr. McDonald.

On February 24, 1985, Ida Kahle brought a separate action in the District Court seeking to collaterally attack the judgment entered August 31, 1983. Ida Kahle and Lee McDonald filed cross-motions for summary judgment. The District Court held that the case was barred by the doctrine of res judicata as a result of the judgment of August 31, 1983. Summary judgment was entered in favor of Lee McDonald and Ida Kahle appealed.

Did the District Court err in granting the summary judgment motion of Lee McDonald?

After receiving his Assignment of Tax Sale Certificate, Mr. McDonald chose to procure a tax deed by a District Court proceeding under Sections 15-18-301 to 309, MCA. In that action, the District Court ordered the Flathead County Treasurer to issue a deed of conveyance to Mr. McDonald. Mrs. Kahle did not appear in that proceeding.

Ida Kahle contends that the tax deed judgment should be rendered invalid for two reasons. First, Mrs. Kahle argues that the Flathead County Treasurer was negligent in performing her record keeping duties and this negligent record keeping caused insufficient service of process on her. Second, Mrs. Kahle argues the notice requirements of Section 15-18-304, MCA, and Rule 4D, M.R.Civ.P, were not complied with and thus the tax deed issued by the county treasurer was void.

In her first argument, Mrs. Kahle relies on Sections 7-6-2111(2)(a) and 7-6-2116, MCA, and concludes that the Treasurer’s duties were not “honestly, diligently and correctly performed.” We can find nothing in the record that supports these allegations. Mrs. Kahle also states that the “[treasurer failed to keep a triplicate copy of the tax receipt document in her office as required by Section 7-6-2116, MCA.” Although Section 7-6-2116, MCA, does require the county treasurer to retain a triplicate copy of a receipt in the office, we conclude that nothing in the record shows that the Flathead County Treasurer was negligent in retaining the triplicate copy or in performing her record keeping duties. Therefore, this argument fails.

Mrs. Kahle argues that she was never notified of the pending action for procurement of the tax deed and as a result the tax deed itself was void. We conclude that Rule 4D(5), M.R.Civ.P., is controlling on the question of service of process upon Ida Kahle. Rule 4D(5)(e), M.R.Civ.P., provides:

“Mailing summons and complaint. A copy of the summons for publication and complaint, at any time after the filing of the affidavit for publication and not later than 10 days after the first publication of the summons, shall be deposited in some post office in this state, postage prepaid, and directed to the defendant at his place of residence unless the affidavit for publication states that the residence of the defendant is unknown” (Emphasis added.)

The affidavit for publication of summons submitted by Mr. McDonald’s attorney stated in pertinent part:

“3. That a return of the Summons on file with the Clerk of the District Court of said Judicial District in and for the County of Flathead, shows a failure to find the Defendant, Ida J. Kahle, a/k/a Ida J. Stodgell, in the State of Montana;
“4. That the Defendant, Ida J. Kahle, a/k/a Ida J. Stodgell, cannot, after due diligence, be found within the State of Montana;” (Emphasis added.)

In substance the affidavit states that the defendant cannot be found within the State of Montana. That does not satisfy the Rule 4D(5)(e), M.R.Civ.P., requirement that the affidavit state that the residence of the defendant is unknown. An affidavit statement that the defendant cannot, after due diligence, be found within the State of Montana is not the equivalent of stating that the residence of the defendant is unknown. The key fact required in the affidavit for publication of summons is that the residence of the defendant is unknown. That fact is not contained in the present affidavit for publication. Here the affiant could have known the address of defendant Kahle was outside the State of Montana and nevertheless completed the affidavit.

We do not find any Montana cases which are controlling. However, we conclude that the plain wording of Rule 4D(5)(e), M.R.Civ.P., requires that the affidavit for publication of summons state that the residence of the defendant is unknown. Because the affidavit for publication failed to make that statement or an equivalent statement, we conclude that the affidavit was insufficient. We therefore hold that the service of process upon Ida Kahle was insufficient to obtain jurisdiction over her. This conclusion is consistent with the cases in Montana which have held that tax redemption statutes must be liberally construed in favor of the redemptioner and the exercise of her rights of redemption. See Lowery v. Garfield County (1949), 122 Mont. 571, 581, 208 P.2d 478, 484.

Because of the insufficiency of the service of process upon Ida Kahle in the action to procure the tax deed, we further conclude that Ida Kahle could collaterally attack the judgment of August 31, 1983, in the present proceedings. That conclusion is mandated by Russell Realty Co. v. Kenneally (1980), 185 Mont. 496, 501, 605 P.2d 1107, 1110, in which we stated:

“While it is a general rule that a judgment cannot be attacked in a collateral action such attack is permissible if the first judgment is void for lack of jurisdiction. (Cite omitted.) It is axiomatic that if service of process on a party is improperly made, the court acquires no jurisdiction over that party, (Cite omitted.) and it may collaterally attack the judgment.”

Mrs. Kahle requested costs and attorney fees in accordance with Section 15-18-306, MCA. This is the code section providing for costs and attorney fees in proceedings to procure a tax deed. That is not the nature of the present proceeding. Mrs. Kahle here has brought an action to collaterally attack a judgment rather than a proceeding to procure a tax deed. We hold that Mrs. Kahle is not entitled to recover costs or attorney fees under Section 15-18-306, MCA.

We reverse the summary judgment order of the District Court and remand for further proceedings consistent with this opinion.

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


author: MR. CHIEF JUSTICE TURNAGE

text:
    In re the MARRIAGE OF MARY ANN MANUS, Petitioner and Respondent, and TEX W. MANUS, Respondent and Appellant.
    No. 86-193.
    Submitted on Briefs Nov. 13, 1986.
    Decided March 4, 1987.
    733 P.2d 1275.

      Hash, Jellison, O’Brien & Bartlett; M. Dean Jellison, Kalispell, for respondent and appellant.
    George B. Best, Kalispell, for petitioner and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Tex Manus appeals the findings of fact and conclusions of law entered by the Eleventh Judicial District Court, Flathead County, on December 11, 1985. The court awarded Mary Ann Manus sole custody of the two children, child support of $250 per month per child, maintenance of $300 per month for five years, property division payments of $207.46 per month for five years, and Mary Ann’s attorney fees. We affirm the District Court on all issues.

Tex raises six issues for our review:

1. Did the District Court abuse its discretion when it granted sole custody to Mary Ann?

2. Did the District Court abuse its discretion when it awarded child support to Mary Ann?

3. Did the District Court abuse its discretion when it adopted Mary Ann’s valuation of the marital property?

4. Did the District Court abuse its discretion when it awarded maintenance to Mary Ann?

5. Did the trial court abuse its discretion when it awarded attorney fees to Mary Ann?

6. When a retired district judge who was called into jurisdiction during a judicial vacancy, has rendered judgment and has been succeeded by a duly-appointed district judge, does the retired district judge retain jurisdiction to deny a subsequent motion for new trial?

Tex Manus and Mary Ann Manus were married on June 20, 1969, in Bonner’s Ferry, Idaho. Two daughters were born of the marriage, Channin in 1970 and Nickole in 1971. During the marriage, Tex and Mary Ann acquired a marital estate worth $115,000. This included the home now occupied by Tex, rental property, household goods, vehicles, a balance receivable on a contract in escrow, a savings account, and Tex’s profit sharing account.

In August 1984, Mary Ann separated from Tex. Mary Ann filed a petition for dissolution on February 22, 1985. She and her daughters currently reside in Usk, Washington, near Mary Ann’s parents. Tex currently resides in Whitefish, Montana.

Issue 1

Did the District Court abuse its discretion when it granted sole custody to Mary Ann?

The standard of review on custody issues was outlined in Bier v. Sherrard (1981), 623 P.2d 550, 551, 38 St.Rep. 158, 159:

“In order to prevail, [appellant] must show an abuse of discretion by the judge, must demonstrate that there is a clear preponderance of evidence against the findings, and must overcome the presumption that the judgment of the trial court is correct. In reviewing the District Court’s custody order, this Court need only look to the record to see if the factors set forth in section 40-4-212, MCA, were considered, and then must determine whether the trial court made appropriate findings with respect to these criteria. [Emphasis added.] “

The factors set forth in Section 40-4-212, MCA, place paramount importance on the best interests of the child:

“The court shall determine the custody in accordance with the best interests of the child. The court shall consider all relevant factors including:
“(1) the wishes of the child’s parent or parents as to his custody;
“(2) the wishes of the child as to his custodian;
“(3) the interaction and interrelation of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interest;
“(4) the child’s adjustment to his home, school, and community; and
“(5) the mental and physical health of all individuals involved.”

In its findings of fact, the District Court recognized that several of the factors of Section 40-4-212, MCA, weighed heavily in favor of granting custody to Mary Ann:

“3. That one of the children, Channin, is mildly retarded and, although attends school, is in a special education program, is unable to care for herself, and in all likelihood will be unable to care for herself for many years to come.
“4. There is a close relationship between mother and daughters. They have lived together continuously during the period of separation. Mother is required to and does take care of the. daily needs of both children in addition to taking care of the special needs of Channin, both educational and practical.
“5. That while visiting their father, their paternal grandfather molested Channin.
“6. Prior to this molestation, Respondent herein was made aware of the father’s propensities by Mrs. Manus having warned him that such an attempt had been made upon her.
“7. That as a result of the molestation which occurred to Channin, she will require continuous psychiatric care in addition to her special education needs.”

The record further reveals that Tex had only seen the children three times in the previous eighteen months, and the children did not express any desire to spend time with Tex. In spite of this, Tex requested joint custody. He now argues that the District Court failed to state adequate reasons for denying his request, as required by Section 40-4-224(1), MCA. The statute provides:

“Upon application of either parent or both parents for joint custody, the court shall presume joint custody is in the best interests of a minor child unless the court finds, under the factors set forth in 40-4-212, that joint custody is not in the best interests of the minor child. If the court declines to enter an order awarding joint custody, the court shall state in its decision the reasons for denial of an award of joint custody.” [Emphasis added.]

We note that any presumption favoring joint custody in Section 40-4-224, MCA, was overridden by the abundant evidence supporting the grant of sole custody to Mary Ann. The findings and reasons for granting her sole custody are identical to the reasons for denying joint custody to Tex, and thereby comply with the mandates of Section 40-4-224(1), MCA.

We have repeatedly given the District Court broad discretion in deciding custody disputes. “The responsibility of deciding custody is a delicate one which is lodged with the district court. The judge hearing oral testimony in such a controversy has a superior advantage in determining the same, and his decision ought not to be disturbed except upon a clear showing of abuse of discretion.” Gilmore v. Gilmore (1975), 166 Mont. 47, 51, 530 P.2d 480, 482, citing In Re Adoption of Biery (1974), 164 Mont. 353, 522 P.2d 1377. The record fully supports the court’s findings and conclusions. We hold that the District Court properly considered the children’s best interests and did not abuse its discretion when it granted custody to Mary Ann.

Issue 2

Did the District Court abuse its discretion when it awarded child support to Mary Ann?

Tex argues that the court did not make any findings about the financial needs of the children or the ability of each parent to pay. He contends that the court failed to follow the holding of In Re Marriage of Capener (1978), 177 Mont. 437, 441, 582 P.2d 326, 328, which states: “The pertinent factors in [Section 40-4-204, MCA], with findings of fact to support them, should be set out in the District Court’s decision for otherwise the appellate court has nothing upon which to base its review.”

Section 40-4-204, MCA, lists six factors the court shall consider when ordering child support:

“(a) the financial resources of the child;
“(b) the financial resources of the custodial parent;
“(c) the standard of living the child would have enjoyed had the marriage not been dissolved;
“(d) the physical and emotional condition of the child and his educational needs;
“(e) the financial resources and needs of the non-custodial parent; and
“(f) for the purposes of determining a minimum amount for support, the amount received by children under the AFDC program, as defined in 53-2-702.”

We have ample findings upon which to base our review. Judge Allen specifically noted the financial resources and needs of the children and parents in the following findings:

“8. That the estimated charges for [Channin’s] continuing psychiatric treatments will be approximately $120.00 per week.
“10. Mr. Manus is an able-bodied, employed man, having worked for the past ten years for Plum Creek as a chip truck driver. He is 42 years of age, in good health, and his expected salary for the year 1985 will exceed $38,000.00. His income has grown steadily during the past ten years. His take home pay is approximately $2,400.00 per month after depositing to voluntary retirement programs in excess of $200.00 per month. As part of his employment, Mr. Manus receives medical health coverage, which coverage is available to members of his family.
“11. Mary Ann Manus lives in Usk, Washington with her daughters, is a person of 43 years of age, is presently under a doctor’s care, taking prescription medication three times daily. Mary Ann Manus works as a part-time waitress earning approximately $3.50 per hour. She takes home approximately $400.00 per month. There is no other suitable employment available to her as a result of her physical and emotional conditions requiring medical care.
“12. The expenses for Mr. Manus and his girlfriend are less than $1,000.00 per month.
“13. The expenses of Mrs. Manus, excluding psychiatric care for Channin, exceed $1,584.00 per month.”

These findings are well-supported by the record. We will not set aside the District Court’s findings of fact unless there is a clear abuse of discretion. Grenfell v. Grenfell (1979), 182 Mont. 229, 232, 596 P.2d 205, 207. We find no such abuse in this case. Therefore, we hold that the District Court properly awarded child support of $250 per month per child.

Issue 3

Did the District Court abuse its discretion when it adopted Mary Ann’s valuation of the marital property?

The District Court substantially adopted Mary Ann’s valuation of the marital estate. Tex argues that the District Court failed to adequately support the decision in its findings. However, we note that in Finding No. 14, the District Court carefully itemized the property that the Manuses had acquired during their sixteen-year marriage. The real property included the family home in Whitefish and some rental property. The personal property included two trucks, several trailers, tools, and miscellaneous household goods.

As we held in In Re Marriage of LeProwse (1982), 198 Mont. 357, 646 P.2d 526, 529, the fact that the District Court substantially adopted the findings proposed by one party does not change the standard of review. That standard of review was recently outlined in In Re Marriage of Rolfe (Mont. 1985), [216 Mont. 39,] 699 P.2d 79, 83, 42 St.Rep. 623, 626, where we held:

“In dividing property in a marriage dissolution the district court has far reaching discretion and its judgment will not be altered without a showing of clear abuse of discretion. The test of abuse of discretion is whether the trial court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice.”

The District Court’s conclusions were neither arbitrary nor unreasonable. By his own testimony, Tex’s evidence supports the court’s findings. His estimate for the total value of the marital estate was $109,000. He valued Mary Ann’s share at $55,000. Mary Ann estimated the total value at $115,000, with her share at $45,000. Tex and Mary Ann’s estimates differ by 10 percent or less. These differences are well within an acceptable appraisal range. The District Court’s findings are properly based on Mary Ann’s estimates and supported by Tex’s evidence. We hold that the court did not abuse its discretion when it ordered Tex to pay Mary Ann $12,448 to equalize the marital estate, in monthly payments of $207 for five years.

Issue 4

Did the District Court abuse its discretion when it awarded maintenance to Mary Ann?

Tex argues that the District Court did not justify the maintenance awards, because it made no finding that Mary Ann was unable to meet her reasonable needs, and the court did not distinguish her needs from those of the children.

The factors to be considered in a maintenance award are outlined in Section 40-4-203(1), MCA:

“(1) In a proceeding for dissolution of marriage . . . the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance:
“(a) lacks sufficient property to provide for his reasonable needs; and
“(b) is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.”

The District Court addressed Section 40-4-203(l)(a), MCA, in two findings. Finding No. 11 notes that Mary Ann’s income is $400 per month. Finding No. 14 lists income-producing property, from which Mary Ann receives approximately $400 per month. Tex contends that his monthly payments of $207, to equalize the property division of the marital estate, should also be considered in Mary Ann’s monthly income.

However, we note that the property payments are merely the liquidation of assets that Mary Ann had acquired during the marriage and cannot be considered as part of her current income. Excluding the property payments and child support, the combined income from Mary Ann’s property and employment is only $800.

Tex’s argument is also disputed by Finding No. 17, which addresses Section 40-4-203(1)(b):

“Mrs. Manus will need to devote her attention to caring for Channin and Nickole through the next four years of school and high school, two years of special education, college for Channin, then one year of college work for herself in order to be able to enter the job market.”

Both Mary Ann’s need for retraining and the needs of her children justify the District Court’s award of maintenance.

As we held in In Re Marriage of Korpela (Mont. 1985), [219 Mont. 150,] 710 P.2d 1359, 1360, 42 St.Rep. 1912, 1914, the spouse seeking maintenance must show both lack of sufficient property and also incapability of self-support. Mary Ann has met this burden. Therefore, the District Court did not abuse its discretion when it awarded Mary Ann $300 per month in maintenance for five years.

Issue 5

Did the trial court abuse its discretion when it awarded attorney fees to Mary Ann?

The court’s Finding No. 18 states: “That the Petitioner has been forced to hire counsel and is unable to pay for counsel.” Tex argues that the court awarded Mary Ann income-producing property, yet found she was unable to pay her attorney fees. Tex contends that Finding No. 17 is not supported by the evidence and represents an abuse of discretion. Tex further argues that the court must indicate in its findings the reason for granting the award of attorney fees.

We note that a discretionary award of attorney fees is sanctioned in Section 40-4-110, MCA: “The court from time to time after considering the financial resources of both parties, may order a party to pay a reasonable amount for the cost to the other party ... for attorney fees . . .”

Although Mary Ann’s counsel fails to cite any authority on this issue, we note that an award of attorney fees under the statute is “largely discretionary with the District Court and we will not disturb its judgment in the absence of an abuse of that discretion.” In Re Marriage of Johnston (Mont. 1986), [223 Mont. 383,] 726 P.2d 322, 326, 43 St.Rep. 1808, 1812-1813, citing Talmage v. Gruss (1983), 202 Mont. 410, 412, 658 P.2d 419, 420.

The District Court examined each party’s financial position. During the marriage, Mary Ann worked as a homemaker and took care of the two children. Both children now live with her. Mary Ann requires additional vocational training and is currently under a physician’s care. She earns $800 per month. In contrast, Tex earns $2,400 per month and is in good health. The court’s findings adequately support its conclusion. In view of the parties’ relative financial positions and health, the award of attorney fees was not an abuse of discretion. Carr v. Carr (Mont. 1983), [205 Mont. 269,] 667 P.2d 425, 427, 40 St.Rep. 1263, 1266.

Issue 6

6. When a retired district judge who was called into jurisdiction during a judicial vacancy, has rendered judgment and has been succeeded by a duly-appointed district judge, does the retired district judge retain jurisdiction to deny a subsequent motion for new trial?

During the terminal illness of Judge Salansky, Judge of Department One of the District Court of Flathead County, various retired judges were called in to assist with his caseload. By order dated July 30, 1985, this Court recalled Judge Allen to assume all duties of that department for an indefinite period beginning September 1, 1985.

The order was issued in accordance with Article VII, Section 6(3), 1972 Mont. Const., which authorizes such assignments. “The chief justice may, upon request of the district judge, assign district judges and other judges for temporary service from one district to another, and from one county to another.” (Emphasis added.)

On December 2, 1985, the instant case was tried before Judge Allen, who rendered judgment on December 11, 1985. Judge Leif B. Erickson was formally sworn in as Judge Salansky’s successor on December 11, 1985, and assumed all judicial duties on December 12, 1985.

Tex filed a motion for a new trial on December 17, 1985. On January 31, 1986, Judge Erickson decided that he did not have jurisdiction to rule on Tex’s motion. He relied on State ex rel. Wilcox v. District Court (Mont. 1984), [208 Mont. 351,] 678 P.2d 209, 41 St.Rep. 397, which defined the scope and authority of a retired district judge called into jurisdiction under Article VII, Section 6(3). The Wilcox court held that such judges have the complete jurisdiction of the District Court in all civil matters and cases at law, including final dispositions. Wilcox, 678 P.2d at 215, 41 St.Rep. at 403. Accordingly, Judge Allen retained jurisdiction and on February 27, 1986, issued an order denying Tex’s motion.

Judge Erickson’s decision is consistent with our policy of judicial economy. By providing a bridge of continuing jurisdiction, such a policy ensures that a successor judge does not oust the authority of a retired district judge to efficiently dispose of the matters that have been undertaken by him.

We affirm the District Court on all issues.

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


author: MR. JUSTICE SHEEHY

text:
    FIRST NATIONAL BANK IN EUREKA, a National Banking Corp., Plaintiff and Respondent, v. MARY GILES, Defendant and Appellant.
    No. 86-195.
    Submitted on Briefs Nov. 13, 1986.
    Decided March 4, 1987.
    733 P.2d 357.
    Keller & German; Ann German, Libby, for defendant and appellant.
    David Harman, Libby, for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Mary Giles appeals a decision by the District Court of the Nineteenth Judicial District, Lincoln County, granting plaintiff-respondent First National Bank in Eureka’s motion for summary judgment.

The issue on appeal is whether the District Court properly granted the bank’s motion for summary judgment.

In February, 1985, plaintiff First National Bank in Eureka (hereafter bank) filed a complaint against Mary Giles for “forgery and misrepresentation.” The alleged forgery involved four Veterans’ Administration disability checks made payable to Mary’s then-husband James Giles. The checks were mailed to the Giles’ home in Libby in September, October, November, and December, 1982. James Giles was incarcerated in Montana State Prison during this period. On receipt of each of the checks, Mary took them to the Eureka bank to cash. In each instance, the bank personnel made no objection when she endorsed the checks by signing both her husband’s name and her own. Her name appears below her husband’s on the endorsed checks.

Mary Giles claims she had authority from James to cash the checks to support herself and their children. James claims he was unaware that he had been awarded VA benefits. Yet, while in prison, James wrote the VA notifying them that Mary was improperly receiving his benefits, and asserted that she was using them without his authorization. The record is not clear as to who made the initial application for the benefits.

On notification from James, the VA contacted the Treasury Department, and it, in turn, requested reimbursement from the bank. The bank voluntarily reimbursed the Treasury Department for the face value of the checks plus accrued interest. The bank then filed the present action against Mary Giles alleging that she had no authority to cash the checks or use James’ name as endorser. Based on these facts, the bank moved for summary judgment. The District Court granted the bank’s motion and the bank satisfied the judgment in a sheriff’s sale. The bank moved to dismiss this appeal on the grounds of mootness, however, we denied that motion and this appeal continued. First National Bank of Eureka v. Giles (Mont. 1986), [225 Mont. 467,] 225 P.2d 467, 43 St. Rep. 1326.

It is important to note that on being sued by the bank, Mary Giles counterclaimed for breach of the fiduciary relationship. She also filed a third-party complaint against James for damages incurred as a result of his claim that she cashed the checks without authorization.

The issue in this case is whether summary judgment was properly granted. Rule 56(c), M.R.Civ.P., provides that summary judgment is proper if the pleadings, depositions, answers to interrogatories and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Mayer Brothers v. Daniel Richard Jewelers, Inc. (Mont. 1986), [223 Mont. 397,] 726 P.2d 815, 43 St.Rep. 1821. The party moving for summary judgment has the burden of showing a complete absence of genuine issue as to all facts deemed material in light of the substantive principles that entitle that party to a judgment as a matter of law. Cereck v. Albertson’s, Inc. (1981), 195 Mont. 409, 637 P.2d 509 (and cases cited therein). All reasonable inferences that may be drawn from the offered proof are to be drawn in favor of the party opposing the summary judgment. Cereck, supra; Reaves v. Reinbold (Mont. 1980), 189 Mont. 284, 615 P.2d 896, 37 St.Rep. 1500.

The problem we confront is whether genuine issues of material fact exist. In turn, determining the materiality of any issue of fact depends on the applicable statutes, which are, in this case, Montana’s Uniform Commercial Code’s chapter on commercial paper, Sections 30-3-101, MCA, et seq. and Section 30-4-207, MCA.

Section 30-4-207, MCA, contains the warranties of a customer and collecting bank on transfer or presentment of items. Appellant bank contends that Mary was a “customer” and as such under the law, she warranted that she had good title to the check and was therefore liable for damages for breach of that warranty. This argument fails, however, because the record indicates Mary was not a “customer” of the bank. Customer means any person having an account with a bank or for whom a bank has agreed to collect items. Section 30-4-104(1) (e), MCA. Section 30-4-207, states: “Each customer . . . warrant to the payor bank . . . [that] (a) he has a good title to the item or is authorized to obtain payment or acceptance on behalf of one who has good title . . .” The motion granting summary judgment indicates that Mary had no account with the bank, stating “Mary Giles was not a depositor with the Plaintiff Bank and the bank was unable to charge back the checks against her account.” As the other provisions of the definitional sections of Section 30-4-104(1) (e) do not apply, its clear that Mary is .not liable under Section 30-4-207. In other words, because she was not a customer, she made no warranties to the bank when it cashed the checks. If Mary did in fact cash the checks without authorization (an issue of fact as yet unresolved) then at most she entered a debtor-creditor relationship with the bank. The provisions of Section 30-4-207, are inapplicable.

Appellant bank next contends that the language of the UCC on commercial paper speaks to Mary’s liability as an unauthorized signer. Section 30-3-404, MCA, provides that “any unauthorized signature is wholly inoperative as that of the person whose name is signed unless he ratifies it or is precluded from denying it; but it operates as the signature of the unauthorized signer in favor of any person who in good faith pays the instrument or takes it for value.” The bank ties in Mary’s status as (they contend) an unauthorized signer (and an imposter under Section 30-3-405, MCA) with Section 30-3-414, MCA, which requires an endorser to pay instruments on dishonor.

We reject the leap of logic made by both the bank and the trial court. There is no evidence in the record indicating in one way or another that Mary acted without authority. The question of whether she was an authorized or unauthorized endorser must be established before any conclusions can be drawn regarding her liability on the four checks.

The District Court judge’s legal analysis of the present issue states:

“10 AmJur 2d, page 573, contains the statement that recovery may be had from those who do not have title to an instrument. And in the same volume at page 602, is a general discussion of the right of the bank to recover money paid to an endorser of checks.
“This summary judgment does not deal with rights and liabilities existing between Mary Giles and James Giles.”

The District Court assumed, without any evidence in the record, that Mary did not have authority and at the same time stated that it has not dealt with the rights and liabilities between Mary and James. These are wholly inconsistent statements.

The determinative factor in this litigation is whether Mary acted with authority. This factor is the foundational element for any claim the bank has, for if Mary had authority to cash the checks, then the bank’s claim is against the VA or James, not Mary.

Clearly there are unresolved material factual issues before this Court and summary judgment was improper. Therefore, the summary judgment is reversed and the case is remanded for further proceedings in accordance with this opinion.

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


text:
    In re the MARRIAGE OF JERRY C. TONNE, Petitioner and Appellant, and SUSAN K. TONNE, Respondent and Respondent.
    No. 86-197.
    Submitted on Briefs Oct. 2, 1986.
    Decided March 4, 1987.
    733 P.2d 1280.

      Baiz & Olson, Kenneth R. Olson, Great Falls, for petitioner and appellant.
    Howard Strause, Great Falls, for respondent and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Jerry C. Tonne appeals the property, visitation and child support provisions of a January 10, 1986, decree of the Eighth Judicial District Court, Cascade County.

Jerry raises three issues for our review:

1. Did the District Court abuse its discretion in dividing the marital property equally?

2. Did the District Court abuse its discretion in ordering the sale of the family ranch to satisfy the division of marital property?

3. Did the District Court abuse its discretion in setting the terms of child support and visitation?

We affirm on Issues 1 and 3. We remand on Issue 2.

Jerry Tonne and Susan Tonne were married in Great Falls on December 21, 1974. Two children were born of the marriage. At the time of the marriage, Susan and Jerry each had a Bachelor’s degree in education. From 1974 until 1976, Susan taught school full-time in Geraldine, Montana. Jerry worked on his family ranch, which he and his brother had purchased from their mother in 1972.

From 1976 until 1980, Susan continued to teach part-time, and also helped Jerry with the ranch work. In 1982, Jerry and his brother sold the Geraldine ranch. Jerry received $350,000 for his half-interest. He used the money to purchase a smaller ranch near Fort Shaw for $235,000.

In 1984, Jerry filed for divorce. He continues to work the Fort Shaw ranch, although he has moved out of the ranch home. Susan now works as a bookkeeper and continues to live in the ranch home with the children.

Issue 1

Did the trial court abuse its discretion in dividing the marital property equally?

In its findings, the District Court concluded “that Jerry and Susan contributed equally to the accumulation of the marital estate.” Under the personal property division, Jerry received $55,200, and Susan received $27,032 with another $28,767 payable upon sale of the ranch. The net balance from the sale of the ranch would then be divided equally between Susan and Jerry.

Our standard of review for the division of marital property was outlined in In Re Marriage of Rolfe (Mont. 1985), [216 Mont. 39,] 699 P.2d 79, 83, 42 St. Rep. 623, 626, where we held:

“In dividing property in a marriage dissolution the district court has far-reaching discretion and its judgment will not be altered without a showing of clear abuse of discretion. The test of discretion is whether the trial court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice.”

Jerry contends that he brought a much larger net worth into the marriage and is therefore entitled to more than half of the marital estate upon dissolution.

In examining the facts we note that Susan brought $4,000 worth of personal property into the marriage, and no real property. Early in the marriage, Susan also withdrew $4,500 from her teacher’s retirement account to buy a family car.

Jerry Tonne’s estate, at the time of the marriage in 1974, consisted exclusively of his interest in the ranch. Jerry and Wayne Tonne bought the ranch under a contract for deed from their mother for $60,000, although the fair market value of the ranch was approximately $150,000. A second contract for deed conveyed the farm machinery and livestock to Jerry and Wayne for $23,900. By the date of Jerry’s marriage, the brothers had paid $12,600 on the real property and $11,600 on the personal property.

Both Susan and Jerry commissioned appraisers in 1985 to estimate the value of the Geraldine ranch in 1974. Jerry’s appraiser fixed the ranch’s value at $354,700. After subtracting the outstanding debts from this figure, the appraiser estimated Jerry’s net worth at $180,000. Susan’s appraiser fixed the ranch’s value at $235,000, with Jerry’s net worth at $125,000. The court adopted the valuation of Susan’s appraiser.

Although Jerry’s net worth greatly exceeded Susan’s net worth on the date of their marriage, Section 40-4-202(1), MCA, states that the court shall:

. . finally equitably apportion between the parties the property and assets belonging to either or both ... In making apportionment, the court shall consider the duration of the marriage . . . the needs of each of the parties; custodial provisions . . . and the contributions of a spouse as a homemaker or to the family unit. In dividing property acquired prior to the marriage . . . the court shall consider those contributions of the other spouse to the marriage, including ...(b) the extent to which such contributions have facilitated the maintenance of this property . . . “ (Emphasis added.)

The Tonne marriage lasted eleven years and produced two children. The findings of the District Court list numerous and specific contributions by Susan, which facilitated the maintenance of the ranch. She contributed her skills as a ranchworker and homemaker, including domestic chores for Wayne while he lived with Jerry and Susan on the Geraldine ranch. Also during the marriage Susan contributed $31,700 in non-ranch income to the household.

We discussed spousal contributions in In Re Marriage of Brown (1978), 179 Mont. 417, 587 P.2d 361, where a ranch was owned solely by the husband. Upon dissolution of the marriage, we held that the wife had “acquired a vested interest in the major marital asset, the ranch property, regardless of its source and title. She did so by virtue of her fourteen years as a mother, housewife, and part-time ranch hand.” Brown, 179 Mont. at 423, 587 P.2d at 365.

Under the guidelines of Brown, the District Court acted well within its bounds of discretion and fully documented its conclusions. As we held in In Re Marriage of Keepers (Mont.1984), [213 Mont. 350,] 691 P.2d 810, 813, 41 St.Rep. 2163, 2167, premarital property is a factor the court shall consider, but the court is not bound to restore the parties to their premarital status. We affirm the court’s equal division of the marital estate.

Issue 2

Did the District Court abuse its discretion in ordering the sale of the family ranch to satisfy the division of marital property?

In its findings, the District Court stated:

“Although this court is aware of Jerry Tonne’s desire to keep and maintain the Fort Shaw ranch, this court concludes that it would not be possible for Mr. Tonne to retain the Fort Shaw ranch and at the same time support himself, help support his children, and pay to Susan Tonne the reasonable value of her share of the marital estate . . . The real property should be listed for sale forthwith and after sale and the payment of all liens and encumbrances, including real property taxes, real estate commissions and closing costs, the balance remaining should be divided as follows: Susan Tonne should receive $28,767.00 (the difference in the amount of the personal property awarded to Jerry Tonne) and the balance should be divided equally between the parties. [Emphasis added.]”

In reviewing the forced sale of a family ranch, we note that public policy in Montana favors the preservation of the family ranch, following the division of the marital property. In Re Marriage of Glass (Mont. 1985), [215 Mont. 248,] 697 P.2d 96, 100, 42 St.Rep. 328, 331. However, this policy must be balanced against the spouse’s property rights. “[T]he policy of keeping a family ranch intact cannot be used to deprive a spouse of his or her equitable share of the marital estate.” In Re the Marriage of Garst (Mont. 1983), [206 Mont. 89,] 669 P.2d 1063, 1067, 40 St.Rep. 1526, 1531.

Jerry testified that he bought the Fort Shaw ranch because he wanted to specialize in the registered cattle business. Jerry contends that he can feasibly operate the ranch, plus pay for child support and Susan’s equitable share of the marital estate. Jerry asserts that he could pay off Susan’s remaining share over time with a low interest rate, where Susan’s share is secured by a lien on the land. Jerry argues that a forced sale in the current market amounts to a “fire sale.” As a life-long rancher, he requests the chance to pay his debt to Susan, while being allowed to keep his livelihood.

Susan counters that the ranching operation has been marginal throughout their marriage. She contends that Jerry cannot realistically operate the ranch while making child support payments and estate payments. Susan argues that the ranch must be sold as soon as possible, so that she can recover her share of the marital estate.

In deciding this issue, we note In Re the Marriage of Gomke (1981), 627 P.2d 395, 38 St.Rep. 578, with facts similar to the present case. In Gomke, the farm was held solely in the husband’s name. The wife insisted that the farm be sold. She contended that the husband could not generate sufficient income from the farming operation and from his outside employment to pay her annual installments, plus pay his other indebtedness. The net value of the Gomke marital estate was $207,000. We affirmed the District Court when it allowed the husband to pay the wife’s $88,000 share in four annual installments of $22,000 each, together with annual interest at 7 percent. The court also gave the wife a lien on the property for the outstanding balance. The farmland was heavily encumbered, and the husband paid $900 per month in child support while earning $650 per month from non-farm employment. In light of this data, the Court stated: “Given the husband’s relatively low yearly income, he will quite possibly have to refinance the property or arrange for private loans in order to make the annual payments to the wife.” Gomke, 627 P.2d at 397.

Similarly, the Fort Shaw ranch is currently appraised at $176,000 and is held solely in Jerry’s name. The Fort Shaw ranch is currently encumbered by a $62,000 mortgage, which Jerry assumed from the previous owners, payable in annual installments of $7,800. Jerry is also obligated for $500 per month in child support. He presented evidence that he earns over $1,000 per month from both ranch and non-ranch work.

We are faced with a delicate issue. On one hand, the District Court acted within its discretion based on the findings, when it ordered the sale of the ranch. On the other hand, the worst economic times in fifty years have crippled the market for ranches. Jerry purchased the Fort Shaw ranch for $235,000. The District Court found that the ranch is now worth only $176,000. Drought and deflation have driven down the value of the land. To force a sale now would deprive both Jerry and Susan of the value that the ranch would possess in a market closer to historical norms.

If the sale is made in a more favorable market, both Jerry and Susan’s shares will be increased. Therefore, in equity, we are remanding this issue with the suggestion that the District Court allow Jerry thirty-six months to sell the ranch. If the ranch remains unsold after thirty-six months, the District Court might then order a forced sale. To protect Susan’s security interest in the ranch, Susan’s personal property share of $28,767 could constitute a judgment lien on the ranch, earning 10 percent annual interest until fully paid. Upon sale of the ranch, Susan could receive half of any net proceeds after her personal property share has been deducted.

In the alternative and within the District Court’s discretion, the parties might elect to liquidate Susan’s share of the marital estate through a structured buyout similar to the one in Gomke. If Jerry fails to make timely payments, his option to retain the ranch would terminate, and the property would be sold as the District Court orders. If Jerry would choose to sell the ranch before Susan is fully paid, she would receive her balance due from the net proceeds. This equitable buyout would allow Susan to retain a security interest in the land, while allowing Jerry an opportunity to sell the ranch in a better market or to retain the ranch.

Therefore, we remand this issue and suggest that the District Court, in its discretion, modify its decree to provide Jerry with thirty-six months to sell the ranch. Alternatively, the District Court might also modify the decree, with the agreement of Jerry and Susan, to allow a Gomke-type buyout.

Issue 3

Did the District Court abuse its discretion in setting the terms of child support and visitation?

The District Court ordered Jerry to pay support of $250 per child per month. The court also ordered that any unpaid child support would be a lien upon the proceeds of the ranch when it is sold. In setting the amount of child support, the District Court noted that Jerry has personal property valued at over $55,000. The court also considered Jerry’s earning capacity and stated in its findings: “Taking into consideration Jerry Tonne’s education background, his income potential is greatly in excess of $1,000 per month.”

In reviewing child support issues, our standard is that the “award made by the District Court will not be disturbed on appeal unless there has been a clear abuse of discretion resulting in substantial injustice.” Grenfell v. Grenfell (1979), 182 Mont. 229, 232, 596 P.2d 205, 207.

Jerry argues that the court failed to consider the financial resources of Susan. We note otherwise. The court specifically found that Susan earns $763 per month in net income, but her living expenses with Brett and Lisa greatly exceed that amount. In addition, Jerry presented evidence to the court that he could earn $750 per month in non-farm income, but his living expenses are substantially less than that amount. Jerry also presented evidence that he could earn several hundred dollars per month in farm income. Therefore, Jerry’s own evidence places him in a better financial position than Susan.

We held in In Re the Marriage of Carlson (1984), [214 Mont. 209,] 693 P.2d 496, 500, 41 St.Rep. 2419, 2423, that the allocation of child support between the parties should be based upon the needs of the children and the parties’ respective abilities to pay. Furthermore, Section 40-4-204, MCA, states that the court must consider the financial resources of the parents and the needs of the children when ordering child support. We find that the District Court followed the provisions of Section 40-4-204, MCA, when it established the child support payments. We find no abuse of discretion on this issue.

On the issue of visitation, the court granted joint custody to both parents, with physical custody to Susan. The court noted that both children expressed discomfort about living with Jerry. It granted Jerry visitation rights on alternate weekends, alternate holidays, an alternate week night, Father’s Day and three nonconsecutive weeks in the summer. Jerry argues that the court negated the effect of joint custody by severely limiting Jerry’s right to visit his children.

Section 40-4-217(1), MCA, states: “A parent not granted custody of the child is entitled to reasonable visitation rights . . .” In light of the findings, the court’s visitation schedule is reasonable. Furthermore, the court’s visitation schedule accords with In Re Marriage of Alt (Mont.1985), [218 Mont. 327,] 708 P.2d 258, 261, 42 St.Rep. 1621, 1625, where we held that visitation on alternate weekends, alternate holidays, one evening per week, and two weeks in the summer was reasonable. Therefore, we find no abuse of discretion in the court’s visitation schedule.

In summary, we affirm on Issues 1 and 3. We remand on Issue 2.

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


author: MR. JUSTICE GULBRANDSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MICHAEL D.W. LANGE, Defendant and Appellant.
    No. 86-437.
    Submitted on Briefs Jan. 13, 1987.
    Decided March 4, 1987.
    733 P.2d 846.

      Michael D.W. Lange, pro se.
    Mike Greely, Atty. Gen., Helena, Patricia J. Schaeffer, Asst. Atty., Helena, Victor G. Koch, Co. Atty., Sidney, for plaintiff and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Michael D.W. Lange appeals a Richland County District Court order revoking his suspended sentence and requiring him to serve two years in the state prison. The issue on appeal is whether the District Court erred in declining to appoint new counsel for Lange’s revocation hearing after Lange rejected the court’s initial choice of counsel for the hearing. We affirm.

Lange was convicted in 1983 of the criminal sale of dangerous drugs and criminal possession with intent to sell, both felonies, and was given a ten year suspended sentence subject to several conditions. One condition specified that Lange would be placed under the supervision of the Montana Department of Institutions, Adult Probation and Parole Bureau and would be required to comply with all rules imposed upon him by the Department. Another condition was that Lange would pay a $1,500 fine over a period of time and reimburse the county for the cost of court-appointed counsel. From the time Lange was charged, three attorneys were appointed to represent him but all elected to withdraw. Lange’s fourth court-appointed attorney represented him at trial and sentencing. Apparently not satisfied with counsel’s performance at trial and sentencing, Lange did not ask for further representation.

On July 18,1986, the State filed a petition to revoke the suspended sentence because Lange had allegedly violated four conditions of his probation:

(1) Lange had failed to report to his probation officer since April 1986;

(2) Lange had moved out of the State without the permission of his probation officer;

(3) Lange had failed to make payments on his $1,500 fine; and

(4) Lange had failed to reimburse the county for court-appointed counsel and other costs.

On August 4, 1986, Lange appeared without counsel for his initial appearance on the petition and demanded court-appointed counsel. The court appointed counsel but on August 11, 1986, Lange filed a motion to release the attorney, saying he wanted to obtain an attorney of his own choice. The court granted the motion. On August 14, 1986, Lange appeared without counsel and moved for another court-appointed attorney. The court denied the motion but gave Lange time to obtain new counsel. On August 25, 1986, Lange and the attorney appointed to represent him on August 4, 1986, appeared before the court. The attorney explained that Lange did not wish to have him as counsel and cited a personality conflict. The court again refused to appoint new counsel for Lange. At the revocation hearing, Lange successfully refuted three of the four alleged violations of his suspended sentence. However, the court found that Lange had failed to report to his probation officer as ordered and subsequently sentenced Lange to two years in the state prison.

The standard of review is the substantial evidence test. This test is met if a reasonable mind would accept the evidence as supporting the conclusion reached. In applying this test the evidence is viewed in a light most favorable to the prevailing party. State v. Oman (Mont. 1985), [218 Mont. 260,] 707 P.2d 1117, 1120, 42 St.Rep. 1565, 1568.

Section 46-18-203, MCA, authorizes the district judge to revoke a suspended sentence. The person affected has the right to a hearing on the revocation issue under subsection (3) of the statute. Section 46-8-101, MCA, specifies that counsel will be appointed for indigent parties in felony cases and may be appointed in misdemeanor cases. As to the duration of the appointment, Section 46-8-103 and Section 46-8-104, MCA, state as follows:

“46-8-103. Duration of appointment. Where counsel has been assigned, such assignment shall be effective until final judgment, including any proceeding upon direct appeal, unless relieved by order of the court.
“46-8-104. Appointment after trial. Any court of record may assign counsel to defend any defendant, petitioner, or appellant in any post conviction criminal action or proceeding if he desires counsel and is unable to employ counsel.” (Emphasis added.)

The Due Process Clause of the Fourteenth Amendment imposes procedural and substantive limits on the revocation of the conditional liberty created by probation. Black v. Romano (1985), 471 U.S. 606, 610, 105 S.Ct. 2254, 2257, 85 L.Ed.2d 636, 642, (citing Beardon v. Georgia (1983), 461 U.S. 660, 666, 103 S.Ct. 2064, 2069, 76 L.Ed.2d 221, 228). The Romano decision explains the procedural requirements of a revocation hearing as follows:

“[T]he final revocation of probation must be preceded by a hearing, although the factfinding body need not be composed of judges or lawyers. The probationer is entitled to written notice of the claimed violations of his probation; disclosure of the evidence against him; an opportunity to be heard in person and to present witnesses and documentary evidence; a neutral hearing body; and a written statement by the factfinder as to the evidence relied on and the reasons for revoking probation. [Citation omitted.] The proba7 tioner is also entitled to cross-examine adverse witnesses, unless the hearing body specifically finds good cause for not allowing confrontation. Finally, the probationer has a right to the assistance of counsel in some circumstances. [Citation omitted.]” (Emphasis added.)

471 U.S. at 611-12, 105 S.Ct. at 2258.

As to this final sentence on the probationer’s right to the assistance of counsel in some cases, the Romano Court cites Gagnon v. Scarpelli (1973), 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656. We quote a pertinent passage from that case:

“[T]he decision as to the need for counsel must be made on a case-by-case basis in the exercise of a sound discretion by the state authority charged with responsibility for administering the probation and parole system.”

411 U.S. at 790, 93 S.Ct. at 1763-64.

We believe the due process requirements of Romano have been met. A revocation hearing was held, Lange was given written notice of the petition to revoke his suspended sentence, and was given an opportunity to be heard in person and present evidence before a neutral body, the District Court, including the opportunity to cross-examine the probation officer and clerk of court. Further, the District Court made written findings that Lange’s suspended sentence was being revoked because of a probationary violation.

As to the right to counsel, Section 46-8-104, MCA, says that the Court may assign counsel to any defendant in any “post conviction criminal action or proceeding if he desires counsel and is unable to employ counsel.” We adopted this view in State v. Fry (1982), 197 Mont. 354, 359, 642 P.2d 1053, 1056. Therefore the lower court has the discretion to decide whether a particular defendant should be afforded counsel for a post-conviction criminal action or proceeding. At his initial appearance on the petition to revoke the suspended sentence, Lange requested counsel and was obliged by the court pursuant to Section 46-8-104, MCA. Lange rejected the court’s choice of counsel and was given the opportunity to obtain private counsel. The court was not required to do anything further. When count-appointed counsel is rendering effective assistance, the defendant has the choice of: (1) continuing with the counsel so appointed, or (2) having his counsel dismissed and proceeding on his own, pro se. A defendant has no right to the appointment of counsel of his choice. State v. Pepperling (1978), 177 Mont. 464, 473, 582 P.2d 341, 346. By rejecting court-appointed counsel for the revocation hearing, Lange effectively opted to proceed pro se without assistance of counsel. We might add that Lange was quite capable of speaking for himself, as evidenced by his ability to refute three of the four alleged probationary violations.

We find substantial evidence to support the decision of the District Court.

Affirmed.

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


text:
    In re the MARRIAGE OF LISA MARIE JONES, Petitioner and Appellant and CHARLES ALAN JONES, Respondent and Respondent.
    No. 86-516.
    Submitted on Briefs Feb. 5, 1986.
    Decided March 4, 1987.
    736 P.2d 94.
    Thomas P. Meissner, Lewistown, for petitioner and appellant.
    Fausto G. Turrin, Great Falls, for respondent and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

We determine in this case that the proper venue for the commencement of an action for dissolution of marriage is the county in which the petitioner has resided during the 90 days preceding the commencement of the action. Section 25-2-118(3), MCA.

Lisa Marie Jones appeals from the order of the District Court, Tenth Judicial District, Fergus County, changing the place of trial of the dissolution proceedings brought by Lisa from the District Court of Fergus County to the District Court of Cascade County.

On June 16, 1986, Lisa filed a petition for dissolution of her marriage in the District Court of the Tenth Judicial District, in and for the County of Fergus. At the time of filing and for a period of 90 days prior to the filing of the petition, Lisa was residing in Great Falls, Montana in Cascade County. Her husband, Charles, was a member of the Armed Forces and the parties had resided in base housing at Malmstrom Air Force Base in that county. Charles had been ordered to report to Korea for his next tour of duty and between the time in which he had completed his tour of duty at Malmstrom AFB, and prior to reporting to Korea, he was on leave from military service, traveling in Texas, where he was served with summons and a copy of the petition for dissolution of marriage filed by his wife.

Charles moved for a change of venue to the District Court in Cascade County upon the grounds that this District Court was the proper place of trial. At the same time, he filed other motions respecting the petition which are not pertinent here. The District Court determined that the proper venue for this action was in Great Falls and so ordered. Appeal is taken from that order.

The statutes governing venue of actions in this state were overhauled by the legislature in 1985. Ch.432, Laws of Montana, at 808 (1985). The pertinent statute here is Section 25-2-118, MCA, which states:

“Section 25-2-118. Residence of defendant. Unless otherwise specified in this part:
“(1) except as provided in Subsection (3), the proper place of trial for all civil actions is the county in which the defendants or any of them may reside at the commencement of the action;
“(2) if none of the defendants reside in the state, the proper place of trial is any county the plaintiff designates in the complaint;
“(3) the proper place of trial of an action brought pursuant to Title 40, chapter 4, is the county in which the petitioner has resided during the 90 days preceding the commencement of the action.”

Title 40, Chapter 4, is the portion of our codes governing actions for dissolution of marriage. Charles contends that subsection (3) above controls, and that the proper venue for Lisa’s petition is the District Court of Cascade County, the county in which she had resided during the 90 days preceding the commencement of the action.

Lisa contends that Subsection (2) of Section 25-2-118, MCA, is also applicable since Charles is not now residing in the State of Montana. She contends, therefore, that since Charles is no longer a resident of the State of Montana, she may designate the proper place of trial in any county she may choose, and in this case, she has chosen Fergus County.

Lisa further contends that a proper reading of Section 25-2-115, MCA, where the defendant is not a resident of the state, is that there are two proper venues for dissolution actions, the county which the plaintiff chooses or the county where the plaintiff resided during the 90 days preceding the commencement of the action.

It is the duty of courts in these matters to determine the intention of the legislature. We are told:

“In the construction of a statute, the intention of the legislature is to be pursued if possible. When a general and particular provision are inconsistent, the latter is paramount to the former, so a particular intent would control a general one that is inconsistent with it.” Section 1-2-102, MCA.

In the Matter of Williams (Mont. 1985), [219 Mont. 6,] 709 P.2d 1008, 1010, 42 St.Rep. 1800, 1803, we said:

“In construing apparently conflicting statutes, this Court has stated that where one statute deals with a subject in general and comprehensive terms, and another deals with a part of the same subject in a more minute and definite way, the latter will prevail over the former to the extent of any necessary repugnancy between them. City of Billings v. Smith (1971), 158 Mont. 197, 211, 490 P.2d 221, 229. Further the principle of statutory construction that a specific law controls over the general applies only where the specific statute conflicts with the general statute and then only to the extent of the repugnancy. Montana Assoc. of Tobacco and Candy Distributors v. State Board of Equalization (1970), 156 Mont. 108, 113, 476 P.2d 775, 777-78 . . .”

The case at bar presents a clear situation where the specific provision of the statute must overweigh the general provision. Subsection (2) of Section 25-2-118, MCA, is a general statute applying to all civil actions. Subsection (3) of that same statute is a specific statute applying to marriage dissolutions under Title 40, chapter 4. Because the specific controls the general, the proper place of trial for an action for the dissolution of marriage is the county where the petitioner has resided during the 90 days preceding the commencement of the action. Accordingly, the order of the District Court transferring the place of trial in this case to the District Court of Cascade County is affirmed.

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