author: JUSTICE WEBER JUSTICE NELSON

text:
    IN RE THE MARRIAGE OF KENNETH G. CRAIB, Respondent and Appellant, and DEBRA L. RHODES, Petitioner and Respondent.
    No. 93-471.
    Submitted on Briefs May 11, 1994.
    Decided September 22, 1994.
    51 St.Rep. 937.
    266 Mont. 483.
    880 P.2d 1379.

      For Appellant: Susan J. Rebeck, Great Falls.
    For Respondent: K. Dale Schwanke, Jardine, Stephenson, Blewett & Weaver, Great Falls.
   JUSTICE WEBER

delivered the bpinion of the Court.

Appellant Kenneth G. Craib (Kenneth) appeals an Order of the District Court of the Eighth Judicial District, Cascade County, which increased his child support obligation; awarded petitioner Debra L. Rhodes (Debra) a judgment for recovery of money she has paid for income taxes, interest and penalties; and awarded Debra attorney’s fees and costs incurred in the action. The District Court’s order covered motions by both parties to modify their original decree of dissolution of marriage entered on June 8, 1988 in Cascade County. We affirm.

The issues presented for review are:

I. Did the District Court abrogate the benefit that Kenneth received from his discharge in a federal bankruptcy proceeding?

II. Did the District Court abuse its discretion by increasing the amount of child support that Kenneth must pay?

III. Did the District Court abuse its discretion in granting judgment to Debra for 100 percent of the parties’ income tax liability that she was required to pay following the dissolution of their marriage?

IV. Did the District Court abuse its discretion in refusing to admit certain evidence offered by Kenneth?

V. Did the District Court err in adopting Debra’s findings of fact?

VI. Did the District Court err in awarding attorney’s fees and costs to Debra?

The Property Settlement and Child Custody Agreement (Agreement) signed by Debra and Kenneth in connection with the dissolution of their marriage in 1988 provided, among other things, that Kenneth would pay to Debra $200 per month for support of the parties’ minor son; that Debra would receive the family home and would be responsible for the first mortgage on the home; that Kenneth would remain responsible for the second mortgage on the home, which had been taken out so that Kenneth could buy shop equipment for his business; and that the prevailing party in any subsequent action related to the Agreement would recover attorney’s fees and costs incurred in that action. Unbeknownst to Debra, Kenneth had not filed the parties’ previously prepared income tax returns for the years 1984,1986 and 1987 at the time of the dissolution in 1988, and therefore, these liabilities were not included in the Agreement. The Agreement was prepared by Debra’s attorney; Kenneth was not represented by counsel although he was encouraged to obtain separate counsel and represented in the Agreement that he had done so for purposes of reviewing the Agreement prior to signing it.

In June of 1990, Debra filed an affidavit of contempt alleging Kenneth was in arrears $1802 in child support and $900 on a marital debt he had assumed. Subsequently, at a hearing held in July of 1990, Kenneth volunteered to pay an additional $50 per month in support and a lump sum of $1,000. Although Kenneth began making payments of $250 per month, he paid only $650 of the lump sum promised.

In addition to being in arrears in his support payments, Kenneth also failed to make payments on a loan from Beneficial Mortgage Co. to cover the second mortgage on the home. Debra was required to pay $730 to prevent foreclosure and has made payments on the Beneficial loan since Kenneth’s default in early 1990. In December of 1990, Kenneth filed a Chapter 7 bankruptcy petition and has since been discharged and relieved of his liability on the second mortgage. Kenneth also failed to pay a Sears account and a loan he had taken out at Village Bank which was collateralized by Debra’s car. Because the bank failed to perfect its security interest in the car, Debra has not been required to make payments on the loan from Village Bank.

After filing his bankruptcy petition in December of 1990, Kenneth filed the late tax returns with the Internal Revenue Service (IRS) and the Montana Department of Revenue (MDOR) for tax years 1984, 1986 and 1987. In February of 1991, Debra received notices from the IRS assessing penalty and interest in addition to the unpaid taxes from those years. Debra had signed the returns shortly after they were prepared and testified she was unaware of any unpaid tax liability at the time of the dissolution in 1988 and until she received the IRS notices. She subsequently received similar notices from MDOR for taxes, penalty and interest. Debra had taxes withheld from her income during those years; the unpaid taxes represented tax liability for Kenneth’s income from self-employment in his auto body repair business.

Debra was forced to borrow money to pay the IRS and to make payment arrangements with MDOR to prevent her property from being levied upon. Kenneth had scaled back his business, was not then employed and had petitioned for discharge in bankruptcy, making it impossible for the IRS or MDOR to collect from him at that time even though the taxes would not be discharged in his bankruptcy proceeding. Kenneth did not notify Debra that he was filing the returns after his bankruptcy petition. Debra testified that, had she known, she could have filed separately for those years and not owed any taxes.

Soon thereafter, in February of 1991, Kenneth contracted with the Great Falls Tribune to paint newspaper dispensing machines and to deliver newspapers. Kenneth received a Chapter 7 bankruptcy discharge on April 5,1991. In July 1991, he also began full-time employment with Procraft, a Great Falls automobile body repair business. He earns in excess of $40,000 per year from these sources. He also has purchased a building for use in automobile body work; although he claimed he was not doing any body work for profit, he acknowledged that he had done so in the past on a “trade-out” basis and to assist in the payment of attorney fees in this and another proceeding. At the time of the trial in this proceeding, Kenneth had more than twenty vehicles located on this property.

In October of 1991, Kenneth remarried and has since supported his new wife and her two children. In February of 1992, Kenneth filed a petition to adopt one of his stepchildren on grounds her father was not supporting her. In that proceeding, Kenneth testified he was not current in the support of his own son because of personal disagreements with Debra but that he was able to meet his support obligations for their son. His petition to adopt his second wife’s daughter was later denied.

Just prior to filing his bankruptcy petition, Kenneth filed motions on November 28, 1990, to modify support and to be relieved of the liability for the Beneficial mortgage loan, the loan on Debra’s automobile and the Sears account. Debra later moved for an increase in child support, for maintenance, for child support arrearages, for judgment for the amounts she had been forced to pay due to Kenneth’s default of the Agreement, and for recovery of what she had paid to the IRS and MDOR.

The Agreement contains a provision by which each party represented to the other there were no debts incurred for which the other was not aware and could be held liable. In addition, it contains a provision providing that a non-defaulting party is entitled to recover payment such party is required to make because of default, together with interest, attorney’s fees and costs, including those incurred because of default under the Agreement.

The District Court awarded increased child support retroactive to the date of the petition to modify support in the amount of $400 per month through the end of 1992 and increased support in the amount of $475 per month beginning in January of 1993. The Court denied Debra’s request for maintenance but did award her a judgment for the amounts she had paid to the IRS and the MDOR and for delinquent child support. The court further awarded to Debra her attorney’s fees and costs incurred in this action according to the provision in the Agreement. The court also found Kenneth in contempt for his arrearages in child support.

ISSUE I.

Did the District Court abrogate the benefit received by Kenneth from his discharge in a federal bankruptcy proceeding?

Kenneth has provided the Court with a lengthy argument on this first issue which essentially contends that the District Court substituted an increase in support from $200 per month to $400 and $475 per month for an award of maintenance, which was barred by the two-year limitation period set forth in § 40-4-208(2)(a), MCA, and for amounts which Debra has been forced to pay on the second mortgage obligation to Beneficial Mortgage Co. which was discharged in his bankruptcy proceeding. According to Kenneth, he is now being forced to pay maintenance and to pay for a debt that has been discharged in his bankruptcy proceeding by way of an unfounded increase in support for his son.

Debra moved for both increased support and an award of maintenance. The District Court denied her motion for maintenance and granted her motion to increase support. The amount of the child support award is addressed separately in Issue II below. The record does not support Kenneth’s argument that the District Court substituted child support for the Beneficial loan which was discharged in Kenneth’s bankruptcy proceeding.

Kenneth’s argument that the increase in his support obligation is a substitute for maintenance or debt is similar to that presented and rejected by this Court in In re the Marriage of Jones (1990), 242 Mont. 119, 122-23, 788 P.2d 1351, 1353-54. In that case, the husband argued that he was being penalized by the court for using proper bankruptcy procedures in discharging a $43,594 debt to the wife and that the court erred by increasing a maintenance award because the debt to the wife had been discharged in the husband’s bankruptcy action. In Marriage of Jones, this Court concluded that substantial credible evidence supported the award of maintenance and that the maintenance was not a mere substitute for the husband’s debt to the wife. Similarly, we conclude here that Kenneth is not being penalized for using procedures under the Bankruptcy Code to obtain a new start. His argument relating to the bankruptcy is simply not applicable to the circumstances of this appeal. The Bankruptcy Act at 11 U.S.C. § 523 does not allow a debtor to discharge obligations for child support or for income taxes, the obligations we are concerned with in this appeal. As discussed below, an increase in child support is justified at the discretion of the District Court upon a showing of a substantial and continuing change of circumstances. Section 40-4-208(2)(b)(i), MCA; Marriage of Jones, 788 P.2d at 1354.

We hold the District Court did not abrogate the benefit received by Kenneth from his discharge in the federal bankruptcy proceeding.

ISSUE II.

Did the District Court abuse its discretion by increasing the amount of child support that Kenneth must pay?

The standard of review this Court uses for child support awards is whether a district court has abused its discretion. In re the Marriage of Anderson (1993), 260 Mont. 246, 255, 859 P.2d 451, 457. Factors to consider in setting support orders are set forth in § 40-4-204(3)(a), MCA, which provides in pertinent part:

Whenever a court issues or modifies an order concerning child support, the court shall determine the child support obligation by applying the standards in this section and the uniform child support guidelines adopted by the department of social and rehabilitation services pursuant to 40-5-209. ...

The district court must use the child support guidelines in effect at the time it makes its decision. Marriage of Anderson, 859 P.2d at 256.

The court must initially determine, however, there has been “a showing of changed circumstances so substantial and continuing as to make the terms unconscionable.” Section 40-4-208(2)(b)(i), MCA.

The District Court stated as follows:

Debra has proven that there are substantial and continuing changes in circumstances such that the original award of $200 a month child support to her is unconscionable. The Agreement of the parties was made when Jason was 12 years of age. By the time Debra’s Motion was filed he was nearly 14 and he is now 17. The funds that Debra would have envisioned would have been used from her earnings to provide for Jason have had to be redirected to pay and discharge the Beneficial loan Ken had agreed to pay. Within months after he filed his Motion he had taken on work at the Great Falls Tribune and at Procraft and earns substantial sums from both employments. He is acquiring a shop for $22,500.00 and has at least $5,000.00 equity in it. Any inability he had to not pay support for a time was brought upon himself. Debra is entitled to an increase in child support of $200 a month, for a total of $400.00 per month, retroactive to December, 1990, payable through the end of December, 1992. Commencing January, 1993, she is entitled to an increase of $275.00 a month for total support of $425.00 [sic] per month. She is also entitled to interest on the retroactive amounts.

Although the court’s conclusion of law incorrectly states $425 per month, the judgment clearly orders a payment of $475 per month. The court attached calculations to its decision which had been prepared by Debra that reflect Kenneth’s ability to pay at least $288 a month child support in 1992 based on the parties’ 1991 income, and at least $353 a month beginning in January of 1993 based on 1992 income figures. Kenneth’s argument that the court used the guidelines in effect prior to July 30, 1992 for the award of $400 through the end of 1992 and the higher award of $475 per month after that date is inapplicable here; the difference in the award beginning in January of 1993 is supported by Kenneth’s change in income in 1992 and his purchase of a shop building making it possible for him to earn self-employment income in addition to his wages and contract income.

Because Debra’s guideline calculations were attached to the court’s order, Kenneth translates the amount of support awarded over the calculated amounts as maintenance or dischargeable debt; Debra’s calculations, however, are the only calculations which include the income attributable to Kenneth as well as the appropriate tax liability. The District Court made no indication whatsoever that the increase in support was a substitute for maintenance or discharge-able debt.

The child support guidelines are termed “guidelines” and as such are not set in stone. Moreover, the District Court had the discretion to consider other matters affecting the parties as well as their income. Child support awards necessarily require a district court to consider numerous factors in addition to the amount of income of each parent.

The courts can also impute income to a party based on the particular facts of a case. In this casé, there was substantial evidence presented which indicated that Kenneth had not reported all income from self-employment during the years the parties were married. Debra did not include imputed income in calculating her proposed support payment under the guidelines. However, evidence was introduced that Kenneth had more than twenty vehicles — many belonging to others — at his shop at the time of the trial in this matter. The District Court noted:

THE COURT:. There is another old aphorism that says. — Patrick Henry said, “I know no better way of judging the future than by the past.” But you have got to have proof.
... She suspects he did. And he probably did. Even now he has got 20 cars over there on the lots, and he probably is remodeling them, and refurbishing, and reselling them, and making a lot more profit than would appear.

The District Court’s findings justify ¡an award of support in excess of the amount calculated under the guidelines. There is evidence of an increased need in support as Jason, although still a minor, was attending college at the time of the trial.

Kenneth also contends that the District Court erred by including income from Kenneth’s contracts with the Great Falls Tribune in computing support. The 1992 guidelines state as follows:

If a person with a subsequent family has income from overtime or a second job, that income is presumed to be for the use of the subsequent family, and is not included in gross income for the purposes of determining support for a prior family. The presumption may be rebutted upon a showing that the additional income is discretionary.

46.30.1508(3), ARM. Evidence introduced at trial indicated that Kenneth did not take on extra jobs after acquiring his second family and that he was working all these jobs prior to his marriage to his second wife. He provided no testimony that the income from the second and third jobs was necessary for the support of his second family although he testified that his stepson was handling the newspaper delivery job and gamering the income from that contract. Kenneth did not produce documentation to this effect and, in fact, his tax returns show that he receives the income from this contract with the Tribune.

Kenneth farther testified that this income would be used for support of his stepson in any case. We note that Kenneth has no obligation to support his stepchildren; however, he has an obligation to support his son Jason, from his marriage to Debra. See In re the Marriage of Carlson (1984), 214 Mont. 209, 218, 693 P.2d 496, 501. Although Kenneth attempted to adopt one of his stepchildren based on her father’s nonpayment of support, his petition for adoption was denied. We conclude that any money Kenneth uses to support his stepchildren may be classed as discretionary income for purposes of this case.

Contrary to Kenneth’s contentions, the 1992 guidelines allow the court to include income from his second and third jobs when computing support. The inclusion of this income is supported by the findings of the District Court. The court enumerated extensive findings which include the following:

[Finding No. IV.] Although Ken testified dissolution of the marriage had a negative effect on him emotionally, which affected his business, his self employment income in 1988 and 1989 was significantly greater than it had been in 1987 or before .... [Finding No. VI.] During much of the time Ken was reporting low amounts of income from his self-employment in the early to mid-1980’s the parties were refurbishing the family residence. Ken testified he did work for individuals who in turn worked on the home on a trade-out basis. The value of the work performed on the home was not reflected in the parties’ income. Ken also had trade-out arrangements with others. It is not possible to determine the value of this trade-out work because there are no records reflecting what the trade-outs may have been. However, he testified he did $1,000 of trade-out work for fees Attorney Brett Asselstine charged him when Asselstine represented Ken in a 1992 adoption proceeding. He also testified he had done $3,000 to $4,000 of work for his attorney in this proceeding to pay a portion of her fees.
[Finding No. XVIII.] ... Based on [Ken’s] experience and expertise, and the availability of jobs, he should have been able to find employment in 1989 or 1990 as an auto body repairman within three months after starting to look for such work, and would have earned no less than $11.50 an hour.
[Finding No. XXIII.] ... The form 1099 issued by the Tribune was issued to Ken and the contract for the route is in Ken’s name. Ken testified he was uncertain as to what he was going to do with respect to the route after Nathan graduated from school in 1994. Even if N athan was receiving some of the income from this contract work Ken testified it was going to pay sums that otherwise would have had to have been provided for Nathan.
[Finding No. XXV] Ken remarried in October, 1991. At that time he was substantially delinquent in his child support obligation for Jason. He also knew his present wife, Elisa, could not work, that she had two children that would be living with them, that she owed various debts, and that her children weren’t receiving child support.
[Finding No. XXXIII.] Jason has just turned age 17. He is 5 years older than when the marriage was dissolved and it costs more to care for him now than it did when the marriage was dissolved. This together with the additional sums Debra has had to pay out to secure the home for them increased her need for child support beyond what the need was when the marriage was dissolved.

In the Conclusions of Law, the District Court stated:

[Conclusion No. I.]... The Court believes Ken has not and does not report all the income he earns from self-employment, but even so his 1988 and 1989 income tax returns reflect that he was earning more after the marriage was dissolved than before. Even if his business commenced to fail he could have secured work as an auto body repairman in Great Falls for no less than $11.50 an hour, in a short time, which is imputed to him, and in fact, he had obtained a job for $11.50 an hour at Bison Motors, which he apparently did not take. By July 1, 1991, he was working at Procraft for $13.50 an hour. He also testified in another proceeding that he was able to pay the support for Jason, but didn’t do so because of a dispute with Debra. If anything his ability to pay child support was only temporarily changed and a temporary change in circumstances is not sufficient to justify modification of child support. Section 40-4-208, M.C.A.; In Re Marriage of Forsman, [1987], 229 Mont. 411, 747 P.2d 861.

The record supports Debra’s increased need for support based on her having to pay debts assigned to Kenneth from as far back as early 1990. In 1991, Debra paid the past due amounts to the IRS and MDOR and is obligated to repay her aunt for money she borrowed to pay some of the taxes. Further, Debra testified she had borrowed $3,000 against her Tribune retirement plan to use for living expenses for herself and Jason. Clearly Debra has used and continues to use money for Kenneth’s debts and for tax liabilities which otherwise would have gone to the support of Jason. Moreover, had the taxes been filed on time as Debra thought they had been, the penalties and interest — substantial sums — would not have been assessed. According to the record, this was entirely Kenneth’s fault. The support increase is retroactive to December of 1990. Although the District Court noted that the support obligation for the year 1991 should be based on the child support guidelines that were in effect at that time, there is no evidence that the amount awarded is actually calculated on previous guidelines. In fact, the District Court proceeded on the premise that the amount of the guidelines was a discretionary recommendation which he did not have to follow. On this basis, we conclude the amount awarded for support can be justified under either set of guidelines.

Kenneth also contends that the court erred by miscalculating his equity in his shop property. The record indicates that Kenneth paid a $2,500 down payment on this property and another $2,500 balloon payment and that he is paying in excess of $250 per month on this property. The second $2,500 payment was made with money borrowed from his employer and some of that was not repaid at the time of trial. The entire $5,000 in equity was included as income-producing property in the calculations made by Debra which were attached to the court’s order. The total annual income attributed to Kenneth from the $2,500 which was borrowed from his employer is approximately $175. According to the facts of this case, we conclude this amount is insignificant for a determination of support.

Finally, Kenneth argues that Debra’s retirement accounts should have been included as income-producing property in determining the amount of support under the guidelines. Debra has approximately $40,000 in two retirement accounts. One of these accounts is through her employer, the Great Falls Tribune; the other is with Buttreys, a previous employer. She has taken out a loan for $3,000 against the Tribune account and is making payments on that loan. We conclude these accounts are not properly included as income-producing property.

Kenneth’s argument that these accounts should be included as income-producing property based on our recent decision in In re the Marriage of Hunt (1994), 264 Mont. 159, 870 P.2d 720, 729-30, is misguided. In Marriage of Hunt, the husband argued that the wife’s contributions to her unqualified retirement account could not be deducted from income; here Kenneth contends that all contributions to date should be included as income-producing property. He has not made the argument made in Marriage of Hunt that Debra has contributions which should be included in gross income.

Moreover, Kenneth did not argue in the trial court that these were not qualified retirement accounts. Debra had no notice that he would argue this on appeal and thus did not submit evidence on this issue. An issue will not be reviewed if it is raised for the first time on appeal. Erler v. Erler (1993), 261 Mont. 65, 73, 862 P.2d 12, 18. Therefore, we conclude that Kenneth is precluded from making this argument on appeal to this Court.

Section 40-4-204(3)(a), MCA, provides that the amount of support awarded using the applicable standards and guidelines is presumed to be adequate and reasonable unless the court finds by clear and convincing evidence that the application of them is unjust to the child or to any of the parties or is inappropriate in the case. We hold the District Court properly exercised its discretion in increasing the amount of child support that Kenneth must pay for the support of Jason.

ISSUE III.

Did the District Court abuse its discretion in granting judgment to Debra for 100 percent of the parties’ income tax liability she was required to pay subsequent to the dissolution of their marriage?

The tax returns for tax years 1984,1986 and 1987 were never filed by Kenneth during the parties’ marriage, apparently because there was money due for those periods. The return for 1985 was timely filed and a refund received by the parties during the marriage. Kenneth had control of the returns after he received them from the parties’ accountant and after Debra signed them. The relevant evidence in the record supports the District Court’s finding that Debra was unaware at the time of the dissolution in 1988 that the tax returns had not been filed and taxes had not been paid.

Debra testified that she would have filed separate returns for those years had she known they were not filed. This testimony is supported by further evidence that her employer withheld sufficient tax from her salary to cover her separate tax liability for the three years. Moreover, Debra did not include unpaid tax liabilities as part of the Agreement between the parties.

Further, Kenneth did not notify Debra that he was going to file the returns late prior to filing them in January of 1991. Debra’s first notice came when she received the first assessment notices from the IRS in late February of 1991. If Kenneth had notified Debra or if he had filed separately, Debra would have had the option of filing separate returns for those years, and since she had had enough withheld from her salary to cover her separate tax obligations, she would not have owed any tax personally.

The Agreement contains the following clause:

Wife represents and warrants to Husband she has not incurred any debts or made an (sic) contracts of which Husband may be unaware and for which Husband or his estate may be liable, and Wife will not incur any such debts or make any such contracts. If Wife violates this provision and as a result thereof Husband is obliged to make a payment or payments to others, he shall have the right to recover the same from Wife together with interest at the highest rate allowed by law, and, if reasonably necessary, he shall also be entitled to any costs of collection, including reasonable attorney’s fees. Husband makes the same representations and warranties to Wife as Wife has hereinabove made to Husband and assumes the same obligations in the event Wife must make a payment or payments to others by reason of debts assumed by Husband hereunder.

It also includes the following “Hold Harmless Agreement”:

Wife and Husband agree each with the other to defend, indemnify and save each other harmless of, from and against any and all loss, damage, costs and expenses, including reasonable attorney’s fees, which either of them may hereafter suffer, incur, sustain or be subjected to as a result of any and all defaults in connection with this agreement and payment of any of the debts and obligations assumed by them.

Although the unpaid tax liabilities to the IRS and MDOR should have been included in the Agreement, they were not included based on Kenneth’s silence. Because Kenneth withheld this information, the debt became larger. When he finally filed the returns, he had temporarily insulated himself from having to pay the debts. Debra, on the other hand, was in a position whereby the IRS and MDOR could collect the taxes, penalties and interest from her. In all likelihood, Kenneth was aware of this and his actions may have been intentional, judging from the acrimony between the parties. When the tax debts had been paid by Debra, Kenneth began his employment with Procraft.

Clearly, the Agreement covers a situation such as this where a debt is not included as part of a property settlement agreement despite the knowledge and representation of one of the parties. We conclude the Agreement provides for indemnification by the defaulting party and speaks for itself.

District courts working in equity are given great discretion in dividing the marital estate in order to achieve a fair distribution of marital property using reasonable judgment and relying on common sense. In re the Marriage of Kimm (1993), 260 Mont. 479, 483, 861 P.2d 165, 168. Allocating the entire tax debt to Kenneth is reasonable under the facts of this case. We conclude the District Court’s findings which support the allocation of the entire tax liability to Kenneth are not clearly erroneous and the court did not abuse its discretion in determining that Kenneth should be responsible for the entire tax liability for the years 1984,1986 and 1987 and in granting a judgment in favor of Debra for the joint taxes, penalty and interest she has paid subsequent to the dissolution.

We hold the District Court did not err or abuse its discretion in granting judgment to Debra for all income tax liability she was required to pay subsequent to the dissolution of the parties’marriage.

ISSUE IV.

Did the District Court abuse its discretion in refusing to admit certain evidence offered by Kenneth?

Kenneth contends that certain information should have been admitted by the District Court to demonstrate that the Agreement unfairly divided the marital property. That Agreement was signed by the parties in May of 1988 prior to the dissolution of their marriage in June of 1988. Kenneth’s reason for trying to introduce this information is as follows:

MS. REBECK:. If I might, there is an issue that is missing from the agreement, and that is the income tax responsibility. And it’s our position when something is missing from that agreement, this Court has to construe whose responsibility that is.
And to do that, the Court needs to understand the relative positions of the parties at the time the agreement was entered into, and who got what so you can construe the responsibility for the income tax.

The court denied admission of any evidence pertaining to the circumstances at the time of the dissolution, repeatedly stating that “the agreement speaks for itself.”

The Agreement contains no reference to unfiled tax returns or tax liability. Debra’s attorney prepared the Agreement which Kenneth signed. Kenneth represented that he had contacted an attorney prior to signing the Agreement and that it covered all assets and liabilities of the parties at that time. For reasons unknown, he knowingly withheld information about liabilities which should have been included as part of that agreement.

Rulings on the admissibility of evidence are within the sound discretion of the trial court and will not be overturned on appeal absent an abuse of discretion. Zimmerman v. Robertson (1993), 259 Mont. 105, 110, 854 P.2d 338, 341. Evidence which is not relevant is inadmissible. Rule 402, M.R.Evid. We conclude the District Court properly refused to admit evidence in this proceeding about the circumstances at the time of the dissolution. We further conclude that the court’s statement that the agreement speaks for itself is a determination that the evidence sought to be admitted was not relevant to this proceeding.

We hold the District Court properly exercised its discretion in refusing to accept evidence pertaining to circumstances at the time of the dissolution.

ISSUE V.

Did the District Court err in adopting Debra’s proposed findings of fact verbatim?

Kenneth contends that the findings of fact signed by the District court are a “verbatim replication” of the findings proposed by Debra. The District Court, in fact, did adopt Debra’s proposed findings with very little change. We note also that the court stated during the trial:

But it appears to me there isn’t much dispute about the facts of this case. Most of those facts can be stipulated to. That’s why I don’t know why we are having all this testimony.

This Court has repeatedly stated that a trial court’s findings of fact, although verbatim from or similar to those proposed by a party, will be affirmed if they are supported by substantial credible evidence in the record. In re the Marriage of Bolt (1993), 259 Mont. 54, 57-58, 854 P.2d 322, 324. Kenneth does not point to findings which are inaccurate; rather, he claims there are numerous factual findings which can be made from the evidence which were not listed in the District Court’s order. We conclude the District Court’s findings are supported by substantial credible evidence in the record.

We hold the District Court did not err by adopting Debra’s proposed findings of fact almost verbatim.

ISSUE VI.

Did the District Court err in awarding attorney’s fees and costs to Debra?

Kenneth also contends that the District Court erred by awarding attorney’s fees and costs to Debra because there was no clear winner in the case and also because there is no evidence to show that Debra is without resources to pay her counsel. Kenneth’s arguments on this issue have no merit. The award in this case was not based on § 40-4-110, MCA, as Kenneth contends; rather, the Agreement clearly provides for an award of attorney’s fees and costs under the circumstances present here. It provides:

Wife and Husband agree each with the other to defend, indemnify and save each other harmless of, from and against any and all loss, damage, costs and expenses, including reasonable attorneys fees, which either of them may hereafter suffer, incur, sustain or be subjected to as a result of any and all defaults in connection with this agreement and payment of any of the debts and obligations assumed by them.

Clearly this provides for attorneys fees and costs to be awarded to Debra in connection with Kenneth’s conduct and misconduct subsequent to the dissolution of marriage. The District Court based the award of attorney’s fees and costs on the contract between the parties including the above-quoted provision and the provision by which Kenneth represented that there were no other debts of the marriage.

We hold the District Court correctly awarded attorney’s fees and costs to Debra.

Affirmed.

JUSTICES HARRISON, HUNT, and GRAY concur.

JUSTICE NELSON

specially concurs and dissents.

I concur with the Court’s opinion on all issues except Issue 2. On that issue I would remand and require application of the 1992 guidelines, and if the District Court awards support in excess of those guidelines, I would require proper justification in the court’s findings and conclusions. In that regard I would also hold that the District Court (a) was correct in including Ken’s earned income from his second and third jobs. Section 46.30.1508(3), ARM; (b) was correct in excluding Debra’s retirement fund, but in error in not including her monthly contribution to that fund in her gross income, unless there is evidence that Debra is contributing to an IRS-approved plan. Section 46.30.1516(1), ARM; and (c) erred in including Ken’s equity in his shop building since it was a performing asset. Section 46.30.1514, ARM.


source: Caselaw Access Project

author: JUSTICE HARRISON JUSTICE HUNT,

license: Public Domain

text:
    ELIZABETH ANNE RUCINSKY, Plaintiff and Appellant, v. RAYMOND A. HENTCHEL, Defendant and Respondent.
    No. 94-153.
    Submitted on Briefs July 6, 1994.
    Decided September 15, 1994.
    51 St.Rep. 887.
    266 Mont. 502.
    881 P.2d 616.

      For Appellant: Robert D. Morrison; Morrison Law Firm, Havre.
    For Respondent: Robert J. Vermillion; Smith, Walsh, Clarke & Gregoire, Great Falls.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Elizabeth Ann Rucinsky (Rucinsky) appeals the order of the Twelfth Judicial District Court, Hill County, dismissing her invasion of privacy action pursuant to § 27-2-204, MCA. We affirm.

The sole issue presented is whether the District Court erred in granting Raymond Hentchel’s (Hentchel) motion for summary judgment on the basis that the applicable three-year statute of limitations period began to run in 1988, rather than 1992, thereby barring Rucinsky’s cause of action.

From 1986 to 1988, Rucinsky and Hentchel were in a dating relationship. In January 1988, Hentchel met Rucinsky at the Great Falls airport to drive her home to Havre after an out-of-state business trip. Rucinsky testified that, on the ride home, Hentchel was very upset, accused her of seeing other men, and told her that he had “bugged,” or planted a listening device in her phone and her bed, and had someone watching her through her bedroom window. Rucinsky requested to hear the tape recordings of her phone conversations, and Hentchel agreed to play them for her, however neither party pursued the issue further. Rucinsky testified she did not take Hentchel seriously at the time because all of his Claims, taken together, seemed ludicrous and exaggerated. Several weeks later Hentchel and Rucinsky ended their relationship.

In January or February, 1992, Julie, Hentchel’s wife at that time, called Rucinsky to inform her that she had discovered cassette tapes of Rucinsky’s phone conversations iii a locked drawer. According to Julie, some tapes were labeled with Rucinsky’s name while others were labeled with Julie’s name, indicating that Hentchel had recorded both Rucinsky’s and Julie’s phone conversations. In his deposition, Hentchel admitted that during their relationship he had recorded some of Rucinsky’s phone conversations. He also confessed to recording Julie’s phone conversations for several months after they were married.

On November 23, 1992, Rucinsky filed a complaint in District Court claiming that Hentchel violated her privacy by taping her telephone conversations. The District Court granted Hentchel’s motion for summary judgment holding Rucinsky’s action was barred by the three-year statute of limitations. Rucinsky appeals.

A motion for summary judgment is properly granted only when there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), M.R.Civ.R The party opposing the summary judgment is entitled to have any inferences drawn from the factual record resolved in her favor. Boylan v. Van Dyke (1991), 247 Mont. 259, 266, 806 P.2d 1024, 1028.

Pursuant to § 27-2-204, MCA, the applicable statute of limitations period for an action on a liability not founded upon an instrument in writing is three years. Pursuant to § 27-2-102(2), MCA, the period of limitation begins when the cause of action accrues. Section 27-2-102(l)(a), MCA, states in relevant part that a cause of action accrues when all its elements exist or have occurred, the right to maintain an action is complete, and a court is authorized to accept jurisdiction.

An invasion of privacy cause of action is defined as a “wrongful intrusion into one’s private activities in such a manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities.” Sistok v. Northwestern Telephone Systems, Inc. (1980), 189 Mont. 82, 92, 615 P.2d 176, 182. Hentchel contends that the statutory period began in 1988 when he first informed Rucinsky of the recordings. Rucinsky contends that a reasonable person would not have taken Hentchel seriously at that time and, therefore, the statutory period did not begin until 1992 when the recordings were discovered. Until that time, Rucinsky argues, there was insufficient evidence to support a “right to maintain an action,” pursuant to § 27-2-102(l)(a), MCA.

In 1988, Hentchel confessed to Rucinsky that he was tapping her phone. In addition to the confession, Rucinsky testified that there were times when Hentchel mysteriously “appeared” on the scene even though Rucinsky had not previously informed him of her intended plans. Rucinsky testified that her suspicions were further intensified when Hentchel recited one of her private conversations verbatim, but she concluded that perhaps he was merely listening at the door.

Phone tapping of private, confidential conversations constitutes a wrongful intrusion into one’s private activities in a manner likely to cause outrage, mental suffering, shame, or humiliation to an ordinary person. See Sistok, 615 P.2d at 182; LaCrone v. Ohio Bell Telephone Co. (Ohio Ct. App. 1961), 182 N.E.2d 15; Housh v. Peth (Ohio 1956), 133 N.E.2d 340. That Rucinsky chose not to believe Hentchel’s confession does not negate the “existence of the elements” of her cause of action in 1988. Section 27-2-102(l)(a), MCA. Police testimony and the record demonstrate that in 1988 Rucinsky was suspicious or had reasonable grounds to be suspicious that her privacy had been invaded. We conclude that Rucinsky had the “right to maintain her action” in 1988 when she was put on notice that Hentchel taped her conversations. The right to the cause of action began regardless of whether she was convinced of the success of such an action.

Alternatively, Rucinsky contends that Hentchel’s fraudulent concealment tolled the statutory period until 1992 when the tapes actually were discovered. The doctrine of fraudulent concealment, as recognized in Montana, tolls the statute of limitations until the cause of action is discovered or could have been discovered through due diligence. Knight v. City of Missoula (1992), 252 Mont. 232, 239, 827 P.2d 1270, 1274; citing Johnson v. St. Patrick’s Hospital (1966), 148 Mont. 125, 129, 417 P.2d 469, 471. Section 27-2-102(3), MCA, is essentially a codification of the common law doctrine of fraudulent concealment as it applies to the tolling of the statutory period:

The period of limitation does not begin on any claim or cause of action for an injury to person or property until the facts constituting the claim have been discovered or, in the exercise of due diligence, should have been discovered by injured party if:
(b)... the defendant has taken action which prevents the injured party from discovering the injury or its cause.

Section 27-2-102(3), MCA.

Rucinsky contends that the recordings were the only reliable evidence for her invasion of privacy claim, they were fraudulently concealed by Hentchel in his locked drawer until discovered by Julie in 1992, and, therefore, the statutory period was tolled until that discovery. We disagree.

In 1988, when Hentchel confessed to the phone tapping, Rucinsky declared that she would like to hear the tapes “sometime.” Hentchel responded that he would play them for her. Based on these facts, Rucinsky’s argument that Hentchel concealed the tapes fails because he told her he had them and agreed to her request to hear them. Within several weeks, Hentchel and Rucinsky ended their relationship. Hentchel eventually married Julie, and, in their home, he stored the tapes in his private, locked drawer. Hentchel did not conceal the tapes; he maintained their control. His actions do not support concealment as Rucinsky argues.

Accordingly, the District Court was correct in granting Hentchel’s motion for summary judgment, thereby dismissing Rucinsky’s invasion of privacy cause of action.

We affirm the District Court.

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

JUSTICE HUNT,

dissenting.

I dissent from the majority opinion. Rucinsky first learned of the telephone tapping from Hentchel in 1988, during a heated discussion about her alleged infidelity. During this discussion, Hentchel also claimed that he had someone watching Rucinsky through her bedroom window, and that he had planted a listening device in her mattress. Rucinsky asked to hear the telephone tap tapes. Although Hentchel agreed to produce the tapes, he never did. Likewise, no one was discovered watching Rucinsky throughher bedroom window, and no listening device was discovered in her mattress. As a result, Rucinsky did not take Hentchel’s claims seriously. However, four years later, on February 8, 1992, Hentchel’s wife, Julie, discovered the tapes hidden under lock and key in a dresser drawer. Julie Hentchel then shared her discovery with Rucinsky. Four years after Hentchel made his claims, Rucinsky had proof that the tapes existed and that her privacy had been invaded.

On November 23, 1992, within nine months of hearing the tapes for the first time, Rucinsky filed her complaint claiming Hentchel violated her privacy by recording her phone conversations.

Pursuant to Rule 11, M.R.Civ.P., a complaint must be “well grounded in fact.” Rucinsky’s complaint could not have possibly been well grounded in fact had she filed within the three year period from the time Hentchel claimed he had recorded her telephone calls, spied on her bedroom, and bugged her mattress. However, the complaint Rucinsky filed on November 23, 1992, was clearly well grounded in fact, given Julie Hentchel’s discovery.

For the purpose of statutes of limitation, a cause of action accrues when all the elements of the cause exist and the right to maintain an action on the cause is complete. Section 27-2-102(l)(a), MCA. Invasion of privacy constitutes a wrongful intrusion into private activities that outrages a person of ordinary sensibilities and causes mental suffering, shame, or humiliation. Sistok v. Northwestern Telephone Systems, Inc. (1980), 189 Mont. 82, 92, 615 P.2d 176, 182. The elements of this cause of action came into existence when Rucinsky heard the tapes for the first time on February 8, 1992. Prior to this time Rucinsky understandably dismissed Hentchel’s claim of phone tapping, as she did his other false claims.

A statute of limitations is tolled when a defendant fraudulently conceals the facts constituting the claim or prevents the injured party from discovering the injury or its cause. The statute remains tolled until the cause of action is discovered or could have been discovered through due diligence. Section 27-2-102(3)(a) and (b), MCA; see also Knight v. City of Missoula (1992), 252 Mont. 232, 239, 827 P.2d 1270, 1274; Johnson v. St. Patrick’s Hospital (1966), 148 Mont. 125, 129, 417 P.2d 469, 471. Although Hentchel promised to deliver the tapes to Rucinsky in 1988, he failed to deliver. Instead, he kept the tapes locked away and concealed from not only Rucinsky, but also from his wife, whose phone conversations he had also recorded. By failing to deliver the tapes as promised, and by concealing the tapes under lock and key thereafter, Hentchel prevented Rucinsky from discovering the injury or its cause. This constitutes fraudulent concealment sufficient to toll the statute of limitations until February 8, 1992.

I would reverse the District Court’s granting of Hentchel’s motion for summary judgement.

JUSTICE TRIEWEILER joins in the foregoing dissent.


author: JUSTICE TRIEWEILER

text:
    ARLIS REEVERTS, Claimant and Appellant, v. SEARS, ROEBUCK & COMPANY, Employer, Respondent, and Cross-Appellant.
    No. 93-497.
    Submitted on Briefs May 12, 1994.
    Decided September 16, 1994.
    51 St.Rep. 894.
    266 Mont. 509.
    881 P.2d 620.

      For Appellant: Tom L. Lewis and Andrew D. Huppert, Great Falls.
    For Respondent: Michael C. Prezeau, Garlington, Lohn & Robinson, Missoula.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Claimant Arlis Reeverts sustained a work-related injury to her back on March 16, 1984, which resulted in substantial permanent physical impairment. Reeverts’ employer, Sears, Roebuck & Company, paid her an indemnity benefit based on her impairment rating, but no other partial disability benefits for this work-related injury were paid. On April 6, 1989, while working for the same employer, she suffered a subsequent industrial injury which caused her total disability. The Workers’ Compensation Court awarded Reeverts 500 weeks of permanent partial disability benefits pursuant to § 39-71-703, MCA (1983), for the injury sustained in 1984, but suspended payment of these benefits until her entitlement to total disability benefits for the subsequent injury terminated. The court also awarded Reeverts attorney fees and costs, but denied her request for a 20 percent penalty pursuant to § 39-71-2907, MCA (1983).

We affirm in part and reverse in part.

The following issues are before this Court:

1. Did the Workers’ Compensation Court err when it concluded that Reeverts is entitled to 500 weeks of permanent partial disability benefits pursuant to § 39-71-703, MCA (1983), for her 1984 injury?

2. Did the Workers’ Compensation Court err when it concluded that Reeverts’ permanent partial disability benefits should not be paid concurrently with her permanent total disability benefits pursuant to § 39-71-737, MCA (1983)?

3. Did the Workers’ Compensation Court err when it refused to award a 20 percent penalty pursuant to § 39-71-2907, MCA (1983)?

Arlis Reeverts began working for Sears, Roebuck & Company in 1965. At the time of her injury in 1984, Reeverts was 53 years old and was earning $6.31 per hour working in Sears’ Great Falls store in the drapery department.

On March 16, 1984, Reeverts severely injured her back while loading freight onto a freight car. Her injury resulted in spinal surgery with a lumbar-sacral fusion and required a lengthy period of recovery. Based on her physician’s permanent physical impairment rating of 15 percent, Sears paid Reeverts an impairment award. No other partial disability benefits were paid.

On July 31,1985, Reeverts was released by her physician to return to work with the restriction that she avoid heavy lifting. As a result, she could no longer perform her previous job duties and Sears placed her in its mail order department where she was responsible for taking catalog orders over the telephone. However, in April 1989, the new job Reeverts had been given with modified duties was eliminated, and she was transferred back to her former job in the drapery department. On the first day that she resumed her former duties, she re-injured her back and was subsequently declared permanently totally disabled. At the time of this injury on April 6, 1989, Reeverts was approximately 58 years old and was earning $7.83 per hour.

Although Sears accepted liability for payment of total disability benefits as a result of the 1989 injury, Reeverts and Sears were unable to agree on her entitlement to partial disability benefits for the 1984 injury. Reeverts, therefore, filed a petition with the Workers’ Compensation Court in an effort to recover those benefits. Atrial was held on December 2, 1992, before Hearing Examiner Robert J. Campbell. The evidence consisted of Reeverts’ medical records, and testimony by Reeverts, Sears’ claims adjuster, and two vocational consultants. In an order issued on June 7,1993, the Workers’ Compensation Court adopted the hearing examiner’s proposed findings of fact, conclusions of law, and judgment. The court concluded that Reeverts had suffered a permanent impairment to her earning capacity as a result of the 1984 injury and was entitled, pursuant to § 39-71-703, MCA (1983), to permanent partial disability benefits. However, the court concluded that her entitlement to these disability benefits terminated when she was subsequently injured on April 6, 1989. Based on this conclusion, Reeverts was awarded 117 weeks of partial disability benefits attherate of $88.84per week. The court further awarded Reeverts reasonable costs and attorney fees, but did not rule on her request for a 20 percent penalty pursuant to § 39-71-2907, MCA (1983).

In an amended judgment issued on August 31, 1993, the court reversed its prior determination that Reeverts’ entitlement to permanent partial disability benefits terminated due to her subsequent injury, and concluded that Reeverts was entitled to 500 weeks of disability benefits as a result of her 1984 injury. However, the court ordered that the benefits which had accrued prior to her second injury were payable in a lump sum and “[t]he remaining permanent partial disability benefits are payable bi-weekly after claimant reaches 65 years of age, if her disability results from her March 16, 1984 injury.” As a basis for its determination that payment of partial disability benefits for the 1984 injury should be suspended until Reeverts reached the age of 65 and total disability benefits for the 1989 injury were terminated, the court relied on § 39-71-737, MCA (1983), which states “[c]ompensation shall run consecutively and not concurrently, and payment shall not be made for two classes of disability over the same period.”

Finally, the court ordered that Reeverts was not entitled to a 20 percent increase in her award as a penalty.

Reeverts appeals the court’s conclusion that payment of partial disability benefits for the 1984 injury is suspended until the time that her total disability benefits for the 1989 injury terminate. She also appeals the court’s refusal to award a 20 percent penalty pursuant to § 39-71-2907, MCA (1983). Sears cross-appeals the court’s conclusion that Reeverts is entitled to permanent partial disability benefits for the injury sustained in 1984.

STANDARD OF REVIEW

The standards employed by this Court when reviewing a Workers’ Compensation Court decision are well established. This Court will not substitute its judgment for that of the Workers’ Compensation Court and will uphold its findings if there is substantial evidence in the record to support them. Houts v. Kare-Mor, Inc. (1993), 257 Mont. 65, 68, 847 P.2d 701, 703; Kraft v. Flathead Valley Labor and Contractors (1990), 243 Mont. 363, 365, 792 P.2d 1094, 1095. We will uphold the court’s conclusions of law if its interpretation of the law is correct. Chapman v. Research Cottrell (1993), 259 Mont. 329, 333, 856 P.2d 234, 237. Finally, the law in effect at the time of the injury establishes the benefits to which a claimant is entitled. Buckman v. Montana Deaconess Hospital (1986), 224 Mont. 318, 321, 730 P.2d 380, 382; Chagnon v. Travelers Insurance Company (1993), 259 Mont. 21, 25, 855 P.2d 1002, 1004.

ISSUE 1

Did the Workers’ Compensation Court err when it concluded that Reeverts is entitled to 500 weeks of permanent partial disability benefits pursuant to § 39-71-703, MCA (1983) for her 1984 injury?

Sears contends that the court erred when it concluded that Reeverts was entitled to 500 weeks of permanent partial disability benefits because the injury she suffered in 1984 did not result in an actual diminution of her earning capacity. It is Sears’ contention that, under the pertinent statute in effect at the time of Reeverts’ first injury, there is no entitlement to benefits unless the claimant can prove that an actual diminution in earning capacity results from a disabling injury. Sears bases its argument solely on the fact that with normal annual salary increases, Reeverts earned more after returning to work for Sears than at the time of her injury. Because there was no actual decrease in Reeverts’ actual earnings, Sears contends that she was not entitled to benefits under § 39-71-703, MCA (1983).

At the time of Reeverts’ injury, § 39-71-703, MCA (1983), read in pertinent part:

(1) Weekly compensation benefits for injury producing partial disability shall be 66 2/3% of the actual diminution in the worker’s earning capacity measured in dollars, subject to a maximum weekly compensation of one-half the state’s average weekly wage.

We have considered this provision on several occasions and have made clear that “earning capacity,” for workers’ compensation purposes, is not determined by merely comparing pre-injury wages with post-injury wages. Sedlack v. Bigfork Convalescent Center (1988), 230 Mont. 273, 277, 749 P.2d 1085, 1087. Rather, a determination of an injured worker’s earning capacity includes the consideration of such factors of age, occupation, skills and education, previous health, number of productive years remaining, and degree of physical or mental impairment. Sedlack, 749 P.2d at 1087-88; Hurley v. Dupuis (1988), 233 Mont. 242, 246-47, 759 P.2d 996, 999. The correct test for loss of earning capacity, cited time and again by this Court, is whether the industrial accident has caused “a loss of ability to earn in the open labor market.” Shaffer v. Midland Empire Packing Co. (1953), 127 Mont. 211, 213-14, 259 P.2d 340, 342; Fermo v. Superline Products (1978), 175 Mont. 345, 348, 574 P.2d 251, 253; Hafer v. Anaconda Aluminum Co. (1982), 198 Mont. 105, 109-10, 643 P.2d 1192, 1195, aff’d on remand (1984), 211 Mont. 345, 684 P.2d 1114.

For Sears to argue that a claimant must demonstrate an actual wage loss to be entitled to partial disability benefits pursuant to § -703 is a notion that has been soundly and repeatedly rejected by this Court. We find Sears’ attempt to argue otherwise without merit.

In this instance, the record demonstrates that the hearing examiner and the Workers’ Compensation Court considered the appropriate factors for a determination of whether Reeverts suffered a permanent loss of earning capacity due to her 1984 injury. Although there was conflicting vocational evidence regarding Reeverts’ ability to be competitive in an open labor market, it is clear that Reeverts’ vocational expert’s testimony demonstrating her loss of earning capacity was more persuasive to the trier of fact and its conclusion is clearly supported in the record.

Furthermore, Reeverts’ situation speaks for itself. At the time that her healing period ended in 1985, she was a 55-year-old woman with a high school education but no specialized training. Her only job experience was her history of employment at Sears where her duties consisted of handling freight weighing up to 75 pounds, and other strenuous activities which she could no longer perform. It does not take a vocational consultant to realize that in her condition at her age, her opportunities for employment in the open labor market were substantially reduced, if not totally eliminated.

We conclude that there is neither a basis to alter the court’s findings regarding Reeverts’ earning capacity, nor its conclusion that she is entitled to 500 weeks of permanent partial disability benefits pursuant to § 39-71-703, MCA (1983), for the injury sustained in 1984. We affirm the judgment of the Workers’ Compensation Court in this respect.

ISSUE 2

Did the Workers’ Compensation Court err when it concluded that Reeverts’ permanent partial disability benefits should not be paid concurrently with her permanent total disability benefits pursuant to § 39-71-737, MCA (1983)?

Although the Workers’ Compensation Court correctly determined that Reeverts was permanently partially disabled from her original injury and entitled to 500 weeks of permanent partial disability benefits, it then held that her entitlement to those benefits was terminated by her second injury. Therefore, the court held that her receipt of partial disability benefits should be suspended until she reaches the age of 65, at which time her entitlement to total disability benefits ends.

As a basis for this decision, the court relied on § 39-71-737, MCA (1983), which prohibits the payment of different classes of benefits at the same time. Reeverts contends that the court’s reliance on this section was misplaced because this provision prohibits the payment of two classes of benefits resulting from the same industrial injury rather than prohibiting concurrent payment of benefits for different injuries. Here, Reeverts sustained a second, separate injury, which left her totally disabled, and she maintains that this later injury does not negate her entitlement to permanent partial disability benefits for the original injury which left her permanently partially disabled. Reeverts asserts that the court’s decision regarding suspension of her benefits is contrary to previous decisions of the Workers’ Compensation Court on the same subject, and this Court’s decisions in Tiedeman v. State Fund (1985), 218 Mont. 312, 708 P.2d 255, and Peitz v. Industrial Accident Board (1953), 127 Mont. 316, 264 P.2d 709, where we held that a prior settlement did not preclude the claimant from recovering subsequent benefits for a second injury to the same part of his body.

Sears takes no position on this issue based on its argument that Reeverts sustained no disability from the first injury, and therefore, it considers this issue moot.

For the following reasons, we conclude that the Workers’ Compensation Court misapplied § 39-71-737, MCA (1983), in this instance and hold that this section of the statute does not prohibit concurrent payment of benefits for different injuries.

Section 39-71-737, MCA (1983), states that “Compensation shall run consecutively and not concurrently, and payment shall not be made for two classes of disability over the same period.”

The statute does not specify whether it relates only to classes of benefits for the same injury or to benefits for separate injuries. Therefore, in order to ascertain the intentions of the legislature, we must look to its history.

This section of the workers’ compensation law was originally adopted in 1915. 1915 Montana Laws, Chapter 96, § 16(h). It was later amended in 1921,1925,1945,1947,1955,1973,1974,1985, and 1987. However, other than 1985, there are no relevant legislative minutes which shed light on the question raised in this appeal.

In 1985, certain exceptions to the prohibition on concurrent payments were added to the statute. This amendment was offered in response to this Court’s decision in Grimshaw v. L. Peter Larson Company (1984), 213 Mont. 291, 691 P.2d 805, and was enacted to permit indemnity benefits based on physical impairment to be paid during the period of time that a claimant is receiving temporary total disability benefits. However, all of the discussion in the 1985 legislative history relates to situations where a claimant is entitled to different classes of benefits resulting from the same injury, and not to a situation similar to the one presented in this case.

In 1987, the statute was again amended. This time the purpose of the amendment was to allow for an impairment award and auxiliary rehabilitation benefits to be paid concurrently with other benefits. It also allowed for wage supplement benefits and partial rehabilitation benefits to be paid concurrently. These amendments clearly relate to permitting different types of benefits, which accrue from the same injury, to be paid concurrently where their purposes can be complimentary of each other. Section 39-71-737, MCA (1987).

Perhaps the best indication of the purpose of this statute can be ascertained from the original form in which it was enacted. The 1915 statute was very specific about the order in which benefits were to be paid. It provided:

(h) Compensation for all classes of injuries shall run consecutively and not concurrently, and as follows: First, the two weeks medical and hospital services and medicines as provided in section 16(f), unless the employee is a contributor to a hospital fund, as otherwise in this act provided; after the first two weeks, compensation as provided in section 16(a), or 16(b), or 16(c); following, either or none of the above, compensation as provided in 16(i); following any or either, or none of the above, if death results from the accident within six months of the date of the injury, burial expenses as provided in section 16(e); following which compensation to beneficiaries, if any; following which, if no beneficiaries, compensation to major dependents; following which, if no beneficiaries and no major dependents, compensation to minor dependents, if any.

1915 Montana Laws, Chapter 96, § 16(h).

It its original form, this statute laid out a progression for payment of benefits which could only refer to different types of benefits from the same injury. The statute refers to “the accident” and “the injury” and sets forth a sequence which can only logically apply to a single injury, rather than separate and distinct injuries.

This Court has interpreted § -737 of the Workers’ Compensation Act in only two instances: Grimshaw, 691 P.2d at 805, and Dosen v. East Butte Copper Mining Company (1927), 78 Mont. 579, 254 P. 880 (overruled on other grounds by Small v. Transportation Ins. Co. (1984), 209 Mont. 387, 681 P.2d 1081). In Dosen, this Court observed that the statute, as it existed in 1927, contemplated the possibility of four resulting conditions from an injury: (1) temporary total disability; (2) permanent total disability; (3) temporary partial disability; and (4) permanent partial disability. The Court held that the term “classes” mentioned in this predecessor to § -737 referred to the different types of disability benefits which could potentially be received for a single injury. We held that they had to be paid successively in the order provided for in the statute, and that payment for two different classes could not be made over the same period of time. Neither this case, nor the statute in its original form, made mention of different classes of benefits to which a claimant might be entitled as a result of two separate injuries.

We set forth in Dosen the following illustration of how § -737 applies:

If a man who has a broken leg is confined to his bed for a period of two months, during that time he is temporarily totally disabled. If the leg is so badly injured that a good recovery never ensues, or if complications from the injury set in so that he never makes a good recovery, he then has a permanent partial disability. The period of total disability has ceased and a period of partial disability has succeeded. Here are two classes of disabilities, one succeeding the other.

Dosen, 254 P. at 887.

Likewise, in Grimshaw, this Court discussed § -737 in the context of two different types of disability benefits to which a claimant might be entitled as a result of the same injury. We held in Grimshaw, 691 P.2d at 809, that permanent total disability benefits could not be paid concurrently with permanent partial disability benefits which resulted from the same injury. Thus, we find no support in either the legislative history nor in this Court’s previous decisions for the proposition that the prohibition against concurrent payment of different classes of benefits applies to benefits resulting from separate injuries.

We conclude that such an application of § -737 was never the Legislature’s intention when it enacted this provision in its original form. Nor is there any evidence to suggest that this was the Legislature’s intention when the subsequent amendments to this section were adopted. Finally, none of our prior decisions which discuss § -737 support the type of construction implicit in the Workers’ Compensation Court’s decision.

We hold that when Reeverts went back to work and re-injured herself, she did not lose the right to receive the partial disability benefits to which she was entitled as a result of her prior injury. Therefore, the court erred when it concluded that Reeverts could not receive her permanent partial disability benefits, which were due as a result of her 1984 injury, concurrently with her permanent total disability benefits, which were due because of her 1989 injury.

ISSUE 3

Did the Workers’ Compensation Court err when it refused to award a 20 percent penalty pursuant to § 39-71-2907, MCA (1983)?

Reeverts contends the court erred by failing to award a 20 percent increase in her disability award because the adjuster for Sears knew that Reeverts was entitled to continued partial disability benefits when she returned to work after her first injury but, without an adequate investigation, refused to pay those benefits. Sears, however, counters by claiming there was a legitimate dispute between the parties regarding the extent of partial disability benefits to which Reeverts was entitled. Therefore, it contends there is no basis for the imposition of a penalty based on an employer’s unreasonable delay or refusal to pay benefits.

Section 39-71-2907, MCA (1983), provides in pertinent part:

When payment of compensation has been unreasonably delayed or refused by an insurer ... the full amount of the compensation benefits due a claimant ... may be increased by the workers’ compensation judge by 20%. The question of unreasonable delay or refusal shall be determined by the workers’ compensation judge

We have stated that the Workers’ Compensation Court’s decision regarding the imposition of a penalty is a question of fact and will not be reversed if the decision is supported by substantial credible evidence. Chapman, 856 P.2d at 238.

In its amended order, the Workers’ Compensation Court found “that a legitimate dispute occurred between the parties and the evidence does not support a finding that defendant [Sears] unreasonably delayed or denied claimant’s benefits.” Based on our previous decisions regarding permanent partial disability benefits, and the position Sears has taken in this case in disregard of those decisions, this issue is a difficult one. However, since Sears did offer evidence in support of its position, and out of deference to the trial court’s better position to consider the spirit in which that evidence was offered, we affirm the court’s denial of the penalty with the following caveat: This is not an issue that should have to be repeatedly decided by this Court while needed disability benefits are denied and delayed.

The judgment of the Workers’ Compensation Court is affirmed with respect to its conclusions that Reeverts is entitled to 500 weeks of permanent partial disability benefits due to her 1984 injury, and that there is no basis to impose the statutory penalty. However, we reverse the court’s determination that the payment of these benefits should be suspended until her entitlement to total disability benefits for the 1989 injury terminates. This case is remanded for entry of judgment consistent with this opinion.

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


author: JUSTICE GRAY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. CHARLES FISCH, Defendant and Appellant.
    No. 93-640.
    Submitted on Briefs July 6, 1994.
    Decided September 20, 1994.
    51 St.Rep. 907.
    266 Mont. 520.
    881 P.2d 626.

      For Appellant: Rienne H. McElyea, Berg, Lilly, Andriolo & Tollefsen, Bozeman.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, John Paulson, Ass’t Attorney General, Helena; Michael Salvagni, Gallatin County Attorney, Bozeman.
   JUSTICE GRAY

delivered the Opinion of the Court.

Charles Fisch appeals from a jury verdict and judgment of the Eighteenth Judicial District Court, Gallatin County, convicting him of the offense of aggravated assault. He asserts error in the court’s refusal to instruct the jury on the alleged lesser included offense of negligent endangerment. We affirm.

Charles Fisch (Fisch) was charged with aggravated assault, a felony, in violation of § 45-5-202(1), MCA. He pleaded not guilty and the case proceeded to a jury trial. In presenting its case, the State of Montana (State) contended that Fisch had knowingly or purposely caused serious bodily injury to his stepson, LaShaun Geehan (Geehan), by shooting him in the back with a .22 caliber rifle. Geehan testified that the shooting arose out of an argument he had with Fisch only moments before the shooting occurred. Fisch’s position was that his actions constituted negligent conduct.

The District Court and counsel settled jury instructions during the second day of the trial. The court refused Fisch’s proposed instruction that the offense of negligent endangerment is a lesser included offense of aggravated assault; the court also refused other negligent endangerment-related instructions offered by Fisch.

The jury found Fisch guilty of aggravated assault. The District Court sentenced him to 15 years in the Montana State Prison on the aggravated assault charge, with 5 years suspended, and 7 years’ imprisonment for using a weapon in the commission of the offense, to run consecutively. The court also designated Fisch a dangerous offender. Restitution in the amount of $16,160.94, for Geehan’s medical expenses, was ordered as a condition of the suspended sentence. Fisch appeals.

Did the District Court err in refusing Fisch’s proposed instruction that negligent endangerment is a lesser included offense of aggravated assault?

A criminal defendant is entitled to an instruction on a lesser included offense if, based on the evidence, the jury rationally could find him guilty of the lesser offense and acquit him of the greater offense. Section 46-16-607(2), MCA; State v. Sheppard (1992), 253 Mont. 118, 123, 832 P.2d 370, 373. That entitlement is premised on the offense actually constituting a lesser included offense and the existence of sufficient evidence to support the included offense. The issue before us here is the more fundamental question of whether the District Court erred in concluding that negligent endangerment is not a lesser included offense of aggravated assault under § 46-1-202(8)(c), MCA. I

Three alternative definitions of “included offenses,” often referred to as lesser included offenses, are contained in § 46-1-202(8), MCA. Fisch offered his proposed instruction that negligent endangerment is an offense included in aggravated assault under subsection (c) of that statute, which provides that an included offense is one that “differs from the offense charged only in the respect that a less serious injury or risk to the same person, ... or a lesser kind of culpability suffices to establish its commission.” Section 46-1-202(8)(c), MCA. We have not previously addressed this specific statutory definition of an included offense.

The offense of aggravated assault is committed if a person “purposely or knowingly causes serious bodily injury to another.” Section 45-5-202(1), MCA. The offense of negligent endangerment is committed when a person “negligently engages in conduct that creates a substantial risk of death or serious bodily injury to another ....” Section 45-5-208(1), MCA. Fisch argues that the offense of negligent endangerment requires a lesser mental state and a lesser standard of harm than aggravated assault and, as a result, that negligent endangerment is a lesser included offense of aggravated assault under § 46-l-202(8)(c), MCA. We disagree.

The definition of included offense contained in § 46-l-202(8)(c), MCA, is written in the disjunctive and with an “only” qualifier. Thus, an included offense may differ from the offense charged by way of a less serious injury or a less serious risk or a lesser kind of culpability. In other words, an offense is an included offense under § 46-1-202(8)(c), MCA, if it differs from the charged offense in one, but only one, of the three ways set forth in the subsection. This careful drafting permits an offense which differs from the charged offense in only one significant respect regarding degree to be an included offense; at the same time, it prevents the “inclusion” of offenses which differ sharply in several respects from the charged offense.

Fisch’s underlying position is that two (or, perhaps, all three) of the subsection (8)(c) variations in degree exist between aggravated assault and negligent endangerment. Under an appropriate reading of the statute, it is clear that even if Fisch were correct as to the existence of these several differences, negligent endangerment would not be a lesser included offense of aggravated assault under § 46-1-202(8)(c), MCA.

Moreover, Fisch’s premise that the ‘less serious injury” criterion contained in § 46-l-202(8)(c), MCA, is met here vis-a-vis negligent endangerment and aggravated assault is incorrect. A less serious injury than the “serious bodily injury” upon which this charge of aggravated assault was based would be “bodily injury.” Indeed, the legislature has provided for an offense differing from aggravated assault with respect to the degree of injury, namely, assault. See §§ 45-5-201(l)(a) - (b), MCA.

Similarly, Fisch’s argument that the ‘less serious risk” criterion of § 46-l-202(8)(c), MCA, is met here also fails. First, Fisch meshes the ‘less serious injury or risk” components into one; as discussed above, the construction of § 46-l-202(8)(c), MCA, does not support this approach. Second, the serious bodily injury upon which the aggravated assault charge is premised is totally unrelated to the seriousness of a “risk” defined in any statute. A “risk” element — of whatever degree — is altogether distinct from an “injury” element; as used in the statute, a risk connotes creating a dangerous situation or condition, while an injury connotes the actual infliction of harm. Risks of varying degrees would compare an element such as the “substantial risk” of death or serious bodily injury contained in the negligent endangerment definition with, for example, a mere “risk” of death or serious bodily injury. Here, Fisch’s conduct — even if merely negligent — did not create a risk; it inflicted an actual injury.

Finally, Fisch equates the ‘lesser kind of culpability’ criterion in § 46-l-202(8)(c), MCA, to the mental state element of the two offenses. He reasons that the “negligently engages in conduct” element of negligent endangerment is a lesser degree of culpability than the “purposely or knowingly causes” element of aggravated assault. We need not resolve this question here.

Assuming arguendo that Fisch is correct in this regard, this lesser kind of culpability would be the only trait shared by the two offenses; as discussed above, the other elements of the offenses are qualitatively different and unrelated. Section 46-l-202(8)(c), MCA, explicitly directs that an included offense may differ from the offense charged only in respect to one of the statutory variations.

The District Court correctly concluded that negligent endangerment is not a lesser included offense of aggravated assault under § 46-l-202(8)(c), MCA. As a result, no amount of evidence in support of that offense could have entitled Fisch to a negligent endangerment instruction under that statute. We hold, therefore, that the court did not err in refusing Fisch’s proposed instruction on that basis.

Fisch also argues that negligent endangerment is a lesser included offense of aggravated assault under the definition contained in § 46-l-202(8)(a), MCA. A proper analysis of that issue would include application of the so-called Blockburger test for determining whether an offense is a lesser included offense of another offense. See, e.g., State v. Arlington (Mont. 1994), 875 P.2d 307, 329, 51 St.Rep. 417, 433; citing Blockburger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed 306.

As set forth above, however, Fisch did not offer his proposed instruction pursuant to § 46-l-202(8)(a), MCA, in the District Court. “It is axiomatic that a party may not change the theory on appeal from that advanced in the district court.” State v. Henderson (Mont. 1994), 877 P.2d 1013, 1016, 51 St.Rep. 606, 607 (citation omitted). We decline to address the merits of this argument.

AFFIRMED.

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


author: JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MICHAEL THOMAS STEWART, Defendant and Appellant
    No. 93-479.
    Submitted on Briefs May 19, 1994.
    Decided September 20, 1994.
    51 St.Rep. 910.
    266 Mont. 525.
    881 P.2d 629.

      See also 833 P.2d 1085.
    For Appellant: Amy N. Guth, Public Defender’s Office, Libby.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Micheál Wellenstein, Assistant Attorney General, Helena; Scott B. Spencer, Lincoln County Attorney, Libby.
   JUSTICE HUNT

delivered the Opinion of the Court.

Defendant Michael Thomas Stewart appeals from an order of the Nineteenth Judicial District Court, Lincoln Gounty, denying defendant’s motion to dismiss on the grounds of denial of a speedy trial.

The decision of the District Court is affirmed.

The sole issue on appeal is whether the District Court erred in denying defendant’s motion to dismiss on speedy trial grounds.

On January 28, 1991, a Lincoln County jury found defendant Michael Stewart guilty of theft, attempted theft, and forgery. The District Court sentenced defendant to serve ten years on each count in the Montana State Prison, with five years suspended on each count. The court ordered these sentences to run concurrently. Defendant appealed his conviction to this Court; execution of his sentences was stayed pending appeal.

In October 1991, the United States charged defendant with conspiracy and mail fraud. Defendant was found guilty of conspiracy to commit mail fraud. The Federal District Court sentenced defendant to a term of fourteen months in prison and three years of supervised release upon his release from prison.

On June 23, 1992, this Court reversed and remanded defendant’s Lincoln County felony convictions. While Stewart was serving his federal sentence in South Dakota, this Court issued a remittitur on July 9, 1992, and filed it in the District Court on July 13, 1992. The District Court issued a warrant for defendant’s arrest on August 5, 1992, charging him with attempted theft, theft, and, forgery.

A detainer was filed by the State on July 8, 1992. On August 6, 1992, the State forwarded the appropriate detainer documents to the federal prison. On August 18, 1992, federal prison authorities informed defendant of the detainer and advised him of his right to request final disposition of the Montana charges within 180 days pursuant to Article III of the Interstate Agreement on Detainers. Defendant did not request a final disposition.

On April 20,1993, defendant was released from federal prison and brought to Lincoln County to face the three felony charges. On April 23, the court released defendant on his own recognizance and appointed counsel to represent him.

Atrial date was set for July 26, 1993. On June 9, 1993, defendant filed a motion to dismiss for lack of a speedy trial, claiming that 378 days had elapsed from the filing of the remittitur to the trial date. The court denied defendant’s motion to dismiss and granted his motion to continue, resetting the trial for August 24, 1993.

The court granted defendant’s motion to dismiss the theft charge on the grounds of double jeopardy; accepted defendant’s guilty plea to the charge of attempted theft; dismissed the forgery charge; and sentenced defendant to a two-year suspended sentence to run concurrently with the federal sentence.

Defendant asserts that he has been denied the right to a speedy trial by a delay of378 days from the time of the filing of the remittitur on July 13, 1992, to the date of the second trial on July 26, 1993. Defendant argues that his right to a speedy trial is protected by the Sixth Amendment to the United States Constitution and is not limited by the Interstate Agreement on Detainers, Article III(l) of § 46-31-101, MCA.

The record shows that the defendant failed to petition the State to dispose of the charges within 180 days pursuant to Article III(l) of the Interstate Agreement on Detainers which provides in part:

Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition....

Article III(l) of § 46-31-101, MCA.

The State did not make a request for temporary custody under Article IV of the Interstate Agreement on Detainers which provides in part:

The appropriate officer of the jurisdiction in which an untried indictment, information, or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party state made available in accordance with Article V(l) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated

Article IV(1) of § 46-31-101, MCA.

In a memorandum supporting its Order denying defendant’s motion to dismiss, the District Court found that defendant’s failure to demand a trial under Article III of the Interstate Agreement on Detainers was not a waiver of his right to a speedy trial under the Sixth Amendment. Aso, the court found that the State’s failure to request temporary custody of defendant did not deprive defendant of a speedy trial.

Defendant argues that the court denied his motion to dismiss because defendant failed to demand a trial to dispose of the charges pursuant to Article III of the Interstate Agreement on Detainers. Defendant contends that the court wrongly interpreted the Interstate Agreement on Detainers by turning defendant’s right to dispose of the charges within 180 days into a condition precedent that must be exercised in order to preserve the right to a speedy trial.

The record does not support defendant’s contention. The court viewed defendant’s failure to exercise his right under Article III of the Interstate Agreement on Detainers as a factor to be considered, rather than a dispositive fact, in determining whether defendant had been denied a speedy trial. The court correctly analyzed defendant’s claim under the test set forth in Barker v. Wingo (1972), 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101. This Court adopted the Barker test in State ex rel. Briceno v. District Court (1977), 173 Mont. 516, 518, 568 P.2d 162, 163-64.

The accused’s right to a speedy trial in a criminal prosecution is guaranteed by the Sixth Amendment to the United States Constitution, and Article II, Section 24, of the Montana Constitution. To determine whether a defendant’s right to a speedy trial has been violated, this court must balance four factors: (1) length of delay, (2) reason for delay, (3) the defendant’s assertion of his right, and (4) the prejudice to defendant. Barker, 407 U.S. at 530, 92 S.Ct. at 2192; State v. Thompson (1993), 263 Mont. 17, 32, 865 P.2d 1125, 1135; State v. Hembd (1992), 254 Mont. 407, 413, 838 P.2d 412, 416; State v. Heffernan (1991), 248 Mont. 67, 70, 809 P.2d 566, 568. Of the four Barker factors, no one factor is determinative; all four must be considered in light of the facts and circumstances. Thompson, 865 P.2d at 1135; State v. Morris (1988), 230 Mont. 311, 317, 749 P.2d 1379, 1382.

(1) LENGTH OF DELAY

We have held that the first factor, length of delay, is of primary importance. The other factors need not be considered unless the length of delay is presumptively prejudicial. Thompson, 865 P.2d at 1134; State v. Dahms (1992), 252 Mont. 1, 12, 825 P.2d 1214, 1220. Whether the length of delay will be considered presumptively prejudicial depends on the facts of each case. The initial computation of length of delay is made without allocation of days to either party. Thompson, 865 P.2d at 1135; Dahms, 825 P.2d at 1220; Heffernan, 809 P.2d at 568. While delays of over 200 days will usually trigger the full speedy trial analysis, Dahms, 825 P.2d at 1220-21; State v. Wombalt (1988), 231 Mont. 400, 753 P.2d 330, we have held that a delay of 175 days was presumptively prejudicial. State v. Bartnes (1988), 234 Mont. 522, 764 P.2d 1271.

In the case of retrials, it is the time of the filing of the remittitur which is controlling in determining a defendant’s speedy trial rights. State v. Cardwell (1981), 191 Mont. 539, 545, 625 P.2d 553, 556, State v. Sanders (1973), 163 Mont. 209, 214, 516 P.2d 372, 375. In the present case, the clock began running when the remittitur was filed in District Court on July 13,1992, and stopped running July 26,1993, the date set for trial. The 378 days between the filing of the remittitur and the trial date is presumptively prejudicial to defendant, therefore, the remaining three factors must be considered.

(2) REASONS

In considering the second factor, the reasons for the delay, we allocate the delay by determining how much time is attributable to each party. Thompson, 865 P.2d at 1135; Heffernan, 809 P.2d at 568.

A total of378 days elapsed between the filing of the remittitur on July 13,1992, and the July 26,1993, trial date. Defendant argues that when a defendant is incarcerated in a foreign jurisdiction, the State must acquire temporary custody over the defendant pursuant to Article IV of the Interstate Agreement on Detainers in order to guarantee a speedy trial. Defendant argues that all of the 378 days are chargeable to the State because the State did not seek temporary custody over defendant. We do not agree.

The record shows that 36 days elapsed from the July 13, 1992, filing of the remittitur to the August 18, 1992, filing of the detainer. Ninety-seven days elapsed from the April 20, 1993, release of defendant into the custody of the State of Montana to the July 26, 1993, trial date. All of this 133 day delay was institutional and is chargeable to the State of Montana. There is nothing in the record to suggest that this delay was purposeful or caused by bad faith on the part of the State. We do not suggest that a defendant should waive the right to a speedy trial because of institutional delays. However, institutional delay weighs less heavily against the State than does purposeful delay. Thompson, 865 P.2d at 1135; Hembd, 838 P.2d at 416.

In State v. Grant (1987), 227 Mont. 181, 738 P.2d 106, this Court addressed the amount of time chargeable to a defendant incarcerated in a foreign jurisdiction where a detainer had been filed. We held that the time chargeable to the defendant began when the State of Montana issued the first of three detainers to the defendant and the State of Idaho notifying them of the charges pending against the defendant in Montana. Grant, 738 P.2d at 109. The time chargeable to the defendant stopped running when theldefendant asserted his right to a speedy trial by requesting a final disposition of the Montana charges. Grant, 738 P.2d at 109. We concluded that because the defendant knew the charges were pending against him in Montana, it was up to the defendant to request a speedy disposition of the charges against him. Grant, 738 P.2d at 109.

The record shows that 245 days elapsed from the August 18,1992, filing of the detainer to the April 20, 1993, release of defendant into the custody of the State of Montana. Defendant was aware of the charges pending in Montana and of his right to request a final disposition of those charges under Article III of the Interstate Agreement on Detainers. Defendant did not exercise this right. The total 245 days is chargeable to defendant. Grant, 738 P.2d at 109-10.

(3) ASSERTION OF THE RIGHT

The record shows that defendant satisfied the third element by moving to dismiss the action on speedy trial grounds on June 9,1993, prior to the commencement of his trial.

(4) PREJUDICE TO THE DEFENDANT

The final Barker factor is prejudice to the defendant. Three interests of a defendant may be prejudiced by a delay in coming to trial. These interests are: (1) pretrial incarceration, (2) anxiety and concern, and (3) impairment of defense. Thompson, 865 P.2d at 1135; Hembd, 838 P.2d at 416; Barker, 407 U.S. at 532, 92 S.Ct. at 2193. While all three are important, the most critical interest is impairment of defense. Thompson, 865 P.2d at 1135; State v. Mooney (1991), 248 Mont. 115, 119, 809 P.2d 591, 594.

The first interest we must consider is the defendant’s right to prevent oppressive pretrial incarceration and its resulting prejudice. Heffernan, 809 P.2d at 570; Barker, 407 U.S. at 532, 92 S.Ct. at 2193. Defendant was released into the custody of the State of Montana on April 20, 1993. The District Court released defendant on his own recognizance on April 23, 1993, to stand trial on July 26, 1993. Defendant was not incarcerated during this period and cannot complain of prejudice.

Defendant argues that the detainer caused him to suffer prejudice during his incarceration in federal prison following his conviction on conspiracy to commit mail fraud. Defendant was charged by the State of Montana with theft, attempted theft, and forgery resulting from the same circumstances as the federal charge. We have held that “incarceration on a separate charge negates any prejudice arising from being incarcerated awaiting trial.” Hembd, 838 P.2d at 416; State v. Palmer (1986), 223 Mont. 25, 27-28, 723 P.2d 956, 959; State v. Harvey (1979), 184 Mont. 423, 435, 603 P.2d 661, 668. The record shows no evidence of oppressive pretrial incarceration. Defendant would have been incarcerated on the federal charges even if the State of Montana had not filed a detainer. There is no evidence that defendant suffered any prejudice from his pretrial incarceration.

The second interest we must consider is the level of anxiety the detainer caused the defendant. Defendant contends that his anxiety increased while in federal prison because after the detainer was filed he was denied furloughs that would have allowed him to visit his immediate family, including his elderly mother. We have previously stated that a certain amount of anxiety and concern is inherent in being charged with a crime, and that the existence of anxiety or emotional distress is notoriously difficult to prove. Thompson, 865 P.2d at 1135; State v. Curtis (1990), 241 Mont. 288, 303, 787 P.2d 306, 316. Although defendant did not act to remove the source of his anxiety by requesting a disposition of the State charges, defendant can be presumed to have experienced some anxiety and concern due to the detainer.

The final and most important consideration is whether the delay impaired or prejudiced the defense. Defendant argues that the State impeded his defense by denying him effective assistance of counsel. Defendant contends that following his federal conviction and incarceration he was unable to retain private counsel to prepare a defense to the pending State charges. Defendant farther contends that had the State extradited him in a timely manner he would have been able to request a public defender sooner than he did.

The record shows that defendant was released on his own recognizance on April 23, 1993, and that he remained free through the final disposition of the State charges. During that time the court granted defendant’s request for public counsel. The record reveals that defendant’s counsel provided an effective defense. The court granted defendant’s motion to dismiss the theft charge. The court accepted defendant’s guilty plea to the charge of attempted theft, and the court dismissed the forgery charge. Defendant received a two year suspended sentence to run concurrently with his federal sentence.

After considering the above three factors in light of the record, we conclude defendant was not prejudiced by the delay. Defendant’s own conduct prevented the State from bringing him to a speedy trial. He cannot now complain that he was denied a speedy trial. Grant, 738 P.2d at 110.

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

The District Court is affirmed.

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